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ivil Appeal No. 4108 of 1982.
From the Judgment and Order dated 23.12.
1981 of the Andhra Pradesh High Court in C.R.P. No. 3547 of 1981.
P.P. Rao, R. Venkataramani, V.G. Pragasam and Satya Mitra Garg for the Appellant.
P. Krishna Rao, B. Krishna Prasad and K.K. Gupta for the Respondents.
The Judgment of the Court was delivered by RANGANATH MISRA, J.
This is a tenant 's appeal by special leave against the order of eviction from a commercial prem ises at Gudur in Andhra Pradesh.
The Controller, the Appel late Authority and the High Court have concurrently found that the appellant was a wilful defaulter liable to be evicted.
Under document No. 1327 of 1969, a thirty year lease with an annual stipulated rent was granted in favour of one Narayanan, a partner of the hotel, for a term of 30 years beginning from 9th of 727 September, 1961.
For the first 15 years rent was stipulated at the rate of Rs. 150 per month and for the second span of 15 years rent was to be escalated to Rs.200 per month, and the tenant undertook to pay the rent by the 9th of every succeeding month.
The lease deed further stipulated: "Out of the advance of Rs.6,500, the second party shall deduct every month Rs.75 from the stipulated rent upto Rs. 1,500 and the balance of Rs.5,000 shall be paid back to the second party by the first party under valid receipt after the expiry of the lease period." Thus, by March 1971 the amount of Rs. 1,500 had been adjust ed and the landlord held Rs.5,000 refundable to the tenant.
Action for eviction was initiated on the plea that the tenant had failed to pay the rent for a certain subsequent period.
Courts below debated the main perhaps the only contention as to whether the plea of payment which the tenant advanced had been established.
On behalf of the landlord the account books of the Hotel were placed and the benefit of section 34 of the Evidence Act was claimed.
Lot of attention was bestowed in the Courts below on the question as to whether the oral evidence along with the presumption arising under section 34 of the Evidence Act had not established the position that no payment as claimed had been made.
On the finding that payment had not been established, eviction was ordered.
Two contentions have been advanced by Mr. P.P. Rao appearing for the appellant to maintain that the order of eviction was contrary to law and cannot be sustained.
Reli ance is placed on section 7 of the Andhra Pradesh Buildings (Lease, Rent & Eviction) Control Act, 1960, (hereafter 'Act ') in support of the stand that the sum of Rs.5,000 which lay as advance in the hands of the respondent landlord was either refundable to the tenant or adjustable against rent and if out of the sum of Rs.5,000 the arrears were available to be adjusted, the tenant was not at all in ' default.
It has next been contended that the lease of 1969 was for a term of 30 years certain and eviction has been claimed against a contractual tenant during the subsistence of the lease.
Admittedly, the lease does not have a forfei ture clause so as to bring the matter within the ambit of section 111(g) of the Transfer of Property Act.
The application for eviction, a copy of which is available on the record (at p. 10 of the second paper book), refers to a notice in para graph 7 in the following terms: 728 "The petitioners caused a registered notice through their counsel dated 28.10.1973 to the respondent demanding the rent due and also for the eviction from the schedule mentioned premises since the respondent has become a wilful defaulter.
The respondent received the notice and has not chosen to give any reply.
" It, therefore, follows, appellant 's counsel has contended, that the lease remained unter minated and the right created under the lease cannot be taken away by filing an application for eviction on the plea of wilful default in the matter of payment of rent.
Section 7 of the Act as far as relevant, provides: "7 (2) Where the fair rent of a building has not been so fixed (a) the landlord shall not, after the commencement of this Act claim, receive or stipulate for the payment of any premium or other like sum in addition to the agreed rent: Provided that the landlord may receive, or stipulate for the payment of, an amount not exceeding one month 's rent by way of advance; (b) save as provided in clause (a), any sum paid in excess of the agreed rent whether before or after the commencement of this Act, in consideration of the grant, continuance or renewal of the tenancy of the building after such commencement, shall be refunded by the landlord to the person by whom it was paid or, at the option of such person, shall be otherwise adjusted by the landlord.
(3) Any stipulation in contravention of sub section (1) or sub section (2) shall be null and void.
" The lease deed described the amount of Rs.6,500 as advance at four places and stipulates adjustment of a sum of Rs. 1,500 out of it and the balance amount of Rs.5,000 to be paid back to the tenant after the expiry of the lease peri od.
The provio to section 7(2)(a) prohibits payment of any sum exceeding one month 's rent by way of advance and sub section
(3) declares the stipulation for payment of rent in advance beyond that of one month as null and void.
729 The receipt of Rs.6,500 by the landlord was, therefore, contrary to law and opposed to public policy.
A sum of Rs. 1,500 has already been adjusted in the manner indicated in the petition for eviction and the fact that a sum of Rs.5,000 was still held by the landlord was admitted there in.
On the facts appearing on the record it is thus clear that the landlord held a higher amount than the rent due on the date when the petition for eviction was filed on the plea of wilful default of payment of rent.
The stipulation of holding the excess amount of RS.5,000 free of interest to be refunded under a valid receipt after the expiry of the lease period is the null and void stipulation and the amount of Rs.5,000 in the hands of the landlord was an amount held by the landlord on account of the tenant on the date of filing of the petition for eviction.
This Court in Mohd. Salimuddin vs Misri Lal & Anr., ; had occasion to deal with a more or less similar situation arising under the Bihar Buildings (Lease, Rent & Eviction) Control Act, 1947.
There, a sum of Rs.2,000 had been advanced by the tenant to the landlord stipulating adjustment of the loan amount_against the rent which accrued subsequently.
The landlord asked for eviction on the ground of arrears of rent by filing a suit.
The trial court had decreed the suit but the lower appellate court reversed the decree by holding that the tenant was not in arrears of rent since the amount advanced by the tenant was sufficient to cover the landlord 's claim of arrears.
The High Court, however, vacated the appellate judgment and restored that of the trial court holding that the loan amount by the tenant was in violation of the prohibition contained in section 3 of the Bihar Act and the tenant was in arrears of rent and liable to be evicted.
This Court set aside the judgment of the High Court by saying: "The view taken by the High Court is unsus tainable inasmuch as the High Court has lost sight of the fact that the parties to the contract were unequal.
The tenant was acting under compulsion of circumstances and was obliged to succumb to the will of the land lord, who was in a dominating position.
If the tenant had not agreed to advance the loan he would not have been able to secure the tenan cy.
" The Court referred to the doctrine of pari delicto and held that the same was not applicable against the tenant.
In M/s. Sarwan Kumar Onkar Nath vs Subhas Kumar Agarwalla, 730 ; , Salimuddin 's case came for consideration.
This was also a dispute under the Bihar Act where two months ' rent had been paid in advance by the tenant to the landlord on the stipulation that the advance amount would be liable to be adjusted towards arrears of rent, whenever necessary or required.
The Court held that the tenant could not be evicted on the ground of default in the payment of rent for two months even if the tenant failed to ask the landlord to make adjustment of the advance amount in the absence of any agreement requiring the tenant to inform the landlord as to when such adjustment is to be made.
This Court said that when the Rent Act prohibited the landlord to claim such advance payment, the tenant could not be consid ered to be a defaulter and the doctrine of pari delicto was not attracted to such a fact situation.
Mr. Rao building upon the ratio of these two decisions rightly contended before us that when the landlord had Rs.5,000 on tenant 's account with him which he was holding for years without paying interest and against the clear statutory bar, there could be no justification for granting a decree of eviction on the plea of arrears of rent.
In view of the fact that the stipulation that the amount would be refundable at the end of the tenancy is null and void under section 7(3) of the Act, the amount became payable to the tenant immediately and the landlord with Rs.5,000 of the tenant with him could not contend that the tenant was in default for a smaller amount by not paying the rent for some months.
The second contention advanced before us is equally weighty.
The lease being for a term of 30 years is to expire in September, 1999.
As we have already said, the lease did not stipulate a forfeiture clause and in the absence of a forfeiture clause in the lease leading to termination by forfeiture, the contractual tenancy was subsisting under the provisions of the Transfer of Property Act and there could not be any eviction from such a tenancy.
We are somewhat surprised to find that these irresisti ble defences were not advanced in the Courts below and the course of the litigation was confined to a consideration of section 34 of the Evidence Act.
The appeal is allowed, the concurrent decision of all the three Courts below directing the tenant to be evicted are set aside and the application for eviction is dismissed with costs throughout.
Hearing fee in this Court is assessed at Rs.3,000.
P.S.S. Appeal allowed.
| The proviso to section 7(2)(a) of the Andhra Pradesh Build ings (Lease, Rent and Eviction) Control Act, 1960 prohibits payment of any sum exceeding one month 's rent by way of advance, clause (b) thereto makes any such sum refundable or at the option of the tenant otherwise adjustable, and sub section
(3) declares the stipulation for payment of rent in advance beyond that of one month as null and void.
The appellant tenant took the demised premises on a thirty year lease beginning from September 9, 1969 and paid a large amount as advance, only a part of which was adjust able towards the stipulated rent in the subsequent months and the balance was to be paid back under a valid receipt after the expiry of the lease period.
The lease deed did not have a forfeiture clause.
The respondent land lord initiated action for eviction in October 1973 on the plea that the tenant had failed to pay rent for a certain subsequent period.
The tenant advanced the plea of payment.
The land lord placed the account books of the appellant and claimed the benefit of section 34 of the Evidence Act.
All the courts below found that the payment as claimed had not been estab lished.
In this appeal by special leave, it was contended that the balance of advance which lay in the hands of the re spondent landlord was either refundable to the tenant or adjustable against rent under section 7 of the Act, and if out of that sum the arrears were available to be adjusted the tenant was not at all in default; that the lease of 1969 being for a term of thirty years certain, eviction could not be claimed against a contractual tenant during the subsist ence of the lease, and that the lease did not have a forfei ture clause so as to bring the matter within the ambit of section 111(g) of the Transfer of Property Act.
726 Allowing the appeal by special leave, HELD: 1.
The stipulation in the lease deed that the amount of advance would be refundable at the end of the tenancy was null and void under section 7(3) of the Act.
The said amount became payable to the tenant immediately.
It was thus held by the landlord on account of the tenant on the date of filing of the petition for eviction.
The tenant could not, therefore, be considered a defaulter for a smaller amount by not paying the rent for some months.
[730D, 729BC, 730E] Mohd. Salimuddin vs Misri Lal & Anr., ; and M/s. Sarwan Kumar Onkar Nath vs Subhas Kumar Agarwalla, ; referred to.
The lease being for a term of thirty years was to expire in September, 1999.
The deed did not stipulate a forfeiture clause.
In the absence of such a clause the contractual tenancy was subsisting under the provisions of the Transfer of Property Act.
There could not, therefore, be any eviction from such a tenancy.
[730F]
|
N: Writ Petition No. 373 of 1970.
Under Article 32 of the Constitution of India for enforcement of the Fundamental Rights with Civil Appeals Nos. 2211 and 2212 of 1970 and 85 to 91 of 1971.
Appeals from the judgment and decree dated October 26, 1970 of the Madras High Court in Writ Petitions Nos. 64, 117, 118, 119, 120, 121, 185, 186 and 220 of 1970 respectively.
M.C. Chagla and K. Jayaram, for the petitioners (in W.P. No. 373 of 1970).
M.Natesan, Sardar Bahadur Saharya, K. Jayaram and Yougin dra Khushalani, for the appellant (in C.A. No. 2211 of 1970).
260 M.C. Setalvad and K. Jayaram, for the appellant (in C.A. No. 2212 of 1970).
K. Jayaram, for the appellants (in C.As.
Nos. 85 to 91 of 1971).
section Govind Swaminathan, Advocate General for the State of Tamil Nadu, section Mohan, A. V. Rangam, A. Subhashini and N. section Sivan, for the respondent (in all the matters).
The Judgment of the Court was delivered by Khanna, J.
The Gudalur Janmam Estates Abolition and Conversion into Ryotwari) Act, 1969 (Act No. 24 of 1969), hereinafter referred to as the Act, received the assent of the President on December 6, 1969, after it had been enacted by the legislature of the State of Tamil Nadu.
It was thereafter published in the gazette on December 17, 1969.
The Act extends to the Gudalur taluk of the Nilgiris district and applies to all janmam estates.
It is to come into force on such date as the State Government may, by notification, appoint.
This Court stayed the issue of the notification and, as such, no notification has so far been issued.
Nine petitions under article 226 of the Constitution of India were filed in the Madras High Court challenging the vires of the Act on the ground that it was violative of articles 14, 19 and 31 of the Constitution.
The case of the petitioners was that their lands in the Gudalur taluk were previously janmam estates but subsequently became ryotwari estates, especially after the resettlement of 1926 and, as such, the provisions of the Act were not applicable to those lands.
The Act, it was stated, did not get the protection of article 31A of the Constitution.
One of the above petitions was filed by O 'Valley Estate Ltd. This petitioner had taken on lease an estate comprising about 2,000 acres of land in the 19th century from the Nilambur Kovilakam who was the proprietor of that land besides some other land.
The Company (O 'Valley Estate Ltd.) has a plantation on the estate and is engaged in cultivation and manufacturing of tea and other plantation products.
The Nilambur Kovilakam was the petitioner in another petition.
The nine petitions were resisted by the State of Tamil Nadu on the ground that the lands in question were janmam estates and had retained that character till the passing of the Act.
The State of Tamil Nadu also invoked the protection of article 31A of the Constitution.
The nine petitions were dismissed by the Madras High Court by a common judgment given in the petition filed by O 'Valley Estate Ltd. It was held that the lands were janmam estates and had not lost that character.
The Act was held to be 261 (Khanna, J.) protected, by article 3 1 A of the Constitution.
Civil appeals Nos.
2211 and 2212 of 1970 and Nos. 85 to 91 of 1971 have been filed against the above judgment of the High Court.
Writ petition No. 373 of 1970 has been filed under article 32 of the Constitution.
by Balmadies Plantations Ltd. and its share holder Dayanand Bansilal Saxena challenging the vires of the Act or.
the ground that it is violative of articles 14, 19 and 31 of the Constitution and is not protected by article 31A.
According to the petitioner, the janmam estates which are now intended to be abolished by the Act had been converted into ryotwari estates.
The purpose of the Act, it is further stated, is not to bring about agrarian reform.
The petitioner company in this case had taken on lease 170.78 hectares from the Nilambur Kovilakam, the appellant in civil appeal No. 2211 of 1970, in the 19th century.
Out of the above area, 143.22 hectares is under coffee plantation, while the rest of the land consists of forests and waste land.
The writ petition has been resisted by the State of Tamil Nadu and the affidavit of Shri A. section Venkataraman, Additional Secretary has been filed in opposition to the petition.
The respondent has controverted the different grounds taken by the petitioner.
Gudalur taluk, it may be stated, comprises 12 villages.
The said taluk was originally part of Malabar district which now forms part of Kerala State.
O 'Valley village was transferred to the Nilgiris in 1873 and the other eleven villages were transferred in 1877.
Originally the janmis in Malabar were absolute proprietors of the land and did not pay land revenue.
After Malabar was annexed by the British in the beginning of the 19th century, the janmis conceded the liability to pay land revenue.
According to the case set up by the petitioner appellants, there was a gradual orision of the rights of janmis in the lands in question and the janmam estates became ryotwari estates after the resettlement of 1926.
As such, the Act, it is submitted, does not apply to the lands in dispute.
Before dealing with this aspect of the matter, it would be pertinent to refer to the different provisions of the Act.
Section 2 of the Act contains the various definitions.
Relevant clauses of that section read as under : "section 2.
In this Act, unless the context otherwise requires, (1) all expressions defined in the Malabar Tenancy Act shall have the same,respective meanings as in that Act with the modifications, if any, made by this Act; (2)"appointed day" means the date appointed by the Government under subsection (4) of section 1; (4) "forest" includes waste or arable land containing trees, shrubs or reeds.
262 Explanation.
A forest shall not cease to be such by reason only of the fact that, in a portion thereof, trees, shrubs or reeds are felled, or lands are cultivated, or rocks, roads, tanks, rivers or the like exist; (6) "jarmiam estate" means any parcel or parcels of land included in the holding of janmi; (7) "janmi" means a person entitled to the absolute proprietorship of land and includes a trustee in respect thereof; (9) "plantation crop" means tea, coffee, rubber, cinchona or cardamom; (11) "tenant" means a verumpattamdar as defined in sub clause (a) of clause (29) of section 3 of the Malabar Tenancy Act;" Section 3 of the Act deals with the vesting of janmam estates in Government, and reads as under : "3.
Vesting of janmam estates, etc., in Government.
With effect on and from the appointed day and save as otherwise expressly provided in this Act (a) the Malabar Tenancy Act, the, Malabar Land Registration Act, 1895 (Tamil Nadu Act III of 1896), the Gudalur Compensation for Tenants Improvements Act, 1931 (Tamil Nadu Act XIII of 1931) and all other enactments applicable to janmam estates as such, shall be deemed to have been repealed in their application to janmam estates; (b) every janmam estate including all communal lands and porambokes, waste lands, pasture lands, forests, mines and minerals, quarries, rivers and streams, tanks and irrigation works, fisheries, and ferries situated within the boundaries thereof shall stand transferred to the Government and vest in them free of all incumbrances, and the Tamil Nadu Revenue Recovery Act, 1864 (Tamil Nadu Act 11 of 1864), the Tamil Nadu Irrigation Cess Act, 1865 (Tamil Nadu Act VII of 1865), the Tamil Nadu Cultivating Tenants Protection Act, 1955 (Tamil Nadu Act XXV of 1955), the Tamil Nadu Cultivating Tenants (Payment of Fair Rent) Act, 1956 (Tamil Nadu Act XXIV of 1956) and, all other enactments applicable to ryotwari lands shall apply to the janmam estate; 263 (Khanna, J.) (c) all rights and interests created by the janmi in or over his jamnam estate before the appointed day shall as against the Government cease and determine; (d) the Government may, after removing any obstruction that may be offered, forthwith take possession of the janmam estate and all accounts, registers, pattas, muchilikas, maps, plans and other documents relating to the janmam estate which the Government may require for the administration thereof; Provided that the Government shall not dispossess any person of any land in the janmam estate in respect of which they consider that he is prima facie entitled to a ryotwari patta pending the decision of the appropriate authority under this Act as to whether such person is entitled to such patta; (e) the janmi and any other person whose rights stand transferred under clause (b) or cease and determine under clause (c) shall be entitled only to such rights and privileges as are recognised or conferred on him by or under this Act; (f) the relationship of janmi and tenant, shall as between them, be extinguished; and (g) any rights and privileges which may have accrued in the janmam estate to any person before the appointed day against the janmi shall cease and determine and shall not be enforceable against the Government or against the janmi and every such person shall be entitled only to such rights and privileges as are recognised or conferred on him by or under this Act.
" According to section 8, the janmi shall with effect on and from the appointed day be entitled to a ryotwari patta in respect of all lands proved to have been cultivated by the janmi himself, or by the members of his tarwad, tavazhi, illom or family or by his own servants or by hired labour with his own or hired stock in the ordinary course of husbandry for a continuous period of three agricultural years immediately before the 1st day of June 1969.
Explanation I to that section defines the word "cultivate" to include the planting and rearing of topes, gardens, orchards and plantation crops.
According to Explanation 11, where any land is cultivated with plantation crops, any land occupied by any building for the purpose of or ancillary to the cultivation of such crops or the preparation of the same for the market and any waste land lying interspersed among or contiguous to the planted area 264 upto a maximum of twenty five per centum of the planted area shall be constituted to be land cultivated by the janmi.
Section 9 deals with lands in ' respect of which a 'tenant is entitled to ryotwari patta.
According to the section, every tenant shall, with effect on and from the appointed day, be entitled to a ryotwari patta in respect of the lands in his occupation.
The right of the tenant to the ryotwari patta is subject to the conditions regarding cultivation mentioned in the Provisos to that section.
Section 10 provides that where no person is entitled to a ryotwari patta in respect of a land in a janmam estate under section 8 or section 9 and the land vests in the Government, a person who had been ' personally cultivating such land for a continuous period of three agricultural years immediately before the 1st day of June 1969, shall be entitled to a ryotwari patta in respect of that land.
This right too is subject to conditions mentioned in that section.
According to section 11, no ryotwari patta shall be granted with respect.
to the following categories situated within the limits of a janmam estate (a) forests; (b) beds and bunds of tanks and of supply, drainage, surplus or irrigation, channels; (c) threshing floor, cattle stands, village sites, carttracks, roads, temple sites and such other lands situated in any janmam estate, as are set apart for the common use of the villagers; (d) rivers, streams and other porambokes.
Section 12 empowers the Settlement Officer to inquire into the claims of any person for a ryotwari patta under the Act in respect of any land in a janmam estate and decide in respect of which land the claim should be allowed.
A right of appeal against the decision of the Settlement Officer to the 'Tribunal appointed under the Act is given by sub Section (3) of section 12.
The Tribunal, according to section 7, shall consist of one Person only who shall be a Judicial Officer not below the rank of Subordinate Judge.
Section 13 fastens liability to Pay land revenue to Government on the person Who becomes entitled to a ryotwari patta under the Act.
As regards a building, section 14 Provides that with effect on and from the appointed day, the same shall vest in the person who Owned it immediately before that day, subject to the conditions mentioned in that section.
Section 15 deals with rights of sons admitted into possession of any land in a janmam estate by any janmi for a non Agricultural purpose while section 16 makes provision for directions to be issued by the Government in respect of a person admitted by a janmi into possession of any land of the 2 65 (Khanna, J.) description specified in section II.
Section 17 relates to the rights of lessees of plantations and reads as under : "section 17.
Rights of lessees of plantations. (1)(a) Where, at any time before the appointed day the janmi has created by way of lease, rights in any lands for purposes of cultivation of plantation crops, the Govern ment may, if in their opinion, it is in the public interest to do so, by notice given to the person concerned terminate the right with effect from such date as may be specified in the notice, not being earlier than three months from the date thereof.
(b) The person whose right has been so terminated shall be entitled to compensation from the Government which shall be determined by the Board of Revenue in such manner as may be prescribed, having regard to the value of the right and the period for which the right was created.
(c) Where any such right is not determined under this sub section, the transaction whereby such right was created shall be deemed to, be valid and all rights and obligations arising thereunder, on or after the appointed day, shall be enforceable by or against the Government Provided that the transaction was not void or illegal under any law in force at the time.
(2) The Government may, if in their opinion, it is in the public interest to do so, impose reasonable restrictions on the exercise of any right continued, under this section.
Explanation.
Any rights granted in perpetuity shall cease and determine and be dealt with under section (3) (e) and not under this section.
" Section 18 deals with the rights of certain other lessees.
Chapter TV of the Act, which contains sections 19 and 20, deals with survey and settlement of janmam estates.
Chapter V, which contains sections 21 to 30, makes provision for determination and payment of compensation.
As regards the Nilambur Kovilagam, one of the appellants before us, the explanation to section 22 reads as under "Explanation.
For the purposes of this section, the janmam estate owned by the Nilambur Kovilagam which is partly divided and partly held in common by the several tavazhis shall be construed as a single janmam estate.
" 8 1208SupCI/72 266 Amount of compensation is the subject of section 28, while section 29 relates to the determination of basic annual sum and compensation.
The subject deal with by chapter VI, containing sections 31 to 46, is "Deposit and Apportionment of Compensation.
Sections 47 to 50 contained in chapter VII make provision for recovery of contribution from pattadars.
Chapter VIII contains the miscellaneous provisions.
Section 58 makes final the orders passed by the various authorities under the Act, while section 60 confers powers on the Government to, make rules for carrying out the purposes of the Act.
The rules are required to be published in the gazette and to be placed on the table, of both Houses of Legislature, so that the Houses may, if they so deem proper, make modification in any such rule.
We may at this stage advert to janmam estate.
According to Land Tenures in the Madras Presidency by section Sundararaja Iyengar, Second Edition (p. 49), the exclusive right to, and hereditary possession of the soil in Malabar is denoted by the term jenmam which means birthright and the holder thereof is known as jenmi, jenmakaran or mutalalan.
Until the conquest of Malabar by the Mahomedan princes of Mysore, the jenmis appear to have held their lands free from any liability to make any payment, either in money or in produce, to government and therefore until that period, such an absolute property was vested in them as was not found in any other part of the Presidency.
Sir Charles Turner after noticing the various forms of transactions prevalent in Malabar stated that they pointed to an ownership of the soil as complete as was enjoyed by a freeholder in England.
Subba Rao J. (as he then was), speaking for the Court, in the case of Kavalappara Kottarathil Kochuni and Others vs The State of Madras and Others(1) observed : "A janmam right is the freehold interest in a property situated in Kerala.
Moor in his "Malabar Law and Custom" describes it as a hereditary proprietorship.
A janmam interest may, therefore, be described as "proprietary interest of a landlord in lands", And such a janmam right is described as "estate" in the Constitution.
" It was held that the proprietor called janmi could create many subordinate interests or tenures like lease or mortgage in a janmam estate.
It is not, however, necessary to dilate upon the matter as janmam estate has been defined in clause (6) of section 2 of the Act to mean any parcel or parcels of land included in the holding of a janmi.
Janmi, according to clause (7) of the said section, means a person entitled to the absolute proprietorship of land and includes a trustee in respect thereof.
(1) 267 (Khanna, J.) Ryotwari or kulwar system was first introduced into the British possessions by Col. Read in 1792.
When the Baramahal and Saleem were ceded to the British by Tippu, Lord Cornwall is specially deputed Col. Read for their settlement.
The prevailing system of land revenue settlement at the time was the permanent settlement.
Col. Read, however, deemed it prudent to enter into temporary settlements with the actual cultivators and this gave rise to a new system since designated ryotwari or kulwar system.
The system introduced by Col. Read embraced the survey of every holding in the district and a field assessment based on the productive powers of the soil.
The ryot was not regarded as the proprietor of the soil but only as a cultivating tenant from whom was to be exacted by government all that the he could afford.
Certain objectionable features of the ryotwari system were then noticed, and an effort was made to eliminate those objectionable features.
The ryotwari system in force at present means the division of all arable land, whether cultivated or waste, into blocks, the assessment of each block at a fixed rate for a term of years and the exaction of revenue from each occupant according to the area of land thus assessed.
That area may remain either constant or may be varied from year to year at the occupant 's pleasure by the relinquishment of old blocks or the occupation of new ones.
This distinguishing feature of this system is that the state is brought into direct contact with the occupant of land and collects its revenue through its own servants without the intervention of an intermediate agent such as the Zemindar.
All the income derived from extended cultivation goes to the state.
Ryotwari lands are known as taraf lands in the Tanjore District, and as ayan, sirkar.
koru, or government lands in the other parts of the Presidency (see pages 152 and 153 of Land Tenure in the Madras Presidency, Second Edition, by Sundararaja Iyengar).
According to Land System of British India by Baden Powell, the holders of ryotwari pattas used to hold lands on lease from Government.
The basic idea of ryotwari settlement is that every bit of land is assessed to a certain revenue and assigned a survev number for a period of years, which is usually thirty, and each occupant of such land holds it subject to his paying the land revenue fixed on that land.
But it is open to the occupant to relinquish his land or to take new land which has been relinquished by some other occupant or become otherwise available on payment of assessment.
The above observations were referred to by this Court in the case of Karimbil Kunhikoman vs State of Kerala(1) and it was said : "The ryot is generally called a tenant of Government but he is not a tenant from year to year and cannot be ,ousted as long as he pays the land revenue assessed.
He (1) [1962] 1 Supp.
S.C.R. 847.
268 .lm15 has also the right to sell or mortgage or gift the land or lease it and the transferee becomes liable in his place for the revenue.
Further, the lessee of a ryotwari pattadar has no rights except those conferred under the lease and is generally a sub tenant at will liable to ejectment at the end of each year.
In the Manual of Administration as quoted by Baden Powell, in Vol.
III of Land Systems of British India at p. 129, the ryotwari tenure is summarised as that "of a tenant of the State enjoying a tenant right which can be inherited, sold, or burdened for debt in precisely the same manner as a proprietary right subject always to the payment of the revenue due to the State".
Though therefore the ryotwari pattadar is virtually like a proprietor and has many of the advantages of such a proprietor, he could still relinquish or abandon his, land in favour of the government.
It is because of this position that the ryotwari pattadar was never considered a proprietor of the land under his patta, though he had many of the advantages of a pro prietor." This Court held in the above case that the land held by ryotwari pattadars in the area which came to the State of Kerala by virtue of the States Reorganization Act from the State of Madras were not 'estates ' within the meaning of article 3 1 A (2) of the Constitution.
Subsequent to that decision, clause (2) of article 31A was amended by the Constitution (Seventeenth Amendment) Act, 1964.
As a result of that amendment, 'estate ' would also include any land held under ryotwari settlement.
Let us now go into the question as to whether the janmam rights in the lands in question have been converted into ryotwari estate.
We are concerned in the present case with the settlement of 1886 and resettlement of 1926.
In connection with the settlement of 1886, G.O. 741 Revenue dated August 27, 1886 was issued and its main purpose was to settle the lands which had been escheated to the Government and to collect revenue for the State An attempt was then made to have direct dealing with the cultivators without notice to the janmi.
This act of the State was held to be against law by a Division Bench of the Madras High Court in the case of Secretary of State vs Ashtamurthi(1).
In that case the Collector of Malabar let defendant No. 2 into possession of certain waste land in 1869 under a cowle, and in 1872 granted to him a patta for it.
The cowledar then brought the land under cultivation but subsequently left it uncultivated and failed to pay the assessed revenue.
The land was consequently attached in 1885 for arrears of revenue under the Revenue Recovery Act and sold to defendant No. 3.
The plaintiff.
who was the janmi of the (1) I.L.R. 13 Madras 89.
269 (Khanna, J.) land, had no notice of the grant of either the cowle or the patta.
He asserted his right to janmabhogam in a petition presented to the Collector at the time of the sale, but the sale proceeded without reference to his claim.
Suit was thereafter brought by the plaintiff to set aside the sale.
It was held that the interest of the janmi did not pass by the sale.
Parker, J. in the above context observed : "The evidence shows that the janmis or the proprietors of the soil in Malabar have long been in the habit of leasing out the greater portion of their estates to kanomdars who are thus in the immediate occupancy of the greater part of the soil.
This was the state of things at the time of Hyder 's conquest (exhibit XIV), and the British Government is stated to have continued the practice of the Mysore Government in settling the assessment with these kanomdars.
At the annexation of Malabar in 1799 the Government disclaimed any desire to act as the proprietor of the soil, and directed that rent should be collected from the immediate cultivators, Trimbak Ranu vs Naina Bhavani(1) and Secretary of State vs Vira Rayan (2) thus limiting its claim to revenue.
Further, in their despatch of 17th December 1813 relating to the settlement of Malabar the Directors observed that in Malabar they had no property in the land to confer, with the exception of some forfeited estates.
This may be regarded as an absolute disclaimer by the Government of the day of any proprietary right in the janmis ' estate, and is hardly consistent with the right of letting in a tenant which is certainly an exercise of proprietary right.
" On account of the above decision, the Madras Government reconsidered the matter and in 1896 the Malabar Land Registration Act (Act 3 of 1896) was enacted.
The object of that Act would be clear from its preamble which reads : "WHEREAS Regulation XXVI of 1802 provides that landed property paying revenue to Government shall he registered by the Collector; and whereas such landed property in certain areas in the Nilgiri district has in many cases not been registered in the names of the proprietors thereof; and whereas it is desirable for the security of the public revenue to provide a summary means whereby the Collector may ascertain such proprietors; It is hereby enacted as follows.
" According to section 13 of the above Act, every person registered ,is proprietor of an estate shall be deemed to be the landholder in (1) (2) I.L.R. 270 respect of such estate within the meaning and for the purposes of the Madras Revenue Recovery Act II of 1864.
The janmam rights in the lands in dispute thus remained intact.
The stand taken on behalf of the petitioner appellant, as mentioned earlier, is that the janmam rights in the lands in dispute were converted into ryotwari estate as a result of resettlement of 1926.
Government order No. 1902 Revenue dated November 1, 1926 was issued in this connection.
Para 3 of that order deals with the janmam estates and reads as under : "3.
JANMABHOGAM: Paragraph 11 of the Board 's Proceedings Lands have hitherto been described as (a) Government Janmam, i.e. lands which are held directly from the Government and on which taram assessment and janmabhogam are Paid to the Government and (b) private janmam, i.e. lands which are held directly from the Government and on which taram assessment but not janmabhogam is paid to the Government.
These two classes of land will hereafter be referred to as 'New Holdings ' and 'Old Holdings '.
The Special Settlement Officer proposed (1) to raise the existing rate of janmabhogam of 8 annas an acre on all so called Government janmam land in estates to Re. 1 an acre for highly developed estate crops; (2) to retain the existing rate on lands cultivated with non estate crops; and (3) to reduce it to 4 annas an acre on undeveloped lands.
The Board supported the proposals (1) and (3) but recommended an increase to Re. 1 in the case of proposal (2).
The Government have decided to apply the 18 3/4 per cent limit imposed in G.O. No. 924, Revenue, dated 18th June, 1924, to janmabhogam.
After careful consideration the Government have decided to accept the Board 's proposal to amalgamate the two items of land revenue, i.e., taram assessment and so called 'Janinabhogam ' which are being collected on all so called Government janmam lands, i.e., on new holdings, and in future to collect assessment on these lands at a 271 (Khanna, J.) consolidated rate based upon the total of the rates at which these two items of the land revenue are now being levied.
In all the figures quoted in the Appendix to this order concerning these lands the revised rate given is this consolidated rate.
" It would appear from the above that the effect of the resettlement of 1926 was to retain the janmam estates and not to abolish the same or to convert them into ryotwari estates.
There was merely a change of nomenclature.
Government janmam lands were called the new holdings, while private janmam lands were called the old holdings.
In respect of janmabhogam (Janmi 's share) relating to Government janmam lands, the order further directed that the amount to be paid to the Government should include both the taram assessment and janmabhogam.
It is difficult, in our opinion, to infer from the above that janmam rights in the lands in question were extinguished and converted into ryotwari estates.
The use of the word 'janmabhogam ' on the contrary indicates that the rights of janmis were kept intact.
It has been argued on behalf of the petitioner appellants that the grant of a right of relinquishment to janmis had the effect of obliterating the distinction between janmam estate and ryotwari estate.
The janmam rights, according to the submission, were thus converted into ryotwari estate.
In this connection we find that the Government order No. 1902 dated November 1, 1926 shows that question was raised as to, whether a janmi of private janmam land could claim exemption from assessment by leaving cultivable lands waste.
The Board of Revenue recommended that exemption should not be granted unless the janmi pattadar relinquished his whole right, title and interest.
The Government, however, considered that having regard to the practice of exempting unoccupied janmam lands from assessment the janmi should not be required to pay assessment on lands the cultivation of which was to cease.
In 1896 a system was introduced, according to which a janmi could give notice of relinquishment without giving up his janmam rights over the land and claim remission of assessment on the relinquished land if it was not taken up for cultivation in the following year. '.he
Board of Revenue in proceedings dated October 16, 1897 pointed out that this was in effect a reversion to the old system of charging all cultivation with all its attendant evils of corruption, loss of revenue and unnecessary labour in inspection.
The matter was thereafter further considered and the Board in its proceedings dated June 13, 1916 expressed the opinion that the existing rule relating to relinquishment of private lands was anomalous and proposed that no relinquishment of such lands should be permitted unless the janmi surrendered also his janmam right and that until he relinquished such right, he should be res ponsible to the Government for the payment of the assessment due 272 on such lands.
This proposal was accepted by the Government in 1917 and reiterated in 1919.
It would thus appear that the relinquishment permissible in the case of janmi was of a somewhat peculiar nature inasmuch as there could be no relinquishment of janmam lands unless the janmi surrendered also his janam rights.
The above right of relinquishment, in our opinion, did not have the effect of converting the janmam rights in the lands in dispute into ryotwari estate.
It is not disputed that apart from the lands in question, there are no other janmam estates in the State of Tamil Nadu (Madras).
If the janmam estates in question had been converted into ryotwari estates as a result of the resettlement of 1926, there would have arisen no necessity to mention the janmam right in the State of Madras in clause (2) (a) (i) of article 3 1 A of the Constitution.
The fact that in addition to the janmam right in the State of Kerala, the janmam right in the State of Madras was also mentioned in clause (2) (a) (i) of article 31 A as a result of amend ment, shows that the janmam rights in the lands in question were assumed by the legislature to be in existence.
To hold that the janmam rights in the lands in question ceased to exist after the resettlement of 1926 would have the effect of rendering the, words, wherein there is a reference to janmam right in the State of Madras in clause (2) (a) (i) of article 3 1 A, to be meaningless and without any purpose.
Reference has been made, on behalf of the petitioner appellants to the Full Bench case of Sukapuram Sabhayogam vs State of Kerala(1) wherein it was held that a person would cease to be Proprietor of a soil if he gets a right or is under an obligation to relinquish or abandon the land.
The, above case related to the plains of Malabar, while we are concerned with the hilly tracts of Gudalur taluk.
In the cited case pattas and Adangal registers were Produced in the court and the State accepted the authenticity of those documents.
In the cases before us, no patta was produced by the petitioner appellants either in the High Court or in this Court.
In view of the above, we are of the opinion that the facts of the Full Bench case are distinguishable.
In any case, we are unable to subscribe to the proposition that the right of relinquishment of janmam rights of a janmi would by itself convert janmam rights into ryotwari estate.
Argument has also been advanced on behalf of the petitioner appellants that so far as the forest areas in the janmam lands in question are concerned, they do not constitute estate unless they are held or let for purposes of agriculture or for purposes ancillary thereto, as contemplated by clause (2) (a) (iii) of article 31 A of the Constitution.
This contention, in our opinion, is devoid of 1963 Kerala 101.
(1) A.I.R 1663 Kerala 101 273 (Khanna, J.) force.
Sub clause (a) of clause, (2) of article 31A reads as under "(2) In this article, (a) the expression "estate" shall, in relation to any local area, have the same meaning as that expression or its equivalent has in the existing law relating to land tenures in force in that area and shall also include (i) any jagir, inam or muafi or other similar grant and in the States of Madras and Kerala, any janmam right; (ii) any land held under ryotwari settlement; (iii) any land held or let for purposes of agriculture or for purposes ancillary thereto, including waste land, forest land, land for pasture or sites of buildings and other structures occupied by cultivators of land, agricultural labourers and village artisans;" Janmam lands are covered by clause (2) (a) (i) of article 31 A. Forest area, which is part of such janmam land would like the remaining janmam lands, constitute an estate, and it would not be necessary in such a case to show that the forest land is held or let for purposes of agriculture or for purposes ancillary thereto.
All lands which are part of a janmam estate of a janmi in the States of Madras and Kerala would constitute estate as mentioned in clause (2) (a) (i) of article 31A of the Constitution.
As janmam lands fall under clause (2) (a) (i), it is not essential to show that the requirements of clause (2) (a) (iii) too are satisfied for such lands and it would make no difference whether forests are a part of the janmam lands.
The next question which arises for consideration is whether the acquisition of the lands in question is for agrarian reform.
It is well established that in order to invoke the protection of article 3 1 A, it has to be shown that the acquisition of the estate was with a view to implement agrarian reform.
The said article is confined only to agrarian reform and its provisions would apply only to a law made for the acquisition by the, State of any rights therein or for extinguishment or modification of such rights if such acquisition, extinguishment or modification is connected with agrarian reform [see P. Vajravelu Mudaliar vs Special Deputy Collector,, Madras & Anr.(1)].
(1) ; at p. 622. 274 We have referred in the earlier part of this judgment to the various provisions of the Act, and it is manifest from their perusal that the object and general scheme of the Act is to abolish intermediaries between the State and the cultivator and to help the actual cultivator by giving him the status of direct relationship between himself and the State.
The Act, as such, in its broad outlines should be held to be a measure of agrarian reform and would consequently be protected by article 31A of the Constitution.
The said article provides that notwithstanding anything contained in article 13, no law providing for the acquisition by the State of any estate or of any rights therein or the extinguishment or modification of any such right shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by article 14, article 19 or article 31, provided that where such law is a law made by the Legislature of a State, the provisions of article 31A shall not apply thereto, unless such law, having been reserved for the consideration of the President, has received his assent.
The impugned Act, as stated earlier, received the assent of this President on December 6, 1969.
As the Act is protected by article 31A of the Constitution, it is immune from attack on the ground of being violative of article 14, article 19 or article 31.
This fact would not, however, stand in the way of the court examining the constitutional validity of any particular provision of the Act It has been submitted on behalf of the appellants that whatever might be the position in respect of other janmam lands, so far as forests in janmam estates are concerned, the acquisition of those forests is not in furtherance of the objective of agrarian reform, and as such, is not protected by article 31A.
This submission, in our opinion, is well founded.
According to section 1 1 of the Act, no ryotwari patta would be issued in respect of forests in janmam estates after those estates stand transferred to the Government.
There is nothing in the Act to indicate as to what would be purPose for which the said forests would be used after the transfer of janman land containing forests to the Government.
All that section 16 states is that, except where the Government otherwise directs, no person admitted by a janmi into possession of any such forest shall be entitled to any rights in or remain in possession of such land.
Sub section (2) of that section specifies the directions which the Government may issue while allowing any person to remain in possession of any such land.
In the absence of anything in the Act to show the purpose for which the forests are to be used by the Government, it cannot be said that the acquisition of the forests in janmam land would be for a purpose related to agrarian reform.
The mere fact that the ownership of forests would stand transferred to the State would not show that the object of the transfer is to bring about agrarian reform.
Augmenting the 275 (Khanna,j.) resources of the State by itself and in the absence of anything more regarding the purpose of utilisation of those resources, cannot be held to be a measure of agrarian reform.
There is no material on the record to indicate that the transfer of forests from the janmi to the Government is linked in any way with a scheme of agrarian reform or betterment of village economy.
Learned Advocate General has referred to the case of State of Uttar Pradesh vs Raja Anand Brahma Shah(1).
In that case all the estates in a Pargana, including the forests, were acquired by the State of Uttar Pradesh under the U.P. Zamindari Abolition and Land Reforms Act.
Objection was taken to the acquisition of forests on the ground that it was not for the purpose of agrarian reform.
Repelling the objection, this Court observed : "Mr. A. K. Sen further urges that the acquisition of the estate was not for the purposes of agrarian reforms because hundreds of square miles of forest are sought to be acquired.
But as we, have held that the area in dispute is a grant in the nature of Jagir or inam, its acquisition like the acquisition of all Jagirs, inams, or similar grants, was a necessary step in the implementation of the agrarian reforms and was clearly contemplated in article 31A." It would appear from the above that the Court in that case was dealing with the acquisition of an estate which was in the nature of a Jagir, inam or similar grant, and it was found that the said acquisition was a necessary 'Step in the implementation of agrarian reform.
We are, in the cases before us, not concerned with Jagir, inam or other grant, and so far as the forests in question are concerned, it has already been observed that the acquisition is not in any way related to agrarian reform.
As such, the respondent State, in our view, cannot get much assistance from the cited case.
We, therefore, hold that the acquisition of the forests on the janmam land is not protected by article 31A.
It has not been shown to us that if the protection of article 3 1 A is taken off, the acquisition of forests can otherwise be justified.
We, therefore, are of the view that the provisions of section 3 of the Act in so far as they relate to the transfer of forests in the janmam estates in question are violative of the Constitution.
As such, we strike down those provisions to that extent.
Invalidity of the provisions relating to the transfer of forests would not, however, affect the validity of the other provisions of the Act as the two are distinct and severable.
(1) 62.
276 The last submission which has been made on behalf of the petitioner appellants relates to section 17 of the Act regarding the rights of plantation lessees.
It is stated that it would be open to the Government under the above provision to terminate by notice the right of the lessees.
Such a termination of the lessee rights under the above provision, according to the submission made on ,behalf of the petitioner appellants, would be violative of their rights under articles 14, 19 and 31 of the Constitution.
It is, in our opinion not necessary to deal with this aspect of the matter.
It is admitted that no notice about the termination of the lessee rights has been issued under section 17 of the Act to any of the petitioner appellants.
Indeed, the question of issuing such a notice can only arise after the Act comes into force.
Even after the Act comes into force, the Government would have to apply its mind to the question as to whether in its opinion it is in public interest to terminate the rights of the plantation lessees.
Till such time as such a notice is given, the matter is purely of an academic nature.
In case the Government decides not to terminate the lease of the plantation lessees, any discussion in the matter would be an exercise in futility.
If, on the contrary, action is taken by the Government under section 17 in respect of any lease of land for purposes of the cultivation of plantation crop, the aggrieved party can approach the court for appropriate relief.
As a result of the above, we uphold the vires of the Act, except in one respect.
The provisions of section 3 in so far as they relate to the transfer of forests in janmam estates to the Government are not protected by article 31A and being violative ,of the Constitution are struck down.
The appeals and writ petition are disposed of accordingly.
The parties, in the circumstances, are left to bear their own costs throughout.
| D, a Lecturer in a Government College, was appointed as examiner of a physics practical examination held by the Gujarat University.
He allegedly took Rs. 500 from a candidate at the examination for showing him favour .
He was charged with offences under section 161 Indian Penal Code and section 5(2) read with section 5(1)(d) of the Prevention of Corruption Act 1947.
The Sessions Judge held him to be a 'public servant ' within the meaning of cl. 9 of section 21 as it stood before its amendment by Act 40 of 1964, and held him guilty under section 161 of the I.P.C. He was also held guilty under the 1947 Act.
In, appeal the High Court held (1) that in is capacity as examiner of Gujarat University lie was not a public servant and therefore not guilty under, section 161 I.P.C.; (ii) that though a public servant in his capacity as lecturer in a Government College he had not abused his position as such public servant and ' therefore was not guilty under section 5(2) read with section 5(1)(d) of the Prevention of Corruption Act.
The State appealed to this Court.
HELD : (i) As rightly held by the High Court a public servant within the meaning of cl. 9 of section 21 as it stood at the relevant time must be an officer of the Government and the fee or commission must be payable by the Government.
A University Examiner cannot be considered to hold an office in the sense in which that word has been understood and employed in the Ninth Clause even though examining answer books may fall within the performance of a public duty.
A private individual who has no employment may be appointed an examiner because of his high academic qualifications.
He cannot be said to be holding any office.
An examiner who is in the regular service of a University also cannot be said to be a public servant since a University is not a local authority within the meaning of clause 12(b).
Since the appellant was not a public servant under section 21 I.P.C. he was rightly acquitted of the offence under section 161 I.P.C. [319 F 320 H] Ram Krishna Dalmia vs Delhi Administration, [1963] 1 S.C.R. 253, applied.
(ii)It was never the case of the prosecution that D had been guilty of any abuse of his position as a lecturer of the Government College.
As he was not a public servant when he was acting as an examiner it could not be said that there had been any abuse by him of his position as a public servant.
He was therefore rightly acquitted by the High Court of the offence, under section 5 (2) read with section 5 (1) (d) of the Prevention of Corruption Act 1947.
[325 E] 314 There are two ways of looking at clause 5(1)(d).
One is that the words "corrupt or illegal means" stand by themselves and as soon as it is established that a public servant has by such means obtained any valuable thing or pecuniary advantage he is guilty of the offence.
The other way of reading this clause is by confining the words "by otherwise" to the means employed.
Thus the means employed may be corrupt or illegal or may be of such a nature as would savour of a dishonest act.
But the abuse of position as a public servant would be essential whether the means are corrupt or illegal or are of the nature covered by the word "otherwise".
The analysis of clause (d) made in Narayanan Nambiar 's case seems to lend support to the view taken by the High Court that the abuse of position as a public servant is essential.
[324 A D] In clauses (a), (b) and (c) of section 5(1) the abuse of position as a public servant is clearly implied.
Clause (e) also carries the same implication.
It would, therefore, be reasonable to put on clause (d) a construction which is consistent with the other clauses of the sub section.
[325 C] M.Narayanan Nambiar vs State of Nerala, [1963] Suppl.
2 S.C.R. 724 and Rain Krishna & Another vs The State of Delhi, ; , applied.
Dhaneshwar Narain Sexana vs Delhi Administration,[1962] 3 S.C.R. 259, distinguished.
State of Ajmer vs Shivji Lal, [1959] Suppl.
S.C.R. 739, referred to.
|
Civil Appeal No. 1386 of 1976.
From the Judgment and Order dated 21 9 76 of the Karna taka High Court in W.A. No. 150 of 1976.
H.B. Datar, Sanjeev Aggarwal and R.B. Datar for the Appel lant.
S.T. Desat, S.K. Mehta, K.R. Nagara]a and P.N. Puri for Respondent.
661 The Judgment of the Court was delivered by JASWANT SINGH, J.
This appeal by certificate which is directed against the judgment and order dated September 21, 1976, of the High Court of Karnataka at Bangalore reversing the judgment and order dated March 3, 1976 of a Single Judge of that Court dismissing writ petition No.6945 of 1975 filed by the respondent involves a substantial question of law of general public importance relating to the validity of the levy of what is styled as 'supervision fee ' under section 124 of the Karnataka Municipalities Act, 1964 (hereinafter referred to as 'the Act ') read with rule 26 of the Karnataka Municipalities Taxation Rules, 1965 (herinafter referred to as 'the Rules ').
The facts of the case lie in a short compass and may be stated as follows: Iron ore which is extracted from its mine heads in Hospet Taluka is brought over and stocked in Hubli Railyard by the Mysore Minerals Limited which is a Government undertaking.
Having taken up the contract of transhipment of the iron ore from Hubli Railyard to Karwar and Belekeri harbours, the Mysore Minerals Limited has sublet the same to the West End Minerals and Exports Private Limited.
The latter has in turn entrusted the execution of the contract to.
the re spondent which is engaged in transport business.
The iron ore is accordingly lifted by the respondent in its trucks from Hubli Railyard and carried to Karwar and Belekeri harbours.
The trucks of the respondent carrying the iron ore 'have (en route) to pass.
in the course of transit through the limits of various town municipalities situate on the highway of which the appellant happens to be one, but they do not unload and reload the iron ore at any intermedi ary point or stop.
The appellant, on the basis of a resolution passed by it on January 25, 1975, and approved by the State Government levies the aforesaid fee of Re. 1/ per truck under section 124 of the Act read with rule 26 of the Rules.
The trucks of the respondent using the State highway within the munici pal limits of Kalghatgi, District Dharwar are accordingly made to pay the fee for each of their trips.
Feeling that the fee realised by the appellant was invalid, the respondent filed a writ petition, being writ petition No. 6945 of 1975 in the High Court of Karnataka challenging the levy of the fee and seeking the issuance of a writ of mandamus restraining the appellant from realising the said fee.
A Single Judge of the High Court upheld the fee in question and dismissed the writ petition holding that the expression 'importer ', 'place of import ' and 'place of export ' as used in section 124 (1 ) of the Act are compre hensive enough to describe a person who merely brings the goods within the municipal limits for immediate exportation and the respondent who answered that description was bound to pay the fee.
Aggrieved by this judgment and order, the respondent took the matter in appeal to a Division Bench of the High Court which allowed the appeal and issued the writ prayed for by the respondent by its 662 judgment and order dated September 21, 1976.
It is against this; judgment and order that the present appeal is direct ed.
At the hearing of the appeal, counsel have reiterated the contentions urged on behalf of the parties in the High Court.
The sole question that arises for determination in this appeal relates to the validity of the aforesaid levy.
For a proper detemination of this question, it is necessary to advert to section 124 of the Act and rule 26 of the Rules.
"Section 124: Non liability for octroi and refund of octroi ongoods in transit. (1) Any article or animal brought into the municipal limits for the purpose of immediate exportation may at the option of the importer not to be subjected to levy of octroi if such article or animal be conveyed direct from the place of import to the place of export by such routes, within such time, and under such supervision as the municipal council may by resolution determine.
For purposes of this subsection the municipal council shall on payment of the prescribed fees issue promptly the necessary transport permits.
(2) When any article in respect of which octroi has been paid is exported from the municipal limitS, in the same condition in which it was brought into or received from beyond the municipal limits, the amount of octroi paid Shall, subject to such rules as may be prescribed, be refunded.
" "Rule 26: .
In case the person bringing the goods wishes to transport the goods at once beyond the limits of the municipality he shall do so only after obtaining a transport permit in Form IV, on payment of a fee of rupees two for each lorry and rupee one in other cases in the case of a city municipal council and rupee one for each lorry and fifty paise in other cases in the case of a town municipal council.
" The opening words of section 124 of the Act viz. "any article or animal brought into the municipal limits for the purpose of immediate exportation" on the construction of which the up shot of the case, depends are very important.
They imply processes of 'importing into ' and 'exporting from ' the municipal limits of goods or animals and are indicative of an element of repose and rest of the goods within the municipal limits.
As rightly held by the Divi sion Bench of the High Court, the expressions 'brought into ' and 'immediate exportation ' do not comprehend within their sweep the continuous process of transit of goods, by vehi cles which merely use the State highways passing through the areas which lie within the municipal limits.
In the.
instant case, the iron ore is carried in the trucks of the respondent which merely pass through the areas which lie within the municipal limits and is not unloaded and reload ed at any place within the municipal 663 area.
As such, the important element of repose and rest which the words 'brought into the municipal limits for the purpose of immediate exportation ' imply is absent in the instant case.
In The Central India Spinning and Weaving and Manufac turing Company Limited, The Empire Mills, Nagpur vs The Municipal Committee, Nagpur(1), this Court while discussing the meaning of the expression 'a terminal tax on goods or animals imported into or exported from the limits of the municipality ' occurring in section 66(1)(0) of the C.P. and Berar Municipalities Act, 1922, held that the goods which were in transit and were merely carried across the limits of the municipality were not liable to terminal tax.
The following observations made therein which have an impor tant bearing on the decision.
of the present appeal are worth quoting : "The efficacy of the relative contentions of the parties requires the determination of the construction to be placed on the really important words of which are "terminal tax", "imported into or exported from" and "the limits of the Municipality".
In construing these words of the statute if there are two possible interpretations then effect is to be given to the one that favours the citizen and not the one that imposes a burden on him.
. .Lexico logically they (the words 'import ' and "export;) do not have any refer ence to goods in 'transit ' a word derived from transit bearing a meaning similar to trans port, i.e. to.
go across.
The dictionary meaning of the words 'import ' and 'export ' is not restricted to their derivative meaning but bear other connotations also . .
The word "transit", in the Oxford Dictionary means the action or fact of passing across or through; passage or journey from one place or point to another; the passage or carriage of persons or goods from one place to another; it also means to pass across or through (some thing) to traverse, to cross.
Even according to the ordinary meaning of the words which is relied upon by the respondent, goods which are in transit or are being transported can hardly be called goods "imported into or exported from" because they are neither being exported nor imported but are merely goods carried across a particular stretch of terri tory or across a particular area with the object of being transported to their ulti mate ' destination which in the instant case was Nagpur . .
By giving to the words "imported into or exported from" their deriva tive meaning without any reference to the ordinary connotation of these.
words as .used in the commercial sense, the decided cases in India have ascribed too general a meaning to these words which it appears from the setting, context and history of the clause was not intended.
The effect of the construction of "import" .
or "export" in the manner in sisted upon by the respondent would make rail borne goods passing through a railway station within the limits of a Municipality liable to the imposition of the tax .on their arrival at the railway station or ; 1958 S.C. 352: 664 departure therefrom or both which would not only result in inordinate delays and unbearable burden on trade both inter State and intra State.
It is hardly likely that that was, the intention of the Legislature.
Such an interpretation would lead to absurdity which has according to the rules of interpretation, to be avoided.
" The enunciation of law in the above case fully covers the present case.
In the present case also, the iron ore which is in transit from Railyard at Hubli to Karwar and Belekeri harbours can hardly be characterised as goods brought into or exported from the municipal limits of Kalghatgi because they are neither imported into nor export ed from any point within the municipal limits but are merely carried across a particular stretch of territory or across a particular area with the object of being transported to its ultimate destination.
In Brown vs State of Maryland(1), Chief Justice Marshall dealing with the word! 'importation ' said as follows : "The practice of most commercial nations conforms to this idea.
Duties, according to that practice, are charged on those articles only which are intended for sale or consump tion in the country.
Thus sea stores, goods imported and re exported in the same vessel, goods landed and carried over land for the purpose of being re exported from some other port, goods forced in by stress of weather, and landed, but not for sale are exempted from the payment of duties.
The whole course of legislation on the subject shows that in the opinion of the legislature the right to.
sell is connected with the payment of the duties.
" In Wilson vs Robertson(2) where section 33 of The 48 Geo. 3, c. civ. imposed a duty on all goods "imported into or exported from Berwick Harbour", and the harbour extend ed from Berwick Bridge down the Tweed to the sea, but not above the bridge and goods were brought up the river in a seagoing vessel which, having first used the Harbour Commis sioners ' rings and posts in order to moor the vessel while lowering the masts, passed through Berwick Bridge and un loaded her cargo about 200 yards above the bridge and beyond the limits of the harbour; it was held that these goods were not "imported into" ' the harbour and as such liable to duty.
Bearing in mind the above authoritative enunciation of law, we are ' of opinion that as the continuity or continuous process of the carriage of iron ore is not in any way in fact broken within the municipal limits of Kalghatgi, the respondent cannot be said either to bring in or export the iron ore as contemplated by section 124 of the Act read with rule 26 of the Rules and as such is not liable to pay the octroi or what is styled as 'supervision fee '.
A contrary interpretation would make rail borne goods passing through the Railway Stations within the (1) ; L. Ed. 678, 686.
(2) 665 limits of the municipality liable to the imposition of the fee on their arrival at these Railway Stations and depar ture therefrom which could not be the intention of the Legislature.
The High Court was, therefore, perfectly justified in allowing the appeal and issuing the writ sought for.
In the result, the appeal fails and is hereby dismissed but in the circumstances of the case without any order as to costs.
P.H.P. Appeal dismissed.
| The respondent is a transporter.
The respondent lifts the iron ore in his trucks from Hubli Railway yard and carries it to Karwar and Belekeri harbours.
The trucks of the respondent have to pass in the course of transit through :he limits of various Town Municipalities situate on the highway of which the appellant happens to be one.
The respondent does not unload or re load the iron ore at any intermediary point or stop.
The appellant passed a resolu tion in purported exercise of section 124 of the Karnataka Munic ipalities Act, 1964 read with rule 26 of the.
Karnataka Municipalities Taxation Rules, 1965, imposing a fee of Re. 1/ per trip of each truck.
The respondent filed a writ petition challenging the levy of the fee.
The learned single Judge of the High Court dismissed the writ petition.
The Division Bench, however, allowed the appeal.
Dismissing the appeal by certificate, HELD: The present case is not covered by "any article or animal brought into the municipal limits for the purpose of immediate exportation" mentioned in section 124.
"Brought into" and "immediate exportation" do not comprehend within their sweep the continuous process of transit of goods by vehicles which merely use the State High Way passing through the areas which lie within the municipal limits.
In the instant case, the iron ore is carried in the trucks of the respond ent which merely pass through the areas which lie within the municipal limits and is not unloaded and reloaded at any place within the municipal areas.
The continuity or contin uous process of the carriage of iron ore is not in any way, in fact, broken within the municipal limits.
The respondent cannot be said either to bring in or export the iron ore as contemplated by section 124 of the Act read with Rule 26 of the Rules and, as such, is not liable to pay octroi or what is styled as supervision fee.
A contrary interpretation would make rail borne goods passing through the Railway Station within the limits of the municipality liable to the imposi tion of the fee on their arrival at the Railway Station and departure therefrom which could not be the intention of the Legislature.
[662 G H, 664 B, G H, 665 A B] The Central India Spinning and Weaving and Manufactur ing Company Limited, the Empire Mills, Nagpur vs The Munic ipal Committee, Nagpur ; 1958 SC 352, fol lowed.
Brown vs State of Maryland ; , 442; ; , 686 and Wilson vs Robertson , quoted with approval.
|
Appeal No. 4851 (NT) of 1990.
From the Judgment and Order dated 31.1.89 of the Madras High Court in Tax Case No. 900 of 1979, K.N. Shukla, R. Satish for Ms. A. Subhashini for the Appellant.
T.A. Ramachandran and Mrs. Janaki Ramachandran for the Respondent.
The Judgment of the Court was delivered by B.P. JEEVAN REDDY.J.
This appeal is preferred by the assessee against the judgment of the Madras High Court answering the question referred to it under section 256 (1) of the Income tax Act in favour of the Revenue and against the assessee.
The question stated, at the instance of the High Court reads: "Whether, on the facts and in the circumstances of the case, the Appellate Tribunal was justified in holding that the assessable capital gain would be only Rs. 1,81,671 computed in the manner set out in paragraph 14 of the order of the tribunal? The assessee is a registered firm.
The assessment year concerned is 1973 74, the relevant previous year being the financial year 1972 73.
During the said previous year, the assessee sold shares held by him in several companies.
From the sale of 'shares in three companies, it secured a gross long term capital gain of Rs. 5,61,508.
However, in the sale of shares in six other companies, it sustained a long term capital loss in a sum of Rs. 96,583.
The assessee computed the capital gains on the aforesaid transaction of sale of shares in the following manner: Gross long term capital gains Rs. 5,61,508.00 LESS, Deduction under Rs. 5,000.00 Section 80 T (b) Rs. 5,65,508.00 LESS:Deduction under section 80 T (b) (ii) at 50% Rs. 2,78,254.00 449 LESS Loss on sale Rs. 2,76,254.00 of shares Rs. 96,583.00 Profits: Rs. 1,81,671.00 The Income tax Officer did not agree with said mode of computation.
He set off the long term capital loss against the long term capital gain in the first instance and then applied the deductions provided by section 80 T to the balance figure of Rs. 4,64,925.
His computation was in the following terms: Gross long term capital gain Rs. 5.61,508 LESS: Long term capital loss of the same year Rs. 96,583 Balance of long term capital gains of the year Rs. 4,64,925 LESS: Deduction under section 80 T(b) (ii) at 50% Rs. 2,29,962 Capital gains included in the total income Rs. 2,29,963 Aggrieved by the order of assessment, the assessee preferred an appeal which was dismissed by the Appellate Assistant Commissioner.
On further appeal, however, the Tribunal agreed with his mode of computation.
Thereupon the Revenue asked for and obtained the said reference.
The High Court answered the said question in the negative i.e., in favour of the Revenue, on the following reasoning: the income from capital gains constitutes a separate head of income under the Act.
Capital gains are bifurcated into long term capital gains and shurt term capital gains.
In this case the Court is concerned only with long term capital gains.
Section 70 (2) (ii) prescribes the manner in which the loss from sale of longterm capital asset is to be set off.
According to the said provision, the assessee " shall be entitled to have the amount of such loss set off against the income, if any, as arrived at under the similar computation made for the assessment year in respect of any other capital asset not being a short term capital asset".
Support for the said proposition was derived from the decision in Commissioner of Income Tax vs 450 Sigappi Achi, The correctness of the view taken by the High Court is questioned in this appeal.
Shri T.A. Ramachandran, learned counsel for the appellant submitted that according to the provisions and scheme of the Act, capital gains have to be computed in respect of each asset separately.
Section 80 T prescribes different percentages of deduction for different types of capital assets: If the capital asset sold consists of "buildings or land or any rights in buildings or lands", the deduction provided is 35% in addition to the standard deduction of Rs. 5,000 Whereas in the case of any other capital asset, the percentage of deduction provided is 50%, in addition to the standard deduction of Rs. 5,000/ .
The deductions have to be worked out separately where the capital assets transferred during a previous year fall in both the categories.
Even the proviso to section 80T shows that the gains arising from the transfer of these two types of capital assets must be treated as separate and distrinct.
If the capital gains arising from the transfer of both the types of capital assets are clubbed together, it would not be possible to work out the provisions of section 80 T.
The correct method, therefore, is to compute the capital gains with respect to each asset transferred separately, in accordance with section 80 T, before setting off the losses.
We are afraid the arguments advanced by Mr. Ramachandran travel far beyond the controversy involved herein.
This is not a case where the assets transferred by the assessee during the relevant previous year consisted both the types of capital assets.
They were of only one type namely shares.
From the sale of certain shares the assessee derived profit and from the sale of certain other shares, he suffered loss.
The simple question is how to work out and apply the deductions provided by section 80 T in such a case.
For answering this question, it is necessary to notice the provisions of section 80 T and section 70, as they stood during the relevant previous year. "80 T. Where the gross total income of an assessee not being a company includes any income chargeable under the head "Capital gains" relating to capital assets other than short term capital assets (such income being, hereinafter , referred to as long term capital gains), there shall be allowed, in computing the total income of the assessee, a deduction from such income of an amount equal to, (a)in a case where the gross total income does not exceed ten thousand rupees or where the long term capital gains do not exceed five thousand rupees, the whole of such long term capital gains; 451 (b)in any other case, five thousand rupees as increased by a sum equal to, (i)(thirty five percent) of the amount by which the long term capital gains relating to capital assets, being buildings or lands, or any rights in buildings or lands, exceed five thousand rupees; (ii)(fifty per cent.) of the amount by which the long term capital gains relating to any other capital assets exceed five thousand rupees: Provided that in a case where the long term capital gains relate to buildings or lands, or any rights in buildings or lands, as well as to other assets, the sum referred to in sub clause (ii) of clause (b) shall be taken to be (A)where the amount of the long term capital gains relating to the capital assets mentioned in sub clause (i) is less than five thousend rupees, (fifty percent.) of the amount by which the long term capital gains relating to any other capital assets exceed the difference between five thousand rupees and the amount of the long term capital gains relating to the capital assets mentioned in sub clause (i); and (B)where the amount of the long term capital gains relating to the capital assets mentioned in sub clause (i) is equal to or more than five thousand rupees, (fifty percent.) of the long term capital gains relating to any other capital assets.
70(1) Save as otherwise provided in this Act, where the net result for any assessment year in respect of any source falling under any head of income other than 'Capital gains ' is a loss, the assessee shall be entitled to have the amount of such loss set off against his income from any other source under the same head.
(2)(i) Where the result of the computation made for any assessment year under sections 48 to 55 in respect of any short term capital asset is a loss, the assessee shall be entitled to have the amount of such loss set off against the income, if any, as arrived at under a similar computation made for the assessment year in respect of any other capital asset.
452 (ii)Where the result of the computation made for any assessment year under sections 48 to 55 in respect of any capital asset other than a short term capital asset is a loss, the assessee shall be entitled to have the amount of such loss set off against the income, if any, as arrived at under a similar computation made for the assessment year in respect of any other capital asset not being a short term capital asset.
" The opening words of section 80 T are relevant.
If the gross total income of an assessee (not being a company) "includes any income chargeable under the head "capital gains" relating to capital assets (referred to as long term capital gains) there shall be allowed in computing the total income of the assessee a deduction from such income of an amount equal to. . . . .
In our Judgment delivered on April 13, 1993 in Civil Appeal No. 3044 of 1983 (Commissioner of Income Tax vs V Venkatachalam) we have held that the deductions provided by section 80 T have to be applied to the "capital gains" arising from sale of long term capital assets.
In other words, the deductions provided by the said section have to be applied to the amount representing the capital gains during the relevant previous year.
The amount of capital gains during the relevant previous year means the profits derived minus the losses suffered.
This is precisely the opinion of the High Court, with which view we agree.
It is not possible to treat the transfer of each asset separately and apply the deductions separately.
If the argument of the learned counsel for the appellant is logically extended it would mean that even the deduction of Rs. 5,000 should be applied in each case separately.
Learned counsel, however, did not take that stand.
He agreed that the standard deduction of Rs. 5,000 must be applied to the totality of the capital gains.
At the same time, he says, the deductions provided in clause (b) should be applied separately to each asset.
We have not been able to appreciate the logic behind the contention of the learned counsel.
This is not a case where the capital assets transferred consist of two types mentioned in sub clauses (i) and (ii) of clause (b) of section 80 T.
They are only of one type namely those falling under sub clause (ii).
We need not, therefore, deal with or answer the hypothetical contention raised by the learned counsel.
Further as pointed out by the High Court the provision contained in clause (ii) of subsection (2) of section 70, as it stood at the relevant time, supports the conclusion arrived at by us.
The learned counsel for the appellant relied upon the decision of this Court in Commissioner of Income Tar (Central), Madras vs Canara Workshops Private 453 Limited, That was a case arising under section 80 E of the Act, as it stood during the assessment years 1966 67 and 1967 68.
On the language of section 80 E, it was held that in computing the profits for the purpose of deduction under the said section, each 'priority industry ' must be treated separately.
We do not see how the principle of the said decision has any application to the facts of this case, which has to be decided on the language of a different provision namely section 80 T read with section 70 (2) (ii).
For the above reasons, we agree with the opinion expressed by the High Court and dismiss this appeal.
No order as to costs.
N.V.K. Appeal dismissed.
| The appellant assessee was a Registered Firm.
The assessment year concerned was 1973 74.
During the relevant previous year being the financial year 1972 73, the assessee sold shares it held in several companies; from the sale in three companies it secured a gross long terms capital gain of Rs.5,61,508 However, in the sale of shares in six other companies it sustained a long term capital loss in a sum of Rs. 96,583.
The assessee computed the capital gains on these transactions of sale of shares less the deductions under Section 80 T(b) and Section 80T (b) (ii) (1) and showed a profit of Rs. 1,81,671.00 The Income Tax Officer did not agree with the mode of computation indicated by the asssessee; and set off the long term capital loss against the long term capital gain in the first instance and then applied the deductions, provided by Section 80 T to the balance figure and ultimately computed the capital gains included in the total income at Rs. 2,29,963.
The assessee aggrieved by the aforesaid assessment preferred an appeal which was dismissed by the Appellate Assistant Commissioner.
In further appeal by the assessee the Tribunal agreed with the assessee 's computation.
Revenue asked for and obtained a reference which the High Court answered in the negative i.e. in favour of the Revenue.
The High Court held that the income from capital gains constituted a separate head of income under the Income Tax Act and that capital gains are bifurcated into long term capital gains and short term capital gains, and 446 447 relying on the decision in Commissioner of income Tax vs Sigappi Achi, held that in the instant case it was concerned only with long term capital gains, and that Section 70 (2) (ii) prescribes the manner in which the loss from sale of long term capital asset is to be set off.
In the appeal to this Court it was submitted on behalf of the appellant assessee that according to the provisions and scheme of the Income Tax Act capital gains had to be computed in respect of each asset separately and that Section 80 T prescribes different percentages of deduction for different types of capital assets, and that the correct method, therefore, is to compute the capital gains with respect to each asset transferred saparately, in accordance with Section 80 T before setting off the losses.
Dismissing the appeal, this Court, HELD: 1.
This is not a case where the assets transferred by the assessee during the relevant previous year consisted of both the types of capital assets, mentioned in sub clauses (i) and (ii) of clause (b) of Section 80 T.
They were of only one type namely those failing under sub clause (ii) viz. shares.
From the sale of certain shares the assessee derived profit and from the sale of certain other shares, he suffered loss.
(450 E) 2.
The deductions provided by Section 80 T have to be applied to the " capital gains" arising from sale of long term capital assets.
In other words, the deductions provided by the said section have to be applied to the amount representing the capital gains during the relevant previous year.
The amount of capital gains during the relevant previous year means the profits derived minus the losses suffered.
(452 D) 3.
It is not possible to treat the transfer of each asset separately and apply the deductions separately.
(452 E) Commissioner of Income Tax vs V Venkarachalam, Civil Appeal No. 3044 of 1993, dated April 13,1993, relied on.
Commissioner of Income Tax (Central) Madras v, Canara Workshops Private Limited, , distinguished.
|
minal Appeals Nos.86 to 90 of 1968.
Appeals from the judgment and order dated January 13, 1968 of the Bombay High Court in Criminal Appeals Nos.
497 to 499, 516 and 500 of 1965 respectively.
R. Jethmalani, K.N. Mirchandani and U.P. Singh, for the appellant (in Cr. A. No. 86 of 1968).
Nur ud din Ahmed, K.N. Mirchandani and U.P. Singh, for the appellant (in Cr. A. No. 87 of 1968).
A.S.R. Chari, J.M. Mirchandani and K. Hingorani, for the appellant (in Cr.
A No. 88 of 1968).
K. Hingorani, for the appellant (in Cr. A. No. 89 of 1968).
N.H. Hingorani for K. Hingorani, for the appellant (in Cr.A. 90 of 1968).
L.M. Singhvi, B.D. Sharma and S.P. Nayar, for the respondent (in all the appeals).
The Judgment of the Court was delivered by Mitter, J.
After stating the facts His Lordship proceeded :] The High Court dealt generally with the charge of conspiracy against all the accused and individually with respect to the charges raised against each accused and considered the explanations given by them with regard to the circumstances tending to criminal them.
Mr. Jethmalani who argued the case of the first appellant at some length raised various questions of law with regard to the admissibility of the. evidence afforded by statements before the Customs Officers under section 171 A, the conclusion of the High Court that his client had custody or possession of all the exhibits found as a result of the search of the premises of H.B. Advani Brothers on 21st July, 1950, the correctness of the finding of the High Court that exhibit F. 2 contained a complete account with regard to the consignment per s.s.
Canton, the finding of the High Court that the C.I.F. value of the goods exceeded the invoice value many times over by relying on the evidence of an appraiser of the Customs department and the absence of any 824 overt act on the part of his client after the search on 21st July 1959.
The argument with regard to the admissibility of evidence of the statements was adopted by counsel for all the other accused and need not be dealt with separately.
Mr. Jethmalani virtually conceded that if his contentions on the above heads were not accepted by this Court, it would be futile for him to argue that the High Court had gone wrong in coming to the conclusion as to the.
guilt of his client on the strength of the evidence before it and the inference which could legitimately be drawn therefrom.
We propose to deal with the other points before examining the contention with regard to the admissibility of the statements made in pursuance of powers exercised by the customs officers under section 171 A. With regard to the finding of the High Court in agreement with that of the Magistrate that accused I had the custody or possession of exhibits Exs.
B to F 2, counsel argued that except those seized from his wallet the others were found in the drawer of the table of the premises searched, there was no evidence to show that the said table was the table of his client and as there was no proof that his client had any financial proprietary interest in the firm of H.B. Advani Brothers, there was nothing to warrant the conclusion that the exhibits other than ' those in the wallet were in his custody.
The High Court dealt elaborately with this point and we do not think it necessary to reexamine the same except to note the comment made before the High Court as well as before us that the evidence of Mr. Dame, the panch witness who had said that at the time of the search accused 1 was sitting at the table in a drawer of which the incriminating exhibits were found was.
unbelievable.
It was argued that inasmuch as the panchnama did not record this fact Dame who gave evidence in 1962 should not have been believed when he claimed.
to. have remembered the.
fact of accused 1 sitting at the table mentioned.
Both the courts accepted Dame 's statement and we see no good reason to take a different view.
After all it would not be extraordinary for any person to recollect even after a considerable lapse of time that when he entered the room which was going to be searched, he found a particular person seated at a certain table inasmuch as this, would be the very first thing which would attract any_body 's attention.
With regard to exhibit F. 2 which according to the prosecution case accepted by the courts below contained an account with regard to the consignment per s.s.
Canton the prosecution case was that the figures on the left hand side indicated the rates and the figures on the right hand side indicated the total C.I.F. value of the goods of each type in that consignment.
Before us exception was taken to the two figures 80.80 and 11.02 appearing on the right hand side.
According to the prosecution the figure 11.02 was.
the amount of insurance premium in dollars paid in 825 respect of the consignment on s.s. Canton.
As the original which should have been with accused 2 was not produced, a copy of the insurance policy was put in and marked as exhibit Z. 301.
exhibit
Z 259 F 1 was a copy of the same produced by accused 2 before the customs officers on 24th July 1959 as was borne out by the statement of accused 2.
The contents of the two exhibits were found to be the same by both the courts.
The Claim Superintendent of the insurance company in Bombay produced the copy of the marine premium note in respect of the said policy showing the amount of premium as $11.02 and said to have been received by the Bombay office of the insurance company.
Objection was raised to the admissibility of evidence of one Martin, Assistant Manager of New Zealand Insurance Company Hong Kong Branch who had joined that branch in 1963 i.e. long after the issue of the policy in 1959 although he had been an employee of the said company since 1952 and claimed to be familiar with the procedure of insurance of export cargo followed by the company.
According to this witness, the company used to prepare as many copies of the policy as were required by the insurer.
A carbon copy of the original was always kept in the office record.
Martin produced an office copy of the policy in respect of the consignment on s.s.
Canton to which was attached a marine premium debit note and it was his evidence that in the usual course of business of the company such a debit note.
was, always prepared at the time when the policy was issued and a copy thereof was attached to the copy of the policy kept in the records.
Counsel objected to the reception of the copy of the premium note on the ground that there was, no proof of its making or its correctness.
The High Court accepted the evidence of Martin that the copy of the premium debit note had been attached to the policy kept in the office record relying on the presumption afforded by illustration (f) to section 114 of the Evidence Act that the practice of the insurance company of attaching such a note to the policy had been followed in this particular case.
In our view the High Court was entitled to do.
so and no objection can be allowed to be raised on the ground that there was No. proof of the preparation of that original premium note.
With regard to.
the figure.
80.80 counsel argued that there was no proof that this was the amount of the freight in dollars charged in respect of the consignment per s.s.
Canton.
Counsel argued that the freight paid was not shown in the bill of lading in this case exhibit Z 259 G and the production of the copies of the bill of lading exhibit M 3 and Z 142W on which somebody had written the figure $80.80 did not establish the prosecution case.
exhibit
M 2 was the Manifest of Cargo per s.s.
Canton and entry No. 5 therein showed that in respect of the consignment 80.80 dollars had been paid as freight.
The prosecution adduced evidence of P.W. 45 Yeshwant Shankar Keluskar of Mackjnon 826 Mackenzie & Co. who produced the Import General Manifest dated 20th July 1959 as also the Freight Manifest.
According to this witness on the consignment on s.s.
Canton 80.80 Hong Kong dollars had been paid as freight.
He had No. personal knowledge but made.
his statement on the basis of the record produced from his office.
The prosecution also relied on exhibit M 3 the shipper 's copy of the bill of lading produced before the customs officers on 24th July 1959 by accused 2 containing the rate at which the freight was charged and also the actual amount of freight charged viz., 80.80 Hong Kong dollars.
Objection was taken to this inasmuch as the amount of the freight did not appear in the bill of lading exhibit Z 259 E.
The prosecution case was that freight was paid after the preparation of the Bill of lading and just before the goods were actually put on board and the reasonable explanation was that the amount of freight had been calculated subsequent to the preparation of the bill of lading and endorsed thereon as on exhibit M 3 subsequently.
According to the High Court it could be said to be a subsequent original endorsement on a copy and the High Court relied on exhibit Z 148 W a carbon copy of the bill of lading bearing a similar endorsement and also on the fact that on both exhibit M 3 and exhibit Z 148 W the words "freight paid" appeared impressed by a rubber stamp in addition to the calculation of freight and the actual amount of freight.
In our opinion, the High Court rightly held that all this established the prosecution case that the figure 80.80 in exhibit F 2 indicated the freight that was actually paid for the consignment on s.s.
Canton.
As exhibit M 3 was produced by accused 2 the consignee :before the customs officer on 24th July 1959 and contained the said endorsement the High Court was entitled to draw the necessary inference therefrom supported as it was by exhibit Z 148 W the Captain 's copy of the bill of lading which bore a similar endorsement.
Counsel contended that the evidence of P.W. 90 the appraiser of customs with regard to the C.I.F. value and the market value of the goods was at best hearsay and should have been rejected by both the courts below.
The entries relied on in this connection appear on Ex D found in the possession of accused No. 1.
There was no evidence to show that it was written by him.
P.W. 90 J.M. Jamedar 's evidence was that he had been acting as an appraiser of customs doing valuation work for 11 years and had experience in the valuation of Japanese rayon goods, fountain pen refills, Roamer 'watches, plastic buttons,_ playing cards etc.
He had taken samples from the consignments and noted the particulars thereof and had made the valuation of the goods of the consignments in question after making enquiries from the market and on the basis thereof had stated the C.I.F. value at the relevant time.
827 This witness had been subjected to prolonged cross examination but nothing came out therein which would enable the court to hold that his testimony was unreliable.
The witness had stated that the goods had been valued by him after making necessary enquiries from the importers dealing in the same or similar goods supplied from foreign countries as well as by referring to prices offered or quotations whenever available and where it was not possible to obtain the C.I.F. value from the market he had assessed the value of such items to the best of his judgment and experience.
It was argued by counsel that as the witness was not himself a party to whom offers and acceptances had been made or communicated by others and as he did not claim to have been present when such offers and acceptances had been made, his evidence as regards the value was hearsay.
It was said that at best he was a mere conduit pipe of enquiries from others and was not in the position of an expert.
We find ourselves unable to accept this submission.
Jamedar according to his unshaken testimony had been working as an appraiser of customs.
for 11 years out of his 16 year ' service and was engaged in the valuation of goods and ascertaining their C./.F. value.
He had occasion to value goods which formed the subject matter of con, signments of s.s.
Canton.
He claimed to have made enquiries in the market with regard thereto.
Apart from his own experience and knowledge the record shows that the witness gave evidence as to the C.I.F. value of a very large number of articles 'and it should have been quite easy for the defence who cross examined him at great length to discredit his testimony by offering evidence from the market that the witness 's estimate as to the C.I.F. value of any particular item was unreliable.
After all what the court had to do in this case was to form an opinion as to.
whether the C.I.F. value greatly exceeded the invoice value as put forward by the prosecution and Jamedar 's evidence certainly went to show that the C.I.F, value and the market value of the contraband goods imported was far in excess of the value thereof mentioned in the invoices.
It may be mentioned here that the document exhibit D mentioned the consignments inter alia of all the three ships and the High Court held that the document related to imports in which accused 2 was interested and possession of the document by accused 1 went to show that he too was concerned in such imports.
We now come to the question as to the admissibility of the statements made to the customs officers under section 171 A of the Sea Customs Act.
At the outset it has to be noted that this section came into the Statute Book in the year 1955 and there was nothing similar to it in the Act before such inclusion.
The section ' reads: "( 1 ) Any officer of Customs duly employed in the prevention of smuggling shall have power to summon 828 any person whose attendance he considers necessary either to give evidence or to produce a document or any other thing in any inquiry which such officer is making in connection with the smuggling of any goods.
(2) A summons to produce documents or other things may be made for the production of certain specified documents or things or for the production of all documents or things of a certain description in the possession or under the control of the person summoned.
(3) All persons so summoned shall be bound to attend either in person or by an authorised agent, as, such officer may direct; and all persons so summoned shall be bound to state the truth upon any subject respecting which they are examined or make statements and to produce such documents an other things as may be required: Provided that the exemption under section 132 of the Code of Civil Procedure, 1908 shall be applicable to any requisition for attendance under this sections.
(4) Every such inquiry as aforesaid shall be deemed to be a judicial proceeding within the meaning of section 193 and section 228 of the Indian Penal Code.
" In Maqbool Hussain vs The State of Bombay (1) where provisions of the Sea Customs Act were considered at some length by this Court before the amendment of 1955 by insertion of section 171 A it was said (at p. 742): "All this is for the enforcement of the levy of and safeguarding the recovery of the sea customs duties.
There is no procedure prescribed to.
be followed by the Customs Officer in the matter of such adjudication and the proceedings.
before the Customs Officers are not assimilated in any manner whatever to proceedings in courts of law according to the provisions of the Civil or the Criminal Procedure Code.
The Customs Officer are not required to act judicially on legal evidence tendered on oath and they are not authorised to administer oath to any witness.
All these.
provisions go to.
show that far from being authorities bound by any rules of evidence or procedure established by law and invested with power to enforce their own judgments or orders the Sea Customs Authorities are merely constituted administrative machinery for the purpose of adjudging confiscation, increased rates of duty and penalty prescribed in the Act.
(1) ; 829 We are.
of the opinion that the Sea Customs Authorities are not a judicial tribunal and the adjudging of confiscation, increased rate of duty or penalty under the provisions of the Sea Customs Act do not constitute a judgment or order of a court or judicial tribunal necessary for the.
purpose of supporting a plea of double jeopardy.
" The Court in that case was dealing with the question as to whether an order of confiscation was a punishment inflicted by a court or a judicial tribunal within the meaning of article 20 (2) of the Constitution.
In Thomas Dana vs The State of Punjab(1) the provisions of the Sea Customs Act were examined again and referring to section 187 A it was said: "This section makes it clear that the Chief Customs Officer or any other officer lower in rank than him, in the Customs department, is not a "court", and that the offence punishable under item 81 of the Schedule to section 167, cannot be taken cognizance of by any court, except upon a complaint in writing, made.
as prescribed in that section.
" With regard to the use of the word 'offence ' indiscriminately all over the Act it was said: "All criminal offences are offences, but all offences.
in the sense of infringement of a law, are not criminal offences but when a trial on a charge of a criminal offence in intended under 'any one of the entries of the Schedule aforesaid, it is.
only the Magistrate having jurisdiction, who is empowered to impose a sentence of imprisonment or fine or both.
" It was argued before us that the position became entirely different as a result of the inclusion of section 171 A as sub section
(4) of the section went to show that an enquiry by customs authorities wherein statements of persons were recorded was "to be deemed to be a judicial proceeding within the meaning of section 193 and section 228 of the Indian Penal Code.
" Counsel argued that such proceeding was a judicial proceeding also for the other purposes thus attracting the operation of section 132 of the Evidence Act.
Apart from the point as to non exercise of claim of privilege (about which we express no opinion) there can be no question that if the said section of the Evidence Act is to be attracted to such a proceeding statements made by him in any such inquiry could not be proved against him in the criminal proceedings launched.
It was (1) [1959] Supp. 1 S.C.R. 274 at 286.
830 argued that sub section
(3) of section 171 A made it obligatory on the persons summoned to state the truth upon any subject respecting which he was examined and if the proceeding was judicial proceeding there was nothing to.
exclude the applicability of section 132.
Our attention was drawn to s.1 of the Indian Evidence Act which made the Statute applicable to all judicial proceedings in or before any court in the whole of India.
As 'court ' in section 3 included all Judges and Magistrates and all persons, except arbitrators, legally authorised to.
take evidence, it was contended that the customs officers being authorised by section 171.
A of the Sea Customs Act were 'courts ' within the meaning of the definition of section 3.
Reference may also be made to the definition of 'evidence ' in the said section which shows that the word means and includes inter alia all statements which the court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry.
Reference.
also made to section 4(1) of the Code of Criminal Procedure, 1898 under which 'investigation ' for purposes of the Code includes all the proceedings under the Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who. is authorised by a Magistrate tiffs behalf; and cl.
(m) which defines "judicial proceeding" as including any proceeding in the course of which evidence is or may be legally taken on oath.
Counsel relied strongly on the judgment of this Court in Lalji Haridas vs State of Maharashtra(1) where this Court had to consider whether an Income tax Officer exercising powers under section 37 of the Income tax Act, 1922 was a ' court ' within the meaning of section 195 (1) (b) of the Code of Criminal Procedure making the sanction thereunder obligatory for the filing of a complaint in respect of an offence alleged to have been committed under section 193 of the Penal Code.
Sub sections
(1) to (3) of section 37 of the Income tax Act were worded somewhat differently from those of sub sections (1) to (3) of section 171 A of the Sea Customs Act.
The words in sub section
(4) of section 37 are for all practical purposes identical with those.
used in section 171 A (4).
There this Court by a majority of three to two were of opinion that the proceedings before the Income tax Officer were judicial proceedings not only under section 193 of the Indian Penal Code but were also.
be treated as proceedings.
in any court for the purpose of section 195 (1) (b) of the Code of Criminal Procedure.
The majority Judges referred to the sections in the Indian Penal Code and the Criminal Procedure Code mentioned above and to provisions in various other Acts wherein the legislature had expressly mentioned that section 195 Cr.
P.C. would apply to proceedings before diverse authorities and accepted the argument that reading section 193 I.P.C. and section 195 (1) (b) Cr.
P.C. together it would be reason (1) ; 831 able to hold that proceedings which are judicial under the former should be taken to be proceedings under the latter.
According to the minority Judges although the word 'judicial proceeding ' was wide enough to.
include not only proceedings be,fore a 'court ' but proceedings before certain tribunals it was clear from a decision of this Court in Indo China Steam Navigation Co., Ltd. vs The Additional Collector of Customs(1) that a Customs Officer "was not a court or Tribunal" and section 37(4) of the Income tax Act should not be given a meaning different to that given in section 171 A(4) of ' the Sea Customs Act.
" In our view if the Legislature intended that the inquiry under section 171 A was to. be considered a judicial proceeding not within the narrow limits therein specified but generally, it could have used suitable words.
to express its intention.
Although this Court gave a wider meaning to the expression 'judicial proceeding ' in Lalji Haridas 's case(2) there is nothing in that judgment to warrant a still wider interpretation of that definition.
Mr. Jethmalani referred to the provisions in the Indian Oaths Act (X of 1873) and on the basis of his argument that the statements under section 171 A (4) were made on oath contended that the proceeding became a judicial proceeding in the wider sense of the word.
In our view the Oaths Act has no application here.
The preamble to the Act shows that it was an Act to consolidate the law relating to judicial oaths, affirmations and declarations and was enacted because the Legislature thought that it "expedient to consolidate the law relating to judicial oaths, affirmations and declarations and to repeal the law relating to official oaths, affirmations and declarations.
" Section 4 of the Act provided that: "The following Courts and persons are authorised to administer, by themselves or by an officer empowered by them in this behalf, oaths and affirmations in discharge of the duties or in exercise of the powers imposed or conferred upon them respectively by law: (a) all Courts and persons having by law or consent of parties authority to receive evidence :" The relevant portion of section 5 runs "Oaths or affirmations shall be made by the following persons : (a) all witnesses, that is to say, all persons who may lawfully be examined or give or be required to give, evidence by or before any Court or person having by law or consent of parties authority to examine such persons and to receive evidence :" (1) ; (2) ; SupCI/69 9 832 Counsel argued that a Customs Officer was a person who had authority by law to receive evidence within the meaning of section 4 of the Oaths Act and anybody who could be lawfully examined before such a person would be a witness within the meaning of section 5 and as such it would be.
necessary to administer oath to them.
in our view, the argument proceeds on a complete misconception of the provisions of the Act.
The preamble to the Act shows that the oaths referred to are only judicial oaths and section 7 shows that all such oaths had to be administered according to such forms as the High Court might prescribe.
The Customs Officers have nothing to do with such farms and nothing has been shown to us that 'any such formality was ever complied with.
Neither do the records show that any oath was administered to any person making a statement under section 171 A. In Maqbool Hussain 's case(1) this Court stated expressly that the Customs Officers were not authorised to administer oath and the position according to us is not altered by the insertion of section 171 A in 1955.
Mr. Jethmalani referred us to the decision in Queen Empress vs Tulja(2) and to certain observations of West, J. in that case.
There it was held that a Sub Registrar under the Registration Act (111 of 1877) was not a Judge, and, therefore, was not a 'Court ' within the meaning of section 195 of the Code of Criminal Procedure and as such his sanction was not necessary for a prosecution for forgery in respect of a forged document presented for registration in his office.
West, J. had however, observed that: "An inquiry is judicial if the object of it is to determine a jural relation between one person and another, or a group of persons; between him and the community generally; but, even a judge, acting without such an object in view, is not acting judicially.
" Relying on this observation counsel argued that the object of an inquiry under section 171 A was to find out and establish the jural liability of the persons making the statement, viz., whether he had committed an offence or not, and as such the inquiry was a judicial proceeding.
In our view the argument is not worthy of acceptance.
At the stage envisaged by section 171 A a Customs Officer is given the power to interrogate any person in connection with the smuggling of any goods which it is his duty to prevent.
Such a person may have nothing to do with the smuggling of any goods although he may know where such goods are or who has or had them.
Sub section
(3) of section 171 A does not compel any person to make a statement but if he makes a statement he has to state the truth so as to avoid punishment under section 193 I.P.C.
At that stage nothing may be known as (1) (1) ; (2) 12 Bombay 36 at 42.
833 0 whether an offence has been committed or who has committed t and the person interrogated at that stage certainly is not a person accused of or charged with an offence.
He is merely called upon to give evidence to facilitate the inquiry.
He is not a witness giving evidence in a court and his testimony will make him liable under section 193 I.P.C. only because of the express provision of law in sub.
section
(4) of section 171 A. Counsel also argued that as a Customs Officer according to all the decisions of this Court already mentioned, is to act judicially, a proceeding for recording evidence before him was a judicial proceeding.
This wholly without any force because even administrative officers have to act judicially.
Counsel further argued that a deeming provision in a statute was not necessarily designed to give an artificial construction to a word or a phrase but it might be used for other purposes also.
He referred to the case of St. Aubyn vs Attorney General(1) where it was said: The word "deemed" is used a great deal in modern legislation.
Sometimes it is used to impose for the purpose of a statute an artificial construction for a word or phrase that would not otherwise prevail.
Sometimes it is used to put beyond doubt a particular construction that might otherwise be uncertain.
Sometimes it is used to give a comprehensive description that includes what is obvious, what is uncertain and what is, in the ordinary sense, impossible.
" It was argued that the Legislature might well have used the word "deemed" in sub section
(4) of section 171 not in the first of the above senses but in the second, if not the third.
In our view the meaning to be attached to the word "deemed" must depend upon the context in which it is used.
In Lalji Haridas 's case(2) this Court went elaborately into the question as to the extent of this deeming provision which would have been wholly redundant if the word 'deemed ' in section 171 A(4) was used in any sense other than to give an artificial construction.
The second branch of Mr. Jethmalani 's argument under this head was that the principle underlying section 132 of the Evidence Act was a principle of Common Law well known to criminal jurisprudence and as such was applicable even if section 132 in terms was not attracted.
In this connection, he referred us to certain observations of Subbarao, J. (as he then was) in Amba Lal vs The Union of India and Others(3) where in his dissenting judgment on the interpretation of sections 168 and 171 A of the Act his Lordship had observed that: "To such a situation, though the provisions of the Code of Criminal Procedure or the Evidence Act may (1) ; at 498.
(2) ; (3) ; 834 apply except in so far as they are statutorily made applicable, the fundamental principles of criminal jurisprudence and of natural justice must necessarily apply.
" Counsel also referred us to the decision in Regina vs Benjamin Scott(1).
The question before the court in that case was whether the answers to the questions put to the defend,ant before the court of bankruptcy relating to his trade dealings and estate tending disclose a fraud of concealment of his property was admissible evidence against him on indictment charging him with altering, mutilating and falsifying his books with intent to defraud his creditors.
The examination was taken in conformity with section 117 of the Bankrupt Law Consolidation Act (12 and 13 Vict. c. 106) which enacted that a bankrupt may be examined by the court "touching all matters relating to his trade, dealings or estate, or which may tend to disclose any secret grant, conveyance or concernment of his lands etc.
" There was no dispute that the questions put were relevant as touching matters relating to his trade etc.
Delivering judgment in which three other Judges concurred, Lord Campbell, C.J. held that the defendant was bound to answer the questions although by his answers he might criminal himself.
According to the learned Chief Justice: " . and we think it would be contravention of the expressed intentions of the legislature to permit the bankrupt to refuse to answer such questions; for even since the reign of Elizabeth successive statutes have been passed, purporting to guard against frauds in bankruptcy and the bankrupt, when called upon to answer questions respecting his estate and effects, should not be allowed to avail himself of the common law maxim "nomo tenetur se ipsum accusare.
" With regard to the maxim relied on by the defendant 's counsel he said: "But Parliament may take away this privilege, and enact that a party may be bound to accuse himself, that is, that he must answer questions by answering which he may be criminated." He further held that the maxim could not be treated as an implied proviso to be subjoined to the 117th section.
Mr. Jethmalani however relied on certain observations of Coleridge, 1.
in his dissenting judgment.
In our view the maxim of the English Common Law can have no application here.
Our law of evidence which is a complete Code does not permit the importation of any principle of English Common Law relating (1) 169 English Reports page 909.
835 evidence in criminal cases to the contrary.
Section 2 of the Indian Evidence Act before its repeal by the Repealing Act (1) of 1938) provided as follows: "2.
On and from that day 1st September 1872) the following laws shall be repealed; (1 ) All rules of evidence not contained in any statute, Act or Regulation in force in any part of British India; (2) All such rules, laws and regulations as have acquired the force of law under the 25th section of the 'Indian Councils Act, 1861 ' in so far as they relate to any matter herein provide.d for; and (3 ) The enactments mentioned in the schedule hereto, to the extent specified in the third column in the said schedule.
But nothing herein contained shall be deemed to affect any provision of any Statute, Act or Regulation in force in any part of British India and not hereby expressly repealed.
" We may usefully refer to the judgment of the Privy Council in Sris Chandra Nandi vs Rakhalananda (deceased)(1) where the Judicial Committee approved of the statement of the law contained in the judgment of the High Court reading: "It is to be noticed in this connection that section 2( 1 ) of the Indian Evidence Act repeals the whole of the English common law on evidence so far as it was in force in British India before the passing of the Indian Evidence Act, and that provision of the law in effect prohibits the employment of any kind of evidence not specifically authorised by the Act itself." Lord Atkin who delivered the judgment of the Judicial Committee pointed out that evidence which was not admissible under the Indian Evidence Act could not be let in for the purpose of bringing out the truth and said: "What matters should be given in evidence as essential for the ascertainment of truth, it is the purpose of the law of evidence, whether at common law or by statute to define.
Once a statute is passed, which purports to contain the whole law, it is imperative.
It is not open to any Judge to exercise a dispensing power, and admit evidence not admissible by statute, because to him it appears that the irregular evidence would throw light (1) I.L.R. [1941] 1 Calcutta, 468. 836 upon the issue.
The rules of evidence, whether contained in a statute or not, are the result of long experience, choosing no doubt to confine evidence to particular forms, and therefore eliminating others which it is conceivable might assist in arriving at truth.
" The question there related to the admissibility of evidence which according to the Judicial Committee should not have been adduced.
The question before us is somewhat different but if the Indian Evidence Act is 'a complete Code repealing all rules of evidence not to be found therein, there is, in our opinion, no scope for introduction of a rule of evidence in criminal cases unless it is within the four corners of section 132 or some other provision of the Evidence Act.
As the Act does not apply to interrogations by a Customs Officer exercising powers under section 171 A of the Sea Customs Act section 132 of the Evidence Act cannot be attracted.
Lastly it was contended that section 171 A did not authorise interrogation of a subject to extract admissions from him which could be used against him on a future occasion.
In aid of this proposition reliance was placed on a decision of the House of Lords in Commissioners of Customs and Excise vs Harz(1).
The main question there was whether the answers given by the respondents in the course of interrogation by Customs Officer were admissible in evidence.
The power to.
interrogate was said to be derived from the Finance Act, 1946, section 20 (3 ) which provided in substance that every person concerned with the purchase or importation of goods etc.
shah furnish to the commissioners within such time and in such form as they may require information relating to the goods or to the purchase or importation thereof etc., and shall upon demand made by any officer or other persons authorised in that behalf by the commissioners produce any.
books or accounts or other documents of whatever nature relating thereto for inspection by that officer or person.
On a construction of that provision Lord Reid was of the view that there was.
nothing therein to require the trader to give answers which might incriminate him.
His Lordship also observed that the section gave the officer no right to submit the respondents to prolonged interrogation they had to.
undergo and the respondents could not have been prosecuted if they had refused to answer.
His Lordship observed that the right of the CommiSsioners to require information was quite different and said: "If a demand for information is made in the proper manner the trader is bound to answer the demand within the time and in the form required whether or not the answer may tend to incriminate him, and if he fails to comply with the demand he can be prosecuted.
If he (1) 837 answers falsely he can be prosecuted for that, and, if he answers in such a manner as to incriminate himself, I can see no reason why his answer should not be used against him.
Some statutes expressly provide that incriminating answers may be used against the person who gives them and some statutes expressly provide that they may not.
Where, as here, there is no such express provision the question whether such answers are admissible evidence must depend on the proper construction of the particular statute.
Although 1 need not decide the point, it seems to me to be reasonably clear that incriminating answers to a proper demand under this section must be admissible if the statutory provision is to achieve its obvious purpose.
" Prima facie these provisions,are against the contention of the appellant.
In that case the House of Lords in effect held that the provision of law did not entitle the Commissioners "to send a representative to confront the trader, put questions to him orally and demand oral answers on the spot; and that it does not entitle them to send their representative to subject the trader to a prolonged interrogation in the nature of a cross examination.
" The provisions of section 171 A are in sharp contrast to the provision of law before the House of Lords.
Here the statute expressly authorises officers of customs to secure the attendance of persons to give evidence or produce documents or things relevant in any enquiry in connection with the smuggling of goods.
A limit is set to the right to obtain production in sub section (2) of the section and subsections (3) and (4) lay down that if a person summoned does not state the truth in such an examination he may be proceeded against under section 193 I.P.C. for giving false evidence.
Counsel also drew our attention to the new sections 107 and 108 of the where the power to, examine persons has been given to all officers of customs by the first of the above mentioned sections and the power to summon persons to give evidence and produce documents as in section 171 A is given to a gazetted officer of customs under section 108 of the new Act.
In our view, this difference is immaterial for the purpose of this case and there is nothing in section 171 A which limits the right of interrogation to questions the answers whereto may not incriminate the person interrogated.
The High Court considered at some length the question as to whether the statement of the accused under section 171 A(4) should be considered as a whole or whether reliance could be placed upon portions thereof rejecting the rest.
It was argued before the High Court that inasmuch as the statements were sought to be relied 838 upon as a confession the court was bound to take into account not only the portions containing admissions but also the explanations which followed.
The High Court held that a statement under section 171 A did not stand at par with a confession so that it had to be taken as a whole or rejected as a whole.
Even with regard to the statements portions of which are inculpatory against the maker and other portions which are not, it has been held in a recent decision of this Court that the inculpatory portion can be accepted if the exculpatory portion is found to be inherently improbable vide Nishi Kant vs State of Bihar(1).
In this case the explanations contained in the statements were considered by the courts below and for reasons given they thought fit to reject the same and we see no reason to come to a different view.
[The Court then considered the case of the other accused and held :] The net result is that all the appeals excepting that of accused No. 3, Meghraj Gopaldas Jham fail and are hereby dismissed.
Meghraj Gopaldas Jham 's appeal is allowed and he is set at liberty.
His bail bond will be cancelled.
| The appellants and two others were prosecuted on a complaint by the Assistant Collector of Customs, Bombay for the offence of conspiracy and substantive offences punishable under section 167(81) of the Sea Customs Act and section 5 of the Imports and Exports (Control) Act, 1947.
The complaint was that all the accused knowingly and with intent to defraud the Government of India of duty payable on the import of goods and/or to evade the prohibitions and restrictions for the time being in force under or by virtue.
of the Sea Customs Act and of the Imports & Exports (Control) Act, 1947 relating to the said import entered into a conspiracy in Bombay and other places during the period commencing from August 1958 and August 1959 to.
acquire possession of and to b.e concerned in carrying, removing and concealing and otherwise dealing with prohibited and restricted goods in very large quantities of high C.I.F. value.
The Presidency Magistrate held in regard to the appellants that they were parties to a conspiracy as alleged by the prosecution and convicted them under s./20 B Indian Penal Code 'read with section 167(81) of the Sea Customs Act and section 5 of the Imports and Exports (Control) Act, 1947.
The accused were also convicted of certain other charges individually framed against them.
The High Court dismissed the appeal against the order of the Presidency Magistrate.
The appellants were however, granted a certificate under article 134(1)(c) of the Constitution.
The main legal question that fell for consideration by this Court was whether the statements made by the accused appellants before the Customs Officer were inadmissible in evidence in view of the provisions cf section 171 A. of the Sea Customs Act, section 132 of the Evidence: Act and article 20(3) of the Constitution.
Questions raised on behalf of the appellants in their individual cases regarding the admissibility of certain items of evidence and circumstances against them also arose for consideration.
HELD: (1) A Customs Officer is not a court and therefore statements made before him do not attract the provisions of section 132 of the Evidence= Act or article 20(3) oil the Constitution.
(a) If the Legislature intended that the inquiry under section 171 A was to be considered a judicial proceeding not within the narrow limits therein specified but generally, it could have used suitable words to express its intention.
Although this Court gave a wider meaning to the expression 'judicial proceeding" in Lalji Haridas ' ease there is nothing in that judgment to warrant a still wider interpretation of that definition.
[83/C] 822 Maqbool Hussain vs State of Bombay, ; , Thomas Dana vs State of Punjab, [1959] Supp. 1 S.C.R. 274, 286 Indo China Steam Navigation Co. Ltd. vs Additional Collector of Customs, ; , referred to.
Lalji Haridas vs State of Maharashtra, ; , considered.
(b) The Oaths Act had no application to.
the present case.
The preamble to the Act shows that it was an Act to consolidate the law relating to judicial oaths, affirmations and declarations.
The argument that a customs officer received evidence within the meaning of section 4 of the Act and therefore a person appearing before him was a witness under section 5 could not be accepted.
Section 7 of the Act shows that oaths under the Act had to be administered according to such forms as the High Court might prescribe.
The Customs Officer have nothing to.
do with such forms and there was nothing on record to show that in the present case any oath was administered to the person making the statement.
In Maqbool Hussain 's case this Court stated expressly that the Customs Officers were not authorised to administer oath and the position was 'not altered by the insertion of section 171 A in 1955.
[832 D E; 833 A C] Observations in Queen Empress vs Tulla, 12 Bombay 36.
42 and St. Alubvn vs Attorney General, , 498, discussed.
(c) Our law of evidence which is a complete code does not permit the importation of any principle of English common law relating to evidence in criminal cases to the contrary.
There is No. scope for introduction of a rule of evidence in criminal cases unless it is within the four corners of section 132 o.r some other provision of the Evidence Act.
[834 H; 836 B C] Amba Lal vs Union of India & Ors.
; and Ragina vs Benjamin Scott, ; , referred to.
Sris Chandra Nandi vs Rakhalananda (deceased), I.L.R. 1941 Calcutta 468, applied.
(d) The decision of the House of Lords in Harz 's case does not support the proposition that under section 171 A the right of interrogation was limited to questions the answers where to may not incriminate the person interrogated.
The section expressly authorises officers off customs to secure the attendance of persons to give evidence or produce documents or things relevant in any enquiry in connection with smuggling of goods.
A limit is set to the right to obtain production in sub section
(2) of the section and sub.ss.
(3) and (4) lay down that ' if a person summoned does not state the truth in such an examination he may be proceeded against under 8. 193 I.P.C. for giving false evidence.
[837 D E] Commissioners of Customs and Excise vs Harz. , explained.
(e) In view of the decision of this Court in Nishi Kant vs State Bihar, , the argument that statements of the accused under section 171 A(4) should be considered only as a whole could not be accepted.
The inculpatory position of a statement can be accepted if the exculpatory portion is found to be inherently improbable.
In the present case the explanations contained in the statement were rejected by the courts below for 'reasons.
given.
There was 'No. reason for this Court to take a different view.
[838 A B] (ii) The High Court rightly held that an office copy of a premium debit note maintained by an insurance company in the usual course of its 823 business and attached to the office copy of the insurance policy was admissible in evidence under section 114 (Illustration f) of the Evidence: Act.
No objection could be allowed to.
be raised on the ground that there was no proof of the preparation of the original premium note.
[825 H] (iii) The evidence of an appraiser of customs off long experience regarding the C.I.F. value of goods could not be rejected merely on the ground that his opinion was arrived at after making enquiries in the market and was therefore only hearsay.
His testimony as to the valuation based on his knowledge of the market and experience had remained unshaken in cross examination and was rightly relied on by the High Court.
[827 D F]
|
iminal Appeals Nos.
150 152 of 1965.
Appeals by special leave from the judgment and order dated March 17, 1965 of the Mysore High Court in Criminal Appeals Nos.
93 to 95 of 1965.
B. R. L. Iyengar and B. R. G. K. Achar, for the appellant.
K. R. Chaudhury, for the respondents.
812 The Judgment of the Court was delivered by Mudholkar, J.
This judgment will also govern Criminal Ap peals Nos. 151 and 152 of 1965.
The respondent was at the relevant time a dealer at Bijapur in groundnuts, cotton seed and other commodities and was registered as a dealer under the Mysore Sales Tax Act, 1957.
For the period between November 12, 1958 and October 31, 1959 he was assessed to sales tax amounting to Rs. 9,864 31 ps.
by the Commercial Tax Officer, Bijapur in his order dated December 4, 1963.
On January 3, 1964 the Commercial Tax Officer served on him a notice of payment requiring him to pay the tax assessed on him within 21 days.
He was similarly assessed to pay tax for two subsequent periods by two separate orders passed by the Commercial Tax Officer.
Two separate notices of demand were served on him requiring him to pay the tax assessed within 21 days.
It is common ground that the respondent did not comply with any of the three notices.
Three separate complaints were, therefore, preferred against him by the Commercial Tax Officer before the Judicial Magistrate, First Class, second court, Bijapur for offences punishable under section 29(1)(d) of the Act.
The respondent had preferred appeals against each of the three orders ,of assessment under sub section
(1) of section 20 of the Act.
He did not, however, pay the tax assessed against him or any portion thereof as contemplated in the second proviso of sub section
(1) of section 20 nor did he seek or obtain from the appellate authority any order under the proviso to sub section
(5) of section 20.
The learned Magistrate held that since the respondent had preferred appeals against the orders of assessment and those appeals were still pending when the complaints were made before him the respondent was not liable for offences under section 29 (1) (d).
On this ground the learned Magistrate acquitted the respondent in all the three cases.
Appeals preferred by the State of Mysore against the orders of acquittal passed in favour of the respondent were rejected by the High Court on the ground that as the State could avail itself of other remedies under the Act for enforcing the payment of tax levied on the respondent it did not think it fit to exercise its discretion under section 421 (1) of the Code of Criminal Procedure and entertain the appeals.
Mr. Chaudhuri refers to the proviso to sub section
(3) of section 13 and contends that unless the requirements of the proviso are satisfied he is not liable to be proceeded against under section 29 (1) (d).
In order to appreciate his argument it is desirable to reproduce the provision relied upon by him.
Sub section (3) of section 13 reads as follows "Any tax assessed, or any other amount due under this Act from a dealer, may without prejudice to any other mode of collection, be recovered (a) as if it were an arrear of land revenue, or 813 (b) on application to any Magistrate, by such Magistrate as if it were a fine imposed by him: Provided that no proceeding for such recovery shall be taken or continued as long as he has, in regard to the payment of such tax or other amount, as the case may be, complied with an order by any of the authorities to whom the dealer has appealed, or applied for revision, under sections 20, 21, 22 23 or 24.
" The matter dealt with by section 13 is "payment and recovery of tax".
The substantive part of the provision renders an assessee in arrears of tax liable to be proceeded against under either cl.
(a) or cl.
(b) of the provision.
Mr. Chaudhury, however, contends that by virtue of the proviso an assessee will not be liable to be proceeded against unless it is shown that he has failed to comply with an order made by the appropriate authority under one of the sections refered to in the proviso.
He points out that though he has preferred appeals under section 20 of the Act no order has been made by the appellate authority in any of the appeals dealing with the question of payment or otherwise of the tax and that,the refore,there has been no failure on the part of the respondent to comply with an order made by the appropriate authority.
Mr. Chaudhury in effect wants us to construe the proviso as if it contemplated the creation of liability to pay the tax by an order of the appropriate authority under one of the sections specified in the proviso.
There is no warrant for such a construction.
The liability to pay tax is created by the order of assessment.
Where tax so assessed is not paid despite service of notice of demand the substantive portion of sub section
(3) of section 13 renders the assessee liable to be proceeded against under cl.
(a) or cl.
(b) of that provision.
The assessee who has moved the appropriate authority under one of the provisions referred to in the proviso has, however, been afforded interim protection from action under cl.
(a) or cl.
(b) provided that he approaches the appropriate authority and obtains from that authority an order of stay of proceedings under cl.
(a) or cl.
That, however, is not enough.
If the order of the appropriate authority lays down any condition the proviso requires that the assessee must comply with those conditions before he can obtain interim relief under the proviso.
Apart from that, we fail to see how the proviso to sub section
(3) of section 13 can at all be an answer to a prosecution under section 29 (1) (d).
What is rendered an offence under section 29 (1) (d) is the failure of the assessee to pay the tax within the time allowed.
But where, as here, the assessee has not paid the tax within the time allowed by a notice of demand he immediately renders himself liable to be proceeded against under section 29 (1) (d).
Mr. Chaudhury then contended that in view of the fact that an appeal has been preferred the liability of the assessee to pay 814 the tax must be deemed to have been suspended during the pendency of the appeal.
This argument ignores the specific provisions of sub section
(5) of section 20 and the proviso thereto.
They read thus : "Notwithstanding that an appeal has been preferred under sub section (1), the tax shall be paid in accordance with the assessment made in the case : Provided that the appellate authority may, in its discretion give such directions as it thinks fit in regard to the payment of the tax before the disposal of the appeal, if the appellant furnishes sufficient security to its satisfaction in such form and in such manner as may be prescribed.
" The provision we have just quoted is a complete answer to Mr. Chaudhuri 's contention.
Mr. Chaudhury then contended that there was no wilful default on the part of the respondent.
It is difficult to appreciate what he means by saying that there was no wilful default.
The respondent knew that he was required to pay the tax within certain time and also knew that he had not complied with the notice of demand.
His action in not paying the tax was quite clearly deliberate and, therefore, wilful.
There is no substance in this contention.
We are, therefore clear that the acquittal of the respondent for offences in the case was unwarranted.
We would, therefore, have, after setting aside his acquittal in each of the three cases, convicted and sentenced him under section 29 (1) (d) of the Act but for the fact that when special leave was granted an undertaking was given by the State that irrespective of the result of the appeal the respondent would not be prosecuted.
Probably what was meant was that the State would not press for conviction and sentence of the respondent.
Therefore, though we allow the appeals and set aside the acquittal of the respondent in the three cases we leave the matter just there.
Appeals allowed.
| The appellant (holder of an inam in Madhya Pradesh) served a notice an his tenant, the respondent, terminating to tenancy on the ground that he wanted the land for personal cultivation and filed a suit for ejectment.
The trial court decreed the suit.
During the pendency of the appeal in the District Court, article 32 of 1954 was enacted, and pursuant to its provisions the hearing of the appeal was stayed.
After the Madhya Pradesh Land Revenue Code came into force in 1959, the District Court held that by virtue of section 185 of that Code the respondent acquired the rights, of an occupancy tenant and dismissed the suit.
The High Court confirmed the judgment of the District Court.
In appeal to this Court, it was contended that : (i) the rights of an occupancy tenant arise in favour of a personl under section 185(1) (i) (a) only if there was between him and the landlord a subsisting tenancy at the date when the Code came into force and since under the law in force before the commencement of the Code, the respondent had ceased to be a tenant because of the notice terminating the contract of tenancy the respondent was not invested with the rights of an occupany tenant; and (ii) bi virtue of sections 261 and 262(2), the operation of section 185 is expressly excluded when a person, against whom ejectment proceedings have been instituted prior to the commencement of the Code in enforcement of a right then acquired, claims the status of an occupancy tenant.
HELD : (i) The respondent acquired the right of an occupancy tenant under the Code, because the expression "tenant" in section 185 (1) (ii) (a) includes a person whose tenancy was terminated before the commencement of the Code.
The definition of the expression "tenant" in the Code postulates a subsisting tenancy, but the position of a tenant prior to the date on which the Code was brought into force is not dealt with in the definition.
In the context in which the expression "tenant" occurs in section 185(1), that definition could not be intended to apply in deter ining the conditions which invest a holder of land with the status of an occupancy tenant at the commencement of, the Code.
Therefore having regard to the object of the enactment the expression should be ascribed the meaning it 'has in Act 32 of 1954.
Under sections 3 & 4 of that Act a person who was inducted into the land as a tenant and who continued 'to hold the land at the commencement of the Act was entitled to protection against eviction and continue as tenant, notwithstanding that under the law in force prior to the commencement of the Act.
the contractual relationship of landlord and tenant was determined.
[432 D; 432 14 433 C] 428 There is no reason to think that the Legislature sought to make a A distinction between tenants of Inam land in section 185 (1) (ii) (a) and ryotwari sub lessees of other lands in section 185(1)(ii)(b).
Therefore, if the expression "ryotwari sub lessee ' in section 185(1)(ii)(b) includes a sub lessee whose tenaure was terminated before the commencement of the Code, a tenant of inam land, whose tenancy has been terminated would also be included in the protection, provided at some time prior to the date on which the Code was brought into force, he was in possession of the land as a tenant, and he continued to hold the land till the date of the commencement of the Code.
[434 E H] (ii) The provisions of the Code appeal to tenants in proceedings for ejectment pending at the commencement of the Code.
The proviso to section 261 protects a right which had been acquired under a law repeated by the Code and the right could be enforced as if the code had not been passed.
But the right to evict a tenant was governed by the general law of landlord and tenant and was not acquired under any repealed law.
The proviso had no operation and a legal proceeding pending at the date of the commencement of the Code will be disposed of according to the law enacted in the Code.
Therefore, the tenant could not ' be evicted otherwise than in the manner and for reasons mentioned in a. 193 of the Code but, personal requirement for cultivation of land is not a ground on which a claim for ejectment could be maintained.
[435 G436 A] Section 262(2) is only procedural it provides that a civil court will continue to have jurisdiction to dispose of a civil suit pending before it at the commencement of the Code, Which, if it had been instituted after the Code was passed would have been tried by a revenue court; and in the disposal of such a suit, the civil court will be governed by the procedural law applicable there to prior to the commencement of the Code.
It does not nullify the statutory conferment of occupancy right upon persons in the position of tenants against whom proceedings were taken at the date when the Code was brought into force.
[436 B D]
|
Civil Appeal No. 32 of 1971.
Appeal from the judgment and order dated March 12, 1970 of the Madhya Pradesh High Court in Miscellaneous Petition No. 184 of 1965.
I. N. Shroff, for the appellants.
V. section Desai, section K. Mehta, K. L. Mehta, V. K. Sapre and K. R. Nagaraja, for the respondent.
The Judgment of the Court was delivered by Vaidialingam, J.
The short question that arises for consideration in this appeal, on certificate, is whether the High Court has complied with the directions given by this Court in its judgment dated January 25, 1968 in Civil Appeals Nos. 1244 and 1245 of 1967 and adjudicated upon the question whether the claim made by the respondent that the tanks and wells in question were constructed on "occupied I and" belonging to the Jagirdar within the meaning of section 5(c) of the Madhya Bharat Abolition of Jagirs Acts, Samvat 2008 (Act 28 of 1951) (hereinafter to be referred as the Abolition Act).
The facts leading up to the present decision of the High Court may be stated: In Samvat 1885 the Ruler of the erstwhile Gwalior State conferred on the predecessor in title of the respondent the Jagir of Mauza Siroli situated in Pargana Gwalior.
The Abolition Act came into force on December 4, 1952.
Section 3 provides for resumption of Jagir lands by the Government.
Under sub section (3), the date appointed under section 3 as the date for resumption of Jagir lands is "the date of resumption '.
After the issue of notification under section 3, appointing a date for resumption, all the property in the Jagirdar including Jagir lands, forest, trees, fisheries, wells, tanks, ponds etc.
stood vested in the State under section 4 of the Abolition Act.
But under section 5 (c) all tanks, trees, private wells and buildings in or on the occupied lands, belonging or held by the Jagirdar or any other person, were excluded from vesting.
After the abolition of Jagirs under the Abolition Act, proceedings were initiated for determining the compensation payable to the respondent and the same was determined.
Out of the amount, so determined, certain loans were deducted and the balance amount was paid.
The Madhya Pradesh Land Revenue position ultimately was that the entire extent of the tanks was in 'occupied as the Code) came into force on October 2, 1959.
Section 251 866 of the Code provided for vesting in the State Government all ranks situated on unoccupied lands, in the circumstances mentioned therein.
The said section made provision for claiming compensation in the manner laid down therein.
The respondent on April 5, 1961 made an application to the Collector, Gwalior under section 251 of the Code claiming com pensation for tanks which, according to him, had been built by himself and his predecessor in title over an area of 1679 bighas and 18 biswas of land.
There were various orders passed by the authorities in connection with the said claim for compensation.
The respondent moved the Madhya Pradesh High Court under article 226 of the Constitution by two writ petitions to quash two orders of the Collector of Gwalior and two orders of the Additional Commissioner, Gwalior Division.
The writ petitions were opposed by the State on the ground that the four tanks claimed by the writ petitioner were really not tanks and in any case the tanks were not on "occupied land" within the meaning ,of section 5 (c) of the Abolition Act and the wells claimed by him had also vested in the State under section 4(1)(a) of the Abolition Act.
The High Court by its judgment dated November 30, 1966 allowed the writ petitions and quashed the four orders, referred to above, on the ground that the claim made by the respondent that the tanks were on "occupied land" under section 5(c) of the Abolition Act, has to be decided by the Jagir Commissioner in the manner required under section 17 of the said Act.
The State challenged before this Court in Civil Appeals Nos. 1244 and 1245 of 1967, the decision of the Madhya Pradesh High Court. 'Me contention raised on behalf of the State was that section 17 of the Abolition Act had no application and that it was the function of the Jagir Commissioner alone to inquire whether the claim of the writ petitioner under section 5(c) of the Abolition Act was well founded on merits and then refer the matter for the final decision of the Government under section 17 of the Abolition Act.
After a consideration of the scheme of the Abolition Act and in particular of section 17, this Court accepted the contention of the State and held that the inquiry contemplated under section 17 by the Jagir Commissioner relates to compensation to be paid to the Jagirdar whose Jagir is vested in the State Government and once the compensation is determined and paid, no further inquiry under section 17 is contemplated.
In this view, by its judgment dated January 25, 1968, this Court set aside the orders passed by the High Court.
This Court further held that the writ petitioner, namely, the present appellant before us" is, not left without any remedy to 867 agitate his claim that the, tanks and wells claimed by him were constructed on occupied land and that they have been saved from vesting in the Government under section 5(c) of the Abolition Act.
It was held that if the writ petitioner was able to establish this plea, the State Government will have no power or authority to take possession of such tanks and wells, as the title thereto did not vest in it in view of section 5 (c) of the Abolition Act.
It was further held that section 5 (c) has an over riding effect on section 4 of the Abolition article In this view this Court held that it was the duty of the High Court to have decided the jurisdictional fact as to whether the tanks and wells claimed by the present respon dent belonged to the Jagirdar within the meaning of section 5(c) of the Abolition Act and that, if the High Court accepted the said contention, the High Court was competent to issue a writ under article 226 of the Constitution directing the State to hand over possession of the said tanks and wells to the writ petitioner.
Ultimately, for all the reasons given in its judgment, this Court set aside the decision of the High Court and remanded the proceedings for deciding afresh the claim made by the writ petitioner under section 5(c) of the Abolition Act.
Liberty was given to the parties to place before the High Court such further evidence, oral and documentary, as they may desire to give on the point at issue.
The main judgment was given in Civil Appeal No. 1245 of 1967.
For the same reasons given in the said judgment, Civil Appeal 1244 of 1967 was also remanded in accordance with the directions given in Civil Appeal No. 1245 of 1967.
The said decision of this Court is reported in State of Madhya Pradesh and others vs Sardar D. K. Jadhav(1).
After remand, when the matter was taken up by the High Court, both the appellant and the respondent, filed many documents and examined witnesses with particular reference to the claim regarding the wells and the tanks made by the respondent under section 5(c) of the Abolition Act.
The respondent laid his claim on the ground that the tanks and wells had been constructed on lands which were his Khud kasht lands as also on lands held on tenure by other persons.
But ultimately his claim was on the basis that the wells and tanks were all on occupied land belonging to the Jagirdar or any other person, as laid down under section 5(c) of the Abolition Act.
The State, on the other hand, denied the right of the respondent to claim any right in the said tanks and wells on the ground that they were not located on occupied land belonging to the Jagirdar, but were situated on lands which were in the possession ,of tenants.
Hence, according to the State, the said tanks and (1) ; 868 wells were not saved to the respondent under section 5 (c) of the Abolition Act, and that they have vested in the State, as rightly held by the Revenue authorities.
In short, the contention of the State appears to have been that only those tanks and wells, which are on occupied land belonging to the Jagirdar and in his possession as Khudkasht land alone are saved under section 5 (c) of the Abolition Act.
At this stage we may mention that though the respondent laid claim to certain wells also in addition to the tanks, it is seen from the judgment of the High Court that during the stage of arguments, it was represented on his behalf that three out of five wells were already in his possession and that no adjudication is necessary regarding those wells.
Regarding the other two wells, it is also seen that the respondent abandoned his claim before the High Court.
Therefore, the entire controversy, which the High Court had to decide centred round the claim, regarding the tanks, made by the respondent under section 5 (c) of the Abolition Act.
Though various maters have been adverted to by the High Court in its judgment, its material findings are as follows : That the four tanks_ as also the pick up weir are tanks within the meaning of the Abolition Act.
The four tanks as also the pick up weir belonged to the respondent at the time of the resumption of Jagirs under the Abolition Act, namely, December 4, 1952; Section 5 (c) is clearly attracted it the right of ownership or possession of the tanks belonged either to the Jagirdar or to any other person as against the said right belonging to the community at large or the State.
The fact that a part of the bed of the tanks may be in the occupation of tenants is of no consequence in holding in favour of the respondent under section 5 (c) of the Abolition Act; The entire area of the tanks in the possession of the respondent must as his Khud Kasht land and also in the occupation of the tenants are both saved under section 5 (c) and do not vest in the State under section 4 of the Abolition Act.
On these findings, the High Court accepted the contention of the respondent and held that the tanks claimed by him are saved under section 5 (c) and they have not vested in the State under the Abolition Act.
We may state at this stage that the High Court has not thought it necessary to consider the precise area of each one of the tanks as the tenants were not parties to the proceedings.
Ultimately, the High Court held that on resumption of Jagirs under the Abolition Act, the four tanks and the pick up weir are saved to the respondent under section 5(c) of the Abolition Act, subject to certain observations contained in the judgment.
In consequence, the High Court quashed the four orders of the Revenue authorities, referred to, in the judgment.
869 Though Mr. I.N.Shroff, learned counsel for.
the State, has raised several contentions, in our view, most of them do not survive in view of the specific directions contained in the order of remand passed by this Court.
The only two contentions that have been advanced by him and require to be considered are : (1) That the High Court has not complied with the directions given by this Court in its order of remand; and (2) The High Court has not found that the said tanks are situated on "occupied land" so as to be saved under section 5(c)of the Abolition Act.
The counsel has, no doubt, pointed out certain other circumstances, which, ,according to him, constitute an infirmity in the judgment of the High Court.
On the other hand, Mr. V., section Desai, learned counsel for the respondent, has pointed out that the directions of this Court have been fully complied with and that after a very elaborate consideration of the materials placed before it by both the parties, the High Court has recorded a finding that the tanks claimed by the respondent are on "occupied land" belonging to or held by the Jagirdar or any other person as required under section 5 (c) of the Abolition ' Act.
The fact that the High Court has not considered is necessary to adjudicate upon the exact area of the tanks is of no consequence because that is a matter to be decided as between the Jagirdar and the other tenure holders, if any.
Once the requirement that the tanks are on occupied land and that they belong to the Jagirdar or to,any other person is satisfied they are saved under section 5(c) of the Abolition Act.
That was the only point that the High Court was, directed to adjudicate upon and on.
that aspect clear findings have been recorded by it.
Before we deal with the contentions of the learned counsel on both sides, it is necessary to refer the material provisions of the Abolition" Act.
The expressions "Homestead" and "Occupied land" are defined in sub clauses (iv) and (ix) of section 2(1) and they are as follows: "2 In this Act unless the: context otherwise requires (iv)"Homestead" means a dwelling house together with any court yard, compound or attached garden or bari and includes any out building used for agricultural purposes and any tank or well appertaining to the dwelling house.
(ix) "Occupied land" means land held immediately the following tenures, namely, L36 SupCI/72 870 (a) Ex proprietary; (b) Pukhta Maurusi; (c) Mamuli Maurusi; (d) Gair Maurusi; and includes land held as Khud kasht and land comprised in a homestead;" Section 3 deals with resumption of Jagir lands by the Government.
As we have already mentioned the date of resumption is December 4, 1952.
Section 4 enumerates the various items which vest in the State, unless the contrary has been provided in the Abolition Act.
Section 5 saves, from vesting certain items arid clause (c), which is material is as follows: "Section 5 : Private wells, trees, buildings, house sites and enclosures.
Notwithstanding anything contained in the last preceding section (c) all tanks, trees, private wells and buildings in or on occupied land belonging to or held by the Jagirdar or any other person shall continue to belong to or, be held by such Jagirdar or other person.
Regarding the first contention we are satisfied that the High Court has complied with the directions given by this Court in its remand order.
The High Court was directed to decide the jurisdictional fact as to whether the tanks and wells claimed by the respondent belonged to the Jagirdar and were saved under section 5(c) of the Abolition Act.
Therefore, the only investigation that had to be made by the High Court was on the point, referred to above.
In fact, it is seen that the High Court has been very considerate when it allowed the appellant to raise various other questions, such as, the locus standi of the respondent, to file the writ petition, the question of non impleading of the tenants in possession of lands over which part of the tanks are situated and the undue delay in filing the writ petition.
Further, the High Court has allowed the appellant to raise the question that the respondent is estopped from seeking relief regarding the tanks under section 5(c) in view of the stand taken by him before the Revenue authorities in his application for award of compensation.
These matters should not have been permitted to have been raised by the appellant.
If these contentions were available to the appellant, they should have been raised be fore this Court in the appeals, referred to earlier.
Any how the High Court has gone into those matters and held against the appellant.
Therefore, far from not complying with 871 the directions given by this Court, it has even allowed the appellant to raise certain contentions which were.
not available to it at the stage when the matter was being considered after remand.
Therefore, the first contention will have to be rejected straightaway.
Regarding the second contention, it is also clear from the judgment of the High Court that it has very elaborately considered the various aspects presented; to it, both by the appellant as well as the respondent.
After a consideration of the materials so placed before it and having due regard to the provisions of the Abolition Act, the High Court, as we, have pointed out earlier, has considered, as directed by this Court, the main question whether the tanks are saved under section 5(c) of the Abolition Act.
In that connection the High Court had naturally to consider the scope of the definition of "Occupied land" under section 2 (1) (ix) of the Abolition Act.
It is after a consideration of all these aspects that the High Court has found that the four tanks belonged to the respondent at the time of resumption.
and the said tanks were on occupied land belonging to the Jagirdar or any other person.
Therefore, it considered the question properly as per the remand order and has given a finding on the same.
As to whether the said finding is correct or not, is a different matter.
But the criticism that it has not considered the point regarding the saving of the tanks under section 5(c) of the Abolition Act, cannot be accepted.
Now coming to the merits, it is clear that as and from the date of resumption, the consequences enumerated under section 4 will have full effect.
Except as otherwise provided in the Abolition Act, normally under cl.
(a) of Section 4(1) the right, title and interest of every Jagirdar and of every other person claiming through him in his Jagir lands including among other items, tanks, shall stand resumed to the State.
The saving is provided under section 5.
If the respondent is able to establish that the tanks in question are on occupied land belonging or hold by the Jagirdar or any other person, then those tanks are saved in favour of the respondent under section 5 (c) of the Abolition Act.
It may be mentioned at this stage that though the items are, all described as tanks, it is in evidence that they get submerged at times and at other times portions of the same are being cultivated either by the respondent or by other s under certain tenures.
That is, parts of the tanks are included and held by the respondent as khud kasht and rest of it is held by the tenure holders, who have got tenancy rights over them.
As the other tenure holders, namely, the tenants, were not parties before the High Court, the question of the extent of the area of the tanks was not decided and it was left open.
But the 872 entire extent of the tanks had been given by the respondent as 1679 bighas and 18 biswas of land and this claim was fully known to the Revenue authorities, who raised the specific plea that the said tanks are not on occupied land.
Therefore, the circumstance that the High Court did not adjudicate upon the question of the extent of the tanks, is of no consequence and it is not material for the point in dispute.
In order to get the tanks in question saved under section 5 (c) of the Abolition Act, the respondent will have to establish They were on occupied land; and (b) They belonged to or were held by the Jagirdar or any other person.
We have already extracted the definition of "occupied land '.
The essential ingredient of such land is that it must have been held immediately before the commencement of the Abolition Act under one or other of the four tenures mentioned in sub cls.
(a) to (d).
We have not been shown about the, existence of any other type of tenure.
The occupied land will also include as per the definition lands held by the Jagirdar as khud kasht as well as the land com prised in a homestead.
Therefore, occupied land comprises broadly of two types of lands: (1) four categories of land held under the tenures enumerated in sub clauses (a) to (d); and (2) comprised in khud kasht and "Homestead".
To attracted cl.
(c) of section 5, the tank must be shown ' in the first instance, to be on occupied land, that is, on land comprised under the tenures enumerated in sub clauses (a) to (d) or in the land held, as khud kasht and homestead.
In our opinion, it is not necessary that the entire tank should be exclusively situated in one or other of the tenures enumerated in sub clauses (a), to (d) of s.2 (1) (ix) on exclusively in the land herd as khud kasht and land comprised ' in homestead.
The requirement of the tanks in question being ;on occupied land, will be satisfied even if, part; of the: tanks is situated in one or other of the tenures mentioned in sub clauses (a) to (d) of cl.
(ix) of section 2 (1 ) and the rest of it is included in, the land held ;Is khud kasht and land comprised in a homestead.
That is the entire area of the tank must be comprised in either the tennures of the khudkasht and homestead or in both.
Therefore, it is not.
possible, to: accept the contention advanced: on behalf if the appellant State that only those tanks ', which are on khud kasht land of the Jagirdar are saved to him. ' Acceptance of such a contention will be ignoring the clear wording of cl (ix) of section 2(1), which takes in also lands held on the various tenures referred to therein.
From this, it follows that the mere fact that a part of the tanks is in the occupation of 'the tenants as ' tenure holders does not detract from operation of the saving cl.(c) of 'section 5.
There is no controversy that at the material date the occupied lands on which 873 tanks are situated belonged to or were held by the Jagirdar or any other person.
The expression "any other person" is comprehensive enough to take in the persons who were holding the land on one or other of the.
tenures, enumerated.in sub clauses (a) to (id) of section 2(1) (ix) of the Abolition Act.
Whatever may be the extent of the tanks in the possession of the respondent, as his khud kasht or homestead and in the possession of the tenure holders, the position ultimately is, that the entire extent of the tanks is in "occupied land" belonging to or held by the Jagirdar or any other person.
The actual extent and the area held by the Jagirdar and the tenure holders can be worked out only in the presence of both those parties.
To conclude, we are satisfied that the High Court has appealed the correct test.
to find out whether the.
tanks are saved under section ) of the Abolition Act.
We, are also in agreement with the finding of the High Court that the four tanks and the pick up weir are saved to the respondent under section 5(c) of the Abolition Act.
In the result, the judgment and order of the High Court are confirmed and this,appeal dismissed with costs G. C. Appeal dismissed.
| Under section 5(c) of the Madhya Bharat Abolition of Jagirs Act Samvat 2008 (Act 28 of 1951) all tanks, trees etc.
in or on 'occupied lands ' belonging to or held by the Jagirdar or any other person were excluded from vesting in the State by virtue of section 4.
The respondent filed a writ petition in the High Court claiming that certain tanks built by himself and his predecessor in title were on 'occupied land ' and therefore came within the protection of section 5(c).
The original order passed by the High Court in the writ petition was set aside, by this Court and the High Court was directed to decide afresh the claim made by the writ petitioners under section 5(c) of the Act.
After considering the evidence before it on this question the High Court held that the ' tanks in question were saved under section 5(c) and they had not vested in the State under the Abolition Act.
In appeal by the State to this Court, HELD: 'Occupied land ' as defined in section 2(1) (ix) of the Act comprises broadly two types of lands : (1) four categories of land held under the tenures enumerated in sub clauses (a) to (d); and (2) comprised in Khud Kasht and 'homestead '.
To attract cl.
(c) of section 5 the tank must be shown in the first instance to be on occupied land that is on land comprised under the tenures enumerated in sub clauses (a) to (d) or in the land held as Khud kasht and homestead.
It is not necessary that the entire tank should be exclusively situated in the land held as khud kasht and land comprised in homestead.
The requirement of "he tanks in question being an occupied land will be satisfied even if part of the tank is situated in one or the other of the tenures mentioned in sub clause,,; (a) to (d) of cl.
(ix) of section 2(1) and the rest or it is included in the land held as khud kasht and the land comprised in a homestead.
That is, the ,entire area of the tank must be comprised in either the tenures or the khud kasht or homestead or in both.
Therefore it was not possible to accept the contention advanced on behalf of the appellant State that only those tanks which are on khud kasht land of the Jagirdar are saved to him.
Acceptance of such a contention will be ignoring the clear working of cl.
(ix) of section 2(1) which takes in also lands held on the various tenures referred to therein.
[871 D G] Therefore in the present case the mere fact that a part of the tanks was in the occupation of the tenants as tenure holders did not detract from the operation of the saving cl.
(c) of section 5.
The expression 'any other person ' is comprehensive enough to take in the persons who were holding the land on one or the other of the tenures enumerated in subclauses (a) to (d) of section 2(1)(ix) of the Abolition Act.
Whatever may be the extent of the tanks in the possession of the respondent, as his khud kasht or homestead and in the possession of the tenure holders the position ultimately was that the entire extent of the tanks was in :occupied land ' belonging to or held by the Jagirdar or any other person.
[872 H,873 B] 865 The judgment of the High Court must accordingly be upheld.
|
iminal Appeal No. 83 of 1953.
Appeal under article 132(1) of the Constitution of India from the Judgment and Order dated the 25th August 1953 of the High Court of Judicature at Patna in Criminal Appeal No. 410 of 1951.
B. K. Saran and M. M. Sinha, for the appellants.
M. C. Setalvad, Attorney General for India (R.C.prqsad, with him) for the respondent.
1047 1954.
December 2.
The Judgment of the Court was delivered by DAS J.
This is an appeal from a judgment of the High Court of Judicature at Patna which raises a substantial question of law as to the interpretation of the Constitution of India.
The appeal arises out of a criminal trial held in the district of Hazaribagh in the State of Bihar.
The case against the appellants was investigated by the local police and on the 4th June, 1951 a challan was submitted before the Sub Divisional Magistrate.
The Sub Divisional Magistrate passed the following order in the order sbeet: "Let the record be sent to the Dy.
Commr., Hazaribagh for.
transferring it to the file of the Spl.
Magistrate for trial".
On the record being placed before the Deputy Commissioner, the latter passed following order: "Perused S.D.0 's order sheet.
Withdrawn and transferred to the file of Mr. section F. Azam, Magte.
with powers u/s 30, Cr. P. C. for favour of disposal".
The appellants were then tried by Mr. section F. Azam, Magistrate of the first class exercising powers under section 30 of the Code of Criminal Procedure on charges under sections 366 and 143 of the Indian Penal Code and each of them was convicted under both the sections and sentenced to rigorous imprison ment for five years under section 366, Indian Penal Code, no separate sentence having been passed under section 143.The appellants preferred an appeal to the High Court of Judicature at Patna.
The appeal was heard by a Bench consisting of section K. Das and C. P. Sinha, JJ.
There was a difference of opinion between the two learned Judges as to the constitutionality of section 30 of the Code of Criminal Procedure.
section K. Das, J., took the view that the impugned section did not bring about any discrimination or inequality between persons similarly circumstanced and consequently did not offend the equal protection clause of the Constitution, while C. P. Sinha, J., was of the opinion that 1048 the section was hit by article 14.
The appeal was thereupon placed before Reuben, C. J., who in agreement with section K. Das, J., held that section 30 did not violate the inhibition of article 14.
The learned Chief Justice upheld the conviction but reduced the sentence.
On application by the appellants the High Court granted them a certificate under article 132(1) and the present appeal has been filed accordingly.
The learned Advocate appearing in support of the appeal contends before us, as was done before the High Court, that there had been an infraction of the fundamental rights guaranteed to the appellants under article 14 of the Constitution of India.
The complaint is that the appellants had been tried by a section 30 Magistrate and not by a Court of Session.
A section 30 Magistrate is enjoined by that section to try the case brought before him as a Magistrate and accordingly in cases like the present case he will follow the warrant procedure which is different from the procedure followed by a Court of Session.
The substance of the grievance is that a trial before the Sessions Judge is much more advantageous to the accused person in that he gets the benefit of the commitment proceedings before a Magistrate and then a trial before the Sessions Judge with the aid of the jury or assessors.
It has not been seriously questioned before us that in spite of the risk of imposition of a punishment heavier than what a section 30 Magistrate can inflict, a trial by a Sessions Judge is of greater advantage to the accused than a trial before a Magistrate under the warrant procedure.
We have, therefore, to see whether this apparent discrimination offends against the equal protection clause of our Constitution.
The provisions of article 14 of the Constitution have come up for discussion before this Court in a number of cases.
, namely, Chiranjit Lal Chowdhuri vs The Union of India(1), The State of Bombay vs F. N. Balsara(2), The State of West Bengal vs Anwar Ali Sarkar(3), Kathi Raning Rawat vs The State of Sau (1) ; (2) ; (3) ; 1049 rashtra(1), Lachmandas Kewalram Ahuja vs The State of Bombay(2) and Qasim Razvi vs The State of Hyderabad(3) and Habeeb Mohamad vs The State of Hyderabad(4).
It is, therefore, not necessary to enter upon any lengthy discussion as to the meaning, scope and effect of the article in question.
It is now well established that while article 14 forbids class legislation, it does not forbid reasonable classification for the purposes of legislation.
In order, however, to pass the test of permissible classification two conditions must be fulfilled, namely, (i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped togetber from others left out of the group and (ii) that differentia must have a rational relation to the object sought to be achieved by the statute in question.
The classification may be founded on different bases; namely, geographical, or according to objects or occupations or the like.
What is necessary is that there must be a nexus between the basis of classification and the object of the Act under consideration.
It is also well established by the decisions of this Court that article 14 condemns discrimination not only by a substantive law but also by a law of procedure.
The contention now put forward as to the invalidity of the trial of the appellants has, therefore to be tested in the light of the principles so laid down in the decisions of this Court.
There are no less than four modes of trial prescribed by the Code of Criminal Procedure, namely,(i) trial of sessions cases, (ii) trial of warrant cases, (iii)summary trials and (iv) trials before a High Court and a Court of Session and the procedure in each of these trials is different.
Section 28 of the Code of Criminal Procedure which is to be found in Chapter III which deals with "Powers of Courts" reads as follows: "28.
Subject to the other provisions of this Code, any offence under the Indian Penal Code may be tried (1) ; (3) ; (2) [1952] S C R. 710.
(4) ; 1050 (a) by the High Court, or (b) by the Court of Session, or (c) by any other Court by which such offence is shown in the eighth column of the second schedule to be triable".
Section 30, as it now stands, provides: "30.
In Assam, Madhya Pradesh, Punjab, Oudh, Madhya Bharat, Hyderabad, Mysore, Patiala and East Punjab States Union and Rajasthan, in all Part C States and in those parts of the other States in which there are Deputy Commissioners or Assistant Commissioners the State Government may, not withstanding anything contained in section 28 or section 29, invest the District Magistrate or any Magistrate of the first class, with power to try as a Magistrate all offences not punishable with death".
Section 34 puts a limit to the power of punishment of a section 30 Magistrate in terms following: "34.
The Court of a Magistrate, specially empowered under section 30, may pass any sentence authorised by law, except a sentence of death or of transportation for a term exceeding seven years or imprisonment for a term exceeding seven years".
It will be noticed that section 28 begins with the clause "subject to the other provisions of this Code".
This means that the section and the second schedule referred to therein are controlled by the other provisions of the Code including the provisions of section 30.
Further, the text of section 30 itself quite clearly says that its provisions will operate "notwithstanding anything contained in section 28 or section 29".
Therefore, the provisions of section 28 and the second schedule must give way to the provisions of section 30.
It is not, however, claimed by the learned Attorney General that section 30 abrogates or overrides altogether the provisions of section 28 and the second schedule in the sense that in the specified territories Magistrates empowered under section 30 become the only tribunal competent to try all offences not punishable with death to the exclusion of all other Courts mentioned in the 8th column of the second schedule.
1051 If that had been the position, then there could be no question of discrimination, for, in that situation, section 30 Magistrate 's Court would be the only Court in which all offences not punishable with death would become triable.
As already stated, this extreme claim is not made by the learned Attorney General.
The effect of the State Government investing the District Magistrate or any Magistrate of the first class with power under section 30 is to bring into being an additional court in which all offences not punishable with death become triable.
In other words, the effect of the exercise of authority by the State Government under section 30 is, as it were, to add in the 8th column of the second schedule the Magistrate so em powered as a Court before whom all offences not punishable with death will also be triable.
The question is whether this result brings about any inequality before the law and militates against the guarantee of article 14.
Section 30, however, empowers the State Government in certain areas to invest the District Magistrate or any Magistrate of the first class with power to try as a Magistrate all offences not punishable with death.
There is an obvious classification on which this section is based, namely, that such power may be conferred on specified Magistrates in certain localities only and in respect of some offences only, namely, all offences other than those punishable with death.
The Legislature understands and correctly appreciates the needs of its own people which may vary from place to place.
As already observed, a classification may be based on geographical or territorial considerations.
An instance of such territorial classification is to be found in the which came up for discussion before this Court and was upheld as valid in The State of Punjab vs Ajaib Singh(1).
section K. Das, J., and the learned Chief Justice have in their respective judgments referred to certain circumstances, e.g. the distance between the place of occurrence and the headquarters where (1) ; 135 1052 the Court of Session functions at considerable intervals, the inconvenience of bringing up witnesses from the interior, the difficulty of finding in the backward or out of the way places sufficient number of suitable persons to act as jurors or assessors, all of which make this classification quite a reasonable one.
In this sense, the section itself does not bring about any discrimination whatever.
The section only authorises the State Government to invest certain 'Magistrates with power to try all offences not punishable with death and this authority the State can exercise only in the specified places.
If the State invests any Magistrate with powers under section 30 anybody who commits any offence not punishable with death and triable by a Court of Session under section 28 read with the second schedule is also liable to be tried by the section 30 Magistrate.
The risk of such liability falls alike upon all persons committing such an offence.
Therefore, there is no discrimination in the section itself.
The learned counsel for the appellants, however, contends, on the strength of the decision of the Supreme Court of America in Yick, Wo vs Peter Hopkins(1) that "though a law be fair on its face and impartial in operation, yet, if it is administered by public authority with an evil eye and an unequal hand so as practically to make illegal discrimination between persons in similar circumstances materially to their rights, the denial of equal justice is still within the prohibition of the Constitution".
The contention is that although the section itself may not be discriminatory, it may lend itself to abuse bringing about a discrimination between persons accused of offences of the same kind, for the police may send up a person accused of an offence under section 366 to a section 30 Magistrate and the police may send another person accused of an offence under the same section to a Magistrate who can commit the accused to the Court of Session.
It is necessary to examine this contention with close scrutiny.
When a case under section 366, Indian Penal (1)[1886] 118 u.s. L.Ed. 220.
1053 Code., which is a case triable by a Court of Session under the second schedule, is put up before a section 30 Magistrate, the section 30 Magistrate is not necessarily bound to try the case himself.
Section 34 limits the power of the section 30 Magistrate in the matter of punishment.
If the section 30 Magistrate after recording the evidence and before framing a charge feels that in the facts and circumstances of the case the maximum sentence which he can inflict will not meet the ends of justice he may, instead of disposing of the case himself, act under section 347 and commit the accused to the Court of Session.
Here, whether the accused person shall be tried by the section 30 Magistrate or by the Court of Session is decided not by the executive but is decided according to the discretion judicially exercised by the section 30 Magistrate himself.
Take the case of another person accused of an affence under section 366 which is sent up by the police to a Magistrate who is not empowered under section 30.
Such Magistrate after perusing the challan and other relevant papers may, if he thinks that the ends of justice will be met if the case is tried by a section 30 Magistrate, submit the case to the District Magistrate with his own recommendations for such action as the latter may think fit to take under section 528 of the Code of Criminal Procedure.
That is what was done in the instant case.
On the other hand, he may take evidence under section 208 and after the evidence has been taken, make up his mind judicially whether he should proceed under section 209 or section 210.
He may consider that in the facts and circumstances of the case disclosed in the evidence the ends of justice require that the accused person should be committed to the Court of Session and in that event he will proceed to frame a charge and follow the provisions of sections 210 to 213.
If, however, the Magistrate is satisfied on the facts of the case that the ends of justice will be sufficiently met if the accused is tried by a section 30 Magistrate having jurisdiction in the matter, the Magistrate may report to the District Magistrate and the latter may, in his discretion, withdraw the case under section 528 of the 1054 Code of Criminal Procedure to himself and may enquire into or try such case himself or refer it for enquiry or trial to any other Magistrate competent to try the same.
In such a case there is exercise of judicial discretion at two stages, namely, under section 209 by the Magistrate before whom the accused was sent up for enquiry and also by the District Magistrate acting under section 528 of the Code of Criminal Procedure.
It is thus clear that the ultimate decision as to whether a person charged under section 366 should be tried by the Court of Session or by a section 30 Magistrate does not depend merely on the whim or idiosyncrasies of the police or the executive Government but depends ultimately on the proper exercise of judicial discretion by the Magistrate concerned.
It is suggested that discrimination may be brought about either by the Legislature or the Executive or even the Judiciary and the inhibition of article 14 extends to all actions of the State denying equal protection of the laws whether it be the action of anyone of the three limbs of the State.
It has, however, to be remembered that, in the language of Frankfurter, J., in Snowden vs Hughes(1), "the Constitution does not assure uniformity of decisions or immunity from merely erroneous action, whether by the Courts or the executive agencies of a State".
The judicial decision must of necessity depend on the facts and circumstances of each particular case and what may superficially appear to be an unequal application of the law may not necessarily amount to a denial of equal protection of law unless there is shown to be present in it an element of intentional and purposeful discrimination (See per Stone, C.J., in Snowden vs
Hughes (supra).
It may be mentioned at once that in the present case there is no suggestion whatever that there has been at any stage any intentional or purposeful discrimination as against the appellants by the Sab Divisional Magistrate or the District Magistrate or the section 30 Magistrate who actually tried the accused.
Further, the discretion of judicial officers is not arbitrary and the law provides for revision by (1) ; ; 1055 superior Courts of orders passed by the Subordinate Courts.
In such circumstances, there is hardly any ground for Apprehending any capricious discrimination by judicial tribunals.
On the facts and circumstances of this case we find ourselves in agreement with section K. Das, J., and Reuben, C. J., and hold that no case of infringement of fundamental right under Article 14 has been made out.
In the circumstances, we dismiss this appeal.
Appeal dismissed.
| The respondent was a citizen of India at the commencement of the Constitution in 1950.
He entered India on April 1, 1955, with a Pakistani passport dated March 15, 1955, and overstayed in India beyond the permitted period.
He was arrested in 1963 and was charged with an offence under section 14 of the Foreigners Act, and convicted.
While the criminal proceedings were pending, the Central Government, under section 9(2) of the , read with r. 30 of Citizenship Rules, 1956, determined on November 5, 1964, that the respondent had acquired citizenship of Pakistan after January 26, 1950, and before March 15, 1955.
The High Court set aside the conviction.
On appeal to this Court, HELD: (1) The respondent was not a 'foreigner ' within the meaning of the Foreigners Act before its amendment in 1957.
[500 G H] (2) Having been a citizen of India at the commencement of the Constitution and not being a foreigner under the Foreigners Act at the date of his entry, till the Central Government determined the question of the respondent having acquired Pakistan nationality and thereby lost Indian nationality, he could not be treated as a foreigner and no penal action could be taken against him.
[497 G; 501 ' A B] (3) The order of the Central Government dated November 5, 1964 determining that the respondent was a Pakistani was final, but the determination by the Central Government could not have the effect of retrospectively rendering his stay in India before that date a penal offence.
It was not as if he was given any directions after November 5, 1964, which were disobeyed by him entailing his prosecution.
[501 C E]
|
minal Appeal No. 192 of 1959.
Appeal by special leave from the judgment and order dated October 27, 1958, of the Andhra Pradesh High Court at Hyderabad in Criminal Revision Case No. 395 of 1958.
M. C. Setalvad, Attorney General of India, T. V. R. Tatachari and T. M. Sen, for the appellant.
R. Thiagarajan for N. section Mani, for respondent.
April 4.
The Judgment of the Court was delivered by SARKAR, J.
The respondent was convicted by the Judicial Magistrate of Adoni in the State of Andhra Pradesh, under section 14 of the .
His appeal to the Sessions Judge of Kurnool was dismissed.
He then moved the High Court of Andhra Pradesh in revision and the revision petition was allowed.
Hence the present appeal by the State of Andhra Pradesh.
The facts found were these: On January 20, 1955, the respondent had come to Adoni on a passport granted by the Government of Pakistan which bore the date January 10, 1955.
The passport had endorsed on it a visa granted by the Indian authorities which permitted the respondent to stay in India up to April 14, 1955.
The respondent continued to stay on in India after that date.
On some date, not precisely ascertainable from the record, he appears to have made a representation to the Government of India for extension of his visa till September 2, 1957, on grounds of health.
The records do not however show what order, if any, was made on this representation.
On September 3, 1957, an order dated August 9, 1957, made by the Government of Andhra, Pradesh requiring him to leave India, was served on the respondent As the respondent did not leave India as directed by this order, he was prosecuted with the result earlier stated.
The passport showed that the respondent was born at Adoni in 1924 The respondent appears to have 740 produced an extract from the municipal birth register, which is not on the record, but presumably showed that he was so born.
The only evidence on the record of the date when he left India, shows that must have been at the end of 1954 or early in 1955.
There is evidence to show that he had been paying rent for his ,hop at Adoni for about ten years prior to 1958 and his parent section brothers, wife, and children were.
and bad always been in India.
The respondent was charged with the breach of the order to leave India which had been made under section 3 (2)(c) of the .
Now the order could not be made on him, neither could he be convicted for breach of it, if lie was not a foreigner.
That was the defence of the respondent, namely that he was not a foreigner.
The question is, was a foreigner? The learned Judicial Magistrate found that by obtaining the passport from the Pakistan authorities, "he has disowned Indian nationality and has ceased to be an Indian National." He also held that section 9 of the did not apply to the case but section 8 of that Act did and that under that section a decision made by the Government that a person is a foreigner is final and such a decision had been made in this case regarding the respondent as the Government had decided not to grant him an extension of his visa.
On these grounds he found that the respondent was a foreigner.
It seems to us that both these grounds are untenable.
Section 8 applies to a case where "a foreigner is recognised as a national by the law of more than one foreign country or where for any reason, it is uncertain what nationality if any is to be ascribed to a foreigner.
" The section provides that in such cases the prescribed authority has power to decide of which country the foreigner is to be treated as the national and such decision shall be final.
The section, therefore, applies to a person who is a foreigner and the question is of which foreign country he is a national.
In the case of the respondent no such question arose and no decision could be or was made by any prescribed authority of such question.
The learned Magistrate therefore clearly went wrong in relying on section 8. 741 As regards the passport, the learned Magistrate did not come to the finding that it proved the respondent to have been a Pakistani national all along.
What he Al did was to think that the respondent who had earlier been an Indian national, had by obtaining it, disowned Indian nationality and ceased to be an Indian national.
Now, section 9(2) of the , provides that if any question arises as to whether an Indian citizen has acquired the citizenship of another country, it shall be determined by such authority and in such manner as may be prescribed.
Under r. 30 of the rules framed under that Act,, the authority to decide that question is the Central Government.
So the question whether the respondent, an Indian citizen, had acquired Pakistani citizenship cannot be decided by courts.
The learned Magistrate had no jurisdiction therefore to come to the finding on the strength of the passport that the respondent, an Indian citizen, had acquired Pakistani citizenship.
Nor was there anything before the learned Magistrate to show that the Central Government had decided that the respondent had renounced Indian citizenship and acquired that of Pakistan.
The learned Magistrate thought that the fact that the Central Government had refused to extend the respondent 's visa proved that it had decided that he had acquired Pakistani nationality.
This view again was not warranted.
There is nothing to show that the Central Government had refused to extend the respondent 's visa.
Even if it had, that would not amount to a decision by it, that the respon dent, an Indian citizen, had acquired subsequently Pakistani nationality for there may be such refusal when an applicant for the extension had all along been a Pakistani national.
Furthermore, in order that there may be a decision by the Central Government that an Indian citizen has acquired foreign nationality, an enquiry as laid down in r. 30 of the rules framed under the has to be made and no such enquiry had at all been made.
That being so, it cannot be said that the Central Government had decided that the respondent, an Indian citizen, had acquired the citizenship of Pakistan.
742 The question whether a person is an Indian citizen or a foreigner, as distinct from the question whether a person having once been an Indian citizen has renounced that citizenship and acquired a foreign nationality, is not one which is within the exclusive jurisdiction of the Central Government to decide.
The courts can decide it and, therefore, the learned Magistrate could have done so.
He, however, did not decide that question, that is, find that the respondent had been a Pakistani national all along.
On the evidence on the record such a finding would not have been warranted.
For all these reasons we think that the conviction of the respondent by the learned Magistrate was not well founded.
Coming now to the decision of the learned Sessions Judge, he seems to have based himself on the reasoning that the "conduct of the appellant" that is, the respondent before us, "in applying for extension of time shows that he is not a citizen of India and that he has acquired citizenship of Pakistan.
If he were a citizen of India, he could have raised this plea and this question could have been decided by the Central Government as envisaged by Rule 30, sub Rule I of the Rules made under the and there was no necessity to apply for extension.
" Quite plainly, the learned Sessions Judge was proceeding on the basis that the respondent had renounced his Indian citizenship and acquired Pakistani citizenship.
As we have said earlier, that is not a question which is open to a court to decide and there is no evidence to show that it has been decided by the Central Government who alone has the power to decide it.
The learned Sessions Judge did not direct himself to the question which lie could decide, namely whether the respondent had from the beginning been a Pakistani citizen.
His decision, therefore, cannot also be sustained.
We have examined the evidence on the record our.,elves and are unable to say that a conviction can be based on it.
There can be no conviction unless it can be held on the evidence that the respondent is a foreigner, that is to say, a person who is not an Indian 743 citizen: see section 2(a) of the as amended by Act 11 of 1957.
The evidence shows that the respondent did go to Pakistan, but the only evidence with regard to that is that he went there about the end of 1954 or the beginning of 1955.
This evidence also indicates that he stayed there for a short time.
He was all along paying the rent for his shop in Adoni.
His family bad always been there.
Therefore it can be said that he had never migrated to Pakistan.
Clearly, a short visit to Pakistan would not amount to migrating to that country.
The passport obtained by him from Pakistan would no doubt be evidence that he was a Pakistani national.
As on the facts of this case he must be held to have been an Indian citizen on the promulgation of the Constitution, the passport can show no more than that he renounced Indian citizenship and acquired Pakistani nationality.
Such evidence would be of no use in the present case for, in view of section 9(2) of the , a Court cannot decide whether an Indian citizen has acquired the citizenship of another country.
The position then is this.
The respondent has clearly discharged the onus that lay on him under section 9 of the to prove that he was not a foreigner, by proving that he was born and domiciled in India prior to January 26, 1950, when the Constitution came into force and thereby had become an Indian citizen under article 5(a) of the Constitution.
He has further proved that he had never migrated to Pakistan.
It has not been shown that the Central Government had made any decision with regard to him under section 9 of the that he has acquired a foreign nationality.
Therefore, it cannot be held by any court that the respondent who was an Indian citizen has ceased to be such and become a foreigner.
That being so, it must be held for the purpose of this case that the respondent was not a foreigner and no order could be made against him under section 3(l)(c) of the .
Conviction for breach of such an order by the respondent would be wholly illegal.
744 Though we are upholding the decision of the High Court, we wish to observe that we do not do so for the reasons mentioned by it.
It is unnecessary to discuss those reasons but we would like to point, out one thing, namely.
that the High Court seems to have been of the opinion that article 7 of the Constitution contemplates migration from India to Pakistan even after January 26, 1950.
We desire to make it clear that we should not be taken to have accepted or en dorsed the correctness of this interpretation of article 7.
The reference in the opening words of article 7 to articles 5 and 6 taken in conjunction with the fact that both articles 5 and 6 are concerned with citizenship (at the commencement of the Constitution) apart from various other considerations would appear to point to the conclusion that the migration referred to in article 7 is one before January 26, 1950, and that the contrary construction which the learned Judge has put upon article 7 is not justified, but in the view that we have taken of the facts of this case, namely, that the respondent had never migrated to Pakistan, we do not consider it necessary to go into this question more fully or finally pronounce upon it.
In the result we dismiss the appeal.
Appeal dismissed.
| The respondent was born in India in 1924 and had lived there all along till about the end of 1954.
He had been paying rent for his shop in India for ten years upto about 1958 and his family was and had always been in India.
At the end of 1954 or the beginning of 1955 lie went to Pakistan from where he returned on January 20, 1955, on a passport granted by the Pakistan Government which had a visa endorsed on it by the Indian authorities permitting him to stay in India up to April, 1955.
The respondent applied to the Central Government for extension of the time allowed by the visa but the records did not Show What order, if any, had been made on it.
As the respondent had stayed beyond the time specified in the visa, he was on September 3, 1957, served with an order made by the Government of Andhra Pradesh under section 3(2)(C) Of the , i946 requiring him to leave India.
The order described him as a Pakisthan National.
on his failure to comply with this order 93 738 he was prosecuted under section 14 of the .
His defence was that he was an Indian national.
The trying magistrate rejected this defence and convicted him holding (a) that the fact that the respondent obtained a Pakistan passport proved that he had disowned Indian nationality and ceased to be an Indian national and (b) that by refusing to extend the time fixed by the visa the Central Government had decided that the respondent was a foreigner and under section 8 of the , such a decision was final.
An appeal by the respondent was dismissed by the Sessions judge on the ground that the respondent 's application for extension of the time fixed by the visa proved that he had renounced his Indian nationality and had acquired the citizenship of Pakistan.
The High Court of Andhra Pradesh set aside the conviction in revision.
On appeal by the State of Andhra Pradesh, Held, that neither the Magistrate nor the Sessions Judge was competent to come to a finding of his own that the respon dent, an Indian national, had disowned his nationality and acquired Pakistan nationality for under section 9(2) of the , that decision could only be made by the prescribed authority which under the Rules framed under the Act was the Central Government.
The fact that the Central Government had refused to extend the visa did not show that it had decided under the section that the respondent had renounced his Indian nationality and acquired Pakistan citizenship.
In any event, in order that the Central Government might come to a decision under section 9(2) of the an enquiry as laid down in r. 30 Of the Rules framed under the Act had to be made and no such inquiry had been made.
On the facts established, the respondent became an Indian citizen under article 5(a) of the Constitution when it came into force.
He thereby discharged the onus laid on him by section 9 of the to prove that he was an Indian citizen when that was in dispute.
The passport obtained by the respondent from the Pakistan Government would, therefore, only be evidence that the respondent had renounced Indian nationality and acquired Pakistan citizenship.
Such evidence was however of no use in a court for no court could in view of section 9(2) of the decide whether an Indian citizen had renounced his citizenship and acquired the citizenship of a foreign country.
Section 8 of the had no application to the case as it only applied where a foreigner is recognised as a national by the law of more than one foreign country or where it is uncertain what nationality is to be ascribed to a foreigner and in the present case that was not the question but the question was whether the respondent was an Indian or a foreigner.
The respondent 's short visit to Pakistan had not amounted to a migration to that country.
Query, whether article 7 of the Constitution contemplates migration from India to Pakistan after January 26, 1950.
|
: Criminal Appeal No. 159 of 1974.
(From the Judgment and Order dated 2 1 1974 of the Patna High Court in Govt.
Appeal No. 48/68).
section Shaukat Hussain, for the appellant.
Pramod Swarup, for the respondent.
The Judgment of the Court was delivered by GOSWAMI, J.
The day, April 4, 1966, broke ominously for Lala Barhi (deceased) who used to render physical training and swimming ;lessons to young boys.
One such boy, Sabir Hanfi (PW 9), aged about 'l8 years, went to the house of Lala Barhi (hereinafter, Lala) at Purani Bazar, in the town of Muzaffarpur.
Lala was then asleep.
Sabir Hanfi woke him up and they both went to the Ashram Ghat (known also as Balu Ghat) on the bank of the Gandak river.
There when Lala was cleansing his teeth and washing his face.
, the appellant Rajendra Prasad (hereinafter to be described as the accused) came there with four or five persons.
It is said that the accused had some 'differences with Lala over some money which he had given to him to assault somebody which Lala failed to accomplish.
As his companions were keeping Lala engaged in talk, the accused thrust a dagger on the back of Lala who then called Sabir Hanfi.
lala himself a robust young man.
rushed towards the accused who took to his beels with his companions.
Lala fell down rushing forward a space.
of about forty yards and breathed his last.
Sabir Hanfi and others also ran 'behind Lala to his aid.
Although thirteen witnesses were examined by the prose cution only four of them were eye witnesses to the occur rence.
They are Ram Pukar Sah (PW 1), Parmeshwar Prasad (PW 4), Lachman Prasad (PW 10) and Sabir Hanfi (PW 9).
The Sessions Judge disbelieved all the eye witnesses and acquit ted the accused.
On the other hand the High Court relied on the evidence of PW 9 as being corroborated by PWs 1 and 10.
The High Court, therefore, set aside the acquittal 70 and convicted the accused under section 302, Indian Penal Code, and sentenced him to rigorous imprisonment for life.
Hence this appeal under section 2(a) of the .
PW 4 who lodged the first information report without naming any accused and who did not know the accused before the occurrence could not even identify him at the Test Identification Parade which was held on September 29, 1966.
The evidence of PW 4 is, therefore, of no significance.
The case, therefore, depended upon the evidence of recognition of the accused while running from the place of occurrence by PWs 1, 10 and the direct testimony of PW 9 who knew the accused from before.
The accused was known only to Sabir Hanfi (PW 9) by name.
The other two witnesses did not know the accused from before and saw him only while running away followed by twenty or twenty five other persons.
The evidence of PWs 1 and 10, which we have carefully perused, go to show that they did not know the accused from before.
They however,. identified the accused in the Test Identification Parade held on September 29, 1966, nearly six months after the occurrence.
There is no reason why the Test Parade was delayed so long when the accused had surren dered on June 17, 1966.
As stated earlier, the trial court which had opportunity to see these witnesses disbelieved them by giving certain reasons.
For example, according to the Sessions Judge, these two witnesses had the opportunity to know the accused from before and,.
therefore, their identification in the Test Identification Parade was not considered of such significance.
He further observed that these witnesses saw the accused at the time when he was running away from the place of occurrence and, therefore, "it is highly improbable that they would be able to retain the impression of the assailant of Lala Barhi in their mind for so many months".
The High Court, on the other hand, held that identification by PWs 1 and 10 was reliable.
Thus when two courts have come to a different conclusion on the same evidence, we had ourselves to go through the entire evidence carefully in order to see whether the appreciation of the evidence by the Sessions Judge was so unreasonable anti unrealistic as to entitle the High Court to interfere with the same.
PW 1 is the father of PW 10.
His uncle died on the previous night and both he and his son (PW 10) went for his cremation at Chandwara Ghat.
The cremation was over at about 6.16 A.M. on the morning of the day of occurrence.
They then went to Balu Ghat for a bath.
They saw Lala Barhi doing physical exercise on the bank of the river and they went to take their bath in the river.
After about ten minutes they heard a huIIa `pakro ' `pakro '.
On hearing the hulla they came up to the Bank from the river and saw Lala Barhi running away towards the East and four persons were chasing him and raising a huIIa `pakro ' `pakro '.
They fur ther stated that about twenty or 'twenty five persons fol lowed to catch two or three persons who were chasing the Lala.
They had come out of the water at that time.
PW 10 stated that he could not identify the other companions of Lala because he "saw their back only and not their face".
Since both the 71 witnesses came out of the water on hearing the hulla which was raised only after the assault, it was not possible for these two witnesses to see the stabbing.
Even if they recognised the persons running away, they would not be able to say who, amongst them, had stabbed the deceased.
PW 10 has candidly admitted that he could not recognise the companions of the deceased as they were running ahead and he was watching from behind, If this be the position with regard to the companions of the deceased it is difficult to see how these two witnesses were able to recognise the accused who was running away.
Apart from that there were twenty to twenty five others following the accused with two or three persons thus obstructing a clear view of the ac cused.
In this state of evidence it is impossible to hold, on their evidence, that the learned Sessions Judge did not reach a correct conclusion that identification by these two witnesses was futile for the purpose of establishing the charge against the accused.
We are unable to appreciate how the High Court in this state of evidence could reasonably come to a contrary conclusion with regard to the testimony of these two witnesses.
This leaves PW 9 for consideration.
Although PW 9 knew the assailant by name, there is no mention of the accused 's name in.
the first information report lodged the same day.
at 12.00 noon, five hours after the occurrence, the Thana being only one and a half miles from the place of occurrence.
The accused is described in the first information report as "a dark complexioned healthy young man, about the age of 24/25 years".
It may be that PW 9 is the only witness who had seen the stabbing.
He may be the witness from the beginning of the occurrence till the end and who described the inci dent in detail.
According to him while the deceased was cleansing his teeth the accused came near him with four or five persons and that while some of then kept the de ceased engaged in some conversation the accused stabbed the deceased on his back with a dagger.
The whole case will, therefore, rest on the evidence of this witness who knows the accused from before.
The Sessions Judge has considered him as unreliable for the following reasons : (1) It is highly improbable that if he had seen the incident he would not have rushed to the police station or even stayed at the place of occurrence till the arrival of the po lice.
(2) That on the other hand PW 9 confined himself in his house from 4th April till the evening of the following day when a constable went t6 his house to take him to the police station.
(3) The police at first suspected that he might have a hand in the murder of the de ceased and suspected him and kept him in the police lock up.
(4) The conduct of the witness is very suspicious and no reliance can be placed on his evidence.
6 240SCI/77 72 The High Court has considered the first two grounds as insufficient for holding the witness as unreliable.
It observed that "it is of common knowledge that generally people try to avoid becoming an informant and to be an eye witness of the occurrence for various reason".
With regard to the third and fourth grounds the High Court referred to the station diary entry (exhibit 4) and to the evidence of PW 12 and held as follows : ". it was 'by mistake that PW 9 was arrested by a constable.
P.W. 12 has stated that in fact he was a prosecution witness.
I do not find any valid reason for discrediting the evidence of P.W. 9".
From the evidence of PW 9 and PW 12 and in the context of the station diary entry (exhibit 4), the position emerges as follows : A police officer went to the house of PW 9 in the evening of April 5, 1966, to bring him to the Thana.
He was found by the Officer incharge of the Thana (PW 12) sitting at the police station at 7.30 P.M.
Now let us read the station diary entry (exhibit 4).
Before we quote the.
same we should state that this exhibit has not been correctly trans lated at page 56 Of the Paper Book.
We, therefore, our selves examined the original station diary entry and we will set out the same as correctly translated as under : "XVIII.
Entered in Thana Daily section 186 186.
That this time, Shri G.S. Chaturvedi, Town Inspector, came to Thana and took with him Mohd. Sabir Hanfi alias Funna r/o Saraiya ganj Thana Town the accused (Abhiyukta) in connection with section No. 5(4)66, Sec.
302 IPC.
On search nothing was found on his person except clothes he was wearing.
After all the rules of Hajat were observed he was kept in Hajat".
Some uncertainty was felt by counsel regarding the meaning of the word "hajat".
We have no doubt that the word "hajat" means custody in this context.
Bhargava 's Standard Illustrated Dictionary, Hindi Language, gives the meaning of Hajat, inter alia, as custody, and states thus: "Hajat mein rakhna" means "to keep a culprit in custody".
The High Court, we are afraid, does not appear to have examined the original station diary entry (exhibit 4) with care otherwise it would not have come to the conclusion that it was by mistake that PW 9 was arrested by a constable simply, from the self serving statement of PW 12.
The High Court does not even refer to the fact that a very important recit al in the original entry (exhibit 4), namely, the word "abhivukta" (accused) has been scored out and in its place the word "gavah" (witness) was substituted.
The interpola tion of the word "gavah" (witness) for "abhiyukta" (accused) appeared to be of a different writer from the original writings in the entry.
This is serious tampering with an official record in a criminal case when a man 's life is in jeopardy in a trial for murder under section 302 IPC.
We have also grave suspicion about the date of correction of the entry in exhibit 4. 73 Although the above entry shows that PW 9 was brought to the Thana by the Town Inspector, G.S. Chaturvedi, he was not even examined in the case to show why and under what circumstances PW 9 was brought by him.
This entry in the official record clearly shows that PW 9 was at that stage considered as an accused in connection with this murder case and his person was searched before confining him in the Hajat.
If he was only a witness there was no reason why his person would be searched.
and why he would be kept in the lock up "after all the rules of Hajat were observed".
The High Court completely lost sight of these serious infirmi ties in the prosecution evidence and it was absolutely impermissible to accept the statement of PW l 2 when he stated that PW 9 "had not been arrested" and that "he was only a prosecution witness.
There are some other disquieting features with regard to the evidence of PW 9.
It is not understood why he should have said that a constable brought him to the Thana whereas the entry (exhibit 4) shows that the Town Inspector, Chaturvedi, brought him to the Thana.
If, as the entry shows, he was brought by the Town Inspector, Chaturvedi, and he was kept confined in the lock up as an accused in the murder case, it is difficult to comprehend how at that very stage exhibit 4 could be considered by PW 12 as containing a wrong recital without reference to the Town Inspector.
Besides, PW 12, as he says, had taken charge of the investi gation from Sub Inspector, Gupteshwar Dayal (PW 13) at 11.00 A.M. on April 5, 1966, inspected the place of occurrence, unsuccessfully searched for the suspects Rajendra Prasad, Ram Bilas Sahani and Mohan Jha at their houses,.
examined some witnesses and then reported to the Thana at 7.30 P.M. to find PW 9, the principal witness, sitting there.
Even then he would not record the statement of PW 9.
He admitted during the course of cross .examination that when he first interrogated PW 9 at the Thana he had not recorded his statement.
He did not even record his statement when he came to the Thana from his house at 11.00 P.M. that night, These are very suspicious 'circumstances.
PW 12, however, admitted that he recorded the statement of PW 9 on the following day (6 4 1966) at 12.05 A.N., after having pro duced him before the Superintendent of Police.
PW 9 admits that he was interrogated by the Superintendent of Po1ice for twenty to twenty five minutes.
PW 12 stated in his examination in chief that he allowed PW 9 to go to his house after he had recorded his statement on April 6, 1966, at 12.05 A.N.
From the evidence of PW 12 read with the entry (exhibit '4) it does not appear that PW 9 was freed from police custody at least till his statement was recorded on April 6, 1966.
Again, the statement of PW 9 was recorded by the Magistrate under section 164, Criminal Procedure Code, on April 12, 1966, when perhaps the police had finally decided to treat him as a prosecution witness instead.
of an accused.
This conclusion is irresistible on the state of evidence to which we have referred above.
If under these circumstances the Sessions Judge held that the conduct of this witness was such as would seriously affect his credi bility, the High Court was not at all justified in taking a contrary view even without a proper analysis of the oral and documentary evidence.
When the evidence of recognition of the 74 accused by PWs 1, 10 and 4 is unreliable, no conviction can be based on the sole testimony of a witness like PW 9, on whom the first suspicion fell, without any corroboration.
When a trial court, with full view of the witnesses, acquits an accused after disbelieving direct testimony, it will be essential for the High court, in an appeal against acquittal, to clearly indicate firm and weighty grounds, from the record, for discarding the reasons of the trial court in order to be able to reach a contrary conclusion of guilt of the accused.
The High Court should be able to point out in its judgment that the trial court 's reasons are palpably and unerringly shaky and its own reasons are demonstrably cogent.
As a salutary rule of appreciation of evidence, in an.
appeal against acquittal, it is not legally sufficient that it is just possible for the High Court to take a contrary view about the credibility of witnesses but it is absolutely imperative that the High Court convincingly finds it well nigh impossible for the trial court to reject their testimony.
This is the quintessence of the jurispru dential aspect of criminal justice.
This is not a case where it can be said that the Sessions Judge came to a palpably wrong conclusion on the evidence or that the reasons for acquittal of the accused are manifestly erroneous, shocking one 's sense of justice.
The High Court was not right in interfering with the acquit tal of the accused in this case.
The appeal is, therefore, allowed.
The judgment of the High Court is set aside.
The accused shall be released from detention immediately.
P.H.P. Appeal allowed.
| P.W. 9 Sabir aged about 18 year went to the house of Lala (deceased) who used to render physical training and swimming lessons to young boys and requested Lala to accom pany him to the bank of a river.
When Lala was cleaning his teeth and washing his face the appellant went there with 4 or 5 persons.
The prosecution case is that those 4 or 5 persons engaged Lala in talk and the appellant thrust a dagger on the back of Lala who died within minutes after the assault.
20 to 25 persons who were there and P.W. 9 and others ran behind the appellant.
The prosecution examined 13 witnesses out of which 4 were eye witnesses, namely, P.W. 1, 4, 9 and 10.
The Sessions Judge disbelieved all the eye witnesses, and acquitted the appellant.
The Sessions judge while acquitting the appellant took the following facts into consideration : (1) P.W. 4 who lodged the First Information Report did not name any accused and, in fact, he did not know the accused before the occur rence and could not even identify him at the test identification parade.
(2) P. Ws 1 and 10 had opportunity to see the accused before and therefore the test identification parade could not be attached much significance.
(3) P. Ws 1 and 2 are ' supposed to have seen the accused at the time when he was running away from the place of occurrence and, therefore, it was highly improbable that they would be able to retain the impression of the accused.
(4) It is highly improbable that P.W. 9 had seen the incident since he did not go to the Police Station nor even stayed at the place of occurrence till the arrival of the police.
On the other hand, he confined himself in his house until a constable came to take him to the police station.
The police in the begin ning suspected him as one of the persons who participated in the murder of the deceased.
His conduct is very suspicious.
The High Court in appeal by the State relied on the evidence of P.W. 9 as being corroborated 'by P. Ws. 1 and 10.
The High Court therefore, set aside the acquit tal and convicted the, accused under section 302 I.P.C. and sentenced him to rigorous imprisonment for life.
Allowing the appeal under section 2(a) of the Supreme Court (Enlargement of Criminal Appeal Jurisdiction) Act, 1970.
HELD: (1) When a trial court, with full view of the witnesses, acquits an accused after disbelieving direct.
testimony it will.
b.e essential for the High Court in an appeal against acquittal to clearly indicate firm and weighty grounds from the record for discarding ' the reasons of the trial court in order to be able to reach a contrary conclusion of guilt of the accused.
The High Court should be able to point out in its judgment that the trial court reasons 69 are palpably and unerringly shaky and its own reasons are demonstrably Cogent.
As a salutary rule of apprecia tion of evidence in an appeal against acquittal it is not legally sufficient that it is just possible for the High Court to take a contrary view about the credibility of witnesses but it is absolutely imperative that the High Court convincingly finds it well nigh impossible for the trial court to reject their testimony.
[74 A C] (2) This is not a case where it can be said that the Sessions Judge came to a palpably wrong conclusion on the evidence or that the reasons for acquittal of the accused are manifestly erroneous, shocking one 's sense of justice.
The High Court was not right in interfering with the acquit tal of the accused in this case.
174 D] (3) Since the Sessions Court and the High Court reached different conclusions from the same evidence this Court went through the entire evidence carefully in order to see wheth er the appreciation of the evidence by the Sessions Judge was so unreasonable and unrealistic as to entitle the High Court to interfere with the same.
[70E F]
|
IGINAL JURISDICTION: Criminal Appeal No. 319 of 1988 From the Judgment and Order dated 21.11.1987 of the Gujarat High Court in Special Criminal Application No. 732 of 1987.
AND Writ Petition (Criminal) No. 906 of 1987.
M.C. Kapadia, S.S. Khanduja and Y.P. Dhingra for the Appellant/Petitioner.
G.A. Shah and M.N. Shroff for the Respondents.
The Judgment of the Court was delivered by SEN, J.
This appeal by special leave brought from the judgment and order of the Gujarat High Court dated 21st November, 1987 and the connected petition under article 32 of the Constitution are directed against an order passed by the District Magistrate, Panchmahals, Godhra dated 28th May, 1987 for the detention of the appellant under sub section
(2) of section 3 of the Gujarat Prevention of Anti Social Activities Act, 1985 on being satisfied that it was necessary to do so, with a view to preventing him from acting in any manner prejudicial to the maintenance of public order.
It is not an undisputed fact that the appellant is engaged as a commission agent or broker in the rather lucrative but illicit business of liquor traffic at Godhra in the State of Gujarat where there is total prohibition by importing different varieties of Indian made foreign liquor in sealed bottles like scotch whisky, beer etc.
from wine merchants of Vanswada in the State of Rajasthan.
But then by engaging himself in such activities he falls within the description of a 'bootlegger ' as defined in section 2(b) and therefore comes within the ambit of sub section
(1) of section 3 of the Act by reason of the legal fiction contained in sub section
(4) thereof.
Put very briefly, the essential facts are these.
On prior information that the appellant was about to import Indian made foreign liquor in bulk in truck bearing registration No. GRY 3832, on the night between 29/30th December, 1986, the Gujarat police put up a road block on the bridge near Machan River where on a sign given it failed to stop.
After a long chase, the police jeep was able to intercept the 292 truck at Limdi.
Both the driver Ahmed Saiyad Abdul Majid Kalander and cleaner Sadique Ahmed Yusuf Durvesh Shaikh got down and said that the truck was empty.
However, on a search it was found to be laden with 77 sealed cases containing 2040 bottles of different brands of scotch whisky, beer etc.
and it was evident from the statements of the driver and the cleaner who were arrested, that the appellant was the person who had purchased the liquor from wine merchants of Vanswada.
On 4th January, 1987 the statements of the witnesses were recorded.
Apparently, the appellant absconded and he could not be traced till 2nd February, 1987 when he was arrested but later released on bail.
In the meanwhile, he moved the Sessions Judge, Panchmahals for anticipatory bail on 21st January, 1987 but no orders were passed inasmuch as the police made a statement that there was no proposal at that stage to place him under arrest.
The appellant is being prosecuted for various offences under the Bombay Prohibition Act, 1949 as applicable to the State of Gujarat, in Criminal Case No. 154/86.
On 28th May, 1987 i.e. after a lapse of five months the District Magistrate, Panchmahals, Godhra passed the order of detention along with the grounds therefore which was served on the appellant on the 30th when he was taken into custody.
The immediate and proximate cause for the detention was that on 20/30th December, 1986 he transported in bulk foreign liquor from liquor merchants of Vanswada in the State of Rajasthan intended and meant for delivery to persons indulged in anti social activities by doing illict business of foreign liquor in the State of Gujarat.
Incidentally, the grounds furnish particulars of two other criminal cases, namely, (i) Criminal Case No. 303/82 on account of recovery of 142 bottles of foreign liquor recovered and seized from his residential house on 21st July, 1982, but the case ended in an acquittal as the prosecution case witnesses turned hostile, and (ii) Criminal Case No. 150/86 relating to recovery and seizure of 24 bottles of foreign liquor from his house on 30th May, 1986 which case was still pending.
It was said that persons like the appellant bringing foreign liquor from other States illegally without a permit on a brokerage and storing the same in their permises are not easily detected and there was no other method of preventing such persons from engaging in such anti social activities except by detention under section 3(2) of the Act.
In the writ petition before the High Court the appellant assailed the impugned order of detention mainly on two grounds, namely: (i) The failure of the detaining authority to record his subjective satisfaction as required under sub section
(2) of section 3 that the importation of foreign liquor by the appellant from Vansawada across the border was likely to affect public health of the citizens of Gujarat and therefore it was 293 necessary to detain him with a view to preventing him from acting in any manner prejudicial to public order, renders the order of detention bad and invalid.
(ii) There was no sufficient material on record on which such subjective satisfaction of the detaining authority could be reached.
Neither of the two contentions prevailed with the High Court and it accordingly declined to interfere.
At the time when the judgment was to be delivered by the High Court, learned counsel appearing for the appellant sought permission to raise an additional point and he was permitted to do so.
It was as to whether the detention of the detenu at Sabarmati Central Prison, which was a place other than Godhra where he ordinarily resides, was tantamount to a breach of the mandate of article 21 of the Constitution as his detention at a far off place was not consistent with human dignity and civilized normes of behaviour.
The additional point so raised also did not find favour with the High Court.
The appeal by special leave is directed against this judgment.
Learned counsel for the appellant has however not preferred to rais these questions over again.
In the connected petition under article 32 learned counsel for the appellant has, in substance, put forth the following contentions, namely: (1) There is no explanation forthcoming for the admitted delay of five months in making the impugned order of detention and such inordinate unexplained delay by itself was sufficient to vitiate the order.
(2) The impugned order of detention was bad in law inasmuch as there was non application of mind on the part of the detaining authority.
There was nothing to show that there was awareness of the fact that the appellant had applied for grant of anticipatory bail nor was there anything to show that the detaining authority was satisfied about the compelling necessity to make an order for detention which, it is said, was punitive in character.
It is said that there was no occasion to commit the appellant to prison while he was on bail in a criminal case facing charges under the Bombay Prohibition Act, 1949 merely on the suspicion of being a bootlegger.
(3) The impugned order of detention was ultra vires the District Magistrate and void ab initio as it displayed lack of certainty and precision on the part of the detaining authority as to the purpose of detention.
There was clubbing of purposes as it mentioned that such detention was necessary (i) in the interests of the nation with a view to stop the anti national activities, (ii) for ensuring of public peace, (iii) for maintenance of public health, and (iv) in the interest of the State, all rolled up into one.
(4) There was delay in the disposal of the representation made by the appellant 294 to the State Government which renders his continued detention invalid and constitutionally impermissible.
We shall deal with the contentions in seriatim.
Point No. (1): It has always been the view of this Court that detention of individuals without trial for any length of time, however short, is wholly inconsistent with the basic ideas of our Government and the gravity of the evil to the community resulting from anti social activities can never furnish an adequate reason for invading the personal liberty of the citizen except in accordance with the procedure established by law.
The Court has therefore in a series of decisions forged certain procedural safeguards in the case of preventive detention of citizens.
When the life and liberty of citizen was involved, it is expected that the Government will ensure that the constitutional safeguards embodied in article 22(5) are strictly observed.
When any person is detained in pursuance of an order made under any law of 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.
These procedural safeguards are ingrained in our system of judicial interpretation.
The power of preventive detention by the Government under any law for preventive detention is necessarily subject to the limitations enjoined on the exercise of such power by article 22(5) as construed by this Court.
Thus, this Court in Khudiram Das vs State of West Bengal, ; speaking through Bhagwati, J. observed: "The constitutional imperatives enacted in this article are two fold: (1) the detaining authority must, as soon as may be, that is, as soon as practicable after the detention communicate to the detenu the grounds on which the order of detention has been made, and (2) the detaining authority must afford the detenu the earliest opportunity of making a representation against the order of detention.
These are the barest minimum safeguards which must be observed before an executive authority can be permitted to preventively detain a person and thereby drown his right of personal liberty in the name of public good and social security." As observed by this Court in Narendra Purshotam Umrao vs B.B. Gujral; , when the liberty of the subject is involved, whether it is under the Preventive Detention Act or the Maintenance 295 of Internal Security Act or the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act or any other law providing for preventive detention. ". it is the bounden duty of the Court to satisfy itself that all the safeguards provided by the law have been scrupulously observed and that the subject is not deprived of his personal liberty otherwise than in accordance with law.
" Nevertheless, the community has a vital interest in the proper enforcement of its laws particularly in an area such as conservation of foreign exchange and prevention of smuggling activities in dealing effectively with persons engaged in such smuggling and foreign exchange racketeering or with persons engaged in anti national activities which threaten the very existence of the unity and integrity of the Union or with persons engaged in anti social activities seeking to create public disorder in the worsening law and order situation, as unfortunately is the case in some of the States today, by ordering their preventive detention and at the same time, in assuring that the law is not used arbitrarily to suppress the citizen of his right to life and liberty.
The Court must therefore be circumspect in striking down the impugned order of detention where it meets with the requirements of article 22(5) of the Constitution.
There is an inexorable connection between the obligation on the part of the detaining authority to furnish the 'grounds ' and the right given to the detenu to have an 'earliest opportunity ' to make the representation.
Since preventive detention is a serious inroad on individual liberty and its justification is the prevention of inherent danger of activity prejudicial to the community, the detaining authority must be satisfied as to the sufficiency of the grounds which justify the taking of the drastic measure of preventive detention.
The requirements of article 22(5) are satisfied once 'basic facts and materials ' which weighed with the detaining authority in reaching his subjective satisfaction are communicated to the detenu.
The test to be applied in respect of the contents of the grounds for the two purposes are quite different.
For the first, the test is whether it is sufficient to satisfy the authority, for the second, the test is whether it is sufficient to enable the detenu to make his representation at the earlier opportunity which must, of course, be a real and effective opportunity.
The Court may examine the 'grounds ' specified in the order of detention to see whether they are relevant to the circumstances under which preventive detention could be supported e.g. security of India or of a State, conservation 296 and augmentation of foreign exchange and prevention of smuggling activities, maintenance of public order, etc.
and set the detenu at liberty if there is no rational connection between the alleged activity of the detenu and the grounds relied upon, say public order.
In the enforcement of a law relating to preventive detention like the conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 there is apt to be some delay between the prejudicial activity complained of under section 3(1) of the Act and the making of an order of detention.
When a person is detected in the act of smuggling or foreign exchange racketeering, the Directorate of Enforcement has to make a thorough investigation into all the facts with a view to determine the identity of the persons engaged in these operations which have a deleterious effect on the national economy.
Quite often these activities are carried on by persons forming a syndicate or having a wide network and therefore this includes recording of statements of persons involved, examination of their books of accounts and other related documents.
Effective administration and realisation of the purpose of the Act is often rendered difficult by reason of the clandestine manner in which the persons engaged in such operations carry on their activities and the consequent difficulties in securing sufficient evidence to comply with the rigid standards, insisted upon by the Courts.
Sometimes such investigation has to be carried on for months together due to the magnitude of the operations.
Apart from taking various other measures i.e. launching of prosecution of the persons involved for contravention of the various provisions of the Acts in question and initiation of the adjudication proceedings, the Directorate has also to consider whether there was necessity in the public interest to direct the detention of such person or persons under section 3(1) of the Act with a view to preventing them from acting in any manner prejudicial to the conservation and augmentation of foreign exchange or with a view to preventing them from engaging in smuggling of goods etc.
The proposal has to be cleared at the highest quarter and is then placed before a Screening Committee.
For ought we know, the Screening Committee may meet once or twice a month.
If the Screening Committee approves of the proposal, it would place the same before the detaining authority.
Being conscious that the requirements of article 22(5) would not be satisfied unless the 'basic facts and materials ' which weighed with him in reaching his subjective satisfaction, are communicated to the detenu and the likelihood that the Court would examine the grounds specified in the order of detention to see whether they were relevant to the circumstances under which the impugned order was passed, the detaining authority would neces 297 sarily insist upon sufficiency of the grounds which would justify the taking of the drastic measure of preventively detaining the person.
Viewed from this perspective, we wish to emphasise and make it clear for the guidance of the different High Courts that a distinction must be drawn between the delay in making of an order of detention under a law relating to preventive detention like the Conservation of Foreign Exchange & Prevention of Smuggling Activities Act, 1974 and the delay in complying with the procedural safeguards of article 22(5) of the Constitution.
It has been laid down by this Court in a series of decisions that the rule as to unexplained delay in taking action is not inflexible.
Quite obviously, in cases of mere delay in making of an order of detention under a law like the Conservation of Foreign Exchange & Prevention of Smuggling Activities Act, 1974 enacted for the purpose of dealing effectively with persons engaged in smuggling and foreign exchange racketeering who, owing to their large resources and influence have been posing a serious threat to the economy and thereby to the security of the nation, the Courts should not merely on account of delay in making of an order of detention assume that such delay, if not satisfactorily explained, must necessarily give rise to an inference that there was no sufficient material for the subjective satisfaction of the detaining authority or that such subjective satisfaction was not genuinely reached.
Taking of such a view would not be warrented unless the Court finds that the grounds are 'stale ' or illusory or that there is no real nexus between the grounds and the impugned order of detention.
The decisions to the contrary by the Delhi High Court in Anil Kumar Bhasin vs Union of India & Ors., Crl.
W. No. 410/86 dated 2.2.1987, Bhupinder Singh vs Union of India & Ors., , Anwar Esmail Aibani vs Union of India & Ors., Crl.
W. No. 375/86 dated 11.12.1986, Surinder pal Singh vs M.L. Wadhawan & Ors., Crl.
W. No. 444/86 dated 9.3.1987 and Ramesh Lal vs Delhi Administration, Crl.
W. No. 43/84 dated 16.4.1984 and other cases taking the same view do not lay down good law and are accordingly overruled.
In the present case, the direct and proximate cause for the impugned order of detention was the importation in bulk of Indian made foreign liquor by the appellant acting as a broker from across the border on the night between 29/30th December, 1986.
The District Magistrate in the counter affidavit has averred that it was revealed from the statements of the witnesses recorded on 4th January, 1987 that the appellant was the person actually involved.
Apprehending his arrest the appellant applied for anticipatory bail on 21st January, 1987.
298 It appears that on the same day the appellant apears to have made a statement that there was no proposal at that stage to arrest the appellant.
However, later it was discovered that there was no trace of the appellant.
He was arrested on 2nd February, 1987 and on the same day he made a statement admitting these facts.
Meanwhile, the proposal to detain the appellant was placed before the District magistrate.
It is averred by the District Magistrate that on a careful consideration of the material on record he was satisfied that it was necessary to make an order of detention of the appellant under section 3(2) of the Act and that accordingly on 28th May, 1987 he passed the order of detention.
The appellant was taken into custody on 30th May, 1987.
He had forwarded the report to the State Government on the 28th and the Government accorded its approval on the 31st.
Even though there was no explanation for the delay between 2nd February and 28th May, 1987 it could not give rise to a legitimate inference that the subjective satisfaction arrived at by the District Magistrate was not genuine or that the grounds were stale or illusory or that there was no rational connection between the grounds and the impugned order of detention.
There is a plethora of decisions of this Court as to the effect of unexplained delay in taking action.
These are admirably dealt with in Durga Das Basu 's Shorter Constitution of India, 8th edn.
at p. 154.
We will only notice to a few salient decisions.
In Olia Mallick vs State of West Bengal, it was held that mere delay in making the order was not sufficient to hold that the District Magistrate must not have been satisfied about the necessity of the detention order.
Since the activities of the detenu marked him out as a member of a gang indulging systematically in the cutting of aluminium electric wire, the District Magistrate could have been well satisfied, even after the lapse of five months that it was necessary to pass the detention order to prevent him from acting in a manner prejudicial to the maintenance of the supply of electricity.
In Golam Hussain @ Gama vs The Commissioner of Police, Calcutta & Ors., ; , it was held that the credible chain between the grounds of criminal activity alleged by the detaining authority and the purpose of detention, is snapped if there is too long and unexplained an interval between the offending acts and the order of detention.
But no 'mechanical test by counting the months of the interval ' was sound.
It all depends on the nature of the acts relied on, grave and determined or less serious and corrigible, on the length of the gap, short or long, on the reason for the delay in taking preventive action, like information of participation being available only in the course of an investigation.
The Court has to investigate whether the casual connection has 299 been broken in the circumstances of each case.
In Odut Ali Miah vs State of West Bengal, where the decision of the detaining authority was reached after about five months, Krishna Iyer, J. repelled the contention based on the ground of delay as a mere 'weed of straw ' and it was held that the 'time lag ' between the dates of the alleged incidents and the making of the order of detention was not so large that it could be said that no reasonable person could possibly have arrived at the satisfaction which the District Magistrate did on the basis of the alleged incidents.
It follows that the test of proximity is not a rigid or mechanical test to be blindly applied by merely counting the number of months between the offending acts and the order of detention.
In Vijay Narain Singh vs State of Bihar, [1964] 3 SCC 14, one of us, Sen, J. observed: "On merits the impugned order cannot be said to be vitiated because of some of the grounds of detention being non existent or irrelevant or too remote in point of time to furnish a rational nexus for the subjective satisfaction of the detaining authority.
It is usually from prior events showing tendencies or inclinations of a man that an inference can be drawn whether he is likely, in the future, to act in a manner prejudicial to the maintenance of public order.
" See also: Gora vs State of West Bengal, ; ; Raj Kumar Singh vs State of Bihar & Ors., ; and Hemlata kantilal Shah vs State of Maharashtra, ; Point No. (2): Quite recently, we had occasion to deal with this aspect in Bal Chand Bansal vs Union of India & Ors., JT In repelling a contention raised on the dictum in Ramesh Yadav vs District Magistrate, Etah, , one of us (Sharma, J.) drew attention to the observations of Mukharji, J. in Suraj Pal Sahu vs State of Maharashtra, ; that the prejudicial activities of the person detained were 'so interlinked and continuous in character and are of such nature ' that they fully justified the detention order.
Here the grounds of detention clearly advert to two earlier incidents, one of 21st July, 1982 for which the detenu was being prosecuted in Criminal Case No. 303/82 relating to the recovery and seizure of 142 bottles of foreign liquor from his residential house which ended in an acquittal because the prosecution witnesses turned hostile, and the other of 30th May, 1986 for which Criminal Case No. 150/86 relating to recovery and seizure of 24 bottles of foreign liquor from his house was 300 then still pending, and go on to recite that the launching of the prosecution had no effect inasmuch as he had not stopped his activities and was continuing the importation of foreign liquor from across the border.
The earlier two incidents are not really the grounds for detention but they along with the transaction in question of importation of foreign liquor in bulk show that his activities in this transaction afforded sufficient ground for the prognosis that he would indulge in such anti social activities again, if not detained.
The District Magistrate in his counter affidavit has stated that he was aware of the fact that the detenu had on 21st January, 1987 applied for anticipatory bail but no orders were passed inasmuch as the police made a statement that there was no proposal at that stage to place him under arrest.
It however appears that he was arrested on 2nd February, 1987 and on his own made a statement admitting the facts.
Thereafter, he seems to have disappeared from Godhra.
In the circumstances, it cannot be said that there was lack of awareness on the part of the District Magistrate on 28th May, 1987 in passing the order of detention as he did.
There is a mention in the grounds of the two criminal cases pending against the detenu and also a recital of the fact that he was continuing his business surreptitiously and he could not be caught easily and therefore there was compelling necessity to detain him.
Point No. (3): The contention regarding lack of certainty and precision on the part of the detaining authority as to the real purpose of detention and that they were 'all rolled up into one ' at first blush appears to be attractive but on deeper reflection seems to be of little or no consequence.
The purpose of the detention is with a view to preventing the appellant from acting in any manner prejudicial to the maintenance of public order.
It was not seriously disputed before us that the prejudicial activities carried on by the appellant answer the description of a 'bootlegger ' as defined in section 2(b) and therefore he comes within the purview of sub section
(1) of section 3 of the Act, by reason of sub section
(4) thereof.
Sub section
(4) of section 3 with the Explanation appended thereto gives an enlarged meaning to the words 'acting in any manner prejudicial to the maintenance of public order ' and reads: "(4) For the purpose of this section, a person shall be deemed to be 'acting in any manner prejudicial to the maintenance of public order ' when such person is engaged in or is making preparation for engaging in any activities, whether as a bootlegger or dangerous person or drug offender or immoral traffic offender or property grabber, which affect adversely or are likely to affect adversely the maintenance of public order.
301 Explanation: For the purpose of this sub section, public order shall be deemed to have been affected adversely or shall be deemed likely to be affected adversely inter alia, if any of the activities of any person referred to in this sub section directly or indirectly, is causing or is likely to cause any harm, danger or alarm or feeling of insecurity among the general public of any section thereof or a grave or widespread danger to life, property or public health." The District Magistrate in passing the impugned order has recorded his subjective satisfaction with respect to the appellant that with a view to preventing him from acting in any manner prejudicial to the maintenance of public order, it is necessary to make an order that he be detained.
In the accompanying grounds for detention this is the basis for the formation of his subjective satisfaction.
They go on to state that unless the order of detention was made he would not stop his illicit liquor traffic on brokerage and therefore it was necessary to detain him under section 3(2) of the Act, and recite: "In order to safeguard the health of the people of Gujarat, for public peace and in the interest of the nation, with a view to stop such anti national activities . . for the purpose of public order and public peace and in the interest of the State . ." In our opinion, these words added by way of superscription were wholly unnecessary.
They were set out by the District Magistrate Presumably because of total prohibition in the State.
In future, it would be better for the detaining authority acting under sections 3(1) and 3(2) of the Act, to avoid such unnecessary verbiage which are of little or no consequence and give rise to unnecessary debate at the Bar.
Point No. (4): The contention that there was unexplained delay in disposal of the representation made by the appellant to the State Government appears to be wholly misconceived.
Admittedly, the appellant made his representations to the State Government as well as to the Advisory Board on 8th June, 1987.
The State Government acted with promptitude and after due consideration rejected the same on 12th June, 1987.
There was no delay much less inordinate delay in consideration of the representation.
The result therefore is that the appeal as well as the writ petition fail and are dismissed.
S.L. Appeal & Petition dismissed.
| The Rajasthan Public Service Commission conducted an examination in 1985 for appointments to State Services.
The recruitment rules contained a provision that candidates should secure a minimum of 33% marks in the viva voce test.
Some of the candidates who failed to secure the minimum marks in viva voce challenged before the High Court the constitutionality of the provision in the Rules stipulating such minimum cut off marks.
The High Court declared the provision unconstitutional.
Before this Court, it was urged on behalf of the selected candidates and the State of Rajasthan, that (I) the High Court fell into a serious error in importing into the present case principles . which pertained to the proposition whether the setting apart of an excessive and disproportionately high percentage of marks for viva voce in comparison with the marks of the written examination would be arbitrary; and (2) the prescription of minimum qualifying marks for the viva voce test would not violate any constitutional principle or limitation, but was on the contrary a salutary and desirable provision.
On the other hand, it was urged that (1) the principles laid down by this Court, which the High Court had accepted, were sound and had acquired an added dimension in the context of the increasingly denuded standards of probity and rectitude in the discharge of public offices, and (2) the real thrust of the principles was that any marking procedure that made the oral test determinative of the fate of a candidate was, in itself, arbitrary, and if this test was applied to this case, the decision reached by the High Court would be unexceptionable.
380 Allowing the appeals, it was, ^ HELD:(1) A sensitive, devoted and professionally competent administrative set up could alone undertake the ever expanding social and economic roles of a welfare state.
[387A B] (2) The 'interview ' was now an accepted aid to selection and was designed to give the selectors some evidence of the personality and character of the candidates, which qualities were necessary and useful to public servants.
[388G H] (3) Academic excellence was one thing.
Ability to deal with the public with tact and imagination was another.
Both were necessary for an officer.
The dose that was demanded may vary according to the nature of the service.
Administrative and Police Services constituted the cutting edge of the administrative machinery and the requirement of higher traits of personality was not an unreasonable expectation.
[391D] Lila Dhar vs State of Rajasthan, [1982] 1 SCR 320 referred to.
(4) The observations made by this Court in Ashok Kumar Yadav were in the context where the spread of marks for the viva voce was so enormous, compared with the spread of marks for the written examination, that the viva voce test 'tended to become the determining factor '.
The reference was to the possibility of a candidate undeservedly being allotted high marks at the interview.
That was a very different thing from the question whether a candidate should acquire at least a certain minimum percentage of marks at the viva voce.
[394B C] Ashok Kumar Yadav vs State of Haryana, [1985] Supp.
1 SCR 657 explained.
State of U.P. vs Rafiquddin & Ors., (Judgment Today referred to.
(5) The prescription of minimum qualifying marks of 60 (33%) out of the maximum of 180 set apart for the viva voce examination did not, by itself, incur any constitutional infirmity.
The principles laid down by this Court in the case of Ajay Hasia Lila Dhar and Ashok Kumar Yadav did not militate against or render impermissible such a prescription.
[391B] Ajay Hasia vs Khalid Mujib Sehravardi & Ors., ; ; Lila Dhar vs State of Rajasthan & Ors., and Ashok Kumar Yadav vs State of Haryana, distinguished.
(6) A mere possibility of abuse of a provision, did not, by itself, justify its invalidation.
The validity of a provision must be tested with reference to its operation and efficiency in the generality of cases and not 381 by the freaks or exceptions that its application might in some rare cases possibly produce.
[394F G]
|
ivil Appeal No. 698 of 1980.
From the Judgment dated the 2.5.1979 of the Kerala High Court in M.F.A. 346 of 1978.
M.M. Abdul Khader, Darshan Singh and Praveen Kumar for the Appellant.
P.S. Poti, P.K. Pillai (N.P.), T.T. Kunnhikannan and Ms. Malini Poduval for the Respondents.
The Judgment of the Court was delivered by K. JAGANNATHA SHETTY, J.
This appeal by leave from a Full Bench judgment of the Kerala High Court raises a short question of construction of the plain words of a term 'private forest ' as defined in a statutory enactment called "The Kerala Private Forest (Vesting and Assignment) Act, 197 1 (called shortly "The Vesting Act").
The High Court has decided the question in favour of the State and against the appellant.
The judgment of the High Court has since been reported in AIR 1980 Kerala 137.
The view expressed by the High Court has been subsequently affirmed by another Full Bench in State of Kerala vs Malayalam Plantation Ltd., AIR 1981 Kerala 1 and reiterated by a larger Bench of five Judges in State of Kerala vs
K.C. Moosa Haji & Ors., , Losing the construction argument, the appellant has appealed to this Court.
The facts of the case are immaterial for the purpose of this judgment, save to state in the barest outline that the appellant is the Rayon Silk Manufacturing Company registered in the State of Madhya Pradesh.
One of its industrial under takings is located in Bilakootam, Mavoor in Kozhikode Dis trict, Kerala State.
This establishment pro 405 duces Rayon Grade Pulp, using Bamboo Eucalyptus and other species of wood as basic raw material.
It has a large euca lyptus plantation coveting thousands of acres, maintained as captive raw material for use in the factory.
The State says that as a consequence of the Vesting Act, the eucalyptus 8plantation being a private forest and not excluded there from is vested in the State with no fight, title and inter est subsisting with the company.
The claim of the company, however, is that the term 'private forest ' as defined under the Vesting Act, excludes the eucalyptus plantation. 'Private forest ' has been defined in the Vesting Act as well as under the Kerala Land Reforms Act (Act 1 of 1964) as amended by Amendment Act 35 of 1969 ("The KLR Act").
Since counsel for the appellant largely depends upon the judicial construction of the definition of 'private forest ' in the KLR Act, it is necessary that we should set out hereunder both the definitions placed alongside with each other: THE KERALA PRIVATE FORESTS THE KERALA LAND REFORMS (VESTING AND ASSIGNMENT) ACT (ACT 1 OF 1964) AS ACT, 1971 AMENDED BY THE KERALA LAND REFORMS (AMENDME NT ACT 35/1969) (Act 26 of 1971) (AS AMENDED BY ACT 5 OF 2.
Definitions.
In this 1978) Act unless the context otherwise requires 2.
Definitions: In this Act (47) 'private forest ' unless the context otherwise means a forest which is requires not owned by the Govern ment but does not inclu de (f) 'private forest ' means (1) in relation to the Mala (i) areas which are waste bar district referred to in and are not enclaves sub section (2) of Section within wooded areas; 5 of the (ii) areas which are gardens or nilams; (Central Act 37 of 1956) (i) any land to which the (iii) areas which are Madras Preservation of Pri planted with tea, coffee, vate Forests Act, 1949 (Madras cocoa, rubber, cardomom Act XXVIII of 1949) applied or cinnamon; and immediately (iv) other areas which are culti 406 before the appointed day excluding vated with (A) Lands which are gardens or pepper, arecanut coco nilams as defined in the Kerala nut, cashew or other Land Reforms Act, 1963 (1 of fruit bearing trees or 1964) are cultivated with any other agricultural crop;.
(B) Lands which are used princi pally for the cultivation of tea, coffee, cocoa, rubber, cardomom, or cinnamom and lands used for any purpose ancillary to the cultiva tion of such crops or for the pre paration of the smae for the market.
Explanation Lands used for the construction of office buildings, godowns, factories, quarters for workmen, hospitals, schools and playgrounds shall be deemed to be lands used for purposes ancillary to the cultivation of such crops; (C) lands which are principally cultivated with cashew or other fruit bearing trees or are princi pally cultivated with any other agricultural crop; (D) sites of buildings and lands appurtenant to and necessary for the convenient enjoyment or use of, such buildings; (ii) any forest not owned by the Government, to which the Madras Preservation of Private Forests Act, 1949 did not apply, inclu ding waste lands which are encla ves within wooded areas.
407 (2) in relation to the remaining areas in the State of Kerala, any forest not owned by the Government, including waste lands which are enclaves within wooded areas.
Explanation: For the purposes of this clause, a lane shall be deemed to be a waste land notwithstanding the existence thereon of scattered trees or shrubs;" We may first examine the scope of the definition of 'private forest ' under Section 2(47) of the KLR Act.
It means a forest which is not owned by the Government, excluding thereby four kinds of areas specified under sub clauses (i) to (iv).
The latter part of sub clause (iv) contains the words" . .
Other areas cultivated with any other agricultural crop".
The terms 'agriculture ' and 'agricultural crop ' have wider as well as narrower connotation.
The wider concept covers both the primary or basic as well as the subsequent operations.
It takes within its fold among other things, the products of the land which have some utility either for consumption or for trade and commerce including forest products such as timber, sal and piyasal trees, casuarina plantations, tendu leaves, horranuts etc.
(See: Commis sioner of Income Tax, West Bengal, Calcutta vs Raja Benoy Kumar Sahas Roy, ; at 156.
Of course there must be present all throughout the basic idea that there must be cultiva tion of land in the sense of tilling of the lands, sowing of the seeds, planting and similar work done in the land.
The forest growth or spontaneous growth of any product, plants or trees, however, would be outside the characteristic of agricultural products or operations.
In Malankara Rubber and Produce Co. vs State of Kerala & Ors., ; , this Court while examining the scheme of KLR Act with particular reference to Chapter III therein observed that 'lands under eucalyptus or teak which are the result of agricultural operations normally would be agricultural lands, but not lands which are covered by eucalyptus or teak growing spontaneously as in a jungle or a forest. ' This is the wider concept of agricultural crop, perhaps attributed to the latter part of sub clause (iv) of the definition under Section 2(47) of the KLR Act.
The latter part of sub clause (iv) of Section 2(47) of the KLR 408 Act, counsel for the appellant contended, is practically the same as the second limb of sub clause (C) of Section 2(f)(1)(i) of the Vesting Act.
It was claimed that since eucalyptus plantation is covered by the expression 'any other agricultural crop ' in Section 2(47) sub clause (iv) of the KLR Act, Section 2(f)(1)(i) sub clause (C) of the Vest ing Act with similar words must also carry the same meaning.
It was emphasised that the KLR Act and the Vesting Act constitute a Code of agrarian reform and they are cognate legislations with the Vesting Act as supplementary to the KLR Act.
The expression 'any other agricultural crop ' used in both the enactments while defining 'private forest ' must therefore, receive the same meaning as otherwise, it would lead to anomalies.
This is the line of argument for the appellant.
This whole line of arguments with respect, is hard to accept.
As Felix Frankfurter, J. said: "Legislation is a form of literary composition.
But construction is not an abstract process equally valid for every composition, not even for every composition whose meaning must be judicially ascertained.
The nature of the composition demands awareness of certain presuppositions .
And so, the significance of an enactment, its antecedents as well .,as .its later history, its relation to other enactments, all may be rele vant to the construction of words for one purpose and in one setting but not for another.
Some words are confined to their history; some are starting points for history. 'Words are intellectual and moral currency.
They come from the legislative mint with some intrinsic meaning.
Sometimes it remains unchanged.
Like currency, words sometimes appreciate or depreciate in value".
The learned Judge further stated: "Legislation has an aim; it seeks to obviate some mischief, to supply an inadequacy, to effect a change of policy, to formulate a plan of government.
That aim, that policy is not drawn, like nitrogen, out of the air; it is evinced in the language of the statute, as read in the light of other external manifestations of purpose.
That is what the Judge must seek and effectuate.
" (See: Courts, Judges and Politics by Walter F. Murphy: 'Some Reflections of the Reading of Statutes ' by Felix Frankfurter).
Judicial interpretation given to the words defined in one statute does not afford a guide to construction of the same words in another statute unless the Statutes are pari materia legislations.
In the present case, the aim and object of the two legislations are not similar in the first place.
Secondly, the definition of 'private forest ' in the KLR Act is not just the same as the definition of 'private forest ' in the Vesting Act.
Indeed, there is a vast differ ence in between the two.
The object of the Vesting Act was to provide for the Vesting in the Government 409 of private forest in the State of Kerala for the assignment thereof to the agriculturists and agricultural labourers for cultivation.
The preamble of the Act provides that such agricultural lands should be so utilised as to increase the agricultural production in the State and to promote the welfare of the agricultural population in the State.
Two separate definitions have been provided in the Vesting Act; the first is applicable to the Malabar district where the Madras Preservation of Private Forests Act, 1949 ( 'The MPPF Act ') applied immediately before the appointed day; the second concerned is in relation to the remaining areas in the State of Kerala.
The definition of 'private forest ' as is applicable to the Malabar district is not general in terms but limited to the areas and lands to which the MPPF Act applied and exempts therefrom lands described under sub clauses (A) to (D).
This significant reference to MPPF Act in the definition of 'priVate forest ' in the Vesting Act makes all the difference in the case.
The MPPF Act was a special enactment.
It was enacted by the erstwhile Madras State to preserve the private forests in the district of Malabar and erstwhile South Kannara District.
The Scheme of that Act has been explained by several decisions of the Kerala High Court and that scheme appears to be that if the land is shown to be private forest on the date on which the MPPF Act,came into force, it would continue to be a forest, even if there was subsequent replantation.
(See: State of Kerala vs Anglo American D.T.T. Co., and State of Kerala vs K.C. Moosa Haji, (supra) (FB) AIR at 154 155.) It is not in dispute that the lands involved in this appeal were all forests as defined in the MPPF Act, 1949 and continued to be so when the Vesting Act came into force in 1971.
In Malankara case (supra), this Court was not con cerned with the lands covered by the MPPF Act, and denuded thereafter of forest growth and cultivated with fresh re plantation.
Therefore, it seems inappropriate to transplant the meaning accorded to 'private forest ' from the KLR Act to the Vesting Act.
That wide concept cannot fit into the new legal source.
In State of Kerala vs Gwalior Rayon Sm.
(Wvg.) Co. Ltd.; , 1, this Court while upholding the constitutional validity of the Vesting Act has observed that the Forest Lands in the State of Kerala has attained a peculiar character owing to the geography and climate and the evidence available showed that the vast areas of these forests are still capable of supporting a large agricultural plantations.
That much is clear from the following observa tions (at 683): "It is therefore, manifest that when the legislature stated in 410 the preamble that the private forests are agricultural lands, they merely wanted to convey that they are lands which by and large could be prudently and profitably ex ploited for agricultural purposes.
" There is thus a judicial recognition of the distinction between private forest in Travancore Cochin area in Kerala State and the private forest in Malabar district.
This distinction by itself is sufficient to dispel the anomalies suggested by counsel for the appellant.
Look at the definition.
Sub clause (A) refers to gardens or nilams as defined in the KLR Act. 'Garden ' means lands used principally for growing coconut trees, arecanut trees or pepper vines or any two or more of the same. 'Nilam ' means lands adapted for the cultivation of paddy.
Sub clause (B) deals with what may be called plantation crops, cultiva tion of which in the general sense would be cultivation of agricultural crops.
Such agricultural crops are by name specified.
Lands used for any purpose ancillary to such cultivation or for preparation of the same for the market are also included thereunder.
Next follows sub clause (C).
It first refers to lands which are principally cultivated with cashew or other fruit bearing trees.
It thus refers to only the fruit beating trees.
It next refers to 'lands which are principally cultivated with any other agricultural crop.
If the legislature had intended to use the term 'agricultur al crop ' in a wide sense so as to take within its fold all species of trees fruit beating or otherwise, it would be unnecessary to have the first limb denoting only the cashew or other fruit beating trees.
It may be significant to note that the Legislature in each sub clause (A) to (C) has used the words to identify the different categories of crops or trees.
The words used in every sub clause too have "associa tions, echoes and overtones".
While construing such words, judges must, as Felix Frankfurter, J., said "retain the associations, hear the echoes and capture the overtones" (supra p. 414).
When so examined and construed, we do not discover any indication that the words in sub clause (C) "any other agricultural crop" are quite wide enough to comprehend all species of trees including eucalyptus planta tions.
It is said, indeed rightly, that in seeking legislative intention, judges not only listen to the voice of the legis lature but also listen attentatively to what the legislature does not say.
Let us compare the wordings in Section 3 with those of sub clause (C).
Under Section 3 sub section (1), private forests vest in Government.
Sub clause (2) however, excludes from such vesting lands within the ceiling limits 411 applicable to an owner if they are under his personal culti vation.
Cultivation for this purpose "includes cultivation of trees or plants of any species".
The explanation to sub section (2) makes this aspect beyond doubt.
The lands used for the cultivation of any kind of tree, fruit bearing or yielding only timber or pulp are not vested under Section 3 sub section (2).
The legislature has thus excluded from vesting under Section 3 sub section (2) the trees of every variety.
But while providing for exclusion under sub clause (C), the legislature could not have again thought of trees or plants of all kinds.
It seems to have considered only fruit bearing trees and not of other species.
If the inten tion was otherwise, the sub clause(C) would have been in a different language.
In our view as a matter of pure construction untram melled by authority, the words used in the latter part of sub clause (C) could not take within its fold all varieties of trees and it could exclude only fruit bearing trees.
This is also the conclusion of the High Court not only in the impugned judgment under appeal but also in the subse quent two decisions; Malayalam Plantation Limited and K.C. Maosa Haji cases (supra).
In the result the appeal fails and is dismissed.
In the circumstances of the case, however, we make no order as to costs.
T.N.A. Appeal dis missed.
| The petitioner was detained under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act by an order dated 13.7.1989.
The facts lead ing to his arrest and detention are: On 7.7.1989 officers of Directorate of Revenue Intelli gence New Delhi intercepted a Maruti Car in which one Mahesh Kumar Chauhan and three others were present.
On search of the car no recovery was made on the spot, but later on when the car was thoroughly rummaged in presence of two independ ent witnesses and the occupants of the car, 206 foreign marked gold biscuits of ten tolas each were recovered from the cavities of the car meant for fitting speakers in the rear portion of the car.
The occupants did not give any explanation for the possession of the.
said gold biscuits.
However on personal search of Mahesh, a slip was recovered which contained a telephone number and Mahesh Kumar in his statement admitted that he was to hand over the smuggled goods to one Vijay Kumar.
Mahesh Kumar admitted that he was visiting Dubai frequently to bring consumer goods and orna ments for being sold in the local market.
According to him one Avtar Singh who was engaged in smuggling of foreign gold biscuits, agreed to sell the gold biscuits to Mahesh Kumar on commission.
He also gave some details about Avtar Singh.
Similarly Vijay Kumar also made a statement.
From these statements it is also revealed that petitioner Sanjeev Kumar Aggarwal had made arrangements for selling the gold bis cuits.
the residential premises of the petitioner was searched and he was taken into custody.
The petitioner made a statement before the officers of the Directorate or Reve nue Intelligence.
On the basis of the material the detaining authority passed an order of detention on 13.7.1989 which was served on the petitioner on 24.7.1989.
The grounds of detention were also served on the petitioner in time.
318 The petitioner challenged his detention by means of a writ petition before the Delhi High Court, and having re mained unsuccessful, he filed this petition for Special Leave to Appeal against the order of the Delhi High Court dismissing his writ petition.
Before this Court two main points have been urged viz., (i) that there is a total non application of mind by the detaining authority inasmuch as he has failed to note that the petitioner was in jail, and that there was no possibili ty of his being released, and the failure to consider this aspect on the part of the detaining authority renders his detention invalid; and (ii) that the detaining authority has not applied his mind properly in .rejecting his representa tion and that there was delay in serving the detention order on him.
Dismissing the petition, this Court, HELD: Whether an order of detention can be passed against a person who is in detention or in jail, will always have to be determined in the circumstances of each case.
No decision of this Court has gone to the extent of holding that no order of detention can validly be passed against a person in custody under any circumstances.
[326B] Section 3(3) of the Act lays down that for the purpose of Article 22(5) of the Constitution the order should be served as soon as possible but ordinarily not later than five days and in exceptional circumstances and for reasons to be recorded in writing, not later than fifteen days from the date of detention.
[320B] In the instant case from the record it was submitted that it took quite sometime for translating the documents to Hindi and Gurmukhi, and the Court is satisfied that there are valid and sufficient reasons for delay in serving the detention order.
[327C D] Abdul Razak Abdul Wahab Sheikh vs
S.N. Sinha, Commisioner of Police, Ahmedabad & Anr., ; ; Binod Singh vs District Magistrate, Dhanbad, ; ; Vijay Kumar vs State of Jammu & Kashmir, ; ; Ramakrishna Rawat vs District Magistrate, Jabalpur, ; Smt.
Shashi Aggarwal vs State of U.P. & Ors., ; ; Ramesh Yadav vs District Magistrate, Etah & Ors.
, ; Rameshwar Shaw vs District Magistrate Burdwan, ; ; Alijan 319 Mian vs District Magistrate, Dhanbad, [1983] 4 S.C.C. 301; N. Meera Rani vs Government of Tamil Nadu & Anr., ; Shri Dharmendra Suganchand Chelawat etc.
vs Union of India & Ors., J.T. Sat Pal Man chanda vs
M.L. Wadhawan & Ors., Crl.
Writ No. 333 of 1986, decided by Delhi High Court on 30.10.1986.
|
ition (Civil) No. 11704 of 1985 etc.
(Under Article 32 of the Constitution of India).
R.P. Gupta for the Petitioners.
V.C. Mahajan, Ms. A. Subhashini, B.K. Prasad, C. Ramesh and Hemant Sharma for the Respondents.
The Judgment of the Court was delivered by RANGANATHAN, J.
These two writ petitions were filed as 452 early as 1985 but they are still at the admission stage.
However notices have been issued to the respondents and we have heard counsel on both sides.
As both the writ petitions relate to the same subject matter, it will be convenient to dispose of them by a common order and we proceed to do so.
The controversy in these writ petitions is as to the proper principle for determination of seniority in the Transportation (Traffic) Department of the Indian Railways.
Though the petitioners in Writ Petition No. 11704 of 1985 belong to the Central Railways, the principle to be deter mined will have application over all nine Railways in the country and is being agitated in Writ Petition No. 12802 of 1985 by the All India Train Controller 's Association.
The officials with whom we are concerned in these writ petitions occupy Group C (Class III) posts in the above department.
The question of their inter se seniority has become material for their promotion to Group B (Class II) posts which really form the lowest rung of the management cadre.
75% of the vacancies arising in Group B (Class II) posts in each de partment are filled in by promotion on selection from among Group C (Class III) employees of the department on the basis of seniority cum merit.
The difficulty in determination of the inter se seniority arises because there are different streams of eligible Group C (Class III) employees, occupying posts with different scales of pay, who have to be consid ered for selection to Group B posts.
As only those employees from the different streams can be considered as fail within the zone of consideration as per seniority and as the zone of consideration is determined with reference to the number of vacancies in Group B for which the selection is held at any point of time, the position of an employee in the com bined seniority list of all the streams assumes great impor tance.
We are concerned with the selections for appointment to three Group B posts in the Operating Branch of the Traffic and Transportation Department.
These are: Assistant Operat ing Superintendent, Assistant Traffic Superintendent and Station Superintendent.
The four Group C streams which have the avenue of promotion to the above group B posts are: (1) The Control Stream, which consists of the Chief Controller, the Deputy Chief Controller and the Section Controller; (2) The Traffic Stream, which comprises of the Station Master, the Yard Master, Traffic Inspector and Signaller; (3) The Ministerial Stream, consisting of office staff and (4) The Running Stream, consisting of Guards.
We are here concerned only with the question of inter se seniority between the employees in the Control 453 Stream and those in the Traffic Stream.
As mentioned earlier, there are several grades and scales of pay prevailing in each of these streams.
It will be helpful to tabulate them here for convenient reference: Control Stream Post Scale of Pay Pre 1931 I Pay II Pay III Pay Commission Commission Commission Chief Controller360 500 450 575 450 575 8501040/1200 Deputy Chief 400 500 300 400 370 475 700 900 Controller Section Con troller Grade I 300 350 260 350 335 425 ) ) 470 750 Grade II 200 300 200 300 270 380 ) Traffic Stream Post Scale of Pay Pre 1931 I Pay II Pay III Pay Commission Commission Commission Station Supdt./120 165/) Jn.
S.M./CYM/80 160/) 300 400 450 575 700 900 TI (Higher) 200 300 ) Stn.
Master (Higher) Dy.
Supdt.
80 160 300 400 370 475 550 750 /YM/TI (Lower) SM (Lower) 60 65 80 170 130 225 330 560 Grade and others 80 120 100 185 205 330 425 640 150 225 200 300 250 380 455 700 260 350 335 425 550 750 The zone of consideration of the employees for promotion is fixed in the order of the combined seniority of the employees from the 454 different streams.
In each of the streams, seniority depends on the grade.
Normally, employees working in a higher grade on a regular basis are senior to those working in the lower grade.
To illustrate, the highest Group C grade was Rs.450 575 followed by the grades Rs.370475, Rs.335 485, Rs.335 425 and so on.
(We are referring here to the old pay scales which have since been revised).
The employees working in the grade Rs.450 575 were therefore placed on the top followed by those in the grades of Rs.370 475, Rs.335 485 and Rs.335 425.
This principle for determination of inter se seniority worked very well till 31.12.72 as the higher scales of pay in both the streams was the same.
According to the department, it became difficult to follow this principle when, consequent on the acceptation and implementation of the recommendations of the Third Pay Commission with effect from 1.1.
1973, higher or lower scales of pay came to be fixed in respect of certain posts which were having the same scale of pay upto 31.12.1972.
For example, the scale of pay of Rs.450 575 held by Station Masters and Traffic Inspectors in the Traffic Stream upto 31.12.72 was upgraded to the scale Rs.700 900 with effect from 1.1.73.
On the other hand, in the case of Chief Controllers of the Control Stream, the same scale of Rs.450 575 was replaced by a scale of Rs.840 1040/1200.
Similarly, in the case of Station Masters and Inspectors in the grade of Rs.370 475 in the Traffic Stream, the replacement was by the scale of RS.550 750 while in the case of Deputy Chief Controllers on the scale Rs.370 475, the replacement scale was Rs.700 900.
Thus the Control Stream gained an upper hand in the matter of seniority and, consequently, of promotions.
In an attempt to restore some balance and parity between the employees of the different streams, the Railway Board issued certain instructions on 26th October, 1976.
As per these instructions, the inter se seniority of the staff working in the grade of Rs.700 900 and the grades,above it in the different streams was to be based on the total length of service rendered by an employee in all the grades.
This did not satisfy all sections of the staff and difficulties were also experienced in applying the instructions.
For example, a Deputy Chief Controller, who had been in the grade of Rs.370 475 upto 31.12.72 and was placed on Rs.700 900 from 1.1.73, gained an advantage over his collegues in the other stream viz. the Station Masters and Traffic In spectors.
The matter was therefore reconsidered and modified instructions were issued on 11.7.77.
According to these instructions, for purposes of drawing out the combined seniority of Group C employees from different streams, the services rendered in the top most scale in one stream would be considered equivalent to the service rendered in the 455 top most scale in the other streams, even though the top most scale in the two streams might be different.
This rule also produced anomalies.
For example, if in one stream, the top most scale was Rs.700 900, in another Rs.550 750 and in yet another Rs.840 1040, the length of service rendered in all these grades by the employees was stated to be the basis to determine the combined seniority.
Thus an employee having ten years of service in the top most scale of Rs.550 750 in one stream would rank senior to another having slightly less than ten years of service in the top most scale of Rs.700 900 in another stream.
The Department, therefore, issued revised instructions in August '78/ February '79.
As per these instructions, where the top most scale prior to 1.1.1973 has been replaced by two different scales after 1.1.73, one higher and the other lower, service rendered in the lower scale will be notionally stepped up as if the service had been rendered in the higher scale.
For example, the grade of Rs.450 575 was replaced by Rs.8401040 for the Controllers and Rs.700 900 for Station Masters and Traffic Inspectors.
While drawing up the combined seniority, the service ren dered in the grade of Rs.700 900 by the Station Masters and Traffic Inspectors was to be treated as service rendered in the grade Rs.840 1040.
Similarly, the pre revised grade of Rs.370 475 had given rise to two scales, namely, Rs.700 900 and Rs.550 750, and, in that case, the service rendered in the grade Rs.550 750 was notionally treated as rendered in grade Rs.700 900 for drawing up the combined seniority.
This principle did not work well either.
It seems the circulars of 11.7.77 and August '78 were quashed by the Bombay High Court in W.P. No. 55 of 1980 by its order dated 14.12.83.
In the meantime, detailed consideration of the issues was undertaken in consultation with the federations of organised labour and it was finally decided that the combined seniori ty for purposes of Group B selection should be determined on the basis of the total length of service rendered by employ ees in any or in all the grades commencing from Rs.700 900 and above and these instructions were issued on 5.3.83.
In January 1984.
further instructions were issued which, while maintaining the principles laid down on 5.3.83, provided protection to senior employees, who got superseded in a stream for promotion to the higher nongazetted grade in that stream.
For example, if an employee in grade of Rs.700 900 supersedes one of his seniors in promotion to the grade of Rs.840 1040 within the stream, he would control the seniori ty of the employee whom he had superseded.
Such a superseded employee would be put to hardship when the combined seniori ty is drawn up along with employees from the other streams for purposes of selection to Group B.
In order to avoid the situation of a senior employee being subjected to such disability, instructions were issued on 6.1.
1984 that 456 an employee who supersedes his senior will be credited with the service of the senior whom he had superseded.
Aggrieved by these experiments which, according to them, only resulted in chaos and confusion, 45 employees of the Control Stream filed WP 11704/85 when, on the issue of a list published by the administration on the basis of these instructions on 15.6.85, they found themselves excluded from the panel of staff to be taken into consideration for promotion to Group B. They prayed that the circular of 6. 1.84 and the follow up action culminating in the Selection List be also set aside.
The petitioners are also aggrieved by a different set of steps initiated by the Railway Board.
A further discrimina tion against the control stream, it is alleged, has resulted from two circulars issued by the Board, one on 29.7.83 and the other on 26.12.83.
These circulars envisaged, what the petitioners call, "mass upgradations" and what the circulars call a "restructuring of the cadres".
The earlier of the two circulars applied to the traffic stream.
In so far as is relevant for our present purposes, the "upgradation" was on the following lines: Name of Existing Revised Revised Percentage Rema post scale Designation Scale of posts marks Yard Masters 455/700 Dy.
Chief 700 900 20% /Asst.
Yard Yard Masters Masters Yard Masters 550 750 Chief Yard 840 1040 10% of Masters post in scale of 700 900 Station 455 750 Station 700 900 10% Master Supdt.
Station 350 750 Station 840 1040 10% of Supdt./ Supdt.
posts in Station scale of Master Rs.700 900 2 Separate 700 900 43.5% This we Cadre of (10% of told, has Station these 'll not been 457 Masters/ carry scale given Asstt.
of Rs.840 effect Station 1040 to.
Superin tendants The circular stated that this restructuring will be with reference to the sanctioned strength as on 1.8.83.
The staff, who will be placed in the revised grade in terms of these orders will be eligible to draw pay on the higher grades from 1.8.83 with benefit of proforma promotion from 1.8.82.
It was made clear that the benefit of proforma fixation will be admissible only to the staff who are placed in the vacancies arising directly as a result of these restructuring orders.
The date of proforma fixation has later been shifted, from 1.8.82 to 1.8.83 by a circular dated 13.7.
The second circular, dated 20.12.1983 pertained to the control stream.
The restructuring was on the basis of the cadre strength as on 1.1.84 and the revision of scales was also to be effective from 1.1.84.
The pattern of restruc ture, in so far as it is relevant for our present purposes, is set out thus in the schedule: Existing Grade & Posts Existing Revised percentage percentage (i) 470 750 Not laid 15 (Section Controllers) down (ii) 700 900 " 58 ] (Dy.
Chief Controllers) ] ] ] ] (iii) 340 1040 " 23 ] 85 (Chief Controller ] Gr. II) ] ] ] (iv) 840 1200 " 4 ] (Chief Controller Gr.
II) 458 It was made clear that the cadre has been restructured keeping in view additional duties, responsibilities and heavier workload in some of the charges and that the revised grades were to be given to employees eligible therefore on such considerations in their existing positions.
Reference must be made to two more circumstances before we deal with the contentions urged before us.
The first is that the circular of 6.1.84 referred to above which, accord ing to the counsel for the petitioner introduced the princi ple of "chance seniority" was quashed by the Central Admin istrative Tribunal by its order dated 5.2.1988.
A copy of this order has not been made available to us.
Secondly, consequent on the said decision of the Tribunal, the Railway Board issued certain instructions on 22.12.88 which reads thus: "Consequent upon the judgment given by the Central Adminis trative Tribunal in connection with the above, matter has been reviewed in consultation with the representatives of the recognised organised federations and it has been decided in partial modification of the orders contained in Railway Board 's letters . . dated 28.5.83 and 6.11.84 that the integrated seniority of group C employees for promotion to group B posts should be determined on the basis of con solidated length of non fortuitous service rendered in the grade of Rs.700 900/2000 3200 and above ignoring promotions to the grade of Rs.840 1040/23753500 . " It may be mentioned that the petitioners were fully satisfied with the circular of 5.3.83 which according to them, gave effect to rule 321 of the Indian Railway Estab lishment Manual.
According to them, this equilibrium was unjustifiably disturbed by the circulars issued subsequent ly.
The principal grievance urged before us by learned counsel for the petitioner was that, as a result of the restructuring orders read with the order reckoning all persons working in salary grades of Rs.700 900 and above as one group for determining seniority, the control stream staff has been adversely affected to a considerable extent.
He points out that persons in the Traffic Stream who entered the supervisory grade of Rs.470 750 were placed in the grade of Rs.700 900 much later than the dates when those in the control stream entered the corresponding scale of Rs.455 700 will gain seniority over the latter.
He asks us to compare for this purpose the positions of officers in the control stream with seniority positions Nos. 90 to 190 with those occupying seniority positions Nos.
61 to 208 in the traffic 459 stream.
He contends that the staff employed in the control stream lose both monetarily as well as in terms of seniority by being placed in the scale of Rs.700 900 only w.e.f. 1.1.84 as compared to those of the traffic stream who re ceive such promotions and pay scales w.e.f. 1.8.83.
Leaving aside the question of monetary benefits for the time being, the submissions are: (i) that seniority should be determined on the total length of service as envisaged in rules 202 and 321 of the Indian Railways ' Establishment Manual, which read thus: "202 For selection to class II posts or Civil Engg.
Trans portation (power) and Mechanical Branch, Transportation (traffic) and Commercial, Signal and Telecommunication, Electric and Stores Department.
(i) Only permanent staff will be eligible (ii) all staff in grade Rs.335 425 and above provided they have rendered a minimum of 3 years non fortuitous service after reaching the stage of Rs.335 either in those grades or in a lower grade.
321 Relative Seniority of employees in an intermediate grade belonging to different seniority units appearing for a selection/non selection post in higher grade. 'When a post (selection as well as non selection) is filled by considering staff of different seniority units, the total length of continuous service in the same or equivalent grade held by the employee shall be determining factor for assign ing inter seniority irrespective of the date of confirmation of an employee with lesser length of continuous service as compared to another unconfirmed employees with longer length of continuous service.
This is subject to the proviso that only non fortuitous service should be taken in account for this purpose." (ii) that if all the grades in the eligible groups are to be clubbed together, the seniority should be reckoned as and from the date of entry into the lowest of the grades in Group 'C ' (class III) viz. Rs.470 750/455 700; 460 (iii) that even if the mass upgradations are to be upheld on principle, they must be directed to be made effective from the same date (whether it be 1.8.83 or 1.1.84) in respect of both the streams and should not be on different dates.
(iv) that the whole object and purpose of these circulars is to obliterate the effect of the recommendations of the Third (and even the Fourth) Pay Commissions, after assessing the duties and responsibilities of the staff in both streams, that the staff on the control stream deserve higher scales although these recommendations have been duly accepted and implemented by the Government.
According to the learned counsel, the traffic stream has a huge strength and a powerful union and, pressurised by their numbers, the Railway Board is attempting to take away, indirectly, the benefits given to the control stream by the Pay Commission 's recommendations and that too at a point of time when a fresh Pay Commission was in the process of being constituted.
Counsel also alleged that the All India Con trollers ' Association (which has filed writ petition No. 12802 on similar lines) has not been consulted at any stage and these circulars are being issued at the behest of the unions of the traffic staff and despite the representations and protests of the comparatively weaker union of the con trol staff.
On the other hand, Sri V.C. Mahajan, learned counsel for the Union of India, submitted that the petitioners have not placed any data before the Court to make out a case of discrimination.
He submits that after the Writ Petitions were filed in 1985 the Department has issued a circular dated 27.12.88 and a combined seniority list in March 1989.
The petitioners have not taken any steps to amend the Writ Petition to challenge this circular or this list or to show in what respect and to what extent the rights of the peti tioners have been prejudiced by the restructuring orders.
Turning to the "restructuring" circulars, counsel points out that in this case the Government has been hard put to evolve an equitable formula for fair promotional chances to the two sets of people in question.
Various attempts had been made earlier but they were not successful.
Finally the present formula has been evolved after consulting all the concerned unions.
It is not correct, he says, to say that the deci sions have been taken without consulting the representatives of the Controlling Stream.
It is submitted that, having regard to the few posts at the top of the scale, the Traffic Stream had been complaining of inadequate promotional oppor tunities.
The 461 Government has tried to solve the problem as best as it could and counsel refers to the following basic features behind the restructuring: (i) The date of entry into grades Rs.700 900 above will be taken as the starting point to reckon seniority.
This is the effect of the circular of 22.22.88 the validity of which has not been challenged in the petition.
(ii) Considering the large strength of employees in the Traffic Stream, viz. 4430, about 10% of the posts have been upgraded which will mean that about 443 persons will be in the above grades.
So far as the Control Stream is concerned, the percentage of posts in the above zone has been increased to about 35% of the 270 posts available with the result that about 211 people will be in the above grades.
As a result of the mass upgradation, a large percentage of people in the Control Stream immediately derive monetary benefits.
They have accepted these benefits and have been occupying the upgraded position since 1984 onwards.
(iii) The date of the upgradation in both the streams cannot be the same for the result of it would be that all the upgraded personnel will have seniority reckonable from the same date.
This being the position, their seniority will have to be based on the length of their services in the immediately lower scales or reckoned as from the date of their entry into the lowest of the Group C grades and this would, have revived the same problem which the Government was trying to solve.
That is why the Government fixed dif ferent dates for the two streams separated only by a short span of five months and this was neither unreasonable nor discriminatory.
Counsel submits that the Government was trying to forge out a solution that will be fair 'to both the streams and that the attempt of the petitioners to accept the upgrada tions of the scales in their stream but objecting to the other part regarding date of fixation should not be allowed to succeed.
He submits that if the petitioners were prepared to accept the same percentage of upgradation as the Traffic Stream persOnnel and give up the extra benefits received, the Government could reconsider the whole question afresh.
After hearing both counsel, we have reached the conclu sion that the materials before us are totally inadequate to come to any conclusion on the true impact of the circulars, In fact, to start with, we were 462 of the view that, in a matter like this, the proper remedy of the petitioners is to approach the Central Administrative Tribunal which has been set up for that very purpose.
But since counsel for the petitioners pleaded that the writ petitions have been pending here since 1985 and it would not be fair to the petitioners to sent them now to pursue that remedy, we heard the petitioners and the opposite parties at some length but, as will emerge from the above discussion, the exact position and impact of the circulars is very nebulous.
As pointed out by Sri Mahajan, the Department is trying to cope with the problem of giving fair promotional opportunities to two different streams which become eligible for promotion to Group B posts.
Since the counsel for the petitioner has stated that he has no quarrel with the circu lars of 5.3.83 and 22.12.88 and since the circular of 6.1.84 already stands quashed by the Central Administrative Tribu nal, the only grievance of the petitioners that survives is against the upgradation circulars.
Apart from the merits, there are three difficulties in considering the plea of the petitioners that the part of the two circulars fixing dif ferent dates of upgradation should alone be set aside: (a) The plea of the petitioners, if accepted, will affect a large number of persons in the traffic stream and even result in a number of reversions in all the Railways.
Though the petitioners have made some persons in the traffic stream working in the Central Railway parties, neither the persons likely to be affected in other parts of the country nor their union have been made parties.
(b) As discussed above, the circular of 20.12.83.
confers substantial benefits on members of the control stream.
A large number of them have been able to secure an upgradation to the scale of Rs.700 900 which, otherwise, may not have come to them for sometime, and they may or may not all be affected adversely by the date of upgradation.
It is also pointed out that upgradation in the traffic stream are subject to selection on the basis of a written test and viva voce, while the upgradations in the control stream are automatic based on seniority cum suitability.
It is, there fore, not clear even whether the All India Controller 's Union is speaking in one voice for all its members either for or against the circular of 20.12.83.
(c) As pointed out by Sri Mahajan, the Department has issued a seniority list in pursuance of its circular.
No attempt has been made to substantiate the grievances of the peti tioners by pointed factual references to that list.
463 Coming to the merits again, the inequity is not appar ant.
Having to deal with two different streams, differently placed, the Government has to find out an equitable solution and it has been groping towards it.
One method would perhaps have been to have fixed quotas for promotion from each of the streams but that is not necessarily the only method.
An alternative method is being attempted here and the princi ple that grades of Rs.700 900 and above should be considered together being conceded the Department is trying to give some weightage by granting upgradation to each stream based on its total strength in order to balance the promotional chances in both the streams.
It is possible that some indi vidual cases may be affected but no answer to the question whether any class discrimination has resuited can be given unless fuller details are available and the practical impact of the latest position is placed before us.
If a good number of persons in the control stream are benefitted monetarily despite the disadvantage to a few, in the matter of promo tion, it may be a question how far the Association of the Controllers will be able to make out a case of class dis crimination.
Even if we assume that the entire control stream would be adversely affected, the question will still remain whether the basis of differentiation is justified in the circumstances or amounts to arbitrary discrimination.
We express no opinion on these questions at this stage.
We would only say that, in the absence of adequate material before us, we are unable to reach any conclusion on the plea of discrimination.
We, therefore, dismiss the writ petition but we will leave it to the petitioners, if so advised, to move the Central Administrative Tribunal, with fuller facts and in the light of the latest developments, for appropriate relief after impleading all affected parties or their repre sentatives so that the entire picture may emerge and a just conclusion arrived at.
Y. Lal Petition dis missed.
| Constitution of India, Article 254. ' Repugnancy between the Parliamentary Act and the State Act in respect of mat ters, in the Concurrent List, Seventh Schedule When arises Karnataka Contract Carriages (Acquisition) Act, 1976 Whether repugnant to the .
Statutory interpretation Doctrine of pith and substance or dominant purpose Scope of Whether applicable to find repugnancy under Article 254 of the Constitution between Parliamentary and State laws in respect of matters in List 111.
Seventh Schedule to the Constitution.
The Karnataka Contract Carriages (Acquisition) Act, 1976 enacted by the State Legislature by taking aid of Entry 42 List III of the Seventh Schedule and Articles 31 and 39 (b) and (c) of the Constitution was reserved for consideration and received the assent of the President of March 11, 1976.
Section 4 of that Act provided for vesting of contract carriages along with the respective permits and/or certifi cates of registration issued under the in the State absolutely free from encumbrances.
Sub section (1) of section 14 prohibited applications for fresh permits or renewal of existing permits on or from the date of vesting.
Section 14(2) provided for abatement of all applications, appeals or revisions pending before the appro priate authority as on the notified date.
Sub section (1) of section 20 provided for cancellation of, notwithstanding anything in the 1939 Act, all contract carriage permits granted or renewed in respect of any vehicle other than a vehicle acquired under the Act or belonging to the State Road Trans port Corporation.
Sub section (2) entitled the Corporation to the grant or renewal of contract carriage permits to the exclusion of all other persons, while sub section (3) re strained the authority concerned from ?615 entertaining applications from persons other than the Corpo ration.
Section 73 of the (enacted to replace the 1939 Act) lays down the mode of application for a contract carriage permit.
Section 74(1) empowers the Regional Transport Authority to grant such permits.
Sub section (2) enumerates conditions that could be attached to such permit.
Sub section (3) empowers the State Government when directed by the Central Government to limit the number of contract carriages on the city routes.
Under section 80(1) such application could be made at any time.
Sub section (2) posits that a Regional Transport Authority shall not ordi narily refuse to grant such application.
Section 217(1) repealed all the laws which were inconsistent with the provisions of the Act.
The petitioners, a group of contract carriage operators who were denied permits that they had applied for under sections 73, 74 and 80 of the in view of the provisions of sections 14 and 20 of the Karnataka Contract Car riages (Acquisition) Act, 1976, filed writ petitions under Article 32 of the Constitution questioning the action of the R.T.A. It was contended that the provisions of sections 14 and 20 of the Karnataka Act were in direct conflict with the provi sions of sections 74 and 80(2) of the M.V. Act, 1988 in as much as while the Regional Transport Authority was enjoined by the said provisions of the 1988 Act ordinarily not to refuse to grant an application for permit of any kind, the said provisions of the Karnataka Act prohibited any person from applying for, and any officer or authority from entertaining or granting application for running any contract carriage in the State; that since the M.V. Act, 1988 was a later legis lation operating in the same area, it should be deemed to have impliedly repealed the provisions of sections 14 and 20 of the Karnataka Act even if the latter Act had received the assent of the President, in view of the proviso to sub clause (2) of Article 254 of the Constitution; that when there is a repugnancy under Article 254 of the Constitution, the doctrine of pith and substance does not apply, and even if some of the provisions of the State Legislation are in conflict with some of the provisions of the Central legisla tion, the conflicting provisions of the State legislation, will be invalid and that, therefore, their applications under sections 74 and 80 were maintainable without reference to the provisions of the Karnataka Act.
For the respondents it was contended that the Acquisi tion Act was made in exercise of the power under a different entry and was not on the same subject, therefore, the matter did not come within the ambit of article 254 of the Constitu tion, and that the Acquisition Act having been 616 reserved for consideration under article 254(2) and having received the assent of the President, it prevails over the Parliamentary Act in the State of Karnataka.
On the question: Whether there is repugnancy between the provisions of sections 14 and 20 of the Karnataka Contract Car riages (Acquisition) Act, 1976 and sections 74 and 80 of the and whether the doctrine of domi nant purpose and pith and substance is applicable while examining the repugnancy of the two statutes? Per Misra, J. (Concurring with Sawant, J.) 1.
There is no direct inconsistency between the Karnata ka Contract Carriages (Acquisition) Act, 1976 and the .
[631G H] 2.1 In cl.
(1) of article 254 of the Constitution it has been clearly indicated that the competing legislations must be in respect of one of the matters enumerated in the Con current List.
In the instant case, the State Act was an Act for acquisition and came within Entry 42 of The Concurrent List.
The Parliamentary Act on the other hand is a legisla tion coming within Entry 35 of the Concurrent List.
There fore, the said two Acts as such do not relate to one common head of legislation enumerated in the Concurrent List.
Clause (2) also refers to the law with respect to the same matter.
[628F; 629A] 2.2 Repugnancy between two statutes would arise if there is direct conflict between the two provisions and if the law made by Parliament and the law made by the State Legislature occupy the same field.
In the instant case, the State Act intended to eliminate private operators from the State in regard to contract carriages acquired under the existing permits, vehicles and ancillary property and with a view to giving effect to a monopoly situation for the State Under taking made provision in section 20.
The Parliamentary Act does not purport to make any provision in regard to acquisition of contract carriage permits which formed the dominant theme or the core of the State Act.
Nor does it in section 73 and section 74 indicate as to who the applicant shall be while laying down how an application for a contract carriage permit shall be made and how such a permit shall be granted.
Section 80 of the Parliamentary Act does contain a liberalised provision in the matter of grant of permits but even then there again the ancillary provision contained in section 20 of the State Act to effectuate acquisition does not directly run counter to the 1988 provision.
[630G; 631C] 617 There does not thus appear to be any repugnancy between the two Acts for invoking article 254 of the Constitution.
[631D E] Bar Council of Uttar Pradesh vs State of U.P. & Anr.
, ; ; Kerala State Electricity Board vs Indian Aluminium Company, [1976] 1 SCR 552; Deep Chand vs State of Uttar Pradesh & Ors., ; ; T. Barai vs Henry Ah Hoe & Anr., ; ; Hoechst Pharmaceuti cals Ltd. & Anr.
vs State of Bihar & Ors.
, ; ; Zaverbhai Amaidas vs State of Bombay, [1955] 1 SCR 799; M. Karunanidhi vs Union of India, ; and State of Karnataka & Anr.
vs Ranganatha Reddy & Anr. ; , referred to.
Per Sawant, J: 1.
There is no repugnancy in the provisions of sections 14 and 20 of the Karnataka Contract Carriages (Acquisition) Act, 1976 and sections 74 and 80 of the .
Hence the provisions of Article 254 of the Constitution do not come into play.
[652F; 636C] 2.1 Whenever repugnancy between the State and Central Legislation is alleged, what has to be first examined is whether the two legislations cover or relate to the same subject matter.
The test for determining the same is to find out the dominant intention of the two legislations.
If the dominant intention of the two legislations is different, they cover different subject matters.
If the subject matters covered by '.he legislation are thus different, then merely because the two legislations refer to some allied or cognate subjects they do not cover the same field.
The legislation to be on the same subject matter must further cover the entire field covered by the other.
[652C D] A provision in one legislation to give effect to its dominant purpose may incidentally be on the same subject as covered by the provision of the other legislation.
But such partial coverage of the same area in a different context and to achieve a different purpose does not bring about the repugnancy which is intended to be covered by Article 254(2).
Both the legislations must be substantially on the same subject to attract the Article.
[652E] Municipal Council Palai vs
T.J. Joseph & Ors., ; ; Tika Ramji & Ors.
vs State of U.P. & Ors.
, ; and State of Karnataka & Anr.
vs Ranga natha Reddy & Anr.
; , , referred to.
618 Ratan Lal Adukia vs Union of India, , distinguished.
2.2 In the instant case, the objects and the subject matters of the two enactments were materially different.
The Karnataka Act was enacted by the State Legislature for acquisition of contract carriages under Entry 42 of the Concurrent List read with Article 31 of the Constitution to give effect to the provisions of Articles 39(b) and (c) thereof.
The MV Act 1988 on the other hand was enacted by the Parliament under Entry 35 of the Concurrent List to regulate the operation of the motor vehicles.
They thus occupy different areas.
[636C, B C] 2.3 Unlike the MV Act 1988 which was enacted to regulate the operation of the motor vehicles, the object of the Karnataka Act was, not only the regulation of the operation of the motor vehicles.
Nor was its object merely to prevent the private owners from operating their vehicles with the exclusive privilege of such operation being reserved in favour of the State or the State Undertaking.
For if that were the only object, the same could have been achieved by the Transport Undertakings of the State following the spe cial provisions relating to State Transport Undertakings in Chapter IV A of the Motor Vehicle Act, 1939 which was in operation when the Karnataka Act was brought into force.
The very fact that instead the State undertook the exercise of enacting the Karnataka Act shows that the object of the State Legislature in enacting it was materially different i.e. to nationalise the contract carriage services in the State with a view to provide better transport facilities to the public and also to prevent concentration of wealth in the hands of the few and to utilise the resources of the country to subserve the interests of all.
[634D F; B C] 3.1 A comparison of the provisions of the MV Act, 1939 and MV Act, 1988 shows that the latter has merely replaced the former.
The special provisions relating to the State Transport Undertakings which are contained in Chapter VI of the MV Act, 1988 are pari materia with those of Chapter IV A of the MV Act, 1939 with only this difference that whereas under the old Act it was the State Transport Undertaking which had to prepare a scheme for running and operating the transport service by it in relation to any area or route or portion thereof exclusively, under the new Act such a scheme has to be prepared by the State Government itself.
There is no difference in the legal consequences of the schemes under the two enactments.
Both envisage the operation of the services by the State Transport Undertaking to the exclusion of the rest, and cancellation of the existing permits and compensation only for the deprivation of the balance of the period of the permit.
No acquisi 619 tion of the vehicles or the paraphernalia connected with such vehicles is envisaged as is the case under the Karnata ka Act.
[634G; 635E G] 3.2 Section 98 of the MV Act 1988 in terms clearly states (as did Section 68B of the MV Act 1939) that Chapter VI relating to the special provisions about the State Trans port Undertaking and the rules ' and orders made thereunder, shall have effect notwithstanding anything inconsistent therewith contained in Chapter V or in any other law for the time being in force or in any instrument having effect by virtue of any such law.
Sections 74 and 80 relating to the grant of the contract carriage permit and the procedure in applying for the grant of such permits respectively, are in Chapter V.
This means that when under Chapter VI, a scheme is prepared by the State Govt.
entrusting the contract carriage services in relation to any area or route or por tion thereof, to a State Transport Undertaking to the exclu sion complete or partial of other persons, the provisions of sections 74 and 80 would have no application, and the private transport operators cannot apply for the grant of contract carriage permits under section 80 nor can such permits be granted by the Transport Authority.
The MV Act 1988 thus also makes a provision for nationalisation of routes, and envisages a denial of permits to private operators when routes are so nationalised.
Hence it cannot be said that there was a conflict between the provisions of the Karnataka Act and the M.V. Act, 1988.
[637H; 638D] 4.
When the legislative encroachment is under considera tion the doctrine of pith and substance comes to the aid to validate a legislation which would otherwise be invalid for the very want of legislative competence.
When the repugnancy between the two legislations is under consideration, what is in issue is whether the provision of the State enactment though otherwise constitutionally valid, has lost its valid ity because the Parliament has made a legislation with a conflicting provision on allegedly the same matter.
If it is open to resolve the conflict between two entries in differ ent Lists, viz., the Union and the State List by examining the dominant purpose and therefore the pith and substance of the two legislations, there is no reason why the repugnancy under Article 254 of the Constitution between the provisions of the two legislations under different entries in the same List, viz. the Concurrent List should not be resolved by scrutinizing the same by the same touchstone.
What is to be ascertained in each case is whether the legislations are on the same matter or not.
In both cases the cause of conflict is the apparent identity of the subject matters.
The tests for resolving it therefore cannot be different.
[639E H] 620 Meghraj & Ors.
vs Allahrakhiya & Ors., AIR 1942 FC 27 distinguished.
Per K. Ramaswamy, J. (Dissenting) 1.
Section 14(1) of Karnataka Contract Carriages (Acqui sition) Act, 1976 to the extent of prohibiting to make fresh application for grant of permits to run the contract car riages other than those acquired under that Act and the embargo and prohibition created under section 20(3) thereof on the respective Regional Transport Authority in the State of Karnataka to invite/receive the application to consider the grant of permits to such contract carriages according to law, are void.
[686C D] 2.1 The Parliament and the legislature of a State derive their exclusive power to legislate on a subject/subjects in List I and List II of Seventh Schedule to the Constitution from article 246(1) and (3) respectively.
Both derive their power from article 246(2) to legislate upon a matter in the Concurrent List III subject to article 254 of the Constitution.
The entries in the three lists merely demarcate the legisla tive field or legislative heads.
Their function is not to confer powers on either the Parliament or the State Legisla ture.
[682E D] Subrahmanyam Chettiar vs Muttuswami Goundan., AIR 1941 FC 47; Governor General in Council vs The Reliegh Investment Co. Ltd., ; Harakchand Ratanchand Banthia vs Union of India; , AND Union of India vs
H.S. Dhillon; , , referred to.
2.2 Clause (1) of article 254 posits as a rule that in case of repugnancy or inconsistency between the State Law and the Union Law relating to the same matter in the Concurrent List occupying the same field, the Union law shall prevail and the State law will fail to the extent of the repugnancy or inconsistency whether the Union law is prior or later in point of time to the State law.
To this general rule, an exception has been engrafted in cl.
(2) thereof, viz., provided the State law is reserved for consideration of the President and it has received his assent, and then it will prevail in that State notwithstanding its repugnancy or inconsistency with the Union law.
This exception again is to be read subject to the proviso to cl.
(2) thereof, which empowers the Parliament to make law afresh or repeal or amend, modify or vary the repugnant State law and it became void even though it received President 's assent.
[659D F] 621 2.3 The question of repugnancy under Article 254 of the Constitution arises when the provisions of both laws are fully inconsistent or are absolutely irreconcilable and it is impossible to obey without disobeying the other, or conflicting results are produced when both the statutes covering the same field are applied to a given set of facts.
It matters little whether the provisions fall under one or other entry in the Concurrent List.
The substance of the same matter occupying the same field by both the pieces of the legislation is material and not the form.
The repugnancy to be found is the repugnancy of the provisions of the two laws and not the predominant object of the subject matter of the two laws.
The proper test is whether effect can be given to the provisions of both the laws or whether both the laws can stand together.
If both the pieces of legislation deal with separate and distinct matters though of cognate and allied character repugnancy does not arise.
[660A B; 675B C; 660C; 674H; 675A] Tika Ramji vs State of U.P., ; ; A.S. Krish na vs Madras State; , ; Prem Nath Kaul vs State of J &K, [1952] 2 Supp.
SCR 273; Bar Council of U.P.v.
State of U.P.; , ; Deep Chand vs State ofU. P., [1959] Supp.
2 SCR 8; State of Orissa vs
M.A. Tulloch & Co., ; ; State of Assam vs Horizon Union, ; ; State ofJ & K vs
M.S. Farooqi; , ; Kerala State Electricity Board vs Indian Aluminium Co., [1976] I SCR 552; Basu 's Commentary on the Constitution of India (Silver Jubilee Edition) Volume K 144; Clyde Engineer ing Co. vs Cowburn, ; Hume vs Palmer, ; ; Brisbane Licensing Court; , ; Colvin vs Bradley Bros. Pvt. Ltd., ; ; In Re Ex Parte Maclean, ; ; Wenn vs Attorney General (Victoria), ; ; O ' Sullivan vs Noarlunga Meat Co. Ltd.; , ; O 'Sullivan vs Noarlunga Meat Co. Ltd., and Blackley vs Devon dale Cream (Vic.) Pvt. Ltd.; , , referred to.
2.4 Section 14 read with section 20 of the Acquisition Act freezed the right of a citizen to apply for and to obtain permit or special permit to run a contract carriage in terms of the permit and monopoly to run a contract carriage was conferred on the S.T.U., Karnataka.
But the M.V. Act, 1988 evinces its intention to liberalise the grant of contract carriage permit by saying in section 80(2) that the Regional Transport Authority "shall not ordinarily refuse to grant the permit".
It also confers the right on an applicant to apply for and authorises the Regional Transport Authority to grant liberally contract carriage permit except in the area covered by section 80(3) and refusal appears to be an exception, that too, obviously for reasons to be recorded.
It may be 622 rejected if the permit applied for relate to an approved or notified route.
The M.V. Act accords the right, while the Acquisition Act, negates and freezes the self same right to obtain a permit and to run a contract carriage and prohibits the authorities to invite or entertain an application and to grant a permit to run contract carriage.
The Act and the relevant rules cover the entire field of making an applica tion in the prescribed manner and directs the Regional Transport Authority to grant permit with condition attached thereto to run contract carriages vide sections 66(1), 73, 74 and 80.
Thus the existence of two sets of provisions in the 59 of 1988 and Acquisition Act 21 of 1976 is sufficient to produce conflicting results in their opera tion in the same occupied filed.
The two sets of provisions run on collision course, though an applicant may waive to make an application for a permit.
Thereby there exists the operational incompatibility and irreconcilability of the two sets of provisions.
Sections 14(1) and 20(3) of the Acquisi tion Act are repugnant and inconsistent to sections 73, 74 and 80 of the Act.
By operation of proviso to article 254(2) of the Constitution, the embargo created by sections 14(1) and 20(3) of the Acquisition Act to make or invite an application and injuction issued to Regional Transport Authority prohibiting to grant contract carriage permit to anyone except to S.T.U., Karnataka within the State of Karnataka became void.
[682H; 683E] 3.1 The Parliament with a view to lay down general prin ciples makes law or amends the existing law.
The State Legislature still may feel that its local conditions may demand amendment or modification of the Central Law.
Their reserve power is article 254(2).
After making the Act 59 of 1988 the power of the State Legislature under article 254(2) is not exhausted and is still available to be invoked from time to time.
But unless it again enacts law and reserves it for consideration and obtains the assent of the President afresh, there is no prohibition for the petitioners to make applications for the grant of contract carriage permits under the Act and consideration and grant or refusal thereof according to law by the concerned Regional Transport Author ity.
[685E; 686B] 3.2 The Karnataka State Legislature is, therefore, at liberty to make afresh the law similar to sections 14(1) and 20(3) of the Acquisition Act with appropriate phraseology and to obtain the assent of the President.
[686B] 4.
Parliament may repeal the State law either expressly or by necessary implication but Courts would not always favour repeal by implication.
Repeal by implication may be found when the State law is repugnant or inconsistent with the Union law in its scheme or opera:ion.
The principle would be equally applicable to a question under 623 Article 254(2) of the Constitution.
In the instant case, section 217(1) of the Union law does not expressly repeal sections 14(1) and 20(3) of the State law.
They are repugnant with the Union law.
[676C D; 670E F; 669F] Zaveribhai vs State of Bombay, [1955] 1 SCR 799; M. Karunanidhi vs Union of India, ; ; T. Barai vs Henry Ah Hoe; , and M/s Hoechst Pharmaceuti cals Ltd. vs State of Bihar, ; , referred to.
For the applicability of the principle that special law prevails over the general law, the special law must be valid law in operation.
Voidity of law obliterates it from the statute from its very inception.
In the instant case, since sections 14(1) and 20(3) are void the said principle is not applicable.
[683F] Justiniano Augusto De Peidada Barreto vs Antonia Vicente De Fonseca & Ors., [ ; , distinguished.
6.1 The doctrine of pith and substance or the predomi nant purpose or true nature and character of law is applied to determine whether the impugned legislation is within the legislative competence under articles 246(1) and 246(3) of the Constitution, and to resolve the conflict of jurisdiction.
If the Act in its pith and substance fails in one List it must be deemed not to fail in another List, despite inciden tal encroachment and its validity should be determined accordingly.
The pith and substance rule, thereby, resolves the problem of overlapping of "any two entries of two dif ferent Lists vis a vis the Act" on the basis of an inquiry into the "true nature and character" of the legislation as a whole and tries to find whether the impugned law is substan tially within the competence of the Legislature which enact ed it, even if it incidentally trespasses into the legisla tive field of another Legislature.
[680C; 677F; 678A1 6.2 The doctrine has no application when the matter in question is covered by an entry or entries in the Concurrent List and has occupied the same field both in the Union and the State Law.
It matters little as in which entry or en tries in the Concurrent List the subject matter falls or in exercise whereof the Act/provision or provisions therein was made.
The Parliament and Legislature of the State have exclusive power to legislate upon any subject or subjects in the Concurrent List.
The question of incidental or ancillary encroachment or to trench into forbidden field does not arise.
The determination of its 'true nature and character also is immaterial.
[680C D] 624 Prafulla Kumar vs Bank of Commerce, Khulna, AIR 1947 PC 60; State of Bombay vs
F.N. Balsara; , ; Atiabari Tea Co.Ltd.
vs State of Assam, ; and Meghraj & Ors.
vs Allaharakhiya & Ors., AIR 1942 FC 27, referred to.
|
Appeal No. 527 of 1967.
Appeal from the judgment and decree dated August 2nd/3rd, 1965 of the Mysore High Court in Regular First Appeal No. 147 of 1958.
M. Natesan and K. Jayaram, for the appellant.
section section Shukla, for respondents Nos. 1 to 4.
The Judgment of the Court was delivered by Hedge, J.
This appeal by certificate arises from the deci sion of the Mysore High Court in R.A. No. 147 of 1958 on its file.
The plaintiff is the appellant.
The main question that arises for decision in this appeal is as to the share to which the plaintiff is entitled in the properties held to be partible by the High Court.
One other minor contention had also been urged which will be referred to and dealt With at the appropriate stage.
The facts as found by the High Court and which are no more in dispute may now be stated.
The appellant is the adopted son of one Ranga Rao alias Ramachandra Rao who died in 1912.
He was adopted by the 202 said Ranga Rao 's widow Seethabai on September 18, 1955.
The geneology of the family of Ranga Rao is as follows KRISHNA RAO DESHPANDE (Died 1934) MARRIED RADHABAI (Died 1935) Ranga Rao alias Hanumantha Rao Ramchandra Rao (went out of the (died 1912) family by adoption).
Married Seethabai (Defendant No. 1) Govinda (Adopted on 18 9 1955) Plaintiff Lakshmana Rao (died 6 9 1952) Married Venkubai Ambabai lst wife 2nd wife (died 1904) Napppa Nagamma Ansuyabai (Nagesh) Deft.
7 Deft.
2 Krishnaji Lakshamana Gundappa Deft.3 (Deft. 4) Deft. 5.
Hanumantha Rao went out of the family having been adopted into some other family.
There was a partition between Krishna ' Rao and Lakshmana Rao, the only two existing coparceners at that time, in 1933.
After partition Krishna Rao is said to have bequeathed his properties to some of his relations as per his will dated November 8, 1934.
Subsequently there was a further partition between Lakshmana Rao and defendant No. 2 Nagappa on 203 February 14, 1946.
Lakshmana Rao died in 1952.
Asmentioned earlier, the plaintiff was adopted on September 18, 1955 and the suit from which this appeal arises was instituted in1956 by the plaintiff appellant represented by his natural father ashis ' next friend as he was a minor on the date of the suit.
The trial court granted the plaintiff half share in the properties that were held to be that of the family.
The High Court modified the decree of the trial court in certain respects.
It is not necessary to refer to all the modifications made by the High Court.
We shall refer only to those modifications which are challenged in this appeal.
The High Court reduced the share awarded to the plaintiff from half to 1/3rd of the properties held by it to be partible.
The correctness of this decision is questioned.
The only other question is whether the High Court was justified in setting aside the trial court 's decree awarding a sum of Rs. 15001 to the plaintiff.
Before proceeding to examine the appellant 's contention that he is entitled to a half share in properties held to be partible, it would be convenient to dispose of his contention relating to the money decree.
The trial court came to the conclusion that out of the consideration of Rs. 6500/ received under the sale deed Exh. 177, the second defendant had not accounted for Rs. 3000/ .
Hence the plaintiff is entitled to a half share therein.
The trial court as well as the High Court have found that the sale in question is valid as the same was effected to meet family necessities.
The appellant did not seek an accounting from the 2nd defendant.
No case was made out for requiring the 2nd defendant to account in respect of the amounts received by him as the karta of the family, nor did the plaintiff aver in his plaint that there was any cash in the hands of the 2nd defendant.
Hence the High Court was justified in reversing the decree of the trial court directing the defendant to pay to the plaintiff a sum of Rs. 1500/ .
This leaves us with the question as to the share to which the plaintiff is entitled in the partible properties.
Even before the plaintiff was adopted into the family, there was a partition between Krishna Rao and Lakshmana Rao.
The genuineness of that partition is no more in dispute.
After the partition Krishna Rao became absolutely entitled to his share of the properties and hence he was entitled to deal with that property in the manner he thought best.
As mentioned earlier he had bequeathed his properties to others.
But it was urged on behalf of the appellant that his adoption dates back to the date of the death of his adoptive father, Ranga Rao.
By a fiction of law, he must be deemed to have been in existence, when Krishna Rao and Lakshmana Rao divided the properties amongst themselves.
The said partition having been effected without his joinder, the same has to be 204 ignored.
Hence he is entitled to a half share in the properties.
Alternatively, it was contended that the plaintiff is entitled to get by succession half share in the properties that fell to the share of Krishna Rao.
Before proceeding to examine the decided cases referred to at the time of the arguments, let us proceed to examine the question on first principles.
It is true that by a fiction of law well settled by decided cases that an adopted son is deemed to have been adopted on the date of the death of his adoptive father.
He is the continuator of his adoptive father 's line exactly as an aurasa son and an adoption, so far as the continuity of the line is concerned, has a retrospective effect.
Whenever the adoption may be made there is no hiatus in the continuity of the line.
From that it follows that the appellant must be deemed to have been adopted in 1912.
Consequently he is deemed to have been a coparcener in his adoptive father 's family when Krishna Rao and Lakshmana Rao partitioned the properties.
The partition having been effected without his consent, it is not binding on him.
But from this it does not follow that Krishna Rao and Lakshmana Rao did not separate from the family at the time of the partition.
It was open to Krishna Rao and Lakshmana Rao to separate themselves from the family.
Once they did separate, the appellant and his adoptive mother alone must be deemed to have continued as the members of the family.
It is true that because the plaintiff 's adoptive mother was alive, the family cannot be said to have come to an end on the date of partition.
But that does not mean that Krishna Rao and Lakshmana Rao did not separate from the family.
the partition took place in 1933, the appellant even if he was a coparcener on that day could have only got 1/3rd share.
We, fail to see how.
his position can be said to have improved merely because he was adopted subsequent to the date of partition.
It is true that because he was not a party to the partition, he is entitled to ask for reopening of the partition and have his share worked out without reference to that partition.
But so far as the quantum of his share is concerned, it must be determined after taking into consideration the fact that Krishna Rao and Lakshmana Rao separated from the family in 1933.
The alternative contention of the appellant referred to earlier is also untenable firstly because Krishna Rao disposed of his share of the properties by means of a will and secondly even if he had not disposed of his: share of the property, the same would have devolved on Lakshmana Rao by succession and the property that had once vested by succession cannot be divested as in that property the plaintiffs adoptive father had no right of his own.
The doctrine of relation back is only a legal fiction.
There is no justification to logically extend that fiction .
In fact the plaintiff had nothing to do with his adoptive father 's family when Krishna Rao died.
On that day 205 his adoptive father was not alive.
The devolution of Krishna Rao 's property must be held to have taken place at the very moment Krishna Rao died.
We know of no legal fiction under which it can be said to have been in a suspended animation till the plaintiff was adopted.
This takes us to the decided cases.
A long line of decisions has firmly laid down that an adoption dates back to the date of the death of the adoptive father.
It is not necessary to refer to the catena of decisions on this point.
Suffice it to refer to the decision of this Court in Shrinivas Krishnarao Kango vs Narayan Devji Kango and Ors.(1).
But that fiction by itself does not help the plaintiff.
That fiction merely enables him to establish that he must be deemed to have been in existence on the date of the death of his adoptive father.
Division of status need not be effected by bilateral agreement.
It can be effected by an unilateral declaration by a coparcener if the same is properly communicated.
Therefore it was within the power of Krishna Rao and Lakshmana Rao to separate themselves from the family and in fact they did so in 1933.
We see no basis for the contention of the appellant that he can ignore the events that took place in 1933.
He can no doubt ignore the actual partition by metes and bounds effected by Krishna Rao and Lakshmana Rao and ask for a repartition of the properties but his adoption by itself does not and cannot re unite the divided family.
It is one thing to say that an adopted son can ignore a partition effected prior to his adoption, which affects his rights and it is a different thing to say that his adoption wipes out the division of status that had taken place in his family.
Reliance was placed on the decision of the Bombay High Court in Ramchandra Shrinivas and Ors.
vs Ramkrishna Krishnarao (2 ) in support of the proposition that the plaintiff can enter into the adoptive family on the basis that the family is a joint and undivided Hindu family and his rights in the property of the family must be decided on that basis.
It is true that this decision lends some support to the argument that despite the partition effected in 1933, the plaintiff can work out his rights on the basis that the family remains joint.
The conclusion of the High Court that the adopted son is entitled to enter his adoptive family on the basis that the family continues as a joint and undivided Hindu family and that his rights in the family property must be decided on that basis does not appear to be supported by any Hindu law text or by any decision of this Court or the Judicial Committee.
The decision of the Judicial Committee in Anant Bhikappa Patil, Minor vs Shankar Ramchandra Patil(3), relied on by the High Court did not consider that question.
It is true that some of the observations of Chief Justice Stone in Bajirao and Ors.
vs Rant (1) ; (2) A.I.R. 1952 Bam.463 (3) 70 I.A. 232.
206 krishna(1), does support the view taken by the Bombay High Court.
But the question that arose for decision in that case was whether a person adopted, after a partition in his adoptive father 's family cannot divest the properties that had vested in the other coparceners.
It may be noted that in the course of his judgment, the learned Chief Justice observed : "There can, in our opinion, be no question of a partition whereby the partitioning male members take away all the family property from a joint Hindu family unless the family can be wholly disrupted and finally brought to an end.
We regard it as clear that a Hindu family cannot be finally brought to an end while it is possible in nature or law to add a male member to it.
The family cannot be at an end while there is still a potential, mother if that mother in the way of nature or in the way of law brings in a new male member.
The existing male members can separate off; they can take away their share.
They cannot prejudice by partitioning the rights of the after bom male member whether the birth is natural or legal.
If in point of fact, before his arrival, the existing coparceners have partitioned the new arrival can obtain a re opening of the partition and thereby get his share.
How that share is to be calculated in various circumstances need not be decided here.
" These observations in our opinion lay down the ratio of the decision and that ratio does not support the conclusion reached by the Bombay High Court.
The decision of the Full Bench of the Madras High Court, in K. R. Sankaralingam Pillai and anr.
vs Veluchami Pillai, Minor (2) , relied on by Bombay High Court merely laid down that an adopted son is entitled to reopen partition entered into in the family of his adoptive father, before his adoption.
That position is no more open to question and was not questioned in this appeal.
We are only concerned with the quantum of share to which the plaintiff is entitled.
Our attention has not been invited to any decision which supports the view taken by the Bombay High Court.
We see no justification to accept that view.
Further the interest of the society is not advanced by engrafting one more fiction to the already existing fiction that an adopted son is deemed to have been born on the date of death of his adoptive father.
Acceptance of the new fiction canvassed on behalf of the plaintiff is bound to create various complications.
Hindu widows in the past were proverbially long lived because of 'the child marriage system.
Adoptions might take place and have taken place more than half a century after the death of the adoptive (1) I.L.R. (2) I.L.R. 207 father.
Meanwhile the other coparceners might have dealt with the family property on the basis of the then existing rights.
They might have alienated the property.
We see no justification to create chaos by inventing a new fiction unknown to Hindu law texts nor authorised by stare decisis.
This Court in Shrinivas Krishnarao Kango 's case(1) has laid down that the fiction that an adoption relates back to the date of the death of the adoptive father applies only when the claim of the adoptive son relates to the estate of the adoptive father.
But where the succession to the property of a person other than the adoptive father is involved, the principle applicable is not the rule of relation back but the rule, that inheritance once vested cannot be divested.
It is true that the question that arose for decision in that case was whether an adoptive son can claim to succeed to a collateral 's estate, divesting the property that had already vested in someone else.
But the rule laid down by this Court in that case is much wider than the limited question that arose for decision and the reasons given in support of that rule support our conclusion.
The rights of an adopted son cannot be more than that of his adoptive father.
If the plaintiff 's adoptive father was alive in 1933 when the partition took place, he could not have obtained anything more than 1/3rd share in the family properties.
It passes our comprehension how the plaintiff could acquire a greater right than his adoptive father could have had if he had been alive on the date of partition and that he could have got if he had been adopted prior to that date.
In our judgment the plaintiff 's claim for a half share in the family properties is unsustainable.
In the result ibis appeal fails and the same, is dismissed with costs.
S.C. Appeal dismissed.
(1) [1955] 1.S.C.R. 1.
| The appellant, a public Limited Company, had a Cement Factory and at a distance, a limestone quarry.
it had two standing orders for the workman employed in the factory and in the quarries.
Upto April, 1967, both sets of standing orders provided for superannuation of the workmen at the age of 55 with a stipulation for extension upto 60 years if a workman was found fit to work.
After a dispute at the Cement Factory, a settlement was arrived at by which it was agreed that the standing order applicable to the Cement Factory be amended by raising the age of superannuation from 55 to 58 without making any provision for further extension and accordingly, the amendment was made.
Nothing was, however, done with regard to the superannuation age of the employees at the quarry.
On April 3, 1968, the appellant intimated the incline driver at the quarry that he had reached the age of retirement on 3 4 68 and accordingly he was given notice of retirement in terms of the standing order.
On April 30, 1968, the said workman wrote to the appellant that although service records showed him to be 55 years of age, his proper age according to his horoscope, was about 50 years and so his service records should he amended accordingly, but the appellant refused.
The Union took up the cause of the worker and requested the Regional Labour Commissioner to put the worker back to work.
On a reference under section 10(1) (d) of the Industrial Disputes Act, the Tribunal took the view that the Cement Factory and the quarries were two units of the same establishment and so, there should be a uniform set of rules for the workmen of the Company as a whole.
In the result, the Tribunal held that there could not be a lower age limit of superannuation for workmen at the quarry specially in view of the fact that workmen were admittedly transferred from one unit to the other.
As a consequence, the Tribunal quashed the order of dismissal and directed the reinstatement of the workman with full back wages.
It was contended by the Company before this Court that the Tribunal was 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 different ages of superannuation.
According to the appellant, the dispute between the parties was whether or not the Company was justified in coming to the conclusion that 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, Setting aside the award, HELD : The Tribunal had not taken care to examine what was the dispute between the parties when the government made the order of reference.
No dispute was ever raised either by the workman or the Union that the age of superannuation governing the workman was not 297 55 years.
The finding of the Tribunal that the Company could not fix a lower age limit of superannuation for the workman at the quarries went beyond the scope of reference.
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.
[302 C] The Sindhu Resettlement Corporation Ltd. vs The Industrial Tribunal, Gujarat & Ors. ; referred to.
|
Appeals Nos. 890 to 892 of 1968.
Appeals by special leave from the judgment and order dated November 24, 1967 of the Allahabad High Court in Special Appeals Nos.
476 to 478 of 1965.
section T. Desai, H. K. Puri and B. N. Kirpal, for the appellant (in all the appeals).
Sukumar Mitra, section C. Manchanda, R. H. Dhebar, R. N. Sachthey and B. D. Sharma, for the respondent (in all the appeals).
From time to time the Company purchased and installed machi nery of the value of Rs. 75 lakhs for its factory.
In proceedings for assessment of income tax, the Company was allowed, in computing its income from business for the assessment years 1950 51, 1951 52 and 1952 53 "initial depreciation" aggregating to Rs. 15,91,51 1/ in respect of new machinery installed in the relevant previous years.
The Company was also allowed "normal depreciation I ' at the appropriate rates.
In the assessment year 1956 57 the aggregate of all depreciation allowances including "initial depreciation" exceeded the original cost of the machinery, but the Income tax Officer on the written down value of the machinery computed at Rs. 16,48,053/ allowed Rs. 2,59,236/ as normal depreciation.
In so computing the normal depreciation the Income tax Officer apparently lost sight of clause (c) of the proviso to section 10(2) (vi) of the Income tax Act, 1922.
Depreciation allowance was also allowed in the assessment years 1957 58 and 1958 59 as a percentage on the appropriate written down value in those years.
The Income tax Officer on November 20, 1964, issued notices of re assessment for the three years under section 148 of the Indian Income tax Act, 1961, which had replaced the Act of 1922.
The Company filed under protest fresh returns and objected to the issue of the notices of reassessment.
The Company also moved petitions in the High Court of Allahabad for writs quashing the three notices,.
contending inter alia, that the notices issued more than four years after the expiry of the years of assessment were barred.
At the hearing of the petitions counsel for the Company conceded that under proviso (c) to section 10 (2) (vi) of the Indian Income tax Act, 1922, in the form in which it stood in the assessment year 1956 57 and thereafter, excessive depreciation was in fact allowed to the Company.
It was also common ground that by virtue of cl.
(c) to Explana 594 tion 1 of section 147 of the Income tax Act, 1961, income having been made the subject matter of excessive relief under the Indian Income tax Act, 1922, the income chargeable to tax had escaped assessment.
But it was urged that the income had not escaped assessment "by reason of the omission or failure on the part of the assessee to disclose fully and truly, all material facts necessary for assessment of that year", for (1) the Indian Income tax Art, 1922, and the forms of returns prescribed under the rules did not require the, assessee to disclose that initial depreciation had been allowed in the earlier years; and (2) that in any event the Income tax Officer knew that initial depreciation had been allowed to the Company in the years 1950 51, 1951 52 and 1952 53.
R. section Pathak, J., who heard the petitions held that the Company committed no error in failing to take into account the initial depreciation while entering the written down value in column (2) of Part V of the return.
But the learned Judge held that it was.
incumbent upon the Company to inform the Income tax Officer of all material facts necessary to make out its claim to depreciation and it was not open to the Company to set out only those facts which exaggerated its claim : the Company was bound to disclose all material facts which went to show what the true amount of the allowance to which it was entitled.
The learned Judge accordingly rejected the petitions.
The order passed by Pathak, J., was confirmed in appeal under the Letters Patent.
By cl.
(vi) of sub section
(2) of section 10 of the Income tax Act, 1922, as amended by Act 8 of 1946, in computing the profits or gains.
of business, profession or vocation carried on by him, an assessee was entitled to allowances not only of normal depreciation but also initial depreciation at the rates set out in cls.
(a), (b) & (c) in respect of buildings which had been newly erected, or the machinery or plant being new had been installed after the 3 1st day of March, 1945.
It was, however, expressly enacted that the initial depreciation was not deductible in determining the written down value for the purpose of cl.
Allowance for initial depreciation was therefore not to be taken into account in determining the written down value for determining the normal depreciation.
But on that account proviso (c) to section 10 (2) (vi) was not modified.
The written down value of the machinery of the, Company in the year 1956 57 was Rs. 16,48,053, but 'for the application of cl.
(c) of the proviso to section 10(2) (vi) the initial depreciation allowed in the years 1950 51, 1951 52 and 1952 53 had to be taken into account.
The Income tax Officer inadvertently failed to take into account the initial depreciation, and the Company was allowed normal depreciation in the year 1956 57 in excess of the amount permissible under proviso (c) to section 10(2) (vi).
The 595 Income tax Officer later sought to rectify the error and to bring to tax the income which had escaped tax.
Before R. section Pathak, I., it was contended that the definition of written down value" in section 10(5) (b) applies wherever the expression is used in section 10(2) and on that account the Company in seting out the written down value in column (2) of Part V of the return was obliged to take into account all the depreciation actually allowed to it including the initial depreciation and as the Company computed the written down value only by deducting the normal depreciation and not the initial depreciation, it failed to ' disclose fully and truly all material facts necessary for the purpose of assessment.
This argument was not accepted by the learned Judge.
But he was still of the opinion that the Act imposed upon the Company a duty to disclose all material facts which went to show the true amount of the allowances to which it was entitled, and the Company by failing to disclose that initial depreciation had been allowed in three earlier years, the Company had failed to disclose fully and truly all material facts necessary for assessment, and on that account section 147 ( 1 )(a) was attracted and the, notice was properly issued.
In appeal, the High Court observed that the "only question for consideration" was whether the Income tax Officer was justified in issuing a notice under section 148 of the Income tax Act, 1961.
After stating that there was apparently "a mistake and error on the side of the Company as well as the Income tax Officer", the, Court observed that the Income tax Officer could reasonably comer to the conclusion that it was due to the omission and failure on the part of the assessee in disclosing fully and truly all material facts necessary for the assessment that the error was committed by the Income tax Officer as a result of which some income had es caped assessment.
The High Court then observed : "It is difficult to hold that the Income tax Officer while issuing the notices under Act could not reasonably hold the assessee was responsible for assessment.", and held that the notices were not Section 34(1) (a) of the Income tax Act, 1922, provided: " (1) if (a) the Income tax Officer has reason to believe that by reason of the omission or failure on the part of an assessee to make a return of his income under section 22 for any year or to disclose fully and truly all material facts necessary for his assessment for that year, 596 income, profits or, gains chargeable to income tax have escaped assessment for that year, or have been under assessed, or assessed at too low a rate, or have been made the subject of excessive relief under the Act, or excessive loss or depreciation allowance has been computed, or he may proceed to assess or re assess such income, profits or gains or re compute the loss or depreciation allowance; and the provisions of this Act shall, so far as may be, apply accordingly as if the notice were a notice issued under that sub section :" Section 34 confers jurisdiction upon the Income tax Officer to 'issue a notice in respect of the assessment beyond the period of four years, but within a period of eight years, from the end.
of the relevant year, if two conditions exist (1) that the Income tax Officer has reason to believe that income, profits or gains chargeable to income tax had been under assessed; and (2) that he has also reason to believe that such "under. assessment" had occurred by reason of either (i) omission or failure on the part of an assessee to make a return of his income under section 22, or (ii) omission or failure on the part of an assessee to disclose fully and truly all material facts necessary for his assessment for that year.
These ,conditions are cumulative and precedent to the exercise of jurisdiction to issue a notice of re assessment : Calcutta Discount Co. Ltd. vs Income tax Officer, Companies District 1, Calcutta and Anr.
(1) In deciding the appeal, the High Court held that the Income tax Officer did in fact decide that the income had escaped assessment, but the High Court did not consider whether the income escaped assessment by reason of omission or failure on the part of the Company to disclose fully and truly all material facts necessary.
for assessment.
The judgment of the High Court is set aside and the case is remanded for determination of the question whether by reason of the omission or failure on the part of the Company to disclose fully and truly all material facts necessary for assessment of the Company for the three years in question, any income, profits or gains chargeable to income tax have escaped assessment or the ,Company has been given excessive depreciation allowance in computing its income.
Costs of these appeals will be costs in the High Court.
One hearing fee.
Appeal allowed and case remanded.
| The Respondent Girasdars in the State of Saurashtra mortgaged their lands with possession with the appellants, who paid the land revenue and other dues.
By the Saurashtra Land Reforms Act (25 of 1951), the, rights of the Girasdars were extinguished, and the tenants of Girasdars became occupants of land held by them.
The Land Reforms Act provided for the Mamlatdar to allot land to a Girasdar for personal cultivation.
The special Mamlatdar declared the lands in dispute to be Khalsa and full assessment had to; be taken, and that there was no need to grant 'any occupancy rights.
The Saurashtra Agricultural Debtors Relief Act, 1954 was enacted scaling down the debts and for providing for rest oration of their property, to the debtors.
Thereupon the respondents applied.for adjustment of their debt to the Court having jurisdiction under the Debtors Relief article The ' appellants relied on the order of the Special Mamlatdar declaring the lands as Khalsa and contended that the lands having been declared as Kholsa, the respondents had lost their rights therein.
HELD : The rights of the respondents Girasdars in this case were not extinguished under the Land Reforms Act and it was open to the court exercising jurisdiction under the Debtors Relief Act to scale down the debt and provide the restoration of the land in possession of the mortgagees to, the mortgagors on taking fresh account between the parties and directing.
payments by one party to the other.
The Saurashtra Land Reforms Act aimed at regulating the relationship of persons in position of Landholders and their tenants, and to enable the tenants to become the real owners of the soil under direct tenancy from the State.
It was not meant to extinguish or affect the rights of Landholders as mortgagors unless the persons in occupation had become tenants either by contract or by operation of law.
No adjudication of the rights of the debtors and creditors inter se was done.
All that the Special Mamlatdar decided and had jurisdiction to decide under the Land Reforms Act was whether the respondents could be given occupancy certificates or allotted any land Gharkhed and the Special Mamlatdar merely ordered that the lands being Khalsa full assessment had to be taken in respect of them and there was no need to grant occupancy rights.
In order to get such occupancy rights the appellants had to show that they had become tenants which they could not be under the provisions of section 6 of the Land Reforms Act.
The fact that they had all along paid the revenue and other dues to the State, if any, would not clothe them with tenancy rights.
That apart, it has not been shown that the respondents were awarded any compensation in respect of the 691 Khalsa lands given in mortgage to the appellants.
The occupancy certificates, if any, given by the Special Mamlatdar to the appellants could not under the provisions of the Land Reforms Act extinguish the title of the respondents.
[695 H; 696 H]
|
tition Nos.
43 of 1981, 51 53, 415 18/81, 5465 5562/83, 1751 52/81 and 7763 7890 of 1983.
676 Dr. L. M. Singhvi, B. Kanta Rao, Lakshmi Kant Pandy and J. Eswara Prasad for the Petitioners.
M. section Ganesh, Ms. Lata Krishnamoorty and T.V.S.N. Chari for the Respondent.
The Judgment of the Court was delivered by DESAI, J.
Should article 32 of the Constitution lend its assistance to petitioners in this group of petitions so that the poor in Andhra Pradesh can be successfully deprived of their staple simple breakfast ? Even an imaginary marginal dent in the profits of the hoteliers stirs it into action by an easy resort to a writ petition under article 32 and an ex parte stay which itself is success even if the petition ultimately fails because in the meantime the measure which may possibly affect their profits is kept under suspended animation and the profit being continuously derived from scattered consumers is not refundable and the unjust enrichment is enjoyed with impunity.
This case amply illustrates the point.
Hoteliers of Andhra Pradesh raised a hue and cry when the Government of Andhra Pradesh the first respondent enacted and proclaimed in exercise of the powers conferred by Sec. 3 of the (1955 Act for short) read with the notification of the Ministry of Agriculture and Irrigation dated June 9, 1978, the Andhra Pradesh Catering Establishments (Fixation and Display of Prices of Foodstuffs) Order.
1978 (1978 Order for short) dated September 8, 1978 whereby it was made obligatory for the catering establishments to display the prices of all foodstuffs served by the establishment and simultaneously fixed the maximum price of seven items of food comprising the poorman 's menu in the State of Andhra Pradesh.
The seven items enumerated in the Schedule appended to the 1978 Order include idli, vada, upma, sada dosa, puree, coffee, tea and a rice plate (scheduled items for short).
3 of the Order prescribed maximum prices of the scheduled items of food and cl. 4 makes it obligatory to display in English and principal language of the area the weight or measure and price of every item of foodstuff offered for sale in the establishment.
There were consequential provisions such as power to issue directions, power to call for information, power of entry, search & seizure and power to grant exemption as also power to amend the Schedule.
A clarificatory notification was issued on October 3, 1978 giving certain directions.
677 The Schedule and the rates set out therein were modified by the Amending Order dated December 11, 1980.
The amendment catered to an upward revision of the prices.
It seems some further negotiations took place between the Minister of Civil Supplies and Labour on the one hand and hoteliers on the other which led to a notification dated January 5, 1981 (1981 Order for short) giving further upward revision in maximum price of scheduled items and the scheduled items were reduced from 7 to 6 deleting rice place.
Ignoring this latest order which replaced the earlier orders, the petitioners approached this Court and obtained an ex parte stay of the implementation of Orders dated September 5, 1978 and December 11, 1980.
In fact, but for the intervention by the Court staying the operation of earlier orders, the order dated January 5, 1981 was not stayed yet effectively the petitioners succeeded in putting into cold storage the price fixation order leaving them free to charge any price unhampered and uninhibited by any governmental action.
Dr. L.M. Singhvi, who led on behalf of the petitioners made two submissions which have nothing to do with the validity or legality of the impugned Orders.
He submitted that the Court should give a direction to the State Government to re examine the prices of inputs and overhead charges so as to arrive at such maximum price of the scheduled commodities as to ensure a reasonable return on the investment which would render the restriction on the fundamental right to carry on trade, reasonable and satisfy article 19 (1) (g) of the Constitution.
He next submitted that there are certain directions in the 1978 and 1981 orders which are impossible of compliance and, therefore, the petitioners should be heard before they are compelled to implement the conditions.
Neither of the submissions has any impact on the validity of the impugned Orders.
It may, however, be pointed out how the petitioners suppressing material facts succeeded in obtaining an ex parte stay order.
In the counter affidavit filed by one Mr. D. Muralikrishna, Director of Civil Supplies, it was stated that after the Order dated December 11, 1980 was issued the hoteliers resorted to some agitation which led to the Minister of Civil Supplies calling a meeting of the hoteliers.
What transpired at this meeting may be extracted from the counter affidavit: "The Minister for Civil Supplies therefore convened a meeting at Hyderabad on 31.12.80 with the representatives of hoteliers all over the State and the Joint Collectors.
At the said meeting all the issues involved were thoroughly 678 discussed.
After prolonged discussions, the hoteliers of the districts have agreed unanimously for reducing the prices in respect of 6 items of foodstuffs excluding meals and an undertaking to that effect was signed by the hoteliers at 1.30 a.m. on 1.1.1981.
" A copy of the undertaking is produced at Annexure 'B ' to the counter affidavit which inter alia also provided that the rates of the scheduled items determined with the consent of the hoteliers will be reviewed after three months.
What is now demanded is that the State Government should examine the prices of inputs and overhead charges and determine afresh the maximum prices of the scheduled items, which was very much an integral part of an over all agreement between the State Government and the hoteliers.
After suppressing this material fact from the Court in the petition, the petitioners obtained an ex parte stay order on January 12, 1981 and this was suppression of such a material fact as would disentitle the petitioners to any relief at the hands of this Court.
That apart review at reasonable interval is implicit in any price fixation measure.
The second submission that the petitioners be heard to point out the impossibility of complying with some of the conditions of the Orders is merely to be stated to be rejected.
If the real bone of contention was the maximum price of scheduled items which was to be thrashed out by discussion, it is not possible to accept the submission that the petitioners would not have put forth their grievances about the impossibility of complying with some of the conditions of the impugned orders.
There is not a whisper about it in the agreement Annexure 'B ' and we do not find anything very unusual or impracticable in the conditions prescribed in the impugned orders.
Mr. B. Kanta Rao who appeared for some of the petitioners urged that the State Government is not competent to issue any price control measure in respect of cooked food because the which confers power to issue orders in respect of essential commodities does not confer any power to issue any order in respect of cooked food.
3 of confers power on the Central Government by an order to provide for regulating or prohibiting the production, distribution and supply and trade in essential commodity or for securing their equitable distribution and availability at fair prices.
The power to fix price of essential commodity is implicit in the power conferred by of the Act and what is implicit in Sec.
3 (1) is made explicit by cl.
(c) of sub section (2) of Sec. 3 which provides that an order made under Sec. 3 (1) may provide (c) for controlling the price at which essential commodity may be bought or sold.
Clause (a) of Sec.
2 defines 'essential commodity ' to mean any of the items which include. (v) foodstuffs, including edible oilseeds and oils.
The submission is that the expression 'foodstuffs ' in its etymological and grammatical sense would mean raw foodstuffs or appropriately called food grains such as wheat, rice, jawar, bazra, maize etc.
but not cooked food which is a perishable commodity.
We see no justification for giving a restricted meaning to the expression 'foodstuffs '.
If power to control prices of raw foodstuffs such as rice or wheat is conferred by Sec. 3, we see no justification for that power not comprehending within its fold the power to regulate prices of articles made out of such raw foodstuffs.
Expression such as 'foodcrops ' 'spices ' and 'condiments ' indicate different species of articles of food but the general expression 'foodstuffs ' was interpreted to include spices and condiments also.
In the State of Bombay vs Virkumar Gulabchand Shah(1) this Court construed the expression 'foodstuffs ' in cl.
(3) of the Spices (Forward Contract Prohibition) Order of 1944 read with Sec. 2 (a) of the Essential Supplies (Temporary Powers) Act, 1946 to include turmeric.
After examining the definition of expression 'foodstuffs ' in Oxford English Dictionary and Webster 's International Dictionary and some decisions bearing on the subject, this Court held that the expressions 'food ' and 'foodstuffs ' can be used in both a wide and a narrow sense and that the circumstances and background can alone determine which is proper in any given case.
After examining the object and the intendment underlying enactment of Essential Supplies (Temporary Powers) Act, 1946, this Court held that if turmeric is a commodity essential to the life of the community it must be covered by the expression 'foodstuffs '.
Accordingly, it was held that the expression 'foodstuffs ' has been used in a wider sense in 1946 Act.
It may be recalled that the was enacted for the control of the production, supply and distribution of and trade and commerce in essential commodities.
It has the same object as the 1946 Act and therefore, the expression 'foodstuffs ' in 1955 Act must receive the same construction.
If that be so, the expression 'foodstuffs ' must obviously include cooked food also.
Further the expression 'food ' has generally been understood to mean nutritive material absorbed or taken into the body of an 680 organism which serves for purposes of growth work or repair and for the maintenance of the vital process.
What human beings consume is styled as food and what animals consume is described as animal feed.
This distinction has to be borne in mind.
Expression 'foodstuffs ' is made of two expressions, 'food ' plus 'stuff '.
In other words, the stuff which is used as food would be foodstuff.
Therefore, foodstuff is that which is taken into the system to maintain life and growth and to supply waste of tissue.
If the raw foodstuff with a view to making it consumable by human beings undergoes a change of its condition by the process of cooking, the derivative is none the less foodstuff.
If raw rice is foodstuff, does rice when boiled in water cease to be foodstuff.
As the Chinese by an accidental fire in a hut where there were pigs learnt the advantage of consuming cooked food in place of raw food, the submission of Mr. Kanta Rao would make us march backward by centuries and be a disgrace to modern culinary article And 'food crop ' is another expression defined in the 1955 Act.
Therefore, the expression 'foodstuff ' as used in the 1955 Act comprehends cooked food.
The contention of Mr. Kanta Rao, therefore, must be negatived.
It was next contended that the maximum price of scheduled items fixed under the impugned orders is economically unprofitable and the same have been arrived at without scientifically examining the price of inputs and overhead charges and the reasonable return on investment and therefore, the exercise of fixing maximum price suffers from the vice of arbitrariness and must be declared unconstitutional as being violative of article 14.
While canvassing the submission, some attempt was made both on the side of the petitioners as well as on the side of the State to take us through the labyrinth of the tables drawn up by both side showing prices of inputs and overhead charges.
We declined to be involved in the vortex of this cost accountant 's exercise as we are neither experts of the subject nor we consider it necessary to undertake this exercise.
The argument proceeded that the prices of inputs have escalated so high that the maximum prices determined by the impugned orders have become uneconomical.
For this malaise, petitioners have to thank themselves because it was an integral part of their agreement with the Minister of Civil Supplies on December 31, 1980 that the maximum prices fixed by the impugned orders would be re examined on the expiration of the three months from the date of the agreement.
Instead of honoring this agreement, the petitioners within a span of 12 days rushed to this Court and obtained ex parte stay order wholly suppressing the fact that the orders 681 impugned in these petitions have already been replaced by the latest order dated January 5, 1981.
Petitioners who have behaved in this manner are not entitled to any consideration at the hands of the Court.
In order to illustrate how the Court is not the forum for scientifically structuring prices of commodities, it may be pointed out that the petitioners in their price structure tables have added in respect of each scheduled item 24% of wages.
Totalling the wages for seven items the wage bill accumulates at 175%.
And that is equally true of other overhead charges.
Add to this numerous other items of food sold by petitioners in their establishments and the utter unsustainability of their claim becomes manifest.
We would however, reject the contention about the mechanics of price fixation on the short ground that petitioners, ordinarily do not serve only the scheduled items, but they have large establishments catering to various tastes and delicacies.
No price fixation order need guarantee profit to an establishment in respect of each unit of article served or sold.
It is the over all picture in the trade or commerce that needs to be examined.
Petitioners have not shown that in their over all turnover they have since the promulgation of impugned orders suffered losses.
And this situation never fructified because the 1978 Order was kept in suspended animation for a period of two years and when the latest order dated January 5, 1981 was promulgated, it was still born at the hands of the Court because of the ex parte stay order obtained by the petitioners.
And we reject this contention for the additional reason as laid down by a Constitution Bench of seven learned Judges of this Court in Prag Ice & Oil Mills & Anr.
vs Union of India(1) where Chandrachud, C.J. observed as under; "In the ultimate analysis, the mechanics of price fixation has necessarily to be left to the judgment of the executive and unless it is patent that there is hostile discrimination against a class of operators, the processual basis of price fixation has to be accepted in the generality of cases as valid." 682 Not the slightest case is made out for departure from the proposition laid down by this Court as extracted hereinabove.
Before we conclude, we would like to pin point the unfair advantage which the petitioners have obtained by ex parte stay suppressing the material fact that the later order had already replaced the earlier orders and the latest order was issued with their consent.
In the Writ Petition No. 43/81 the prayer clause reads as under: "Issue a writ of mandamus or any other appropriate writ or order holding that G.O. Ms. No. 548 dated 8.9.1978 and G.O. Ms. No. 626 dated 11.12.1980 of the Government of Andhra Pradesh and the notification issued by the Collector, the second respondent herein dated 16.12.1980 in pursuance of the said impugned Orders as ultra vires, unconstitutional and void and quash the same.
" The bone of contention was not the power exercised by the State Government but the maximum prices fixed in exercise of the power conferred on the State Government.
The maximum prices were to be regulated as per the order dated January 5, 1981, and even though this Court was moved for ex parte stay on January 12, 1981, the fact that the latest order dated January 5, 1981 has replaced the earlier orders was suppressed from the Court.
And peculiarly the State Government did not pursue vigorously its latest notification dated January 5, 1981 because its operation was not stayed by the Court.
However, the entire notification fixing the price of the menu of the poormen was put under suspended animation leaving the hoteliers to extort any price to suit their greed.
Now that we are dismissing these petitions and vacate the stay orders, the notification fixing the maximum prices will revive and can be enforced.
But in the meantime the poor of Andhra Pradesh were made to pay by their nose for their simplest menu and the difference between maximum price fixed by the impugned notification and the prices charged by the hoteliers would be unjust enrichment of the hoteliers undeservedly enjoyed with the assistance of the court by the exercise of the constitutional power under article 32 of the Constitution, and there is no way of depriving this unjust enrichment The Court 683 set up for justice, including socio economic justice, unfortunately lent its assistance to such unjust enrichment and yet we are helpless.
For the reasons herein discussed, we find no merits in any of the contentions canvassed on behalf of the petitioners and therefore, these petitions fail and they are dismissed with costs in each.
H.L.C. Petition dismissed.
| HELD: The counter affidavit filed on behalf of the Government of Haryana offers no rational explanation for denying the pay of District Education officer to the appellant after she was promoted to act as District Education Officer.
In the absence of any rule justifying such refusal to pay to an officer promoted to a higher post the salary of such higher post, the appellant is entitled to be paid the salary of a District Education officer from the date she was promoted to the post.
[655 F G]
|
Civil Appeal No. 1166 of 1976.
Appeal by Special Leave from the Judgment and Order dated the 16th September, 1976 of the Madhya Pradesh High Court in Misc.
Petition No. 1004 of 1974.
M.N. Phadke, S.Q. Hasan and A.C. Ratnaparkhi for the appellant.
Ram Panjwani, H.S. Parihar and 1.
N. Shroff for Respond ent.
No. 1.
Niren De, Attorney General, Rameshwar Nath and Y.B. Desai, for Respondent No. 6.
The Judgnent of the Court was delivered by RAY, C.J. This appeal is by special leave from the judgment dated 16 September, 1976 of the High Court of Madhya Pradesh.
87 The appellant made an application under Articles 226 and 227 of the Constitution in the High Court and impeached the order dated 21 September 1974 whereby the Government dis missed the appellant 's objections against Scheme No. 9 M relating to Road Transport Nationalisation.
The appellant also impeached the Scheme as published in the Gazette on 11 October, 1974.
The High Court held that in view of the fact that Chap ter IV A of the (hereinafter re ferred to as the Act) is included as Entry 125 in the Ninth Schedule to the Constitution the appellant could not chal lenge the Scheme.
The High Court erred in holding that it was not open to the appellant to challenge the Scheme.
The Attorney General rightly and fairly said that the judgment of the High Court could not be supported on that ground.
The High Court failed to appreciate that though Chapter IV A of the Act is not open to any constitutional challenge it is open to any aggrieved person to challenge any Scheme on the ground that it is not a valid Scheme as required by the provisions of Chapter IV A of the Act.
Scheme No. 9 M relating principally to Jabalpur Sagar and Damoh Hatta routes was published by the State Transport Undertaking in the State Gazette on 15 November, 1963.
The Scheme was approved and finally published in the State Gazette on 12 February 1965.
Under the Scheme which came into force with effect from 2 April, 1965 Jabalpur Sagar and Damoh Hatta portions of the routes were reserved for exclusive operation by the State Transport Undertaking.
The portions Sagar Bhopal, Rehli Garhakota, Hatta Panna, Ka tangi Majhouli and Damoh Chhatarpur via Hirapur were kept for joint operation with existing permit holders with the condition that the permit holders with existing permits were not to pick up passengers from and to any station lying between Nohta Abhana Garhakota or any other two stations on Jabalpur Sagar road and Damoh Hatta and vice versa.
The Transport Authorities granted fresh permits cover ing Abhana Garhakota portion treating it to be a portion of joint operation with others.
This action of the Transport Authorities was found to be destructive of the true inten tion of Scheme No. 9 M. It thus became necessary to modify Scheme No. 9 M.
The proposal was then placed before the Board of the State Transport Undertaking referred to hereinafter as the Under taking by, the General Manager.
The Board of the Undertak ing considered the matter at its meeting held on 20 August 1973 and passed Resolution No. 8354approving the proposal modifying Scheme No. 9 M.
The Board 'Resolution directed inclusion of Sagar Rehli Garhakota Jabalpur and Patharia Damoh routes for exclusive operation by the State Corpora tion.
The Board directed that the Scheme giving the de tails should be placed before the Board for its approval.
In this background Scheme No. 9 M giving details was prepared and the proposal was placed before the Board of the Undertaking at the meeting held on 88 29 November, 1973.
The Board of the Undertaking approved the proposal by Resolution No. 1395 and authorised conse quential action.
Scheme No. 9 M was published in the Official Gazette on 7 December 1973.
The Scheme was thereafter considered by the Special Secretary to the State Government in exer cise of powers under section 68D of the Act.
Under section 68D of the Act persons contemplated in the Act might file objections and the State Government would hear objections and then approve or modify the Scheme.
The State Government on 21 September 1974 approved the Scheme after having heard the objections.
The approved Scheme was notified in the State Gazette dated 11 October 1974.
The approved Scheme came into force with effect from 19 November, 1974.
Scheme No. 9 M as approved, after hearing objections, provided in clause (2) that the State Road Transport Serv ices would be provided on the routes of Jabalpur, Sagar and Bhopal regions.
In clause (2) of the Scheme 25 routes are set out.
Route No. 2 is Jabalpur Bhopal via Patan, Tenduk heda, Damoh, Rehli, Sagar and Raisen.
Route No. 3 is Jabalpur Sagar via Katangi and Damoh.
Route No. 4 is Jabal pur Sagar via Patan, Tendukheda, Damoh and Rehli, Route No. 20 is Sagar Patharia.
In clause (4) of Scheme No. 9 M it is said that no person other than the Undertaking will be permitted to provide Roard Transport Services on the routes or portions thereof specified in clause (2) except as provided in clause (5).
In clause (5) it is stated that all Road transport Services will subject to the provisions made in the subsequent clauses, namely, No. (6) and (7) be provided by the Undertaking exclusively on JabalpurSagar via Katangi, Damoh and Damoh Hatta via Bangnon roads covering portions of the routes specified in clause (2).
The routes which the Under taking will operate in conjunction with others are (1) Jabalpur patan Tendukheda Abhana, (2) Damoh Patera Hatta Panna, (3) Damoh Hirapur Tikamgarh and (4) Damoh Hirapur Chhatarpur portions of the routes specified in clause (2).
In clause (7) of the Scheme is set out a list of permits granted by the Regional Transport Authorities and modified as indicated therein.
In Item No. 20 of the list is set out the name of United.
Transport and in Items 22 and 23 is set out the name of S.S.M. Trading Company, Society.
The route of Damoh jabalpur via Abhana, Patan which was in the name of United Transport Company was modified to remain operative on the route of Abhana Jabalpur via Tendukheda, Patan.
The route of Sagar Jabalpur via Reihli, Gerhakota, Abhana, Tejgarh, Patan which had been given to S.S.M. Trad ing Company was modified to Abhana Jabalpur via Tendukheda, Patna.
It, therefore, appears from the Scheme that the routes (1) Jabalpur Patan Tendukheda Abhana, (2) Damoh Patera Hatta Panna, (3) Damoh Hirapur Tikamgarh, (4) Damoh Hirapur Chhattarpur were to be operated by the Undertaking in conjunction with existing permit holders.
89 The appellant under section 68D of the Act preferred objections to the Scheme.
The objections were four in number.
First the Scheme is mala fide as it is intended "to avert (sic) issuance of permits on these routes to private operators".
Second the Scheme is published without the undertaking forming the requisite opinion under section 68C of the Act.
Third the Scheme is discriminatory.
Two permits of the appellant are proposed to be curtailed where as 14 permits on Sagar Rehli Garhakota route have been left over.
Fourth the Scheme does not fulfil the four fold tests in section 68C of the Act.
The Government heard the objections.
The State Secre tary rejected the objections and approved the Scheme on 21 September 1974.
The State Secretary held that no mala fide was proved.
He also rightly held that nationalisation of Road Transport Service would result in the legal effect of stoppage of issue of permits on the routes mentioned in the Scheme.
In short, nationalisation of routes cannot be said to be mala fide.
The State Secertary found that the under taking considered the Scheme and formed the requisite opin ion under Section 68C of the Act.
The State Secretary found that there was no discrimination.
There was nothing to prove that similarly situated operators were treated dif ferently.
There was no proof that the undertaking knew of the existence of the alleged permit of the appellant or of others.
The State Secretary also found that the operators on Sagar Garhakota Patharia route were operating because it was not taken for exclusive operation.
In other words, the Scheme does not concern the route on which the 14 operators are alleged t0 be plying.
The State Secretary also found that the four purposes in section 68C of the Act were ful filled.
The appellant repeated some of the objections to the Scheme raised before the State Secretary and added new ones.
The appellant 's contentions here were these.
First Scheme No. 9 M which was finalised was not the opinion formed by the undertaking.
Second the appellant asked for resolution of the undertaking dated 20 August 1973 and this was not given.
Therefore, no opportunity was given to the appellant to raise objections under section 68D of the Act.
Third, Scheme No 9 M does not fulfil the four fold purposes, name ly, providing (a) efficient, (b) adequate, (c) economical and (d) properly coordinated road transport service as mentioned in section 68C of the Act.
Fourth curtailment of route Sagar Rehli Garhakota is contrary to clause (5) of the Scheme.
Chapter IV A of the Act contains sections 68 A to 68 I.
These provisions in Chapter IV A are under the heading "Special provisions relating to State Transport Undertak ings".
The Scheme recites that the Undertaking formed the opinion that for purposes of providing efficient, adequate, economical and properly coordinated road transport service provided in clause (2) of the Scheme, it is necessary in the public interest that the road transport service in relation to the said routes should be run and operated by the Undertaking in accordance with the Scheme.
There is thus in 90 trinsic evidence inherent in the Scheme that the Undertaking formed the opinion for the Scheme.
The State Secretary rightly rejected the contention of the appellant which was repeated here.
It appears from the order of the State Secretary who heard the objections of the appellant against the Scheme that the Secretary never made an order directing the Under taking to produce the resolution dated 20 August, 1973.
In the writ petition filed by the appellant in the High Court the appellant stated in paragraph 19 that the State Secretary instead of directing the Undertaking to produce these documents only observed that the Undertaking might think over the request adding that he might himself call for the said documents, if thought necessary.
It also appears from the judgment of the High Court that the proceedings before the State Secretary indicated that the appellant 's case was argued without any insistence on the. production of the resolution.
The High Court also noticed that the State Secretary made no such direction.
The fact that he made no such direction shows that he found it possible to give the decision without production of it.
The contention of the appellant is without any merit.
The State Secretary rightly held that the four fold purposes indicated in section 68C of the Act are estab lished.
This Court in Capital Multipurpose Cooperative Society Bhopal & Ors.
vs The State of M.P. & Ors(1), said that the right of a person to object to the Scheme is to be confined only to the four grounds, namely, that the Scheme did not provide (a) efficient, (b) adequate, (c) economical and (d) properly coordinated transport services.
The Scheme in the present case amply establishes that it fulfils the four purposes mentioned in the Act.
It has to be ' remembered that the Scheme in clause (2) as well as in clause (5) mentions the exclusive operation of the Undertaking on these routes in the public interest.
A mere allegation that the Scheme does not fulfil the purposes does not amount to any allegation and far less any proof.
The appellant laid emphasis on the contention that the appellant 's permits in respect of the portion Garhakota to Sagar via Rehli ought not to have been curtailed because the route was not reserved for exclusive operation by the State Transport Undertaking under clause (5).
It is a matter of policy as to what routes should be curtailed for the opera tion of the Scheme.
Courts do not judge such policy deci sions.
The appellant 's permits on the Garhakota Rehli Sagar routes expired on 26 and 30 September, 1976.
The appellant has been granted fresh temporary permit on the route which is of conjoint operation.
This temporary permit was granted to the appellant on 25 September, 1976.
The appellant has taken advantage of it.
It has to be shown that unless the appellant is allowed to operate on Sagar Rehli Garhakota route the Scheme will not be efficient, adequate, economical and properly coordi nated.
The appellant did not allege and substantiate the case.
This case cannot be entertained also for the reason that it is idle to suggest that the appellant will have not only Abhana Jabalpur via Tendukheda Patan route but also SagarRehli Garhakota route as of right.
(1) ; 91 It is not only competent but also conscionable that a Scheme for nationalisation can be complete or partial.
The efficiency as well as adequacy of the Scheme is advanced by such policy decisions of complete or partial nationalization of routes.
See H.C. Narayanappa & Ors, vs The State of Mysore & Ors.
C) Under section 68D of the Act the only scope for objection is whether the Scheme is efficient and adequate and not whether exclusion is complete or partial.
Objections axe confined only to the four grounds of effi ciency, adequacy, economy and proper coordination of road transport service.
Exclusion can be attacked only on these four grounds.
There was never any objection to the Scheme on exclusion related to any of these grounds.
The State Secretary in his order, on hearing the objections, rightly said that the Sagar Rehli Garhakota Patharia route is not to be taken for exclusive operation because there is no mention at all of the route.
The Scheme in clause (5) has specifi cally mentioned which routes are for operation by the State Transport Undertaking in conjunction with others.
The exclusion of the appellant from route on which the appellant had earlier operated cannot be said to challenge efficiency, adequacy, economy or proper coordination.
For these reasons the appeal is dismissed.
In view of the order of the High Court as to costs parties will pay and bear their own costs.
M.R. Appeal dis missed.
| The Government of Madhya Pradesh proposed to pass scheme No. 9 M; regarding the nationalisation of road transport.
The scheme was approved and notified in the State Gazette, after the appellant 's objections made under section 68D of the , had been heard.
The appellant flied a writ petition in the High Court challenging the Government 's rejection of his objections, and also impeach ing the scheme as published in the gazette.
The High Court dismissed the petition holding that, as Chapter IV A of the Act has been included as Entry 125 in the Ninth Schedule to the Constitution, the scheme cannot be challenged.
Dismissing the appeal the Court, HELD: 1.
Though Chapter IV A of the Act is not open to any constitutional challenge, it is open to any aggrieved person to challenge any scheme on the ground that it is not a valid scheme as required by the provisions of Chapter IV A of the Act.
[87 C D] 2.
Under section 68D of the Act the only scope for objection is whether the scheme is efficient and adequate and not whether exclusion is complete or partial.
[91 A B] Objections are confined only to the four grounds of efficiency, adequacy, economy and proper coordination of road transport service.
There was never any objection to the Scheme on exclusion related to any of these grounds.
[90 D E] Capital Multipurpose Co operative Society Bhopal and Ors.
vs The State of M.P. & Ors. ; , ap plied.
H.C. Narayanappa & Ors.
vs The State of Mysore & Ors., ; , referred to:
|
Civil Appeal No. 3047 of 1992.
From the Judgement and Order dated 30.7.1984 of the Patna High Court in Civil Writ Jurisdiction Case No. 373 of 1977.
M.L. Verma and S.K. Sinha for the Appellant.
A.K. Srivastava for the Respondents.
The Judgement of the Court was delivered by SHARMA, J.
The question arising in this case is whether a matter, if it comes within the scope of section 40 of the Bihar and Orissa Co operative Societies Act, 1935 (hereinafter referred to as the Act) has to be excluded from the purview of Section 48 of the Act.
Special leave is granted. 3.
The facts relevant for the decision of this appeal are in a short 894 compass.
The respondent No.1 was Depot Manager under the appellant Marketing Union Limited and during his tenure as such, a shortage of coal was detected.
A claim was accordingly made for the said loss by the appellant and a reference was made to the Assistant Registrar, Co operative Societies respondent No.3, under Section 48 of the Act.
The Assistant Registrar absolved the respondent No.1 from the alleged liability and an appeal was filed by the appellant under Section 48(6) of the Act before the Joint Registrar, Co operative Societies, respondent No.2, who are accepted the appellant 's case, rejected the defence and made an award accordingly.
This was challenged before the Patna High Court by a writ application under Article 226 of the Constitution of India.
The High Court held that since the matter was covered by the provisions of Section 40, Section 48 could not apply.
Consequently the award was held to be illegal.
So far section 40 was concerned, it was pointed out that the claim had to be rejected on the ground of limitation.
Thus without considering the other questions raised by the parties, the High Court allowed the writ petition by the impugned judgement which is under challenge in the present appeal.
It has been contended on behalf of the appellant that the provisions of Section 48 are wide enough to embrace the dispute which has been the subject matter of the present case and they cannot be given a narrow interpretation so as to exclude their application to cases which may also be covered by Section 40.
In reply reliance has been placed on behalf of the respondent No.1 on the decision in Purnea Ministerial Government Officer 's Co operative Society Ltd.v.
Abdul Quddus, (1969) B.L.J.R. Vol.
11 969 which has found favour with the High Court.
Section 40 pertaining to surcharge, provides that if as a result of an audit or inquiry it appears to the Registrar that any person who has taken part in the organisation or management of the society or any past or present officer of the society has either made a payment contrary to law or has been guilty of misappropriation or of having committed similar acts detailed therein, the Registrar may inquire into the matter and make an order requiring him to contribute an appropriate sum by way of compensation to the assets of the society.
The second Proviso to sub section (1) of the said section says that no such order shall be passed in respect of any act or ommission which had occurred more than six years earlier.
The provisions of sub section (1) of Section 48 (omitting the explanations which are not relevant for the present issue) dealing with Disputes are in the 895 following terms: "(1) If any dispute touching the business of a registered society (other than a dispute regarding disciplinary action taken by the society or its managing committee against a paid servant of the society) arises (a) amongst members, past members, persons claiming through members, past members or deceased members, and sureties of members, past members or deceased members, whether such sureties are members or non members; or (b) between a member, past member, persons claiming through a member, past member or deceased member, or sureties of members, past members or deceased members, whether such sureties are members or non members and the society, its managing committee or any officer, agent or servant of the society; or (c) between the society or its managing committee and any past or present officer, agent or servant of the society; or (d) between the society and any other registered society; or (e) between a financing bank authorised under the provisions of sub section (1) of Sec. 16 and a person who is not a member of a registered society; such dispute shall be referred to the Registrar: Provided that no claim against a past member or the estate of a deceased member shall be treated as a dispute if the liability of the past member or of the estate of the deceased member has been extinguished by virtue of Sec. 32 or Sec. 63".
The claim of the appellant against the respondent No.1 is clearly covered by clause (c) of sub section (1) above and, therefore, could have been validly referred to the Registrar under Section 48.
The argument, however, is that since the matter is covered by Section 40, Section 48 should be held to be inapplicable.
The High Court agreed and made the following observations: 896 "It is well known proposition of law that when a matter falls under any specific provision then if must be governed by that provision and not by general provisions (Generalia specialibus non derogant)".
The High Court has in its judgement assumed that whenever a specific remedy is made available in law the other remedy, more general in nature, necessarily gets excluded.
Validity of plural remedies, if available under the law, cannot be doubted.
If any standard book on the subject is examined, it will be found that the debate is directed to the application of the principle of election, where two or more remedies are available to a person.
Even if the two remedies happen to be inconsistent,they continue for the person concerned to choose from, until he elects one of them, commencing an action accordingly.
In the present case there is no such problem as no steps under Section 40 were ever taken by the appellant.
The provisions of Section 48 must, therefore, be held to be available to the appellant for recovery of the loss.
7.Our view that a matter which may attract Section 40 of the Act will continue to be governed by Section 48 also if the necessary conditions are fulfilled, is consistent with the decision of this Court in Prem Jeet Kumar V. Surender Gandotra and others, [1991] Supp. 2 S.C.C. 215, arising under the Delhi Co operative Societies Act, 1972.
The two Acts are similar and Sections 40 and 48 of the Bihar Act and Sections 59 and 60 of the Delhi Act are in pari materia.
The reported judgement followed an earlier decision of this Court in Pentakota Srirakulu vs Co operative Marketing Society Ltd.; , We accordingly hold that the High Court was in error in assuming that the application of provisions of Section 48 of the Bihar Act could not be applied to the present case for the reason that Section 40 was attracted.
So far the question of limitation is concerned it is true that as in the Delhi Act, a period of six years was fixed under the Bihar Act also by second Proviso under Section 40 (1), which reads thus: "Provided further that no order shall be passed under this sub section in respect of any act or omission mentioned in clauses (a), (b), (c) or (d) except within six years of the date on which such act or omission 897 occurred.
" It will be observed that the six years rule of limitation, however, is limited for the purpose of section 40, and cannot govern the reference under section 48.
The relevant provision of section 48 is to be found in the Proviso to section 48(1) which has been quoted above.
For determining its impact on the present case it is necessary to examine the Proviso closely.
Firstly, both the Proviso and section 63 of the Act are concerned only where the claim is against a member.
Even if the Proviso be assumed to govern a dispute between the society and its past or present officer or servant it cannot come to the aid of the present respondent No.1 because he was dismissed from service on 15.10.1966 and he was directed to deposit the disputed amount within 30 days therefrom.
The dispute was referred for adjudication under section 48 on 12.12.1966 and the reference was registered as Award Case No. 25 of 1968 on 03.08.1968.
Thus all these steps were taken within a period of two years.
No reliance, therefore, can be placed on either section 32 or 63.
The case of Putnea Ministerial government Officers ' Co operative Society Ltd. (Supra) is clearly distinguishable.
The respondent there was a member of the Society in question and had taken a loan which was the subject matter of the dispute.
As was pointed out by the High Court the claim had stood barred by limitation and, therefore, it was held that the reference was incompetent in view of the Proviso to section 48(1).
The High Court in the present case was, in the circumstances, not entitled to rely on this decision and its conclusions must be set aside as being erroneous in law.
However, since in the judgement it is stated that several other questions were also raised on behalf of the respondent No.1 (who was the writ petitioner) which remained undecided, the case requires reconsideration by the High Court on the remaining points.
Accordingly the impugned judgement is set aside and the writ petition is remitted to the High Court for fresh decision in accordance with the observations in the present judgement.
The appeal is allowed but in the circumstances without costs.
U.R. Appeal allowed.
| During the pendency of a suit for eviction of the appellants from the property of Respondent No.1, the appellants were alleged to have trespassed beyond the area which was the subject matter of the suit and indulged in several illegal activities.
Thus according to Respondents, the appellants were guilty of mischievous conduct.
The Respondents instead of filing a suit in the Civil Court or making appropriate prayer for amendment of the plaint in the pending suit field a Writ Petition before the High Court for issuance of appropriate direction retraining the appellants from disturbing the lawful possession of the respondents.
The Administration and Commissioner of Police were also impleaded as parties and a direction sought against them not to register any further false and vexatious complaints against the Respondents since undue Police help to the appellants was apprehended.
The High Court gave certain directions to the appellants as regards Respondents ' access to the backyard.
The present appeal by special leave, is against the said orders of the High Court.
On the question whether the Writ jurisdiction of High Court would be available for enforcement of a private right to immovable property claimed by and against private individuals: Allowing the appeals, this Court HELD: 1.
A regular suit is the appropriate remedy for settlement 905 of disputes relating to property rights between private persons and that the remedy under Article 226 of the Constitution shall not be available except where violation of some statutory duty on the part of statutory authority is alleged.
And in such a case, the Court will issue appropriate direction to the authority concerned.
[907 E, F] 2.
If the real grievance of Respondent No.1 is against the initiation of criminal proceeding and the orders passed and steps taken thereon, she must avail of the remedy under the general law including the Criminal Procedure Code.
The High Court cannot allow the constitutional jurisdiction to be used for deciding disputes, for which remedies under the general law, civil or criminal, are available.
It is not intended to replace the ordinary remedies by way of a suit or application available to a litigant.
The jurisdiction is special and extra ordinary and should not be exercised casually or lightly, [907 F H]
|
Civil Appeal No. 1171 of 1973.
B From the judgment and order dated the 19th July, 1973 of the Mysore High Court at Bangalore in Election Petition No. 3 of 1972.
M. N. Phadke, M/s. N. M. Ghatate and section Balakrishnan for the appellant.
A. K. Sen, G. L. Sanghi, M/s. M. Veerappa and Altaf Ahmed for the respondents.
The Judgment of the Court was delivered by BHAGWATI, J.
This appeal under section 116 A of the Representation of People Act, 1951 is directed against an order made by the High Court of Mysore setting aside the election of the appellant on the ground that the nomination paper of the 1st respondent was improperly rejected by the Returning officer.
This litigation does not stand in isolation.
It has a history and that is necessary to be noticed in order to appreciate the arguments which have been advanced on behalf of both parties in the appeal.
The appellant and the 1st respondent have been opponents in the electoral battle since a long time.
The constituency from which they have been standing as candidates is 68 KGF Constituency for election to the Mysore Legislative Assembly.
They opposed each other as candidates from this constituency in 1967 General Election to the Mysore Legislative Assembly.
Now, the seat from this constituency was a seat reserved for Scheduled Castes and, therefore, only members of Scheduled Castes could stand as candidates from this constituency.
The expression "Scheduled Castes" has a technical meaning given to it by cl.(24) of article 366 of the Constitution and it means "such castes, races or tribes or parts Of or groups within such castes or tribes as are deemed under article 341 to be Scheduled Castes for the purpose of the Constitution".
The President, in exercise of the power conferred upon him under article 341 issued the Constitution (Scheduled Castes) order, 1950.
Paragraphs 2 and 3 of.
this order are material and, since the amendment made by Central Act 63 of 1956, they are in the following terms: "2.
Subject to the provisions of this order, the castes, races or tribes or parts of, or groups within castes or tribes specified in Part I to XIII of the Schedule to this order shall, in relation to the States to which those parts respectively relate, be deemed to be scheduled castes so far as regards members thereof resident in the localities specified in relation to them in those Parts of that Schedule.
Notwithstanding anything contained in paragraph 2, no person who professes a religion different from the Hindu or the Sikh religion shall be deemed to be a member of a Scheduled Castes.
" The Schedule to this order in Part VIII sets out "the castes, races or tribes or parts of or groups within castes or tribes" which shall in the different areas of the State of Mysore be deemed to be Scheduled Castes.
We are concerned with cl.
(1) of Part VIII as the area of 68 KGF Constituency is covered by that clause.
One of the castes specified there is Adi Dravida and that caste must, therefore, for the purpose of election from 68 KGF Constituency, be deemed to be a Scheduled Caste.
The appellant was admittedly, at the date when he Filed his nomination paper for the 1967 election from 68 KGF Constituency, an Adi Dravida professing Hindu religion and was consequently qualified to stand as a candidate for the reserved seat from this constituency.
The 1st respondent also claimed to be an Adi Dravida professing Hindu religion and on this basis, filed his nomination from the same constituency.
The appellant and the 1st respondent were thus rival candidates in fact they were the only two contesting candidates r and in a straight contest, the 1st respondent defeated the appellant and was declared elected.
The appellant thereupon filed election petition No. 4 of 1967 in the Mysore High Court challenging the election of the 1st respondent on the ground that the 1st respondent was not an Adi Dravida professing Hindu religion at the date when he filed his nomination and u as, therefore, not qualified to stand as a candidate for the reserved seat from 68 KGF Constituency.
The Mysore High Court, by an order dated 30th August, 1967, held that the 1st respondent was converted to Christianity in 1949 and on such conversion, he ceased to be an Adi Dravida and, therefore, at the material date, he could not be said to be a member of a Scheduled Caste, nor did he profess Hindu religion and he was consequently not eligible for being chosen as a candidate for election from a reserved constituency.
The 1st respondent being aggrieved by the order setting aside his election, preferred C.A. No. 1553 of 1967 to this Court under section 116A of the Representation of People Act, 1951.
This Court addressed itself to four question, namely, first, whether the 1st respondent had become a convert to Christianity in 1949; secondly, whether, on such conversion, he ceased to be a member of Adi Dravida caste; thirdly, whether he had reverted to Hinduism and started professing Hindu religion at the date of filing his nomination, and lastly, whether on again professing the Hindu religion, he once again became a member of Adi Dravida caste.
So far as the first question was concerned, this Court, on a consideration of the evidence, held that the 1st respondent was converted to Christianity in 1949 and in regard to the second question, this Court observed that it must be held that when the 1st respondent embraced Christianity in 1949, he ceased to belong to Adi Dravida caste.
This Court then proceeded to consider the third question and held that having regard to the seven circumstances enumerated in the judgment, it was clear that at the relevant time in 1967.
that is in January February 1967, the 1st respondent was professing 87 Hindu religion.
That led to a consideration of the last question as to the effect of reconversion of the 1st respondent to Hinduism.
This Court referred to a number of decisions of various High Courts which laid down the principle that reconversion to Hinduism, a person can become a member of the same caste in which he was born and to which he belonged before having been converted to another religion" , and pointed out that the main basis on which these decisions proceeded was that "if the members of the caste accept the reconversion of a person as a member,` it should be held that he does become a member of that caste, even though he may have lost membership of that caste on conversion to another religion".
This Court, however, did not consider it necessary to express any opinion on the correctness of these decisions, as it found that even if the principle enunciated in these decisions was valid, the 1st respondent did not give evidence to t satisfy the requirements laid down by this principle and "failed to establish that he became a member of the Adi Dravida Hindu caste after he started professing the Hindu religion".
This Court observed that "whether the membership of a caste can be acquired by con version to Hinduism or after reconversion to Hinduism is a question on which we have refrained from expressing our opinion, because on the assumption that it can be acquired, we have arrived at the conclusion that the appellant"; that is, the 1st respondent in the present , case must fail in this appeal".
This Court accordingly upheld the decision of the High Court and dismissed the appeal.(1) This decision was given by a Bench consisting of two judges on 3rd May, 1968.
In the three or four years that followed certain events happened to which we shall refer a little later.
Suffice it to state for the present that, according to the 1st respondent, these events showed that the members of the Adi Dravida caste accepted him as a member and regarded him as belonging to their fold.
The next General Election to the Mysore Legislative Assembly took place in 1972.
There was again a contest from 68 KGF Constituency which was reserved for candidates from Scheduled Castes.
The appellant filed his nomination as a candidate from this constituency and so did the 1st respondent.
The nomination of the 1st respondent was, however, objected by the appellant on the ground that the 1st respondent was not an Adi Dravida professing Hindu religion at the date of filing his nomination and he was, therefore, not qualified to stand as a candidate for the reserved seat from this constituency.
The 1st respondent rejoined by saying that he was never converted to Christianity and that in any event, even if it was held that he had be" come a Christian, he was reconverted to Hinduism since long and was accepted by the members of the Adi Dravida caste as belonging to their fold and was, therefore, an Adi Dravida professing Hindu religion at the material date and hence qualified to stand as a candidate.
The Returning officer, by an order dated 9th February, 1972 up held the objection of the appellant and taking the view that, on con version to Christianity, the 1st respondent ceased to be an Adi Dravida and thereafter on reconversion, he could not claim the benefit of the Constitution (Scheduled Castes) order, 1950, the Returning officer (1) section Rajagopal vs C.M. Arumugam, 7 L390 SCI/76 88 rejected the nomination of the 1st respondent.
The election thereafter took place without the 1st respondent as a candidate and the appeliant, having obtained the highest number of votes, was declared elected.
The 1st respondent filed Election Petition No. 3 of 1972 in the High Court of Mysore challenging the election of the appellant on the ground that the nomination of the 1st respondent was improperly rejected.
This was a ground under section 100(1)(c) of the Act and if well founded, it would be sufficient, without more, to invalidate the election.
The point which was, therefore, seriously debated before the High Court was whether the nomination of the 1st respondent was improperly.
rejected and that in its turn depended on the answer to the question whether the 1st respondent was an Adi Dravida professing Hindu religion at the date of filing his nomination.
There were four aspects bearing on this question which arose for consideration and they were broadly the same as in the earlier case (supra).
, namely, whether the 1st respondent embraced Christianity in 1949, whether on his conversion to Christianity he ceased to belong to Adi Dravida caste, whether he was reconverted to Hinduism and whether on such reconversion, he was accepted by the members of the Adi Dravida caste as belonging to their fold.
So far as the first three aspects were concerned, the High Court took the view that they must be taken to be concluded by the decision of this Court in the earlier case (supra) and the discussion of the question must, therefore, proceed on the established premise that the Ist respondent was born an Adi Dravida Hindu, he was converted to Christianity in 1949 and on such conversion he lost his capacity as an Adi Dravida Hindu and at least by the year 1967, he had once again started professing Hindu religion.
Visa vis the fourth aspect, the High Court observed: "It is settled law that reconversion to Hinduism does not require any formal ceremony or rituals or expiratory ceremonies, that a reconvert to Hinduism can revert to his original Hindu caste on acceptance by the members of that caste and that the quantum and degree of proof of acceptance depends on the facts and circumstances of each case, according to the established customs prevalent in a particular locality amongst the caste there", and on this view of the law, the High Court proceeded to examine the evidence led on behalf of the parties and pointed out that this evidence established twelve important circumstances subsequent to January February 1967 which clearly showed that the 1st respondent was accepted into their fold by the members of the Adi Dravida caste and he was, therefore, at the material time, an Adi Dravida professing Hindu religion as required by Paragraphs 2 and 3 of the Constitution (Scheduled Caste) order, 1950.
The High Court, in this view, held that the nomination of the 1st respondent was improperly rejected by the Returning officer and that invalidated the election under section 100(1)(c) of the Act.
The High Court accordingly set aside the election of the appellant and declared it to be void.
This judgement of the High Court is impugned in the present appeal under section 116A of the Act.
Now before we deal with the contentions urged on behalf of the appellant in support of the appeal, it would be convenient first to 89 refer to two grounds which were held by the High Court against the A 1st respondent.
The 1st respondent contended that these two grounds were wrongly decided against him and even on these two grounds, he was entitled to claim that, at the material time, he was an Adi Dravida professing Hindu religion.
The first ground was that he was never converted to Christianity and the second was, that, on such conversion, he did not cease to be an Adi Dravida.
The appellant disputed the claim ' of the 1st respondent to agitate these two grounds in the appeal before us.
The reason given was that the 1st respondent had not pressed them in the course of the arguments before the High Court and had conceded that, in view of the judgment of this Court in the earlier case, Issue No. 3, which raised the question: "Whether the petitioner having abandoned Hinduism and embraced Christianity in the year 1949 had lost the membership of the Adi Dravida Hindu caste and incurred the disqualification under Paragraph of the Constitution (Scheduled Castes) Order, 1950" and "Is this issue concluded against the petitioner by virtue of the judgment of the High Court in Civil Appeal 1553 of 1967", did not survive for consideration.
There can be no doubt that so far as the first of these two grounds is concerned, there is force in the objection raised on behalf of the appellant.
The question whether the 1st respondent abandoned Hinduism and embraced Christianity in 1949 is essentially a question of fact and if, at the stage of the arguments before the High Court, the 1st respondent conceded that, in view of the decision of this Court in the earlier case, this question did not survive for consideration and the High Court, acting on the concession of the 1st respondent, refrained from examining the question on merits and proceeded on the basis that it stood concluded by the decision of this Court in the earlier case, how could the 1st respondent be now permitted to reagitate this question at the hearing of the appeal before this Court ? The 1st respondent must be held bound by the concession made by him on a question of fact before the High Court.
We cannot, therefore, permit the 1st respondent to raise an argument that the evidence on record does not establish that he embraced Christianity in 1949.
We must proceed on the basis that he was converted to Christianity in that year The position is, however, different when we turn to the question whether, on conversion to Christianity, the 1st respondent ceased to be a member of the Adi Dravida caste.
That question is a mixed question of law and fact and we do not think that a concession made by the 1st respondent on such a question at the stage of argument before the High Court, can preclude him from reagitating it in the appeal before this Court, when it formed the subject matter of an issue before the High Court and full and complete evidence in regard to such issue was led by both parties.
It is true that this Court held in the earlier case that, on embracing Christianity in 1949, the 1st respondent ceased to be a member of the Adi Dravida caste, but this decision given in a case relating to 1967 General Election on the basis of the evidence led in that case, cannot be res judicata in the present case which relates to 1972 General Election and where fresh evidence 90 has been adduced on behalf of the parties, and more so, when all the parties in the present case are not the same as those in the earlier case.
It is, therefore, competent to us to consider whether, on the evidence on record in the present case, it can be said to have been established that, on conversion to Christianity in 1949, the 1st respondent ceased to belong to Adi Dravida caste.
It is a matter of common knowledge that the institution of caste is a peculiarly Indian institution.
There is considerable controversy amongst scholars as to how the caste system originated in this country.
It is not necessary for the purpose of this appeal to go into this highly debatable question.
It is sufficient to state that originally there were only four main castes, but gradually castes and sub castes multiplied as the social fabric expanded with the absorption of different groups of people belonging to various cults and professing different religious faiths.
The caste system in its early stages was quite elastic but in course of time it gradually hardened into a rigid framework based upon heredity.
Inevitably it gave rise to graduation which resulted in social inequality and put a premium on snobbery.
The caste system tended to develop, as it were, group snobbery, one caste looking down upon another.
Thus there came into being social hierarchy and stratification resulting in perpetration of social and economic injustice by the so called higher castes on the lower castes.
It was for this reason that it was thought necessary by the Constitution makers to accord favoured treatment to the lower castes who were at the bottom of the scale of social values and who were afflicted by social and economic disabilities and the Constitution makers accordingly provided that the President may specify the castes and these would obviously be the lower castes which had suffered centuries of oppression and exploitation which shall be deemed to be Scheduled Castes and laid down the principle that seats should be reserved in the legislature for the Scheduled Castes as it was believed and rightly, that the higher castes would not properly represent the interest of these lower castes.
But that immediately raises the question: what is a caste? When we speak of a caste, we do not mean to refer in this context to the four primary castes but to the multiplicity of castes and sub castes which disfigure the Indian social scene.
"A caste", as pointed out by the High Court of Madras in Cooppoosami Chetty vs Duraisami Chetty (1) "is a voluntary association of persons for certain purposes.
" It is a well defined yet fluctuating group of persons governed by their own rules and regulations for certain internal purposes.
Sir H. Risley has shown in his book on People of India how castes are formed based not only on community of religion, but also on community of functions.
It is also pointed out by Sankaran Nair, J., in Muthusami vs Masilamani(2): "a change in the occupation sometimes creates a new caste.
A common occupation sometimes combines members of different castes into a distinct body which becomes a new caste.
Migration to another place makes sometimes a new caste".
A caste is more a social combination than a religious Group.
But since, as (1) I. L. R. (2) l. L. R. 91 pointed out by Rajamannar, C.J., in C. Michael vs section Venkateswaran (1), ethics provides the standard for social life and it is founded ultimately on religious beliefs and doctrines, religion is inevitably mixed up with social conduct and that is why caste has become an integral feature of Hindu society.
But from that it does not necessarily follow as an invariable rule that whenever a person renounces Hinduism and embraces another religious faith, he automatically ceases to be a member of the caste in which he was born and to which he belonged prior to his conversion.
It is no doubt true; and there we agree with the Madras High Court in C. Michael 's case (supra) that the general rule is that conversion operates as an expulsion from the caste or, in other words, the convert ceases to have any caste, because caste is predominantly a feature of Hindu society and ordinarily a person who ceases to be a Hindu would not be regarded by the other members of the caste as belonging to their fold.
But ultimately it must depend on the structure of the caste and its rules and regulations whether a person would cease to belong to the caste on his abjuring Hinduism.
If the structure of the caste is such that its members must necessarily belong to Hindu religion, a member, who ceases to be a Hindu, would go out of the caste, because no non Hindu can be in the caste according to its rules and regulations.
Where, on the other hand, having regard to its structure, as it has evolved over the years, a caste may consist not only of persons professing Hindu religion but also persons professing some other religion as well, conversion from Hinduism to that other religion may not involve loss of caste, because even persons professing such other religion can be members of the caste.
This might happen where caste is based on economic or occupational characteristics and not on religious identity or the cohesion of the caste as a social group is so strong that conversion into another religion does not operate to snap the bond between the convert and the social group.
This is indeed not an infrequent phenomenon in South India where, in some of the castes, even after conversion to Christianity, a person is regarded as continuing to belong to the caste.
When an argument was advanced before the Madras High Court in G. Michael 's case (supra) "that there were several cases in which a member of one of the lower castes who has been converted to Christianity has continued not only to consider himself as still being a member of the caste, but has also been considered so by other members of the caste who had not been converted," Rajamannar, C.J., who, it can safely be presumed, was familiar with the customs and practices prevalent in South India, accepted the position "that instances can be found in which in spite of conversion the caste distinctions might continue", though he treated them as exceptions to the general rule.
The High Court of Andhra Pradesh also affirmed in Kothapalli Narasayya vs Jammana Jogi(2) that "notwithstanding conversions, the converts whether an individual or family or group of converts, may like to be governed by the law by which they were governed before they became converts and the community to which they originally H (1) A.I.R. 1952 Mad.
(2) 30 L. R. 1.
92 belonged may also continue to accept them within their fold notwithstanding conversion", and proceeded to add: "While tendency to divide into sects and division to form new sects with their own religious and social observances is a characteristic feature of Hinduism it should be remembered that sects were formed not only on community of religions but also community of functions.
Casteism which has taken deep roots in Hinduism for some reason or other may not therefore cease its existence even after conversion.
May be that the religion or faith to which conversion takes place, on grounds of policy or otherwise, does not take exception to this social order which does not interfere with its spiritual or theological aspect which is the main object of the religion.
That is why we find several members of lower castes converted to Christianity in Madras State still continue to the members of their castes Thus a conversion does not necessarily result in extinguishment of caste and notwithstanding conversion, a convert may enjoy the privileges social and political by virtue of his being a member of the community with its acceptance.
" The elected candidate in this case was held to continue to belong to the Mala Andhra Caste which was a Scheduled Caste, despite his conversion to Christianity.
It was again reiterated by the High Court of Andhra Pradesh in a subsequent decision reported in K. Narasimha Reddy vs G. Bhupathi(1) that survival of caste after conversion to Christianity is not an unfamiliar phenomenon in this part of the country and it was held that, even after his conversion to Christianity, the elected candidate, who belonged to Bindla caste, specified as a Scheduled Caste, continued to retain his caste, since he never abjured his caste nor did his caste people ostracize or excommunicate him.
The caste system is indeed so deeply ingrained in the Indian mind that, as pointed out by this Court in Ganpat vs Returning Officer ,(2) "for a person who has grown up in Indian society, it is very difficult to get out of the coils of the caste system" and, therefore, even conversion to another religion like Christianity, has in some cases no impact on the membership of the caste and the other members continue to regard the convert as still being a member of the caste.
This Court pointed out in Ganpat`s case (supra) that "to this day one sees matrimonial advertisements which want a Vellala Christian bride or Nadar Christian bride" which shows that Vellala and Nadar comprise both Hindus and Christians.
lt seems that the correct test for determining this question is the one pointed out by this Court in Chatturbhuj Vithaldas Jasani vs Moreshwar Prasahram.(J) Bose, J., speaking on behalf of the Court in this case pointed out that when a question arises whether conversion operates as a break away from the caste "what we`have to (1) 31E.L.R.211.
(2) ; (3) ; 93 determine are the social and political consequences of such conversion h that, we feel, must be decided in a common sense practical way rather than on theoretical and theocratic grounds".
The learned Judge then proceeded to add: "Looked at from the secular point of view, there are " three factors which have to be considered: (1) the reactions of the old body, (2) the intentions of the individual himself and (3) the rules of the new order.
If the old order is tolerant of the new faith and sees no reason to outcaste or ex communicate the convert and the individual himself desires and intends to retain his old social political ties, the conversion is only nominal for all practical purposes and when we have to consider the legal and political rights of the old body, the views of the new faith hardly matter.
" What is, therefore, material to consider is how the caste looks at the question of conversion.
Does it outcaste or ex communicate the convert or does it still treat him as continuing within its fold despite his conversion ? If the convert desires and intends to continue as a member of the caste and the caste also continues to treat him as a member, notwithstanding his conversion, he would continue to be a member of the caste and, as pointed out by this Court "the views of the new faith hardly matter".
This was the principle on which it was decided by the Court in Chatturbhuj Vithaldas Jasani 's case (supra) that Gangaram Thaware, whose nomination as a Scheduled Caste candidate was rejected by the Returning officer, continued to be a Mahar which was specified as a Scheduled Caste, despite his conversion to the Mahanubhav faith.
Paragraphs 2 and 3 of the Constitution (Scheduled Castes) order, 1950 also support the view that even after conversion, a person may continue to belong to a caste which has been specified in the Schedule to that order as a Scheduled Caste.
Paragraph 2 provides that the castes specified in the Schedule to the order shall be deemed to be Scheduled Castes but Paragraph 3 declares that, notwithstanding anything contained in Paragraph 2, that is, notwithstanding that a per son belongs to a caste specified as a Scheduled Caste, he shall not be deemed to be a member of the Scheduled Caste, if he profess a religion different from Hindu or Sikh religion.
Paragraphs 2 and 3 read together thus clearly recognise that there may be castes specified as Scheduled Castes which comprise persons belonging to a religion different from Hindu or Sikh religion and if that be so, it must follow a fortiori, that in such castes, conversion of a person from Hinduism cannot have the effect of putting him out of the caste.
though by reason of Paragraph 3 he would be deemed not to be a member of a Scheduled Caste.
It cannot, therefore, be laid down as an absolute rule uniformly applicable in all cases that whenever a member of a caste is converted from Hinduism to Christianity, he loses his membership of the caste.
It is true that ordinarily on conversion to Christianity, he would cease to a member of the caste, but that is not an invariable rule.
It 94 would depend on the structure of the caste and its rules and regulations.
There are castes, particularly in South India, where this consequence does not follow on conversion, since such castes com prise both Hindus and Christians.
Whether Adi Dravida is a caste which falls within this category or not is a question which would have to be determined on the evidence in this case.
There is on the record evidence of Kakkan (PW 13) J. C. Adimoolam (RW 1) and K. P Arumugam (RW 8), the last two being witnesses examined on behalf of the appellant, which shows.
that amongst Adi Dravidas, there are both Hindus and Christians and there are intermarriages between them.
It would, therefore, prima facie seem that, on conversion to Christianity, the 1st respondent did not cease to belong to Adi Dravida caste.
But in the view we are taking as regards the last contention, we do not think it necessary to express any final opinion on this point.
The third question in controversy between the parties was whet her the 1st respondent was reconverted to Hinduism.
This question stands concluded by the decision of this Court in the earlier case and it must be held, for the reasons set out in that decision, that at any rate since prior to January February 1967, the 1st respondent was reconverted to Hinduism and, therefore, at the material time, he was professing the Hindu religion, so as to satisfy the requirement of Paragraph 3 of the Constitution (Scheduled Castes) order, 1950.
The last contention, which formed the subject matter of controversy between the parties, raised the issue whether on reconversion to Hinduism, the 1st respondent could once again become a member of the Adi Dravida caste, assuming that he ceased to be such on conversion to Christianity.
The argument of the appellant was that once the 1st respondent renounced Hinduism and embraced Christianity, he could not go back to the Adi Dravida caste on reconversion to Hinduism.
He undoubtedly became a Hindu, but he could no longer claim to be a member of the Adi Dravida caste.
This argument is not sound on principle and it also runs counter to a long line of decided cases.
Ganapathi Iyer, a distinguished scholar and jurist, pointed out as far back as 1915 in his well known treatise on 'Hindu Law ': " caste is a social combination, the members of which are enlisted by birth and not by enrolment.
People do not join castes or religious fraternities as a matter of choice (in one respect); they belong to them as a matter of necessity ; they are born in their respective castes or sects.
lt cannot be said, however, that membership by caste is deter.
mined only by birth and not by anything else," (emphasis supplied) Chandravarkar, J., observed in Nathu vs Keshwaji(1): "It is within the power of a caste to admit into its fold men not born in it as it is within the power of a club to admit anyone it likes as its member.
To hold that the membership of a caste is determined by birth is to (1) I. L. R. 26.Bom. 174.
95 hold that the caste cannot, if it likes, mix with another caste and form both into one caste.
That would be striking at the very root of caste autonomy.
" Sankaran Nair, J., made observations to the same effect in Muthusami`s case (supra) and concluded by saying: "It is, of course, open to a community to admit any person and any marriage performed between him and any member would in my " opinion, be valid".
Ganapathi Iyer, after referring to these two decisions, proceeded to add: Of course it is open to a person to change his caste by entering another caste if such latter caste will admit him in this sense there is nothing to prevent a person from giving up his caste or community just as the caste may re admit an expelled person or an outcasted person if he conforms to the caste observances.
" Since a caste is a social combination of persons governed by its rules and regulations, it may, if its rules and regulations so provide, admit a new member just as it may expel an existing member.
The rules and regulations of the caste may not have been formalised.
: they may not exist in black and white: they may consist only of practices and usages.
If, according to the practices and usages of the caste any particular ceremonies are required to be per formed for readmission to the caste, a reconvert to Hinduism would have to perform those ceremonies if he seeks readmission to the caste.
That is why Parker, J., dealing with the possible readmission of a reconvert to Brahmanism observed in Administrator General of madras vs Anandchari(1) : "His conversion to Christianity according to the Hindu law, rendered him an outcaste and degraded.
But according to that law, the degradation might have been atoned for, and the convert readmitted to his status as a Brahmin, had he at any time during his life renounced Christianity and performed the rites of expiation enjoined by his caste.
" The rites of expiation were referred to by the learned Judge because they were enjoined by the Brahmin caste to which the reconvert wanted to be readmitted.
But if no rites or ceremonies are required to be performed for readmission of a person as a member of the caste, the only thing necessary for eradication would be the acceptance of the person concerned by the other members of the caste.
This was pointed out by Varadachariar, J., in Gurusami Nadar vs Irulappa Konar(2); where after referring to the aforesaid passage from Administrator General of Madras vs Anandchari (supra), the learned Judge said: "The language used in merely refers to the expiatory ceremonies enjoined by the practice of the community in question; and with reference to the class of people we are now concerned with, no suggestion has anywhere been made in the course of the evidence that any particular expiatory ceremonies are observed amongst them.
No particular ceremonies are prescribed for them by the Smriti writers nor have they got to perform any Homas.
One has therefore only to look at the sense of the community and (1) I. L. R. (2) A. I. R.
96 from that point of view it is of particular significance that the community was prepared to receive Vedanayaga and defendant 5 as man and wife and their issue as legitimate.
" These observations of Varadachariar, J., were approved by Mockett, J., in Durgaprasada Rao vs Sudarsanaswami(1) and he pointed out that in the case before him, there was no evidence of the existence of any ceremonial in Vada Baligi fishermen community of Gopalpur for readmission to that community.
Krishnaswami Ayyangar, J., also observed in the same case that "in matters affecting the well being or composition of a caste, the caste itself is the supreme judge".
(emphasis supplied).
The same view has also been taken in a number of decisions of the Andhra Pradesh and Madras High Courts in election petitions arising out of 1967 General Election.
These decisions have been set out in the judgment of this Court in Rajagopal vs C. R. Arumugam (supra).
These cases show that the consistent view taken in this country from the time Administrator General of Madras vs Anandachari (supra) was decided, that is, since 1886 has been that on reconversion to Hinduism, a person can once again become a member of The caste in which he was born and to which he belonged before con version to another religion, if the members of the caste accept him as a member.
There is no reason either on principle or on authority which should compel us to disregard this view which has prevailed for almost a century and lay down a different rule on the subject.
If a person who has embraced another religion can be reconverted to Hinduism, there is no rational principle why he should not be able to come back to his caste, if the other members of the caste are pre pared to readmit him as a member.
It stands to reason that he should be able to come back to the fold to which he once belonged, provided of course the community is willing to take him within the fold.
It is the orthodox Hindu society still dominated to a large extent, particularly in rural areas, by medievalistic outlook and status oriented approach which attaches social and economic disabilities to a person belonging to a Scheduled Caste and that is why certain favoured treatment is given to him by the Constitution.
Once such a person ceases to be a Hindu and becomes a Christian, the social and economic disabilities arising because of Hindu religion cease and hence it is no longer necessary to give him protection and for this reason he is deemed not to belong to a Scheduled Caste.
But when he is reconverted to Hinduism, the social and economic disabilities once again revive and become attached to him because these are disabilities inflicted by Hinduism.
A Mahar or a Koli or a Mala would not be recognised as anything but a Mahar or a Koli or a Mala after reconversion to Hinduism and he would suffer from the same social and economic disabilities from which he suffered before he was converted to another religion.
It is, therefore, obvious that the object and purpose of the Constitution (Scheduled Castes) order, 1950 would be advanced rather than retarded by taking the view that on (1) A.I.R. 1940 Mad.
97 reconversion to Hinduism, a person can once again become a member of the Scheduled Caste to which he belonged prior to his conversion.
We accordingly agree with the view taken by the High Court that on reconversion to Hinduism, the 1st respondent could once again revert to his original Adi Dravida caste if he was accepted as such by the other members of the caste.
That takes us to the question whether in fact the 1st respondent was accepted as a member of the Adi Dravida caste after his reconversion to Hinduism.
This Court in the earlier decision between the parties found that the 1st respondent had not produced evidence to show that after his reconversion to Hinduism, any step had been taken by the members of the Adi Dravida caste indicating that he was being accepted as a member of that caste.
The 1st respondent, therefore, in the present case, led considerable oral as well as documentary evidence tending to show that subsequent to January February 1967, the 1st respondent had been accepted as a member of the Adi Dravida caste.
The High Court referred to twelve circumstances appearing from the evidence and held on the basis of these twelve circumstances, that the Adi Dravida caste had accepted the 1st respondent as its member and he accordingly belonged to the Adi Dravida caste at the material time.
Now, out of these twelve circumstances, we do not attach any importance to the first circumstance which refers to the celebrations of the marriages of his younger brother Govindaraj and Manickam by the 1st respondent in the Adi Dravida manner, because it is quite natural that if Govindaraj and Manickam were Adi Dravida Hindus, their marriages would be celebrated according to Adi Dravida rites and merely because the 1 st respondent, as their elder brother, celebrated their marriages, it would not follow that he was also an Adi Dravida Hindu.
The second circumstance that the 1st respondent was looked upon as a peacemaker among the Adi Dravida Hindus of K.G.F. cannot also be regarded as of much significance, because, if the Ist respondent was a recognised leader, it is quite possible that the Adi Dravida Hindus of K.G.F. might go to him for resolution of their disputes, even though he himself might not be an Adi Dravida Hindu.
But the third, fourth and fifth circumstances are of importance, because, unless the 1st respondent was recognised and accepted as an Adi Dravida Hindu, he would not have been invited to lay the foundation stone for the construction of the new wall of the temple of Jambakullam, which was essentially a temple of Adi Dravida Hindus, nor would he have been requested to participate in the Maroazhi Thiruppavai celebration at the Kannabhiran Temple situate at III Line, Kennedy Block, K.G.F., which was also a temple essentially maintained by the Adi Dravida Hindus and equally, he would not have been invited to preside at the Adi Krittikai festival at Mariamman Temple in I, Post office Block, Marikuppam, K.G.F. where the devotees are Adi Dravidas or to start the procession of the Deity at such festival.
These three circumstances are strongly indicative of the fact that the 1st respondent was accepted and treated as a member by the Adi Dravida community.
So also does the sixth circumstance that the 1st respondent was a member of the Executive Committee of the Scheduled Caste Cell in the organisation of the Ruling Congress indicate in the same direction.
The 98 seventh and eighth circumstances are again of a neutral character The funeral ceremonies and obsequies of the father of the 1st respondent would naturally be performed according to the Adi Dravida Hindu rites if he was an Adi Dravida Hindu and that would not mean that the 1st respondent was also an Adi Dravida Hindu.
Similarly, the fact that the 1st respondent participated in the first annual ceremonies of the late M. A. Vadivelu would not indicate that the 1st respondent was also an Adi Dravida Hindu like late M. A. Vadivelu.
But the ninth circumstance is again very important.
It is significant that the children of the 1st respondent were registered in the school as Adi Dravida Hindus and even the appellant himself issued a certificate " stating that R. Kumar, the son of the 1st respondent, was a Scheduled Caste Adi Dravida Hindu.
The tenth circumstance that the first respondent participated in the All India Scheduled Castes Conference at New Delhi on 30th and 31st August, 1968 may not be regarded as of any particular importance.
It would merely indicate his intention and desire to regard himself as a member of the Adi Dravida Caste.
The eleventh circumstance is, however, of some importance, because it shows that throughout the 1st respondent was treated as a member of the Adi Dravida Caste and he was never disowned by the members of that caste.
They always regarded him as an Adi Dravida belonging to their fold.
But the most important of all these circumstance is the twelfth, namely, the Scheduled Caste Conference held at Skating Rink, Nundydroog Mine, K.G.F.
On 11th August.
The High Court has discussed the evidence in regard to this conference in some detail.
We have carefully gone through the evidence of the witnesses on this point, but we do not find anything wrong in the appreciation of their evidence by the High Court.
We are particularly impressed by the evidence of Kakkan (PW 13).
The cross examination of J. C. Adimoolam (RW 1) is also quite revealing.
We find ourselves completely in agreement with the view taken by the High Court that this conference, attended largely by Adi Dravida Hindus, was held on 11th August, 1968 inter alia with the object of re admitting the 1st respondent into the fold of Adi Dravida caste and not only was a purificatory ceremony performed on the 1st respondent at this conference with a view to clearing the doubt which had been cast on his membership of the Adi Dravida caste by the decision of this Court in the earlier case but an address exhibit P 56 was also presented to the 1st respondent felicitating him on this occasion.
It is clear from these circumstances, which have been discussed and accepted by us, that after his reconversion to Hinduism, the 1st respondent was recognised and accepted as a member of the Adi Dravida caste by the other members of that community.
The High Court was, therefore, right in coming to the conclusion that at the material time the 1st respondent belonged to the Adi Dravida caste so as to fall within the category of Scheduled Castes under Paragraph 2 of the Constitution (Scheduled Castes) order, 1950.
In the result the appeal fails and is dismissed with costs.
V.P.S. Appeal dismissed.
| The petitioner was employed by the Government of India on a five year contract in the Resettlement and Employment Directorate of the Ministry of Labour.
When his contract was due to expire the Government made him a new offer to continue him in service in his post temporarily for the period of the Resettlement and Employment Organisation on the condition that he will be governed by the Central Civil Services (Temporary Service) Rules, 1949, which provided for termination of the contract by month 's notice on either side.
He accepted the offer and continued in service, but subsequently his services were terminated after giving him one month 's notice, The petitioner applied for relief under article 32 (1) of the Constitution alleging that his funda mental rights under articles 311, 14 and 16 (1) of the Constitution were infringed: Held, (i) that article 311 had no application as this was not a case of dismissal or removal from service nor a reduction in rank but only an ordinary case of a contract being terminated by notice under one of its clauses, the difference between dismissal and 656 removal being that the former ordinarily disqualifies from future employment but not the latter; (ii) article 14 had no application as he had not been discriminated against and had not been denied the protection of any laws which others similarly situated could claim; (iii) article 16 was equally inapplicable as the petitioner was not denied equal opportunity in a matter relating to appointment or employment but had been treated just like any other person to whom an offer of temporary employment under these conditions was made.
The State can enter into contracts of temporary employment and impose special terms in each case, provided they are not inconsistent with the Constitution, and those who choose to accept those terms and enter into the contract are bound by them, even as the State is bound.
|
vil Appeals Nos.
1166 72 of 1985 etc.
From the Judgment and Order dated 24.1.85 of the Punjab & Haryana High Court in C.W.P. Nos.
698 to 703 and 733 of 1984.
Raja Ram Aggarwal, B. Sen, Dr. Devi Paul, D.S. Tawatia, Soli J. Sorabjee, Kapil Sibal and S.K. Dholakia, A.N. Haka sar, D.N. Misra, Mukul Mudgal, Ravinder Narain, P.K. Ram, section Sukumaran, section Ganesh, Mahabir Singh, H.S. Anand.
R. Karania wala, Mrs. Manik Karanjawala, A.S. Bhasme and A.M. Khanwil kar for the Appearing Parties.
The following Judgments of the Court were delivered: SABYASACHI MUKHARJI, J. Except civil appeals Nos.
416263 of 1988, in these appeals along with the special leave petitions and the writ petition, we are concerned with Sections 9(1) and 24(3) as well as the penalty proceedings initiated under Section 50 of the Haryana General Sales Tax Act, 1974 (hereinafter referred to as 'the Act ').
So far as civil appeals Nos. 4 162 63 of 1988 are concerned, these involve the scope, effect and validity of Section 13AA of the Bombay Sales 523 Tax Act.
1959 (hereinafter referred to as 'the Bombay Act ') as introduced by the Maharashtra Act No. XXVIII of 1982.
It will, therefore, be desirable first to deal with the ques tion of the Act, and then with the provisions of the Bombay Act as mentioned hereinbefore.
The appellant/petitioner Goodyear India Ltd., was engaged at all relevant times, inter alia, in the manufac ture and sale of automobile tyres and tubes.
It manufactured the said tyres and tubes at its factory at Ballabhgarh in the district of Faridabad in the State of Haryana.
For the said manufacturing activity the appellant had, from time to time, to purchase various kinds of raw materials both within the State and outside the State.
It is stated that about 7 to 10% of the total needs of raw materials on an all India basis were locally procured by the appellant from Haryana itself.
The raw materials purchased in Haryana were: (i) pigments (partly), (ii) chemicals (partly), (iii) wires (partly), (iv) carbon black (partly), (v) rubber (partly), and (vi) fabric (partly).
The rest of the requirements were imported from other States.
The appellant had its depots at different places in the State of Haryana as well as in other States.
After manufacturing the said tyres and tubes, about 10 to 12% of the total manufactured products used to be sold in the State of Haryana either locally or in the course of inter State trade & commerce or in the course of export outside the country and also sold locally against Declara tion Form No. ST 15.
It was stated that at the relevant time the local sales including sales in the course of inter State trade & commerce and in the course of export from the State of Haryana was about 30 to 35%.
The appellant was a regis tered dealer both under the Haryana Act and the , and had been submitting its quarterly returns and paying the sales tax in accordance with law, according to the appellant.
In 1979, the assessing authority, Farida bad, imposed upon the appellant the purchase tax under Sec tion 9 of the Act for the assessment year 1973 74 and subse quently for the years 1974 75 and 1975 76 as well on the despatches made by the appellant on the manufactured goods to its various depots outside the State.
Subsequently, the relevant revenue authorities sought to impose purchase tax under Section 9(1) of the Act and imposed purchase tax on despatches of manufactured goods, namely, tyres and tubes, to its various depots in other States.
This led to the filing of various writ petitions in the Punjab & Haryana High Court by the appellant/petitioner.
In respect of the assessment years 1976 77 to 1979 80.
these questions were considered by the Punjab and Haryana High Court, and the writ.
petitions were decided in favour of the appellant on December 524 4, 1982.
The said decision being the decision in Goodyear India Ltd. vs The State of Haryana & Anr.
is reported in 53 STC 163.
The Division Bench of the High Court in the said decision held that both on principle and precedent, a mere despatch of goods out of the State by a dealer to his own branch while retaining both title and possession thereof, does not come within the ambit of the phrase "disposes of the manufactured goods in any manner otherwise than by way of sale", as employed in section 9(1)(a)(ii) of the Act.
The High Court further held that the decision of this Court in The State of Tamil Nadu vs M.K. Kandaswami, [1975] 36 STC 191 was no warrant for the proposition that a mere despatch of goods was within the ambit of disposing them of.
The High Court also distinguished the decision of this Court in Ganesh Prasad Dixit vs Commissioner of Sales Tax, M.P., [1969] 24 STC 343, and held that Notification No. S.O. 119/H.A. 20/73/Ss. 9 & 15/74 dated July 19, 1974 issued under Section 9 (prior to its amendment by Act No. 11 of 1979) was ultra vires of Section 9 of the Act.
It was held that whereas the section provided only for the levy of purchase tax on the disposal of manufactured goods, the impugned notification by making a mere despatch of goods to the dealers themselves taxable, in essence, legislates and imposes a substantive tax which it obviously could not.
It was held that this was contrary to and in conflict with the provisions of section 9.
The High Court referred to the relevant portion of unamended Section 9 of the Act with which it was confronted and the notification.
In order to appreciate the said decision and the position, it will be appropriate to set out the said provisions, namely, the unamended provisions of Section 9 as well as the notifica tion: "9.
Where a dealer liable to pay tax under this Act purchases goods other than those specified in Schedule B from any source in the State and (a) uses them in the State in the manufacture of, (i) goods specified in Schedule B or (ii) any other goods and disposes of the manufactured goods in any manner otherwise than by way of sale whether within the state or in the course of inter State trade or commerce or within the meaning of sub section (1) of Section 5 of the , in the course of export out of the territory of India, 525 (b) exports them, in the circumstances in which no tax is pay able under any other provision of this Act, there shall be levied, subject to the provi sions of section 17, a tax on the purchase of such goods at such rate as may be notified under section 15.
" The relevant notification was as follows: "Notification No. S.O. 119/H. A. 20/73/Ss. 9 and 15/74 dated the 19th July, 1974.
In exercise of the powers conferred by section 9 and subsection (1) of section 15 of the Haryana General Sales Tax Act, 1973, the Governor of Haryana hereby directs that the rate of tax payable by all dealers in respect of the purchases of goods other than goods specified in Schedules C and D or goods liable to tax at the first stage notified as such under section 18 of the said Act, if used by them for purposes other than those for which such goods were sold to them shall be the rate of tax leviable on the sale of such goods: Provided that where any such dealer, instead of using such goods for the purpose for which they were sold to him, despatches such goods or goods manufactured therefrom at any time for consumption or sale outside the State of Haryana to his branch or commission agent or any other person on his behalf in any other State and such branch, commission agent or other person is a registered dealer in that State and produces a certificate from the assessing authority of that State or produces his own affidavit and the affidavit of the consignee of such goods duly attested by a Magistrate or Oath Commissioner or Notary Public in the form appended to this notifica tion to the effect that the goods in question have been so despatched and received and entered in the account books of the consignee, the rate of tax on such goods shall be three paise in a rupee on the purchase value of the goods so despatched." The High Court, as stated before, referred to section 9 and held that the expression 'disposes of ' was not basically a term of legal art and, therefore, it was proper and neces sary to first turn to its ordinary 526 meaning in order to determine whether a mere despatch of goods by a dealer to himself would connote 'disposal of ' such goods by him.
The High Court referred to the dictionary meaning of 'disposes of ' in Webster 's Third New Internation al Dictionary.
Reference was also made to 27 Corpus Juris Secundum, P. 345, and ultimately it came to the conclusion that the phrase 'disposes of ' or 'disposal ' cannot be possi bly equated with the mere despatch of goods by a dealer to himself.
After referring to the relevant provisions with which this Court was concerned in Kandaswami 's case (supra), the High Court held that that case was no warrant for con struing the expression 'despatch ' as synonymous to 'dispos al '.
On the other hand, the court held that the decision of this Court emphasises that the expression 'disposal ' of goods is separate and distinct from despatch thereof.
Ac cording to the High Court, the same position was applicable to Ganesh Prasad Dixit 's case (supra), and in those circum stances held that the term 'disposes of ' cannot be synony mous with 'disposal ', and once that is held then the notifi cation mentioned above travelled far beyond what is provided in Section 9 of the Act, while the said provision provided only for levy of purchase tax on disposal of manufactured goods.
The High Court observed as follows: "Once it is held as above, the impugned Notification No. S.O. 119/H.A. 20/73/Ss. 9 and 15/74 dated 19th July, 1974 (annexure P 2), plainly travels far beyond the parent section 9 of the Act.
Whereas the said provision provided only for the levy of a purchase tax on the disposal of manufactured goods, the notification by making a mere despatch of goods to the dealers themselves taxable in essence, legislates and imposes a substantive tax which it obviously cannot.
Indeed, its terms run contrary to and are in direct conflict with the provisions of section 9 itself.
There is thus no option but to hold that the notification, which is a composite one, is ultra vires of section 9 of the Act and is hereby struck down.
" The High Court also noted that though the challenged assessment orders were appealable, however, as the challenge was to the very validity of the notification which was obviously beyond the scope of the appellate authority, the writ petitions were entertainable as the assessment was based on the notification which was frontally challenged.
As a result, the High Court quashed the notification and set aside the assessment orders.
The said decision is under challenge in appeal to this Court.
527 It may be mentioned that sub section (1) of section 9 of the Act had been introduced by the Haryana Act, 55 of 1976 in the Act.
After the aforesaid decision of the High Court, the Haryana Legislature intervened and enacted the Haryana General Sales Tax (Amendment & Validation) Act, 1983 by which Section 9 of the principal Act was amended as follows: "Amendment of Section 9 of Haryana Act 20 of 1973 in Section 9 of the principal Act, (a) in sub section (1) , (i) for clause (b), the following clause shall be substituted and shall be deemed to have been substituted for the period commencing from the 27th day of May, 1971, and ending with the 8th day of April, 1979, namely: "(b) purchases goods, other than those speci fied in Schedule B, from any source in the State and uses them in the State in the manu facture of any other goods and either disposes of the manufactured goods to a place outside the State in any manner otherwise than by way of sale in the course of inter State trade or commerce or in the course of export outside the territory of India within the meaning of Sub section (1) of Section 5 of the ; or", (ii) after clause (b), the following clause shall be deemed to have been inserted with effect from the 9th day of April, 1979, name ly: "(bb) purchases goods, other than those speci fied in Schedule B except milk, from any source in the State and uses them in the State in the manufacture of any other goods and either disposes of the manufactured goods in any manner otherwise than by way of sale in the State or despatches the manufactured goods to a place outside the State in any manner otherwise than by way of Sale in the course of inter State trade or commerce or in the course of export outside the territory of India within the meaning of Sub Section (1) of Section 5 of the ; or"; 528 {iii) the following proviso shall be added, namely: "Provided that no tax shall be leviable under this section on scientific goods and guar gum, manufactured in the state and sold by him in the course of export outside the territory of India within the meaning of Sub section (3) of Section . of the ."; and (b) in sub section (3), the words "other than Railway premises" shah be omitted." After the aforesaid amendment the writ petitions were filed in the High Court by Bata India Ltd. In the meantime, the petitioner Company also filed writ petitions for the assessment years 1973 74 to 1975 76 and 1980 81 in the High Court challenging the assessment.
The High Court decided these matters on August 2, 1983.
The said decision Bata India Ltd. vs The State of Haryana & Anr. has been reported in 1983 Vol.
54 STC 226.
The High Court held that "mere despatch of goods to a place outside the State in any manner otherwise than by way of sale in the course of inter State trade or commerce" is synonymous with or is in any case included within the ambit of the consignment of goods either to the person making it or to any other person in the course of inter State trade or commerce as specified in Article 269(1)(h) and Entry No. 92 B of List 1 of the 7th Schedule to the Constitution.
Hence, the levy of sales or purchase tax on such a despatch or consignment of goods and matters ancillary or subsidiary thereto, will be within the exclu sive legislative competence of Parliament to the total exclusion of the State Legislature.
Therefore, section 9(1)(b) of the Haryana General Sales Tax Act, 1973, as amended by the Haryana General Sales Tax (Amendment & Vali dation) Act, 1983, insofar as it levies a purchase tax on the consignment of goods outside the State in the course of inter State trade or commerce is beyond the legislative competence of the State of Haryana and is void and inopera tive.
It was held that the retrospective validation of the notification of 19th July, 1974 referred to hereinbefore, and the consequential validation of all actions taken there under were liable to be quashed.
The High Court further held that mere manufacture and consignment of goods outside the State to himself by a manufacturer is not sale or disposal thereof with the result that it will not be within the ambit of Entry No. 54 of List II of the 7th Schedule to the Con stitution.
Consequently, it was held that irrespective of the 46th Amendment, an attempt to tax the mere consignment or despatch of manufactured goods outside the State in the course of inter State trade 529 or commerce will not come within the ambit of Entry No. 54 of List II of the 7th Schedule, and consequently of the competence of the respective State Legislatures.
Even before the 46th Amendment, the mere consignment of goods in the course of inter State trade or commerce was beyond the scope of the said Entry and thus not within the legislative compe tence of the States and was entirely within the parliamen tary field of.
legislation by .virtue of Article 248 and the residuary Entry No. 97 of List I. The High Court was of the view that neither the original purchase of goods nor the manufacture thereof into the end product by itself attracts purchase tax and consequently are not even remotely the taxable events.
What directly and pristinely attracts the tax and can be truly labelled as the taxing event under section 9(1)(b) of the Act is the three fold exigency of; (i) disposal of the manufactured goods in any manner otherwise than by way of sale in the State; or (ii) despatch of the manufactured goods to a place outside the State in any manner otherwise than by way of sale in the course of inter State trade or commerce, or (iii) disposal or despatch of the manufactured goods in the course of export outside the territory of India.
It was these three exigencies only which were the taxable events in the amended section 9(1)(b) of the Act.
Consequently, in a Statute where the taxable event is the despatch or consignment of goods outside the State, the same would come squarely within the wide sweep of Entry No. 92B of List I of the Constitution, and thus excludes taxation by the States.
The High Court was of the view that section 9 of the Act must be strictly construed as it was a charging section.
If the charging section travels beyond the legislative Entry and thereby transgresses the legislative field, then the same cannot possibly be sustained.
The constitutional changes brought by the 46th Amendment in article 269 of the Constitution read with the insertion of Entry No. 92B in the Union List, leave no doubt that the legislative arena of tax on the consignment of goods (whether to one 's ownself or to any other person) in the course of inter State trade or commerce and all ancillary or complementary or consequential matters, are now declared to be exclusively reserved for parliamentary legislation and any intrusion into this field by the State Legislatures would be barred.
In my opinion, the High Court correctly noted in the said decision that the provisions of constitutional change have to be construed, and such problems should not be viewed in narrow isolationism but on a much wider.
spectrum and the principles laid down in Heydon 's case 530 ; are instructive.
Hence, in a situation of this nature, it was just and proper to see what was the position before the 46th Amendment of the Constitution, and find out what was the mischief that was sought to be reme died and then discover the true rationale for such a remedy.
In Black Clawson International Ltd. vs Papierwerke Waldhof Aschaffenburg Ag.
, ; , Lord Reid observed as follows: "One must first read the words in the context of the Act as a whole, but one is entitled to go beyond that.
The general rule in construing any document is that one should put oneself 'in the shoes ' of the maker or makers and take into account relevant facts known to them when the document was made.
The same must apply to Acts of Parliament subject to one qualifica tion.
An Act is addressed to all the lieges and it would seem wrong to take into account anything that was not public knowledge at the time.
That may be common knowledge at the time or it may be some published information which Parliament can be presumed to have had in mind.
It has always been said to be impor tant to consider the mischief which the Act was apparently intended to remedy.
The word 'mischief ' is traditional.
I would expand it in this way.
In addition to reading the Act you look at the facts presumed to be known to Parliament when the Bill which became the Act in question was before it, and you consider whether there is disclosed some unsatisfactory state of affairs which Parliament can properly be supposed to have intended to remedy by the Act . " The state of affairs that the Parliament has sought to remedy by the 46th Amendment of the Constitution, was that prior to the promulgation each State attempted to subject the same transaction to tax on the nexus doctrine under its sales tax laws.
Consequently, on the basis of one or the other element of the territorial nexus, the same transaction had to suffer tax in different States with the inevitable hardship to trade and consumers in the same or different States.
The framers of the Constitution being fully aware of the problems sought to check the same by a somewhat complex constitutional scheme and by imposing restrictions on the States ' power with regard to levy tax on the sale or pur chase of goods under article 286.
The High Court in the judg ment referred to hereinbefore, mentioned these factors.
It is in 531 this background that article 269 was amended and clause (3) was added to it.
The effect, inter alia, is that the power to levy tax on the sale or purchase of goods is now referable to the legislative power vested in the States by virtue of Entry No. 54 in List II of the 7th Schedule.
However, this legislative authority of the States is restricted by three limitations contained in Articles 286(1)(a), 286(1)(b) & 286(3) of the Constitution.
It may be mentioned that Parlia ment by the 6th Amendment to the Constitution, enacted the , with the object to formulate principles for determining when a sale or purchase of goods takes place in the course of inter State trade or commerce or outside a State or in the course of import into or export from India, to provide for the levy, collection and distri bution of taxes on sales of goods in the course of inter State trade or commerce and to declare certain goods to be of special importance and specify the restrictions and conditions to which State laws imposing taxes on the sale or purchase of such goods shall be subject.
In this connection, the High Court referred to the various propositions as mentioned by the Law Commission in its 61st Report rendered in May, 1974.
It is not necessary to set out the same in detail.
It was in the aforesaid historical background that the High Court construed the provisions in question and came to the conclusion that a plain reading of these would leave little manner of doubt that the legislative power to tax consignment transfers of goods from one branch of an insti tution to another branch thereof outside the State and all matters incidental, ancillary or complementary thereto were then declared to be vested in the Union of India to the total exclusion of the States.
The High Court referred to the observations of this Court in Khyerbari Tea Co. Ltd. vs State of Assam; , ; Navinchandra Mafatlal vs The Commissioner of Income tax, Bombay City, [1955] SCR 829 and Waverly Jute Mills Co. Ltd. vs Raymon & Co. (1) Pvt. Ltd.; , , and concluded that Entry 92B enabled the Union of India not only to tax the consignment of goods in the strict sense but also embraced all ancillary and complementary areas as well to the exclusion of the State Legislature therefrom.
In the aforesaid light the High Court construed section 9(1)(b) of the Haryana Act, 1983.
Analy sing the provisions in detail it observed that Section 9 of the Act was a charging section for the levy of purchase tax.
It imposed liability for payment of purchase tax, therefore, it should be distinguished from the machinery section.
The High Court examined the real nature of the business outside the State and found that there was merely a change in the physical situs of the goods without any change in the basic incidents of ownership and control.
Therefore, in its true nature a mere despatch of goods outside the State to another branch of the original institution is not and never 532 can be the equivalent of a sale either as a term of art in the existing sales tax legislation and not remotely so in common parlance, and construing section 9(1)(b) of the Act, the High Court was of the view that the real taxing event is the despatch of the manufactured goods to a place outside the, State in any manner otherwise than by way of sale in the course of inter State trade or commerce.
The High Court found that there was no distinction between the despatch as defined in the said amended section and the consignment of goods by the manufacturer to himself or any other person in the course of inter State trade or commerce, and referred to the meanings of the expressions 'despatch ' and 'consign ', which are similar and almost interchangeable when used in specific commercial sense.
The High Court referred to Webster 's New International Diction ary, Shorter Oxford English Dictionary and also to Random House dictionary for their meanings.
On construction, the High Court came to the conclusion that the amended provi sions of section 9(1)(b) of the Act attempt to levy an identical tax in the garb of a levy on the despatch of manufactured goods to places outside the State of Haryana, and therefore intruded and trespassed into an arena exclu sively meant for taxation by the Union of India.
The High Court also viewed from another point of view, namely, who was liable as it was the consignment of goods which attract ed the liability of purchase tax and in pristine essence was the "taxable event" under section 9(1)(b) of the Act.
The High Court also analysed it from the point of view that under section 9(1)(b), where a dealer purchases goods for the express purpose of manufacturing other goods within the State, then in strict sense such purchase by itself did not attract any tax under the provisions.
Hence, the High Court set aside the amended provision so far as it sought to levy purchase tax on the consignment of goods outside the State in the course of inter State trade or commerce, consequently it also set aside the retrospective validation of the noti fication and the consequential validation of all actions taken thereunder.
Special leave petitions were filed in this Court against the said decision of the High Court.
These are special leave petitions Nos. 8397 to 8402 of 1983.
During the pendency of the special leave petitions, show cause notices were issued by the assessing authority in respect of the assessment years 1973 74 to 1980 81 (except for 1978 79 & 1979 80) and also for 1982 83 asking the petitioner to show cause why in addition to purchase tax, it should not be liable to penalty as well.
The petitioner Company again filed writ petitions in Punjab & Haryana High Court chal lenging the validity of those notices.
It appears that in the meantime, a Full Bench of the High Court decided the question again in the case of Des Raj Pushap 533 Kumar Gulati vs The State of Punjab & Anr.
This decision was rendered on January 24, 1985, and is reported in 58 STC 393.
The assessment years involved in all appeals are 1973 74 to 1982 83.
According to the Full Bench, the taxing event is the act of purchase and not the Act of despatch or con signment as held in Bata India Ltd., (supra).
In the prem ises, it was held that section 9(1)(b) as amended, was neither invalid nor ultra vires and overruled the decision of Bata India Ltd. The writ petitions filed were also dis missed.
The petitioner Company filed special leave petitions against the aforesaid judgment of the Punjab & Haryana High Court which were admitted in Civil Appeals Nos.
1166 72/85.
Goodyear India also filed writ petition No. 3834 of 1985 in respect of the assessment year 1981 82, as the notices for assessment and penalty were received after the decision of Punjab & Haryana High Court in Des Raj Pushap Kumar 's case (supra).
The said decision was passed in appeal against the decision of the said court in Goodyear India reported in 53 STC 163, number being 1514 (NT) of 1984.
All these questions are the subjectmatters of these appeals.
It is well settled that what is the taxable event or what necessitates taxation in an appropriate Statute, must be found out by construing the provisions.
The essential task is to find out what is the taxable event.
In what is considered to be indirect tax, there is a marked distinction between the consequence of manufacture and the consequence of sale.
It is well to remember that in construing the expres sions of the Constitution to judge whether the provisions like Section 9(1)(b) of the Act, are within the competence of the State Legislature, one must bear in mind that the Constitution is to be construed not in a narrow or pedantic sense.
Constitution is not to be construed as mere law but as the machinery by which laws are to be made.
It was ob served by Lord Wright in James vs Commonwealth of Australia, at 614, that the rules which apply to the interpretation of other Statutes, however, apply equally to the interpretation of a constitutional enactment.
In this context, Lord Wright referred to the observations of the Australian High Court in The Attorney General for the State of New South Wales vs The Brewery Employees Union etc.
; , where it was observed that the words of the Constitution must be interpreted on the same principles as any ordinary law, and these principles compel us to consider the nature and scope of the Act, and to remember that the Constitution is a mechanism under which laws 534 are to be made, and not a mere Act which declares what the law is to be.
Hence, such mechanism should be interpreted broadly, bearing in mind in appropriate cases, that the Supreme Court like ours is a nice balance of jurisdictions.
A Constitutional Court, one must bear in mind, will not strengthen, but only derogate from its position if it seeks to do anything but declare the law; but it may rightly reflect that a Constitution is a living and organic thing, which of all instruments has the greatest claim to be con strued broadly and liberally.
See the observations of Gwyer, C.J. in Re: Central Provinces & Berar Sales of Motor Spirit and Lubricants Taxation Act, 1938, AIR 1939 PC 1 at 4).
Mr. Justice Sulaiman in his judgment at p. 22 of the report observed that the power to tax the sale of goods is quite distinct from any right to impose taxes on use or consump tion.
It cannot be exercised at the earlier stage of produc tion nor at the later stage of use or consumption, but only at the stage of sale, (emphasis supplied).
The essence of a tax on goods manufactured or produced is that the right to levy it accrues by virtue of their manufacture.
On the other hand, a duty on the sale of goods cannot be levied merely because goods have been manufactured or produced.
Nor can it be levied merely because the goods have been consumed or used or even destroyed.
The right to levy the duty would not at all come into existence before the time of the sale.
In this connection, reference may be made to the observations of Chief Justice Gwyer in The Province of Madras vs M/s. Boddu Paidanna & Sons, AIR 1942 FC 33.
Mr Raja Ram Agarwala, learned counsel for the appellant/assessees, contended before us that it is neces sary to find out or identify the taxable event.
If on a true and proper construction of the amended provisions of section 9(1)(b) it is the despatch or consignment of the goods that is the taxable event as contended by the petitioners and appellants, then the power is beyond the State 's competence.
If, on the other hand, it is the purchase of the goods that is the taxable event as held by the Full Bench of the High Court, then it will be within its competence.
The Full Bench in Des Raj Pushap Kumar 's case (supra) has relied on the background of the facts and the circumstances which necessi tated the introduction of the amendment.
Mr. Tewatia, learned counsel appearing for the State canvassed before us the historical perspective and stated that Haryana State came into being as a result of the Punjab State Reorganisation Act, 1966, therefore, part of the legislative history of the taxing Statute like any other Statute is shared by the Haryana State with the Punjab State, and as such it is proper to notice the concept of purchase tax as it 535 evolved in the State of Punjab.
Purchase tax was introduced in the State of Punjab for the first time by the East Punjab General Sales Tax (Amendment) Act, 1958.
Section 2(ff) was introduced for the first time to define the expression 'purchase '.
The definition of the term 'dealer ' was changed to include therein a purchaser of goods also.
The definition of the term 'taxable turnover ' was also altered.
Some deal ers who crushed oil seeds, were called upon to pay purchase tax on the raw material purchased by them on the ground that the raw material had not been subjected to a manufacturing process as the process of crushing oil seeds did not involve a process of manufacturing.
He referred to the fact that Punjab had originally exempted purchase tax on the purchase of raw material by the dealers if such raw material was to be used for the manufacture of goods for sale in Punjab and thus generate more revenue to the State as a result of the sales tax on such manufactured goods.
But when the dealers started avoiding this condition for sale in Punjab by var ious ingenious devices after having escaped the payment of purchase tax on the raw material purchased by them, the Legislature amended the Act and Punjab Act No. 18 of 1960 was brought on the statute book w.e.f. April 1, 1960.
Sec tion 2(ff) of the Act was amended and it provided that all the goods mentioned in Schedule C when purchased shall be exigible to purchase tax and thus the concession given to the manufacturers was withdrawn.
Explaining this background, Mr. Tewatia contended that section 9, sub section (i) of the Act envisages payment of tax at such rate as may be notified under Section 15 on the purchase of goods from any source within the State by a dealer liable to pay tax under the Act when such goods, not being Schedule 'B ' goods, were consumed either in producing Schedule 'B ' goods or when the manufac tured goods were other than Schedule 'B ' goods, the same not being sold within the State or in the course of inter State trade or commerce, or in the course of export outside the territory of India, or the purchased goods were exported outside the State.
After referring to the relevant provisions and the provisions of section 9(1)(b), Mr Tewatia emphasised that the contingency contemplated by "or despatches the manufac tured goods to a place outside the State in any manner otherwise than by way of sale in the course of inter State trade or commerce or in the course of export outside the territory of India within the meaning of section 5(1) of the ; or" as well as clause (c) of section 9(1) which encompasses "purchases goods, other than those specified in Schedule B, from any source in the State and exports them, in the circumstances in which no tax is payable under any other provision of 536 this Act, there shall be levied, subject to the provisions of Section 17, a tax on the purchase of such goods at such rate as may be notified under Section 15.", have to be judged for determining their validity in the true historical perspective as well as bearing in mind the remedial aspect of the provisions for the purpose of which these were enact ed.
Therefore, the main question is whether the tax envis aged by section 9(1) is a tax on purchase/sale of given goods or is a tax on the despatch/ consignment of such goods and that depends on, as to whether the taxable event is a purchase/sale of goods or despatch/consignment of such goods.
As mentioned hereinbefore, Mr. Tewatia laid great deal of emphasis on the background of the provisions of section 9(1).
He urged that the said section is both a taxing as well as a remedial provision, as would be evident from the scheme of the Act.
The legislative policy was to see that all goods except non taxable goods i.e. Schedule 'B ' goods, must yield tax/revenue to the State in the hands of a dealer, at one stage or the other, according to Mr. Tewatia.
He analysed the scheme and referred us to section 6 along with section 27 of the Act, and then submitted that the provision of section 9(1) along with subsection (3) of section 24 of the Act are both composite provisions, i.e. they are both charging provisions as also remedial provi sions.
According to him, such composite provisions of a fiscal Statute deserve to be interpreted properly and in such a manner as to further remedy and thus effectuate the legislative intent and suppress the mischief intended to be curbed.
Reliance was placed by the High Court as well as Mr. Tewatia before us on the observations of this Court in The State of Tamil Nadu vs Kandaswami, (supra), where at p. 198 of the Sales Tax Cases, this Court while dealing with sec tion 7A of the Tamil Nadu (Amendment) Act, observed that it was at once a charging as well as a remedial provision.
Its main object was to plug leakage and prevent evasion of tax.
In interpreting such a provision, a construction which would defeat its purpose and, in effect, obliterate it from the statute book, should be eschewed.
If more than one construc tion is possible, that which preserves its workability and efficacy is to be preferred to the one which would render it otiose or sterile, observed this Court in that case.
While bearing the aforesaid principle in mind, it has to be exam ined as to how far the application of this provision can be construed with the well settled principle of fiscal legisla tion and the terms and conditions of the present legisla tion.
It has been said and said on numerous occasions that fiscal laws must be strictly construed, words must say what these mean, nothing should be presumed or implied, these must say so.
The true test must always be the language used.
537 On behalf of the assessee, Mr. Rajaram Agarwala, howev er, further contended that the ratio of Kandaswami 's case (supra) to which Mr. Tewatia referred, must be understood in the light of the question involved in that case.
The said decision of this Court was concerned with the limited point as to whether the Madras High Court was right in observing "whether one could say that the sale which is exempted is liable to tax and then assume that because of exemption, the tax is not payable".
This Court held that the language of section 7A of the said Act was far from clear as to its intention and did not concern with the identification of the taxing event.
Furthermore, it has to be borne in mind, as emphasised by Mr. Agarwala, that if at all the taxing event was spelt out, it was on the assumption that the goods in question were generally taxable and these were to be put to tax under section 7A of the Tamil Nadu Act, if these came to be purchased without payment of tax and then sought to be dealt with in any manner as to escape payment of State sales/purchase tax within the State.
Mr. Tewatia drew our attention to the observations of this Court in Kandaswami 's case (supra) to prove that the observations in Malabar Fruit Products Co. vs The Sales Tax Officer, Palai, 30 STC 537, where these questions were decided by Justice Poti of the Kerala High Court, who spelt out that the taxing event was not the event of despatch but the event of purchase/sale of goods.
It has, however, to be borne in mind that the questions involved in Malabar Fruit Products ' case and Kandaswami 's case (supra) were not con cerned with the actual argument with which we are concerned in the instant matter.
It is well settled that a precedent is an authority only for what it actually decides and not for what may remotely or even logically follows from it.
See Quinn vs Leathem, ; and The State of Orissa vs Sudhansu Sekhar Misra & Ors., ; Therefore, the ratio of the said decision cannot be properly applied in construing the provisions of section 9(1)(b) in this case to determine what is the taxable event.
It was contended by Mr. Rajaram Agarwala that clause (b) of Section 9(1) dealt with non exempted goods purchased in the State, used in the manufacture of any goods whether exempted or not, but when despatched outside the State of Haryana i.e. by way of stock transfer consignment will attract the tax liability under this section, hence, the event of despatch or consignment is the immediate cause which attracts the tax liability under section 9.
The quali ty or the character of goods which should be liable to tax under section 9 in clause (1)(a) is the non exempted goods purchased in the State; while 538 under the first part of clause (b) the quality of goods liable to tax is the non exempted goods purchased in the State and under the second part of clause (b), the quality of goods must be non exempted goods purchased and manufac tured in the State, whether exempted or not in the State which is liable to tax on despatch outside Haryana; and under clause (c) the goods purchased in Haryana without undergoing any further change or use is the quality of goods liable to tax when exported.
The submission of the State is that the taxable event is the purchase of goods in Haryana while the obligation to pay is postponed on the fulfilment of certain conditions.
The further argument is that there is a general liability to purchase tax which the dealer avoids on furnishing a Decla ration in S.T. Form 15 as provided by section 24 at the time of purchase, wherein certain conditions are mentioned and when those conditions are not fulfilled, those revive.
It was further argued that the conditions are incorporated in section 9 of the Act.
For testing which of the contentions are nearer to find out the exact taxable event, certain indicias and illustrations may be seen.
Their analysis will indicate that there is no liability to pay sales tax under the Haryana Act on the purchaser.
It is admitted that on such sales the selling dealer is liable to pay sales tax.
On such purchases, the sale and purchase being the two sides of the same coin, no purchase tax is imposed under the Act.
This has been the accepted position by the State also for, while replying to the question of double taxation counsel for the State admitted that sales as well as purchase tax is to be imposeable under the scheme of the Act which are of two sides.
Hence, it was rightly urged by Mr. Rajaram Agar wala that the first contention for attracting the applica bility of section 9(i), "whether a dealer is liable to pay tax under this Act purchases goods", is missing when the section (1) talks of a dealer liable to pay tax under the Act, obviously it is with reference to his purchasing activ ity and if on that activity no purchase tax is payable, section 9(1) would not be applicable.
To accept the submissions advanced by Mr. Tewatia, assumptions and presumptions are to be made.
It is not permissible to do so in a fiscal provision.
See in this connection the observations of this Court in C.S.T.U.P. vs The Modi Sugar Mills Ltd.; , and Baidyanath Ayurved Bhawan (P) Ltd., Jhansi vs Excise Commissioner, U.P. & Ors.
; , at 592.
In that background it must be noted that section 9 of the Act nowhere makes a reference to section 24 or any declaration furnished by the purchasing dealer on the basis of which he was granted temporary exemp tion and thereby revival of 539 the original purchase tax on the breach of declaration as such.
Section 9 of the Act opens with the expression "where a dealer liable to pay tax under this Act" and not "whether a dealer has paid tax or has not paid tax".
The phrase 'liable to pay tax ' under the Act must relate to liability to pay sales tax on such purchases.
It is well settled that the main test for determining the taxable event is that on the happening of which the charge is affixed.
The realisation often is postponed to further date.
The quantification of the levy and the recov ery of tax is also postponed in some cases.
It is well settled that there are three stages in the imposition of tax.
There is the declaration of liability, that is the part of the Statute which 'determines what persons in respect of what property are liable.
Next, there is the assessment.
Liability does not depend on assessment, that exhypothesi has already been fixed.
But assessment particularises the exact sum which a person is liable to pay.
Lastly comes the method of recovery if the person taxed does not voluntarily pay.
Reference may be made to the observations of Lord Dunedin in Whitney vs Commissioner of Inland Revenue, at p. 52 and of the Federal Court in Chatturam & Ors.
vs C.I.T., Bihar, 15 ITR FC 302 at 308.
Taxable event is that which on its occurrence creates or attracts the liability to tax.
Such liability does not exist or accrue at any earlier or later point of time.
The identi fication of the subject matter of a tax is to be found in the charging section.
In this connection, one has to analyse the provisions of section 9(2)(b) as well as section 9(1)(b) and 9(1)(c).
Analysing the section, it appears to us that the two conditions specified, before the event of despatch outside the State as mentioned in section 9(1)(b), namely, (i) purchase of goods in the State and (ii) using them for the manufacture of any other goods in the State, are only descriptive of the goods liable to tax under Section 9(1)(b) in the event of despatch outside the State.
If the goods do not answer both the descriptions cumulatively, even though these are despatched outside the State of Haryana, the purchase of those goods would not be put to tax under sec tion 9(1)(b).
The focal point in the expression "goods, the sale or purchase of which is liable to tax under the Act", is the character and class of goods in relation to exigibil ity.
In this connection, reference may be made to the obser vations of this Court in Andhra Sugars Ltd. vs State of Andhra Pradesh, ; On a clear analysis of the said section, it appears that section 9(1)(b) has to be judged as and when liability accrues under that section.
The liability to pay tax under this section does not accrue on purchasing the goods simpliciter, but only when these are despatched or consigned out of 540 the State of Haryana.
In all these cases, it is necessary to find out the true nature of the tax.
Analysing the section, if one looks to the alleged purchase tax under section 9, one gets the conclusion that the section itself does not provide for imposition of the purchase tax on the transac tion of purchase of the taxable goods but when further the said taxable goods are used up and turned into independent taxable goods, losing its original identity, and thereafter when the manufactured goods are despatched outside the State of Haryana and only then tax is levied and liability to pay tax is created.
It is the cumulative effect of that event which occasions or causes the tax to be imposed, to draw a familiar analogy it is the last straw on the camel 's back.
In this connection, reference may be made to the obser vations of Justice Vivian Bose in The Tata Iron & Steel Co. Ltd. vs The State of Bihar, ; at 1381, where he observed as follows: "I would therefore reject the nexus theory in so far as it means that any one sale can have existence and entity simultaneously in many different places.
The States may tax the sale but may not disintegrate it, and, under the guise of taxing the sale in truth and in fact, tax its various elements, one its head and one its tail, one its entrails and one its limbs by a legislative fiction that deems that the whole is within its claws simply because, after tearing it apart, it finds a hand or a foot or a heart or a liver still quivering in its grasp.
Nexus, of course, there must be but nexus of the entire entity that is called a sale, wherever it is deemed to be situate.
Fiction again.
Of course, it is fiction, but it is a fiction as to situs imposed by the Constitution Act and by the Supreme Court that speaks for it in these matters and only one fiction, not a dozen little ones.
" It is, therefore, necessary in all cases to find out what is the essence of the duty which is attracted.
A taxa ble event is that which is closely related to imposition.
In the instant section, there is such close relationship only with despatch.
Therefore, the goods purchased are used in manufacture of new independent commodity and thereafter the said manufactured goods are despatched outside the State of Haryana.
In this series of transactions the original trans action is completely eclipsed or ceases to exist when the levy is imposed at the third stage of despatch of manufac ture.
In the instant case the levy has no direct connection with the transaction of purchase of raw materials, it has only a remote connection of lineage.
It may be indirectly and very 541 remotely connected with the transaction of the purchase of raw material wherein the present levy would lose its charac ter of purchase tax on the said transaction.
Mr. Rajaram Agarwala submitted that the measure of tax is with reference to the value of purchased goods in the State of Haryana.
As mentioned before, reference has been made to the decision of Kandaswami 's case (supra), where this Court dealt with section 7A of the Tamil Nadu Act, which was not identical but similar to section 9 of the Act.
There at p. 196 of the report, this Court observed as fol lows: ".
Difficulty in interpretation has been experienced only with regard to that part of the sub section which relates to ingredients (4) & (5).
The High Court has taken the view that the expression "goods, the sale or pur chase of which is liable to tax under this Act", and the phrase "purchases . in circum stances in which no tax is payable under Sections 3, 4 or 5 are a "contradiction in terms".
Ingredients Nos.
4 & 5 are as follows: "4.
The goods purchased are "goods, the sale or purchase of which is liable to tax under this Act".
Such purchase is, "in circumstances, in which no tax is payable under sections 3, 4 or 5, as the case may be;" The relevant ingredient involved, as mentioned at page No. 196, was as under: "6.
The dealer either (a) consumes such goods in the manufacture of other goods for sale or otherwise or (b) despatches all such goods in any manner other than by way of sale in the State or (c) despatches them to a place outside the State except as a direct result of sale or purchase in the course of inter State trade or commerce.
" This ingredient was neither argued nor was considered, so the 542 passing reference based on the phraseology of the section is not the dictum of Kandaswami 's case.
Secondly, in section 9, in the instant case, the raw materials purchased or used in the manufacture of new goods and thereafter those new goods were despatched outside the State of Haryana whereupon the tax was levied.
This important factor is wholly missing in Section 7A of the Tamil Nadu Act, which was considered in Kandaswami 's case.
In that decision, this Court approved the Kerala High Court 's decision in Malabar Fruit Products, (supra), which was confined to the interpretation of the words 'goods ', the sale or purchase under the Act.
A deci sion on a question which has not been argued cannot be treated as a precedent.
See the observations of this Court in Rajput Ruda Maha & Ors.
vs State of Gujarat, [1980] 2 SCR 353 at 356.
The decision of the Division Bench of the Kerala High Court in Yusuf Shabeer & Ors.
vs State of Kerala & Ors., 32 STC 359 is clearly distinguishable.
In Ganesh Prasad Dixit 's case (supra) the question of constitutional validity was not argued.
A reference was made by Mr. Tewatia to the decision of the High Court in The Coffee Board vs Commissioner of Commercial Taxes & Ors., 60 STC 142 and the decision of this Court in Coffee Board, Karnataka vs Commis sioner of Commercial Taxes, Karnataka, 70 STC 162.
In these cases the question involved was the acquisition of coffee by the Coffee Board under compulsory acquisition or purchase or sale of goods.
That question is entirely different from the question with which we are concerned in these appeals.
Prior to 46 the Amendment, Entry 54 of List II of the 7th Schedule of the Constitution of India which demarcated the exclusive field of State Legislation, read with Article 246(3) of the Constitution conferred power on the State Legislature to impose tax on the transactions of sale or purchase of goods.
The said Entry read as follows: "Taxes on the sale or purchase of goods other than Newspapers, subject to the provisions of Entry 92 A of List I".
Entry 92A of List I, which is in the exclusive domain of the Union, was to the following extent: "Taxes on the sale or purchase of goods other than Newspapers, where such sale or purchase takes place in the course of inter State trade or commerce." The mere consignment of goods by a manufacturer to his own branches outside the State does not in any way amount to a sale or 543 disposal of the goods as such.
The consignment or despatch of goods is neither a sale nor a purchase.
The first judg ment in case of Goodyear India was on December 4, 1982 when it was held that the Notification was beyond the Act, as the word 'disposal ' did not include the word 'mere despatch ' as mentioned in the notification.
The Constitution (46th Amend ment) Act, 1982 came into force on February 2, 1983, whereby section 9 was amended.
This amendment was after 46th Consti tutional Amendment Act, 1982.
The 46th Constitution Amend ment Act in the Statement of Objects & Reasons, inter alia, stated as follows: "There were reports from State Government to whom revenues from sales tax have been as signed, as to the large scale avoidance of Central Sales Tax leviable on inter State sales of goods through the device of consign ment of goods from one State to another and as to the leakage of local Sales Tax in works contracts, hire purchase transactions, lease of films etc.
Though, Parliament could levy a tax on these transactions, as tax on sales has all along been treated as an item of revenue to be assigned to the States, in regard to these transactions which are semble sales also, it is considered that the same policy should be adopted.
" The Law Commission of India in its 61st Report made, as indicated before, certain recommendations, and noticed that the provisions of existing were insuf ficient to tax the consignment transfers from branch to another, as it was beyond the concept of sale, and its recommendations are contained in paragraph 2.23 of Chapter II (at page 66), it recommended that the definition of sale in the , after carrying out the requi site Constitution Amendment be amended somewhat on the lines indicated by them in their report.
The Union of India, in part, accepted the recommendations but instead of amending the definition of sales in , inserted a new Entry in the Union List in the shape of Entry 92B and also inserted a new sub clause (4) after subclause (g) in article 269 (1) of the Constitution.
The Parliament also amend ed clause (3) of Article 269.
It appears to us that the effect of the aforesaid amend ment is that the field of taxation on the consignment/des patch of goods in the course of inter State trade or com merce expressly come within the purview of the legislative competence of the Parliament.
It is wellsettled that the nomenclature of the Act is not conclusive and for 544 determining the true character and nature of a particular tax, with reference to the legislative competence of a particular Legislature, the Court will look into its pith and substance.
See the observations of Governor General in Council vs Province of Madras, [1945] 72 IA 91.
There, Lord Simonds observed as follows: " . .
For in a Federal Constitution, in which there is a division of legislative powers between Central and provincial legisla tures it appears to be inevitable that contro versy should arise; Whether one or other legislature is not exceeding its own, and encroaching on the others Constitutional Legislative Power, and in such a controversy it is a principle, which their Lordships do not hesitate to apply in the present case, that it is not the name of the tax, but its real nature, "it is pith and substance", as it has some times been said which must determine into what category it fails.
" We must, therefore, look not to the form but to the substance of the levy.
See the observations of the Federal Court in Ralla Ram vs The Province of East Punjab, AIR 1949 FC 81.
Therefore, the nomenclature given by the Haryana Legis lature is not decisive.
One has to find out whether in pith and substance, a consignment tax is sought to be imposed, a tax on despatch in the course of inter State trade or com merce.
I have no hesitation in holding that it is a tax on despatch.
Inter state trade or commerce, it has been empha sised, is of great national importance and is vital to the federal structure of our country.
As the imposition of consignment tax requires very deep consideration of all its aspects and certain amount of consensus among the States concerned, especially with regard to the rates, grant of exemption, and ratio relating to distribution of proceeds amongst the States inter se, the actual imposition of tax is bound to take some time till an agreeable solution is found, but that would not make the consignment tax to be in sus pended animation in the State, and make us hold that a tax which is in essence a tax on consignment should be taxed by the States by the plea either that otherwise there is ample scope of evasion and further States are without much re sources in these days when there is such a tremendous demand on the revenue of the States.
It is well settled that the Entries in the Constitution only demarcate the legislative fields of the respective legislatures and do 545 not confer legislative powers as such.
The tax on despatch of goods outside the territory of the State certainly is in the course of inter State trade or commerce, and in other words, amounts to imposition of consignment tax, and hence the latter part of section 9(1)(b) is ultra vires and void.
In these cases, we are concerned with the validity of the latter part of section 9(1)(b) of the Haryana Act which imposes a tax on despatch of manufactured goods outside the territories of Haryana.
If it is accepted that section 9(1)(b) is ultra vires, the penalty proceedings would auto matically go as they are in substance, based on the viola tion of section 9(1)(b) of the Act and the consequent pro ceedings flowing therefrom.
It is in that context that in writ petition No. 3834 of 1985, Mr. Soli Sorabjee urged that the attempt and action of the State in imposing tax and attempt to penalise are bad.
In this connection, it may be mentioned that before the Full Bench of the Punjab & Haryana High Court on behalf of the State, a statement was made, which has been recorded in 58 STC 393 at p. 408, as follows: "Counsel appearing for the State of Haryana made a statement that if the Full Bench held that Bata India Limited 's, case (1983)54 STC 226 did not lay down the correct law and the amendment effected by Act No. 11 of 1984 to Section 9 was intra vires, then the provision of sub section (3) of section 24 regarding the rate of tax shall not be enforced and only the old rate will be leviable.
" In view of the aforesaid statement, no higher rate except the old rate admissible factually would be applica ble.
Section 24(3) was introduced by the Haryana Act with retrospective effect from May 27, 1971, which is as follows: "Notwithstanding any other provisions of this Act or any Judgment, decree or order of any Court or other authority to the contrary if a dealer who purchases goods, without payment of tax under Sub section (1) and fails to use the goods so purchased for the purpose specified therein he shall be liable to pay tax on the purchase value of such goods, at the rates notified under Section 15 without prejudice to the provisions of Section 50 provided that the tax 546 shall not be levied where tax is payable on such goods under any other provision of this Act.
" This provision without making any change in the substan tive provision purports to give a direction to ignore the judgment, in other words, purports to overrule the judg ments, namely, Goodyear and Bata India, which is beyond the legislative competence of the State Legislature and this provision is void in view of the decision of this Court.
See Shri Prithvi Cotton Mills Ltd. vs Broach Borough Municipali ty, [1969] 2 SCC 283 at 286.
For the same reason, applying the main section instead of section 9(1), section 24 should also fail as amended.
Civil appeal No. 15 15/84 is also liable to be dismissed in view of the judgment of this Court in Dy.
Commissioner of Sales Tax (Law), Board of Revenue (Taxes) vs M/s. Thomas Stephen & Co. Ltd., Quilon, ; , where this Court observed that "disposal means transfer of title in the goods to any other person", and therefore it would not include mere despatch to own self or to its agents or to its branch offices or depots.
In the premises, the decision of the Punjab & Haryana High Court in Goodyear India Ltd., 53 STC 163 is correct on merits as well.
In the aforesaid view of the matter, it cannot be held that section 9(1) and sub section (3) of section 24 are constitutionally valid.
In civil appeals Nos. 1633 (NT) of 1985 and 3033/86 which are the appeals by the Food Corporation of India, Mr. Sen submitted that the FCI is a service agency of the Govt.
of India and is discharging the statutory functions of distribution of foodgrains by procuring/purchasing from the surplus States and despatching the same to the deficit States in accordance with the policy of the Govt.
of India.
He further submitted that the Corporation procures food grains from the farmers through commission agents in the Mandis of Haryana and despatch them to its own branches in the deficit States of the country.
The Corporation branches in the recipient States supply these stocks to the State agencies/fair price shops and also pay tax as per the provi sions of the Sales Tax law of the respective States.
Some of the stocks are distributed within Haryana for the Public Distribution System (PDS) for which sales tax is charged and deposited with the Sales Tax depot as per the provisions of the Haryana General Sales Tax Act.
In case the stocks are also sold in the course of inter State trade or commerce, central sales tax is levied and deposited with the Haryana Sales Tax authorities.
Some of the grains are also exported out of India on which there is exemption on payment of any tax.
547 In fact, the points at which the tax is to be levied have been indicated in Schedule 'D ' to the Act.
It is clear from the perusal of the Schedule that in case of Paddy, the taxable event is the last purchase.
Similarly, in case of rice the taxable event is the first sale point in the State.
In case of wheat and other cereals the point of taxation is the last sale to the consumer by a dealer liable to pay tax under the Act.
In respect of inter State despatch of wheat and other foodgrains by FCI to its own branches, tax is attracted at the time of despatch under section 9(1)(c) of the Haryana Act.
Section 9 is, therefore, the charging section for taxation in case where the goods are purchased for export.
There is no other provision for levy of purchase or sales tax in such cases of export.
Incidentally, "export" has been defined in section 2(e) of the Act which reads as follows: "2(e) "export" means the taking out of goods from the State to any place outside it other wise than by way of sale in the course of inter State trade or commerce or in the course of export out of the territory of India;" No tax is payable under the Haryana Act when exports outside the State take place either in the course of inter State sale or export out of the territory of India.
No tax is therefore payable in regard to export outside India but the tax is payable for sale in the course of inter State trade and commerce i.e. under the .
It is only when the goods are despatched/consigned to the depots of the FCI in other States that tax is levied under section 9 of the Haryana Act.
This is in addition to the sales tax paid by the FCI on the sale of grains in the recipient States.
On perusal of sections 14 & 15 of the , it becomes clear that wheat is one of the commodities specified as 'declared goods ' and in respect of which the intention is clear that the tax is payable only once on the declared goods.
In the case of inter State sale if any tax has been paid earlier on declared goods inside the State the same is to be refunded to the dealer who is paying tax on such inter State sales.
On these transactions no tax is liable in the recipient State, while in case of inter State despatches, the tax is leviable twice.
The appeals of.
the FCI are confined to section 9(1)(c), which insofar as it purports to tax export, is beyond the legisla tive competence of the State of Haryana.
On behalf of the State in Bata Co. Ltd. vs State of Haryana (supra), the submission of the State was on the basis that it had power to tax consignment or despatches of goods.
But after the 46th Amend 548 ment, the State Legislature is incompetent to legislate about consignments/despatches otherwise than by way of sale under which no purchase/sales tax is leviable under the Haryana Act.
It is the Parliament alone which is legisla tively competent to enact a legislation on consignment.
Now, it is necessary to deal with civil appeals Nos. 4 162 63/85 which deal with the validity of section 13 AA of the Bombay Sales Tax Act.
These appeals are by Hindustan Lever Ltd. and Wipro Products the appellants herein.
The appellants, at all material times, manufacture, make and deal in vanaspati, soaps, etc., chemicals and agro chemicals, and they used to purchase various types of VNE oils for their manufacture of vanaspati, soaps and other products.
Since the appellants had a wide net of distribution of their products all over India, they appointed 40 and more clearing and forwarding agents in the country.
The appellant used to despatch the goods so manufactured from their factory to the clearing and forwarding agents.
They also used to purchase VNE oils and other raw materials and paid 4% tax by way of purchase tax under section 3 of the Bombay Sales Tax Act, 1959 (hereinaf ter called 'the Bombay Act ').
The raw materials are used in the manufacture of said goods and as the said manufactured goods are despatched outside the State to the several dis tributing agencies, the appellant companies were held to be liable to pay, under section 13 AA of the Act, an additional tax @ 2% on purchase of the said goods.
The question, therefore, that arises, is: whether the levy of additional tax at 2% under Section 13 AA of the Act is a tax on purchases failing under Entry 54 of List II of the 7th Schedule or it is a tax on the despatch of consign ment of the manufactured goods outside the State.
In case of latter, the State Legislature will have no power to impose any tax on such consignment or despatch of goods outside the State.
If it is the former, then it will be valid.
The question is that under the true constructions of section 13 AA of the Act, on which the imposition of tax is made, or in other words, what is the incidence of that taxation or taxable event? In both these appeals, namely, civil appeals No. 4162/ 88 and 4163/88, the appellants M/s Wipro Products Ltd. and Hindustan Lever Ltd. are contending that the levy is bad.
The issue involved in both the appeals is the con stitutional validity and legality of the provisions of section 13 AA of the Act, which was introduced into the Act by the Maharashtra Act XXVIII of 1982.
The appellant 549 had a factory at Amalnar in Jalgaon district in the State of Maharashtra wherein it uses non essential oil purchased by it for the manufacture and transport.
The finished products, namely, vanaspati manufactured by the appellant used to be despatched to their various marketing depots in the State of Maharashtra, Madhya Pradesh, Karnataka, Andhra Pradesh, U.P., Tamil Nadu and Kerala etc.
On July 1, 1981 the rate of purchase tax payable on VNE oils (falling under Schedule C, part I at Entry 35) purchased within the State of Maharash tra from non registered dealers increased from 3% to 4%, by the Maharashtra Act 32 of 1981.
Section 13 AA was introduced into the Act providing for levy of 2% additional purchase tax on the purchase of goods, input goods, specified in part I of the Schedule from a non registered dealer if such goods were used in the manu facture of taxable goods within Maharashtra and thereafter the manufactured goods were transferred outside Maharashtra in the manner indicated in the said section.
The appellants filed writ petitions.
An order was passed by the Bombay High Court on July 19, 1988 in respect of these two writ petitions by the Wipro Products as well as Hindustan Lever Ltd. The decision of the High Court is reported in [1989] 72 STC 69.
Dismissing the petitions of the appellants the High Court held that (i) three different phases are contemplated in section 13 AA of the Act, namely, the initial purchase of the raw material, the consumption thereof in the manufacture of taxable goods, and the despatch of the manufactured goods outside the State.
If the goods purchased remain in the same form within the State, the question of levying additional tax would not arise.
The High Court came to the conclusion that there was no ground to hold that the additional tax was levied on the despatch of goods and was unconnected with the initial transaction of purchase, as it was required to be paid in addition to the sales or purchase tax paid or pay able in respect of the same goods which had been so pur chased before the conditions specified in section 13 AA are fulfilled, (ii) in the context of the other provisions of the Act, a sort of concession is given at the time of pur chase on the quantum of tax payable on the purchase of goods which fall under Part I of Schedule C.
However, there is a clear mandate of law, which is clearly understood between seller and buyer, that though tax at the concessional rate is paid, the obligation to pay the additional tax on the happening of certain events, namely, use of such goods in manufacture of finished goods, and despatch of finished goods outside the State, is undertaken 550 by the purchaser; and (iii) implicit in the low rates of tax prescribed on raw material attributable to goods in Part I of Schedule C is the condition precedent that to avail of this concession the goods in question are required to be sold in the State after being used in the manufacture of other taxable goods.
The High Court, further, was of the opinion that a manufacturer who purchases raw material at a concessional rate on the strength of declaration in Form 15 cannot transfer the goods manufactured out of such raw material outside the State.
The High Court held that if he does so, he is liable to pay purchase tax at the full rate on the raw material under section 14.
According to the High Court, similarly, a manufacturer who purchases goods covered in Part III of Schedule C, uses them in the manufacture of other taxable goods which he despatches outside the State, is liable to pay tax at rates ranging from 6% to 15%.
Sec tion 13 AA, therefore, far from being discriminatory, serves to wipe out any discrimination between the two categories of manufacturers mentioned above and manufacturers purchasing raw material covered by Part I of Schedule C, according to the revenue.
The High Court was of the opinion that the additional purchase tax leviable under section 13 AA of the Bombay Act, is on the purchase value of VNE oil used in the manufacture of goods transferred outside the State and not on the value of the manufactured goods so transferred.
It further held that the tax levied under section 13 AA of the Bombay Act, falls squarely and exclusively under Entry 54 of the State List in the 7th Schedule to the Constitution of India and the State Legislature was competent to levy it.
It does not even remotely fall under Entry 92B of the Union List, according to the High Court.
The High Court was also of the view that the goods taxed under section 13 AA of the Bombay Act, are consumed in the State as raw material in the process of producing other commodities.
Hence, there was no question of any hindrance to a free flow of trade bringing into operation Article 301 of the Constitution.
According to the High Court, the peti tioners had not brought forth any material to show how the free flow of trade has been affected by this additional rate of tax; and held that section 13AA is not violative of Article 14 of the Constitution; and that section 13AA of the Bombay Act and the orders requiring the appellants to pay additional tax @ 2% on purchase of VNE oil used by them as raw material in the manufacture of goods despatched outside the State, were valid.
The High Court in the judgment under appeal has set out the relevant provisions of the Act, which was enacted to consolidate and 551 amend the law relating to levy of tax on the sale or pur chase of certain goods in the State of Bombay.
Section 2 contains some of the definitions.
Section 24 deals with authorisations of turnover etc.
Section 13AA of the Bombay Act with which the High Court and these appeals are con cerned, is in the following terms: "13 AA.
Purchase tax payable on goods in Schedule C, Part I, when manufactured goods are transferred to outside branches.
Where a dealer, who is liable to pay tax under this Act, purchases any goods speci fied in Part I of Schedule C, directly or through Commission agent, from a person who is or is not a Registered dealer and uses such goods in the manufacture of taxable goods and despatches the goods, so manufactured, to his own place of business or to his agent 's place of business situated outside the State within India, then such dealer shall be liable to pay, in addition to the sales tax paid or payable, or as the case may be, the purchase tax levied or leviable under the other provi sions of this Act in respect of purchases of such goods, a purchase tax at the rate of two paise in the rupee on the purchase price of the goods so used in the manufacture, and accordingly the dealer shall include purchase price of such goods in his turnover of pur chases in his return under section 32, which he is to furnish next thereafter.
" The questions involved in these appeals are: whether section 13AA of the Bombay Act is beyond the legislative competence of the State Legislature; and it is violative of Article 14 of the Constitution; and thirdly, whether the said provision is violative of Article 301 of the Constitu tion.
It was contended on behalf of the appeallant that section 13AA of the Act is a charging section and imposes a charge of an additional rate of 2% in the rupee if the following conditions laid down therein are satisfied: (i) the charge is levied upon a dealer who is liable to pay tax under the Act; (ii) such a dealer purchases any goods speci fied in Part I of Schedule C, directly or through commission agent, from a person who is or is not a registered dealer; (iii) the goods so purchased are used in the manufacture of taxable goods; and (iv) the goods which are so manufactured (and not the goods on which purchase tax had been paid) are despatched to the dealer 's own place of business or to his agent 's place of business situated outside the State.
552 According to the appellant, the said section lays down the person who is liable to pay tax, the goods on which the same is leviable and the taxable event which would attract the liability of additional tax of two paise in the rupee, namely the despatch or consignment of goods by the dealer/manufacturer outside the State.
According to Dr. Pal, counsel for the appellant, the taxable event is not the purchase of goods as such which is the raw material, but it is the despatch or consignment of goods manufactured by the dealer/manufacturer to its own branch outside the state; and that thus manufactured goods are different from commercial commodity, distinct and sepa rate from the raw materials on which purchase tax has al ready been paid.
It is well settled, it was reiterated before:us, that in case of excise duty, the taxable event is the manufacture of goods and the duty is not directly on the goods but on the manufacture thereof.
In case of sales tax, taxable event is the sale of goods.
Hence, though both excise duty and sales tax are levied with reference to the goods, the two are different imposts, in one case the impo sition is on the act of manufacture or production while in case of other the imposition is on the act of sale.
But in neither case the impost is a tax directly on the goods.
See in this connection, the observations of this Court in re: The Bill to amend section 20 of the and section 3 of the Central Excises & Salt Act, 1944; , at 821 and M/s. Guruswarny & Co. vs State of Mysore, [ at 562.
The power to tax the sale or purchase of goods is dif ferent from the right to impose taxes on use or consumption.
According to Dr. Pal such power to levy sales tax cannot be exercised at the earlier stage of import or manufacture/production nor the said power can be exercised at the later stage of use or consumption but only at the stage of sale or purchase.
In respect of sales tax, the right to levy duty would not at all come into being before the time of sale/purchase.
Sales tax cannot be imposed unless the goods are actually sold and may not be leviable if there is a transfer in some other form.
See in this connection the observations of the Federal Court in Mukunda Murari Chakravarti & Ors.
vs Pabitramoy Ghosh & Ors., at 22.
Therefore, in this case it is necessary to ascertain what is the taxable event under section 13 AA of the Act which attracts duty.
A taxing event is that event the occurrence of which immediately attracts the levy or the charge of tax.
In the fiscal legislations normally a charge is created.
The mischief of taxation occurs on the happening of the taxable event.
Diffe 553 rent taxes have different taxable events.
In the instant case, Dr. Pal canvassed before us that the incidence of the levy of additional tax of two paise in the rupee is not on the purchase of goods but such a levy is attracted only when (a) the goods which so purchased on payment of pur chase tax are used in the manufacture of taxable goods; and (b) the goods so manufactured are despatched to his own place of business or to his agent 's place of business out side the State.
Therefore, the incidence of tax is attracted not merely on the purchase but only when the goods so pur chased arc used in the manufacture of taxable goods and are despatched outside the State.
In our opinion, it was rightly submitted that it is the effect of section 13AA of the Act.
It was further highlighted by Dr. Pal on behalf. of the assessee that additional tax is not levied on the goods purchased on payment of purchase tax and despatched outside the State.
The goods which are purchased on payment of purchase tax are used in the manufacture of taxable goods.
What is despatched is not the raw material which have been purchased on payment of purchase tax but a completely dif ferent commodity, namely, vanaspati and soap.
If the raw materials as such purchased on payment of purchase tax are despatched outside the State, the additional tax under section 13 AA of the Act is not attracted.
Hence, the inci dence of additional tax has no nexus with the purchase of the raw materials, as was contended by Mr. S.K. Dholakia, appearing for the State and as held by the High Court.
Purchase tax under section 3 of the Act is attracted when the taxable event i.e. the purchase of goods occurs, but the taxable event for the imposition of additional tax of two paise in the rupee occurs only when the goods so purchased are used in the manufacture of taxable goods and such taxable goods are despatched outside the State by a dealer manufacturer.
Dr. Pal drew our attention to some of the observations of this Court in Kedarnath Jute Mfg. Co. Ltd. vs Commissioner of Income tax (Central), Calcutta, 82 ITR SC 363 and State of Madhya Pradesh & Ors.
vs Shyama Charan Shukla, 29 STC SC 215 at 218 219.
On the other hand, Mr. Dholakia submitted that the submission of the appellant proceeded on the assumption that the liability to pay is the same as the obligation to pay but this was wrong.
These two are different.
It was submitted that the obligation to pay is not the same thing as liability to tax; and that it was wrong to proceed on the basis that because 'obligation to pay ' is a later event, 'the despatch of goods ' is the taxa ble event.
This is a fallacy, according to Mr. Dholakia.
In this connection, reliance was placed on the observations of this Court in R.C. Jail vs Union of India, [1962] Suppl.
3 SCR 436, where this Court reiterated that subject always to the legislative com 554 petence of the enacting authority, the tax can be levied at a convenient stage, so long as the character of the impost is not lost.
The method of collection does not affect the essence of the machinery of collection for administrative convenience.
Reliance was also placed on the observations of Union of India vs Bombay Tyre International Ltd., ; It was submitted by Mr. Dholakia that the correct ap proach is to first determine whether the State Legislature, having regard to Entry 54 of List II to the 7th Schedule to the Constitution, can levy tax on purchase of a class of goods, which class is to be identified by reference to the condition of use of such goods into other taxable goods and despatch of such taxable goods outside the State.
He submit ted that if it is accepted that the State could have the power to tax purchases of goods meant for use into manufac ture of other taxable goods and despatch outside thereafter, then next question is whether the State enactment (like section 13AA of the Bombay Act) is so formulated as to come within the framework described.
He admitted that even if it did, it would still have to be subject to (a) the doctrine of pith and substance, (b) the fundamental rights, and (c) Article 301.
According to Mr. Dholakia, the Act contains a charging section which is section 3.
It levies tax on turnover of sales and purchases within section 2(36) and 2(35) respec tively of the said Act.
Section 13 of the Act levies tax on purchases in accordance with rates prescribed in Schedule C if the goods are purchased from an unregistered dealer.
Section 13A levies a concessional tax on purchases if the goods are purchased from a registered dealer, provided a declaration in the prescribed form is given under section 12(b) of the Act, if the purchaser buys directly, or one under section 12(d) if the purchaser buys through a commis sion agent.
In both the forms the relevant conditions are: (a) that the goods fall within Part ii of Schedule C; and (b) that the goods bought would be used for manufacture of other taxable goods within the State and sold within the State.
Mr. Dholakia submitted that on giving the aforesaid declaration, the purchaser would have to pay only 4% tax.
The rates prescribed in Schedule C are as under: Schedule 'C ' Part Minimum Rate Maximum Rate I 2% 4% II 6% 15% 555 The effect of section 13A without section 13 AA, accord ing to Mr. Dholakia, was that only those who bought goods which fell into Part II, would have benefitted by the decla ration, since the rate mentioned in section 13A was 4%.
Hence, those buying goods falling within Part I of Schedule C had not to give any declaration under section 12(b) or 12(d), as the case may be, and still manufacture the taxable goods and despatch them outside the State.
According to him, as a result of this situation, two results emerged, i.e. (i) the State lost revenue because the goods manufactured with the help of the infrastructure provided by the State escaped further tax, by goods being resold outside the State; and (ii) the purchasers of raw materials used by the manufactur ers for producing new taxable goods, were not being treated equitably because those whose purchases of goods which fell into Part II had to give a declaration to get the benefit of reduced rate.
On the other hand, those whose purchases of goods fell in Part I, need not give such a declaration.
According to him, from the standpoint of the object of encouraging resale within the State, the classification in form of Part I and II had no rational nexus.
Therefore, that construction should be made which may make section 13 AA of the Act, to avoid this mischief.
According to Mr. Dholakia, section 13AA speaks of the requirement of additional purchase tax from those who have paid purchase tax, if the object of the purchases is to use the goods falling in Part I of Schedule C for manufacture of taxable goods and the despatch of such goods outside the State.
He alleged it to be a fair and reasonable construc tion and it will subserve the purpose of the amendment.
It is well settled that reasonable construction should be followed and literal construction may be avoided if that defeats the manifest object and purpose of the Act.
See Commissioner of Wealth tax, Bihar & Orissa vs Kripashankar Dayashankar Worah, at 768 and Income tax Commis sioners for city of London vs Gibbs, 10 ITR Suppl.
121 HL at 132.
Mr. Dholakia further submitted that the Statement of Objects & Reasons also helps this construction.
In our opinion, he rightly submitted that because the accounts had to be maintained in a particular manner, is no criterion or evidence for determining when the liability arises.
The law is that the liability to tax would be determined with refer ence to the interpretation of the Statute which creates it.
It cannot be determined by referring to another Statute.
As contended by both the sides, it is well settled that the doctrine of pith and substance means that if an enactment substantially falls within the powers expressly conferred by the Constitution upon the Legislature 556 which enacted it, it cannot be held to be invalid merely because it incidentally encroches upon matters assigned to another Legislature.
See Kerala State Electricity Board vs Indian Aluminium Co, [1976] SCR 552 and Prafulla Kumar Mukherjee & Ors.
vs Bank of Commerce Ltd., AIR 1947 PC 60 at 65.
Therefore, the proper question which one should address to oneself is, whether section 13AA is in pith and sub stance, not levying tax on purchase but one levying tax on consignment.
Depending upon the answer to the question, the validity of the action can be judged.
Mr. Dholakia submitted that the Act is in pith and substance, an Act levying tax on purchase and not one levying tax on consignment, and re ferred to the observations of this Court in State of Karna taka vs Shri Ranganatha Reddy; , According to him, the consignment contemplated in section 13 AA is only of manufactured goods and no tax is levied under sec tion 13AA in respect of such manufactured goods.
He empha sised as aforesaid.
It is well settled that while determin ing nature of a tax, though the standard or the measure on which the tax is levied may be a relevant consideration, it is not the conclusive consideration.
One must have regard to such other matters as decided by the Privy Council in Gover nor General in Council vs Province of Madras, (supra) not by the name of tax but to its real nature, its pith and sub stance which must determine into what category it fails.
See the observations of R.R. Engineering Co. vs Zila Parishad Bareilly & Anr., ; ; in re: A reference under the Govt.
of Ireland Act, 1920, at 358 and Navnitlal C. Javeri vs K.K. Sen, Appellate Asstt.
Commis sioner of Income Tax, 'D ' Range, Bombay; , at 915.
On an analysis we find that the goods which are des patched are different products from the goods on the pur chase of which purchase tax was paid.
The Maharashtra legis lation has to be viewed in the context of 46th Amendment to the Constitution.
The 46th Amendment introduced Article 269 (1)(h) which lays down that the proceeds of the tax on consignment of goods (whether the consignment is to the person making it or to any other person) where such consign ment takes place in the course of inter State trade or commerce, will be assigned to the States.
The said Amendment also introduced Entry No. 92B in List I of the 7th Schedule.
The said Amendment was made on the consideration of the 61st Report of the Law Commission.
Entry 92B in List I of the 7th Schedule and Article 269(1)(h) of the Constitution bring within its sweep the consignment of goods by a person either to himself or to any other person in the course of inter State trade or 557 commerce.
Article 269(3) gives the power to Parliament to formulate the principles for determining when a consignment of goods takes place in the course of inter State trade or commerce.
If Entry 92B in List I is to be given the widest interpretation, as it should be, it would be clear that the constitutional changes introduced by the 46th Amendment in Article 269 read with the Entry, the tax on consignment of goods now comes within the exclusive legislative field of Parliament.
The true test to find out what is the pith and substance of the legislation is to ascertain the true intent of the Act which will determine the validity of the Act.
If the Parliament in exercise of its plenary power under Entry 92B of List I imposes any tax on the despatch or consignment of goods, Parliament will be competent to do so.
It is, therefore, not possible to accept the argument that the chargeable event was lying dormant and is activated only on the occurrence of the event of despatch.
The argument on the construction of the enactment is misconceived.
The charging event is the event the occurrence of which immediately attracts the charge.
Taxable event cannot be postponed to the occurrence of the subsequent condition.
In that event, it would be the subsequent condition the occurrence of which would attract the charge which will be taxable event.
If that is so, then it is a duty on despatch.
In that view of the matter, this charge cannot be sustained.
As mentioned hereinbefore, the section has been chal lenged as being violative of Article 14 of the Constitution.
This attack is based on the discrimination between the two types of taxes but in the way we have construed the section, in our opinion, this question does not survive.
It was further submitted by Dr. Pal that section 13AA of the Act is violative of Article 301 of the Constitution.
It makes a discrimination between the dealer/manufacturer who despatch es the goods outside the State and the other dealer/manufac turer.
Both the dealer/ manufacturers purchase the goods on payment of purchase tax and use them in the manufacture of taxable goods.
The incidence of additional tax on the pur chase of goods is attracted only when such manufactured goods are despatched outside the State.
If a dealer/manufac turer has to despatch the goods outside the State, he has to pay a higher rate of tax and thus he is discriminated as compared to the other dealer/manufacturer who purchases the raw material on payment of 4% purchase tax, but despatches the raw material straightaway outside the State and uses them in the manufacturer of goods outside the State.
The High Court held that there was no violation of Article 301 of the Constitution.
Reference was made to the decision of this Court in Atiabari Tea Co. Ltd. vs The State of Assam & Ors., ; ; 558 The Automobile Transport (Rajasthan) Ltd. vs The State of Rajasthan, [1963] 1 SCR 491; Andhra Sugars Ltd. vs State of Andhra Pradesh, (supra), State of Madras vs N.K. Nataraja Mudaliar, ; and State of Kerala vs A.B. Abdul Khadir & Ors., ; One has to determine: does the impugned provision amount to restriction directly and immediately, on the trade or commerce movement? As was observed by this Court in Kalyani Stores vs The State of Orissa & Ors.
, ; , imposition of a duty or tax in every case would not tanta mount per se to any infringement of Article 301 of the Constitution.
Only such restrictions or impediments which directly or immediately impede free flow of trade, commerce and intercourse fall within the prohibition imposed by Article 301.
A tax in certain cases may directly and immedi ately restrict or hamper the flow of trade, but every impo sition of tax does not do so.
Every case must be judged on its own facts and its own setting of time and circumstances.
Unless the court first comes to the finding on the available material whether or not there is an infringement of the guarantee under Article 301 the further question as to whether the Statute is saved under Article 304(b) does not arise.
The goods taxed do not leave the State in the shape of raw material, which change their form in the State itself and there is no question of any direct, immediate or sub stantial hindrance to a free flow of trade.
On the evidence adduced, we are in agreement with the High Court that the challenge to the imposition in the background of Article 301 cannot be sustained and, therefore, no question whether such imposition is saved under Article 304(b) of the Constitution arises.
In the aforesaid view of the matter and for the reasons mentioned hereinbefore, it must be held that so far as the appeals in respect of the Haryana Act are concerned, the High Court was right in the view it took in Goodyear India Ltd 's case, 53 STC 163 as well as the views expressed by the High Court in Bata India Ltd. vs The State of Haryana & Anr., 54 STC 226 are correct and are affirmed.
The views of the High Court expressed in Des Raj Pushap Kumar Gulati 's case (supra) are incorrect for the reasons mentioned herein before.
The last mentioned judgment and the judgment and orders following passed by the Punjab & Haryana High Court are, therefore, set aside.
In the premises, Civil Appeals Nos.
1166 72/85 (M/s Goodyear India Ltd. vs State of Har yana & Anr.), Civil Appeal No. 1173 77 (NT)/85 (Gedore (I) Pvt. Ltd. vs State of Haryana & Anr.), civil appeal No. 2674/86 (M/s. Kelvinator of India Ltd. & Anr.
vs State of Haryana & Ors.), Civil Appeal No. 1633 (NT)/85 F.C.I. vs State of Haryana & Anr.) and 559 Civil Appeal No. 3033 (NT)/86 F.C.I., Karnal vs The State of Haryana & Ors.) are allowed and the judgment and order of the High Court are set aside.
Civil Appeals Nos.
15 12 (NT)/84 [State of Haryana & Anr.
vs Gedore Tools (P) Ltd.] and 1515/84 [State of Haryana & Anr.
vs Goodyear India Ltd. ] are dismissed.
Special leave petitions Nos.
83988402/83 are dismissed, and for the rea sons mentioned hereinbefore, civil appeal Nos.
4162/88 (M/s. Wipro Products Ltd. vs State of Maharashtra & Anr.
and 4163/88 [Hindustan Lever Ltd. & Anr.
vs State of Maharashtra & Anr. ] are allowed and the judgment and order of the High Court passed therein, are hereby set aside.
In the facts and the, circumstances of this case, the parties will pay and bear the respective costs.
So far as the civil appeals Nos.
1633/85 and 3033/86 are concerned, wherein the appellants are the Food Corpn.
of India, I allow these appeals and setting aside the judgment of the High Court on the ground that tax on despatch or consignment was not within the competence of the State Legislature.
I am, however, not dealing with or expressing any opinion on the other contentions of the F.C.I. that in view of the nature of its business it was not liable to tax in respect of the sales tax.
This contention will be decided in the appropri ate proceedings.
So far as the contention regarding penalty under the Haryana Act, these proceedings fail because the charging provisions fail.
In so far as the penalty proceedings are impugned on other grounds apart from the failure of the charging provisions, I am expressing no opinion on these aspects.
RANGANATHAN, J. I agree but wish to add a few words.
The question raised in these appeals is a fairly tick lish one.
Simply stated, Section 9 of the Haryana General Sales Tax Act, 1973 as well as section 13AA of the Bombay Sales Tax Act, 1959, purport only to levy a purchase tax.
The tax, however, becomes exigible not on the occasion or event of purchase but only later.
It materialises only if the purchaser (a) utilises the goods purchased in the manu facture of taxable goods and (b) despatches the goods so manufactured (otherwise than by way of sale) to a place of business situated outside the State.
The legislation, howev er, is careful to impose the tax only on the price at which the raw materials are purchased and not on the 560 value of the manufactured goods consigned outside the State.
The States describe the tax as one levied on the purchase of a class of goods viz. those purchased in the State and utilised as raw material in the manufacture of goods which are consigned outside the State otherwise than by way of sale.
On the other hand, according to the respondentsasses sees, this is nothing but a tax on consignment of goods manufactured in the State to places outside the State, camouflaged as a purchase tax, by quantifying the levy of the tax with reference to the purchase price of the goods purchased in the State and utilised in the manufacture.
To me it appeared as plausible to describe the levy as a tax on purchase of goods inside the State (which attaches itself only in certain eventualities) as to describe it as a tax on goods consigned outside the State but limited to the value of the raw material purchased inside the State and utilised therein.
1, therefore, had considerable doubts not only during the arguments but even some time thereafter as to whether so long as the tax purports to be a tax on purchases and has a nexus, though a little distant, with purchase of goods in the State, the State Government 's competence to impose such a tax should not be upheld.
But, on deeper thought, I am inclined to agree with the conclusion of my learned brother.
It is one thing to levy a purchase tax where the character and class of goods in respect of which the tax is levied is described in a particular manner (vide, Andhra Sugars Ltd. & Anr.
vs State, ; and a case like the present where the tax, though described as purchase tax, actually becomes effective with reference to a totally different class of goods and, that too, only on the happening of an event which is unrelated to the act of purchase.
The "taxable event", if one might use the expres sion often used in this context, is the consignment of the manufactured goods and not the purchase.
I also agree with my learned brother that the decision in State of Tamil Nadu vs Kandaswami, [1975] 36 S.T.C. 191, though rendered in the context of an analogous provision, does not touch the issue in the present case.
The above distinction becomes significant particularly in the background of the constitutional amendments referred to in the judgment of my learned brother.
These indicate that there were efforts at sales tax avoidance by sending goods manufactured in a State out of raw materials purchased inside to other States by way of consignments rather than by way of sales attracting tax.
This situation lends force to the contention of the assessees that the States, unable to tax the exodus directly, attempted to do so indirectly by linking the levy ostensibly to the "purchases" in the State.
561 Viewing the impugned statutory provisions from the perspectives indicated above, I agree with my learned broth er that the appeals have to be allowed as held by him.
T.N.A. Appeals and petitions disposed of.
| The words " any object held sacred by any class of persons" occurring in section 295 Of the Indian Penal Code are of general import and cannot be limited to idols in temples or idols carried on festival occasions.
Not merely idols or sacred books, but any other object which is regarded as sacred by any class of persons, whether actually worshipped or not, fall within the description.
Queen Empress vs Imam Ali, All. 150 and Romesh Chunder Sannyal vs Hiru Mondal, Cal.
852, considered.
Consequently, in a case where the allegation in the petition of complaint was that one of the accused broke the idol of God Ganesa in public and the two others actually aided and abetted him with the intention of insulting the religious feeling of the complainant and his community who held the deity in veneration and the trial Magistrate, on receipt of the Police report that the alleged occurrence was true, dismissed the complaint under section 203 of the Code of Criminal Procedure holding that the breaking of a mud image of Ganesa was not an offence under section 295 of the Indian Penal Code and the Sessions judge and the High Court in revision, agreeing with the view of the trial Court, refused to direct further enquiry : Held, that the courts below were clearly in error in inter preting section 295 of the Indian Penal Code in the way they (lid, but since the complaint stood long dismissed, no further enquiry need be directed into the matter.
Held, further, that the Courts must be circumspect in such matters and pay due regard to the religious susceptibilities of different classes of persons with different beliefs, whether they shared those beliefs or not or whether those beliefs in the opinion of the Court were rational or not.
|
vil Appeal No. 1088 (N) of 1969.
From the Judgment and Order dated 14.8.1968 of the punjab and Haryana High Court in L.P.A. No. 95 of 1964.
A. Minocha for the Appeallant.
Ms. A. Subhashini, Mrs. section Sun, C.V.S. Rao and P. Par meshwaran for the Respondents.
The Judgment of the Court was delivered by B.C. RAY, J.
This is an appeal by special leave against the Judgment and Order made in L.P.A. No. 95 of 1964 dis missing the appeal holding that the land in question having already vested in the Government of Punjab under package deal, the authority under the Displaced Persons (Compensa tion and Rehabilitation) Act, 1954 had no jurisdiction over lands in question.
Appellant, Pala Singh, a displaced person, was allotted 9 standard acres and 12 1/4 units of land in village Jhill, Tehsil and District Patiala in lieu of his land left in Chack No. 204 in 1950.
He got the same quantity of land in village Alipur Arain on mutual exchange with an allottee of the said village.
The appellant was not allotted any land for the land left by him in village Santpura and Jaffapur in Tehsil Phalia, District Gujarat.
The area of Chack No. 204 R.B. was described as a suburban area by the State Govern ment.
The appellant applied for allotment in village Tripari Sayidan, a suburban of Patiala City.
After due verification from the records of the Rehabilitation Department at Jullun dur, the petitioner being found entitled to the suburban allotment to the tune of 10 standard acres and two units as also to a rural allotment of 2 standard acres and 8 units was allotted 6 standard acres 12 3/4 units of land in Tri pari Sayidan.
Proprietary right in respect of both these allotments, that is, at Tripari Sayidan and village Alipur Arian were granted to him vide sanads dated 17th February, 1956.
627 In October 1961, it was detected that there was excess allotment of 6 standard acres and 12 3/4 units in village Alipur Arian and accordingly the Managing Officer, Rehabili tation Department by his order dated 21st February, 1962 allowed the petitioner to purchase the said excess area.
Petitioner deposited the required amount in the Treasury on March 6, 1962.
On March 27, 1962, i.e. 20 days thereafter the petitioner was served with a notice by the respondent No. 3, Assistant Registrar cum Managing Officer asking him to appear before the respondent No. 2, the Chief Settlement Commissioner, Civil Secretariat.
Jullundur to show cause why the order of the Managing Officer allowing him to purchase the excess land should not be set aside, as it was a case of double allotment.
The respondent No. 2, the Chief Settlement Commissioner, after hearing the petitioner passed an order holding that the excess land which was found in October 1961 could not be sold by the Managing Officer under the Dis placed Persons (Compensation and Rehabilitation) Act, 1954, as under the package deal this land had been transferred to the Punjab Government.
It was for the Punjab Government to decide if the said land would be sold to the petitioner at the reserve price or not.
The reference was accordingly allowed and the order of the Managing Officer allowing the allottee to purchase the said 6.12 3/4 standard acres in village Alipur Arian, Tehsil District Patiala was set aside.
The petitioner then made an application under Section 33 of the said Act to the respondent No. 1, the Central Government against the said order.
The said application was dismissed by the respondent No. 1.
Against these orders the petitioner moved a petition under Articles 226 and 227 of the Constitu tion of India before the High Court of Punjab and Haryana under Civil Writ Petition No. 1804 of 1962 on the grounds inter alia that the petitioner is entitled to get the same land as he had already deposited the price of the allotted land in accordance with the order of the Managing Officer.
The said purchase could not be cancelled on the plea that the land had already been transferred to Punjab Government by the Central Government under package deal.
A return was filed on behalf of the respondents stating inter alia that in lieu of land to the extent of 6.12 3/4 standard acres allotted to him in village Tripari Sayidan, an area to the same extent was to be withdrawn from his rural allotment in village Alipur Arian.
This however was not done through oversight and the allottee was in posses sion of the both lands in villages Alipur Arian and Tripari Sayidan.
This resulted in double allotment to the petition er.
It was also submitted therein that the Managing Officer wrongly allowed the petitioner to purchase the said land in village Alipur Arian in February 1962.
The 628 order of the Managing Officer was without jurisdiction as by that time property had gone out of the Compensation Pool and it vested in the State Government.
It was further averred that the transfer of the land in dispute to the petitioner was void ab initio as under the package deal it vested in the State Government.
Respondent No. 2 has rightly cancelled the allotment of excess land to the petitioner.
The writ petition was dismissed by the learned Single Judge holding inter alia that the Chief Settlement Commis sioner (Lands) had jurisdiction to cancel the allotment even after the conferment of the proprietary right referring to the decision in the case of Smt.
Balwant Kaur vs Chief Settlement Commissioner, It was further held that the package deal came about in April 1961 whereas the offer to purchase the excess land was made in February, 1962.
i.e. at a time when the land was no longer in the Central pool but it vested in the State of Punjab.
The Chief Settlement Commissioner was justified in cancel ling the permission to purchase given by the Managing Offi cer as the land had already been transferred to the State of Punjab and the same ceased to vest in the Central Compensa tion Pool.
Aggrieved by the judgment and order dated 16th January, 1964 passed in C.W.P. No. 1804 of 1962 an appeal under clause X of the Letters Patent was preferred by the peti tioner.
This was registered as L.P.A. No. 95 of 1964.
On 14th August, 1968, the Division Bench of Punjab High Court after hearing the parties held that there was no denial by the appellant that in view of the package deal the title to the land had already passed to the Punjab Government in 1961 and no authority under the could make any order in regard to the sale of land to the appellant at concessional rate.
The title had passed to the Punjab Government in 1961 and after that it was only the Punjab Government who could deal with that land.
It was further held that there was no denial that the land in question was covered by the package deal.
The only contention made by the appellant was that an appeal was filed in the Supreme Court from the judgment in the case of Ram Chander vs State of Punjab, [1968] Current Law Jour nal (Punjab & Haryana) 668 wherein the validity of the package deal was upheld.
It was held that if the appeal succeeds in this Court then it would be up to the Chief Settlement Commissioner to review his own orders in the wake of such decision of the Supreme Court in order to give relief to the appellant.
The appeal was accordingly dis missed.
629 It is against this judgment and order this appeal by special leave has been filed.
It appears from the letters dated 3.6.1961, 5.3.1962 as well as 23.3.
1963 issued from the office of Chief Settle ment Commissioner, Government of India that all surplus lands as well as excess area in occupation of the allottees stood transferred to the Punjab Government with effect from 1.4.1961 and the Punjab Government paid the price of the lands at the rate of Rs.445 per standard acre to the Central Government by half yearly instalments in 6 instalments within a period of three years commencing from 1st April, 1961.
So these lands are package deal properties vested in the State of Punjab.
It has been rightly held in the Letters Patent Appeal confirming the order of the learned Single Judge in the writ petition that since the excess land allot ted to the appellant was package deal property the same cannot be sold nor can it be allowed to be sold to the petitioner appellant by the Managing Officer under the provisions of Displaced Persons (Compensation and Rehabili tation) Act, 1954.
So the order of the Managing Officer made in February, 1962 is wholly without jurisdiction inasmuch as the said property was no ' longer in the compensation pool of the Central Government but it was a package deal property vested in the State of Punjab.
It has also been rightly held that the Chief Settlement Commissioner is competent under Section 24 of the Displaced Persons (Compensation and Reha bilitation) Act 44 of 1954 to cancel the allotment of land in excess of the area the petitioner is entitled to get under the provisions of the said Act.
This legal position has been settled by a decision of the Punjab and Haryana High Court in the case of Ram Chander vs State of Punjab (supra) wherein it has been held: "In our opinion, the package deal has the effect of transferring the property from the Central Government to the Punjab State and the logical result which flows from it is that the Settlement Authorities as delegates of the Central Government could not pass any orders under the Act.
" It appears that the Civil Appeal No. 470 of 1969 which was filed against the judgment and order passed in LPA No. 298 of 1966 was disposed of by this Court (to which both of us were parties) on 29th July, 1986 by recording the follow ing order: "In view of the judgment in Civil Appeal Nos.
2125(N) of 1968 and 1832 of 1969, there is no reason to consider the question of law raised by the State of Haryana in this 630 appeal.
The appeal is accordingly disposed of without expressing any opinion on the merits.
" It also appears that this Court passed an order on 29th July, 1986 dismissing Civil Appeal Nos.
2125(N) of 1968 and 1832 of 1969 by recording the following order: "There is no merit in these appeals.
By the judgment, the High Court has set aside the sales and directed re auction of the proper ties.
We entirely agree with the reasoning and conclusion reached by the High Court.
The appeals are accordingly dismissed with no order as to costs.
" It is therefore clear and evident that the judgment of the Punjab High Court rendered in the case of Ram Chander vs State of Punjab & Ors.
(supra) insofar as it relates to the validity of the package deal, has been upheld by this Court.
So there is no merit in this contention made on behalf of the appellant.
It has also been held by the Full Bench of the Punjab High Court in the case of Smt.
Balwant Kaur vs Chief Settle ment Commissioner (Lands), Punjab, [1963] Punjab Law Report er (Vol. 65) 1141 at 1187 that the Chief Settlement Commis sioner was competent to cancel or set aside the order of transfer even if the sanad was granted or the sale deed had been executed and on such order being made the sanad or the sale deed will automatically fall with it.
On a conspectus of these decisions the point is now well settled that the respondent No. 2, the Chief Settlement Commissioner has duly and properly made the impugned order of cancellation of the excess allotment made to the appel lant.
It appears that the petitioner has already made an application to the Government for allotment to them of the said excess land on taking from them the appropriate price.
It has been further stated that Pala Singh had died during the pendency of this appeal and he left his widow and four sons and daughters as his legal representatives.
It is for the Government of Punjab to consider and decide whether the legal representatives of deceased appellant are entitled to pourchase the said excess land under the provisions of the Punjab Package Deal Properties (Disposal) Act, 1976 and the rules framed thereunder.
It is relevant to mention in this connection that the Gov ernment 631 of Punjab amended the rules and the said amended rules have been titled as Punjab Package Deal Properties (Disposal) Rules, 1976.
These rules lay down elaborate procedure as to how the lands in excess of the entitlement which have been cancelled may be transferred to the allottees or their successors in interest.
It also appears from Rule 4 that the allottee or his legal representatives will not be entitled to have the excess land which was cancelled on the ground of fraud, concealment or mis representation of material facts.
It is also provided in clause 8 of the said rules that the price of the land that will be transferred shall be the current market price to be determined by the Tehsildar (Sales).
For the reasons aforesaid there is no merit in the appeal and as such it is dismissed with costs, assessed at Rs. 1,000.
P.S.S. Appeal dis missed.
| The petitioner was an allottee of the premises held by the Government at the relevant time.
The landlady applied for release of the premises but the request was rejected.
However, upon a further representation made by the landlady stating that her son was not allowing her to live with him in another house belonging to her, the Government made an order releasing the premises in her favour and asked the petitioner to vacate the premises.
Several notices were also issued to him in that behalf.
The petitioner challenged the order of release contending that he had not been given an opportunity to show cause, and, that the Government had no power to review its earlier order rejecting the request; but the petition was dismissed by the High Court.
Dismissing the petition for Special Leave to appeal.
HELD: It is well settled law of this Court that in case of bona fide need, subsequent events must be taken into account if they are relevant to the question of release of possession of the premises.
The contention that the Govern ment cannot review its own order cannot be accepted.
When, in spite of the 'notices given to him, the petitioner did not choose to move out of the premises it cannot be said that he was not given an opportunity to show cause.
[567B C]
|
Appeal No. 119 of 1963.
Appeal by special leave from the judgment and order dated January 16, 1961 of the Deputy Custodian General, New Delhi in Appeal No. 172 A /SUR/ 1960.
M. C. Setalvad, Atiqur Rehman and K. L. Hathi, for the appellant.
C. K. Daphtary, Attorney General, K. section Chawla and B. R. G. K. Achar, for the respondents.
February 19, 1964.
The Judgment of the Court was delivered by WANCHOO, J.
This is an appeal by special leave against the order of the Deputy Custodian General, and the question involved is whether the appellant is liable to pay Rs. 85,000/ to the Custodian.
The matter has a long history behind it which it is necessary to set out in order to understand the point now in dispute in the present appeal.
The money in question was deposited with the appellant by his sister as far back as January 1946.
The total amount deposited was Rs. 90,000/ , but the appellant 's sister took back Rs. 5,000/ , with the result that the balance of Rs. 85,000/ remained deposited with the appellant.
The appellant 's sister thereafter migrated to Pakistan sometimes between June to August 840 1949.
Sometime later, the Assistant Custodian General called upon the appelant to pay this sum lying in deposit under section 48 of the , No. XXXI of 1950, (hereinafter referred to as the Act).
The appellant contested the matter on the ground that the money had been given to him as a loan and its recovery was barred in January 1949 long before his sister had migrated to Pakistan, and therefore the amount could not be recovered from him.
The Assistant Custodian however directed the recovery of the amount as arrears of land revenue under section 48 of the Act, as it then stood.
The matter was taken in appeal before the Custodian, Saurashtra, but the appeal failed.
The appellant then went in revision to the Custodian General, and the revision also failed.
Then followed a writ petition by the appellant before the Saurashtra High Court in 1955.
The writ petition was dismissed by a learned Single Judge; but on Letters Patent Appeal the appellant succeeded, the High Court holding that the amount was not recoverable under section 48 of the Act as it stood at the relevant time.
This decision was given on December 9, 1957.
In the meantime, section 48 had been amended on October 22, 1956 and we shall refer to this amendment in due course.
After the appellant had succeeded in the High Court, another notice of demand was served on him by the Assistant Custodian on January 22, 1958, and after hearing the objec tions of the appellant, the Assistant Custodian again directed the amount to be recovered.
The appellant then took the matter in appeal to the Custodian General.
The Custodian General allowed the appeal in August 1958 and remanded the proceedings for further enquiry as directed by him.
The Custodian General then held that section 48 as amended applied to the fresh proceedings which began on the notice issued by the Assistant Custodian in January 1958.
He further held that the amount was recoverable under the amended section 48 provided it was due to the evacuee on the date the property of the evacuee vested in the Custodian.
He was therefore of opinion that it would have to be determined when the sister of the appellant migrated and whether the amount was due to her on the date of her migration and had.
not become barred by the law of Iimitation on that date.
Ho was further 841 of opinion that the question whether the transaction amounted to a loan or a deposit had to be determined as there were different periods of limitation for these two types of transactions.
He therefore remanded the matter for disposal after finding the facts in accordance with the directions given by him.
After the remand further evidence was taken and it was held that the amount in question was payable by the appellant as it was a deposit and was still recoverable when the property vested in the Custodian.
Thereupon the appellant again went in appeal to the Custodian General and that appeal was dismissed on February 6, 1961.
Then the appellant applied to this Court for special leave which was granted; and that is how the matter has come up before us.
Two questions have been urged before us on behalf of the appellant.
The first is whether the amended section 48 can be applied to the present case.
The second is whether the claim of the Custodian is barred even on the basis of the transaction between the appellant and his sister being a deposit and not a loan.
The amended section 48 came into the Act by Act No. 91 of 1956 from October 22, 1956 and runs as follows: "48.
Recovery of certain sums as arrears of land revenue: (1) Any sum payable to the Government or to the Custodian in respect of any evacuee property, under any agreement, express or implied, lease or other document or other#vise howsoever, may be recovered in the same manner as an arrear of land revenue.
(2) If any question arises whether the sum is payable to the Government or to the Custodian within the meaning of sub section (1), the Custodian shall, after making such inquiry as he may deem fit, and giving to the person by whom the sum is alleged to be payable an opportunity of being heard, decide the question; and the decision of the Custodian shall, subject to any appeal or revision under this Act, be final and shall not be called in question by any court or other authority 842 (3) For the purpose of this section, a sum shall be deemed to be payable to the Custodian notwithstanding that its recovery is barred by the Indian Limitation Act, 1908 (9 of 1908), or any other law for the time being in force relating to limitation of action.
" It will be seen that this is mainly a procedural section replacing the earlier section 48 and lays down that sums payable to the Government or to the Custodian can be recovered thereunder as arrears of land revenue.
The section also provides that where there is any dispute as to whether any sum is payable or not to the Custodian or to the Government, the Custodian has to make an inquiry into the matter and give the person raising the dispute an opportunity of being heard and thereafter decide the question.
Further, the section makes the decision of the Custodian final subject to any appeal or revision under the Act and not open to question by any court or any other authority.
Lastly the section provides that the sum shall be deemed to be payable to the Custodian notwithstanding that its recovery is barred by the Indian Limitation Act or any other law for the time being in force relating to limitation of action.
Sub sections (1) and (2) are clearly procedural and would apply to all cases which have to be investigated in accordance therewith after October 22, 1956, even though the claim may have arisen before the amended section was inserted in the Act.
It is well settled that procedural amendments to a law apply, in the absence of anything to the contrary, retrospectively in the sense that they apply to all actions after the date they come into force even though the actions may have begun earlier or the claim on which the action may be based may be of an anterior date.
Therefore, when the Assistant Custodian issued notice to the appellant on January 22, 1958 claiming the amount from him, the recovery could be dealt with under sub sections
(1) and (2) of the amended section 48, as they are merely procedural provisions.
But it is urged on behalf of the appellant that sub section
(1) in terms does not apply to the present case, and if so, sub section
(2) would also not apply.
The argument is that under sub section
(1) it is only any sum payable to the Government or to the Custodian in respect of any evacuee property which can be recovered as arrears of land revenue.
843 Therefore, the argument runs, evacuee property itself cannot be recovered under sub section
(1), for that sub section only provides for recovery of any sum payable in respect of any evacuee property.
In this connection reference has been made to section 9 of the Act, which lays down that if any person in possession of any evacuee property refuses or fails on demand to surrender possession thereof to the Custodian, the Custodian may use or cause to be used such force as may be necessary for taking possession of such property and may, for this purpose, after giving reasonable warning and facility to any woman not appearing in public to withdraw, remove or break open any lock, bolt or any door or do any other act necessary for the said purpose.
The argument is that the Custodian can only take action for recovery of evacuee property under this section.
We are of opinion that the argument is misconceived.
Section 9 deals with the recovery of immovable property or specific movable property which can be physically seized; it does not deal with incorporeal evacuee property which may vest in the Custodian and which, for example, may be of the nature of an actionable claim.
So far as actionable claims are concerned, they are dealt with by section 48 as amended read with section 10 (2) (i).
It is also a misconception to think that the amount of Rs. 85,000/ which is involved in this case is actually evacuee property.
It is true that under section 48 as amended, the Custodian can take action for recovery of such sums as may be due in respect of any evacuee property and if the sum of Rs. 85,000/ which was deposited with the appellant is actually evacuee property, the Custodian may not be able to take action under section 48 (1) and (2) in respect of the same.
But the property which vested in the Custodian was not the actual money in specie lying with the appellant who must be treated as a banker with respect to the property with him , on the other hand the property which vested in the Custodian would be the right of the appellant 's sister to recover the amount from the appellant and that would be incorporeal property in the form of an actionable claim.
It is in respect of that actionable claim that the Custodian can proceed under section 48, sub sections
(1) and (2), to recover the sum payable to him in respect of that property, namely, the actionable claim.
The contention of the appellant that section 48 (1) will not apply to the recovery of this sum of money must 844 therefore fail and the Custodian would have the right to recover this sum of money as it is payable in respect of the evacuee property of the appellant 's sister, namely, the right which she had to recover the sum from the appellant, and it is this right which vested in the Custodian.
The Custodian could not take action under section 9 by physically seizing the amount because the amount cannot be treated as specific property which is liable to be seized under that section.
If the appellant 's sister had the right to recover this amount from the appellant that right would be incorporeal property which would vest in the Custodian and in respect of which action could be taken under section 48 as amended and not under section 9 of the Act.
The contention of the appellant that section 48, (1) and (2) do not apply to this case must therefore fail.
The next contention is that in any case treating the amount as a deposit the right to recover it had become barred and therefore the Custodian could not recover it under this section and that sub section
(3) of section 48 would not apply as it affects vested rights and is not procedural in nature and therefore could not be applied retrospectively.
Some dates would be relevant in this connection.
On the findings of the authorities concerned, it appears that the deposit was made sometime in January 1946.
The appellant 's sister migrated sometimes between June to August 1949.
According to the law in force in that area at the relevant time, on the date of migration of the appellants sister, she became an evacuee and her property would vest in the Custodian on such date.
So her right to recover this amount from the appellant would vest in the Custodian sometime between June to August 1949, if it was still alive under the law of limitation, even apart from the question that in such cases only the remedy is barred though the right remains.
Further as this was a deposit, limitation would run at the earliest from the date of demand and there is no evidence that any demand was made by the appellants sister for the return of the money before she migrated to Pakistan.
Therefore, the period of limitation had not even begun to run on the date the appellant 's sister migrated to Pakistan, assuming article 60 of the Limitation Act, No. 9 of 1908 applied.
Consequently the right of, the appel 845 lant 's sister to recover the amount vested in the Custodian and was not barred by limitation at the time when she became an evacuee.
The demand was made for the first time on January 10, 1952 by the Assistant Custodian and time would run from that date, at the earliest.
Then it is urged that even if the actionable claim vested in the Custodian, the demand in this case was made for the first time on January 10, 1952, and therefore under article 60 of the Limitation Act, the right to recover the amount would be barred in January 1955, and consequently no proceeding could be taken under section 48 to recover the same after January 1955.
It is further urged that the amended Act came into force on October 22, 1956 and sub section
(3) would only apply to such cases where the limitation had not expired before that date.
We do not think it necessary for purposes of the present appeal to decide the effect of sub section
(3) of section 48, for the appellant never contested before the authorities concerned that recovery could not be made tinder section 48 even if the amount was treated as a deposit.
What the appellant had contended before the authorities concerned was that the recovery would be barred as the amount was given to him.
, as a loan.
The appellant therefore cannot Dow for the first time in this Court take the plea that recovery could not be made under section 48 and sub section
(3) thereof would not apply even if the amount is treated as a deposit.
This contention thus raised in this Court for the first time raises a question as to the effect of sub section
(3) of section 48.
Besides the effect of section 48 (3), it is contended for the respondent that if this question had been raised before the proper authorities evidence might have been led to show that the recovery was not barred, for the case proceeded on ,he assumption that At. 60 of the Limitation Act applied and proper defences could have been raised as for example the conditions on which the deposit was made i.e. whether on demand or other wise and acknowledgements of liability made by the appel lant.
Such defence would have raised questions of fact which have never been investigated.
Therefore it is urged that the appellant should not be allowed to raise the point that the recovery would be barred even if the amount was treated is a deposit and should be confined to his case 846 that this was a loan and not a deposit, for he never pleaded at any time before the authorities concerned that even if it was a deposit the recovery would be barred by time.
We are of opinion that there is force in this contention on behalf of the respondents and we are not prepared to allow the appellant to raise the question whether the recovery would be barred even if the amount is treated as a deposit.
In this view of the matter, it would not be necessary to consider the exact effect of section 48(3) and to decide whether it will apply even to cases where the recovery had become barred under the Limitation Act before October 22, 1956.
We therefore do not allow the appellant to raise the point that the recovery would be barred even if the amount was a deposit.
The appeal therefore fails and is hereby dismissed with costs.
Appeal dismissed.
| Rupees 85,000/ was deposited with the appellant by his sister in January 1946.
The appellant 's sister migrated to Pakistan sometimes between June to August 1949.
The Assistant Custodian called upon the appellant to pay this sum lying in deposit under section 48 of the .
The appellant pleaded that the amount could not be recovered from him because the money had been given to him as a loan and its recovery was barred in January 1949.
The Assistant Custodian rejected the contention of the appellant and directed him to pay the amount under section 48 of the Act, as it then stood.
This decision was affirmed in appeal as well as in revision.
Then the appellant moved a writ petition before the High Court which was dismissed by the single Judge.
On Latters Patent Appeal the High Court held that the amount was not recoverable under section 48 of the Act as it stood at the relevant time.
This decision was given on December 9, 1957.
In the meantime, section 48 had been amended on October 22, 1956.
On January 22, 1958 another notice of demand was served on the appellant by the Assistant Custodian.
The Assistant Custodian again directed the amount to be recovered The appellant preferred an appeal before the Custodian General.
The Custodian General allowed the appeal and remanded the proceedings for further enquiry as directed by him.
After the remand further evidence was taken and it was held that the amount in question was payable by the appellant as it was a deposit and was still recoverable when the property vested in the Custodian.
Thereupon the appellant preferred an appeal to the Custodian General and that appeal was dismissed.
Then the appellant applied to this Court for special leave which was granted.
Hence the appeal.
Held: (i) Sub sections 1 and 2 of the amended section 48 of the are clearly procedural and would apply to all cases which have to be investigated in accordance therewith after October 22, 1956, even though the claim may have arisen before the amended section was inserted in the Act.
It is well settled that procedural amendments to a law apply, in the absence of anything to the contrary, retrospectively in the sense that they apply to all actions after the date they come into force even though the actions may have begun earlier or the claim on which the action may be based may be of an anterior date.
In the present case when the Assistant Custodian issued notice to the appellant on January 22, 1958, claiming the amount from him, the recovery could be dealt with under sub sections
(1) and (2) of the amended a. 48, as they are merely procedural provisions.
(ii) In the present case the property which vested in the Custodian was not the actual money in specie lying with the appellant who must be treated as a banker with respect to the property with him; on the other hand the property which vested in the Custodian would be the right of the appellant 's sister to recover the amount from the appellant 839 and that would be incorporeal property in the form of an actionable claim.
It is in respect of that actionable claim that the Custodian can proceed under section 48 sub sections
(1) and (2), to recover the sum payable to him in respect of that property, namely, the actionable claim.
The Custodian could not take action under section 9 by physically seizing the amount because the amount cannot be treated as specific property which is liable to be seized under that section.
(iii) As this amount was a deposit, limitation would run at the earliest from the date of demand and there is no evidence that any demand was made by the appellant 's sister for the return of the money before she migrated to Pakistan.
Therefore, the period of limitation had not even begun to run on the date the appellant 's sister migrated to Pakistan, assuming article 60 of the Limitation Act No. 9 of 1908 applied.
Consequently the right of the appellant 's sister to recover the amount vested in the Custodian and was not barred by limitation & the time when she became an evacuee.
|
Appeal Nos.
2919 20 of 1981.
From the Judgment and Order dated 15.9.1981 of the Calcutta High Court in Civil Rule No.3567 (W) of 1981.
section Murlidhar, Rathin Das and R.F. Nariman for the Appellant.
S.S. Ray, S.M. Jain, A.P. Dhamija, Sudhanshu Atreya, B.K. Jain, S.K., Jain and P.K. Mukherjee for the Respondents.
The Judgment of the Court was delivered by KASLIWAL, J.
Both the above appeals by grant of special leave are directed against the common order of the High Court dated 15.9.1981 as such the same are disposed of by one single order.
The respondent Messrs Singel Tea and Agricultural Industries Limited, a private limited company incorporated under the (in short 'The Company ') filed a writ petition under Article 226 of the Constitution in the High Court on 22.4.1981 challenging the order dated 16.4.1981 issued by the Collector, Darjeeling whereby possession of the tea garden known as M/s. Singell Tea Estate were taken over with effect from 16.4.1981.
In view of the fact that the West Bengal Tea Development Corporation Limited, a Government Company (in short 'The Corporation ') had been handed over the possession of the tea garden on 21.4.1981; the said Corporation was also impleaded as a party respondent.
The State of West Bengal enacted The West Bengal Estates Acquisi 882 tion Act, 1953 (hereinafter referred to as 'The Act ') to provide for the State acquisition of estates, of rights of intermediaries therein and of certain rights of raiyats and under raiyats and of the rights of certain other persons in lands comprised in estates.
The State Government also issued a notification under Section 4 of the Act vesting all estates and rights of every intermediary in the State free from all encumbrances.
This notification also covered the land comprised in the tea garden know as M/s. Singell Tea Estate.
The Revenue Officer, Kurseong, Darjeeling issued notices to the Company initiating proceedings for assessment of rent of the said tea garden.
The Company appeared in the said proceedings and contended that it was not an intermediary within the meaning of the Act and the provisions of the Act were not applicable to the said tea garden as the same was a freehold land and the Revenue Officer had not jurisdiction to assess the rent under Section 42(2) of the Act.
The Revenue Officer rejected the contentions of the Company and passed two orders fixing the rent at Rs.2,375.94 per year.
The Government being not satisfied with the quantum of rent determined by the Revenue Officer took further proceedings for the revision of the entries in the record of rights in respect of the tea garden and in those proceedings the Revenue Officer by order dated 22.8.1968 redetermined the rent at Rs.8,769.24 per year.
The Company aggrieved against the aforesaid order of the Revenue Officer preferred two appeals before the District Judge, Darjeeling acting as Tribunal under sub section (3) of Section 44 of the Act.
Both the appeals were dismissed in default.
The company filed two applications for restora tion of the appeals under Order 41 Rule 19 of the Code of Civil Procedure, but both the applications were dismissed by the Learned District Judge by his order dated 16.8.1975.
The Company then filed two applications under Section 115 of the Code of Civil Procedure read with Article 227 of the Constitution in the High Court challenging the aforesaid orders of the District Judge dated 16.8.1975.
A Division Bench of the High Court by its order dated 1.10.1975 granted interim stay of the operation of the order of the Revenue Officer dated 22.8.1968.
During the pendency of the aforesaid cases in the High Court, the Additional Deputy Commissioner of Darjeeling by his letter dated 20.6.1979 informed the Manager of Singell Tea Estate that inspite of repeated reminders, the Company had not executed the long term lease for 30 years on prepayment of the requisite number of instalments of rent and cesses.
883 The above mentioned letter of the Additional Deputy Commissioner, Darjeeling was received by the Company on 8.&1979 and was replied by the Solicitor of the Company by letter dated 13.8.1979.
In the reply, it was pointed out that the High Court had granted the stay order and as such requested the Additional Deputy Commissioner to stay his hands till the disposal of the said cases.
Thereafter, the Collector of Darjeeling served upon the Company a notice under Section 106 of the determining the tenancy of the Company in respect of the tea garden on the expiry of 14.4.1981.
The Company was requested to hand over vacant and peaceful possession of the tea garden to the Junior Land Reforms Officer or the Sub Divisional Land Reforms Officer of the area or the Executive Magistrate immediately on the expiry of 14.4.1981, failing which it was directed that the Company would be deemed a trespasser and would also be liable to pay mesne profits till the Company was evicted in due course of law.
The above notice was received by the Company on 15.11.1980.
In reply to the said notice under Section 106 of the , the Solicitor of the Company replied by letter dated 15.12.1980 agains pointing out the issuance of the stay orders by the High Court and requested the Collector of Darjeeling to stay his hands until further order from the High Court.
Thereafter, the Collector, Darjeeling issued the order dated 16.4.1981 which reads as under: "To : The Proprietor, M/s. Singella Tea Estate, P.O. Kurseong, District : Darjeeling.
I do hereby take over the possession of your tea garden known as Singel Tea Estate with effect from 16th April, 1981 as you have failed to execute Long Term Lease/Summary Lease, by paying the government dues by 14th April 1981 as required in the notice served upon you section 106 of .
Sd/ Illegible Collector, Darjeeling.
" According to the Company, by the impugned order the Collector intimated the Company that he would take possession of the estate.
But the language of the order shows as if the Collector had taken possession of the tea estate on 16.4.1981 and he recorded the fact of taking possession 884 of the tea garden in the said order.
According to the Company, the said order did not mention as to how and in what manner the possession of the tea garden was taken by the Collector.
The stand of the State Government in this regard was that possession of the tea garden was taken by the Collector on 16.4.1981, as stated in the order.
The further case of the Government was that the possession of the tea garden was handed over to the Corporation on 21.4.1981.
As already stated above, the Corporation was subsequently added as a party and an affidavit was filed by Shri Aninda Mohan Bose, the Managing Director of the Corporation stating therein that possession of the tea garden was taken by one Shri R.B. Subba, Circle Inspector (Land Reforms) Kurseong, L.R. Circle on behalf of the Government on 21.4.1981 and handed over to the Corporation.
The High Court from the above circumstances concluded that the statement made by the Collector in the impugned order dated 16.4.1981 about his taking over the possession of the tea garden on that date was incorrect.
The High Court, however, observed that it was not disputed that tea garden was now in the possession of the West Bengal Tea Development Corporation Limited since 21.4.1981.
The High Court examined the question whether the tenancy of the Company in respect of the tea garden could be terminated and the possession of the same could be taken over by the Government.
The High Court in the circumstances mentioned above held that the Collector of Darjeeling was fully aware of the stay order dated 1.10.1975 passed by tile High Court against the order of the Revenue Officer dated 22.8.1968 fixing the rent at Rs.8,769.24 per year before issuing the notice under Section 106 of the as well as on the date of issuing the impugned order dated 16.4.1981.
According to the High Court, there was no question of granting a lease so long as the rent was not determined under Section 42 (2) of the Act.
As the order fixing the rent was stayed by the High Court, the question of granting on execution of the lease by the Company could not arise.
Thus, the action of the Collector in taking possession of the tea garden by the impugned order dated 16.4.1981 on the ground that the Company had failed to execute a long terms lease or summary lease by paying the Government dues by 14.4.1981 as required in the notice given under Section 106 of the , was not correct.
The High Court further held that the Collector did not make any order of summary settlement as required by paragraph 1 of Schedule F of The West Bengal Estates Acquisition Rules, 1954.
Thus, the Collector failed to 885 perform his statutory duty by not granting a summary settlement specifying the terms and conditions of the tenancy and violated the provisions of the Rules.
As regards the contention on behalf of the State Government that the Company should have paid at least the rent at the rate of Rs.2,375.94 per year initially determined by the Revenue Officer under Section 42 (2) of the Act, the High Court rejected the same on the ground that the Government had not accepted the same and had not made any demand for payment of rent at that rate.
The High Court took the view that the rent was fixed for the second time by order dated 22.8.1968 but the demand for payment of rent was made after a long time in 1979 and obviously such demand would be for the enhanced rent as fixed for the second time and the same having been stayed by the High Court, it was doubtful whether the tenancy could be terminated and possession could be recovered on the ground of non payment of rent.
The High Court, as such, held that the Collector had taken the law into his own hands and took over possession otherwise than in accordance with law and such action on the part of the responsible officer like the Collector cannot be approved.
As a result of the above findings, the High Court allowed the writ petition and issued a writ of mandamus commanding the State Government and other authorities to deliver the possession of the tea garden to the Company within a month from the date of the order.
Both the State of West Bengal as well as the Corporation have come in appeal challenging the order of the High Court.
We have heard learned counsel for the parties and have persued the record.
The two revisions filed under Section 115 of the Code of Civil Procedure read with Article 227 of the Constitution challenging the two orders passed by the District Judge dismissing the two applications filed under Order 41 Rule 19 of the Code of Civil Procedure for restoration of the two appeals filed against the determination of the rent for the second time at the rate of Rs.8,769.24 per year are still pending before the Calcutta High Court.
This Court on 13.12.1991 had passed the following order: "The Calcutta High Court is requested to dispose of finally within the three months from today Civil Rule Nos.3741 42 of 1975.
These appeals to be on board on 7th April, 1992.
The. order communicated to the Calcutta High Court forthwith." 886 However, inspite of the above order, we were informed by the learned counsel for the parties that the Civil Rule Nos.3741 42 of 1975 have not been disposed of by the High Court.
As the above mentioned two appeals directed against the order of the High Court dated 15.9.1981 are pending in this Court for the last more than 11 years, we do not consider it proper to further wait for the decision of the Civil Rule Nos.3741 42 of 1975 pending in the High Court and we propose to decide these appeals.
The West Bengal Estates Acquisition Act, 1953 abolished the intermediaries and upon the due publication of a notification under Section 4 of the Act, the estates and the rights of intermediaries in the estates vested in the State free from all intermediaries under Section 5 of the Act.
Section 6 provides for retaining certain lands by the intermediaries.
Section 42 provides for retaining possession of any land subject to the liability to pay rent as determined by the Revenue Officer.
Sub section (2) of Section 42 provides that when an intermediary is entitled to retain possession of any land comprised in a tea garden under Clause (f) of sub section (1) as read with sub section (3) of Section 6 of the Act, the Revenue Officer shall determine the rent payable in respect of such land in the manner provided in the said sub section.
In the present case, the Revenue Officer had initially determined the rent at the rate of Rs.2,375.94 per year and on the representation of the State Government the same was refixed at Rs.8,769.24 per year.
So far as the Company is concerned, it had taken a clear stand before the Revenue Officer that it was not an intermediary nor the provisions of the Act applied in the case as the land was claimed as freehold.
The admitted facts of the case are that the Revenue Officer had initially determined the rent at the rate of Rs.2,375.94 per year, but the same was not accepted by the Government and on a representation made by the State Government, the Revenue Officer had refixed the rent at Rs.8,769.24 per year by order dated 22.8.1968.
The Company had challenged the rent refixed at Rs.8,769.24 and the High Court in Civil Rule Nos.
3741 42 of 1975 had stayed the order of the Revenue Officer dated 22.8.1968 fixing the rent at the rate of Rs.8,769.24 in view these circumstances, it was necessary on the part of the Collector to have passed an order of summary settlement as contemplated under Form I Schedule F of The West Bengal Estates Acquisition Rules, 1954.
The High Court in these circumstances was right in holding that the Collector had no jurisdiction 887 to terminate the tenancy on the ground of non payment of rent or for not executing a lease deed inasmuch as the Collector had not mentioned in the notice terminating the tenancy under Section 106 of the that he was prepared to accept the rent at the rate of Rs.2,375.94 per year as determined initially by the Revenue Officer.
We agree with the reasoning and conclusion arrived at by the High Court.
Now, taking in the view the entire facts and circumstances of the case and in order to do complete justice between the parties, we deem it proper that the respondent Company should be given the possession of the tea garden provided the Company pays the entire areas of rent from 27.7.1965 to 21.4.1981, the date when the Company was dispossessed calculated at the rate of Rs.8,769.24 per year after adjusting any amount already paid within three months from today.
There would be no necessity for the Collector to make any order of summary settlement and a long term lease shall be executed as contemplated under sub section (3) of Section 6 of the Act.
As soon as the arrears of rent as mentioned above are paid by the Company, and a lease deed is executed, the Company shall be handed over the possession of the tea garden.
In case, any increase in the amount of rent is permissible under the law due to lapse of time, the State Government would be free to take the same into consideration while granting the long term lease.
The learned counsel appearing for the respondent Company had not objected for determining the arrears of the rent at the rate of Rs.8,769.24 per year, to put an end of this litigation.
These appeals are disposed of in the manner indicated above.
In the facts and circumstances of the case, we make no order as to costs.
G.N. Appeals disposed of.
| The appellant landlord filed an eviction suit for possession of the demised premises mainly on the ground of arrears of rent under Section 12(3) of the Bombay rent Act, 1947.
The suit was settled between the parties.
By the terms of the compromise, possession would be given by the tenant to the landlord by 10 October 1970, or the landlord may recover possession by execution based on this decree; but, if the tenant paid the entire arrears in full by 10 October 1970, the landlord would not execute the decree for possession.
The tenant failing to pay the entire arrears as stipulated the landlord decree holder filed execution proceedings.
The executing Court issued a warrant for possession but the Appellate Court set aside the order and dismissed the prayer for eviction.
The High Court remanded the matter to the Appellate Court to determine the character of the compromise terms.
That court again allowed the appeal and dismissed the execution proceedings altogether.
On appeal, the High Court agreed with the Appellate Court.
It found 730 that clause permitting eviction was penal in nature and therefore, not enforceable.
The questions before this court were:did the parties to the compromise intend to create or continue the relationship of landlord and tenant; whether the compromise terms in the consent decree were penal in nature or merely gave a concession; and whether Section 114 Transfer of Property Act could be invoked while executing a decree for possession, notwithstanding Section 12(3) of the Bombay Act.
Allowing the appeal, this Court, HELD: It is well settled that a decree passed on the basis of a compromise by and between the parties is essentially a contract between the parties which derives sanctity by the court superadding its seal to the contract.
But all the same the consent terms retain all the elements of a contract to which the court 's imprimaturs is affixed to give it the sanctity of an executable court order.
The court will not add its seal to the compromise terms unless the terms are consistent with the relevant law.
(735 H) If the law vests exclusive jurisdiction in the court to adjudicate on any matter, the court will not add its seal to the consent terms unless it has applied its mind to the question.
In such a case it is the independent satisfaction of the court which changes the character of the document from a mere contract to a court 's adjudication which will stop the tenant from contending otherwise in any subsequent proceedings and operate as resjudicata.
(736 B) The character of the con sent decree will depend on the nature of the dispute resolved and the part played by the court while superadding its seal to it.
(736 C) (2) If a defendant is required to suffer the consequence of his failure to abide by terms stipulated, such consequence would he penal in nature.
But if the defendant gets some benefit by complying with a requirement, such as clause can never be penal in character.
(739 B) (3) Admittedly the tenant had failed to pay or tender in court the 731 standard rent and permitted increases due to the landlord.
(736 E) The clause in the consent terms whereby, upon payment of the entire rent etc.
due from the tenant, by a stipulated date was dearly to secure his dues i.e. arrears of rent etc.
This is in the nature of a concession.
Where a landlord grants a concession and agrees that if the entire arrears is cleared by a stipulated date, he will not insists possession that will not render the clause penal in nature.
(739 E) (4) If the condition precedent for availing of the benefit of concession under clause (3) of the consent terms is satisfied, the relationship of landlord and tenant continues but if the tenant fails to comply with the condition precedent for availing (of the benefit or concession the forfeiture operates and the tenant becomes liable for eviction under the decree.
(739 G) (5) After the enactment of clause (b) to section 12(3) which is a special provision incorporating the equity provision contained in section 114, T.P. Act, in a modified form, cases governed under the Act must he resolved in accordance with section 12(3) of the Act and not under section 114, T.P. Act.
The landlord 's right to seek eviction has been drastically reduced and circumscribed by sections 12and 13 of the Act.
Similarly the tenant must also seek protection from eviction by complying with the requirements of the Act.
(740 B) If such is not the legal position, Sections 12 (3) (a) and 12 (3) (b) would be rendered wholly nugatory.
Under the Act a tenant is allowed to continue in possession notwithstanding the termination of the contractual tenancy if the abides by the provisions of the Act.
If he fails to abide by the requirement of section 12(3) of the Act, he must take the consequences flowing therefrom.
There is no question of granting him double protection.
(740 C E) Krishnabai vs Hari, 8 BLR 813 and Gajanand Govind vs Pandurang Keshav, 53 B.L.R. 100, referred to.
(840 B) Pradesh Kumar Bajpai vs Binod Behari Sharkar, [1980] 3S.C.R. 93, relied on.
(840 H)
|
ivil Appeal No. 5055 of 1989.
From the Judgment and Order dated 27.2.1989 of the Allahabad High Court in C.M.W.P. No. 12322 of 1984.
Satish Chandra, E.C. Agarwala, Atul Sharma, Ms. Purnima Bhatt and V.K. Pandita for the Appellants.
G.L. Sanghi, B.D. Agarwal, G. Ganesh, K.L. John and Ms. Shobha Dikshit for the Respondents.
531 The Judgment of the Court was delivered by SHARMA, J.
This case arises out of a proceeding under the Indian Stamp Act, 1899.
Special leave is granted.
A dispute between the appellants and the respondent No. 1, who are members of a family, was referred to an arbitrator, who made an award on 9.10.1973, and filed the same within a few days before the civil court for making it a rule of the court.
On objection by the present appellants, the prayer was rejected on 18.3.1976 and the order was confirmed by the High Court on 3.7.1981 in a regular first appeal.
An application for special leave was dismissed by this Court on 18.4.1983 and a prayer for review was also rejected.
It is stated on behalf of the appellants that in the meantime the respondent No.1 applied before the Collec tor for summoning the award and realising the duty and penalty.
A copy of the award was annexed to the application.
The respondent 's prayer was opposed by the appellants but was allowed by the Collector on 15.7.1983; and, on a request made to the civil court for sending the award, the civil court asked the office to do so.
The appellants moved the Chief Controlling Revenue Authority under section 56 of the Indian Stamp Act (hereinafter referred to as the Act) against the Collector 's order dated 15.7.1983.
The Authority in exercise of its revisional power set aside the impugned order of the Collector, inter alia, on the ground of lack of jurisdiction.
The respondent challenged this judgment before the High Court in a writ case which was allowed by the impugned judgment dated 27.2.1989.
The matter was remanded to the Collector to decide the case afresh in the light of the observations.
The High Court also doubted the power of the Chief Controlling Revenue Authority to entertain the appellants ' application under section 56 of the Act.
This judg ment is the subject matter of the present appeal.
Mr. Satish Chander, the learned counsel for the appellants, contended that there cannot be any doubt about the power of the Chief Controlling Authority to correct an erroneous order of the Collector.
Emphasis was laid on the language of section 56 suggesting its wide application.
The learned counsel was also right in arguing that the Authority is not only vested with jurisdiction but has the duty to quash an order passed by the Collector purporting to be under Chapters IV and V of the Act by exercising power beyond his jurisdiction.
To hold otherwise will lead to an absurd situation where a subordinate authority makes an order beyond its jurisdiction, which will have to be suf fered on account of its unassailability before a higher 532 authority.
This Court in Janardan Reddy and Others vs The State of Hyderabad and Others, ; , after refer ring to a number of decisions, observed that it is well settled that if a court acts without jurisdiction, its decision can be challenged in the same way as it would have been challenged if it had acted with jurisdiction, i.e., an appeal would lie to the court to which it would lie if its order was with jurisdiction.
We, therefore, agree with the appellants that the Chief Controlling Revenue Authority had full power to interfere with the Collector 's order, provided it was found to be erroneous.
Their difficulty, however, is that we do not find any defect in the Collector directing to take steps for the realisation of the stamp duty.
It was contended on behalf of the appellants that the respondent No. 1 had no locus standi to move the Collector for impounding the award and sub section (1) of section 33 of the Act had no application.
The learned counsel proceeded to say that in the circumstances it has to be assumed that the Collector acted suo motu under sub section (4) of the said section and since the proviso to sub section (5) directs that no action under sub section (4) shall be taken after a period of four years from the date of execution of the instrument, the Collector had no authority to pass the impugned order after about a decade.
In reply, Mr. G.L. Sanghi urged that the order for impounding the award was passed by the civil court itself on 18.3.1976, and the further orders of the Collector dated 22.7.1983 and of the civil court dated 27.8.1983 were passed merely by way of implementing the same.
The learned counsel is right in relying upon the concluding portion of the order of the civil court dated 18.3.1976 directing the impounding of the award and sending it to the Collector for necessary action.
It is true that further steps in pursuance of this judgment were not taken promptly and it was the respondent No. 1 who drew the attention to this aspect, but it cannot be legiti mately suggested that as the reminder for implementing the order came from the respondent, who was motivated by a desire to salvage the situation to his advantage, further steps could not be taken.
There is no question of limitation arising in this situation and it cannot be said that what had to be done promptly in 1976 would not be done later.
The orders of the Collector dated 15.7.1983 and 22.7.1983 must, therefore, in the circumstances, be held to have been passed as the follow up steps in pursuance of the civil court 's direction dated 18.3.1976, and no valid objection can be taken against them.
The Collector, therefore, shall have to proceed further for realisation of the escaped duty.
It was next contended that in any event the Collector did not 533 have the power to enquire into the correct valuation of the property which was the subject matter of the award.
Reliance was placed on the observations in Himalaya House Co. Ltd. Bombay vs Chief Controlling Revenue Authority, There is no merit in this point either.
The case comes from Uttar Pradesh where express provisions have been made by the insertion of section 47 A, authorising the Collector to examine the correctness of the valuation.
Lastly Mr. Satish Chandra argued that the respondent No. 1 is taking keen interest in the present proceeding in an attempt to illegally re open the question of making the award a rule of the court, which stood concluded by the impugned judgment of the High Court and the order of this Court dismissing the special leave petition therefrom and he can not be allowed to do so.
The reply of Mr. Sanghi has been that this aspect is not relevant in the present pro ceeding for realisation of the duty and need not be decided at this stage.
His stand is that an award which is not made rule of the court is not a useless piece of paper and can be of some use, say by way of defence in a suit.
He said that this question will have to be considered if and when the occasion arises.
Having regard to the limited scope of the present proceeding, we agree with Mr. Sanghi that we may not go into this aspect in the present case, but we would clari fy the position that on the strength of the present judgment it will not be open to the respondent to urge that the effect of the High Court decision dated 8.7.1981 and the orders of this Court dismissing the special leave petition therefrom and later the review application has disappeared or has got modified.
The appeal is disposed of in the above terms, but the parties are directed to bear their own costs of this Court.
G.N. Appeal disposed of.
| A decree on a mortgage was passed in a suit brought by the representatives in interest of a sub mortgagee in 1929 and a personal decree for recovery of the amount remaining due after the sale of the mortgaged properties was passed in 1935.
In 1936 the decree holder started execution of the personal decree and attached certain properties of the judgment debtor.
The decree holder filed a petition on January 30, 1937, praying that the execution case "may be struck off for non prosecution, keeping the attachment in force" in view of certain negotiations for amicable settle ment, and the court passed an order that the execution case "is dismissed for non prosecUtion, the attachment 573 already effected continuing".
On June 2, 1939, the decree holder filed a petition stating that the decree had been adjusted and attachment may be withdrawn.
The Bengal Money lenders Act came into force on September 1, 1940, and on January 2, 1941, the legal representatives of the judg ment debtor filed a suit under section 36 of the Act praying for re opening the transactions.
The question being whether any proceeding for execution was pending on or after January 1, 1939, within the meaning of the definition of "a suit to which this Act applies" contained in section 2 (22) of the Bengal Money lenders Act: Held, per KANIA C.J. and DAs J. That the order of January 30, 1937, was in form and in substance a final order of dismissal of the execution petition of 1936.
The attach ment continued not because there was a pending execution proceeding but because a special order for continuing the attachment was made under O. 21, r. 57 of the Civil Proce dure Code as amended by the Calcutta High Court, and not withstanding the fact that the attachment was continued there was no execution proceeding pending on January 1, 1939, and accordingly the decree sought to be reopened was not one passed in "a suit to which the Act applies" within the meaning of section 2 (22) of the Act and the Court had no power to re open the transactions under section 36 (2).
The petition of June 2, 1939, was also not a proceeding for execution but a mere certification by the decree holder of satisfaction of the decree.
PATANJALI SASTRI J.
The continuance of the attachment notwithstanding the dismissal of the execution petition, indicated that the proceeding which had resulted in the attachment was kept alive to be carried forward later on by sale of the attached property.
Attachment itself is "a proceeding in execution" and so long as it subsists, the proceeding in execution can well be regarded as pending.
In this view a proceeding in execution was pending on January 1, 1939, and the decree must be taken to have been passed in "a suit to which this Act applies ".
But inasmuch as the sub mortgage to the respondent 's predecessor in title was bona fide and he obtained by virtue of the sub mortgage the right to sue the original mortgagor for recovery of the mortgage debt, the decree holder was a bona fide assignee and his claim for the entire decree debt was protected by section 36 (5) of the Act.
Renula Bose v, Manmatha Nath Bose (L.R. 72 I.A. 156), Promode Kumar Roy vs Nikhil Bhusan Mukhopadhya (50 C.W.N. 407) and Prom ode Kumar Roy vs Nikhil Bhusan Mukhopadhya (L.R. 76 I.A. 74) referred to.
|
Civil Appeal No. 2981 of 1987.
From the Judgment and Order dated 23.1.1985 of the Allahabad High Court in Civil Revision No. 155 of 1984.
Anil Dev Singh and Mrs. Shobha Dikshit for the Appellants.
Anil Kumar Gupta for the Respondent.
The Judgment of the Court was delivered by RANGANATHAN,J.
Special leave granted.
This is an appeal to this Court from the judgment of a Single Judge of the Allahabad High Court in a civil revision petition filed by 952 the appellant (C.R.P. 155 of 1984).
The result of the judgment was to restore a decree passed against the appellant by the trial court in a suit for eviction instituted by the respondent in 1980.
The main ground on which the appellant had resisted the suit was that the suit was barred by the provisions of the Uttar Pradesh Public Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (which we shall hereinafter briefly refer to as 'the Rent Act ').
It is the correctness of this ground of defence that it in issue in this appeal.
The appellant, the State of Uttar Pradesh, took on lease a premises at Barabanki belonging to the respondent for the purpose of running a Laprosy Training Centre.
The respondent was thus the landlord, and the appellant the tenant, in respect of the premises within the meaning of section 3(a) of the Rent Act.
This Act has been enacted "to provide, in the interests of the general public, for the regulation of letting and rent of, and the eviction of tenants from, certain classes of buildings situated in urban areas, and for matters connected therewith.
" Section 20 of the Act bars the institution of a suit for the eviction of a tenant, notwithstanding the termination of his tenancy, except on the grounds specified in sub section (2) of that section but none of these grounds were pleaded by the respondent.
section 21 of the Act enables a prescribed authority to order the eviction of a tenant in two situations, subject to certain conditions and limitations.
These situations are: (a) where the landlord requires the premises for his own use and (b) where, the building being in a dilapidated condition, he desires to demolish the same and put up a new construction.
These situations also do not prevail here.
The Landlord, however, gave a notice of termination of tenancy under section 106 of the Transfer of Property Act and filed a suit for recovery of possession.
The appellant claimed that the suit was not maintainable and that the respondent 's remedy, if any, was only to seek eviction in the circumstances and in the manner outlined in the Act.
The respondent sought to overcome this hurdle by contending that the premises in question are not one of the classes of buildings covered by the Rent Act.
In support of this contention, he relied upon an exclustion clause incorporated in section 2(1)(a) of the Act.
Since the whole case turns on a proper interpretation of this clause and since the clause has undergone changes from time to time, it is necessary to refer to these in some detail to facilitate a proper appreciation of the stands of the parties.
(a) In the Rent Act, as originally enacted and brought into force 953 on 15.7.1972, this sub section ran thus: "Nothing in this Act shall apply to (a) any building belonging to, or vested in, the Government of any State or any local authority; or (b) any tenancy created by grant from the State Government or the Government of India in respect of a building taken on lease or requisitioned by such Government." (b) U.P. Act No. 28 of 1976 amended section 2(1) to substitute new clauses in place of the above clauses.
The amended sub section, insofar as is relevant for our present purposes, reads thus: "Nothing in this Act shall apply to (a) any public building; or (b) any building belonging to or vested in a recognised educational institution, the whole of the income from which is utilised for the purposes of such institution; (c)x x x x (d)x x x x (e)x x x x (f)x x x x A definition of 'public building ' was inserted in section 3 which reads: "(o) 'public building ' means any building belonging to or taken on lease or requisitioned by or on behalf of the Central Government or a State Government (including the Government of any other State) and includes any building belonging to or taken on lease by or on behalf of any local authority or any public sector corporation".
These amendments were made effective from 5.7.1976.
954 (c) It appears that the above provisions were sought to be amended by U.P. Ordinance No. 11 of 1977 (promulgated on 27.4.1977) with retrospective effect from 5.7.1976 by substituting the following as clause (a) of section 2(1) of the Rent Act: "2(1)(a) any building of which the Government or a local authority or a public sector Corporation is the landlord." section 3(0) was left unamended.
However, the above Ordinance was allowed to lapse.
Thus the amendment had become inoperative by the time the suit in the present case was instituted.
(d) The next amendment of the Rent Act was by U.P. Ordinance No. 28 of 1983 promulgated on 18.5.1983.
This revived the amendment made by the 1977 Ordinance which had been allowed to lapse.
This time this amendment was not allowed to lapse on the expiry of the ordinance but was kept alive by five successive Ordinances: No. 43 of 1983 dated 12.10.83, No. 6 of 1984 dated 24.3.84, No. 8 of 1984 dated 7.5.84, No. 20 of 1984 dated 22.10.84, and finally No. 9 of 1985 dated 26.4.85.
All these amendments were made effective from 18.5.1983 in so far as the provision presently under consideration is concerned.
The last of these, it may be noted, was promulgated subsequent to the judgment of the High Court presently under appeal.
(e) Finally, the U.P. Legislature enacted Act No. 17 of 1985 on 20.8.85 "regularising" the spate of legislation by ordinances.
By sections 1 and 2 of this Act, the amendment made to section 2(1)(a) by the 1977 Ordinance and kept alive by the Ordinance of 1983 and 1984 was made effective from 18.5.1983.
In this legislative background, the appellant contended, successfully before the Additional District Judge but unsuccessfully before the trial court and High Court, that the premises in question was not a 'public building ' within the meaning of section 3(o) read with section 2(1)(a) of the Rent Act, as amended from 5.7.76 and, hence, the respondent 's remedy for eviction of the appellant was not by way of suit in a civil court.
What is the correct interpretation of this clause? This is the question before us.
We have set out above the definition of 'public building ' in section 3(o) after the 1976 amendment.
The language of this definition is very wide.
It takes in three categories of buildings: (i) buildings belonging to (that is, owned by) the Central or State Government; (ii) 955 buildings (not belonging to the Government) but taken on lease or requisitioned by it or on its behalf and (iii) buildings belonging to or taken on lease by or on behalf of any local authority or any public sector corporation.
In the present case, the building in question is one taken on lease by the State Government and so it falls squarely within the definition of 'public building '.
It is, therefore, exempt from the application of the Act by reason of section 2(1) as it stood at the relevant time.
It would follow, therefore, that the respondent 's remedy to recover possession lay under the general law and had to be enforced by a suit for recovery of possession which is exactly what he has done.
Prima facie, therefore, the trial Judge and the High Court were right in decreeing his suit.
It is, however, contended on behalf of the appellant that section 3(o) should not be given such a wide meaning.
The argument runs thus: The intention of the Legislature was to exclude from the purview of the Rent Act only buildings in respect of which the Government was either the owner or the landlord.
This is clear from the previous history as well as the subsequent legislations.
U.P. Act No. 3 of 1947 (which preceded the 1972 Act) was amended by Ordinance No. 5 of 1949 with effect from 26.9.49 to exclude from its purview "any premises belonging to the Central or State Government and any tenancy or other like relationship created by a grant from the Government in respect of premises taken on lease or requisitioned by the Government".
The language section 2(1)(a) of the Rent Act, as it stood before its amendment in 1976, left no doubt in any one 's mind that the legislature intended only to exclude buildings belonging to the Government or any local authority and those taken on lease or requisitioned by Government and rented out by it to others.
The only object of the 1976 amendment was to extend the above exclusion also in buildings owned or let out by local authorities and public sector corporations.
This was sought to be done by providing that the Act would not apply to 'public buildings ' and inserting a definition of that expression in section 3(o).
That definition was, no doubt, phrased somewhat broadly.
But, having regard to the previous history as well as the language of the subsequent legislation already referred to above, there can be no doubt that the legislature never intended to exclude the operation of the Rent Act vis a vis premises of which the Government (and, hereinafter, this expression will take in also a reference to local authorities and public corporations) was neither the owner nor the landlord but merely a tenant.
Support of the above restricted construction is also sought from 956 the phraseology of section 21(8) of the Rent Act.
As has been mentioned earlier.
section 21 empowers the prescribed authority, on an application from a landlord, to evict a tenant on two grounds: (a) need of the premises by him for his self occupation; and (b) need to demolish the building and reconstruct it.
Sub section (8) enacts a restriction in respect of the first of these grounds.
It reads: "(8) Nothing in clause (a) of sub section (a) shall apply to a building let out to the State Government or to a local authority or to a public sector corporation or to a recognised educational institution unless the Prescribed Authority is satisfied that the landlord is a person to whom clause (ii) or clause (iv) of the Explanation to sub section (1) is applicable.
" It is submitted that this sub section places it beyond doubt that the Act does apply also to buildings in which a State Government, local authority, public sector Corporation or recognised educational institution is a tenant and proceeds to restrict the scope of an application under section 21 of the Act in such cases.
It is pointed out that, if the definition in section 3(o) is given a wide meaning so as to exclude from the application of the Act even buildings in which these bodies are mere tenants, the result would be to render section 21(8) redundant and otiose.
Such a construction of the statute, it is submitted, should not be favoured.
The above line of argument found favour with a Full Bench of the Allabahad High Court dealing with a batch of petitions filed by a number of public sector corporations resisting suits for eviction instituted against them: Punjab National Bank vs Suganchand, This Full Bench decision was rendered on 29.11.84 but was apparently not available to the learned Judge who decided the present case on 23.1.85.
Learned counsel for the appellant urges that we should approve of the Full Bench decision and reverse the judgment under appeal.
We are unable to accept the appellant 's contention.
The interpretation placed by the Full Bench of the High Court on section 3(o) equates the position under the statute after the amendment of 1976 to the position both as it stood prior to the 1976 amendment and also as it 957 stood after the 1983 Ordinance.
Such an approach fails to give any effect at all to the change in language deliberately introduced by the 1976 amendment.
No doubt, prior to the amendment, only buildings of which the Government was owner or landlord were excluded from the Act.
But the Legislature clearly intended a departure from the earlier position.
If the intention was merely to extend the benefit to premises owned or let out by public corporations, it could have been achieved by simply adding a reference to such corporations in section 2(1)(a) and (b) as they stood earlier.
Reading section 2(1)(a) & (b) as they stood before amendment and the definition in section 3(o) side by side, the departure in language is so wide and clear that it is impossible to ignore the same and hold that the new definition was just a reenactment of the old exemption.
The exclusion was earlier restricted to buildings owned by the Government and buildings taken on lease or requisitioned by Government and granted by it by creating a tenancy in favour of some one.
The amendment significantly omitted the crucial words present in the earlier legislation which had the effect of restricting the exclusion to tenancies created by the Government, either as owner or as landlord.
Full effect must be given to the new definition in section 3(o) and to the conscious departure in language in reframing the exclusion.
The subsequent legislation also reinforces the same conclusion.
The 1976 amendment had come up for judicial interpretation and certain decisions referred to in the Full Bench decision as well as the judgment presently under appeal had given the above literal interpretation to section 3(o).
If they had run counter to the rule legislative intent, one would have expected the repeated Ordinances since 1983 and the ultimate Amendment Act of 1985 to have placed the position beyond doubt by a retrospective amendment.
Though the Ordinance of 1977 made its amendment retrospective from 5.7.76, these later amendments are all specifically given effect to from 18.5.1983.
The effect of the decisions rendered remained untouched till then.
The fact that the the 1976 amendment marked a departure from the more restricted exclusion available earlier and the fact that the said restriction exclusion was again restored with effect only from 18.5.1983 militate against the correctness of adhering to this narrow interpretation even during the interregnum from 5.5.1976 to 18.5.1983.
It may now be considered whether the above interpretation renders section 21(8) redundant.
As pointed out by the Full Bench of the High Court, not much thought has gone into the framing of this subsection which has failed to notice that clauses (ii) and (iv) of the 958 Explanation to sub section (1) which are referred to in it, had been omitted by an earlier clause of the same section of the same Act.
The Ordinance of 1977 sought to remedy this position by deleting the words "unless the Prescribed Authority is satisfied . is applicable" used in the sub section but this Ordinance was allowed to lapse and the subsequent Ordinances and Amendment Act paid no heed to section 21(8).
Nevertheless, despite this clumsy drafting, one would certainly hesitate to give an interpretation to the definition clause in section 3(0) which may have the effect of rendering this sub section otiose.
But luckily that is not the position.
As pointed out by counsel for the respondent, sub sections (1), (1A) and (8) of section 21 have to be read together.
Though section 2(1)(a) excludes public buildings which we have interpreted to include buildings in which the Government is only a tenant section
21(1A) incorporates an exception to this exclusion.
"Nothwithstanding anything contained in section 2", it permits an application for eviction being moved under section 21(1)(a) of the Act by a landlord against any tenant but in the limited circumstance set out in that sub section viz. that the landlord has been in occupation of a public building but had to vacate it as he had ceased to be in the employment of the Government, local authority or Corporation.
In other words, the landlord of a building in which the Government is a tenant could have moved an application under section 21(1)(a) read with section 21(1A).
This is what is prohibited by section 21(8) absolutely in view of clauses (ii) and (iv) of Explanation 1 to sub section (1) being non existent.
section 21(8) makes it clear that while a landlord who is compelled to vacate a public building occupied by him due to cessation of his employment can proceed under the Act to evict any tenant occupying his property so that he may use his own property for his residential purposes, he will not be able to do so where his tenant is the Government, a local authority or a public Corporation.
Thus read,s.
21(8) does not become otiose or redundant by accepting the wider interpretation of section 3(o).
This objection of the appellant is not, therefore, tenable.
The Full Bench of the High Court has referred to one general aspect which appears to have considerably influence it in preferring a narrower interpretation of section 3(o).
It referred to the increasing difficulties faced even by Government and other public bodies in securing proper accommodation for their functioning and the nearimpossibility, even for them, of securing alternative accommodation at comparative and non exorbitant rates once they are compelled to vacate their existing tenancies.
The Court posed to itself the question whether the Legislature can be said to have intended to exclude them from the benefits of the Act and throw them open to eviction by suits 959 following a mere termination of tenancy by notice section 106 of the Transfer of Property Act, at the mere whim and caprice of their landlords.
This, the Court thought, was unlikely particularly when, prior to the Amendment Act of 1976, as well as subsequent to 1983, they could have been evicted only on one or other of the grounds available under section 20 or section 21 of the Act and more so because the Amendment manifests an intention to extend to public corporations benefits previously available only to a Government and to a local authority.
The object of the exclusion in section 2(1)(a), it is said, was to remove, in respect of buildings where the government or local authority was the landlord either as a owner or principal lessee or requisitioning authority the shackles imposed on other landlords but not to deprive these bodies, when they are mere tenants, of the protection available to other tenants under Act.
Having regard to these considerations, the Full Bench of the High Court has invoked a line of decisions of this Court and others which advocate that, in certain situations, importance should be attached to the "thrust of the statute" rather than to the literal meaning of the words used to justify their refusal to give the words of section 3(o) full effect.
It is true that there are situations in which Courts are compelled to subordinate the plain meaning of statutory language.
Not unoften, Courts do read down the plain language of a provision or give it a restricted meaning, where, to do otherwise may be clearly opposed the object and scheme of the Act or may lead to an absurd, illogical or unconstitutional result.
But we think that this mode of construction is not appropriate in the context of the present legislation for a number of reasons.
In the first place, such an interpretation does not fit into the legislative history we have traced earlier.
It does not explain why the legislature should have, while enacting the 1976 amendment, omitted certain operative words and used certain wider words instead.
As we have pointed out earlier, if the idea had only been to add to the exclusion buildings owned or let out by public sector corporations, that result could have been achieved by a minor amendment to section 2(1)(a) as it stood earlier.
A conscious and glaring departure from the previous language must be given its due significance.
Secondly, the Rent Act is a piece of legislation which imposes certain restrictions on a landlord and confers certain protections on a tenant.
It could well have been intention of the legislature that the Government, local bodies and public sector corporations should be free not only from the restrictions they may incur as landlords but also that they need not have the protection given to other ordinary tenants.
To say that the legislature considered the Government qua landlord to be in a class of its own and 960 hence entitled to immunity from the restrictions of the Act but that, qua tenant, it should be on the same footing as other tenants will be an interpretation which smacks of discrimination.
The legislature could have certainly intended to say that the Government, whether landlord or tenant, should be outside the Act.
Thirdly, while it is true that the result of the interpretation we favour would be to facilitate easy eviction of Government, local authorities and public corporations, there is nothing per se wrong about it because, with their vast resources or capacity augment their resources, these bodies would not be in as helpless a position as ordinary tenants for whose benefit the legislation is primarily intended.
On the other hand, the ultimate result of the interpretation accepted by the Full Bench will be to practically deny a landlord, who has given his premises on rent to these bodies, any remedy to get back possession of his premises.
The contingencies for which eviction is provided for in section 20 are hardly likely to arise in the case of such tenants; section 21(1)(a) is taken out by s.21(8); and, virtually, the only ground on which eviction can be sought by a landlord of such a building against such a tenant, on the interpretation urged by the petitioner, would be the one contained in section 21(1)(b).
It is debatable whether the legislature could have contemplated such a situation either.
Fourthly, in this case, the legislature has applied its mind to the situation more than once subsequently.
If its intention in carrying out the amendment had been misunderstood by the High Court or found ambiguous, the legislature was expected to rectify the situation by a piece of retrospective or declaratory legislation.
The 1977 Ordinance was, but the later Ordinances and the 1985 Act, are not, of this nature.
They neither are, nor purport to be, declaratory or retrospective from 5.7.76.
At least, if the 1985 Act had been made retrospective from 5.7.76, one could have thought it was a clarificatory piece of legislation.
But the Legislature has advisedly given these enactments effect only from 18.5.1983.
This means that the amendment of 1976 was intended to be effective between 5.7.75 and 18.5.83 and it also means that the amendment of 1983 onwards is not intended to be read back for that period.
Lastly, in any event, the interpretation given by us will create no lasting difficulties for the Government and other organisations which are tenants only, since after 18.5.1983 they will be in a position to claim all the immunities available to other tenants under the Act.
For the reasons discussed above, we overrule the decision of the Full Bench of the Allahabad High Court in Punjab National Bank vs Sugan Chand, on this point.
In the result, this appeal is dismissed.
We, however, make no order regarding costs.
N.V.K. Appeal dismissed.
| % large number of teachers working in the educational institutions governed by the Uttar Pradesh Intermediate Education Act, 1921, were appointed or promoted on an ad hoc basis.
The question of regularisation of their services engaged the attention of the State Government and it was decided to amend the Act by an Ordinance.
Section 16 GG was accordingly introduced on April, 21, 1977.
The Ordinance was replaced by the Uttar Pradesh Education Laws Amendment Act, 1977.
The appellant and respondent No. 1 were both appionted as Assistant Teachers in an Intermediate College with effect from July 8, 1967.
Respondent No. 1 was promoted by the management as Lecturer in Hindi on an ad hoc basis with effect from March 1, 1976.
The District Inspector of Schools approved of it on October 5, 1976.
Subsequently on November 20, 1976 he again made an order promoting both the appellant and respondent No. 1 as Lecturers in Civics and Hindi respectively on an ad hoc basis.
Their services came to be regularised by virtue of the new provision.
section 16 GG, with effect from April 21, 1977.
After their services were so regularised, dispute arose regarding the seniority.
While the first respondent claimed seniority over the appellant on the basis of his appointment/promotion made on March 1, 1976, the appellant claimed that he being older than the first respondent was entitled to be treated as senior by virtue of the second part of clause (b) of regulation 3(1) of the Regulations framed under the Act.
The District Inspector of Schools came to the conclusion that the fortuitous appointment/promotion of the first respondent on March 1, 1976 could not have any effect on the question of seniority between 1050 them, and held that since the appellant and the first respondent had been accepted to be promoted in substantive capacity on the same day, and since the appellant was older than respondent No. 1, the appellant should be considered as senior by virtue of the second sentence in clause (b) of regulation 3(1) of the Regulations.
Aggrieved by the aforesaid decision the first respondent filed a writ petition before the High Court, which was allowed, the order of the Disctrict Inspector of Schools was set aside and it was declared that the first respondent was senior to the appellant on the ground that the first respondent had been promoted to the post of lecturer on March 1, 1976, pursuant to certain orders issued under the Act which continued to be in operation until section 16GG was brought into force.
Allowing the appeal by Special Leave.
^ HELD: 1.
The appellant is senior to the first respondent.
[1056E] 2.1 What is crucial for the purposes of the case is the date from which the appellant and the first respondent should be deemed to be holding their posts in substantive capacity.
Section 16GG of the Act clearly lays down that any teacher whose services are regularised should be deemed to have been appointed in a substantive capacity with effect from the date of its commencement.
It does any say that the services of such teachers should be deemed to have been regularised with effect from the date from which they were continuously officiating in the post in question.
The date of commencement of the section being April, 21, 1977 both the appellant and the first respondent, who were by then holding the posts of Lecturers on an ad hoc basis are to be deemed to have been appointed in a substantive capacity on the same date, that is, April 21, 1977.
[1055G H; 1056A] 2.2 On the question of seniority, cl.
(b) of Regulation (3)(1) of the Regulations provides that the seniority of teachers in a grade shall be determined on the basis of their substantive appointment in that grade and if two or more teachers were so appointed on the same date seniorty should be determined on the basis of age.
[1056C] In the instant case, the appellant is older in age than the first respondent.
He should, therefore, be treated as senior to the first respondent by reason of the second sentence in cl.
(b) of Regulations 3(1).[1056E F] 1051 3.
The High Court omitted to consider the effect on the words 'with effect from the date of the commencement of this section ' in subs.
(1) of section 16GG of the Act and also sub section
(2) of that section which provides that every teacher deemed to have been appointed in a substantive capacity under sub s.(1) should be deemed to be on probation from the date of the commencement of the section.
[1056B C]
|
il Appeal No. 3 107 of 1991.
From the Judgment and Order dated 14.8.
1990 of the Gauhati High Court in Civil Rule No. 407 of 1985.
H.N. Salve.
K.S. Parihar and H.S. Parihar for the Appellant.
P.K. Goswami, Kailash Vasdev and M.J. Paul for the Respondents.
The Judgment of the Court was delivered by KANIA, J.
Special Ieave granted.
Counsel heard.
462 This is an appeal filed by the Reserve Bank of India, by special leave.
The contesting respondent, being respondent No. 1, is an association of its officers at its Gauhati unit.
The respondent association (referred to hereinafter as "the respondent") represents the interests of 45 officers belonging to Grades A to C employed in the appellant bank at its unit at Gauhati.
It appears from the affidavit filed on behalf of the appellant that there was difficulty in per suading officers of the appellant posted outside the North Eastern region to accept transfers to the unit of the appel lant in the North Eastern part of the country which unit was located at Gauhati in Assam.
It also emerges from the record that the Gauhati station was regarded as a hardship station by the officers who were transferred to the Gauhati unit from other regions of the country.
The Government of India found a similar difficulty in persuading its officers to accept postings in the NorthEastern region and they were given substantial incentives to accept transfers to the North Eastern region.
We are not here concerned directly with the actual benefits granted by the Government of India but what is material is that such benefits had to be given by the Government of India.
By a letter dated December 9, 1983, certain incentives and allowances were provided by the appellant to its officers posted at Gauhati who were not from the North Eastern regions.
Those allowances were gener ally known as special duty allowances.
We are not much concerned with the details as to how the special duty allow ances were calculated but the main special duty allowance basically comprised 25% of basic pay, subject to a maximum of Rs.400 per month.
These allowances were also known as special compensatory allowances or remote locality allow ances.
By a Memorandum issued by the appellant on April 11, 1985, an adhoc increase in salary was effected for non local officers and an option was given to them either to choose the adhoc increase or the special duty allowances for the period during which they were posted at Gauhati.
The re spondent demanded the extension of the said benefit to the local officers by its letter dated May 10, 1985.
We may mention here that the local officers who were posted at the Gauhati did get an extra allowance in addition to their salaries but it was considerably smaller than the main compensatory allowance paid to the officers from outside the NorthEastern region who were transferred to Gauhati.
Certain other benefits were also allowed to non local officers transferred to Gauhati but there is no need to refer to them in detail.
The appellant declined to allow the same allow ances to local officers posted at Gauhati as were given to the officers from other regions transferred to Gauhati as stated earlier.
It is this decision which gave rise to the writ petition from the decision in which this appeal arises.
463 It was the contention of the respondent before the Gauhati High Court that all the officers of the appellant bank posted at Gauhati, whether they were from the North Eastern region or outside had to live in the same conditions and suffer from the same hardships, and hence, if any allow ance was given to the officers transferred from outside to the Gauhati office, the very same allowance should also be given to the local officers posted at Gauhati.
In the coun ter filed in the High Court by the appellant bank, the Deputy Chief Officer of the appellant bank averted that the hardships faced by the non local officers are greater than those faced by the local officers.
The scheme of adhoc incentives was introduced to tide 'over the problem of adequately staffing the Gauhati office.
Non local officers experienced difficulties in getting accommodation, getting familiar with the language and so on, and some incentives had to be given to them to mitigate the hardships experi enced by them on transfer to Gauhati.
It was clarified that the said incentives were temporary and because of the pecu lier circumstances prevailing at the moment in the North Eastern region which was regarded as a difficult region.
It was accepted that considerable difficulties would have to be suffered by the officers posted there who hailed from places outside the NorthEastern region.
The contention of the appellant bank failed to find favour with the High Court which took the view that all officers at Gauhati suffered from substantially the same hardship and it pointed out that, for example, even officers from outside from Tripura who were posted at Gauhati would suffer almost the same degree of hardship as officers transferred to Gauhati from regions other than the North Eastern regions although Tripu ra was in the North Eastern region.
The High Court took the view that the local officers of the appellant bank, Gauhati were discriminated against and directed that they must be given the same benefits as the non local officers trans ferred to Gauhati.
It is the correctness of the view taken by the High Court which is sought to be impugned before us in this appeal.
We are of the opinion that the High Court was, with respect, in error in taking the view that officers from the North Eastern region who were posted at Gauhati.
either on transfer or otherwise, sufferred the same hardships as officers from other regions transferred to Gauhati.
The hardship and inconvenience sufferred by an officer of the appellant bank who was transferred to Gauhati from regions other than the North Eastern region, would certainly be more acute than those suffered by local officers posted at Gau hati.
His mother tongue might completely be different in speech and, even as far as the script is concerned, from the 464 language used by the local people at Gauhati.
He and his family members would, therefore.
find it very difficult to communicate freely with the local people.
His children might find it difficult to get admission to a school and pursue their education at Gauhati.
They would be unfamiliar with the surroundings and the customs of the people.
The hard ships faced by an officer say from the Western or Southern regions of India or North India posted at Gauhati would be qualitatively as well as quantitatively greater than the hardships faced by the local officers posted at Gauhati.
It may be that some of the officers coming from the North Eastern region may also face considerable hardships when posted at Gauhati but the fact that there might be a few such officers would not render the payment of special allow ance, exclusively to officers transferred from distant regions discriminatory and bad in law.
The High Court was, therefore, not justified in coming to the conclusion that all the officers of the appellant bank posted at Gauhati sufferred from the same degree of hardship.
A person trans ferred from outside the North Eastern region to Gauhati would normally have to face more severe difficulties than an officer from the North Eastern region posted in Gauhati or, at the least, the appellant bank could reasonably take that view.
Moreover, as pointed out by the appellant bank in the counter that they were finding it difficult to persuade their officers from outside to accept transfers to Gauhati and it is common knowledge that an office of a large bank cannot be run efficiently by officers a large number of whom have been posted there by transfers against their will and under the threat of disciplinary action.
The work done by them could hardly be expected to be satisfactory.
After all, the appellant, the Reserve Bank of India, is a banking institution and if in the interest of efficiency and proper working it bona fide took the decision, in the circumstances set out earlier, to grant some extra benefits to the non local officers transferred to Gauhati with a view to main tain efficient working of its unit at Gauhati, in our opin ion, they cannot be treated as being guilty of any unlawful discrimination.
In the result, we allow the appeal and set aside the order of the High Court.
The writ petition filed by respond ent No. 1 is dismissed.
There will be no order as to costs throughout.
V.P.R. Appeal allowed.
| On 31st May, 1986 the Government of India approved, in principle, the 'Two Stream ' concept of career management of Army Officers which envisaged that officers on promotion to Major General and Lt. General will be bifurcated into the 'Command and Staff ' and the 'Staff Only ' Stream.
By an order dated 9th September, 1986 issued by Military Secretary, Army Headquarters, the modalities of the concept, were worked out and it was inter alia provided that for the purpose of seniority, officers of the 'Staff Only ' Stream will be junior to officers of the 'Command and Staff" Stream.
While adopting the methodology for implementation of the 'Two Stream Concept ', in its note dated 22nd September, 1986 the Military Secretary stated that two options are available for fixing the sequence of promotion under the 'Stream Concept '.
Under option 'A ' the existing sequence of promo tion is maintained and in that officers are to be promoted as per their inter se seniority, irrespective of the stream.
In the case of Option 'B ', whereas the existing sequence of promotion is maintained, but promotion is to be effected in accordance with the stream in which an officer is being promoted.
After giving advantages and disadvantages of the two options, the said note recommended that option 'B ' should be adopted.
The Military Secretary 's note was ap proved by Vice Chief of Army Staff and the Chief of Army Staff.
By a communication dated 1st June, 1987 the Military Secretary clarified its earlier note dated 22nd September, 1986 explaining that officers of the General Cadre of a particular batch seniority approved in the 'Command and staff ' Stream will be en block senior to those 351 officers of the same batch approved on the 'Staff Only ' Stream.
However, an officer of an earlier batch approved on the 'Staff Only ' Stream will be senior to an officer of subsequent batch approved on the 'Command and Staff Stream.
Under the promotion policy of Army every officer is given three chances for consideration for promotion.
The first opportunity is called "fresh cases".
The second oppor tunity is called "first review cases" and the third opportu nity is called "final review cases".
An officer not approved for promotion loses one year on seniority and slides into the batch of the next year.
The respondent, commissioned in the army in 1954, while acting as Brigadier, was selected as Major General in 1956 batch.
Accordingly, his seniority was fixed alongwith 1956 batch.
While working as Major General he was considered for promotion to the rank of Lt. General in 1989 but was disap proved.
He thus lost seniority of 1956 batch.
He was then considered as a first review case in 1990 alongwith 1957 batch comprising of final review case of 1955 batch, first review case of 1956 batch and fresh case of 1957 batch and was approved for selection for 'Staff Only ' Stream.
Since he was approved only for 'Staff Only ' Stream, in the select panel dated 26th October, 1990 he was placed below all other Major Generals who were approved for selection in the Stream of 'Command and Staff.
Aggrieved by his placement below the officers who were approved for 'Command and Staff ' Stream, he filed a writ petition in the High Court which directed the Union of India to treat the respondent senior to all the other Major Gener als who were promoted to the acting rank of Lt. General in the 'Command and Staff ' stream and to expeditiously promote him ahead of the 1957 batch.
Against the decision of the Division Bench of the High Court the Union of India filed an appeal in this Court.
Setting aside the order of the High Court, this Court, HELD: 1.
The Division Bench of the High Court totally misunderstood the note of the Military Secretary dated 22nd September, 1986 as well as the note of the Vice Chief of Army Staff.
In the note of the Military Secretary dated 22nd September, 1986, Option 'A ' which was prevalent practice was substituted by option 'B ' which was recommended for future and which was accepted both by Vice Chief of Army Staff as well as Chief of Army Staff.
[369H 370E] 352 2.
It is clear from option 'B ' which was adopted for working out the 'Two Stream Concept ' that the seniority will first be given to the 'Command and Staff ' stream selected from any of the earlier batches and after the 'Command and Staff ' stream has been accorded the seniority, the three streams of 'Staff Only ' will be given seniority and that the final review, the first review or fresh stream of 'Staff Only ' rank below the similar three streams of 'Command and Staff '.
[362B C] 3.
It is also clear from the Scheme that the Officer who Were approved for 'Command and Staff ' Stream can be appoint ed both for 'Command ' as well as 'Staff ' vacancies whereas the officers who were approved only for stream of 'Staff Only ' can only be appointed to the vacancies relating to 'Staff ' and cannot be appointed relating to vacancies for 'Command '.
The expression 'same batch ' referred to in para graph 9 of the Military Secretary 's letter dated 1st June, 1987 is for the officers who were considered for selection at one time and not the individual batch of the Major Gener al.
[370B] 4.
Option 'B ' has not been reviewed till date.
There can be no doubt that if option 'A ' was available for preparation of select list the respondent would have been senior to other persons who were recommended for 'Command and Staff ' Stream.
But option 'A ' was given up and option 'B ' was recommended for approval.
Since option 'B ' has been adopted and accepted the seniority of the respondent placed in the panel dated 26th October, 1990 is unexceptionable.
[370F G] 5.
The respondent cannot take advantage for being pro moted earlier than the officers selected for the 'Command and Staff ' Stream.
[374B1
|
Civil Appeal Nos.
563 & 564 of 1975.
From the Judgment and Orders dated 15.11.71 and 9.5.72 of the Allahabad High Court in I.T.R. No. 67 of 1969 and 724 of 1971.
B.B. Ahuja, Ms. A Subhashini and K.C. Dua for the Appellants.
S.C. Manchanda, Mrs. A.K. Verma and Joel Pares for the Respondents.
The Judgment of the Court was delivered by KANIA, J.
This is an appeal against the judgment of a Division Bench of the Allahabad High Court in Income tax Reference No. 67 of 1969.
The appeal has been filed at the instance of the Commissioner of Income tax, U.P.
The relevant facts are as follows: The respondent (assessee) is a Co operative Society registered under the Co oprative Societies Act, 1912.
It carries on the business of manufacture and sale of sugar and runs at a Mill situated at Bazpur.
The relevant assessment year is the assessment year 1961 62, the corresponding to the accounting year 1st July, 1959 to 30th June, 1960, which was the relevant co operative year.
The assessee had established a fund called "Loss Equalization and Capital Redemption Reserve Fund".
On the opening day of the year of account, namely, 1st July, 1959, a sum of Rs.1,30,196 stood to the credit of 1037 this fund.
During the relevant accounting year, the respondent society added a sum of Rs.5,15.863 to this fund by deduction from the price payable by the respondent to its members for the supply of sugarcane received from its members.
These deductions were made under the provisions of bye law 50 of the Bye laws of the respondent society, to which we shall presently come.
Bye law 50 under which the said amount was deducted from the price payable by the respondent to its members for the supply of sugarcane at the relevant time ran as follows: "There shall be established a Loss Equalisation and Capital Redemption Reserve Fund in the Society.
Every producer shareholder shall deposit every year a sum not less than 32 np and not more than 48 np per quintal of the sugarcane supplied by him to the society as may be determined by the Board.
After adjusting the losses, if any, in the working year the deposits shall be allowed to accumulate and utilised for repayment of the initial loan from the Industrial Finance Corporation of India and thereafter for redeeming Government share.
The balance of the said deposit after meeting losses shall be used in being converted into share capital in accordance with bye law 44(xix) and each producer share holder shall be issued shares of the society of the corresponding value in lieu thereof.
" During the accounting year, the respondent debited a sum of Rs.2,34,354 to the said fund by adjusting this amount against the loss brought forward from the previous year, with the result that at the close of the said year on 30th June, 1960, the account showed a credit balance of Rs.4,11,705.
A meeting of the Sub Committee of the respondent society which was held on August 26, 1964 took the view that bye law 50 was not clear as to whether the fund in question was perpetual or terminable and also that it was not clear as to how the liability for the loss of the respondent society can be fastened on the said fund.
The Sub Committee recommended an amendment of the bye law 50 and pursuant to this recommendation, at a general meeting of the respondent held on 30th June, 1965, bye law 50 was amended to run as follows: "There shall be established a Loss Equalisation and Capital 1038 Redemption Reserve Fund in the Society.
Every producer share holder shall deposit every year a sum not less than 32 paise and not more than 48 paise per quintal of the sugarcane supplied by him to the society as may be terminated by the Board, until the shares to be subscribed by a member are fully paid up.
The amounts standing to the credit of this fund presently or to be credited in future shall be used for making the partly paid shares fully paid up.
The balance of the said account shall be refunded to the members concerned soon after the present loan from the Industrial Finance Corporation of India is repaid, whereafter the fund shall cease to exist.
This amended bye law shall be deemed to have come into force from 1st July, 1958.
" It may be mentioned here that the respondent society came into existence in 1958 59 and the original bye laws came into force from 1st July, 1958.
The Income tax Officer in assessing the respondent for the relevant assessment year held that the said sum of Rs.5,15,863 represented a revenue receipt and was liable to be included in the taxable income of the assessee.
On appeal the Appellate Assistant Commissioner affirmed the view of the Income tax Officer holding that the case has to be decided on the basis of the bye law as it stood during the relevant accounting year.
The respondent assessee went in appeal to the Income tax Appellate Tribunal which took the view that the amended Clause 50 must be held to be operative even during the relevant previous year in view of the retrospective amendment thereof and that in view of the said amended bye law 50 the deposits made by the members by way of deductions from the price as contemplated in bye law 50 were in the nature of permanent liabilities and hence they were capital receipts and not liable to be included in the taxable income of the respondent assessee.
The tribunal allowed the appeal of the assessee and directed that the said amount of Rs.5,15,863 should be deducted from the taxable income of the assessee as determined by the Income tax Officer.
At the instance of the Commissioner a reference was made to the Allahabad High Court and the question framed for determination of the High Court was as follows: "Whether on the facts and in the circumstances of the case, the Income tax Appellate Tribunal was right in holding that the amount of Rs.5,15,863 was not a revenue receipt liable to tax?" 1039 The Division Bench of the High Court which disposed of the said reference agreed with the view of the Tribunal that the bye law 50 of the bye laws of the society was validly amended with retrospective effect and that retrospective effect must be given to that bye law.
The Division Bench took the view that in view of the amended bye law the amount of Rs.5,15,863 was not an amount which the society could deal with as its income or according to its will and hence the source of the receipt was diverted.
The High Court answered the question referred to it in affirmative and in favour of the assessee.
The present appeal is directed against the said decision of the High Court.
Before coming to the contentions urged by the respective counsel, it will be useful to take note of the relevant statutory provisions and the relevant rules.
The respondent society was registered under the Co operative Societies Act of 1912.
Clause (a) of Section 2 of the said Act of 1912 defines "bye laws" as registered bye laws for the time being in force and includes a registered amendment of the bye laws.
Section 6 deals with the conditions for the registration of a co operative society.
Section 43 confers upon the State Government power to make rules for registered societies to carry out the purposes of the said Act.
The relevant portion of clause (c) of sub Section (2) of Section 43 runs as follows: "In particular and without prejudice to the generality of the foregoing power, such rules may prescribe the matters in respect of which a society may or shall make bye laws, and the procedure to be followed in making, altering and abrogating bye laws, and the conditions to be satisfied prior to such making, alteration or abrogation.
" Clause (e) of Section 43(2) runs as follows: "In particular and without prejudice to the generality of the foregoing power, such rules may regulate the manner in which funds may be raised by means of shares or debentures or otherwise;" Pursuant to the powers conferred under Section 43 of the Co operative Societies Registration Act, 1912, the Government of U.P. framed certain rules known as United Provinces Co operative Societies Rules, 1936 for registered societies and these rules were in force at the relevant time.
The relevant portion of Rule 8 under heading "III Bye laws" ran as follows: 1040 "A society shall, subject to the provisions of the Act and of the rules, make bye law in respect of the following matters, namely: (1) the name of the society; (2) its registered address; (3) its aims and objects; (4) the purposes for which its funds may be applied;" Rule 10 conferred power on a society to make bye laws in respect of any other matter incidental to the management of its business.
Rule 11 which deals with the amendment of rules runs as follows: "An amendment may be made in the bye laws, i.e. a bye law may be altered or rescinded or a new bye law added by a resolution passed by the votes of at least two thirds of the members present at a special meeting called for the purpose.
" It was submitted by Mr. Ahuja, learned counsel for the appellant (revenue) that the amendment of bye law 50, although it was purported to be made with retrospective effect could, in fact, have no retrospective effect in law.
It was submitted by him that a co operative society governed by the was not a body constituted by the said Act nor a statutory body.
The power to make bye laws was conferred upon the society by delegation under rules which themselves were framed by the Government in exercise of power delegated to the Government by the legislature under Section 43 of the aforesaid Act of 1912.
It was submitted by him that as there was no delegation of any power on the respondent society to make bye laws with retrospective effect, it had no power to do so and the amendment of bye law 50 made by the society, although purporting to be retrospective, could not be given any such effect.
In support of this submission, Mr. Ahuja relied upon the decision of this Court in Income tax Officer, Alleppey vs M.C. Poonnoose & Ors., [1970] 1 S.C.R. p. 678 in which the Court held as follows: "Where any rule or regulation is made by any person or authority to whom such powers have been delegated by the legislature it may or may not be possible to make the same 1041 so as to give retrospective operation.
It will depend on the language employed in the statutory provision which may in express terms or by necessary implication empower the authority concerned to make a rule or regulation with retrospective effect.
But where no such lenguage is to be found it has been held by the courts that the person or authority exercising subordinate legislative functions cannot make a rule, regulation or bye law which can operate with retrospective effect (see Subba Rao J., in Dr. Indramani Pyarelal Gupta vs W.R. Nathu & Others.
; majority not having expressed any different opinion on the point; Modi Food Products Ltd., vs Commissioner of Sales Tax U.P., A.I.R. 1956 All. 356; India Sugar Refineries Ltd. vs State of Mysore, A.I.R. 1960 Mys.
326 and General section Shivedev Singh & Another vs The State of Punjab & Others, The aforesaid observations have been cited with approval by this Court in Hukum Chand etc.
vs Union of India & Others, [1973] 1 S.C.R. p. 896 where the Central Govenment was held to have acted in excess of its powers in so far as it gave retrospective effect to the Explanation to Rule 49 framed under the , exercising the powers conferred by Section 40 of the Act.
We may also refer here to the decision of this Court in Co operative Central Bank Ltd. & Ors.
vs Additional Industrial Tribunal, Andhra Pradesh & Ors., [1970] 1 S.C.R.p.
205 where it has been stated by this Court as follows: "We are unable to accept the submission that the bye laws of a co operative society framed in pursuance of the provisions of the Act can be held to be law or to have the force of law.
It has no doubt been held that, if a statute gives power to a Government or other authority to make rules, the rules so framed have the force of statute and are to be deemed to be incorporated as a part of the statute,.
That principle, however, does not apply to bye laws of the nature that a co operative society is empowered by the Act to make.
The bye laws that are contemplated by the Act can be merely those which govern the internal management, business or administration of a society.
" We may mention that the Act under which the bye laws were framed was the Andhra Pradesh Co operative Societies Act, 1964.
1042 In the light of the decisions discussed earlier, it appears to us that the respondent society had no authority in law to amend bye law 50 with retrospective effect as it purported to do.
We have already pointed out the power of the society to amend its bye laws arises from the provisions of Rule 11 of the United Provinces Co operative Societies Rules, 1936, which rule has been made under the powers conferred by Section 43 of the United Provinces .
There is nothing expressly or impliedly in Rule 11 which confers any power on the society to amend its bye laws with retrospective effect and in the absence of any such power being conferred, either expressly or by implication, it cannot be said that the society had any power to amend its bye laws with retrospective effect.
Mr. Manchanda, learned counsel for the respondent society placed strong reliance on the decision of this Court in Dr. Indramani Pyarelal Gupta vs W.R. Nathu and Others, [1963] 1 S.C.R. p. 721 where it was held that the substituted bye law 52AA of the East India Cotton Association made by the Central Government in exercise of the power conferred upon it under Section 12 of the Forward Contracts (Regulation) Act, 1952 and which, very shortly stated, conferred power on the Forward Markets Commission, after notifying with the Chairman of the Board of the East India Cotton Association, to close hedge contracts in the eventualities mentioned in the said rule was not invalid in law or ultra vires the Constitution.
On a proper construction, the amended or substituted bye law applied not only to contracts to be entered into futute but also to subsisting contracts.
This Court pointed out that, in that case, the power to make bye laws so as to affect the rights in subsisting contracts followed as a necessary implication from the terms of Section 11 of the Forward Contracts (Regulation) Act, 1952.
In the case before us, however, there is nothing in Section 43 of the U.P. or Rule 11 of the United Provinces Co operative Societies Rules, 1936 to indicate that there is any power, express or by implied, in a co operative society registered under that Act to make bye laws with retrospective effect in respect of its business.
In view of the above discussion, in our view, the amendment of bye law 50 of the respondent society cannot have any retrospective effect and the amounts deducted from the amounts payable to members for the supply of sugarcane, will have to be dealt with as if they were deducted under the provisions of bye law 50 as it stood in the relevant accounting period.
If the provisions of the unamended bye law are to be applied, it 1043 is clear that these amounts which were deducted by the respondent from the price payable to its members on account of supply of sugarcane were deducted by the respondent from the price payable to its members on account of supply of sugarcane were deducted in the course of the trading operations of the respondent and these deductions were a part of its trading operations.
The receipts by way of these deductions must, therefore, be regarded as revenue receipts and are liable to be included in the taxable income of the respondent.
It is urged by Mr. Manchanda, that these receipts have been described in the bye law 50 as deposits, but we fail to see how they can really be regarded as deposits.
It was held by this Court in Chowringhee Sales Bureau P. Ltd. vs Commissioner of Income tax, West Bengal, [1973] 87 I.T.R. p. 541 that it is the true nature and quality of the receipt and not the head under which it is entered in the account books as would prove decisive.
If a receipt is a trading receipt, the fact that it is not so shown in the account books of the assessee would not prevent the assessing authority from treating it as a trading receipt.
The same principle can be derived from the decision of this Court in Punjab Distilling Industries Ltd. vs Commissioner of Income tax, Simla, [1959] 35 I.T.R. p. 519.
In that case, the assessee carried on business as a distiller of country liquor and sold the produce of its distiller to licensed wholesalers.
Under a scheme devised by the Government, the distiller (assessee) was entitled to charge the wholesaler a price for the bottles in which the liquor was supplied, at rates fixed by the Government, which he was bound to repay when the bottles were returned.
In addition to the price fixed under the Government scheme, the assessee took from the wholesalers certain further amounts, described as security deposits without the Government 's sanction and entirely as a condition imposed by the assessee itself for the sale of its liquor.
The moneys described as security deposits were also returned as and when the bottles were returned but in this case the entire sum taken in one transaction was refunded when 90 per cent of the bottles covered by it were returned.
The price of the bottles received by the assessee was entered by it in its general trading account while the additional sum was entered in the general ledger under the heading "empty bottles return security deposit account.
" The question was whether the assessee could be assessed to tax on the balance of the amounts of these additional sums left after the refunds made out of the same.
It was held that the additional amount described as security deposit by the assessee was really an extra price for the bottles and was a part of the consideration for the sale of liquor; it did not make any difference that the additional amount was entered in a separate ledger termed "empty bottles return deposit account".
It was held that these additional 1044 amounts, which remained after the refunds were made, were trading receipts of the assessee and liable to tax.
Applying these principles to the present case, in our opinion, it makes no difference that in the bye law, these amounts have been referred to as deposits and the account in which these receipts were entered has been called "Loss Equalisation and Capital Redemption Reserve Fund".
The essence of a deposit is that there must be a liability to return it to the party by whom or on whose behalf is made on the fulfillment of certain conditions.
Under the amended bye law, the amounts deducted from the price and credited to the said fund were first liable to be used in adjusting the losses of the respondent society in the working year; thereafter in the repayment of initial loan from the Industrial Finance Corporation of India and then for redeeming the Government share and only in the event of any balance being left, it was liable to be converted to share capital.
The primary purpose for which the deposits were liable to be used were not to issue shares to the members from whose amounts the deductions were made but for the discharging liabilities of the respondent society.
In these circumstances, the receipts constituted by these deductions were really trading receipts of the assessee society and are liable to be included in its taxable income.
In our view, the learned judges of the High Court were, with respect, in error in answering the question referred in the negative.
In our opinion, the question referred must be answered in affirmative and in favour of the revenue.
In the result, the appeal succeeds and is allowed with costs.
The respondent shall also pay to the appellant the costs incurred in Income tax Reference No. 67 of 1979.
CIVIL APPEAL No.564 OF 1975 This is an appeal against the judgment of a Division Bench of the Allahabad High Court in Income tax Reference No. 724 of 1971.
The question referred to us for determination is as follows: "Whether on the facts and in the circumstances of the case, the sum of Rs.6,11,846 credited during the year of account to the loss equalisation and capital redemption reserve fund by deposits received from producer members of the society under Clause 50 of its bye laws is of revenue nature assessable to tax"? 1045 In view of our decision, the appeal must be allowed and the question referred answered in the affirmative and in favour of the revenue.
The appeal is allowed.
No order as to costs.
S.L. Appeal allowed.
| The appellant and the respondents were tenants of separate portions of the premises which was later sold by the landlord to the respondents, who were four brothers.
The respondents filed a petition for eviction of the appellant on the ground of bonafide requirement.
They contended that they were in all 10 brothers, who, alongwith their families, were living together with their father, and the accommodation in their occupation was insufficient for their needs.
The Rent Controller upheld the claim of the respondents.
The Appellate Authority (District Judge), however, allowed the appellant 's appeal.
The High Court, in revision under section 15(5), reversed the appellate judgment and restored that of the Court of first instance.
Before this Court the appellant contended: (1) That the High Court in exercise of its revisional jurisdiction was precluded from re opening the findings of fact recorded by the appellate authority; and (2) that the findings of the High Court on reappraisal of evidence were wholly erroneous.
Dismissing the appeal, it was, ^ HELD: (1) It was, no doubt, true that the question whether the requirement of the landlord was bonafide or not was essentially one of 240 fact, notwithstanding the circumstance that a finding of fact in that behalf was a secondary and inferential fact drawn from other primary or perceptive ones.
All conclusions drawn from primary facts were not necessarily, questions of law.
They could be, and quite often were, pure questions of fact.
The question as to bonafide requirement was one such.
[242G H] (2) The landlord 's desire for possession, however honest it might otherwise be, had inevitably a subjective element in it, and that "desire" to become a "requirement" in law must have the objective element of a "need".
[243C] (3) Statute had been enacted to afford protection to tenants from eviction.
In considering the reasonable requirement of the landlord the court must take all relevant circumstances into consideration so that the protection afforded by law to the tenant was not rendered merely illusory or whittled down.
[243A, C D] (4) Subject to the well known limitations of all revisional jurisdictions, the scope of revisional power essentially turned on the language of the statute investing the revisional jurisdiction.
[243E] (5) Section 15(5) of the Act enabled the High Court to satisfy itself as to the "legality and propriety" of the order under revision, which was quite obviously, a much wider jurisdiction in the exercise of which, an appropriate case, the High Court could reappraise the evidence if the finding of the appellate court was found to be infirm in law.
[243G; 244F] (6) Courts could take a 'cautious cognizance ' of the subsequent events in order to mould the relief.
[245F G] Mattulal vs Radhe Lal, ; ; Phiroze Bamanji Desai vs Chandrakant M. Patel, ; ; Bell & Co. Ltd. vs Waman Hemraj, AIR 1938 Bom. 223; Hari Shankar vs Girdhari Lal Chowdhury, (AIR ; Dattonpant Gopalvarao Devakata vs Vithalrao Marutirao, ; and M/s Ranalakshmi Dyeing & Others vs Rangaswamy, referred to.
|
Appeal No. 219 of 1954.
On appeal from the Judgment and Order dated the 4th day of April 1952 of the Madras High Court in Civil Miscellaneous Petition No. 8302 of 1950.
V. K. T. Chari, Advocate General of Madras (R. Ganapathy Iyer and P. G. Gokhale, with him) for the appellant.
R. Kesava lyengar, (M. section K. Iyengar, with him) for the respondent.
October 21.
The Judgment of the Court was delivered by VENKATARAMA AYYAR J.
This appeal raises a question of considerable importance as to the rights of holders of darmila or post settlement inams of portions of a village under the Madras Estates (Abolition and Conversion into Ryotwari) Act, 1948 (Madras Act XXVI of 1948), hereinafter referred to as the Act.
The subject matter of this appeal is an one sixteenth share in the village of Karuppur situated within the ambit of the Zamindari of Ramanatha puram.
The holders of this ancient Zamindari were, during the 18th Century, the virtual rulers of that part of South India, and were known as Sethupathis or the Lords of Rameswaram and the adjacent isles and seas.
In 1757 Muthu Vijaya Ragunatha, the then Rajah of Ramanathapuram, made a grant of the whole of the village of Karuppur to a number of persons for various charitable purposes.
In 1802, the estate was permanently settled, and an istimrari sanad was issued in favour of the Rajah.
Before that date, the donees under the grant of 1757 representing an one sixteenth share had abandoned the village, and in consequence, the inam had eo extanti been resumed.
At the permanent settlement, this one sixteenth part was included in the assets of the 909 Zamindari, and taken into account in fixing the peishkush thereon.
Subsequent to the permanent settlement, on some date which does not appear on the record, Rani Mangaleswari, the then holder of the Zamindari, made a fresh grant of the one sixteenth part which had been resumed, to the inamdars who held the remaining 15/16th portion of the village under the grant of 1757.
On 31 12 1863 the Inam Commissioner confirmed the grant of 1757, and issued an inam certificate in respect of the 15/16th portion of the village.
The position, therefore, when the Act was passed was that while a 15/16th portion was held by the inamdars under a pre settlement grant confirmed by the British Government, the remaining one sixteenth portion was held under post settlement grant made by the proprietor of the estate.
The Act came into force on 19 4 1949.
Under section 1(4) of the Act, certain sections thereof were to come into force at once and the other sections on such date as the Government might by notification appoint in respect of any zamindari, under tenure, or inam estate.
In exercise of the powers conferred by this section, the appellant issued a notification on 22 8 1949 bringing the Act into force as regards the Ramanathapuram estate from 7 9 1949.
Among the villages mentioned as comprised in the Zamindari was "Karuppur (part)" described as an under tenure.
It is common ground that the part referred to in this notification is the one sixteenth part, which forms the subject matter of this appeal.
The respondent who represents the holders of this inam filed the application out of which the present appeal arises, under article 226 of the Constitution for a writ of certiorari quashing the notification dated 22 8 1949 as ultra vires.
The ground of attack was that under section 1 (3) of the Act, the State had power to notify only what would be estates as defined in section 3(2) of the Madras Estates Land Act 1908 (Madras Act I of 1908), and that the part of the village of Karuppur included in the notification was not an estate as defined in that section.
Section 3(2) of Act I of 1908, so far as is material, is as follows; 910 "Estate" means (a) any permanently settled estate or temporarily settled zamindari; (b) any portion of such permanently settled estate or temporarily settled zamindari which is separately registered in the office of the Collector; (c) any unsettled palaiyam or jagir; (d) any inam village of which the grant has been made, confirmed or recognised by the British Government, notwithstanding that subsequent to the grant, the village has been partitioned among the grantees or the successors in title of the grantee or grantees.
* * * * (e) any portion consisting of one or more villages of any of the estates specified above in clauses.
(a), (b) and (c) which is held on a permanent under tenure".
The contention of the respondent was that as the grant in question related only to a fraction of a village, it could not be notified as an under tenure, as under section 3 (2) (e) an under tenure would be an estate only if it related to a whole village or villages.
The appellant conceded that the inam in question was not an under tenure as defined in section 3 (2) (e), as it comprised only part of a village, but contended that even though it was not in itself an estate, it was, nevertheless, part of the Zamindari of Ramanathapuram, being a post settlement grant of portion of a village comprised therein, and that when that estate was notified, the entirety of it including the inam in question must vest in the Government under section (b) of the Act.
The respondent demurred to this contention.
In addition, he raised the further contention that even if post settlement minor inams were within the operation of the Act, they would be protected by section 20 of the Act, which runs as follows: "20(1) In cases not governed by sections IS and 19, where, before the notified date, a landholder has created any right in any land (whether by way of lease or otherwise) including rights in any forest, 911 mines or minerals, quarries, fisheries or ferries, the transaction shall be deemed to be valid; and all rights and obligations arising thereunder, on or after the notified date, shall be enforceable by or against the Government: Provided that the transaction was not void or illegal under any law in force at the time: Provided further that any such right created on or after the 1st day of July 1945 shall not be enforceable against the Government, unless it was created for a period not exceeding one year: Provided also that where such right was created for a period exceeding one year, unless it relates to the private land of the landholder within the meaning of section 3, clause (10), of the Estates Land Act, the Government may, if, in their opinion, it is in the public interest to do so, by notice given to the person concerned, terminate the right with effect from such date as may be specified in the notice, not being earlier than three months from the date thereof".
The argument of the respondent was that a post settlement minor inam would be a right in land created by a landholder falling within section 20, that the notification of the estate under section 1(3) would not ipso facto divest the inamdar of his title to the lands, and that he would be entitled to hold them subject to any action that might properly be taken by the State under section 20.
The learned Judges of the Madras High Court agreed with the appellant that post settlement minor inams fell within the operation of the Act; but they accepted the contention of the respondent that they were governed by section 20 of the Act.
As it was common ground that the State had not proceeded under that section, they held that the notification was ultra vires, and accordingly quashed the same in so far as it related to the inam forming part of Ka ruppur village.
The appellant applied to the High Court for leave to appeal to this Court against this decision, and though the value of the subject matter was far below the appealable limit, the learned Judges granted a certificate under article 133(1)(c) on the 912 ground that the question involved was one of great public importance.
That is how the appeal comes before us.
Two questions arise for decision in this appeal: (1) Are post settlement minor inams within the operation of Madras Act XXVI of 1948? (2) If they are, are they governed by section 20 of the Act? On the first question, the appellant does not contend that the inam in question is in itself an estate as defined in section 3(2) of the Madras Estates Land Act and liable as such to be notified under the Act.
His contention is that when the Zamindari of Ramanathapuram was notified and there is no dispute that it was validly notified, as it was a permanently settled estate falling within section 3(2) (a) of the Madras Estates Land Act minor post settlement inams of lands within the Zamindari would vest in the State as part of the Zamindari under section 3(b) of the Act.
Section 3(b) is, omitting what is not material, as follows: "With effect on and from the notified date and save as otherwise expressly provided in this Act. . . . the entire estate.
shall stand transferred to the Government and vest in them, free of all encumbrances".
The point for decision is whether post settlement minor inams are parts of the estate out of which they were granted.
If they are, then they will vest in the Government under section 3(b).
If they are not, they will remain unaffected by the notification of the parent estate.
The status of holders of these inams had been the subject of considerable divergence of judicial opinion in the Madras High Court.
To appreciate this, reference must be made to the following definition of 'landholder ' in section 3(5) of the Madras Estates Land Act: "Landholder" means a person owning an estate or part thereof and includes every person entitled to collect the rents of the whole or any portion of the estate by virtue of any transfer from the owner or his predecessor in title or of any order of a competent 913 Court or of any provision of law".
Leaving out the inclusive portion of the definition as not relevant to the present question, it will be seen that owners of parts of an estate would also be landholders.
The question then arose for decision whether darmila minor inamdars were landholders as defined in section 3 (5) of the Estates Land Act.
If they were.
, the tenants would acquire occupancy rights under section 6, and proceedings against them could be taken only in the revenue courts and not in the civil courts, and in general, the rights and obligations of the inamdar and the tenants would be governed by the provisions of the Madras Estates Land Act.
One view was that as the inamdars had to pay quit rent or jodi to the grantors, their status could not be that of owners and therefore they could not be said to own parts of an estate.
The contrary view was that the inamdars were in substance owners of the lands granted to them, and that the liability to make a fixed annual payment did not detract from their character as owners, and they would be landholders owning parts of an estate.
In view of this conflict of opinion, the question was referred to the decision of a Full Bench in Brahmayya vs Achiraju(1), which held by a majority that minor darmila inamdars were landholders as defined in section 3(5) of the Estates Land Act.
This decision was based both on the ground that the inamdars were in the position of owners of parts of an estate and that they were also persons entitled to collect rent, within the inclusive portion of the definition.
In Narayanaraju vs Suryanarayudu(2), the question whether the grantee of a portion of a village subsequent to the settlement was a landholder as defined in section 3(5) came up for decision before the Privy Council.
After reviewing the authorities and the conflicting views expressed therein, the Board agreed with the opinion expressed by the majority of the learned Judges in Brahmayya vs Achiraju (1), and held that the grantee of a post settlement minor inam would be a landholder on both the grounds mentioned in their (1) Mad. 716.
(2) [1939] 66 I.A. 278. 914 judgments.
They discarded "the doctrine that so long as the zamindar reserves any interest, however insignificant, the permanent grantee from him cannot be the owner", and observed that the words "part of the estate" occurring in the definition must be given their prima facie meaning.
The Board felt greater difficulty in accepting the view that the inamdar was a landholder entitled to collect rent within the inclusive portion of the definition.
But they expressed themselves satisfied on either ground that "the Full Bench decision of 1922 represents a careful and reasonable solution of a stubborn ambiguity in the Act, and that it ought not now to be overruled having regard to the time which has elapsed and to the character of the interests affected thereby".
Thus, it was settled law in Madras at the time when Act XXVI of 1948 was passed that minor darmila inamdars were owners of parts of an estate.
Construing section 3(b) in the light of the law as then accepted, when a notified estate vests in its entirety in the State under that provision, a minor darmila inam which forms part of it must also vest in it.
Sri R. Kesava lyengar, learned counsel for the respondent, argued that decisions on section 3(5) of 'the Madras Estates Land Act on the meaning of the word 'landholder ' as defined therein, could not be usefully referred to for construing the true scope of section 3(b) of Act XXVI of 1948, as the definition in the Madras Estates Land Act was only for pur poses of settling the rights of landlords and tenants, and would be irrelevant for determining the rights of the inamdar as against the State.
But the ground of ,the decision in Brahmayya vs Achiraju(1) and Narayanaraju vs Suryanarayudu(2) is that the grantee of the inam is in the position of an owner of the part of the estate granted to him, and that would be relevant when the controversy is as to his true status, whether the dispute is between the landlord and the tenant or between the inamdar and the State.
If the inamdar is owner in relation to his tenants, it would be illogical to hold that he is not that, in relation to (1) Mad. 716.
(2) [1939] 66 I.A. 278.
915 the State.
The question is, in our opinion, concluded by section 2(8) of Act XXVI of 1948 which defines a landholder as including a darmila inamdar, and that is a statutory recognition of the doctrine laid down in Brahmayya vs Achiraju(1) and Narayanaraju vs Suryanarayudu(2) that darmila inamdars are owners ,of parts of an estate.
The result then is that when the darmila inam does not relate to the entire village but only to a fraction of it, it must be held to retain its character as part of the estate in the hands of the inamdar, and when the estate is notified under section 1 (4) of the Act, the inam will vest in the State under section 3(b).
It is next argued for the,, respondent that the Act ,makes no provision for award of compensation to minor darmila inamdars and that as a statute is not to be construed as taking away the proper" of any person unless there is a provision for payment of compensation therefor,, these.
inams should be held to be outside the operation of the Act Reference was made in this connection to section 45 of the Act under which the compensation payable in respect of an impartible estate and Ramanathapuram is one is to be apportioned after payment of debts among the members of the family.
It is said that under this section the respondent would have no right to share in it.
This contention is clearly erroneous.
The material provisions relating to the award of compensation ,are sections 25, 27, 37 and 44.
Under section 25, the compensation is to be determined for the estate as a whole and not separately for each of the interests therein.
Section 27 lays down bow the basic income in the case of zamindaris is to be fixed.
Under section 27(i), it has to include one third of the gross annual ryotwari demand in respect of all lands in the estate and under section 27(iv) "one third of the average net annual miscellaneous revenue derived from all other sources in the estate specified in section 3 (b) ".
Thus, the income from the lands comprised in the minor inam which is a part of the estate is included in the total income of the zamindari.
Under section (1) Mad. 716.
(2) (1939] 66 I.A. 278.
116 916 37, the compensation payable in respect of an estate is calculated in terms of the basic income on the scale prescribed therein.
Section 44 enacts that the Tribunal is to "apportion this compensation among the principal landholder ' and any other persons whose rights or interests in the estate stand transferred to the Government under section 3(b)".
There cannot be any doubt on these provisions that the darmila minor inamdar is a person who is entitled to claim compensation for the transfer of his portion of the estate to the Government.
Then comes section 45 on which the respondent bases his contention.
That applies only to the distribution of the compensation determined under section 44 as payable to the principal landholder, when he is the holder of an impartible estate.
It leaves untouched the rights of minor darmila inamdars to claim compensation under section 44.
The contention of the respondent that the Act provides no compensation to them, and that they should therefore be held to fall outside the Act must accordingly be rejected.
(2)That brings us on to the second question whether a post settlement minor inam is a right in land created by a landholder within the intendment of section 20 of the Act.
At the very outset, it seems somewhat inconsistent to hold that a darmila minor inam is part of an estate, and also that it is governed by section 20.
If it is part of an estate, it must automatically vest in the Government under section 3(b).
But if it falls within section 20, the title to it will continue to stand in the inamdar with a right in the Government to take action under the third proviso, subject to the conditions laid down therein.
It was argued for the respondent that section 3 operates on its own terms only "save as otherwise expressly provided herein", and that section 20 was such a provision.
It is somewhat difficult to follow this argument, because if section 20 applied to darmila minor inams, then they could never fall within the operation of section 3(b).
And how is this result to be reconciled with the conclusion that they are parts of 917 the estate, and that the inamdar is a landholder for purposes of the Act? But it is argued for the respondent that the words "rights in land created by landlord" are of the widest import and would take in darmila minor inams.
The point for decision is whether this contention is correct.
We start with this that a darinila minor inamdar is a landholder as defined in section 2,(8) of the Act, and he is that, by reason of his being the owner of a part of the estate.
Can such a person be held to be one who has obtained a right in the land from the landholder within section 20? The Act makes a clear distinction between estates held by landholders and rights and interests held by other persons in or over estates.
Section 3(b) enacts that when there is a notification under section 1(4), the entire estate shall stand transferred to the Government and vest in it.
We have held that the part of the estate belonging to a darmila inamdar would vest in the Government.
Section 3(c) provides that on notification all rights in or over the estate shall cease and terminate.
Section 3(b) and section 3(c) deal with two distinct matters which may respectively be described in broad terms as ownership of the estate and rights in or over estate not amounting to ownership, and these two categories are mutually exclusive.
Now, turning to section 20, it protects rights in land by way of lease or otherwise created by the landholder before the notified date.
In this context, and having regard to the distinction between estates under section 3(b) and rights over estates under section 3(c), the rights mentioned in section 20 can only refer to the rights dealt with in section 3(c), and not to ownership which is within section 3(b).
When, therefore, the transaction for which protection is claimed under section 20 is one which vests ownership of the estate or a portion thereof in the transferee, it will fall outside the section.
In other words, section 20 has no application to transactions by which a person becomes a landholder by reason of ownership of even a part of the estate being transferred to him, and that being the character of a, darmila minor inam it is not pro 918 tected by section 20.
There are also indications in the language of section 20 pointing to the same conclusion.
Section 20(2) provides that the persons whose rights are terminated under the proviso to section 20(1) shall be entitled to compensation having regard to the value of the right which is terminated and the unexpired portion of the period for which the right is created.
These words are more appropriate to connote rights which are to be exercised for specified periods, such as lease or contract for the exploitation of mines or forests for a term than "ownership of the estate".
There is one other consideration, which lends support to this conclusion.
The object of the Act was to establish direct relationship between the State and the tillers of the soil, and to abolish all intermediate tenures.
In Madras, the rights and obligations of intermediate tenure holders were regulated by the Madras Estates Land Act, and under that Act the intermediaries consisted not merely of the holders of the estates as defined in section 3(2) of that Act but also holders of post settlement minor inams as settled by decisions of the highest authority.
If the purpose of the Act is to be fully achieved, it would be necessary to abolish not merely estates as defined in section 3(2) of the Madras Estates Land Act but also darmila minor inams.
But if the contention of the respondent is to be accepted, it is only the estates mentioned in section 3(2) that will, on notification, vest in the Government and not the minor inams.
These will continue to be held by the inamdars under section 20 until they are terminated in accordance with the proviso therein, and survive as islets in the landscape even after the parent estates have dis appeared from the scene.
The legislation must to this extent be held to have failed to achieve its purpose.
And this is not all.
If the contention of the respondent is correct, then the minor inamdars will not merely be unaffected by the Act but will actually be better off for it.
Under section 3(a) of the Act, the Madras Estates Land Act stands repealed on and from the notified date, and as it is by virtue of this 919 Act that the tenants became entitled to occupancy rights, the inamdars would, on notification, be free to eject tenants, and settle their own terms with them.
We cannot accede to a contention which results not merely in the frustration of the object of the Act but further produces consequences, the reverse of what were intended.
On the other hand, the contention of the appellant that minor inams fall outside section 20 and would vest straightaway in the State under section 3(b) will have the effect of extinguishing the rights of the inamdars, and enabling the State to issue ryotwari pattas to the tenants in occupation.
We prefer to accept this contention, as it fully effectuates the intention of the legislature.
In the result, we must hold that the one sixteenth portion of the village of Karuppur forming a darmila inam will vest in the Government under section 3(b) of the Act, and that the only right of the inamdars is to share in the compensation under the terms of the Act.
The petition of the respondent in so far as it relates to this inam must be dismissed.
This appeal is accordingly allowed, and in accordance with the terms of the certificate granting leave, the appellant will pay the costs of the respondent in this Court.
The parties will bear their own costs in the court below.
| The respondent was Head Assistant in the Panchayat Department of the Punjab Government.
While he was officiating as Superintendent in the Department, he was appointed Panchayati Raj Election Officer, which was an ex cadre post.
On the reorganisation of the State, the respondent was allocated to the appellant State and he continued to work as Panchayati Raj Election Officer in the appellant State.
In 1972, the State Government abolished the post of Panchayati Raj Election Officer and the services of the respondent were dispensed forthwith.
He challenged the order and it was quashed by the High Court.
In appeal to this Court, ^ HELD: Since the order of the appellant abolishing the post of Panchayati Raj Election Officer did not suffer from any infirmity, the High Court was in error in quashing it; but on the abolition of that post, under r. 3.14 of the Punjab Civil Service, Rules, the lien of the respondent on the post of Head Assistant stood revived.
[1040 F G] (1)(a) Whether a post should be retained or abolished is essentially a matter for the Government to decide, and as long as the decision is taken in good faith, it could not be set aside by the Court but, if it is found that the abolition was not in good faith, but was a cloak or device to terminate the services of an employee, then the abolition of the post may be set aside.
[1037 H 1038 C] M. Ramanatha Pillai vs The State of Kerala & Anr. ; , followed.
(b) In the present case, the decision to abolish the post was taken because of administrative reasons.
The Government re organised the Panchayat Department, and all those duties which had nothing to do with the job of Panchayati Raj Election Officer were given to other officers.
The only work left with the Panchayati Raj Election Officer was that of conducting elections of Panchayat Raj Bodies, and, as this work was of a periodical nature, the appellant abolished that post because of financial stringency.
[1038 G 1039 C] (c) Whether greater economy could have been brought about by adopting some other course is not for the Court to go into.
The fact that some of the functions which were being previously performed by the respondent are now being performed by others, whose posts have not been abolished, would not show that the decision to abolish was not taken in good faith.
In deciding which post to abolish, the appellant took into account the relative usefulness of each post, and as this matter was within the administrative discretion of the appellant and as the decision was taken in good faith, the Court cannot interfere with it.
[1039 C 1039 F] (d) The fact that the post which was abolished was held by a person who is confirmed in that post and the posts which were not abolished were held by persons who were not permanent would not also affect the legality of the decision to abolish the former, if the decision was taken in good faith.
[1039 F G] 1035 (2) Under r. 3.14(a), a competent authority shall suspend the lien of a Government servant on a permanent post which he holds substantively, if he is appointed in a substantive capacity, to a permanent post outside the cadre on which he was borne; and under r. 3.15, in the absence of the written request by the employee, the lien cannot be terminated.
Under r. 3.14(e), the Government servant 's lien which has been so suspended shall revive as soon as he ceases to hold a lien on the ex cadre post.
In the present case, since there was no request by the respondent for terminating his lien on the post of Head Assistant, his lien on that post should be held to have immediately revived as soon as the post of Panchayati Raj Election Officer which was an ex cadre post was abolished.
[1039 H 1040 C] T. R. Sharma vs Prithvi Singh & Anr.
[1976] 2 S.C.R. 716, followed.
[It was for the Government to pass all consequential orders regarding his seniority, pension etc.] [1040 C]
|
Civil Appeal No. 712 of 1972.
From the Judgment and Order dated 21 2 1972 of the Allahabad High Court in Civil ' Misc.
Writ No. 5271/71.
772 Civil Appeal Nos.
962 964 of 1972 From the Judgments and Orders dated 14 2 1972/21 2 1972 of the Allahabad High Court in Civil Writ No. 335/71, 4778/71, and 3334/71.
Civil Appeal No. 1013 of 1972.
From the Judgment and Order dated 14 2 1972 of the Allahabad High Court in Civil Misc.
Writ No. 2791/71.
Civil Appeal Nos. 1063 1065 of 1972.
From the Judgment and Order dated 21/22 2 1972 of the Allahabad High Court in Civil Writ Nos. 572, 843 and 1169/72.
Civil Appeal Nos.
1066 & 1067 of 1972.
From the Judgment and Order dated 21/22nd Feb. 1972 of the Allahabad High Court in C.W. Nos. 5273/71 and 1170/72.
Civil Appeal Nos. 1140 1142 of 1972.
From the Judgment and order dated 29 3 1972/14 2 1972 and 21 2 1972 of the Allahabad High Court in Civil Misc.
Writ Nos.
5064/71, 1801/71 and 5018/71.
Civil Appeal No. 1160 of 1972.
From the Judgment and order dated 18 4 1972 of the Allahabad High Court in Civil Misc.
Writ No. 4223/71.
Civil Appeal Nos.
1329 1330 of 1972.
From the Judgment and order dated 18 4 1972 of the Allahabad High Court in Civil Misc.
Writ Nos. 4587/71 and 4605/71.
Civi] Appeal No. 1367 of 1972.
From the Judgment and order dated 5 4 1972 of the Allahabad High Court in C.M.W. No. 2278/70.
Civil Appeal No. 1405 of 1972.
From the Judgment and order dated 14 2 1972 of the Allahabad High Court in Civil Misc.
Writ No. 1803/71.
Civil Appeal Nos.
1415 & 1598 of 1972.
From the Judgment and order dated 14 2 1972 of the Allahabad High Court in Civil Misc.
Writ No. 1802/71 & 3668/70.
Shanti Bhushan (in C.A. 712) P.R. Mridul (in C.A. 962) P.N. Tiwari, K.J. John and J.S. Sinha for the Appellants in CA 773 712, 962 963, 1063 1069, 1140 1142, 1160, 1329, 1330 and 1598/72.
Shanti Bhushan (in C.A. 409), O.P. Malhotra (in C.A. 1415) R.K.P. Shankar Das (1013 and 1409) H. K. Puri and V.K. Bahl for the appellants in CA 1013 and 1409 and 1415/72.
Yogeshwar Prasad, Mrs. Rani Chhabra and Mrs. section Bagga for the Appellants in CA 1367/72.
O. P. Rana and R. Ramachandran for the Respondents.
The Judgment or the Court was delivered by KRISHNA IYER, J.
This phalanx of appeals, over 200 strong, has stagnated for eight years and slowed down other disposals, which is unfortunate.
We believe that the price of healthy justice from the highest Bench is eschewal of all but those cases which possess the twin attributes of (i) substantial question of law of general importance (ii) which needs to be decided by the Supreme Court itself, whether the jurisdiction be under Article 133, 134 or 136.
Such being the jurisdictional dynamic of the Supreme Court, save in exceptional cases of appalling injustice, we hope the Bar will share this concern and avoid a breakdown for, truly, the question today is: To be or not to be.
All these appeals spring from a common demand for tax by the State of Uttar Pradesh from a number of sugar mills on the purchase of sugarcane at a rate related by weight, not value, a pragmatic novelty in the sales tax pattern which has provoked an argument about its validity.
Legal ingenuity, which rich mills, making common cause, could summon, spun out several constitutional and other challenges to the levy in the High Court, all of which became casualty when the Division Bench delivered judgment.
Even so, the memoranda of appeals have set forth an imposing array of grounds of varying merit, all save three of which, by the wise husbandry of counsel, have been mercifully abandoned.
The three survivors deserve no better fate but it behoves the court to state the triple challenges presented from various angles and ratiocinate at some length to reach the litigative terminus.
One or two more minor matters, which figure in the debate at the bar, may, however, be noticed in the course of the stride.
Far more facts and a fuller projection of the law may be in place here.
We are concerned with a levy under the U.P. Sugarcane (Purchase Tax) Act, 1961, (for short, the Act).
Sales tax, item 54 in the State List, was once described in the thirties by a far sighted Chief 774 Minister and nation builder, Sri C. Rajagopalachariar, as a Kamadhenu.
True to his prescience, every State, today, relies heavily on this levy for which the common man eventually pays heavily.
Uttar Pradesh, which grows sugarcane and runs sugar mills in the private sector, hit upon a tax on the purchase of cane by millers who manufactured sugar and Khandasari at differential rates, but it is a heritage from the thirties.
A little legislative history, mixed with tentative inferences, illuminates the legal controversy since appellants ' counsel set much store by this as an auxiliary circumstance.
A broad brush projection of the fiscal story and back ground economy may now be attempted, although we regret that no authoritative material, beyond what Can be culled from the High Court judgment, is forthcoming.
We will make to with it although litigants, especially in the battle field of unconstitutionally, must produce the socio economic bio data of challenged legislation, explaining the 'how ', the 'why ' and 'why not ' of each clause lest lay minds, lost in legal tuning, should miss meaningful sound and social sense which experts may explain.
Law cannot go it alone nor lawyers.
Many Stales in India grow sugarcane, all of which, save negligible quantities, suffer crushing and its sucrose content is recovered as sugar, khandasari and, on a cottage industry basis, as gur.
Andhra Pradesh, Bihar, Gujarat, Haryana, Kerala, Karnataka, Maharashtra, Madhya Pradesh, Punjab, Pondicherry, Tamil Nadu and Uttar Pradesh not only grow sugarcane but enjoy purchase tax, a majority of which levy By weight rather than on price.
And we cannot lose sight of the All India impact when the law is laid down under Article 141.
Judgments of this Court are decisional between litigants but declaratory for the nation.
Sugar is an export item and, of course, is a daily necessary at home.
Uttar Pradesh, according to the Report of the Tariff Commission on the cost Structure of the Sugar Industry and the Fair Price for Sugar (1969) has the heaviest concentration of sugar mills in the country but several of them are uneconomic and some sick.
Modernization is a message lost on U.P. sugar, manufacture and the cane cultivator 's fortune hangs on the fluctuating prosperity of the marginal millers.
The sugar and sugarcane economy is the victim of a variety of forces which add to the precariousness and poor efficiency of factories The area under cultivation recedes or expands with the decrease or increase of crushing by the factories and the misery of losses and instability of acreage under cane cultivation have played havoc with agriculturists.
Dithering prices of sugar, export promotion as a policy, 'Levy ' of sugar to feed the poor and a number of other intricate economic facts 775 have made the fiscal manoeuvring a matter of expertise and social justice.
While, on a pan Indian survey, wide variations in quality of cane and efficiency of mills may be found, within Uttar Pradesh, broadly speaking, the sucrose content differs but little and the percentage of recovery also is more or less the same or factories in the State save where the machinery effects efficiency.
So much so, the price of sugarcane, usually decided by the Central Governments notification of minimum price, depends on its weight and sucrose recovery and, in practice, within a region both gravitate towards a common point.
Moreover, the Uttar Pradesh sugar map reveals, as pointed out, by the High Court, that 'the more you crush, the more you produce; the more you produce, the more you earn.
So the quantity of sugarcane crushed by a factory is an index of its earnings '.
The relevance of this relationship between consumption of quantity by the mills, their sugar production and quantum of profits, to the question of tax incidence, its equity and equality will be taken up by us later on.
Prima facie, there is a cane sucrose correlation for the State.
Apart from it, the more the cane purchased, the more the profits spun; and the justice of fixing the tax tag on the weight of cane purchased argues itself.
And what makes for just impost of the tax burden is the antithesis of arbitrariness.
When the majority of the sugarcane States have imposed purchase tax by weight, net value, a reinforcement of sorts is added to this inference.
The High Court observes, based on these data: "Prime facie, purchase tax by weight would ensure more stable revenue over the years than the purchase tax by the price of sugarcane, which rises and falls in a four years ' cycle".
This statement has not been upset by any facts placed before the court and ipse dixits of counsel, sans data, are airy economics.
Another market eccentricity must be noticed.
Business cycles of boom and slump have been the bane of the sorry sugar and sugarcane story of that State, and fiscal policy to stabilise a wobbling market G economy has been presumably evolved thoughtfully.
The Report we have referred to bears testimony to this cyclical factor and the High Court has drawn inferences therefrom.
Let us view the inequity of the impost had it been related to the price of cane.
The High Court gives some facts : "The price of sugarcane is, according to the Report of the Tariff Commission, determined by the law of supply and 776 demand in a particular year.
Accordingly it may vary disproportionately in various regions of the State.
One factory may pay more for the same quantity of sugarcane than the other.
Indeed, the Basti Sugar Mills Company Limited has made that allegation.
The Basti Sugar Mills Company Limited paid Rs. 7,00,000/ less than the Seksaria Sugar Mills Private Limited for the same quantity of sugarcane.
If the quantity of sugar manufactured by them in that year is more or less the same, their earnings will be the same.
So tax b. price would be more oppressive on the Seksaria Sugar Mills Private Limited.
On the other hand, as tax is by weight, both of them would have paid the same amount of tax in that year.
Neither of them could complain of unfair or inequitable incidence of taxation.
Of course, stabilization or uniform fixation of cane prices is the annual endeavour of Central and State Governments and this reduces disparity among millers, except the factor of efficiency.
Variations in cane transport costs ale minimized and taken care of by zoning purchases statutorily, and then weight price correlation becomes more stable and sober in practice that abstract arguments based on printed paper and flight of fancy may luridly suggest.
The life of the law is real life, not little logic and the High Court 's deductions, though a lay exercise, cannot be faulted as fallacious by lay advocacy.
Regrettably, we have no contrary statistics and the learned judges, have stressed this weakness.
We agree with those observations and accept them since nothing urged before us has furnished factual contradiction of these premises: "The petitioners have not supplied for any period figures of actual prices paid by them, actual quantity of cane crushed by them, actual quantity of juice derived, actual quantity of sugar produced and their earnings.
They have not tried to prove that the standard of price would be more just and equitable than the standard of weight for levy of purchase tax.
From the meagre data gleaned from the Tariff Commission 's Report, it is not possible to take the view that tax by weight is unfair and inequitable.
And Article 14 ensures to the citizen the basic principle on which rests justice under the law.
It assures to the citizen the ideal of fairness (Corpus Juris Secundum Vol.
XVI A p. 296).
The petitioners have failed to discharge the heavy burden of proof".
777 Abstract submissions flung from imagination do not each the point of forensic take off, if we may add.
Tentatively, subject to further examination, the conclusion of the High Court commends itself to us: "The incidence of purchase tax by weight appears to be more related to the earning capacity of the assessee than the incidence of tax by price of sugarcane".
To clinch the issue, as it were, the High Court winds up: "The petitioners have not argued that the impugned provision is confiscatory in nature.
I have already shown, that tax by weight has got fairer relation to the production of sugar by an earning of a factory than tax by price.
Consequently, no one can fairly complain that the impugned provision treats unequals as equals.
Equal crushing attracts equal tax.
" We may comment by way of supplement that equal crushing means equal weight of cane.
So cane quantity and tax liability roughly match and remove the fear of uneven imposts.
Let us go back to pick up the threads, leaving this pertinent detour for a while.
Sugarcane agriculture and sugar industry have been the cynosure of legislative attention at Central and State levels for long.
We may start a rapid survey from 1932 when the Sugar Industry Protection Act, 1932 was put on the statute book.
Its object was to foster and develop the sugar industry by protective tariffs.
Then came the which empowered the Provincial Government to fix a floor price for sugarcane sold to sugar factories.
This was followed by the U.P. Sugar Factories Control Act 39 .8, which replaced the earlier 1934 Act.
Thus came into existence a statutory Sugarcane Control Board and a Cane Commissioner.
Section 29(1) of this Act imposed a. sales tax on the sale of sugarcane.
Sub section (3) provides for a cess on the entry or sugarcane into a local area.
The necessity for the fostering legislative care of sugarcane cultivation and the imposition of a tax in this behalf is explained in the Statement of objects and Reasons to the Bill of. 1938: "The future of the sugar industry depends to a very large extent on a big drive for the improvement of cane cultivation and its planned production on a rational basis.
To enable Government to carry out the necessary measures in this connection, which will involve considerable expenditure, and to take other steps conducive to the welfare of 778 the industry, cane growers and agriculturists generally, it is proposed to impose a tax upto a maximum limit of six pies a maund of the sale of sugarcane to a factory or a cess at the same rate on the entry of cane into a local area notified in this behalf for consumption, use or sale therein.
" It is significant that 40 years ago the tax for the benefit of cane growers was linked up with weight.
It is not as if a freak flash flit past the legislative mind of linking up purchase tax with weight of cane in 1961 only.
Apparently, measure of tax by weight of stuff in the peculiar circumstances of sugarcane economy has been tested by time and metabolized into the consciousness of the affected Trade and the Administration.
Be that as it may, the development of sugarcane cultivation was taken up on a systematic basis as per the statutory mandate.
Both the tax and the cess contemplated by the 1938 Act went by the maund and although the cess was to be levied from the seller he was allowed to recover it from the purchaser.
The 1938 Act gave place to the U.P. Sugarcane (Regulations of Supply and Purchase) Act, 1953, which created a scientific scheme, created a Fund, injected the concept of cane growers ' cooperatives and provided for levy of cess.
The cess part of the Act was replaced by the U.P. Sugarcane Cess Act 1956.
We must remember that by now the Government of India Act 1935 had ceased to exist and the Constitution of India had come vibrantly into being with the fundamental rights of Part III.
The cess under the 1956 Act was attacked and fell victim to a constitutional challenge and this Court in Diamond Sugar Mills ' Case declared the Cess Act ultra vires.
The consequence of this mortality was the incarnation of the U.P. Sugarcane Purchase Tax Act 1961 which is being impeached as ultra vires in these appeals.
When cess failed, the State would have been constrained to refund nearly half a hundred crores of rupees.
Validation by parliamentary legislation in conformity with the Constitution was, therefore, done.
Eventually, the levy of a purchase tax was enacted into law by the U.P. Sugarcane (Purchase Tax) Act 1961 (referred to as the Act).
In a fiscal sense, the Purchase Tax Act is a reincarnation of the Cess Act but, in a legislative sense, it is an independent statute with a different source of power, impact and structure.
While the appellants have a case that this fiscal history substantiates their thesis that the present purchase tax is a disingenuous disguise, the State contends that its power to impose a purchase tax is well within List II, Entry 54.
An appeal to history cannot impeach power.
Plainly read, the Act, architectures 779 a, typical tax scheme, leviable at the purchase point with one difference, but we have been invited by Shri Shanti Bhushan, counsel for some of the appellants, to lift the veil, look at the true anatomy of the Act and discover the unseemly unconstitutionality in its bosom.
Before we adventure into an assessment of the vulnerability of the provisions to the appellants ' artillery, we must project a picture af the impugned Act in its essentials, sufficient to appreciate the grievances and their constitutional merit, remembering the judicial limitation that where economic diagnostics and administrative pragmatics blend to produce a legislative outfit, restraint is prudence save where caprice compels.
The saga of the Act having been chronicled, we may proceed to a dissection of the Act from the Constitutional angle.
It is worth mentioning that Central and State Governments have been deeply concerned with the economic pros and cons of sugarcane and sugar.
The Tariff Commission in its report gives much of the material relied on by the High Court.
Indeed, when any legislation is assailed as arbitrary, unreasonable or otherwise unconstitutional one expects both sides not to assume the Court to be omniscient but to furnish the surrounding materials, statistical data and the compulsive factors which operated to provide the prescriptions in the legislation consistently with the imperatives of Part III.
This statutory "intelligence" should be a necessary accompaniment to any litigative exercise where constitutionality depends on social facts.
Orality unlimited and invitation into abstractions can hardly do duty for a methodical marshalling of meaningful facts.
Anyway, we will discuss the merits of the contentions on the available materials supplemented by warrantable guesses, with a presumption in favour of constitutionality strengthened by the High Court 's affirmance since the principal attack is Article 14.
Historically, the tax in question is a successor to the cess which was struck down, but jurisprudentially, the levies are different in character and attributes and constitutionally, the imposts derive from different legislative entries and have to be tested by different standards.
In short, the Purchase Tax Act has to be judged on its own merits in the light of submissions of counsel.
The anatomy of the Act, to the extent relevant, may now be envisaged.
Section 3 is the charging section and creates a Liability on the purchase of sugar cane payable by a factory owner or a unit owner.
The rate is one rupee 25 Paise per quintal and 50 Paise per quintal for factories and unit respectively.
The taxing event is the purchase transaction by the owner of a factory or a unit.
An option is provided for in the case of owners 780 of units to pay tax on an assumed quantity prescribed by Government.
This is obviously to simplify and to benefit owners of Units who are presumably tiny producers of khandsari sugar.
By definition, factories and units fall under different categories, the former being geared to manufacture of sugar by power, the latter being engaged in the production of Gur, Rab or Khandsari sugar in crushers driven by mechanical power.
A classification based on scale of operations, product manufactured an other substantial differences bearing on production capacity, profits of business and ability to pay tax, is constitutionally valid and the feeble contention counsel put forward that there is discrimination between owners of factories and units must fail without much argument.
Section 3A, intended to guard against escape of tax, ensures that the sugar produced out of the sugarcane transaction exigible to tax shall virtually stand security, if we may crudely express ourselves that way.
The sugar produced in the factory shall not be removed until the tax levied under Section 3 is paid.
Other detailed provisions calculated to safeguard the tax are also contained in Section 3A Provision for revision of assessment is contained in Section 3B.
While fines and punishments for contraventions find a place in Section 8, remission of taxes is also provided for in Section 14 and comprehensive rule making power is vested in government under Section 15.
Section 15(2) (F) (G) and (H), in particular, chase the sugar manufactured from the taxable sugarcane and empower Government to make rules to secure the sugar bags from leaving the factory premises until the liability of the State is discharged.
To sum up, the scheme is simple and workable.
Uttar Pradesh has a number of factories which manufacture sugar.
There are quite a few units which, with less mechanisation, produce, out of raw sugarcane, less refined, perhaps more nutritious, end products like khandsari sugar gur or rab.
These two classes are well established, their operations, economics and manufactures are different and the fiscal legislation in question classifies them as factories and units and imposes differential levies.
The Act, by Sec. 3, imposes a rate of tax of 1 rupee 25 Paise per quintal of sugarcane purchased by a factory owner, the corresponding, rate for a 'unit ' being but 50 Paise.
The charge is on the purchase transaction payable by the owner of the factory or 'unit 'on such date, at such place and in such installments as may be prescribed ' (Sec.
) Interest and penalty, appeal, prosecution and other consequential provisions find a place as usual but the basic challenge is to the charge of tax on three grounds.
The charge is had, firstly, because, argues counsel, it is, in its true character, 781 a legislation in respect of a 'controlled industry ' and this power belongs exclusively to Parliament under Entry 53 of List I (VII Schedule).
The next submission to shoot down the measure is that the Act, masked as purchase tax, in essence asks for an excise duty on sugar manufacture and is, therefore, invalid as colourable legislation, seeking to achieve, on the sly, what it dare not do straight.
Surely, excise duty falls under Entry 54 of List I and the State Legislature cannot usurp that power.
Even if the levy be a hybrid one, as Sri Malhotra made it out to be, it falls under Entry 97 of List I, out of bounds for the State Legislature.
The final shot fired to bring down the fiscal levy on the score of ultra vires is from the customary barrel of Article 14.
A multiprolonged attack, based on Article 14, was launched.
The levy cast equal burdens on unequals and so was invalid on the ground of discrimination.
A tax, by this canon, must be linked to price of canon, not its quantity, lest the millers be made to pay unevenly for two consignments of equal weight but unequal price.
A refinement of the same argument was developed on the basis of the sugar output from the cane crushed.
The sucrose content of sugarcane varies from cane to cane and, perhaps, from mill to mill and to lump them together quantitatively for a uniform impost is to turn the Nelson 's eye on the inter se inequality.
Procrustean cruelty is anathema for the law where unequals are equalised into arbitrary conformity.
Counsel submit that sucrose is the touchstone and where that content varies but the levy is standardized on the weight of cane the exaction must he outlawed under Articles 14 and 13 and even 19 (unreasonable).
We reject all the three contentions and hold that the Act can parachute to safety despite the ineffectual artillery.
For, as on Bubaivat, we 'heard great argument about it and about but evermore came out by the same door as in we 'went '.
Let us anyway scan, the 'substantial points ' which have sojourned in this Court all these years awaiting a constitutional pronouncement.
Incidentally, most of these pleas have been negatived by this Court on earlier occasions but phantom arguments often survive after death.
Is the legislation ultra vires because the State enters the forbidden ground by enacting on controlled industry? It is undisputed that sugar industry is a controlled industry, within the meaning of Entry 52, List I of Schedule and, therefore, the legislative power of Parliament covers enactments with respect to industries having regard to Article 246(1) of the Constitution If the impugned legislation invades Entry 52 it must be repulsed by this Court.
But entry 54 in List II 782 of the Seventh Schedule empowers the State to legislate for taxes on purchase of goods and so if the Act under consideration is attracted, in pith and substance, by this Entry legislative incompetence cannot void the Act.
The primary question, which we have to pose to ourselves, is as to whether this State Purchase Tax Act is bad because it is a legislation with respect to a controlled industry, to wit, the sugar industry.
What matters is not the name of the Act but its real nature, its pith and substance.
The same problem demands our attention at a later stage in considering the contention that the levy under examination is, in a sense, an excise duty and not a purchase tax.
We are somewhat surprised that the argument about the invalidity of the Act on the score that it is with respect to a 'controlled industry dies hard, despite the lethal decision of this Court in Ch.
Tika Ramji 's case.
Enlightened litigative policy in the country must accept as final the pronouncements of this Court by a Constitution Bench Unless the subject be of such fundamental importance to national life or the reasoning is so plainly erroneous in the light of later thought that it is wiser to be ultimately right rather than to be consistently wrong.
Stare decisis is not a ritual of convenience but a rule with limited exceptions.
Pronouncements by Constitution Benches should not be treated so cavalierly as to be revised frequently.
We cannot devalue the decisions of this Court to brief ephemerality which recalls the opinion expressed by Justice Roberts of the U.S. Supreme Court in Smith vs Allwright "that adjudications of the Court were rapidly , gravitating 'into the same class as a restricted railroad ticket, good for this day and train only ' ".
Let us examine the worth of the contention that the impugned legislation is one on a 'controlled industry ' and therefore out of bounds for the State legislature.
Tika Ramji 's case (supra) deals with the identical question of 'controlled industry ' vis a vis a U.P. Legislation regulating sugarcane supply and purchase.
Certain sugarcane growers of Uttar Pradesh assailed the vires of the U.P. Sugarcane (Regulations of Supply and Purchase) Act 1953.
That statute reserved or assigned to sugar factories specified cane purchasing centres for the purpose.
This regimentation of sugarcane growers and regulation of cane supplies to specified millers by a State enactment was attacked on the precise ground that sugar being, a 'controlled industry ' any enactment effecting such industry including the regulation of supplies of raw materials 783 thereto was taboo.
The plea was dismissed as specious, and the appeals under our consideration are a fortiori case where the rejection of the contention can be more confidently made.
N.H. Bhagwati, J., speaking for the Court traced the legislative history bearing on sugar and sugarcane.
Reference was made to the Industries (Development and Regulation) Act 1951 which brought in as Item 8 of the First Schedule to the Act the industry engaged in the manufacture or production of sugar.
The impugned legislative measures occasioned by the need to streamline the supplies of cane to factories.
The law was designed to provide for a rational distribution of sugarcane to factories for its development on organised scientific lines to protect the interests of the cane growers and of the industry.
The submission made there was that even though the impugned Act purported to legislate in regard to sugarcane required for use in sugar factories, it was, in pith and substance and in its true nature and effect, legislation in regard to sugar industry which had been declared by Act LXV of 1951 to be an industry under Entry 52 of List I.
It was urged that the word 'industry ' was of wide import and included not merely manufacture but also the raw materials for the industry.
The supply and Distribution of raw materials for the sugar industry were, therefore matters having a clear impact on the production of sugar.
In this view, it was pleaded that sugarcane control vis a vis sugar factories was a colourable exercise of legislative power by the State trespassing upon ' the field of Entry 52 in List I. Tika Ramji 's case (supra) gave short shrift to the submission that all sugarcane legislation linked to sugar factories was sugar legislation.
Bhagwati, J. Observed: "What we are concerned with here is not the wise construction to be put on the term 'industry ' as such but whether the raw materials of an industry which form an integral part of the process are within the topic of 'industry ' for which forms the subject matter of Item 52 of List I as ancillary or subsidiary matters which can fairly and reasonably be said to be comprehended in that topic and whether the Central Legislature while legislating upon sugar industry could, acting within the sphere of Entry 52 of List I, as well legislate upon sugarcane." The learned Judge stripped the argument naked and presented it for examination: "It was suggested that Item 52 of List I comprised not only legislation in regard to sugar industry but also in regard 784 to sugarcane which was an essential ingredient of the industrial process of the manufacture or production of sugar and was, therefore, ancillary to it and was covered within the topic.
If legislation with regard to sugarcane thus came within the exclusive province of the Central Legislature, the Provincial Legislature was not entitled to legislate upon the same .
The court was pressed to impart the widest amplitude to the topic 'industry ' and take within its wings ancillary matters lie raw materials of the industry .
"It was, therefore, contended that the Legislation in regard to sugarcane should be considered as ancillary to the legislation in regard to sugar industry which is a controlled industry and comprised within Entry 52 of List I. ' The edifice of exclusive Parliamentary jurisdiction so built stood on shifting sands.
The semantic sweep of Entry 52 did not come in the way of the State Legislature making laws on subjects within its sphere and not directly going to the heart of the industry itself.
The key to the problem was furnished in Tika Ramji 's case (supra).
After comparing the provisions of the U.P. Act there considered, which related to the regulation of sugarcane to factories and securing its price to the grower from the occupier of the factory even by checking the accounts relating to The manufacture of sugar, The Court clinched the issue thus: "This comparison goes to show that the impugned Act merely confined itself to the regulation of the supply and purchase of sugarcane required for use in sugar factories and did not concern itself at all with the controlling or licensing of the sugar factories, with the production or manufacture of sugar or with the trade and commerce in, and the production, supply and distribution of sugar.
If that was so, there was no question whatever of its trenching upon the jurisdiction of the Centre in regard to sugar industry which was a controlled industry within Entry 52 of List I and the U.P. legislature had jurisdiction to enact the law with regard to sugarcane and had legislative competence to enact the impugned Act.
" 785 Even the argument of repugnancy was repelled: "The pith and substance argument also cannot be imported here for the simple reason that, when both the Centre as well as the State Legislatures were operating in the concur rent field, there was no question of any trespass upon the exclusive jurisdiction vested in the Centre under Entry 52 of List I, the only question which survived being whether, putting both the pieces of legislation enacted by the Centre and the State Legislature together, there was any repugnancy .
This Court further quoted Sulaiman, J. In Shyamakant Lal to lend strength to this latter limb of reasoning, where the learned Judge had laid down the principle of construction in; situations of apparent conflict: "When the question is whether a Provincial legislation is repugnant to all existing Indian Law, the onus of showing its repugnancy and the extent to which it is repugnant should be on the party attacking its validity.
There ought to be a presumption in favour of its validity, and every effort should be made to reconcile them and construe both so as to avoid their being repugnant to each other; and care should be taken to see whether the two do not really operate in different fields without encroachment.
Further, repugnancy must exist in fact, and not depend merely on a possibility." Tika Ramji notwithstanding.
the contention was advanced by Sri Shanti Bhushan that industry was a pervasive expression, ambient enough to embrace raw materials used for the industry and so, sugar industry, as a topic of legislation, vested in Parliament exclusive power to legislate on sugarcane supplies to sugar factories, and, pursuing this expansionist logic.
any taxation on supplies of cane to mills would be legislation on sugar industry.
Ergo the Purchase Tax Act was a usurpation by the U.P. Legislature breaching the dykes of article 26(1) read with entry 52 of List I.
He expanded on the theme by urging that any legislation which affected the sugar industry by taxing its raw materials was one with respect to that industry.
The Tika Ramji ratio is diametrically opposed to this reasoning and a ruling which has stood the field so long, has been followed by another Constitution 786 Bench as late as 1973 in the Kannan Devan case, and its force of logic has our deferential assent and cannot be brushed aside by a mere appeal for reconsideration.
Shri Shanti Bhushan candidly conceded that if Tika Ramji were good law his submission was still born.
We agree Industry as a legislative topic is of large and liberal import; true.
But what peripherally affects cannot be confuse with what goes to the heart.
An acquisition of land for sugar mills or of sugar mills may affect the industry but is not an action in the legislative field forbidden for the States.
[See the Kannan Devan Hills Produce Company Ltd. case (supra) ].
Sales tax on raw materials going to a factory may affect the costing process or the manufacture but is not legislation on industrial process or allied matters.
Indeed, if the State Legislature cannot go anywhere near measures which may affect topics reserved for Parliament a situation of reduction ad absurdum may be reached.
The further refinement made by counsel that here was legislation confined to factories and units only, the other buyers of sugarcane being left out, and that therefore the Act was in intent and effect one with respect to the sugar industry has no substance either.
For one thing, the bulk of the consumption of sugarcane was by factories and khandsari units only and the omission of trivial consumers did not mean that the legislation was not on sugarcane purchases generally.
Secondly, it was open to the Legislature to make an intelligent choice of the persons on whom the tax should be imposed.
Here, the bulk consumers were selected and the marginal buyers omitted.
We discern nothing in this policy which legislates upon the sugar industry.
Before we move on to the submission as to the nature of the levy being an excise duty, we may dispose of the little contention on alleged discrimination between sugar factories and khandsari units by the imp post of differential rates of tax and more serious contention founded on the breach of Article 14 to the effect that when a purchase tax liability is computed by the weight of the case, as distinguished from its monetary value, there is an inevitable arbitrariness built into the texture of the Scheme.
If either of these submissions has substance, the tax in question must fall to the forces of Articles 14, 19 and 13, especially article 14, article 19 coming in only consequentially or where expropriation ensues.
Article 14, a great right by any canon, by its promiscuous forensic misuse, despite the Dalmia decision has given the impression of being 787 the last sanctuary of losing litigants.
In present case, the levy which is uniform on all sugarcane purchases, is attacked as ultra vires, on the score that the sucrose content of various consignments may vary from place to place, the range of variation being of the order of 8 to 10 per cent and yet a uniform levy by weight on these unequals is sanctioned by the Act.
Price of cane is commended as the only permissible criterion for purchase tax.
The whole case is given away by the very circumstance that, substantially, the sucrose content is the same for sugarcane in the State, the marginal difference being too inconsequential to build a case of discrimination or is blamable on the old machinery.
Neither in intent nor in effect is there any discriminatory treatment discernible to the constitutional eye.
Price is surely a safe guide but other methods are not necessarily vocational.
It depends, practical considerations of the Administration, traditional practices in the Trade, other economic pros and cons enter the verdict but, after a judicial generosity is extended to the legislative wisdom, if there is writ on the status perversity, 'madness ' in the method or gross disparity, judicial credulity may snap and the measure may meet with its funeral.
Even so, taxing statutes have enjoyed more judicial indulgence This Court has uniformly held that classification for taxation and the application of Article 14, in that context, must be viewed liberally, not meticulously.
We must always remember that while the executive and legislative branches are subject to judicial restraint, "the only check upon our exercise of power is our own sense of self restraint.
" In the Murthy Match Works case, this Court observed: "Certain principles which bear upon classification may be mentioned here.
It is true that a Ste may classify persons and objects for the purpose of legislation and pass laws for the purpose of obtaining revenue or other objects.
Every differentiation is not a discrimination.
But classification can be sustained only if it is founded on pertinent and real differences as distinguished from irrelevant and artificial ones.
The constitutional standard by which the sufficiency of the differentia which form a valid basis for classification may be measured, has been repeatedly stated by the courts.
If it rests on a difference which bears a fair and just relation to the object for which it is proposed it is constitutional.
To put it differently, the means must have nexus with the ends.
Even so, a large latitude is allowed to the State for classification upon: a reasonable basis and what is reasonable 788 is a question of practical details and a variety of factors which the court will be relucant and perhaps ill equipped to investigate.
In this imperfect world perfection even in grouping is an ambition hardly even accomplished.
In this context, we have to remember the relationship between the legislative and judicial departments of government in the determination of the validity of classification.
Of course, in the last analysis courts possess the power to pronounce on the constitutionality of the acts of the other branches whether a classification is based upon substantial differences or is arbitrary, fanciful and consequently illegal.
At the same time, the question of classification is primarily for legislative judgment and ordinarily does not become a judicial question.
A power to classify being extremely broad and based on diverse considerations of executive pragmatism, the judicature cannot rush in where even the legislature varily treads.
" The further challenge must be clarified here.
Counsel submitted that unequals were being treated equally by a uniform purchase tax where equality would have dictated classification and taxation based on sucrose recovery from the cane or its market price.
Even here, we may notice the observations in Murthy Match Works (supra).
Another proposition which is equally settled is that merely because there is room for classification it does not follow that legislation without classification is always unconstitutional.
The court cannot strike down a law because it has not made the classification which commends to the court as proper.
How can the legislative power be said to have been unconstitutionally exercised because within the class a sub classification was reasonable but has not been made.
It is well established that the modern State, in exercising its sovereign powers of taxation, has to deal with complex factors relating to the objects to be taxed, the quantum to be levied, the conditions subject to which the levy has to be made, the social and economic policies which the tax is designed to subserve, and what not.
In the famous words of Holmes, J. in Bain Peanut Co. vs Finson: 'We must remember that the machinery of Government would not work if it were not allowed a little play in its joints.
" 789 It is well established that classification is primarily for the legislature and becomes a judicial issue only when the legislation bears on its bosom obvious condemnation by way of caprice or irrationality.
We have discussed earlier the history of legislative control, the imposition of tax or cess by weight of cane and the acceptance of that methodology all through the decades without demur by the Trade.
Moreover, this Court has negatived an identical argument in a case from Andhra Pradesh (where also a similar levy based on weight of sugarcane is extent) in Andhra Sugar Ltd. Anr. etc.
vs State of Andhra Pradesh & ors.(l) The Court there observed: "Mr. Setalvad submitted that there can be no levy of a purchase tax with reference to the tonnage of the cane.
We cannot accept this contention.
Usually the purchase tax is levied with reference to the price of the goods.
But the legislature is competent to levy the tax with reference to the weight of the goods purchased.
The contention of Mr. Chatterjee that a purchase tax must be levied with reference to the turnover only is equally devoid of merit.
Where the purchase tax is levied on a dealer, the levy is usually with reference to his turnover, which normally means the aggregate of the amounts of purchase prices.
But the tax need not necessarily be levied on a dealer or by reference to his turnover.
It may be levied on the occupier of a factory by reference to the weight of the goods purchased by him.
" Maybe the discussion is brief but the conclusion is sound, and we concur.
Tax on sale or purchase must be on the occurrence of a taxing event of sale transaction.
Beyond that is left to the free play of the legislature, subject, of course, to the contra indications about capricious, arbitrary or irrational features.
It is a superstition, cultivated by familiarity, to consider that all sales tax must necessarily have nexus with the price of the commodity.
Of course, price as basis is not only usual but also safe to avoid uneven, unequal burdens, although it is conceivable that a legislature can regard prices which fluctuate frequently, as too impractical to tailor the purchase tax.
It may even be, in rare cases, iniquitous to link purchase tax with price, if more sensible bases can be found.
Supposing a legislature classifies sales tax on the basis of human categories and reduces the rate or exempts the tax in respect of abject destitutes, or starving flood 790 victims or notoriously hazardous habitations, with respect to necessity of life.
Such differentiation cannot be castigated as discrimination out of hand.
Of course, it is common and commonsense that reliable standard is the price, although in regard to customs duties there are still items levied on the nature of the goods rather than its value in money.
For the present, it is sufficient to state that the practice has been to impose purchase tax by weight of cane.
Also, in weight of cane its sucrose content and its price have a close nexus, although, theoretically, they may appear unconnected.
The High Court has stated that the quantity crushed, the sugar produced and the profits earned, have a substantial linkage.
The quality of cane over the whole of Uttar Pradesh varies over a range of 8 to 10 per cent which, if converted to purchase tax, may inflict a trivial difference per quintal Moreover, for many years past the bulk of the sugar has been absorbed by 'levy ' by the State and in the costing components the State, as buyer of sugar, has borne the burnt.
We have no facts to hold that arbitrary or various burdens are cast because weight, not price, has been the yardstick for tax.
Fine tuning to attain perfect equality may be a fiscal ideal but, in the rough and tumble of work a day economics, the practical is preferred to the ideal, provided glaring caprice of gross disparity does not make the levy arbitrary or frolicsome.
Article 14 is not intellectual chess unrelated to actual impact or the wear and tear of life but even handed justice with some play in the joints.
Sri Mridul, one of the advocates appearing for the appellants, made a naive presentation that equality is inflexible as enshrined in Article 14 and so the differential in rate of tax as between sugar mills arid khandsari units is bad.
The plea that infants and adults, weeklings and strongmen, paupers and princes should be put on a par lest legislative validity be imperilled has an elitist merit but sounds like an argumentum ad absurdum in the context of social justice.
Unequals cannot be treated equally since mechanical uniformity may become unmitigated injustice.
Khandsari units are cottage industries unlike sugar factories and need legislative succour for survival.
Their economy justifies State action, classifying them as apart from factories and we fail to appreciate the flaw in the scheme on this score.
Reference to K. T. Moopil Nair 's case was made at the bar to persuade us that unequals cannot be tortured into equality a vice which stultifies the soul of Article 14 as Anatole France exposed in his sardom epigram that 'the law, in its majestic equality, forbids the 791 rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread '.
We are sure that equality has two sides, both important, and Moopil Nair adverted to one of the facets.
Nothing more can be squeezed out of that case.
The inequality of situation, in the total conspectus of socio economic facts and human condition, must be striking and the unjust equality the rule forces down on unequals must be glaring.
In taxation, the many criteria of intrinsic intricacy and pragmatic plurality persuade the Court, as a realist instrument and respecter of the other two branches, to allow considerable free play although never any! play for caprice, mala fides or cruel recklessness in intent and effect Sri Malhotra, counsel for some appellants, explored beyond Sri Shanti Bhushan, the 'excise ' argument in detail, read to us several sections and rules which enables the tax authorities to keep effective track of and control over the sugar in the factories to the extent needed for recovery of the tax.
Nothing in these provisions regulates or controls the industry itself nor exacts any levy on the manufacture of sugar or its wide ramifications.
Nothing more than prevention of escapement of purchase tax on cane is done and what is done is legitimately incidental to the taxing power.
Peripheral similarity between purchase tax and excise levy does not spell essential sameness.
Sugarcane tax operates in the neighbourhood of sugar excise but proximity is not identity.
The tax is only on purchase of cane, not its conversion into sugar.
If the miller has his own cane farm and crushes it, he his no purchase tax to pay but cannot escape excise duty, if any.
Again, if cane is purchased by a miller and it is later robbed or destroyed before sugar is manufactured, the State tax is exigible although excise on production is not.
A perspicacious appreciation of the implications of purchase and production.
dispels confusion on this issue.
To buy raw produce is a step preliminary to manufacture but is not part of manufacture.
Maybe, in some cases tax on such purchase and duty on manufacture therewith are so close that thin 'partition do their bounds divide ' but how can we obliterate those bounds and telescope the two ? All the appeals deserve to be and are dismissed with costs, one set.
| These appeals arise from a common demand for tax by the State from a number of Sugar Mills on the purchase of Sugarcane at a rate regulated by weight and not on value.
The Cess under the U.P. Sugarcane Cess Act, 1956 was declared ultra vires which resulted in the enactment of Sugarcane Purchase Tax Act, 1961.
In a fiscal sense, the Purchase Tax Act, is a reincarnation of the Cess Act, but in a legislative sense, it is an independent statute with a different source of power, impact and structure.
The tax in question is a successor to the Cess which was struck down but jurisprudentially, the levies are different in character and attributes and constitutionally the imposts derive from different legislative entities and have to be tested by different standards.
The Act by Section 3 imposes a rate of tax at the rate of Rs. 1.25 paise per quintal of sugarcane purchased by a factory owner, the corresponding rate for a "unit" being paise 50.
Under Section 3(2) of the Act, the charge is on the purchase transaction payable by the owner of the factory or unit "on such date" at such place and in such instalment as may be prescribed.
The appellant had challenged the charge of tax.
The High Court dismissed the Writ Petition on the ground that the petitioners have not supplied for any period figures of actual prices paid by them, actual quantity of cane crushed, actual quantity of juice derived, actual quantity of sugar produced and their earnings and, therefore, it was not possible to take the view that tax by weight was unfair and inequitable.
The High Court further held that tax by weight had fairer relation to the production of sugar by earnings of a factory than tax by price and consequently no one could complain that the impugned provisions treated unequals as equals, Equal crushing attracts equal tax.
On appeal to this Court, it was argued on behalf of the appellants that (i) the scheme and sections of the Act are ultra vires (ii) the charge of tax is bad because in its true character it is a legislation in respect of "Controlled Industry" and this power belongs exclusively to Parliament under Entry 52 of List I (Seventh Schedule) of the Constitution, (iii) there is discrimination between sugar factories and khandsari units by the impost of differential rates of tax and liability is computed by the weight of the cane as distinguished from its monetary value, there is an inevitable arbitrariness built into the texture of the scheme and (iv) the Act, masked as Purchase Tax, in essence asks for an Excise Duty on sugar manufacture and is, therefore, invalid as colourable legislation.
770 ^ HELD: (i) This Court cannot lose sight of the all India impact when the law is laid down under Article 141 of the Constitution and judgments of this Court are decisional between litigants but declaratory for the nation.
The scheme of the Act is simple and workable.
It is undisputed that sugar industry is a controlled industry within the meaning of Entry 52, List I of Schedule and therefore, the legislative power of Parliament covers enactments with regard to industries having regard to Article 246(1) of the Constitution.
Entry 54 in List II of the Seventh Schedule, empowers the State legislature to legislate for taxes on purchase of goods and so if the Act under consideration is attracted, in pith and substance by this entry, legislative incompetence cannot void the Act.
[774 E F, 781 G H, 782 A] (ii) The contention that the charge of tax is bad because in its true character it is a legislation in respect of controlled industry and which power belongs exclusively to Parliament under Entry 52 of List I has no force.
Tika Ram 's case deals with the identical question of "controlled industry ' vis a vis U.P. Legislation regulating Sugarcane supply and purchase under the U.P. Sugarcane (Regulation of Supply and Purchase) Act, 1953.
That statute reserved or assigned to sugar factories specified cane purchasing centres for the purpose.
This regimentation of sugarcane growers and regulation of cane supplies to specified millers by a State enactment was attached on the precise ground that sugar being a "controlled industry" any enactment affecting such industry including the regulation of supplies of raw materials thereto was taboo.
The plea was dismissed as specious, and the appeals under this Court 's consideration are a fortiori cases where the rejection of the contention can be more confidently made.
[782 C, F H, 783 A] "Industry" as a legislative topic has a large and liberal import, true.
But what peripherally affects cannot be confused with what goes to the heart.
An acquisition of land for sugar mills or of sugar mills may affect the industry but is not an action in the legislative field forbidden for the States.
Sales tax on raw materials going to a factory may affect the costing process of the manufacture but is not legislation on industrial process or allied matters.
Indeed, if the State Legislature cannot go anywhere near measures which may affect topics reserved for Parliament a situation of reductio ad absurdum may be reached.
[780 B C] Ch.
Tikka Ram 's case ; Shyamkant Lal , Kanan Devan Hills Produce Company Ltd. followed.
(iii) The contention that there is discrimination between sugar factories and khandsari units by the impost of differential rates of tax and that when a purchase tax liability is computed by the weight of the cane as distinguished from its monetary value, there is an inevitable arbitrariness built into the texture of the scheme, has no force.
Neither in intent nor in effect is there any discriminatory treatment discernible to the constitutional eye.
Price is surely a safe guide but other methods are not necessarily vocational.
It depends Practical considerations of the Administration.
traditional.
practices in the Trade.
Other economic pros and cons enter the verdict but, after a judicial generosity is extended to the legislative wisdom, if there is writ on the statute perversity. 'madness ' in the method or gross disparity, judicial credulity may snap and the measure may meet with its funeral.
This Court has uniformly held that classi 771 fication for taxation and the application of Article 14, in that context, must be viewed liberally, not meticulously.
[786 F H, 787 B D] Murthy Match Works case; , , applied.
It is well established that classification is primarily for the legislature and becomes a judicial issue only when the legislation bears on its bosom obvious condemnation by way of caprice or irrationality.
[789 A] (iv) The contention that the Act masked as Purchase tax, in essence asks for an Excise Duty on sugar manufacture and is therefore invalid as colourable legislation has no force.
Tax on sale of purchase must be on the occurrence of a taxing event of sale transaction.
Beyond that is left to the free play of the legislature, subject, of course, to the contra indication about capricious, arbitrary or irrational features.
It is a superstition, cultivated by familiarity, to consider that all sales tax must necessarily have nexus with the price of the commodity.
Price as basis is not only usual but also safe to avoid uneven, unequal burdens, although it is conceivable that a legislature can regard prices which fluctuate frequently, as too impractical to tailor the purchase tax.
It may even be, in rare cases, iniquitous to link purchase tax with price, if more sensible bases can be found.
Supposing a legislature classifies sales tax on the basis of human categories and reduces the rate or exempts the tax in respect of abject desuetudes, or starving flood victims or notoriously hazardous habitations, with respect lo necessity of life.
Such differentiation cannot be castigated as discrimination out of hand.
It is common and commonsense that reliable stand is the price, although in regard to customs duties there are still items levied on the nature of the goods rather than its value in money.
For the present, it is sufficient to state that the practice has been to impose purchase tax by weight of cane.
Also, in weight of cane, its sucrose content and its price have a close nexus, although, theoretically, they may appear unconnected.
Unequals cannot be treated equally since mechanical uniformity may become unmitigated injustice.
Khandsari units are cottage industries unlike sugar factories and need legislative succor for survival.
Their economy justifies State action, classifying them as apart from factories and we fail to appreciate the flaw in the scheme on this score.
[789 F H. 790 A B. F G] Nothing more than prevention of escapement of purchase tax on cane is done and what is done is legitimately incidental to the taxing power.
Peripheral similarity between purchase tax and excise levy does not spell essential sameness.
Sugarcane tax operates in the neighborhood of sugar excise but proximity is not identity.
The tax is only on purchase of cane, not its conversion into sugar.
If the miller has his own cane farm and crushes it, he has no purchase tax to pay but cannot escape excise duty if any.
Again if cane is purchased by a miller and it is later robbed or destroyed before sugar is manufactured, the State tax is exigible although excise on production is not.
A perspicacious appreciation of the implications of purchase and production dispels confusion on this issue.
To buy new produce is a step preliminary to manufacture but is not part of manufacture.
[791 D F]
|
Civil Appeal No. 3955 (NCE) of 1987.
From the Judgment and Order dated 16.11.1987 of the Patna High Court in Election Petition No. 4 of 1985.
924 R.K. Garg and D.K. Garg for the Appellant.
S.N. Singh, H.L. Srivastava, B.M. Sharma and T.N. Singh for the Respondent.
The Judgment of the Court was delivered by SAIKIA, J.
This election appeal under S.116A of the Representation of the People Act 1951, hereinafter referred to as 'the Act ', is from the Judgment of the Patna High Court (Ranchi Bench) in the respondent 's Election Petition No. 4 of 1985 allowing the petition and declaring the elec tion of the appellant to the Bihar Legislative Assembly from the 286 Chandan Kyari (S.C.) Constituency to be void.
Pursuant to the Notification of Election to the Bihar Legislative Assembly, the Returning Officer of the 286 Chandan Kyari (S.C.) Assembly Constituency announced the following programme: A.
Last date for filing nomination paper 6.2.1985 B. Date of the Scrutiny of the nomination paper 7.2.1985 C.
Last date of withdrawal of candidature 9.2.1985 D. Date of Poll 5.3.1985 E. Date of counting 6.3.1985 The appellant, the respondent and 17 others filed their nomination papers; and the Returning Officer accepted the nomination papers found valid at the scrutiny.
Three of them withdrew their candidature, leaving 16 contesting candidates in the field.
The Returning Officer prepared and published the following list of contesting candidates with the allot ted symbols: section No. Name Party Symbol 1.
Ayodhya Rajak Independent Boat 2.
Uma Bawri " Horse 3.
Kokil Rajwar " Cultivator cutting crops 4.
Kiriti Bhusan Das " Fish 5.
Tilakdhari Bawri " Two leaves 6.
Dulal Das Independent Spade & Stroker 925 7.
Nakul Chandra Rajak Independent Rising Sun 8.
Panchanan Rajak " Ladder 9.
Padam Lochan Rajwar B.J.P. Lotus 10.
Mahindri Rajwar Independent Bicycle 11.
Murura Dasi Jharkhand A Woman carrying a Mukti Morcha basket on her head.
Yogendra Bawri Indian Scale Congress (J) 13.
Ramdas Ram Independent Camel 14.
Lata Devi (Mali) Indian Hand National Congress(I) 15.
Shankar Bawri Independent Swastik within the circle 16.
Haru Rajwar Marxist Bow and arrow coordination The poll was held according to schedule on 5.3.1985; and, after counting, the following result was announced on 6.3.1985 by the Returning Officer: section No. Name Party Votes secured 1.
Ayodhya Rajak Independent 187 2.
Uma Bawri " 590 3.
Kokil Rajwar " 4564 4.
Kiriti Bhusan Das " 477 5.
Tilakdhari Bawri " 1458 6.
Dulal Das " 550 7.
Nakul chandra Rajak " 387 8.
Panchanan Raj ak " 434 9.
Padam Lochan Rajwar B.J.P. 8231 10.
Mahandri Rajwar Independent 2500 926 11.
Marura Dasi Jharkhand 2228 Mukti Morcha 12.
Yogendra Bawri Indian Congress (J) 1163 13.
Ramdas Ram Independent 195 14.
Lata Devi (Mali) Indian National 8659 Congress (I) 15.
Shankar Bawri Independent 486 16.
Haru Rajwar Independent 8229 The appellant Lata Devi (Mali) was declared elected.
The respondent Haru Rajwar filed an election petition in the Patna High Court (Ranchi Bench) calling in question the election of the appellant to the Bihar Legislative Assembly on the ground, inter alia, that on 14.2.1985, he received a notice of the intention of the Returning Officer to change his allotted election symbol and though, through counsel, he objected on 15.2.1985, the Returning Officer re allotted the respondent 's 'bow and arrow ' symbol to Murura Dasi and instead allotted the symbol of 'ladder ' to him.
It was urged in the petition that he contested and won the earlier elec tion from the same constituency with the same 'bow and arrow ' symbol; the sudden change of his symbol left him with less than 20 days time for campaign and it resulted in confusion amongst his supporters as a result of which his election was materially affected by the change; that the election was liable to be declared void on the ground of violation of section 30(d) of the Representation of the People Act which, according to him, prescribed atleast 20 days time for election campaign, which he did not have after change of the symbol; and that the election was void also for viola tion of Rule 10(5) of the Conduct of Election Rules, 1961 under which, according to him, the election symbol could not be changed without permission of the Election Commission.
It is the appellant 's case that she did not receive any notice of the election petition against her.
The trial proceeded ex parte.
The respondent election petitioner examined himself at the trail.
The High Court by its impugned order dated 16.11.1987 allowed the petition and declared the appellant 's election to be void holding that the result of the election in so far as it concerned the returned candidate was materially af fected by violation of Rule 10(5) of the Conduct of Election Rules, 1961.
Hence this appeal.
927 Mr. R.K. Garg, the learned counsel for the appellant submits, inter alia, what even assuming what was stated by the respondent election petitioner to be true, there was no breach of section 30(d) of the Representation of the People Act inasmuch as the minimum 20 days time was available after the date of withdrawal of nomination paper to the date of poll; that there was no violation of Rule 10(5) of the Conduct of Election Rules; and that even assuming that there was violation of this rule, the election petitioner dismally failed to prove by evidence that the result of the election was materially affected thereby, inasmuch as no sufficient evidence was adduced in proof of his claims, and he himself could not have proved his averments.
Mr. S.N. Singh, the learned counsel for the respondent, relying on AH Party Hill Leaders ' Conference, Shillong vs Captain W.A. Sangama, AIR 1977 SC 2 155, and Roop Lal Sathi vs Nachhattar Singh Gill, ; , strenuously argues that the violation of Rule 10(5) is itself sufficient to have materially affected the result of the election particularly in view of the fact that in the instant con stituency of backward voters, the symbol was very important, and change thereof had disastrous consequences to the re spondent candidate.
The material facts relevant to this appeal are not in dispute.
The list of contesting candidates with respective symbols was published on 9.2.1985; the election petitioner 's symbol 'bow and arrow ' was reallotted to candidate Murura Dasi and the symbol of ladder in place of 'bow and arrow ' was re allotted to the respondent; the poll took place on 5.3.1985; and the result was announced on 6.3.1985.
The respondent election petitioner in the High Court examined himself as P.W. 1 and deposed to the following effect: " . .
I was given the symbol of 'bow and arrow '.
I canvassed for my votes with the symbol of 'bow and arrow ' till Febru ary 15, 1985.
The Returning Officer changed my symbol and allotted to me the symbol of 'Sirhi ' (ladder).
The symbol of 'bow and arrow ' was given to Murura Dasi, the another candidate.
I was the sitting MLA and my symbol in the last election was also 'bow and arrow '.
I lost the election this time by a margin of 430 votes.
In the election held in the year 1980, I won the election by a margin of 9611 votes.
This time the main reason of my defeat in the election is the change of my symbol.
Due to change of my symbol, the voters were misled and they 928 could not be apprised of this change.
I could not canvass for my votes with the symbol of 'ladder ' in that constituency and in that area.
I was known largely and properly in the areas as the MLA with the symbol of 'bow and arrow '.
The candidate of Congress party was declared elected in this election.
The elec tion of my constituency was held in March 5, 1985.
I did not get 20 days time as provided in law after the change of my symbol.
" When recalled, he added that the symbol was a free symbol which had been allotted to him earlier i.e. the symbol of 'bow and arrow '.
"The last date of withdrawal of the nomination paper was February 9, 1985.
By the change of symbol 'bow and arrow ', I was materially affected and it affected the course of election and the voters were misled and they wrongly voted for Murura Dasi.
" Evidence of no other witness appears on record.
The question before us is, whether on the basis of the above evidence on record the High Court was justified in holding that the result of the election was materially affected and in declaring the appel lant 's election to be void on that ground.
Section 100 of the Representation of the People Act, 195 1 states the grounds for declaring an election to be void.
Sub section 1(d)(iv) says: (1) subject to the provisions of sub sectiOn (2) if the High Court is of opinion (d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected (iv) by any noncom pliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act, the High Court shall declare the election of the returned candidate to be void: Sub section (2) is not relevant for the purpose of this case.
Was there in this case.
any violation of section 30(d)? Under section 30 of the Representation of the People Act, 1951, as soon as the notification calling upon a constituen cy to elect the member or members, is issued, the Election Commission shall, by notification in the Official Gazette appoint, amongst others, under clause (d) the date or dates on which a poll shall, if necessary, be taken, which or the first of which shall be a date not earlier than the twenti eth day after the last date for the withdrawal of candida ture.
In the instant case the last date for the withdrawal of nomination was 9.2.1985 and the date of poll was 5.3.1985.
There was, therefore, clear compliance with the requirement of S.30(d).
The respondent himself stated that on 14.12.1985 he received notice of intention of the Return ing Officer to change his election symbol and the symbol was actually changed on 15.2.1985.
We agree with the High Court that only the spirit of S.30(d) was not complied with.
In terms, this provision was 929 clearly complied with.
The submission that it was violated, has, therefore, to be rejected.
Rule 10 of the Conduct of Election Rules, 1961 deals with preparation of list of contesting candidates.
Sub rule (4) thereof requires that at an election in an assembly constituency, where a poll becomes necessary, the Returning Officer shall consider the choice of symbols expressed by the contesting candidates in their nomination papers and shall, subject to any general or special direction issued in this behalf by the Election Commission (a) allot a different symbol to each contesting candidate in conformity, as far as practicable, with his choice; and (b) if more contesting candidates than one have indicated their preference for the same symbol decide by lot to which of such candidates the symbol will be allotted.
Under sub rule (5) the allotment by the Returning Officer of any symbol to a candidate shall be final except where it is inconsistent with any directions issued by the Election Commission in this behalf in which case the Election Commission may revise the allotment in such manner as it thinks fit.
The change of symbol has not been proved to be violative of Rule 10(5).
Even assuming violation, as Mr. Garg submits, was there enough evidence to show that the result of the election, in so far as it concerned the returned candidate, was materially affected? The election petitioner before the High Court deposed that he lost the election by a margin of 430 votes.
From the result sheet it appears that the appel lant secured 8659 votes and the respondent secured 8229 votes.
The difference is, therefore, of 430 votes.
Murura Dasi despite the 'bow and arrow ' symbol secured 2228 votes.
The election petitioner has not stated and proved that more than 430 voters would have voted for him, had the symbol of 'bow and arrow ' not been changed, and that they voted for Murura Dasi only for her having the symbol of 'bow and arrow '.
How could that be proved would.
of course, depend on the facts and circumstances of the case.
The result of election, in so far as it concerns a returned candidate, may be affected in various ways by various factors stated under section 100(1)(d).
So far as the burden and measure of proof of such material effect is concerned, the law has been enunciated by several decisions of this Court.
What is required to be demonstrated by evi dence will vary according to the way in which the result of the election in so far as it concerns the returned candidate is alleged to have been materially affected.
It is to be noted that in an election petition what is called in ques tion is the election and what is claimed is that the elec tion 930 of all or any of the returned candidates is void, with or without a further declaration that the election petitioner himself or any other candidate has been duly elected.
De claring the election of the returned candidate void does not, by itself, entitle the election petitioner or any other candidate to be declared elected.
Vashit Narain Sharma vs Der Chandra and Ors., ; , was a case of improper acceptance or rejection of nomination paper and the manner of proving that the result of the election had been materially affected was slightly different from that of the instant case as that involved the question of possible distribution of wasted votes.
However, this Court has stated that the result of the election being materially affected is a matter which has to be proved and the onus of proving it lies upon the petitioner.
Their Lordships observed: "It will not do merely to say that all or a majority of the wasted votes might have gone to the next highest candidates.
The casting of votes at an election depends upon a variety of factors and it is not possible for any one to predicate how many or which proportion of the votes will go to one or the other of the candidates.
While it must be recognised that the petitioner in such a case is confronted with a difficult situation, it is not possible to relieve him of the duty imposed upon him by Section 100(1)(c) and hold without evidence that the duty has been discharged.
Should the petitioner fail to adduce satisfactory evi dence to enable the court to find in his favour on this point, the inevitable result would be that the Tribunal would not interfere in his favour and would allow the election to stand.
" In Inayatullah Khan vs Diwanchand Mahajan & Ors, 19, where a nominated candidate was found to have been disqualified under section 7(d) of the Act the question arose as to what had happened to the election as a result.
It was contended that the margin of votes was small and that the result of the election must be taken to have been materially affected because Nandial, a disqualified candidate, got 8,000 odd votes, which in the event of his not contesting would have gone to Mahajan.
Evidence was led to show how the votes which went to Nandial would have been divided and both sides claimed that if Nandial had not contested the elec tion, the votes would have gone to them.
The Madhya Pradesh High Court observed that the evidence on this part of the case was exceedingly general and apart from the statement by the witnesses who came forward as to their opinion, there was 931 nothing definite about it.
All the evidence which had been brought to Court 's notice was not decisive of the matter under section 100 of the Act in view of the test laid down in Vashit Narain Sharma 's case (supra).
It can, therefore, be taken as settled that the party who wishes herein to get an election declared void has to establish by satisfactory evidence that the result of the poll had in fact been mate rially affected by the violation of Rule 10(5) of the Rules.
For doing this, it has to be demonstrated that the votes would have been diverted in such a way that the returned candidate would have been unsuccessful.
In the instant case there was no evidence to demonstrate the returned candidate having derived any benefit from the change of symbol of the election petitioner.
Murura Dasi, to whom the 'bow and arrow ' symbol was later allotted, was not the successful candidate.
The election petitioner was required to show that such number of votes had gone in favour of the successful candidate instead of in favour of the petitioner, simply because of the change of symbol as would, without that number of votes, make the successful candidates unsuccess ful.
The petitioner, besides making bare statement, had not produced any other satisfactory evidence in support of such a proposition.
In S.N. Balakrishna vs Fernandes, ; ; , which was a case under section 100(1)(d)(ii) and section 123(4) corrupt practice charged against an agent other than election agent, on the question of the result of the election, in so far it concerned the returned candidate, being materially affected, Hidayatullah, C.J. observed at para 58: "In our opinion the matter cannot be consid ered on possibility.
Vashit Narain 's case insists on proof.
If the margin of votes were small something might be made of the points mentioned by Mr. Jethmalani.
But the margin is large and the number of votes earned by the remaining candidates also sufficiently huge.
There is no room, therefore, for a reasonable judicial guess.
The law requires proof.
How far that proof should go or what it should contain is not provided by the legislature.
In Vashit 's case; , , and in Inayatullah vs Diwanchand Mahajan, [1958] 15 Ele LR 219 at pp. 235 246 (MP) the provision was held to prescribe an impossible burden.
The law has however remained as be fore.
We arc bound by the rulings of this Court and must say that the burden has not been successfully discharged.
We cannot over look the rulings of this Court and follow the English rulings cited to us.
" 932 In Chhedi Ram vs Jhilmit Ram and Ors., which was also a case of improper acceptance of nomination paper, Chinnappa Reddy, J. observed that the answer to the question whether the result of the election could be said to have been materially affected must depend on the facts, circumstances, and reasonable probabilities of the case.
Under the Indian Evidence Act, a fact is said to be proved when after considering the matters before it, the Court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.
If having regard to the facts and circumstances of the case, a reasonable probability is all one way, the Court must not lay down an impossible standard of proof and hold a fact as not proved.
As was reiterated in Shiv Charan Singh vs Chandra Bhan Singh, ; , in the absence of any proof the result of an election can not be held to be materially affected; and it is not permissible in law to set aside the election of the returned candidate on mere surmises and conjectures.
A decision in election petition can be given only on positive and affirmative evidence and not on mere speculation and suspicious, however strong they are.
Indeed, in the instant case there is no such positive and affirma tive evidence.
,Mere assertions by the election petitioner were not enough.
Nothing was alleged and proved against the successful candidate.
There could be no proposition or contention that a candidate with a particular symbol would always be successful at the hustings or that a particular voter or a number of voters would always vote for a symbol irrespective of the candidate to whom it is allotted.
Mr. S.N. Singh relies on paragraph 29 of the Judgment in All Party Hill Leaders ' Conference, Shillong vs Captain W.A. Sangma, (supra) wherein Goswami, J. observed: "For the purpose of holding elections, allot ment of symbol will find a prime place in a country where illiteracy is still very high.
It has been found from experience that symbol as a device for casting votes in favour of a candidate of one 's choice has proved an inval uable aid.
Apart from this, just as people develop a sense of honour, glory and patriotic pride for a flag of one 's country, similarly great fervour and emotions are generated for a symbol representing a political party.
This is particularly so in a parliamentary democracy which is conducted on party 933 lines.
People after a time identify themselves with the symbol and the flag.
These are great unifying insignia which cannot all of a sudden be effaced.
" There is no dispute about the importance of the symbol in a backward constituency.
This will, however, not absolve the election petitioner of his burden of proving that the result of the election has been materially affected.
In Roop Lal Sathi vs Nachhattar Singh Gill, (supra) in the facts of that case, this Court observed that: "The symbols order was issued by the Election Commission under Article 324 of the Constitu tion in exercise of its undoubted powers of superintendence, direction and control of the conduct of all elections to Parliament and Legislature of every State.
It is also relata ble to Rules 5 and 10 of the Conduct of Elec tions Rules framed by the Central Government in exercise of their powers under section 169 of the Act.
Rule 4 of the Conduct of Elections Rules provides that every nomination paper presented under section 33 of the Act shall be in Forms 2 A to 2 E, as may be appropriate.
Forms 2 A and 2 B require the candidate to choose symbol.
Under Rule 5(1) the Election Commis sion by notification may specify the symbols that may be chosen by candidates at elections to Parliamentary and Assembly constituencies.
Under Rule 10(4) the Returning Officer shall consider the choice of symbols expressed by contesting candidates and "subject to any general or special direction issued by the Election Commission" allot different symbols to different candidates.
The allotment of symbols by the Returning Officer is final under sub rule (5) of Rule 10 except where it is inconsistent with any directions issued by the Election Commission in that behalf in which case the Election Commission may revise the allotment in such manner as it thinks fit." Mr. Singh 's submission is as if the violation of sub rule (5) of Rule 10 would ipso facto make an election void.
That, however, is not the legal position as would be clear from the provision itself.
Section 100(1)(d)(iv) of the Act clearly says that subject to the provisions of sub section (2) if the High Court is of opinion that the result of the election, in so far as it concerns a returned candidate, has been materially affected (iv) by any non compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this 934 Act, the High Court shall declare the election of the re turned candidate to be void.
The violation of sub rule (5) of Rule loper se will not invalidate the election.
The election petitioner has also to prove that the result of the election, in so far as it concerns the returned candidate, was materially affected.
From the evidence on record considered in light of the law enunciated above, we have no doubt that the election petitioner dismally failed to discharge the burden of prov ing that the result of the election, in so far it concerned the appellant, who has been the returned candidate, was materially affected.
The High Court was in error in holding, without sufficient evidence, that it was materially affect ed.
In the result, the impugned Judgment of the High Court is set aside and this appeal is allowed with costs which we quantify at Rs.3,000 (Rupees three thousand).
Let steps be taken under Section 116C(2) of the Act.
R.S.S. Appeal allowed.
| In the election to the Bihar Legislative Assembly held in 1985, the appellant was declared elected from the 286 Chandan Kyari (S.C.) Constituency.
The respondent, a sitting M.L.A., who secured 430 votes less than the appellant, filed an election petition in the Patna High Court (Ranchi Bench) calling in question the election of the appellant.
The respondent 's main grievance was that the Returning Officer re allocated his 'bow and arrow ' symbol to another candidate Murura Dasi, and instead allotted the symbol of 'ladder ' to him, and this sudden change of symbol left him with less than 20 days time for campaign which resulted in confusion amongst his supporters as a result of which his election was materially affected.
On this premise the respondent contend ed that the election was liable to be declared void on the ground of (i) violation of section 30(d) of the Representa tion of People Act, 1951, which according to him prescribed atleast 20 days time for election campaign, which he did not have after change of the symbol; and (ii) violation of Rule 10(5) of the Conduct of Election Rules, 1961 under which, according to him, the election symbol could not be changed without permission of the Election Commission.
The respond ent election petitioner examined himself.
Evidence of no other witness appears on record.
The High Court allowed the petition and declared the appellant 's election to be void holding that the result of the election in so Tar as it concerned the returned candi date was materially affected by violation of Rule 10(5) of the Conduct of Election Rules, 1961.
Before this Court, it was contended on behalf of the appel lant that 922 (i) the appellant did not receive any notice of the election petition against her and the trial had proceeded ex parte; (ii) there was no breach of section 30(d) of the Representa tion of the People Act Inasmuch as the minimum 20 days time was available after the date of withdrawal of nomination paper to the date of poll; (iii) there was no violation of Rule 10(5) of the Conduct of Election Rules; and (iv) even assuming that there was violation of this rule, the election petitioner dismally failed to prove by evidence that the result of the election was materially affected thereby, inasmuch as no sufficient evidence was adduced in proof of his claim, and he himself could not have proved his aver ments.
Allowing the appeal, this Court, HELD: (1) Under s.30 of the Representation of the People Act, 1951, as soon as the notification calling upon a con stituency to elect the member or members is issued, the Election Commission shall, by notification in the Official Gazette appoint, amongst others, under clause (d), the date or dates on which a poll shall, if necessary, be taken, which or the first of which shall be a date not earlier than the twentieth day after the last date for the withdrawal of candidature.
[928F] (2) In the instant case, the last date for the withdraw al of nomination was 9.2.1985 and the date of poll was 5.3.1985.
There was, therefore, clear compliance with the requirement of section 30(d).
The respondent himself stated that on 14.2.1985 he received notice of intention of the Return ing Officer to change his election symbol and the symbol was actually changed on 15.2.1985.
This Court agrees with the High Court that only the spirit of section 30(d) was not complied with.
In terms, this provision was clearly complied with.
[928G 929A] (3) The violation of sub rule (5) of Rule 10 per se will not invalidate the election.
The election petitioner has also to prove that the result of the election, in so far as it concerns the returned candidate, was materially affected.
[934A B] (4) The party who wishes to get an election declared void has to establish by satisfactory evidence that the result of the poll had in fact been materially affected by the violation of Rule 10(5) of the Rules.
For doing this, it has to be demonstrated that the votes would have been di verted in such a way that the returned candidate would have been unsuccessfull.
[931B] 923 Vashist Narain Sharma vs Dev Chandra & Ors., ; ; lnayatullah Khan vs Diwanchand Mahajan & Ors., ; S.N. Balakrishna vs Fernandes, ; , ; Shiv Charan Singh vs Chandra Bhan Singh, ; and Chhedi Ram vs Jhilmit Ram & Ors., , referred to.
(5) A decision in an election petition can be given only on positive and affirmative evidence and not on mere specu lation and suspicion, however, strong they are.
In the instant case, there is no such positive and affirmative evidence.
Mere assertions by the election petitioner were not enough.
[932D] (6) There could be no proposition or contention that a candidate with a particular symbol would always be success ful at the hustings or that a particular voter or a number of voters would always vote for a symbol irrespective of the candidate to whom it is allotted.
[932E] (7) There is no dispute about the importance of the symbol in a backward constituency.
This will however, not absolve the election petitioner of his burden of proving that the result of the election has been materially affect ed.
[933B] All Party Hill Leaders ' Conference, Shillong vs Captain W.A. Sangama, ; and Roop Lal Sathi vs Nach hattar Singh Gill; , , referred to.
(8) The election petitioner has not stated and proved that more than 430 voters would have voted for him, had the symbol of 'bow and arrow ' not been changed, and that they voted for Murura Dasi only for her having the symbol of 'bow and arrow '.
How could that be proved would.
of course, depends on the facts and circumstances of the case.
[929F] (9) In the instant case, the election petitioner dismal ly failed to discharge the burden of proving that the result of the election, in so far as it concerned the appellant, who has been the returned candidate, was materially affect ed.
The High Court was in error in holding, without suffi cient evidence, that it was materially affected.
[934C]
|
Appeal No. 481 of 1965.
Appeal from the judgment and order, dated April 30, 1965, of the Bombay High Court in Special Civil Application No. 447 of 1965.
C. B. Agarwala, section N. Prasad, J. B. Dadachanji, O. C. Mathur and Ravinder Narain, for the appellant.
section V. Gupte, Solicitor General, and B. R. G. K. Achar, for respondent Nos. 2 to 4.
The Judgment of the Court was delivered by Subba Rao J.
This appeal by certificate raises the question of the true construction of the provisions of sections 19 and 25 of the Bombay Municipal Borough Act, 1925 (Bom.
Act 18 of 1925), hereinafter called the Act, read with section 3 of the Maharashtra Municipalities (Postponement of General Elections Pending Unification of Municipal Laws) Act, 1964, hereinafter called the Maharashtra Act.
The facts lie in a small compass.
The last general election of the, members of the Bhusaval Borough Municipality was held 697 under the provisions of the Act in the year 1960.
The first general meeting thereafter was held on February 18, 1961.
Under the provisions of section 25 of the Act.
in the normal course the life of the Municipality would have expired on February 17, 1965; but, under section 3 of the Maharashtra Act the term of the Councillors of the Municipality was, by fiction, extended to and inclusive of December 31, 1965.
On July 18, 1964, the appellant was elected the President of the Municipality; and on the same day the Municipality passed a resolution to the effect that the term of the office of the President shall be "the residue of the term of office of the Municipality".
On the assumption that the term of the President expired on February 17, 1965, the Collector of Jalgaon issued a notice on March 2, 1965, calling for a meeting of the Municipality on March 15, 1965, for electing a new President.
Thereafter, the appellant filed an application under articles 226 and 227 of the Constitution in the High Court of Maharashtra for the issue of an appropriate order setting aside the notice issued by the Collector.
There the appellant contended that, as the term of office of the Municipality had been extended by the Maharashtra Act up to December 31, 1965, he was entitled to continue in office as President till that date.
A Division Bench of the said High Court rejected that contention and dismissed the petition.
Hence the appeal.
The short question in the appeal is whether the expression "the residue of the Municipality" in the resolution of the Municipality, dated July 18, 1964, means the residue of the Municipality that would have been if the Maharashtra Act had not been passed or whether it should be interpreted in the context of the extended term provided by the Maharashtra Act.
Mr. Agarwala, learned counsel for the appellant, contended that the appellant would get the extended term provided in the Maharashtra Act, because in effect it was an "extension" under the Act within the meaning of the second proviso to section 19 of the Act or in any event he got the benefit because the Maharashtra Act in effect amended section 25 of the Act, with the result the "residue" of the "term" was extended to December 31, 1965.
The learned Solicitor General, on the other hand, argued that the second proviso to section 19 of the Act had no application, for it dealt only with an extension by notification or otherwise under the provisions of the Act and the statutory extension given by the Maharashtra Act could not possibly be an extension under the Act; that even if the Maharashtra Act had the effect of amending section 25 of the Act with the result that the life of the 698 members of the Municipality was extended by the amendment of the Act itself, it would not help the appellant as the scope of the resolution passed by the Municipality should be construed on the basis of the circumstances existing at the time the resolution was passed, i.e., previous to the election of the President, and at that time the councillors of the Municipality could have only passed the resolution fixing the term of the President during the residue of the life the Municipality had at that time : to put it in other words, the intention of the Councillors, who passed the resolution, could be gathered only from the circumstances, statutory or otherwise, existing at the time the resolution was passed.
The problem presented from different angles by the learned counsel can only be solved on a true interpretation of the said provisions.
It will, therefore, be convenient at this stage to read the relevant provisions.
Section 19 of the Act : (1) Save as otherwise provided in this Act a president or vice president, shall hold his office for such term, not less than one year or not less than the residue of the term of office of the municipality, whichever is less and not exceeding four years, as the municipality shall, previous to the election of the president or vicepresident determine, or until the expiry within the said term of his term of office, as councillor, but shall be eligible for reelection : Provided that. . .
Provided further that where the term of office of a municipality :Is extended under this Act to a term not exceeding in the aggregate five years the president and vice president holding offices immediately before the date with effect from which such term is extended shall continue to hold their respective offices until the date on which the term so extended expires.
Section 25 of the Act : (1) Councillors nominated or elected at a general election under this Act, shall, save as otherwise provided in this Act, hold office for a term of four years, extensible by order of the State Government to a term not exceeding in the aggregate five years, if on any occasion the State Government shall think fit, for 699 reasons which shall be notified together with the order in the Official Gazette so to extend the same Section 3 of the Maharashtra Act Postponement of municipal elections.
Notwith standing anything in any Act by or under which any municipality is constituted or established, (a) (b) the term or extended term of office, of the Councillors or members of a municipality, who were in office on the date of the commencement of the Ordinance (and whose term or extended term will expire before the 31st day of December 1965), shall be deemed to be extended to and inclusive of the 31st day of December 1965.
SCHEDULE (See section 2) 2.
The Bombay Municipal Boroughs Act, 1925 (Bom.
XVIII of 1925).
The combined effect of these two Acts may be stated thus Under section 25 of the Act the term of the Councillors of the Municipality is 4 years.
It may be extended by the State Government to a term not exceeding in the aggregate five years.
If the term is so extended by the Government in the manner prescribed by section 25 of the Act, under the second proviso to section 19 of the Act the term of the President also is automatically extended to the date on which the term so extended expires.
The expression " under this Act" in the second proviso to section 19 of the Act certainly attracts the extension of the term of the councillors under section 25, as it is an extension under the Act.
The impact of section 3 of the Maharashtra Act on the provisions of the Act is that it not only extends the term prescribed under section 25 of the Act but also the term extended under section 25 or under any other section of the Act.
If that be the legal effect of section 3 of the Maharashtra Act, the second proviso is not attracted to the instant case, as there was no order or notification issued under section 25 or any other relevant section of the Act extending the term of the councillors fixed under section 25 of the Act.
Therefore for the present purpose we leave out of consideration the second proviso to section 19 and approach the problem on the basis of the fiction that the term of the 700 councillors prescribed under section 25 of the Act was extended up to December 31, 1965.
If that be so, the next question is whether on July 18, 1964, when the Municipal councillors passed a resolution to the effect that the term of office of the appellant shall be the residue of the Municipality, their intention was that his term should extend only up to February 17, 1965, i.e., the date when the term of the Municipal councillors would have expired but for the statutory extension given by the Maharashtra Act.
The intention of the Municipality can be gathered only from the circumstances, statutory or otherwise existing at the time when the resolution was passed and on the express terms of the said resolution.
Under section 19 of the Act, the Municipality can fix the term of office of the President between one and four years, except when the residue of the term of the Municipality is less than one year.
But the second proviso to section 19 also contemplates the extension of the term of office of the Municipality under the provisions of the Act.
It is, therefore, not possible to predicate that at the time the resolution was passed the Municipality could not have contemplated a situation when the term of the Municipality would be extended under the provisions of the Act.
With the knowledge of such a possible extension, when the members used the elastic expression "residue", it is not reasonable to attribute to them the intention that they meant only the residue of the term available to them at that time.
If that was their intention they would have prescribed a definite date on which the term of the President would expire.
That apart, there is sufficient material on the record which indicates that the councillors designedly used the word "residue" instead of fixing a precise date.
It appears that it was in the contemplation of the councillors at the time of the election of the President that there was a possibility of the term of the Municipality being extended.
In the Statement of Objects underlying the issuance of the Ordinance which culminated in the Maharashtra Act, it was observed as follows "In July, 1963, Government appointed a Committee for the purpose of considering the question of unification of the four Municipal Acts which are at present in force in the State.
As substantial changes are envisaged in the unified municipal law, it is considered expedient that the advantages of the new and uniform pattern of administration should be available to all those municipalities concerned simultaneously with the holding of general election in accordance with the pro visions of the unified law.
Consequently, the Munici 701 parties that are elected or may be elected under the existing Acts may be short lived, and the time, energy and expenditure incurred on holding any more general elections would be wasteful.
It has, therefore, be on decided to postpone the general elections to such muni cipalities from the promulgation of the Ordinance until the 31st of December, 1965, by which time the new unified municipal law is expected to be enacted.
" This indicates that the question of extension of the term of the municipalities was under serious consideration even in July 1963.
Indeed, on or about July 18, 1964, when the term of the Presitent of the Municipality was extended, the Municipality passed a resolution recommending that the term of the Municipality be extended beyond 4 years.
It is, therefore, clear that on the basis of statutory and other circumstances obtaining at the time the extension was made, the councillors clearly expected that the term of the Municipality would be or could be extended and with that knowledge they passed the resolution fixing the term of the President for the residue of the term of the Municipality; the intention appears to be that the term of the President should synchronize with the life of the Municipality existing or extended, as the case may be.
In our view, therefore, the order of the High Court is not Correct and the same is set aside.
A writ will issue prohibiting the Collector from holding the election of the President of the Municipality of the Bhusaval Borough till December 31, 1965.
The controversy arose because the relevant provisions are not free from ambiguity.
We, therefore, think that this is a fit case where the parties may be directed to bear their own costs; throughout.
Appeal allowed.
| The appellant was elected President of the Bhusaval Borough Municipality in Bombay State in July 1964.
On the same day the Municipality passed a resolution to the effect that the term of office of the President would be "the residue of the term of office of the municipality".
The four years ' term of the municipality as provided in section 25 of the Bombay Municipal Boroughs Act 1925 (Bombay Act 18 of 1925) was due to expire on February 17, 1965.
However in the meanwhile the Maharashtra Municipalities (Postponement of General Elections Pending Unification of Municipal Laws Act, 1964 was passed, and under section 3 thereof the term of the councillors of the municipality was by fiction extended to December 31, 1965.
The Collector of the area on the assumption that the term of the President ending on February 17, 1965, issued notice for a fresh election in March 1965.
The appellant filed an application under articles 226 and 227 of the Constitution and contended that as the term of office of the municipality had been extended up to December 31, 1965 he was entitled to be President till that date under the resolution passed by the Municipality.
The High Court ,. jetted the contention.
The appellant, with a certificate of fitness granted by the High Court, came to this Court.
The short question in the appeal was whether the expression "the residue of the municipality" in the resolution of the municipality meant the residue of the municipality that would have been if the Maharashtra Act had not been passed or whether it should be interpreted in the context of the extended term provided by the Maharashtra Act.
On behalf of the appellant it was argued that the appellant would get the extended term provided by the Maharashtra Act, because in effect it was an extension under the Act within the meaning of the second proviso to section 19 of the Act or in any event he got the benefit because the Maharashtra Act in effect amended section 25 of the Act with the result that 'residue ' of the 'term ' was extended to December 31, 1965.
HELD : (i) The impact of section 3 of the Maharashtra Act on the provisions of the Municipal Boroughs Act is that it not only extends the term prescribed under section 25 of the Act but also the term extended under section 25 or under any other section of the Act.
If that was the legal effect of the Maharahtra Act, the second proviso to section 19 was not attracted to the instant case as there was no order or notification issued under section 25 or any other relevant section of the Act extending the term of the Councillors fixed under section 25 of the Act.
Therefore for the present purpose the second proviso to section 19 had to be left out of consideration and the problem had 696 to be approached on the basis of the fiction that the term of the Councillors prescribed under section 25 of the Act was extended up to December 31, 1965.
[699 G 700 A] (ii) The intention of the municipality could be gathered only from the tances statutory or otherwise existing at the time when the resolution was passed and on the express terms of the said resolution.
The second proviso to section 19 contemplates the extension of the term of office of the Municipality under the Act.
It was therefore not possible to predicate that at the time the resolution was passed the municipality could not have contemplated a situation when the term of the Municipality would be extended under the provisions of the Act.
Moreover from the Statement of objects underlying the issuance of the Ordinance which culminated in the Maharashtra Act it appeared that the question of extension of the term of the municipalities in the State was under serious consideration even in July 1963.
Indeed on or about July 18, 1964 when the term of the President was extended, the municipality passed a resolution recommending that the term of the Municipality be extended beyond 4 years.
It was therefore clear that on the basis of the statutory and other circumstances obtaining at the time the extension was made, the councillors clearly expected that the term of the municipality would be or could be extended and with that knowledge they passed the resolution fixing the term of the President for the residue of the term of the Municipality; the intention appeared to be that the term of the President should syncbronise with the life of the municipality existing or extended as the case may be.
[700 B 701 D] The order of the High Court was therefore not correct and had to be set aside.
|
Appeal No. 287 of 1967.
Appeal from the judgment and order dated May 29, 1964 of the Punjab High Court in Civil Writ No. 1609 of 1961.
Harbans Singh and R. N. Sachthey, for the appellants.
The Judgment of the Court was delivered by Shah, J.
The respondents Joint Stock Company has its principal place of business in Bombay, and a branch office in New Delhi.
The Assessing Authority, Karnal, exercising power under the Punjab Professions, Trades, Callings and Employments Taxation Act 7 of 1956, assessed the respondent to, profession tax 537 for the years 1960 61 and 1961 62 and issued a notice of demand for the amount so assessed.
The High Court of Punjab quashed the notices of demand and the assessment orders holding that the respondent did not carry on trade within the State of Punjab and was not liable to be assessed to tax under the Act.
The State of Punjab has appealed to this Court against the order of the High Court.
Section 3 of Act 7 of 1956 provides "Every person who carries on trade, either by himself or by an agent or representative, or who follows a profession or calling or who is in employment, either wholly or in part, within the State of Punjab, shall be liable to pay for each financial year or a part thereof a tax in respect of such profession, trade, calling or employment.
Provided . . .
The respondent, it is common ground, has no branch office or any other place of business in the State of Punjab.
It has also not appointed any agent or representative to carry on business on its behalf within the State.
The respondent supplies goods to the Government of Punjab and certain "semi Government bodies" in the State in execution of orders received at its branch office at Delhi.
The goods are despatched from Delhi by rail or by public motor transport.
Pursuant to the terms and conditions of the "Rate Contract" between the respondent and the Controller of Stores for the State of Punjab, the respondent consigns the goods sold by it to the appropriate Government Department F.O.R. des tination.
Inspection of the goods is made within the State of Punjab.
The price for the goods sold is collected by presenting bills or railway receipts through Banks to the consignees.
The Assessing Authority held that the respondent "may rea sonably be regarded as selling goods within" the State of Punjab because it was supplying goods F.O.R. destination.
The High Court held that the respondent could not in law be regarded as carrying, on trade at the place at which the goods were supplied, merely because the railway or other receipts were taken out in the name of the respondent and presented to the purchasers duly endorsed in their favour to secure realization of the price of the goods.
Liability to pay tax under Act 7 of 1956 arises if a person carries on trade by himself, or through his agent, or follows a profession or is in employment within the State, and not otherwise.
The expression "trade" is not defined in the Act.
"Trade" in its primary meaning is the exchanging of goods for goods or goods for money; in its secondary meaning it is repeated activity in the 538 nature of business carried on with a profit motive, the activity being manual or mercantile, as distinguished from the liberal arts or learned professions or agriculture.
The question whether trade is carried on by a person at a given place must be determined on a consideration of all the circumstances.
No test or set of tests which is or are decisive for all cases can be evolved for determining whether a person carries on trade at a particular, place.
The question, though one of mixed law and fact, must in each case be determined on a consideration of the nature of the trade, the various steps taken for carrying on the trade and other relevant facts.
In the present case, the respondent has no shop or office within the State of Punjab.
The respondent supplies goods within the State pursuant to orders received and accepted at New Delhi, and also receives price for the goods within the State.
But these are ancillary activities and do not in our judgment amount to carrying on trade within the State of Punjab.
We need not refer in detail to cases such as Grainger and Son vs Gough (Surveyor of Taxes) (1); F. L. Smith & Co. vs F. Greenwood (Surveyor of Taxes)(2); and Firestone Tyre Co. Ltd vs Lewellin, (3) which interpret the expression "trade exercised within the United Kingdom" in the English Income Tax Acts, for they merely lay down that for the purpose of the Income Tax Acts, there is no single, decisive or "crucial" test to determine whether the tax payer exercises trade at a given place.
The appeal fails and is dismissed.
The respondent has not appeared at the hearing.
There will, therefore, be no order as to ,costs.
| One V lost his father when he was only 10 years old and.
thereafter lived along with his mother, in the house of the first defendant who was his maternal uncle.
The first defendant had considerable influence over V as he was slow witted and below the average level of intelligence and, understanding.
V died when he was 24 years old.
A few.
days before his death he executed a will by which he bequeathed his entire property to the first defendant absolutely with a direction that his mother should be maintained, and that, even if his mother lived separately from the first defendant, she was to have only a life interest in certain items which were also to be taken absolutely by the first defendant after her death.
At the time of the execution of the will V was physically in a weak condition.
The first defendant took a prominent part in summoning the attesting witnesses and the scribe and in Procuring, writing materials for the execution of the will.
Evidence was given on behalf the first defendant that though V was delirious on the day previous to the execution of the will and also subsequent to that date, V was in a normal condition on the date of the execution of the will.
On the question of the validity of the will, HELD : The will was not executed in a sound disposing state of mind and was therefore not legally valid.
[480,A B] In a case in which a will is prepared under circumstance which raise the suspicion of the court that it does not express the mind of the testator it is for those who propound the will to remove that suspicion.
What are suspicious circumstances must be judged on the facts and circumstances of each particular case.
If, however, the Propounder takes a prominent part in the execution of the will which confers substantial benefits on him that itself is a suspicious circumstance attending the execution of the will and in appreciating the evidence in such a case the court should proceed in a vigilant and cautious, manner.
[477 R; 478 A B] Barry vs Butlin, ; , 482, Fulton vs Andrew, , Tyrrell vs Painton, , 157, 159 and Sarat Kumari Bibi vs Sakhi Chand & Ors., 56 I.A. 62, applied.
|
No. 118 of 1974.
Petition under article 32 of the Constitution.
R. L. Kohli, for the petitioner.
Dilip Sinha and G. section Chatterjee, for the respondent.
The Judgment of the Court was delivered by CHANDRACHUD, J.
The petitioner was detained by an order dated August 23, 1973 passed by the District Magistrate, Howrah, under the .
The order recites that the petitioner was detained with a view to preventing him from acting in any manner prejudicial to the maintenance of public order.
The particulars of the ground of detention refer to a solitary incident dated March 18, 1973.
It is alleged that at about 2 p.m. on that date, the petitioner and his associates being armed with swords, Ballams and Lathis attacked a group of Bengalees at Rajnarayan Roy Choudhury Ghat Road, Shibpur, Howrah causing severe injuries to them.
It is further stated that this conduct led to a reign of terror 426 in the locality as a result of which the shops and the doors of the read side houses were closed, people of the locality fled away inpanic and the people were generally afraid of coming out of their houses for fear of being assaulted.
Learned counsel appearing on behalf of the petitioner has raised two points for our consideration in this petition fOr the writ of habeas corpus.
The particulars furnished to the petitioner say that the petitioner was detained on the ground: "you have been acting" in a manner prejudicial to the maintenance of public order.
The argument is that the order is founded on a single incident and therefore, the use of language showing that the culpable conduct on the part of the petitioner extended over an appreciably long period of time was wholly inappropriate.
Inferentially; it is urged, the detaining authority had material before it showing that the petitioner was indulging in a criminal course of conduct for a long periOd of time and as such material was not disclosed to the petitioner, he bad no opportunity to meet it, leading thereby to the contravention of Article 22(5) of the Constitution.
We are not impressed by this submission.
It is true that in matters involving the liberty of the subject, the detaining authorities ought to exercise the greatest care in the discharge of their functions.
But that dOes not justify an unrealistic dissection of detention orders.
The counter affidavit filed on behalf of the State Govt.
shows that no other material was taken into account by the detaining authority while passing the order of detention.
Therefore, the use of the expression, "you have been acting" though unfortunate does not support the submission that the order of detention is founded on undisclosed material.
The petitioner was expressly apprised that he had been acting in a manner prejudical to the maintenance of public order "as evidenced by the particulars" furnished to him.
The particulars refer only to a single incident.
The second ground of attack on the detention order is that when the State Government approved the detention on August 30, 1973 it passed an order approving a detention order dated "25 8 73".
As the impugned order of detention is dated August 23, 1973 it is urged that while approving the detention of the petitioner, the State Government had before it some other order of detention.
There is no substance in this contention.
The order of approval contains but a typographical error.
This is clear from the order passed by the State Govt.
on November 8, 1973 confirming the order of detention after obtaining the opinion of the Advisory Board.
The order of confirmation refers to the order of detention dated August 23, 1973.
It must also be stated that as in the order of confirmation so in the order of approval, an express reference is made to the detention order bearing No. 1818 C.
The order of detention passed against the petitioner on August 23, 1973 bears that very number which shows hat the reference to an order dated "25 8 73" in the order of approval is a topographical mistake.
In the result, we confirm the order of detention and discharge the rule in this petition.
P.H.P. Petition dismissed.
| The respondent , a common carrier of goods, had taken out three transit policies of insurance renewable every year from the appellant.
The freight policy taken out in January 1969, was against risk of loss or damage to any goods or merchandise during transit.
In June 1971.
the respondent declared to the appellant that it had received for transit a consignment of 185 packages of general merchandise alleged to be of the total value of Rs. 1,10,000/(approx) for transportation from Calcutta to various places in Assam and Tripura and paid the requisite premium on the value of goods and the goods stood insured under the said policy.
According to the respondent on the evening of 29 6 71, the consignment of 185 packages was loaded in Truck No. WGH 8261, and the truck left Calcutta on the same day for Gauhati.
It is alleged that the owner of the truck reached Barasat on the night of 29th June, 1971, there was a robbery and neither the truck, nor the driver, nor the merchandise could be traced.
On 1 7 1971, the respondent sent letters to the officer incharge of Jorabagan Police Station, the Assistant Commissioner of Police, Intelligence Branch, Lall Bazar.
Calcutta and the Deputy Commissioner of Police Intelligence Branch intimating them that the truck, the driver, the assistant and the merchandise could not be traced.
A copy of the letter sent to the Assistant Commissioner of Police.
Lall Bazar, Calcutta was sent to the appellant and it was received by the appellant on 2 7 1971.
On 1 7 1971 and 21 9 1971, the respondent lodged the claim for loss with the appellant on the basis that the loss was covered by the policy.
On 3 7 1971, the appellant sent a, letter to the respondent calling upon the respondent to furnish the particulars as regards the name and address of the owner of the vehicle, the name and ' address of the driver and other particulars.
On 21 9 1971 the respondent informed the appellant by a letter that the information and the records asked for in the letter dated 3 7 1971 were already supplied to Mr. A. L. Chopra, the agent of the appellant on 5 7 1971 when he called upon the respondent for that, purpose.
On 10 10 1971.
the appellant wrote to the respondent informing that until the report of the investigation by the police was produced by the respondent, it would not be possible for the appellant to proceed further in the matter.
The appellant received a copy of the investigation report by the police at Barasat on 12 5 1972.
The report was to the effect that the alleged episode, of robbery was false.
On this basis, the appellant sent to the respondent a letter dated 4 8 1972 stating the contents of the investigation report of the police at Barasat asking for the investigation report of Jambagan Police Lall Bazar Police.
Thereafter the appellant intimated the respondent by letter dated 16 2 1973 disclaiming its liability under the freight policy as regards the loss of the consignment of 185 packages.
On receipt of the letter, the respondent wrote to the appellant on 30 3 73 asking for the ground on which the appellant disclaimed its liability.
The appellant sent a letter after two months on May 30, 1973, stating that it had nothing to add to what had been stated in its letter dated February 16, 1973.
Thereafter, the respondent took the advice of solicitors and counsel.
On 17 8 1973, the respondent filed the application before the High Court under section 37(4) of the Act for extension of time for referring the dispute to arbitration till a date 15 days after the order of the High Court.
In the application the respondent stated the reasons for the delay in filing the application in court after receiving the letter dated May 30, 1973.
In answer to the application, the appellant contended that section 37(4) of the Act had no application that the Court had no jurisdiction to extend the time and that even if the court had 137 jurisdiction, there were no valid grounds for extension.
The learned Judge of the High Court passed the order extending the time to refer the dispute to arbitration within a fortnight from 14 1 1974.
In this appeal by special leave, it was contended for appellant that there would be no undue hardship to the respondent if the time for preferring the claim to arbitration is not extended and, therefore, the High Court went wrong in exercising its discretion by extending the time.
Rejecting the contention and dismissing the appeal, HELD ; (i) Court has to take a liberal view of the meaning of the words "undue hardship" occurring in section 37(4) of the . 'Undue ' must mean something which is not merited by the conduct of the claimant, or is very much disproportionate to it.
[143E F] Steamship Co. of 1912, etc.
vs Anglo American Grain Co. [1958] 2 Llyod 's Rep. 341; Watney, Comba, Raid & Co. vs E. M. Dower & Co. etc.
, 13 1; F. E. Hookway & Co. Ltd. vs H. W. H. Hopper & Co. ; Stanhope Steamship Co. Ltd. vs British Phosphate Commissioners ; and Librarian Shipping etc.
vs A King & Sorts referred to (ii) The respondent was having dealings with the appellant in the business of insurance from 1958 onwards and in no instance was the claim made by the respondent rejected by the appellant.
The conduct of the respondent in enquiring of the appellant the grounds on which the claim was rejected was quite reasonable.
It was only after the grounds of rejection were known that the respondent could have decided whether to resort to arbitration or not.
If the grounds of rejection would come within the clause of exclusion of liability under the Policy, it would serve no purpose to incur the expense and hardship involved in resorting to arbitration.
The appellant did not give the reason for disclaiming liability even in its letter dated 30 5 1973.
We do not think that there was any lack of promptness on the part of the respondent in waiting for the reply to its letter dated 30 3 1973.
In the facts and circumstances of the case it is clear that the High Court exercised its discretion properly in extending the time.
The conduct of the respondent was reasonable.
It took all steps it could when it knew about the alleged robbery to inform the police and the appellant.
The fact that the Barasat police reported that the case was false does not necessarily mean that the respondent tried to practise any fraud on the appellant.
The respondent had filed a suit against the owner of the truck in question in July 1972 for the recovery of the amount of loss.
It also paid the claims arising out of the loss of goods which were transported through the truck.
All these go to show the bona fides and reasonableness of the conduct of the respondent.
Both the amount at stake and the reasons for delay are material in considering the question of undue hardship.
It cannot be said that any material prejudice would be caused to the appellant by extending the time.
There would be undue hardship if time is not extended, as the consequence of non extension would in any event be excessive and out of proportion to the fault of the respondent, if any, in not being prompt.
It also cannot be, said that the mere fact that a claim would be barred would be undue hardship.
[144B C; 14; 145A B]
|
n No. 128 of 1958.
Petition under article 32 of the Constitution of India for enforcement of Fundamental Rights.
K.M. Munshi, R. J. Joshi, G.K. Munshi, T.S.N. Diwanji, J.B. Dadachanji, S.N. Andley, Rameshwar Nath and P. L. Vohra, for the petitioner.
M. C. Setalvad, Attorney General of India, C.K. Daphtary, Solicitor General of India, H.N. Sanyal, Additional Solictor General of India, B. Sen and R. H. Dhebar, for the respondent.
I N. Shroff, for the intervener.
January 9 Sinha.
C.J., delivered his own Judgment.
The Judgment of Sarkar, Das Gupta and Mudholkar, JJ., was delivered by Das Gupta, J. Ayyangar J. delivered a separate Judgment.
500 SINHA, C. J.
By this petition under article 32 of the Constitution, the petitioner, who is the 51st Dai ul Mutlaq and head of the Dawoodi Bohra Community challenges the constitutionality of the Bombay Prevention of Excommunication Act, 1949 (Bombay Act XLII of 1949) (hereinafter referred to as the Act) on the ground that the provisions of the Act infringe articles 25 and 26 of the Constitution.
The sole respondent in this case is the State of Bombay.
The petition is founded on the following allegations.
The Dawoodi Bohra Community consist of Muslims of the Shia sect, holding in common with all members of that sect the belief that there is one God, that Mohammed is His Prophet to whom He revealed the Holy Koran; that Ali, the son in law of Mohammed, was the Wasi (executor) of the Prophet, and that the said Ali succeeded the Prophet by Nas e Jali.
The Dawoodi Bohras believe that the said Ali was succeeded by a line of Imams, each of whom in turn was appointed by Nas e Jali by his immediate predecessor.
The Shia sect itself became divided into two sub sects, known respectively as Ismailis and Isna Asharia.
The Dawoodi Bohras belong to the former sect, and believe that owing to persecution Imam Type (the 21st Imam) went into seclusion and that an Iman from his line appear, it being their belief that an Iman always exists although at times he may be invisible to his believers, while in seclusion; that owing to the impending seclusion of the 21st Imam (Imam Tyeb) his predecessor, the 20th Imam, directed his Hujjat (a dignitary ranking next to an Imam), one Hurra tul Malaka, to appoint a Dai, a Mazoon (a dignitary next to a Dai) and a Mukasir (a dignitary ranking next to a Mazoon) to carry on the Dawal (mission) of the Imam so long as the Imam should remain in seclusion, and to take and receive from the faithful an oath of allegiance.
The Dais are 501 known as Dai ul Mutlaq.
The petitioner, as the Head Priest of the community of Dawoodi Bohras, is the vice gerent of Imam on Earth in seclusion.
The petitioner is a citizen of India.
As Dai ul Mutlaq and the vicegerent of Imam on Earth in seclusion, the Dai has not only civil powers as head of the sect and as trustee of the property, but also ecclesiastical powers as religious leader of the community.
It is the right and privilege of the petitioner as Dai ul Muntlaq to regulate the exercise of religious rights in places where such rights and ceremonies are carried out and in which religious exercises are performed.
In his capacity as the Dai ul Mutlaq, that is to say, as religious leader as well as trustee of the property of the community, one of his duties is to manage the properties which are all under his directions and control.
He has also the power of excommunication.
This power of excommunication is not an absolute, arbitrary and untrammelled power, but has to be exercised according to the usage and tenets of the community.
Save in exceptional circumstances, expulsion from the community can be effected only at a meeting of the Jamat, after the person concerned has given due warning of the fault complained of and an opportunity of mending, and after a public statement of the grounds of expulsion.
The result of excommunication properly and legally effected involves exclusion from the exercise of religious rights in places under the trusteeship of the Dai ul Mustlaq.
The petitioner claims that as the head of the Dawoodi Bohra community and as Dai ul Mutlaq, he has the right and power, in a proper case and subject to the conditions of legal exercise of that power, to excommunicate a member of the Dawoodi Bohra community, and this power of excommunication is an integral part of the religious faith and belief of the Dawoodi Bohra community.
The petitioner further affirms that the exercise of the right of 502 excommunication is a matter of religion, and that, in any event, the right is an incident of the management of the affairs of the Dawoodi Bohra community in matters of religion.
He also asserts that the Dawoodi Bohra community constitutes a religious denomination within the meaning of article 26 of the Constitution; the said right of the petitioner to excommunicate a member of the community, for reasons of which the petitioner is the sole judge in the exercise of his position as the religious head, is a guaranteed right under articles 25 and 26 of the Constitution.
The Bombay Legislature enacted the Act, which came into force on November 1, 1949.
The petitioner asserts that the Act violates his right and power, as Dai ul Mutlaq and religious leader of the Dawoodi Bohra community, to excommunicate such members of the community as he may think fit and proper to do; the said right of excommunication and the exercise of that right by the petitioner in the manner aforesaid are matters of religion within the meaning of article 26(b) of the Constitution.
It is submitted by the petitioner that the said Act violates or infringes both the articles 25 and 26 of the Constitution, and to that extent, after the coming into force of the Constitution, has become void under article 13 of the Constitution.
The petitioner claims that notwithstanding the provisions of the Act, he, as the religious leader and Dai ul Mutlaq of the community, is entitled to excommunicate any member of the Dawoodi Bohra community for an offence, which according to his religious sense justifies expulsion; and insofar as the Act interferes with the said right of the petitioner, it is ultra vires the Legislature.
The Act is also challenged on the ground of legislative incompetence of the then Legislature of Bombay, inasmuch as it is contended that such a power is not contained in any of the entries in the Seventh Schedule of the Government of India Act, 1935.
503 One Tayebhai Moosaji Koicha (Mandivala) instituted a suit, being suit No. 1262 of 1949, in the High Court of Judicature at Bombay, praying inter alia, for a declaration that certain orders of excommunication passed by the petitioner against him prior to the enactment of the Act were void and illegal and of no effect, and that the plaintiff continued to remain a member of the Dawoodi Bohra community.
The said suit was heard by J.C. Shah, J., who, by his judgment dated February 21, 1952, held that the Act was not inconsistent with article 26 of the Constitution, and was not ultra vires the Legislature of the Province of Bombay.
The petitioner, being dissatisfied with the judgment of the learned Judge, preferred an appeal that came up for hearing before the Court of Appeal, composed of Chagla, C. J., and Bhagwati J.
By its judgment dated August 26, 1952, the Court of Appeal upheld the judgment of the learned single Judge, though on different grounds.
The petitioner obtained leave from the High Court to appeal to this Court, and ultimately filed the appeal, being Civil Appeal No. 99 of 1954.
During the pendency of the appeal, the plaintiff respondent aforesaid died and an application made on behalf of his heirs for being brought on the record was not granted by the High Court of Bombay.
This Court dismissed the said appeal on the ground that the plaintiff having died, the cause of action did not survive.
The petitioner further alleges that parties inimical to him and to the Dawoodi Community have written scurrilous articles challenging and defying the position, power or authority of the petitioner as the religious head of the community; the challenge to the petitioner 's position and his power to excommunicate as the head of the Dawoodi Bohra community is violative of the petitioner 's guaranteed rights under articles 25 and 26 of the Constitution.
It is, therefore, claimed that it 504 is incumbent upon the respondent, in its public character, to forbear from enforcing the provisions of the Act against the petitioner.
By the petitioner 's attorney 's letter, annexure B to the petition, dated July 18, 1958, the petitioner pointed out to the respondent the unconstitutionality of the Act and requested the latter to desist from enforcing the provisions of the Act against the petitioner or against the Dawoodi Bohra community.
In the premises, a writ of Mandamus or a writ in the nature of Mandamus or other appropriate writ, direction or order under article 32 of the Constitution was prayed for against the respondent restraining it, its officers, servants and agents from enforcing the provisions of the Act.
The answer of the State of Bombay, the sole respondent, is contained in the affidavit sworn to by Shri V.N. Kalghatgi, Assistant Secretary to the Government of Bombay, Home Department, to the effect that the petitioner not having taken any proceedings to excommunicate any member of the community had no cause of action or right to institute the proceedings under article 32 of the Constitution; that it was not admitted that the Dai ul Mutlaq, as the head of the community, has civil powers, including the power to excommunicate any member of the community; that, alternatively, such power is not in conformity with the policy of the State, as defined in the Constitution; that the petitioner, as the head of the community may have the right to regulate religious rights at appropriate places and occasions, but those rights do not include the right to excommunicate any person and to deprive him of his civil rights and privileges; and that, in any event, after the coming into effect of the impugned Act, the petitioner has no such rights of excommunication; that it was denied that the right to excommunicate springs from or has its foundation in religion and religious doctrines, tenets and faith of the Dawoodi Bohra community that, at 505 any rate, it was denied that the right to excommunicate was an essential part of the religion of the community; that, alternatively, assuming that it was part of a religious practice, it runs counter to public order, morality and health.
It was also asserted that the impugned Act was a valid piece of legislation enacted by a competent legislature and within the limits of article 25 and 26 of the Constitution; and that the right to manage its own affairs vested in a religious community is not an absolute or untrammelled right but subject to a regulation in the interest of public order, morality and health.
It was denied that the alleged right of the petitioner to excommunicate a member of the community is guaranteed by articles 25 and 26 of the Constitution.
In the premises, it was denied that the petitioner had any right to the declaration sought or the relief claimed that the provisions of the Act should not be enforced.
At a very late stage of the pendency of the proceedings in this Court, in April 1961, one Kurbanhusein Sanchawala of Bombay, made an application either for being added as a party to the Writ Petition or, alternatively, for being granted leave to intervene in the proceedings.
In his petition for intervention, he stated that he was a citizen of India and was by birth a member of the Dawoodi Bohra community and as such had been taking an active part in social activities for bettering the conditions of the members of the community.
He asserted that members of the community accepted that up to the 46th Dai ul Mutlaq there was no controversy, that each one of them had been properly nominated and appointed, but that a controversy arose as regards the propriety and validity of the appointment of the 47th Dia ul Mutlaq, which controversy continued all along until the present time so that opinion is divided amongst the members of the Dawoodi Bohra community as to the validity of appointments and 506 existence of Dai ul Mutlaq, from the 47th to the 51st Dai ul Mutlaq, including the present petitioner.
The intervener also alleged that but for the impugned Act, the petitioner would have lost no time in excommunicating him.
In the premises, he claims that he is not only a proper but necessary party to the writ Petition.
He, therefore, prayed to be added as a party respondent, or, at any rate, granted leave to intervene at the hearing of the Writ Petition.
We have to dispose of this petition because no orders have been passed until the hearing of the main case before us.
In answer to the petitioner 's claims, the intervener has raised the following grounds, namely, that the Holy Koran does not permit excommunication, which is against the spirit of Islam; that, in any event, the Dai ul Mutlaq had no right or power to excommunicate any member of the community, and alternatively, that such a right, assuming that it was there, was wholly "out of date in modern times and deserves to be abrogated and was rightly abrogated by the said Act.
" It was further asserted that the alleged right of excommunication was opposed to the universally accepted fundamentals of human rights as embodied in the "Universal Declaration of Human Rights.
" It was also asserted that the Act was passed by a competent legislature and was in consonance with the provisions of articles 25 and 26 of the Constitution.
The intervener further claims that the rights to belief, faith and worship and the right to a decent burial were basic human rights and were wholly inconsistent with the right of excommunication claimed by the petitioner, and that the practice of excommunication is opposed to public order and morality; that the practice of excommunication was a secular activity associated with religious practice and that the abolition of the said practice is within the saving cl. 2(a) of article 25 of the Constitution.
It was also asserted that, under the Mohamadan Law, properties attached to 507 institutions for religious and charitable purposes vested in the Almighty God and not in the petitioner, and that all the members of the Dawoodi Bohra community had the right to establish and maintain such institutions, in consonance with article 26 of the Constitution; that is to say that article 26 guarantees the right of the denomination as a whole and not an individual like the petitioner.
It was also asserted that the provisions of the Act prohibiting excommunication was in furtherance of public order and morality and was just and reasonable restriction on a secular aspect of a religious practice.
The petitioner challenged the right of the intervener either to intervene or to be added as the party respondent.
In his rejoinder to the petition for intervention, the petitioner further alleged that the practice of excommunication was essential to the purity of religious denominations because it could be secured only by removal of persons who were unsuitable for membership of the community.
It was, therefore, asserted that those who did not accept the headship of the Dal ul Mutlaq, including the petitioner, must go out of the community and anyone openly defying the authority of the Dai ul Mutlaq was liable to be excommunicated from the membership of the community, entailing loss of rights and privileges belonging to such members.
It was, therefore, claimed that the practice of excommunication was, and is, an essential and integral part of the religion and religious belief, faith and tenets of Dawoodi Bohra community, which have been guaranteed by article 26 of the Constitution.
It has been urged on behalf of the petitioner, in support of the petition, that the Dawoodi Bohra community, of which the petitioner is the religious head, as also a trustee in respect of the property belonging to the community, is a religious denomination within the meaning of article 26 of the Constitution; that as such a religious denomination it is 508 entitled to ensure its continuity by maintaining the bond of religious unity and discipline, which would secure the continued acceptance by its adherents of certain essential tenets, doctrines and practices; the right to such continuity involves the right to enforce discipline, if necessary by taking the extreme step of excommunication; that the petitioner as the religious head of the denomination is invested with certain powers, including the right to excommunicate dissidents, which power is a matter of religion within the meaning of article 26(b) of the Constitution that the impugned Act, insofar as it takes away the power to enforce religious discipline and thus compels the denomination to accept dissidents as having full rights as a member of the community, including the right to use the properties and funds of the community dedicated to religious use, violates the fundamental rights of the petitioner guaranteed under article 26.
In this connection, reliance was placed on the decision of this Court in The Commissioner, Hindu Religious Endowments, Madras vs Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (1), which, it is contended, has laid down that the guarantee under the Constitution not only protects the freedom of opinion, but also acts done in pursuance of such religious opinion, and that it is the denomination itself which has a right to determine what are essential parts of its religion, as protected by the provisions of articles 25 and 26 of the Constitution.
It was further contended that the right to worship in the mosque belonging to the community and of burial in the graveyard dedicated to the community were religious rights which could not be enjoyed by a person who had been rightly excommunicated.
Insofar as the Act took away the right of the petitioner as the head of the community to excommunicate a particular member of the community and thus to deprive him of the use of the funds and property belonging to the commu 509 nity for religious purposes, had the effect of depriving the petitioner of his right as the religious head to regulate the right to the use of funds and property dedicated to religious uses of the community.
It has also been contended that religious reform, if that is the intention of the impugned Act, is outside the ambit of article 25(2) (b) of the Constitution.
The learned Attorney General for the respondent contended on the other hand, that the right to excommunicate, which has been rendered invalid by the impugned Act, was not a matter of religion within the meaning of article 26(b) of the Constitution; that what the Act really intended was to put a stop to the practice indulged in by a caste or a denomination to deprive its members of their civil rights as such members, as distinguished from matters of religion, which were within the protection of article 25 and 26.
Alternatively, it was also argued that even assuming that excommunication was concerned with matters of religion, the Act would not be void because it was a matter of reform in the interest of public welfare.
It was also argued that there was no evidence on the record to show, that excommunication was an essential matter of religion.
The right to worship at a particular place or the right of burial in a particular burial ground were questions of civil nature, a dispute in respect of which was within the cognizance of the Civil Courts.
The legislation in question, in its real aspects, was a matter of social welfare and social reform and not within the prohibitions of article 25(1) or article 26.
Excommunication involving deprivation of rights of worship or burial and the like were not matters of religion within the meaning of article 26(b), and finally, article 26(b) was controlled by article 25(2) (b) of the Constitution, and, therefore, even if excommunication touched certain religious matters, the Act, insofar as it had abolished it, was in consonance with modern notions of human dignity 510 and individual liberty of action even in matters of religious opinion and faith and practice.
Shri Shroff, appearing for the intervener, attempted to reopen the question whether the petitioner as Dai ul Mutlaq, assuming that he had been properly elected as such, had the power to excommunicate, in spite of the decision of their Lordships of the Judicial Committee of the Privy Council in Hasan Ali vs Mansoor Ali (1).
He also supported the provisions of the impugned Act on the ground that they were in furtherance of public order.
As we are not here directly concerned with the question whether or not the petitioner as the head of the religious community had the power to excommunicate, we did not hear Mr. Shroff at any length with reference to that question.
We shall proceed to determine the controversy in this case on the assumption that the petitioner had that power.
We are only directly concerned with the questions whether the provisions of the Act, insofar as they have rendered invalid the practice of excommunication, are unconstitutional as infringing article 26(b), and enacted by a legislature which was not competent to do so, as contended on behalf of the petitioner.
We will, therefore, confine our attention to those questions.
Keeping in view the limited scope of the controversy, we have first to determine the ambit and effect of the impugned Act.
The Bombay Prevention of Excommunication Act (Bombay Act XLII of 1949) is an Act to prohibit excommunication in the province of Bombay.
Its preamble, which shortly states the background of the legislation, is in these terms: "Whereas it has come to the notice of Government that the practice prevailing in certain communities of excommunicating its members is often followed in a manner which results in the deprivation of legitimate rights and privileges of its members; 511 And whereas in keeping with the spirit of changing times and in the public interest it is expedient to stop the practice; it is hereby enacted is follows".
The definition of "Community" as given in section 2(a) would include the Dawoodi Bohra community, because admittedly its members are knit together by reason of certain common religious doctrines.
and admittedly its members belong to the same religion or religious creed of a section of the Shia community of Muslims.
The term 'community" includes a caste or a sub caste also.
"Excommunication" has been defined by section 2 (b) as meaning "the expulsion of a person from any community of which he is member depriving him of rights and privileges which are legally enforceable by a suit of civil nature. ", and the explanation to the definition makes it clear that the rights and privileges within the meaning of the definition include the right to office or property or to worship in any religious place or a right of burial or cremation, notwithstanding the fact that the determination of such right depends entirely on the decision of the question as to any religious rites or ceremonies or rule or usage of a community.
By section 3, excommunication of a member of a community has been declared to be invalid and of no effect, notwithstanding any law, custom or usage to the contrary.
Any act of excommunication, or any act in furtherance of excommunication, of any member of a community has been made a penal offence liable to a punishment, on conviction, of fine which may extend to one thousand rupees.
The explanation has made it clear that any person who has voted in favour of a decision of excommunication at a meeting of a body or an association of a particular denomination is deemed to have committed the offence made punishable by section 4, as aforesaid.
Sections 5 and 6 lay down the procedure for the trial of an offence under the Act, the limit of time 512 within which the prosecution must be launched and the necessity of previous sanction of the authority indicated therein.
These, in short, are the provisions of the impugned Act.
It will be noticed that the Act is a culmination of the history of social reform which began more than a century ago with the enactment of section 9 of Regulation VII of 1832 of the Bengal Code, which provided, inter alia, that the laws of Hindus and Muslims shall not be permitted to operate to deprive the parties of any property to which, but for the operation of such laws, they would have been entitled.
Those provisions were subsequently incorporated in the India Act (XXI of 1850) known as the Caste Disabilities Removal Act which provided that a person shall not be deprived of his rights or property by reason of his or her renouncing or exclusion from the communion of any religion or being deprived of caste, and that any such forfeiture shall not be enforced as the law in the Courts.
The impugned Act, thus, has given full effect to modern notions of individual freedom to choose one 's way of life and to do away with all those undue and outmoded interferences with liberty of conscience, faith and belief.
It is also aimed at ensuring human dignity and removing all those restrictions which prevent a person from living his own life so long as he did not interfere with similar rights of others.
The legislature had to take the logical final step of creating a new offence by laying down that nobody had the right to deprive others of their civil rights simply because the latter did not conform to a particular pattern of conduct.
The Act, in substance, has added a new offence to the penal law of the country by penalising any action which has the effect of depriving a person of his human dignity and rights appurtenant thereto.
It also adds to the provisions of the Criminal Procedure Code and has insisted upon the previous sanction of the prescribed 513 authority as a condition precedent to launching a prosecution for an alleged offence against the provisions of the Act.
In my opinion, therefore, the enactment, in pith and substance, would come within Entries 1 & 2 of List III of the Concurrent Legislative List of the Constitution Act of 1935.
It is true that "excommunication" does not, in terms, figure as one of the entries in any one of the three lists.
The legislative competence of the Bombay Legislature to enact the Act has not been seriously challenged before us, and, therefore, no particular argument was addressed to us to show that the legislation in question could not be within the purview of Entries 1 & 2 of List III aforesaid.
What was seriously challenged before us was the constitutionality of the Act, in the light of the Constitution with particular reference to articles 25 & 26, and I shall presently deal with that aspect of the controversy.
But before I do that, it is convenient to set out the background of the litigation culminating in the present proceedings.
The first reported case in relation to some aspects of Shia Imami Ismailis is that of the Advocate General ex relation Dave Muhammad vs Muhammad vs Husen Huseni (1).
That was a suit commenced before the coming into existence of the Bombay High Court, on the Equity Side of the late Supreme Court, instituted by an information and bill, filed by the relators and plaintiffs, representing a minority of the Khoja community, against the defendants representing the majority of that community.
The prayer in the action was that an account be taken of all property belonging to or held in trust for the Khoja community of Bombay in the hands of the treasurer and the accountant, respectively called Mukhi and Kamaria, and other cognate reliefs not relevant to the present controversy.
In that case, which was heard on the Original side by Arnould J., judgment was delivered in November 1866, after a 514 prolonged hearing.
In that case, the learned Judge went into a detailed history of the several sects amongst Muslims, including the Shia Imami Ismailis, with particular reference to the Aga Khan and his relation with the Jamat of the Khojas of Bombay.
In that case it was laid down that there was no public property impressed with a trust, either express or implied, for the benefit of the whole Khoja community and that Aga Khan, as the spiritual head of the Khojas was entitled to determine on religious grounds who shall or shall not remain members of the Khoja community.
In that case, the learned Judge, with reference to authoritative texts, went into the detailed history of the two sects of the Sunnis and Shias.
He discussed the origin of the Ismailis as an offshoot of the Shias, and traced the hereditary succession of the unrevealed Imams in unbroken line down to Agha Khan.
Except for its historical aspect, the case does not deal with any matter relevant to the present controversy.
The next reported case which was brought to our notice is the case of the Advocate General of Bombay vs Yusufalli Ebrahim (1).
That was a case directly in relation to the Dawoodi Bohra community, with which we are concerned in this case.
In that case, there was a dispute as regards a mosque and a tomb, and was heard by Marten J., on the Original side in 1921.
We are not concerned with the details of the controversy in that case.
But the learned Judge has noticed the history of this community, with particular reference to the position of the Dai ul Mutlaq, and how the differences between the majority of the community and the minority arose on the question of the regularity of the succession of the 47th Dai in 1840.
The learned Judge has pointed out that the powers of the Dai are at least thrice delegated, 515 namely, by God to Prophet Mohammad, by the latter to the Imam, and by the Imam to the Dai ul Mutlaq.
The more directly in point is the litigation which was concluded by the judgment of their Lordships of the Judicial Committee of the privy Council in the case of Hasanali vs Mansoorali (1).
In that case, the powers of the Dai ul Mutlaq to excommunicate were directly in controversy.
The petitioner was the first defendant in that action, which had been commenced in October, 1925, and was decided by the judgment of the Subordinate Judge of Burhanpur, dated January 2, 1931.
That decision was reversed by the Judicial Commissioner of Central Provinces & Berar (later the High Court at Nagpur) by his judgment dated October 25, 1934.
That judgment was taken on appeal to the Privy Council and the judgment of the Privy Council very succinctly traces the history of the Dawoodi Bohra community until we come to the 51st Dai, who was the first defendant in that action, and is the petitioner before us.
In that case, certain orders of excommunication were under challenge.
As a result of those orders of excommunication, the plaintiffs had been obstructed in, and prevented from, entering the property in suit for the purposes of worship, burial and resting in the rest house.
In that case, their Lordships did not uphold the claim of the Dai ul Mutlaq that he had unrestricted power of excommunication, though they found that he could be regarded as Dai ul Mutlaq.
As regards the power to excommunicate, it was held that though the power was there, it was not absolute, arbitrary and untrammelled; and then their Lordships laid down the conditions for the valid exercise of that power.
The effect of a valid excommunication in their Lordships ' view, was exclusion from the exercise of religious rights in places under the trusteeship of the head of the community, because the Dai was not only a religious 516 leader but also a trustee of the property of the community.
After examining the evidence in that case, their Lordships held that the persons alleged to have been excommunicated had not been validly expelled from the community.
The judgment of the Privy Council was given on December 1, 1947.
Within two years of that judgment the impugned Act was passed, and soon after a suit on the Original side of the Bombay High Court was commenced (being suit No. 1262 of 1949).
That was a suit by a member of the Dawoodi Bohra community, who had been excommunicated by the petitioner, functioning as the Dai ul Mutlaq, by two orders of excommunication, one passed in 1934 and the other in 1948, soon after the judgment of the Privy Council.
The suit was, inter alia, for a declaration that the orders of excommunication were void in view of the Act.
A number of issues were raised at the trial, which was heard by Shah J. Two questions, by way of preliminary issues, with which we are immediately concerned in the present proceedings, were raised before the learned Judge of the Bombay High Court, namely: (1) Was the Act within the legislative competence of the Legislature of the Province of Bombay ? (2) Whether after the coming into force of the Constitution, the Act was invalid in view of articles 25 and 26 of the Constitution? The learned Judge, after an elaborate examination of the Constitution Act of 1935, came to the conclusion that the Bombay Legislature was competent to enact the Act, and that it was not unconstitutional even after the coming into effect of the Constitution because it was not inconsistent with the provisions of articles 25 and 26.
An appeal was taken to the Court of Appeal, which was heard by Chagla C. J. and Bhagwati J.
The Court of 517 Appeal upheld the decision of Shah J.
The matter was brought up on appeal to this Court in Civil Appeal 99 of 1954.
During the pendency of the appeal in this Court, the plaintiff died and it was held, without deciding the merits of the controversy, that the suit giving rise to the appeal in this Court had abated by reason of the fact that the plaintiff had died and the cause of action being personal to him was also dead.
The Order of this Court dismissing the appeal as not maintainable is dated November 27, 1957.
This Writ Petition was filed on August 18, 1958 by the petitioner as the 51st Dai ul Mutlaq and head of the Dawoodi Bohra community, for a declaration that the Act was void so far as the petitioner and the Dawoodi Bohra community were concerned, and that a writ of mandamus or a writ in the nature of mandamus or other appropriate write direction or order under article 32 of the Constitution be issued restraining the respondent, its officers, servants and agents from enforcing the provisions of the Act, against the petitioner or the Dawoodi Bohra community, or in any manner interfering with the right of the petitioner, as the religious leader and Dai ul Mutlaq of the Dawoodi Bohra community, to excommunicate any member of the community for an offence which the petitioner, in the exercise of his religious sense as the religious head of the community may determine as justifying such as expulsion.
It is not disputed that the petitioner is the head of the Dawoodi Bohra community or that the Dawoodi Bohra community is a religious denomination within the meaning of article 26 of the Constitution.
It is not even disputed by the State, the only respondent in the case, that the petitioner as the head of the community had the right, as found by the Privy Council in the case of Hasanali vs Mansoorali(1), to excommunicate a particular member of the community for reasons and in the 518 manner indicated in the judgment of their Lordships of the Privy Council.
But what is contended is that, as a result of the enactment in question, excommunication has been completely banned by the Legislature, which was competent to do so, and that the ban in no way infringes articles 25 and 26 of the Constitution.
I have already indicated my considered opinion that the Bombay Legislature was competent to enact the Act.
It now remains to consider the main point in controversy, which was, as a matter of fact, the only point urged in support of the petition, namely, that the Act is void in so far as it is repugnant to the guaranteed rights under articles 25 and 26 of the Constitution.
article 25 guarantees the right to every person, whether citizen or non citizen, the freedom of conscience and the right freely to profess, practise and propagate religion.
But this guaranteed right is not an absolute one.
It is subject to (1) public order, morality and health, (2) the other provisions of Part III of the Constitution, (3) any existing law regulating or restricting an economic, financial, political or other secular activity which may be associated with religious practice, (4) a law providing for social welfare and reform, and (5) any law that may be made by the State regulating or restricting the activities aforesaid or providing for social welfare and reform.
I have omitted reference to the provisions of Explanations I and II and other parts of article 25 which are not material to our present purpose.
It is noteworthy that the right guaranteed by article 25 is an individual right as distinguished from the right of an organised body like a religious denomination or any section thereof, dealt with by article 26.
Hence, every member of the community has the right, so long as he does not in any way interfere with the corresponding rights of others, to profess, practise and propagate his religion, and everyone is guaranteed his freedom of conscience.
The 519 question naturally arises: Can an individual be compelled to have a particular belief on pain of a penalty, like excommunication? One is entitled to believe or not to believe a particular tenet or to follow or not to follow a particular practice in the matters of religion.
No one can, therefore, be compelled, against his own judgment and belief, to hold any particular creed or follow a set of religious practices.
The Constitution has left every person free in the matter of his relation to his Creator, if he believes in one.
It is, thus, clear that a person is left completely free to worship God according to the dictates of his conscience, and that his right to worship as he pleased is unfettered so long as it does not come into conflict with any restraints, as aforesaid, imposed by the State in the interest of public order, etc.
A person is not liable to answer for the verity of his religious views, and he cannot be questioned as to his religious beliefs, by the State or by any other person.
Thus, though his religious beliefs are entirely his own and his freedom to hold those beliefs is absolute, he has not the absolute right to act in any way he pleased in exercise of his religious beliefs.
He has been guaranteed the right to practise and propagate his religion subject to the limitations aforesaid.
His right to practise his religion must also be subject to the criminal laws of the country, validly passed with reference to actions which the Legislature has declared to be of a penal character.
Laws made by a competent legislature in the interest of public order and the like, restricting religious practices, would come within the regulating power of the State.
For example, there may be religious practices of sacrifice of human beings, or sacrifice of animals in a way deleterious to the well being of the community at large.
It is open to the State to intervene, by legislation, to restrict or to regulate to the extent of completely stopping such deleterious practices.
It must, therefore, be held 520 that though the freedom of conscience is guaranteed to every individual so that he may hold any beliefs he likes, his actions in pursuance of those beliefs may be liable to restrictions in the interest of the community at large, as may be determined by common consent, that is to say, by a competent legislature.
It was on such humanitarian grounds, and for the purpose of social reform, that so called religious practices like immolating a widow at the pyre of her deceased husband, or of dedicating a virgin girl of tender years to a god to function as a devadasi, or of ostracising a person from all social contacts and religious communion on account of his having eaten forbidden food or taboo, were stopped by legislation.
But it has been contended on behalf of the petitioner that the right guaranteed, under article 25, to freedom of conscience and the freedom to profess, practise and propagate religion is available not only to an individual but to the community at large, acting through its religious head; the petitioner, as such a religious head has, therefore, the right to excommunicate, according to the tenets of his religion, any person who goes against the beliefs and practice connected with those beliefs.
The right of the petitioner to excommunicate is, therefore, a fundamental right, which cannot be affected by the impugned Act.
In this connection, reference was made to the following observations in the leading judgment of this Court, bearing upon the interpretations of articles 25 and 26 (vide The Commissioner, Hindu Religious Endowments, Madras vs Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt) (1): "A religion may not only lay down a code of ethical rules for its followers to accept, it might prescribe rituals and observances, ceremonies and modes of worship which are regarded as integral parts of religion, and 521 these forms and observances might extent even to matters of food and dress.
The guarantee under our Constitution not only protects the freedom of religious opinion but it protects also acts done in pursuance of a religion and this is made clear by the use of the expression 'practice of religion ' in Article 25.
" On the strength of those observations, it is contended on behalf of the petitioner that this practice of ex communication is a part of the religion of the community with which we are concerned in the present controversy, article 26, in no uncertain terms, has guaranteed the right to every religious denomination or a section thereof "to manage its own affairs in matters of religion" (article 26(b)).
Now what are matters of religion and what are not is not an easy question to decide.
It must vary in each individual case according to the tenets of the religious denomination concerned.
The expression "matters of religion" in Art 26(b) and "activities associated with religious practice" do not cover exactly the same ground.
What are exactly matters of religion are completely outside State interference, subject of course to public order, morality and health.
But activities associated with religious practices may have many ramifications and varieties economic, financial, political and other as recognised by article 25(2)(a).
Such activities, as are contemplated by the clause aforesaid cover a field much wider than that covered by either article 25(1) or article 26(b).
Those provisions have, therefore, to be so construed as to create no conflict between them.
We have, therefore, to classify practices into such as are essentially and purely of a religious character, and those which are not essentially such.
But it has been contended on behalf of the petitioner that it is for the religious denomination itself to determine what are essentially reli 522 gious practices and what are not.
In this connection, reliance is placed on the following observations of this Court in the leading case, aforesaid, of The Commissioner, Hindu Religious Endowments, Madras vs Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (1): "As we have already indicated, freedom of religion in our Constitution is not confined to religious beliefs only; it extends to religious practices as well subject to the restrictions which the Constitution itself has laid down.
Under article 26(b), therefore, a religious denomination or organisation enjoys complete autonomy in the matter of deciding as to what rites and ceremonies are essential according to the tenets of the religion they hold and no outside authority has any jurisdiction to interfere with their decision in such matters.
" It should be noted that the complete autonomy which a religious denomination enjoys under article 26(b) is in 'matters of religion ', which has been interpreted as including rites and ceremonies which are essential according to the tenets of the religion.
Now, article 26(b) itself would seem to indicate that a religious denomination has to deal not only with matters of religion, but other matters connected with religion, like laying down rules and regulations for the conduct of its members and the penalties attached to infringement of those rules, managing property owned and possessed by the religious community, etc., etc.
We have therefore, to draw a line of demarcation between practices consisting of rites and ceremonies connected with the particular kind of worship, which is the tenet of the religious community, and practices in other matters which may touch the religious institutions at several points, but which are not intimately concerned with rites and ceremonies the performance of which is an 523 essential part of the religion.
In this connection, the following observations of this Court in The Durgah Committee, Ajmer vs Syed Hussain Ali (1) which were made with reference to the earlier decisions of this Court in The Commissioner, Hindu Religious Endowments, Madras vs Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (2) and in Sri Venkataramana Devaru vs The State of Mysore (3), that "matters of religion" in article 26(b) include even practices which are regarded by the community as part of its religion, may be noted: "Whilst we are dealing with this point it may not be out of place incidentally to strike a note of caution and observe that in order that the practices in question should be treated as a part of religion they must be regarded by the said religion as its essential and integral part; otherwise even purely secular practices which are not an essential or an integral part of religion are apt to be clothed with a religious form and may make a claim for being treated as religious practices within the meaning of article 26.
Similarly, even practices though religious may have sprung from merely superstitious beliefs and may in that sense be extraneous and unessential accretions to religion itself.
Unless such practices are found to constitute an essential and integral part of a religion their claim for the protection under article 26 may have to be carefully scrutinised; in other words, the protection must be confined to such religious practices as are an essential and an integral part of it and no other.
" But then it is contended that a religious denomination is a quasi personality, which has to ensure its continuity and has, therefore, to lay down rules for observance by members of its community, and, in order to maintain proper and strict 524 discipline, has to lay down sanctions; the right to excommunicate a recusant member is an illustration of that sanction.
In this connection, it was contended that the Privy Council had laid down in the case of Hasanali vs Mansoorali (1) that the power of excommunication was a religious power exercisable by the Dai.
In my opinion, those passages in the judgment of the Privy Council do not establish the proposition that the right which the Privy Council found inhered in the Dai was a purely religious right.
That it was not a purely religious right becomes clear from the judgment of the Judicial Committee of the Privy Council, which laid down the appropriate procedure and the manner of expulsion, which had to be according to justice, equity and good conscience, and that it was justiciable.
A matter which is purely religious could not come within the purview of the Courts.
That conclusion is further strengthened by the consideration that the effect of the excommunication or expulsion from the community is that the expelled person is excluded from the exercise of rights in connection not only with places of worship but also from burying the dead in the community burial ground and other rights to property belonging to the community, which are all disputes of a civil nature and are not purely religious matters.
In the case before their Lordships of the Privy Council, their Lordships enquired into the regularity of the proceedings resulting in the excommunication challenged in that case, and they held that the plaintiff had not been validly expelled.
It cannot, therefore, be asserted that the Privy Council held the matter of excommunication as a purely religious one.
If it were so, the Courts would be out of the controversy.
The same argument was advanced in another form by contending that excommunication is not a social question and that, therefore, article 25(2)(b) could not be invoked in aid of holding the Act to be constitutional.
In this connection, it has to be 525 borne in mind that the Dai ul Mutlaq is not only the head of the religious community but also the trustee of the property of the community in which the community as a whole is interested.
Even a theological head has got to perform acts which are not wholly religious but may be said to be quasi religious or matters which are connected with religious practices, though not purely religious.
Actions of the Dai ul Mutlaq in the purely religious aspect are not a concern of the courts, but his actions touching the civil rights of the members of the community are justiciable and not outside the pale of interference by the legislature or the judiciary.
I am not called upon to decide, nor am I competent to do so, as to what are the religious matters in which the Dai ul Mutlaq functions according to his religious sense.
I am only concerned with the civil aspect of the controversy relating to the constitutionality of the Act, and I have to determine only that controversy.
It has further been argued on behalf of the petitioner that an excommunicated person has not the right to say his prayers in the mosque or to bury his dead in the community burial ground or to the use of other communal property.
Those may be the result of excommunication, but I am concerned with the question whether the Legislature was competent and constitutionally justified in enacting the law declaring excommunication to be void.
As already indicated, I am not concerned in this case with the purely religious aspect of excommunication.
I am only concerned with the civil rights of the members of the community, which rights they will continue to enjoy as such members if excommunication was held to be invalid in accordance with the provision of the Act.
Hence, though the Act may have its repercussions on the religious aspect of excommunication, in so far as it protects the civil rights of the members of the community 526 it has not gone beyond the provisions of article 25(2)(b) of the constitution.
Then it is argued that the guaranteed right of a religious denomination to manage its own affairs in matters of religion (article 26(b) is subject only to public order, morality and health and is not subject to legislation contemplated by article 25(2)(b).
This very argument was advanced in the case of Shri Venkataramana Devaru vs The State of Mysore(1).
At page 916 this argument has been specifically dealt with and negatived.
This Court observed as follows: "The answer to this contention is that it is impossible to read any such limitation into the language of Art.25(2)(b).
It applies in terms to all religious institutions of a public character without qualification or reserve.
As already stated, public institutions would mean not merely temples dedicated to the public as a whole but also those founded for the benefit of sections thereof, and denominational temples would be comprised therein.
The language of the Article being plain and unambiguous, it is not open to us to read into it limitations which are not there, based on a priori reasoning as to the probable intention of the Legislature.
Such intention can be gathered only from the words actually used in the statute; and in a Court of law, what is unexpressed has the same value as what is unintended.
We must therefore hold that denominational institutions are within article 25(2)(b).
" In that case also, as in the present case, reference was made to the earlier decision of this Court in 527 The Commissioner, Hindu Religious endowments, Madras vs Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (1), but the latter decision had explained the legal position with reference to the earlier decision, and after examining the arguments for and against the proposition at pages 916 918, it has been distinctly laid down that article 26 (b) must be read subject to article 25 (2) (b) of the Constitution.
It has further been contended that a person who has been excommunicated as a result of his non conformity to religious practices is not entitled to use the communal mosque or the communal burial ground or other communal property, thus showing that for all practical purposes he was no more to be treated as a member of the community, and is thus an outcast.
Another result of excommunication is that no other member of the community can have any contacts, social or religious, with the person who has been excommunicated.
All that is true.
But the Act is intended to do away with all that mischief of treating a human being as a pariah, and of depriving him of his human dignity and of his sight to follow the dictates of his own conscience.
The Act is, thus, aimed at fulfilment of the individual liberty of conscience guaranteed by article 25 (1) of the Constitution, and not in derogation of it.
In so far as the Act has any repercussions on the right of the petitioner, as trustee of communal property, to deal with such property, the Act could come under the protection of article 26 (d), in the sense that his right to administer the property is not questioned, but he has to administer the property in accordance with law.
The law, in the present instance, tells the petitioner not to withhold the civil rights of a member of the community to a communal property.
But as against this it is argued on behalf of the petitioner that his right to excommunicate is so bound up with religion that it is protected by cl.
(b) of article 26, and is thus completely out of the 528 regulation of law, in accordance with the provisions of cl.
(d) of that Article.
But, I am not satisfied on the pleadings and on the evidence placed before us that the right of excommunication is a purely religious matter.
As already pointed out, the indications are all to the contrary, particularly the judgment to the Privy Council in the case of Hasanali vs Mansoorali (1) on which great reliance was placed on behalf of the petitioner.
On the social aspect of excommunication, one is inclined to think that the position of an excommunicated person becomes that of an untouchable in his community, and if that is so, the Act in declaring such practices to be void has only carried out the strict injunction of article 17 of the Constitution, by which untouchability has been abolished and its practice in any form forbidden.
The Article further provides that the enforcement of any disability arising out of untouchability shall be an offence punishable in accordance with law.
The Act, in this sense, is its logical corollary and must, therefore, be upheld.
In my opinion, it has not been established that the Act has been passed by a legislature which was not competent to legislate on the subject, or that it infringes any of the provisions of the Constitution.
This petition must, therefore, fail.
DAS GUPTA, J.
In our opinion this petition should succeed.
The petitioner is the head of the Dawoodi Bohras who form one of the several sub sects of the Shia sect of Musalmans.
Dawoodi Bohras believe that, since the 21st Imam went to seclusion, the rights, power and authority of the Imam have been rightfully exercised by the Dai ul Imam as the vice regent of the Imam in seclusion.
One of such rights is the exercise of disciplinary powers including the right to excommunicate any 529 member of the Dawoodi Bohra community.
The existence of such a right in the Dai ul Mutlaq who is for the sake of convenience often mentioned as the Dai was questioned before the courts in a case which went up to the Privy Council.
But since the decision of the Privy Council in that case, viz., Hasanali vs Mansoorali (1) that question may be taken to have been finally settled, and it is no longer open to dispute that the Dai, as the head of the Dawoodi Bohra community has the right to excommunicate any member of the community.
The claim of the present petitioner to be the 51st Dai ul Mutlaq of the community was also upheld in that case and is no longer in dispute.
The Privy Council had also to consider in that case the question whether this power to excommunicate could be exercised by the Dai in any manner he liked and held after consideration of the previous cases of excommunication and also a document composed about 1200 A.D. that normally members of the community can be expelled "only at a meeting of the Jamat after being given due warning of the fault complained of and an opportunity of amendment, and after a public statement of the grounds of expulsion.
" Speaking about the effect of excommunication their Lordships said: "Excommunication. . necessarily involve exclusion from the exercise of religious rights in places under the trusteeship of the head of the community in which religious exercises are performed.
" The present petitioner, it may be mentioned, was a party to that litigation.
This decision was given on December, 1, 1947; shortly after that, the Bombay Legislature it may be mentioned that there is a large concentration of Dawoodi Bohras in the State of Bombay stepped in to prevent, as mentioned in the preamble, the practice of excommunication "which 530 results in the deprivation of legitimate rights and privileges of" members of certain religious communities and enacted the Bombay Act No. XLII of 1949.
It is a short Act of six sections.
Section 3 the main operative section invalidates all excommunication of members of any religious community.
Excommunication is defined in section 2 to mean "the expulsion of a person from any community of which he is a member depriving him of rights and privileges which are legally enforceable by a suit of a civil nature by him or on his behalf as such member".
The explanation to the definition to this section makes it clear that a right to office or property or to worship in any religious place or a right to burial or cremation is included as a right legally enforceable by suit even though the determination of such right may depend entirely on the decision of the question as to any religious rites or ceremonies or rule or usage of a community.
Section 4 makes a person who does any act which amounts to excommunication or is in furtherance of the excommunication liable to punishment which may extend to one thousand rupees.
Faced with the position that the legislation wholly destroys his right of excommunicating any member of the Dawoodi Bohra community, the Dai has presented this petition under article 32 of the Constitution.
He contends that the Act violates the fundamental right of the Dawoodi Bohras, including himself, freely to practise religion according to their own faith and practice a right guaranteed by article 25 of the Constitution, and further that it violates the right of the Dawoodi Bohra community to manage its own affairs in matters of religion guaranteed by article 26.
Therefore, says he, the Act is void and prays for a declaration that the Act is void and the 531 issue of an appropriate writ restraining the respondent, the State of Bombay, its officers, servants and agents from enforcing the provisions of the Act against the petitioner and/or any other member of the Dawoodi Bohra community.
It may be mentioned that in the petition the legislative competence of the Bombay legislature to enact the Bombay Prevention of excommunication 1949 was also challenged.
This, however was not pressed at the time of the hearing.
The respondent contends that neither the right guaranteed under article 25 nor that under article 26(b) is contravened by the impugned Act.
Briefly stated, the respondent 's case is that the right and privilege of the petitioner as Dai ul Mutlaq to regulate the exercise of religious rights do not include the right to excommunicate any person so as to deprive him of his civil rights and privileges.
It was denied that the petitioner 's power to excommunicate was an essential part of the religion of the Dawoodi Bohra community and that the right has its foundation in religion and religious doctrines, tenets and faith of the Dawoodi Bohra community.
It was also denied that the right to excommunicate is the religious practice and it was further pleaded that assuming that it was a religious practice, it was certainly not a part of religion of the Dawoodi Bohra community.
The same points were urged on behalf of the intervener, except that the learned counsel for the intervener wanted to reopen the question whether the petitioner as the head of the Dawoodi Bohra community had the power to excommunicate.
As already stated, however, this question is hardly open to dispute in the face of the decision of the Privy Council in Hasanali vs Mansoorali (1) and the point was not pressed.
The content of articles 25 and 26 of the Constitution came up for consideration before this Court 532 in the Commissioner, Hindu Religious Endowments Madras vs Sri Lakshmindra Thirtha Swamiar of Sri Shirur Matt (1); Mahant Jagannath Ramanuj Das vs The State of Orissa (2); Sri Venkatamana Devaru vs The State of Mysore (3); Durgah Committee, Ajmer vs Syed Hussain Ali (4) and several other cases and the main principles underlying these provisions have by these decisions been placed beyond controversy.
The first is that the protection of these articles is not limited to matters of doctrine or belief they extend also to acts done in pursuance of religion and therefore contain a guarantee for rituals and observances, ceremonies and modes of worship which are integral parts of religion.
The second is that what constitutes an essential part of a religious or religious practice has to be decided by the courts with reference to the doctrine of a particular religion and include practices which are regarded by the community as a part of its religion.
Before however we can give a proper answer to the two questions raised, viz., (i) Has the impugned Act interfered with a right freely to practise religion and (ii) Has it interfered with the right of the Dawoodi Bohra Community to manage its own affairs in matters of religion; it is necessary to examine first the place of excommunication in the life of a religious community.
Much valuable information about this is furnished by an article in the Encyclopaedia of the Social Sciences from the pen of Prof. Hazeltine.
"Excommunication", says Prof. Hazeltine, in one or another of the several different meanings of the term has always and in all civilizations been one of the principal means of maintaining discipline within religious organizations and hence of preserving and strengthening their solidarity.
" Druids in old Britain are said to have claimed the power to exclude offenders from sacrifice.
The early Chiristian Church exercised 533 this power very largely and expelled and excluded from the Christian association, those members who proved to be unworthy of its aims or infringed its rules of governance.
During the middle ages the Pope used this power frequently to secure the observance of what was considered the proper religious rights and practices of Christianity by excommunicating even the kings of some European countries when they introduced or tried to introduce different forms of divine worship.
The power was often used not perhaps always fairly and justly, as a weapon in the struggle for the principle that the Church was above the State.
Impartial historians have recognised, however, that many of the instances of excommunication were for the purpose of securing the adherence to the orthodox creed and doctrine of Christianity as pronounced by the Catholic Church.
(Vide The Catholic Encyclopedia, Vol.
V, articles on England and Excommunication).
Turning to the Canon law we find that excommunication may be inflicted as a punishment for a number of crimes, the most serious of these being, heresy, apostasy or schism.
Canon 1325, section 2 defines a heretic to be a man who while remaining nominally a Christian, pertinaciously denies or doubts any one of the truths which must be believed de fide divina et catholica; if he falls away entirely from the Christian faith, he is an apostate; finally if he rejects the authority of the Supreme Pontiff or refuses communion with the members of the Church who are subject to him, he is a schismatic.
(Vide Canon Law by Bouscaren and Ellis).
Among the Muslims also the right of excommunication appears to have been practised from the earliest times.
The Prophet and the Imam, had this right; and it is not disputed that the Dais have also in the past exercised it on a number of 534 occasions.
There can be little doubt that heresy or apostasy was a crime for which excommunication was in force among the Dawoodi Bohras also.
It may be pointed out in this connection that excommunication in the case of Hasanali vs Mansoorali (1) which was upheld by the Privy Council) was based on the failure to comply with the tenets and traditions of the Dawoodi Bohra community and certain other faults.
According to the petitioner it is "an integral part of the religion and religious faith and belief of the Dawoodi Bohra community" that excommunication should be pronounced by him in suitable cases.
It was urged that even if this right to excommunicate is considered to be a religious practice as distinct from religious faith such religious practice is also a part of the religion of the Dawoodi Bohra community.
It does appear to be a fact that unquestioning faith in the Dai as the head of community is part of the creed of the Dawoodi Bohras.
It is unnecessary to trace the historical reason for this extraordinary position of the Dai as it does not appear to be seriously disputed that the Dai is considered to be the vice regent of Imam so long as the rightful Imam continues in seclusion.
Mention must be made in this connection of the Mishak which every Dawoodi Bohra takes at the time of his initiation, This includes among other things, an oath of unquestioning faith in and loyalty to the Dai.
It is urged therefore that faith in the existence of the disciplinary power of the Dai including his power to excommunicate forms one of the religious tenets of this community.
The argument that article 25 has been contravened by the impugned Act is based mainly on this contention and the further contention that in any case excommunication is a religious practice in this community.
As regards article 26(b) the argument is that excommunication among the 535 Dawoodi Bohras forms such an integral part of the management of the community by the religious head that interference with that right cannot but amount to an interference with the right of the community to the manage its own affairs in matters of religion.
Let us consider first whether the impugned Act contravenes the provisions of article 26 (b).
It is unnecessary for the purpose of the present case to enter into the difficult question whether every case of excommunication by the Dai on whatever grounds inflicted is a matter of religion.
What appears however to be clear is that where an excommunication is itself based on religious grounds such as lapse from the orthodox religious creed or doctrine (similar to what is considered heresy, apostasy or schism under the Canon Law) or breach of some practice considered as an essential part of the religion by the Dawoodi Bohras in general, excommunication cannot but be held to be for the purpose of maintaining the strength of the religion.
It necessarily follows that the exercise of this power of excommunication on religious grounds forms part of the management by the community, through its religious head, "of its own affairs in matters of religion.
" The impugned Act makes even such excommunications invalid and takes away the power of the Dai as the head of the community to excommunicate even on religious grounds.
It therefore, clearly interferes with the right of the Dawoodi Bohra community under cl.
(b) of article 26 of the Constitution.
That excommunication of a member of a community will affect many of his civil rights is undoubtedly true.
This particular religious denomination is possessed of properties and the necessary consequence of excommunication will be that the excommunicated member will lose his rights of enjoyment of such property.
It might be thought undesirable that the head of a religious community 536 would have the power to take away in this manner the civil rights of any person.
The right given under article 26 (b) has not however been made subject to preservation of civil rights.
The express limitation in article 26 itself is that this right under the several clauses of the article will exist subject to public order, morality and health.
It has been held by this Court in Sri Venkataramana Devaru vs The State of Mysore (1) that the right under article 26(b) is subject further to cl. 2 of article 25 of the Constitution.
We shall presently consider whether these limitations on the rights of a religious community to manage its own affairs in matters of religion can come to the help of the impugned Act.
It is clear however that apart from these limitations the Constitution has not imposed any limit on the right of a religious community to manage its own affairs in matters of religion.
The fact that civil rights of a person are affected by the exercise of this fundamental right under article 26(b) is therefore of no consequence.
Nor is it possible to say that excommunication is prejudicial to public order, morality and health.
Though there was a statement in paragraph 10 of the respondent 's counter affidavit that "the religious practice, which runs counter to the public order, morality and health must give way before the good of the people of the State", the learned Attorney General did not advance any argument in support of this plea.
It remains to consider whether the impugned Act comes within the saving provisions embodied in cl. 2 of article 25.
The clause is in these words: "Nothing in this Article shall affect the operation of any existing law or prevent the State from making any law 537 (a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice; (b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus." Quite clearly, the impugned Act cannot be regarded as a law regulating or restricting any economic, financial, political or other secular activity.
Indeed that was not even suggested on behalf of the respondent State.
It was faintly suggested however that the Act should be considered to be a law "providing for social welfare and reform.
" The mere fact that certain civil rights which might be lost by members of the Dawoodi Bohra community as a result of excommunication even though made on religious grounds and that the Act prevents such loss, does not offer sufficient basis for a conclusion that it is a law "providing for social welfare and reform.
" The barring of excommunication on grounds other than religious grounds, say on the breach of some obnoxious social rule or practice might be a measure of social reform and a law which bars such excommunication merely might conceivably come within the saving provisions of cl. 2(b) of article 25.
But barring of excommunication on religious grounds pure and simple, cannot however be considered to promote social welfare and reform and consequently the law in so far as it invalidates excommunication on religious grounds and takes away the Dai 's power to impose such excommunication cannot reasonably be considered to be a measure of social welfare and reform.
As the Act invalidates excommunication on any ground whatsoever, including religious grounds, it must be held to be in clear violation of the right of the Dawoodi Bohra community under article 26(b) of the Constitution.
538 It is unnecessary to consider the other attack on the basis of article 25 of the Constitution.
Our conclusion is that the Act is void being in violation of article 26 of the Constitution.
The contrary view taken by the Bombay High Court in Taher Saifuddin vs Tyebbhai Moosaji (1) is not correct.
We would, therefore, allow the petition, declare the Act to be void and direct the issue of a writ in the nature of mandamus on the respondent, the State of Bombay, not to enforce the provisions of the Act.
The petitioner will get his costs.
AYYANGAR, J. I agree that the petition should succeed and I generally concur in the reasoning of Das Gupta J., by which he has reached this conclusion.
In view, however, of the importance of the case I consider it proper to state in my own words the grounds for my concurrence.
It was not in dispute that the Dawoodi Bohras who form a sub sect of the Shia sect of Muslims is a "religious denomination" within the opening words of article 26 of the Constitution.
There are a few further matters which were not in controversy on the basis of which the contentions urged in support of the petition have to be viewed.
These might now be briefly stated: (1) It was the accepted tenet of the Dawoodi Bohra faith that God always had and still has a representative on earth through whom His commands are conveyed to His people.
That representative was the Imam.
The Dai was the representative of the Imam and conveyed God 's message to His people.
The powers of the Dai were approximated to those of the Imam.
When the Imam came out of seclusion, the powers of the Dai would cease.
The chain of intercession with the Almighty was as follows: The Dai the Imam 539 the Holy Prophet and the one God (See Per Marten J. in Advocate General of Bombay vs Yusufalli Ebrahim (1).
(2) The position and status of the petitioner as the Dai ul Mutlaq was not contested since the same had been upheld by the Privy council the decision reported as Hasanali vs Mansoorali (2).
(3) It was not in dispute that subject to certain limitations and to the observance of particular formalities which were pointed out by the Privy Council in the decision just referred to, that the Dai ul Mutlaq has the power of excommunication and indeed, as observed by Lord Porter in that judgment, "the right of excommunication by a Dai ul Mutlaq was not so strenuously contested as were the limits within which it is confined." (4) The Dai ul Mutlaq was not merely a religious leader the religious head of the denomination but was the trustee of the property of the community.
(5) The previous history of the community shows that excommunicated persons were deprived of the exercise of religious rights.
It was contended before the Privy Council that the effect of an excommunication was in the nature merely of social ostracism but this was rejected and it was held to have a larger effect as involving an exclusion from the right to the enjoyment of property dedicated for the benefit of the denomination and of worship in places of worship similarly dedicated or set apart.
The validity of Bombay Act 42 of 1949 (which I shall hereafter refer to as the impugned Act) has to be judged in the light of these admitted premises.
Articles 25 and 26, which are urged as violated by the impugned Act run: 540 "25.
(1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion.
(2) Nothing in this article shall affect operation of any existing law or prevent the State from making any law (a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice; (b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.
Explanation I. The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion.
Explanation II In sub clause (b) of clause (2), the reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jaina or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly.
Subject to public order, morality and health, every religious denomination or any section thereof shall have the right (a) to establish and maintain institutions for religious and charitable purposes; (b) to manage its own affairs in matters of religion; (c) to own and acquire movable and immovable property; and (d) to administer such property in accordance with law.
" 541 I would add that these Articles embody the principle of religious toleration that has been the characteristic feature of Indian civilization from the start of history.
the instances and periods when this feature was absent being merely temporary aberrations.
Besides, they serve to emphasize the secular nature of Indian Democracy which the founding fathers considered should be the very basis of the Constitution.
I now proceed to the details of the provisions of the impugned Act which are stated to infringe the rights guaranteed by these two Articles.
The preamble to the impugned Act recites: "Whereas it has come to the notice of Government that the practice prevailing in certain communities of excommunicating its members is often followed in a manner which results in the deprivation of legitimate rights and privileges of its members; And whereas in keeping with the spirit of changing times and in the public interest, it is expedient to stop the practice; it is hereby enacted as follows : " Section 3 is the operative provision which enacts: "3.
Notwithstanding anything contained in any law, custom or usage for the time being in force to the contrary, no excommunication of a member of any community shall be valid and shall be of any effect.
" Section 4 penalises any person who does "any act which amounts to or is in furtherance of the excommunication" and subjects him to criminal 542 proceedings as regards which provision is made in sections 5 and 6.
Section 2 contains two definitions: (1) of the word "community" which would include the religious denomination of Dawoodi Bohras, and (2) of "excommunication" as meaning: "the expulsion of a person from any community of which he is a member depriving him of rights and privileges which are legally enforceable by a suit of civil nature by him or on his behalf as such member; Explanation.
For the purposes of clause a right legally enforceable by a suit of civil nature shall include the right to office or property or to worship in any religious place or a right of burial or cremation, notwithstanding the fact that the determination of such right depends entirely on the decision of the question as to any religious rites or ceremonies or rule or usage of a community.
" The question to consider is whether a law which penalises excommunication by a religious denomination or by its head whether or not the excommunication be for non conformity to the basic essentials of the religion of that denomination and effects the nullification of such excommunication as regards the rights of the person excommunicated would or would not infringe the rights guaranteed by articles 25 and 26.
First as to article 25, as regards cl (1) it was not in dispute that the guarantee under it protected not merely freedom to entertain religious beliefs but also acts done in pursuance of that religion, this being made clear by the use of the expression 543 "practice of religion".
No doubt, the right to freedom of conscience and the right to profess, practise and propagate religion are all subject to "public order, morality or health and to the other provisions of this Part" but it was not suggested that (subject to an argument about the matter being a measure of social reform) the practice of excommunication offended public order, morality or health or any other part of the Constitution.
Here is a religious denomination within Art.26.
The Dai ul Mutlaq is its spiritual leader, the religious head of the denomination and in accordance with the tenets of that denomination he had invested in him the power to excommunicate dissidents.
Pausing here, it is necessary to examine the rational basis of the excommunication of persons who dissent from the fundamental tenets of a faith.
The identity of a religious denomination consists in the identity of its doctrines, creeds and tenets and these are intended to ensure the unity of the faith which its adherents profess and the identity of the religious views are the bonds of the union which binds them together as one community.
As Smith B. said in Dill vs Watson (1) in a passage quoted by Lord Halsbury in Free Church of Scotland vs Overtoun (2) "In the absence of conformity to essentials, the denomination would not be an entity cemented into solidity by harmonious uniformity of opinion, it would be a mere incongruous heap of, as it were, grains of sand, thrown together without being united, each of these intellectual and isolated grains differing from every other, and the whole forming a but nominally united while really unconnected mass; fraught with nothing but internal dissimilitude, and mutual and reciprocal contradiction and dissension.
" 544 A denomination within article 26 and persons who are members of that denomination are under in article 25 entitled to ensure the continuity of the denomination and such continuity is possible only may by maintaining the bond of religious discipline which would secure the continued adherence of its members to certain essentials like faith, doctrine, tenets and practices.
The right to such continued existence involves the right to maintain discipline by taking suitable action inter alia of excommunicating those who deny the fundamental bases of the religion.
The consequences of the exercise of that power vested in the denomination or in its head a power which is essential for maintaing the existence and unity of denomination must necessarily be the exclusion of the person excommunicated from participation in the religious life of the denomination, which would include the use of places of worship or consecrated places for burial dedicated for the use of the members of the denomination and which are vested in the religious head as a trustee for the denomination.
The learned Attorney General who appeared for the respondent submitted three points: (1) Assuming that excommunication was part of the religious practice of the denomination, still there was no averment in the petition that the civil results flowing from excommunication in the shape of exclusion from the beneficial use of denominational property was itself a matter of religion.
In other words, there was no pleading that the deprivation of the civil rights of a person excommunicated was a matter of religion or of religious practice.
(2) The "excommunication" defined by the Act deals with rights of civil nature as distinguished from religious or social rights or obligations and a law dealing with the civil consequence of an excommunication does not violate the freedom protected by article 25 or article 26.
(3) Even on the basis that the civil consequences of an excommunication are a matter of religion, still it is a 545 measure of social reform and as such the legislation would be saved by the words in article 25(2)(b).
I am unable to accept any of these contentions as correct.
(1) First I do not agree that the pleadings do not sufficiently raise the point that if excommunication was part of the "practice of a religion" the consequences that flow therefrom were not also part of the "practice of religion".
The position of the Dai as the religious head of the denomination not being disputed and his power to excommunicate also not being in dispute and it also being admitted that places of worship and burial grounds were dedicated for the use of the members of the denomination, it appears to me that the consequence of the deprivation of the use of these properties by persons excommunicated would be logical and would flow from the order of excommunication.
It could not be contested that the consequence of a valid order of excommunication was that the person excommunicated would cease to be entitled to the benefits of the trusts created or founded for the denomination or to the beneficial use or enjoyment of denominational property.
If the property belongs to a community and if a person by excommunication ceased to be a member of that community, it is a little difficult to see how his right to the enjoyment of the denominational property could be divorced from the religious practice which resulted in his ceasing to be a member of the community.
When once it conceded that the right guaranteed by article 25 (1) is not confined to freedom of conscience in the sense of the right to hold a belief and to propagate that belief, but includes the right to the practice of religion, the consequences of that practice must also bear the same complexion and be the subject of a like guarantee.
(2) I shall reserve for later consideration the point about the legislation being saved as a matter 546 of social reform under article 25(2)(b), and continue to deal with the argument that the impugned enactment was valid since it dealt only with the consequences on the civil rights, of persons excommunicated.
It has, however, to be pointed out that though in the definition of "excommunication" under section 2(b) of the impugned Act the consequences on the civil rights of the excommunicated persons is set out, that is for the purpose of defining an "excommunication".
What I desire to point out is that it is not as if the impugned enactment saves only the civil consequences of an excommunication not interfering with other consequences of an excommunication falling within the definition.
Taking the case of the Dawoodi Bohra community, if the Dai excommunicated a person on the ground of forswearing the basic tenets of that religious community the Dai would be committing an offence under section 4, because the consequences according to the law of that religious denomination would be the exclusion from civil rights of the excommunicated person.
The learned Attorney General is therefore not right in the submission that the Act is concerned only with the civil rights of the excommunicated person.
On the other hand, it would be correct to say that the Act is concerned with excommunications which might have religious significance but which also operate to deprive persons of their civil rights.
Article 26 confers on every religious denomination two rights which are relevant in the present context, by cl.
(b) "to manage its own affairs in matters of religion" and by the last clause cl.
(d) "to administer such property" which the denomination owns or has acquired (vide cl.
(c) (d) "in accordance with law.
" In considering the scope of article 26 one has to bear in mind two basic postulates: First that a religious denomination is possessed of property which is dedicated for definite uses and which under article 26 (d) the religious 547 denomination has the right to administer.
From this it would follow that subject to any law grounded on public order, morality or health the limitations with which article 26 opens, the denomination has a right to have the property used for the purposes for which it was dedicated.
So far as the present case is concerned, the management of the property and the right and the duty to ensure the proper application of that property is admitedly vested in the Dai as the religious head of the denomination.
Article 26 (d) speaks of the administration of the property being in accordance with law and the learned Attorney General suggested that a valid law could be enacted which would permit the diversion of those funds to purposes which the legislature in its wisdom thought it fit to appropriate.
I feel wholly unable to accept this argument.
A law which provides for or permits the diversion of the property for the use of persons who have been excluded from the denomination would not be "a law" contemplated by article 26(d).
Leaving aside for the moment the right of excommunicated persons to the enjoyment of property dedicated for the use of a denomination let me take the case of a person who has renounced that religion, and in passing it might be observed that even in cases of an apostate according to the principles governing the Dawoodi Bohra denomination there is no ipso facto loss of rights, only apostasy is a ground for excommunication which however could take place without service of notice or an enquiry.
It could not be contended that an apostate would be entitled to the beneficial use of property, dedicated to the Dawoodi Bohra community be it the mosque where worship goes on or other types of property like consecrated burial grounds etc.
It would be obvious that if the Dai permitted the use of the property by an apostate without excommunicating him he would be committing a dereliction of his duty as the supreme head 548 of the religion in fact an act of sacrilege besides being guilty of a breach of trust.
I consider that it hardly needs any argument to show that if a law permitted or enjoined the use of the property belonging to the denomination by an apostate it would be a wholly unauthorised diversion which would be a violation of article 26(d) and also of article 26(c), not to speak of article 25(1).
The other postulate is the position of the Dai as the head of the religious denomination and as the medium through which spiritual grace is brought to the community and that this is the central part of the religion as well as one of the principal articles of that faith.
Any denial of this position is virtually tantamount to a denial of the very foundation of the faith of the religious denomination.
The attack on the constitutionality of the Act has to be judged on the basis of these two fundamental points.
The practice of excommunication is of ancient origin.
History records the existence of that practice from Pagan times and Aeschyles records "The exclusion from purification with holy water of an offender whose hands were defiled with bloodshed.
" Later the Druids are said to have claimed the right of excluding offenders from sacrifice.
Such customary exclusions are stated to have obtained in primitive semitic tribes but it is hardly necessary to deal in detail with this point, because so far as the Muslims, and particularly among the religious denomination with which this petition is concerned, enough material has been set out in the judgment of the Privy Council already referred.
Pausing here, it might be mentioned that excommunication might bear two aspects: (1) as a punishment for crimes which the religious community justifies putting one out of its fold.
In this connection it may be pointed out that in a theocratic State the punitive aspect of excommunication 549 might get emphasized and might almost take the form of a general administration by religious dignitaries of ordinary civil law.
But there is another aspect which is of real relevance to the point now under consideration.
From this point of view excommunication might be defined as the judicial exclusion from the right and privileges of the religious community to whom the offender belongs.
Here it is not so much as a punishment that excommunication is inflicted but is used as a measure of discipline for the maintenance of the integrity of the community, for in the ultimate analysis the binding force which holds together a religious community and imparts to it a unity which makes it a denomination is a common faith, common belief and a belief in a common creed, doctrines and dogma.
A community has a right to insist that those who claim to be within its fold are those who believe in the essentials of its creed and that one who asserts that he is a member of the denomination does not, at least, openly denounce the essentials of the creed, for if everyone were at liberty to deny these essentials, the community as a group would soon cease to exist.
It is in this sense that it is a matter of the very life of a denomination that it exercises discipline over its members for the purpose of preserving unity of faith, at least so far as the basic creed or doctrines are concerned.
The impugned enactment by depriving the head of the power and the right to excommunicate and penalising the exercise of the power, strikes at the very life of the community by rendering it impotent to protect itself against dissidents and schismatics.
It is thus a violation of the right to practice religion guaranteed by article 25(1) and is also violative of article 26 in that it interfers with the rights of the Dai as the trustee of the property of the denomination to so administer it as to exclude dissidents and excommunicated persons from the beneficial use of such property.
550 It is admitted however in the present case that the Dai as the head of the denomination has vested in him the power, subject to the procedural requirements indicated in the judgment of the Privy Council, to excommunicate such of the members of the community as do not adhere to the basic essentials of the faith and in particular those who repudiate him as the head of the denomination and as a medium through which the community derives spiritual satisfaction or efficiency mediately from the God head.
It might be that if the enactment had confined itself to dealing with excommunication as a punishment for secular offences merely and not as an instrument for the self preservation of a religious denomination the position would have been different and in such an event the question as to whether articles 25 and 26 would be sufficient to render such legislation unconstitutional might require serious consideration.
That is not the position here.
The Act is not confined in its operation to the eventualities just now mentioned but even excommunication with a view to the preservation of the identity of the community and to pervent what might be schism in the denomination is also brought within the mischief of the enactment.
It is not possible, in the definition of excommunication which the Act carries, to read down the Act so as to confine excommunication as a punishment of offences which are unrelated to the practice of the religion which do not touch and concern the very existence of the faith of the denomination as such.
Such an exclusion cannot be achieved except by rewriting the section.
The next question is whether the impugned enactment could be sustained as a measure of social welfare and reform under article 25 (2) (b).
The learned Attorney General is, no doubt, right in his submission that on the decision of this Court in the 551 Mulki Temple case (Venkataramana Devaru vs State of Mysore(1), the right guaranteed under article 26(b) is subject to a law protected by article 25(2)(b) The question then before the Court related to the validity of a law which threw open all public temples, even those belonging to "a religious denomination" to "every community of Hindus including 'untouchable ' " and it was held that, notwithstanding that the exclusion of these communities from worship in such a temple was an essential part of the "practice of religion" of the denomination, the constitutionality of the law was saved by the second part of the provision in article 25(2)(b) reading: "the throwing open of Hindu religious institutions of a public character to all classes and section of Hindus".
The learned Attorney General sought support from this ruling for the proposition that article 25(2)(b) could be invoked to protect the validity of a law which was "a measure of social welfare and reform" notwithstanding that it involved an abrogation of the whole or part of the essentials of a religious belief or of a religious practice.
I feel unable to accept the deduction as flowing from the Mulki Temple case.
That decision proceeded on two bases : (1) As regards the position of "untouchables", article 17 had made express provision stating: " 'Untouchability ' is abolished and its practice in any form is forbidden.
The enforcement of any disability arising out of 'Untouchability ' shall be an offence punishable in accordance with law." and that had to be recognised as a limitation on the rights of religious denominations however basic and essential the practice of the exclusion of untouchables might be in its tenets or creed.
(2) There was a special saving as regards laws providing for "throwing open of public Hindu Religious Institu 552 tions to all classes and sections of Hindus" in article 25(2)(b), and effect had to be given to the wide language in which this provision was couched.
In the face of the language used, no distinction could be drawn between beliefs that were basic to a religion, or religious practices that were considered to be essential by a religious sect, on the one hand, and on the other beliefs and practices that did not form the core of a religion or of the practices of that religion.
The phraseology employed cut across and effaced these distinctions.
But very different considerations arise when one has to deal with legislation which is claimed to be merely a measure "providing for social welfare and reform".
To start with, it has to be admitted that this phrase is as contrasted with the second portion of article 25(2)(b), far from precise and is flexible in its content.
In this connection it has to be borne in mind that limitations imposed on religious practices on the ground of public order, morality or health have already been saved by the opening words of article 25(1) and the saving would cover beliefs and practices even though considered essential or vital by those professing the religion.
I consider that in the context in which the phrase occurs, it is intended to save the validity only of those laws which do not invade the basic and essential practices of religion which are guaranteed by the operative portion of article 25(1) for two reasons: (1) To read the saving as covering even the basic essential practices of religion, would in effect nullify and render meaningless the entire guarantee of religious freedom a freedom not merely to profess, but to practice religion, for very few pieces of legislation for abrogating religious practices could fail to be subsumed under the caption of "a provision for social welfare or reform".
(2) If the phrase just quoted was intended to have such a wide operation as cutting at even the essentials guaranteed by article 25(1), there 553 would have been no need for the special provision as to "throwing open of Hindu religious institutions" to all classes and sections of Hindus since the legislation contemplated by this provision would be par excellence one of social reform.
In my view by the phrase "laws providing for social welfare and reform" it was not intended to enable the legislature to "reform", a religion out of existence or identity.
Article 25 (2)(a) having provided for legislation dealing with "economic, financial, political or secular activity which may be associated with religious practices", the succeeding clause proceeds to deal with other activities of religious groups and these also must be those which are associated with religion.
Just as the activities referred to in article 25(2)(a) are obviously not of the essence of the religion, similarly the saving in article 25(2)(b) is not intended to cover the basic essentials of the creed of a religion which is protected by article 25(1).
Coming back to the facts of the present petition, the position of the Dai ul Mutlaq, is an essential part of the creed of the Dawoodi Bohra sect.
Faith in his spiritual mission and in the efficacy of his ministration is one of the bonds that hold the community together as a unit.
The power of excommunication is vested in him for the purpose of enforcing discipline and keep the denomination together as an entity.
The purity of the fellowship is secured by the removal of persons who had rendered themselves unfit and unsuitable for membership of the sect.
The power of excommunication for the purpose of ensuring the preservation of the community, has therefore a prime significance in the religious life of every member of the group.
A legislation which penalises this power even when exercised for the purpose above indicated cannot be sustained as a measure of social welfare or social reform without eviscerating the 554 guarantee under article 25(1) and rendering the protection illusory.
In my view the petitioner is entitled to the relief that he seeks and the petition will accordingly be allowed.
BY COURT: In accordance with the majority view of this Court, the petition is allowed.
The petitioner is entitled to his costs.
Petition allowed.
| section 3 of the Bombay Prevention of Excommunication Act, 1949 (Bom.
42 of 1949), it is provided that "Notwithstanding anything contained in any law, custom or usage for the time being in force, to the contrary, no excommunication of member of any community shall be valid and shall be of any effect.
" The preamble to the Act state, inter alia, that in keeping with the changing times and in the public interest, it was expedient to stop the practice of excommunication prevalent in certain communities and the definition of the word "community" contained in section 2 of the Act included the included the religious denomination of Dawoodi Bohras.
The petitioner, who was the religious head of the Dawoodi Bohra community and trustee of its property, challenged the constitutional validity of the Act on the ground that it violated its fundamental rights guaranteed by articles 25 and 26 of the Constitution.
Reliance was placed on behalf of the petitioner on the decision of Judicial Committee of the Privy Council in Hasan Ali vs Mansoor Ali, (1947) L. R. 75 I.A. 1, to which he was a party, as recognising his right as the 51st Dai ul Mutlaq of the community to excommunicate any of its members under prescribed limits.
^ Held, (Per Sarkar, Das Gupta and Mudholkar, JJ., Sinha, C. J., dissenting), that the impugned Act violated articles 25 and 26 of the Constitution and was, therefore, void.
It was evident from the religious faith and tenets of the Dawoodi Bohra community that the exercise of the power of excommunication by its religious head on religious grounds formed part of the management of its affairs in matters of religion and the impugned Act in making even such excommunication invalid infringed the right of the community under article 26(b) of the Constitution.
Hasan Ali vs Mansoorali, (1947) L. R. 75 I. A. 1, referred to.
497 It is well settled that that articles 25 and 26 of the Constitution protect not merely religious doctrines and beliefs but also acts done in pursuance of religion and thus guarantee rituals and observances, ceremonies and modes of worship which are integral parts of religion.
What is essential part of a religion or what its religious practice has to be judged in the light of its doctrine and such practices as are regarded by the community as a part of its religion must also be included in them.
Commissioner of Hindu Religious Endowments, Madras vs Sri Lakshmindra Thirtha Swamiar of Sri Shrur Mutt, ; , Mahant Jagannath Ramanuj Das vs The State of Orissa, [1954] S.C.R. 1046, Sri Venkataramana Devaru vs State of Mysore, ; and Durgah Committee, Ajmer vs Syed Hussain Ali; , , relied on.
The fundamental right under article 26(b) is not subjected to preservation of civil rights and its only limitations are those expressly mentioned by the Article itself i.e. public order, morality and health and those mentioned by cl. 2 of article 25 as has been held by this court.
The fact that in the instant case civil rights of an excommunicated person would be affected by the exercise of the fundamental right under article 26(b) can, therefore, be of no consequence nor could it be said that excommunication was prejudicial to public order, morality and health.
The impugned Act did not fall within article 25(2)(a) nor could it be said to be a law "providing for social welfare and reform" within the meaning of article 25(2)(b) of the Constitution.
It barred excommunication even on religious grounds and could not be said to promote social welfare and reform even though it sought to prevent consequent loss of civil rights.
Sri Venkataramana Devaru vs State of Mysore, ; , referred to.
Taher Saifuddin vs Tyebbhai Moosaji, A. I. R. , disapproved.
Per Sinha, C. J.
It was not correct to say that the Privy Council in Hasanali vs Mansoorali, held that the right of the Dai ul Mutlaq to excommunicate a member of the community was a purely religious matter.
The Dai was not merely the head of a religious community but also the trustee of its property.
While his actions in the purely religious aspect could be no concern of the Courts, those touching the civil rights of the members of the community were justiciable and liable to interference by the legislature and the judiciary.
498 The impugned Act, therefore, in seeking to protect the civil rights of the members of the community was within the saving provisions of article 25(2) (b) of the constitution since the right of a religious denomination under article 26(b) was subject to legislation under article 25(2)(b) of the Constitution.
Sri Venkataramana Devaru vs State of Mysore, ; , relied on.
The Commissioner of Hindu Religious Endowments, Madras vs Sri Lakshmindra Thirtha Swamiar of Sri Shrur Mutt, ; , considered.
The Durgah Committee, Ajmer vs Syed Hussain Ali, ; , referred to.
Case law discussed.
The Act had for its purpose the fulfilment of individual liberty of conscience guaranteed by Art 25(1) and sought to implement article 17 of the Constitution in attempting to save an excommunicated person from virtually becoming an untouchable in his community and its constitutional validity could not, therefore, be questioned.
Held, further, that the Act in pith and substance fell within Entries 1 and 2 of List III of the Legislative Lists of the Constitution Act of 1935, and there could be no doubt as to the competency of the Legislature in enacting it.
Per Ayyangar, J. The right of Dai ul Mutlaq to exercise the right of excommunication against a member of the denomination as recognised by the Privy Council in Hasanali vs Mansoorali, could not be in doubt.
A denomination under article 26 and its members under article 25 have the right to ensure its existence by maintaining discipline and ensuring adherence to its tenets and practices by such suitable action as excommunication of those who denied the fundamental bases of the religion.
The consequence of such action must necessarily involve the exclusion of an excommunicated person from participation in the religious life of the denomination including the use of places of worship or burial grounds dedicated for the use of the members and vested in the religious head as trustee for the denomination.
Dill vs Watson, (1836) 3 Jones Rep. (Ir. exhibit) 48 and Free Church of Scotland vs Overtoun, , referred to.
It was not correct to say, in view of the definition of the word 'excommunication ' contained in the Act., that it merely sought to save the civil rights of an excommunicated person and had no concern with excommunication on religious 499 grounds entailing, under the laws of the denomination, deprivation of civil rights.
The impugned Act by depriving the Dai of the right to excommunicate and making its exercise a penal offence struck at the very life of the denomination and rendered it impotent to protect itself against dissidents and schismatics and thereby contravened article 25 and 26 of the Constitution.
The impugned Act cannot also to sustained as a measure of social welfare and reform under article 25(2)(b) or under article 17 of the Constitution.
Venkatarama Devaru vs State of Mysore, ; , distinguished.
The expression "laws providing for social welfare and reform" in article 25(2)(1) of the Constitution was not intended to enable the legislature to "reform" a religion out of existence or identity.
The activities referred to in article 25(2)(a) are obviously not of the essence of the religion nor was article 25(2)(b) intended to cover the essentials of a religion which are protected by article 25(1).
Faith in the Dai ul Mutlaq being an essential part of the creed of the denomination that held it together, the impugned Act clearly contravened article 25(1) of the Constitution by taking away his power of excommunicate by which he kept the denomination together and maintained the purity of its fellowship.
|
Appeal No. 508 of 1976.
(Appeal by Special Leave from the Judgment and Order dated 27 10 1975 of the Delhi High Court in Civil Revision No. 115/75).
S.N. Andley, Urea Dutta and T.C. Sharma, for the appellant.
K.C. Agarwala and M.M.L. Srivastava, for the respondent.
The plaintiff respondent ,alleged to be a regis tered partnership firm filed a suit on 25th April, 1974, through Smt.
Pushpa Mittal, shown as one of its partners, for the recovery of Rs. 21,265.28 as principal and Rs. 7655/ , as interest at 12% per annum.
according to law and Mercantile usage, on the strength of a cheque drawn by the defendant on 12th May, 1971, on the State Bank of India, which, on presentation, was dishonoured.
The plaintiff alleged that the cheque 1061 was given as price of goods supplied.
The defendant appel lant firm admitted the issue of the cheque by its Managing partner, but, it denied any privity of contract with the plaintiff firm.
The defendant appellant had its own version as to the reasons and purposes for which the cheque was drawn.
The suit was instituted under the provisions of Order 37 Civil Procedure Code so that the defendant appellant had to apply for leave under Order 37, Rule 2, of the Code to defend.
This leave was granted unconditionally by the Trial Court after a perusal of the cases of the two sides.
Order 37, Rule 3, Civil Procedure Code lays down: "( 1 ) The Court shall, upon application by the defendant give leave to appear and to defend the suit, upon affidavits which dis close such facts as would make it incumbent on the holder to prove consideration, or such other facts as the Court may deem sufficient to support the application.
(2) Leave to defend may be given uncondi tionally or subject to such terms as to payment into Court, giving security, framing and recording issues or otherwise as the Court thinks fit".
A learned Judge of the High Court of Delhi had on a revision application under Section 115 Civil Procedure Code interfered with the order of the Additional District Judge of Delhi granting unconditional leave, after setting out not less than seven questions on which the parties were at issue.
The learned Judge had, after discussing the cases of the two sides and holding that triable issues arose for adjudication, nevertheless, concluded that the defences were not bona fide.
He, therefore, ordered: "For these reasons I would allow the revision petition and set aside the order of the trial Court.
Instead I would grant leave to the defendant on their paying into Court the amount of Rs. 21,265.28 together with interest at the rate of 6 per cent per annum from the date of.
suit till payment and costs of the suit (Only court fee amount at this stage and not the lawyer 's fee).
The amount will be deposited within two months.
There will be no order as to costs of this revision".
The only question which arises before us in this appeal by special leave: Could the High Court interfere, in exercise of its powers under section 115, Civil Procedure Code, with the discretion of the Additional District Judge, in granting unconditional leave to defence to the defendant appellant upon grounds which even a perusal of the order of the High Court shows to be reasonable ? Santosh Kumar vs Bhai Mool Singh(1), was a case where a cheque, the execution of which was admitted by the defend ant, had been dishonoured.
The defendant had set up his defences for refusal to pay.
(1)[1958] SCR 1211 1215.
1062 This Court noticed the case of Jacobs vs Booth 's Distill ery Company(1), where it was held that, whenever a defence raises a really triable issue, leave must be given.
Other cases too were noticed there to show that this leave must be given unconditionally where the defence could not be shown to be dishonest in limine.
This Court observed there (at p. 1215): "The learned Counsel for the plaintiff respondent relied on Gopala Rao vs Subba Rao (AIR , Manohar Lal vs Nanhe Mal (AIR , and Shib Karan Das vs Mohammed Sadiq (AIR 1936 Lah. 584).
All that we need say, about them is that if the Court is of opinion that the defence is not bona fide, then it can impose conditions and is not tied down to refusing leave to.
defend.
We agree with Varadachariar J. in the Madras case that the Court has this third course open to it in a suitable case.
But, it cannot reach the conclusion that the defence is not bona fide arbitrarily.
It is as much bound by judicial rules and judicial procedure in reaching a conclusion of this kind as in any other matter", On general principles, relating to the exercise of jurisdiction of High Courts under section 115, Civil Proce dure Code, several cases were cited before us by Mr. Andley: M.L. Sethi vs
R.P. Kapur(2); The Managing Director (MIG) Hindustan Aeronautics Ltd. Balanagar, Hyderabad & lint.
vs Ajit Prasad Tarway, Manager, (Purchase & Stores), Hindustan Aeronautics Ltd., Balanagar, Hyderabad(3); D.L.F. Housing & Construction Co. Pvt.
Ltd. New Delhi vs Sarup Singh & Ors.
(4); Milkhiram (India) Pvt. Ltd. & Ors.
vs Chamanlal Bros.(5) We need not dilate on the well established principles repeatedly laid down by this Court which govern jurisdiction of the High Courts under section 115 C.P.C.
We think that these principles were ignored by the learned Judge of the High Court in interfering with the discretionary order after a very detailed discussion of the facts of the case by the learned Judge of the High Court who had differred on a pure question of fact whether the defences could be honest and bona fide.
Any decision on such a question, even before evidence has been led by the two sides, is generally hazard ous.
We do not think that it is fair to pronounce a cate gorical opinion on such a matter before the evidence of the parties is taken so that its effects could be examined.
In the case before us, the defendant had denied, inter alia, liability to pay anything to the plaintiff for an alleged supply of goods.
It is only in cases where the defence is patently dishonest or so unreasonable that it could not reasonably be expected to succeed that the exercise of discretion by the Trial Court to grant leave unconditionally may be, (1) (2) ; (3) (4) ; (5) AIR 1965 SC 1698.
1063 questioned.
In the judgment of the High Court we are unable to find aground of interference covered by Section 115 C.P.C.
In Smt.
Kiranmoyee Dassi & Anr.
vs Dr. J. Chatterjee(1), Das.
J., after a comprehensive review of authorities on the subject, stated the principles applicable to cases covered by order 17 C.P.C. in the form of the following propositions (at p. 253): "(a) If the Defendant satisfies the Court that he has a good defence to the claim on its merits the plaintiff is not entitled to leave to sign judgment and the Defendant is entitled to unconditional leave to defend.
(b) If the Defendant raises a triable issue indicating that he has a fair or bona fide or reasonable defence although not a positively good defence the plaintiff is not entitled to sign judgment and the Defendant is entitled to unconditional leave to defend.
(c) If the Defendant discloses such facts as may be deemed sufficient to entitle him to defend, that is to say, although the affidavit does not positively and immediately make it clear that he has a defence, yet, shews such a state of facts as leads to the infer ence that at the trial of the action he may be able to establish a defence to the plaintiff 's claim the Plaintiff is not entitled to judg ment and the Defendant is entitled to leave to defend but in such a case the Court may in its discretion impose conditions as to the time or mode of trial but not as to payment into Court or furnishing security.
(d) If the Defendant has no defence or the defence set up is illusory or sham or practi cally moonshine then ordinarily the Plaintiff is entitled to leave to sign judgment and the Defendant is not entitled to leave to defend.
(e) If the Defendant has no defence or the defence is illusory or sham or practically moonshine then although ordinarily the Plain tiff is entitled to leave to sign judgment, the Court may protect the Plaintiff by only allowing the defence to proceed if the amount claimed is paid into Court or otherwise se cured and give leave to the Defendant on such condition, and thereby show mercy to the Defendant by enabling him to try to.
prove a defence".
The case before us certainly does not fall within the class (e) set out above.
It is only in that class of case that an imposition of the condition to deposit an amount in Court before proceeding further is justifiable.
, 253.
1064 Consequently, we set aside the judgment and order of the High Court and restore that of the Additional District Judge.
The parties will bear their own costs.
Appeal allowed.
| The appellant issued the respondent a cheque which was dishonoured.
The respondent alleged that the cheque was the consideration for goods supplied.
The appellant admitted issuing the cheque but denied by privity of contract.
The respondent filed a suit under order 37 C.P.C., and the appellant applied for the required leave to defend, which was granted by the trial Court unconditionally.
On revision under section 115 C.P.C., the High Court held that triable issues arose for adjudication.
, but, it considered the defence to be dishonest.
If allowed the revision petition and gave conditional leave to defend on the ground that the defences were not bona fide.
Allowing the appeal, the Court HELD: It is only in cases where the defence is patently dishonest or so unreasonable that it could not reasonably be expected to succeed that the exercise of discretion by the Trial Court to grant leave unconditionally may be questioned.
In other cases, it is not fair to pronounce a categorical opinion on such a matter before the evidence of the parties is taken so that its effects could be examined.
High Court 's interference under sec.
115 C.P.C. with the correct exercise of its discretion by the trial Court was patently erroneous.
11062 Santosh Kumar vs Bhai Mool Singh ; at 1215, Jacobs vs Booth 's Distillery Co. followed.
Kiranmoyee Dassi and another vs Dr. J. Chatterjee ,at 253) distinguished.
M.L. Sethi vs
R.P. Kapur ; The Managing Director (MIG) Hindustan Aeronautics Ltd. Bulana gar, Hyderabad & A nr.
vs A Ajit Prasad Tarway, Manager (Purchase and Stores).
Hindustan Aeronautics Ltd. Balanagar, Hyderabad (AIR ; D.L.F. Housing & Construction Co. Pvt. Ltd., New Delhi vs Sarup Singh & Ors.
[1970] 2.
S.C.R. 368; and Milkhiram (India) (P) Ltd. and Ors.
vs Chamanlal Bros. (AIR 1965 SC 1998) referred to.
|
iminal Appeal No. 25 of 1954.
Appeal under Article 134(1) (c) of the Constitution from the judgment and order dated the 12th January 1954 of the Patna High Court in Criminal Miscellaneous Case No. 10 of 1953.
M. C. Setalvad, Attorney General of India and Mahabir Prasad, Advocate General of Bihar (Balbhadra Prasad Sinha and P. G. Gokhale, with them) for the appellant.
Purshottam Prikamdas, (R. Patnaik, with him) for the respondent.
November 8.
The Judgment of the Court was delivered by BHAGWATI J.
This appeal with certificate under article 134(1)(c) of the Constitution arises out of an application under section 2 of the Contempt of Courts 121 956 Act (XXXII of 1952) and section 8 of the (XXXVII of 1850) read with article 227 of the Constitution filed by the respondent against the appellant in the High Court of Judicature at Patna and raises an important question as to whether the Commissioner appointed under Act XXXVII of 1850 is a Court.
The respondent is a Member of the Bihar Civil Service (Executive Branch).
The State Government received reports to the effect that the respondent bad been guilty of serious misconduct and corrupt practices in the discharge of his official duties while employed as Sub Divisional Officer at Aurangabad and they accordinly decided that an inquiry into the truth of.
the various charges against him should be made under the provisions of the (Act XXXVII of 1850, hereinafter referred to as the Act) and Mr. Anjani Kumar Saran who was the then Additional District and Sessions Judge, Gaya, and was thereafter the District and Sessions Judge of that place was appointed Commissioner under the Act for making the inquiry.
Gaya was fixed as the venue of the inquiry and the State Government also ordered that, during the pendency of the inquiry, the respondent will remain under suspension.
The Government made the appointment aforesaid after obtaining the concurrence of the High Court on its administrative side which was obtained on the condition that an extra temporary post of Additional District and Sessions Judge was created by the Government for the period Mr. Saran was occupied with the inquiry.
The appointment was made on the 2nd June 1952 and it was expected that Mr. Saran would be able to complete the inquiry during a period of three months.
The respondent, however, adopted dilatory tactics.
He made various representations to the Government, one on the 6th June 1952 demanding that a Judge of the High Court be appointed as Commissioner under the Act to make the inquiry against him and that inquiry be made at Patna and not at Gaya, another on the 10th July 1952 protesting against the appointment of Mr. Saran 957 as Commissioner to hold the inquiry against him and demanding that a ' confirmed District and Sessions Judge be appointed as Commissioner in his place, and ' a third on the 17th November 1952 in which he requested the Government to appoint three Commissioners instead of one for holding the inquiry against him and also to pay the entire cost of his defence at the same rates at which the Special Public Prosecutor engaged by the Government was being paid and also to reimburse other incidental expenses to be incurred by him.
All these representations were turned down by the Government.
Being thus thwarted in his attempts to put off the inquiry on some pretext or the other, the respondent tried to evade the same and failed and neglected to reply to the queries made from him by the Commissioner.
The Commissioner also could not communicate to him the orders passed by him from time to time because the respondent did not stay at the headquarters and did not leave his proper address for communication either at Gaya or at Motihari.
On the 24th November 1952 the Commissioner passed an order calling upon the parties to attend the hearing of the proceedings before him on the 8th December 1952 and forwarded a copy of this order to the appellant for communication to the respondent.
The District Magistrates of Champaran and Gaya who were requested to serve a true copy of the order upon the respondent could not do so as he was available neither at Motihari nor at Gaya and it was with great difficulty that he could be traced at Patna and the order served upon him.
On the 18th December 1952, the Commissioner passed another order recording that he was feeling great difficulty in contacting the respondent and in communicating his orders to him.
He observed that this was a highly undesirable state of affairs and that it was necessary that his orders should be communicated to the res pondent as early as possible.
A copy of this order was forwarded by the Commissioner to the appellant along with his letter dated the 20th December 1952 for information and doing the needful.
The appellant thereafter wrote the letter complained against to 958 the Commissioner on the 26th December 1952 being D.O. No. II/3C 306/52A 11614 which ran as under: "Dear Mr. Saran, I am desired to refer to your memo No. 8266 dated the 26th November 1952 and to say that Government are anxious not to allow Mr. Jyoti Narayan to adopt dilatory tactics and delay the progress of the inquiry against him.
I am to request you to be vigilant against such tactics adopted by Mr. Narayan.
Yours sincerely, (Sd.) B. N. Sinha".
The Commissioner acknowledged receipt of this letter by his D.O. letter No. 244, dated the 5th January 1953 stating that he would not allow the respondent to adopt any dilatory tactics and delay the progress of the inquiry against him.
On the 2nd February 1953, the respondent filed a petition before the Commissioner stating inter alia that he had not been able to engage any lawyer or counsel for want of necessary papers and copies and prayed for an adjournment of the inquiry.
He also prayed for starting a contempt of Court proceeding against the appellant but the Commissioner rejected both his prayers.
The order which was passed by the Commissioner on these applications may as well be set out in extenso inasmuch as it has a bearing on the question whether the appellant was guilty of contempt of Court for having addressed the letter complained against to him: "3 2 53.
Another point raised in the first petition of the accused was that Mr. B.N. Sinha, Deputy Secretary to Government in addressing his D.O. letter No. 11614, dated the 26th of December, 1952, was guilty of contempt, because he had interfered in my judicial discretion.
I do not find anything in this letter from which it can be inferred that the author of the letter intended to influence me in the exercise of my judicial function.
This letter was sent to me in reply to my memo No. 8266 dated 26 11 1952 whereby I had forwarded a copy of my order dated 24 11 1952 for communication to Mr. Narayan.
Mr. 959 B.N. Sinha wrote in his letter dated the 26th of December 1952 that Government are anxious not to allow Mr. Jyoti Narayan to adopt dilatory tactics and to delay the progress of the inquiry.
Now it is to be noted that Mr. Narayan in paragraph 11 of his petition has himself charged the State Government for delaying the inquiry and thereby causing harassment to him.
Therefore, it is obvious that both parties, that is, the State and the accused are anxious that the inquiry should be expedited so what Mr. B.N. Sinha meant by writing the D.O. was that the inquiry should be expedited.
This cannot by any stretch of imagination be construed to mean that the aforesaid officer in any way tried to influence me in the discharge of my judicial functions.
For these reasons I rejected the two prayers contained in the first petition of Mr. J. Narayan".
The respondent thereafter started proceedings in, contempt against the appellant in the High Court of Judicature at Patna.
A Rule was issued by the High Court against the appellant which was heard and finally disposed of on the 12th June 1954.
The High Court was of the opinion that the Commissioner appointed under Act XXXVII of 1850 was a Court, that the Court was subordinate to the High Court, that the letter complained against amounted to a contempt of Court and that the appellant was guilty of such contempt.
It accordingly sentenced the appellant to pay a fine of Rs. 250 and in default to undergo simple imprisonment for a period of one month.
The appellant obtained a Certificate under Article 134(1), (e) of the Constitution from the High Court.
The Certificate was, however, limited to the question as to whether the Commissioner appointed under the Act is a Court.
At the hearing before us, the appellant filed a petition for urging additional grounds which included inter alia the ground that the High Court erred in holding that the Commissioner appointed under the Act is a Court subordinate to the High Court within the meaning of the for the mere reason that its orders are open to be reviewed 960 judicially in exercise of the power vested in the High Court under article 227 of the Constitution and also the ground that the High Court erred in holding that the letter complained against tended to interfere with or obstruct the course of justice and constituted contempt of Court.
The learned Attorney General for the appellant contended in the first instance that the Commissioner appointed under the Act is not a Court.
He next contended that even if he is a Court, he is not a Court subordinate to the High Court within the meaning of the .
He lastly contended that the letter complained against did not tend to interfere with or obstruct the course of justice and did not constitute contempt of Court.
Prior to the enactment of the , there was in existence in India the Contempt of Courts Act, 1926 (XII of 1926).
The various States also had their corresponding enactments.
The Contempt of Courts Act, 1926 (XII of 1926) and the corresponding enactments in the States of Hyderabad, Madhya Bharat, Mysore, Pepsu, Rajasthan and Travancore Cochin and the Saurashtra Ordinance II of 1948 were repealed by the and a uniform Act to define and limit the powers of certain Courts in punishing contempts of Courts was enacted which extended to the whole of India except the State of Jammu and Kashmir.
In section 2 of the Act, "High Court" was defined as meaning the High Court for a Part A State or a Part B State and including the Court of the Judicial Commissioner in a Part C State.
Section 3 of the Act enacted: "3.
(1) Subject to the provisions of sub section (2) every High Court shall have and exercise the same jurisdiction, powers and authority, in accordance with the same procedure and practice, in respect of contempts of Courts subordinate to it as it has and exercises in respect of contempts of itself.
(2) No High Court shall take cognisance of a contempt alleged to have been committed in respect of a Court subordinate to it where such contempt is an 961 offence punishable under the Indian Penal Code (Act XLV of 1860)".
The word "Court" was not defined in the Act and ' the expression "Courts subordinate to the High Courts" would prima facie mean the Courts of law subordinate to the High Courts in the hierarchy of Courts established for the purpose of administration of justice throughout the Union.
It would be relevant, however, to notice the definitions of "Court" available elsewhere.
Coke on Littleton and Stroud defined the word "Court" as the place where justice is judicially administered.
According to Stephen, "In every Court, there must be at least three constituent parts the actor, reus and judex; the actor or plaintiff, who complains of an injury done; the reus, or defendant, who is called upon to make satisfaction for it; and the judex, or judicial power, which is to examine the truth of the fact, and to determine the law arising upon that fact, and if any injury appears to have been done, to ascertain, and by its officers to apply, the remedy".
Section 3 of the Indian Evidence Act (I of 1872) defines "Court" as including all Judges and Magistrates, and all persons, except arbitrators.
legally authorised to take evidence.
This definition, however, has been held to be not exhaustive but framed only for the purpose of Indian Evidence Act and is not to be extended where such an extension is not warranted.
Sections 19 and 20 of the Indian Penal Code (Act XLV of 1860) define the words "Court" and the "Court of Justice" as under: "Section 19.
The word 'Judge ' denotes not only every person who is officially designated.
as a Judge, but also every person who is empowered by law to give, in any legal proceeding, civil or criminal, a definitive judgment, or a judgment which, if not appealed against would be definitive, or a judgment which, if confirmed by some other authority would be definitive, or who is one of a body of persons, which body of persons is empowered by law to give such a judgment.
962 Section 20.
The words "Court of Justice" denote a Judge who is empowered by law to act judicially alone, or a body of Judges which is empowered by law to act judicially as a body, when such Judge or body of Judges is acting judicially".
The pronouncement of a definitive judgment is thus considered the essential sine qua non of a Court and unless and until a binding and authoritative judgment can be pronounced by a person or body of persons it cannot be predicated that he or they constitute a Court.
The Privy Council in the case of Shell Co. of Australia vs Fedral Commissioner of Taxation(1) thus defined "Judicial Power" at page 295: "Is this right? What is "judicial power"? Their Lordships are of opinion that one of the best definitions is that given by Griffith, C. J. in Huddart, Parker & Co. vs Moorehead(2) where he says: "I am of opinion that the words judicial power ' as used in section 71 of the Constitution mean the power which every sovereign authority must of necessity have to decide controversies between its subjects, or between itself and its subjects, whether the rights relate to life, liberty or property.
The exercise of this power does not begin until some tribunal which has power to give a binding and authoritative decision (whether subject to appeal or not) is called upon to take action".
Their Lordships further enumerated at page 297 certain negative propositions in relation to this subject: "1.
A tribunal is not necessarily a Court in this strict sense because it gives a final decision; 2.
Nor because it hears witnesses on oath; 3.
Nor because two or more contending parties appear before it between whom it has to decide; 4.
Nor because it gives decisions which affect the rights of subjects; 5.
Nor because there is an appeal to a Court; 6.
Nor because it is a body to which a matter is referred by another body.
See Rex vs Electricity Commissioners(3)" (1) (2) ; , 357.
(3) 963 and observed at page 298: "An administrative tribunal may act judicially, but still remain an administrative tribunal as distinguished from a Court, strictly so called.
Mere externals do not make a direction to an administrative officer by an ad hoc tribunal an exercise by a Court of Judicial power".
The same principle was reiterated by this Court in Bharat Bank Limited vs Employees of Bharat Bank Ltd.(1) and Maqbool Hussain vs The State of Bombay(1) where the test of a judicial tribunal as laid down in a passage from Cooper vs Wilson(1) was adopted by this Court: "A true judicial decision presupposes an existing dispute between two or more parties, and then involves four requisites: (I) The presentation (not necessarily orally) of their case by the parties to the dispute; (2) if the dispute between them is a question of fact, the ascertainment of the fact by means of evidence adduced by the parties to the dispute and, often with the assistance of argument by or on behalf of the parties on the evidence; (3) if the dispute between them is a question of law, the submission of legal arguments by the parties; and (4) a decision which disposes of the whole matter by a finding upon the facts in dispute and an application of the law of the land to the facts so found, including where required a ruling upon any disputed question of law".
Maqbool Hussain 's case, above referred to, was followed by this Court in section A. Venkataraman vs The Union of India and, Another(4) where a Constitution Bench of this Court also laid down that both finality and authoritativeness were the essential tests of a judicial pronouncement.
It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are (1) ; (2) (1953] S.C.R. 730.
(3) , 340.
(4) ; 122 964 the essential tests of a judicial pronouncement.
It was, however, urged by Shri Purshottam Tircamdas for the respondent that the word "Court" should not be limited to a Court of Justice or a Court of law but should be construed in a wide sense, including within the connotation, other Courts which, though not Courts of Justice, were nevertheless Courts according to law and be relied upon a decision of the Court of Appeal in England in Royal Aquarium and Summer and Winter Garden Society Ltd. vs Parkinson(1) and the observations of Fry, L.J. at page 446 therein: "I do not desire to attempt any definition of a "court".
It is obvious that, according to our law, a court may perform various functions.
Parliament is a court.
Its duties as a whole are deliberative and legislative: the duties of a part of it only are judicial.
It is nevertheless a court.
There are many other courts which, though not Courts of Justice, are nevertheless courts according to our law.
There are, for instance, courts of investigation, like the coroner 's court.
In my judgment, therefore, the existence of the immunity claimed does not depend upon the question whether the subject matter of consideration is a Court of Justice, but whether it is a Court in law.
Wherever you find a Court in law, to that the law attaches certain privileges, among which is the immunity in question".
The question involved in that case was whether the defendant was entitled to absolute immunity from action for anything done by him while performing his duty as a member of the County Council in dealing with the applications for licences for music and dancing.
It was contended on behalf of the defendant that he was exercising a judicial function when he spoke the words complained of and therefore was entitled to absolute immunity in respect of anything he said.
The argument that "wherever you find a Court in law, to that the law attaches certain privileges among which is the immunity in question" was used on behalf of the defendant and Fry, L. J. dealt with the same as under at page 447: 965 "It was said that the existence of this immunity is based on considerations of public policy, and that, as a matter of public policy, wherever a body has to decide questions, and in so doing has to act judicially, it must be held that there is a judicial proceeding to which this immunity ought to attach.
It seems to me that the sense in which the word "judicial" is used in that argument is this: it is used as meaning that the proceedings are such as ought to be conducted with the fairness and impartiality which characterize proceedings in Courts of Justice, and are proper to the functions of a judge, not that the members of the supposed body are members of a Court.
Consider to what lengths the doctrine would extend, if this immunity were applied to every body which is bound to decide judicially in the sense of deciding fairly and impartially.
It would apply to assessment committees, boards of guardians, to the Inns of Court when considering the conduct of one of their members, to the General Medical Council when considering questions affecting the position of a medical man, and to all arbitrators.
Is it necessary, on grounds of public policy, that the doctrine of immunity should be carried as far as this? I say not.
I say that there is ample protection afforded in such cases by the ordinary law of privilege.
I find no necessity or propriety in carrying the doctrine so far as this argument requires".
Lord Esher, M. R. expressed himself as follows while dealing with this argument at page 442: "It is true that, in respect of statements made in the course of proceedings before a Court of Justice, whether by judge, or counsel, or witnesses, there is an absolute immunity from liability to an action.
The ground of that rule is public policy.
It is applicable to all kinds of Courts of Justice; but the doctrine has been carried further; and it seems that this immunity applies wherever there is an authorized inquiry which, though not before a Court of Justice, is before a tribunal which has similar attributes.
In the case of Dawkins vs Lord Rokeby(1) the doctrine was extended (1) L.R. 8 Q.B. 255; , 966 to a military court of inquiry.
It was so extended on the ground that the case was one of an authorized inquiry before a tribunal acting judicially, that is to say, in a manner as nearly as possible similar to that in which a Court of Justice acts in respect of an inquiry before it.
This doctrine has never been extended further than to Courts of Justice and tribunals acting in a manner similar to that in which such Courts act.
Then can it be said that a meeting of the county council, when engaged in considering applications for licences for music and dancing, is such a tribunal? It is difficult to say who are to be considered as judges acting judicially in such a case".
The case of Dawkins vs Lord Rokeby(1) was a case where immunity was claimed by a witness who had given evidence before a military Court of inquiry.
The case went to the House of Lords and the Lord Chancellor, in his speech at page 754, in observed: "Now, my Lords, adopting the expressions of the learned Judges with regard to what I take to be the settled law as to the protection of witnesses in judicial proceedings, I certainly am of opinion that upon all principles, and certainly upon all considerations of convenience and of public policy, the same protection which is extended to a witness in a judicial proceeding who has been examined on oath ought to be extended, and must be extended, to a military man who is called before a Court of Inquiry of this kind for the purpose of testifying there upon a matter of military discipline connected with the army".
Both these cases, the one before the Court of Appeal and the other before the House of Lords, were concerned with the extension of the principle of immunity of members of a tribunal or witnesses in judicial proceedings and the Courts logically extended the principle of immunity beyond the Courts of Justice to tribunals or bodies of persons functioning in a manner and according to procedure which was assimilated to a judicial inquiry.
The extension of the (1) L.R. 8 Q.B. 255; 967 immunity to such tribunals or bodies would not, however, constitute them Courts of Justice or Courts of law.
The position is thus summarised in the following passage in Halsbury 's Laws of England, Hailsham Edition, Volume 8, page 526: "Many bodies are not courts, although they have to decide questions, and in so doing have to act judicially, in the sense that the proceedings must be conducted with fairness and impartiality, such as assessment committees, guardians committees,, the Court of referees constituted under the Unemployment Insurance Acts to decide claims made on the insurance funds, the benchers of the Inns of Court when con sidering the conduct of one of their members, the General Medical Council, when considering questions affecting the position of a medical man".
We must, therefore, fall back upon the tests laid down above for determining what is a Court strictly so called within the connotation of the term as used in the .
It would be appropriate at this stage to note the relevant provisions of the (XXXVII of 1850) which would fall to be considered for determining whether the Commissioner appointed under the Act is a Court or not.
The Act was passed for regulating inquiries into the behaviour of public servants and the preamble runs: "Whereas it is expedient to amend the law for regulating inquiries into the behaviour of public servants not removable from their appointments without the sanction of Government, and to make the same uniform throughout India; It is enacted as follows: " Section 2 requires the articles of charges to be drawn out and a formal and public inquiry to be ordered whenever the Government shall be of opinion that there are good grounds for making a formal and public inquiry into the truth of any imputation of misbehaviour by any such person.
The inquiry may be committed under section 3 either to the Court, 968 Board or other authorities to which the person accused is subordinate or to any other person or persons specially appointed by the Government, Commissioners for the purpose.
Sections 4 to 7 contain provisions in regard to the conduct of the prosecution and section 8 prescribes the powers of the Commissioners.
This section has been particularly relied upon as constituting the Commissioners a Court, and runs as under: "Section 8.
The commissioners shall have the same power of punishing contempts and obstructions to their proceedings, as is given to Civil and Criminal Courts by the Code of Criminal Procedure, 1898, and shall have the same powers for the summons of witnesses, and for compelling the production of documents, and for the discharge of their duty under the commission, and shall be entitled to the same protection as the Zila and City Judges, except that all process to cause the attendance of witnesses or other compulsory process, shall be served through and executed by the Zila or City Judge in whose jurisdiction the witness or other person resides, on whom the process is to be served, and if he resides within Calcutta, Madras or Bombay, then through the Supreme Court of Judicature thereto.
When the commission has been issued to a Court, or other person or persons having power to issue such process in the exercise of their ordinary authority, they may also use all such power for the purposes of the commission".
Section 9 prescribes a penalty for disobedience to process issued as aforesaid for the purpose of the commission and sections 10 to 20 prescribe the procedure to be followed in the conduct of the inquiry.
It ,may be noted that this procedure is assimilated as far as possible to the conduct of a prosecution in a Criminal Court of law and the person accused is given the fullest opportunity to enter upon his defence and lead evidence in order to clear himself of the charges levelled against him.
Sections 21 and 22 lay down the functions of the Commissioners in regard to the report to be made by them to the Government of their proceedings under the commission and the powers of 969 the Government to pass final orders on such reports.
These sections have an important bearing on the question before us and they enact: "Section 21.
After the close of the inquiry the commissioners shall forthwith report to Government their proceedings under the commission, and shall send with the record thereof their opinion upon each of the articles of charge separately, with such observations as they think fit on the whole case.
Section 22.
The Government, on consideration of the report of the commissioners, may order them to take further evidence, or give further explanation of their opinions.
It many also order additional articles of charge to be framed, in which case the inquiry into the truth of such additional articles shall be made in the same manner as is herein directed with respect to the original charges.
When special commissioners have been appointed, the Government may also, if it thinks fit, refer the report of the commissioners to the Court or other authority to which the person accused is subordinate, for their opinion on the case; and will finally pass such orders thereon as appear just and consistent with its powers in such cases".
These provisions were considered by this Court in the case of S.A. Venkataraman vs The Union of India and Another(1).
The question that arose for consideration there, was whether an inquiry made and concluded under the Act amounted to prosecution and punishment for an offence as contemplated under article 20(2) of the Constitution.
Articles of charge bad been framed against the petitioner in that case and evidence had been led both by the prosecutor and by the defence and witnesses on both sides were examined on oath and cross examined and re examined in the usual manner.
The Commissioner bad found, on a consideration of the evidence, that some of the charges had been proved against the petitioner and had submitted a report to that effect to the Government.
The President had accepted the opinion of the Commissioner and, in view of the findings on (1) ; 970 the several charges arrived at by the latter, was pro visionally of the opinion that the petitioner should be dismissed.
Opportunity was given to the petitioner under Article 311(2) of the Constitution to show cause against the action proposed to be taken in regard to him and after considering his representation and after consultation with the Union Public Service Commission, the President finally decided to impose the penalty of dismissal upon him and he was accordingly dismissed.
After his dismissal, the police submitted a charge sheet against him before the Special Judge, Sessions Court, Delhi, charging him with offences under sections 161 and 165 of the Indian Penal Code and section 5(2) of the Prevention of Corruption Act and upon that summons were issued by the learned Judge directing the petitioner to appear before his Court.
The petitioner thereupon challenged the legality of this proceeding in a writ petition contending, that the proceedings were without jurisdiction inasmuch as they amounted to a fresh prosecu tion, for offences for which he had been prosecuted and punished already.
While considering whether under the circumstances there had been a violation of the fundamental right of the petitioner under Article 20(2) of the Constitution, this Court, scrutinised the provisions of the Act and the position of the Commissioner appointed, thereunder.
Justice Mukherjea, as he then was, delivered the judgment of the Court and observed at page 1159: "As the law stands at present, the only purpose, for which an enquiry under Act XXXVII ' of 1850 could be made, is to help the Government to come to a definite conclusion regarding the misbehaviour of a public servant and thus enable it to determine provisionally the punishment which should be imposed upon him, prior to giving him a reasonable opportunity of showing cause, as is required under article 311(2) of the Constitution.
An enquiry under this Act is not at all compulsory and it is quite open to the Government to adopt any other method if it so chooses.
It is a matter of convenience merely and 971 nothing else.
It is against this background that we will have to examine the material provisions of the of 1850 and see whether from the nature and result of the enquiry which the Act contemplates it is at all possible to say that the proceedings taken or concluded under the Act amount to prosecution and punishment for a criminal offence."; and at page 1160: "A Commissioner appointed under this Act has no duty to investigate any offence which is punishable under the Indian Penal Code or the Prevention of Corruption Act and he has absolutely no jurisdiction to do so.
The subject matter of investigation by him is the truth or otherwise of the imputation of misbehaviour made against a public servant and it is only as instances of misbehaviour that the several articles of charge are investigated, upon which disciplinary action might be taken by the Government if it so chooses.
The mere fact that the word "prosecution" has been used, would not make the proceeding before the Commissioner one for prosecution of an offence.
As the Commissioner has to form his opinion upon legal evidence, be has been given the power to summon witnesses, administer oath to them and also to compel production of relevant documents.
These may be some of the trappings of a judicial tribunal, but they cannot make the proceeding anything more than a mere fact finding enquiry.
This is conclusively established by the provisions of sections 21 and 22 of the Act.
At the close of the enquiry, the Commissioner has to submit a report to the Government regarding his finding on each one of the charges made.
This is a mere expression of opinion and it lacks both finality and authoritativeness which are the essential tests of a judicial pronouncement.
The opinion is not even binding on the Government.
Under section 22 of the Act, the Government can, after receipt of the report, call upon the Commissioner to take further evidence or give further explanation of his opinion.
When Special Commissioners are appointed, their report could be referred to the court or other authority 123 972 to which the officer concerned is subordinate for further advice and after taking the opinion of the different authorities and persons, the Government has to decide finally what action it should take".
The Court was no doubt concerned in that case with finding whether the inquiry before the Commissioner was tantamount to a prosecution of the petitioner.
While considering the same, however, the position of the Commissioner was discussed and the conclusion to which the Court came was that he was a mere fact finding authority, that the report made by the Commissioner to the Government was merely his expression of opinion and it lacked both finality and auth oritativeness which are the essential tests of a judicial pronouncement.
This conclusion is sufficient to establish that the Commissioner appointed under the Act was not a Court and his report or findings were not a definitive judgment or a judicial pronouncement inasmuch as they were not binding and authoritative and lacked finality.
We are also of the same opinion.
Apart from the above considerations which weighed with the Court in that case, we have also the provisions of section 8 of the Act itself which go to show that the Commissioners are given certain powers 'of the Civil and Military Courts in regard to punishing contempts and obstruction to their proceedings, summoning of witnesses, compelling the production of documents and for service of their process as also the same protection as Zila and City Judges.
The very fact that this provision had got to be enacted shows that the position of the Commissioners was not assimilated to that of Judges and that they did not constitute Courts of Justice or Courts of law but were mere fact finding tribunals deriving whatever powers they could exercise under the very terms of the Act which created them.
The power of punishing contempts and obstruction to their, proceedings as is given to Civil and Criminal Courts by the Code of Criminal Procedure, 1898 was also similar in its nature and the very nature and extent of the power indicated that they were not Courts in the ordinary sense of the term.
No such provision would have been 973 uted Courts of Justice or Courts of law and it is no argument to say that these provisions were enacted even though they were not strictly necessary merely for the sake of abundant caution or clarification of the position.
We are of the opinion that the Commissioner appointed under the Act, having regard to the circumstances above set out, does not constitute a Court within the meaning of the term as used in the .
Our attention was, however, drawn by, Shri Purshottam Tricamdas to a decision of a Division Bench of the Punjab High Court in Kapur Singh vs Jagat Narain(1).
That was a case directly in point and on all fours with the case before us.
The learned Chief Justice of the Punjab High Court bad been appointed a Commissioner under the Act in the matter of an inquiry against Sardar Kapur Singh, I.C.S., and Lala Jagat Narain, the editor, printer and publisher of ail Urdu Daily newspaper published at Jullundur called The Hindu Samachar, was called upon to show cause why he should not be punished under section 3 of with regard to a leading article which appeared in his name in the issue of the paper dated the 12th March 1951.
A preliminary objection was taken on his behalf that the Court had no jurisdiction to take proceedings against him for contempt and the argument was that the Court of the Commissioner appointed to hold an inquiry under the Act was not a Court and in any event was not a Court subordinate to the High Court.
Mr. Justice Falshaw who delivered the judgment of the Court observed at page 50 in connection with this argument: "The itself seems clearly to indicate that a Commissioner or Commissioners appointed under the Act constitute a Court as they are given all the powers of a Court regarding the summoning of witnesses and other matters, and the only ground on which the learned counsel for the respondent could base his argument that the Commissioner does not constitute a Court was that he can (1) A.I.R. 1951 Punjab 49. 974 give no final decision, but merely has to draw up a report giving his findings on the charge or charges against the respondent, which is to be forwarded to the Government.
In my opinion, however, this fact alone is not sufficient to make the Commissioner or Commissioners any thing other than a Court and it is to be noted that the definition of Court in section 3, Evidence Act, is very wide indeed as it reads: " 'Court ' includes all Judges and Magistrate and all persons, except arbitrators, legally authorised to take evidence".
The learned Judges there relied upon the definition of Court given in section 3 of the Indian Evidence Act which, as has already been noted, is framed only for the purposes of the Act and is not to be extended where such an extension is not warranted.
This definition does not help in the determination of the question whether the Commissioners appointed under the Act constitute a Court and the attention of the learned Judges was not drawn to the position that finality and authoritativeness are the essential tests of a judicial pronouncement.
We are of the opinion that the decision reached by the learned Judges of the Punjab High Court in that case was wrong and cannot help the respondent.
Our attention was also drawn to another decision of the Nagpur High Court in M. V. Rajwade vs Dr. section M. Hassan(1).
The question which came to be considered by the Court in that case was whether a commission appointed under the was a, Court within the meaning of section 3 of the , and, while considering the provisions of that Act, the learned Judges of the Nagpur High Court incidentally considered the provisions of the .
They rightly observed that "the term 'Court ' has not been defined in the .
The Act, however, does contemplate a 'Court of Justice ' which as defined in section 20, Indian Penal Code, 1860, denotes 'a judge who is empowered by law to act judicially '.
The least that is required of a Court is the capacity to deliver a "definitive judg (1) A.I.R. 1954 Nag.
975 ment" and unless this power vests in a tribunal in any particular case, the mere fact that the procedure adopted by it is of a legal character and it has the power to administer an oath will not impart to it the status of a Court", and came to the conclusion that the commission appointed under the is not a Court within the meaning of the Contempt of 'Courts Act, 1952.
The learned Judges were merely considering the provisions of the and were not concerned with the construction of the provisions of the and whatever observations they made in regard to the provisions of the latter Act by way of comparing the same with the provisions of the former which they were there considering would not have the effect of putting on the provisions of the latter Act a construction which would be any avail to the respondent before us.
The ratio which was adopted by the learned Judges was quite correct but it appears that they digressed into a consideration of the provisions of the in order to emphasize the character and position of the commission appointed under the even though it was not strictly necessary for the purpose of arriving at their decision, though it must be mentioned that while discussing the nature and function of the commission they expressed themselves correctly as under: "The Commission governed by the is appointed by the State Government "for the information of its own mind", in order that it should not act, in exercise of its executive power, "otherwise than in accordance with the dictates of justice & equity" in ordering a departmental enquiry against its officers.
It is, therefore, a fact finding body meant only to instruct the mind of the Government without producing any document of a judicial nature".
We are of the opinion that neither of these cases which have been relied upon by Shri Purshottam Tricamdas is of any help to the respondent or detracts 976 from the true position as we have laid down above.
The only conclusion to which we can come on a consideration of all the relevant provisions of the Act is that the Commissioner appointed under the Act is not a Court within the meaning of the .
In view of the conclusion reached above, we do not think it necessary to go into the question whether the Commissioner appointed under the Act is a Court subordinate to the High Court within the meaning of the .
Nor do we think it necessary to express any opinion as to whether the letter complained against constituted a contempt of Court.
We may, however, note in passing that the circum stances under which the letter came to be addressed by the appellant to the Commissioner, the terms thereof and the order which was passed by the Commissioner on the application made by the respondent to proceed against the appellant in contempt on date the 2nd February 1953 lend support to the argument which was advanced on behalf of the appellant that the letter complained against did not constitute contempt of Court.
The result, therefore, is that the appeal will be allowed, the order passed against the appellant by the Court below will be set aside and the original Criminal Miscellaneous Petition No. 10 of 1953 filed by the respondent in the High Court of Judicature at Patna will stand dismissed.
The fine if paid will be refunded.
| The petitioner was convicted for the offence of murder under section 302, I.P.C. and sentenced to death by the Trial Court.
The Judicial Commissioner, Goa confirmed the death sentence in the referred trial under section 374 of the 1898 Code of Criminal Procedure.
Dismissing the special leave petition to appeal, the Court.
HELD: (1) Discretion to choose between the capital sentence and life term under section 354(3) of the 1973 Code of Criminal Procedure is limited.
If the offence has been perpetrated with attendant aggravating circumstances, if the perpetrator discloses an extremely depraved state of mind and diaboli cal trickery in committing the homicide, accompanied by brutal dealing with the cadaver, infliction of death penalty cannot be avoided.
Special leave under article 136.
of the Constitution cannot be granted when it is difficult to fault the court on any ground, statutory or precedential.
[772 G H, 773 A] Ediga Annamma; , , referred to.
(2) Section 377 of 1898 Code of Criminal Procedure applies only to situations where the court at the time of the con firmation of the death sentence consists of two or more Judges.
Section 4(1)(i) of the Code of Criminal proce dure, in relation to a Union Territory, brings within the definition of "High Court", the highest court of criminal appeal for that area, namely, the Judicial Commissioner 's Court.
If, at the time the case for confirmation of death sentence is being heard, the Judicial Commissioner 's Court consists of more than one Judge, at least two Judges must attest the confirmation.
So long as one Judicial Commis sioner alone functions in the Court, section 377 was not attracted.
In the present case there is nothing illegal in a single (i.e.the only) Judicial Commissioner deciding the reference.
[773 D F] (3) Referral jurisdiction under section 377 is akin to appeal and revision.
Regulation 8(1) of the Goa, Daman and Diu (Judicial Commissioner 's Court) Regulation 1963 does not disentitle the Judicial Commissioner from exercising power section 377, Cr.
In the instant case, the Judicial Commis sioner 's confirmation of death sentence is not without jurisdiction.
[774 C D] (4) Judicial clemency cannot attenuate the sentence of death on the sole circumstance that the accused was a young man and the sentence of death been haunting him for long without other supplement factors or in the face of surround ing beastly circumstances of the crime.
Possibly, Presiden tial power wider but judicial power is embanked.
[774 E F] 10 707SCI/77 772
|
N: Criminal Appeal No. 281 of 1978.
Appeal by Special Leave from the Judgment and Order dated 4.11.77 of the Allahabad High Court at Allahabad in Criminal Appeal No. 1495 of 1977.
L. N. Gupta for the Appellants.
H. R. Bhardwaj and R. K. Bhatt for the Respondent.
O. P. Rana for the Complainant.
The Judgment of the Court was delivered by CHANDRACHUD, C. J.
This is yet another case in which a young housewife has been done to death by a trusted servant of the family.
Her three year old son was murdered along with her and her five year old son was seriously injured.
The incident occurred on May 6, 1971 at about 2.00 p.m. in House No. F 4/3, Kanoria Colony Quarters, Renukoot, where one Mohan Lal Khetan used to live with his wife Geeta and two sons Anil and Sunil aged three and five years respectively.
Mohan Lal left for Allahabad for some work on the morning of the 6th.
His wife and children took their food at about 1.00 p.m. and while they were resting, with a cooler on, they were assaulted as a result of which Geeta and Anil died and Sunil received serious injuries.
The only other person who was then present in the house was the appellant, who was working as a household servant for a few years before the incident.
His presence in the house at the material time is beyond the pale of controversy and indeed his very defence is that some intruders entered the house and caused injuries to Geeta, her two sons and to he himself.
The appellant received quite some injuries in the incident which led to the death of Geeta and Anil.
Sunil, the five year old son of Geeta, was examined by the prosecution as the sole eye witness in the case and his evidence has been accepted by the Sessions Court and the High Court.
Shri L. N. Gupta, who has argued the case on behalf of the appellant with admirable precision and brevity, contends that no reliance should be placed on Sunil 's evidence because he is a young child of immature understanding, that no oath was administered to him by reason of his lack of understanding of the sanctity of oath, that he did not implicate the appellant for two days or so at least and that his 262 statement was recorded by the police about 20 days after the incident.
Counsel further argues that in the very nature of things, it would be impossible for a young lad of 13 like the appellant to overpower, gag, assault and slay a well built woman of 30 that Geeta was.
The motive of the offence, according the Courts below, was to outrage the modesty of Geeta.
It is urged that a boy of 13 could not possibly have entertained any such lewd thoughts.
According to medical evidence, the injuries on the person of Geeta and the appellant were partly caused by a blunt weapon and partly by a sharp edged weapon.
That means that two different kinds of weapons were used against both of them and, what is more important, the same two weapons.
According to counsel, that is more consistent with a stranger or strangers attacking Geeta and the appellant than with the appellant attacking Geeta.
The appellant could not have attacked Geeta with two different weapons and even if Geeta were to retaliate, she could not have caused injuries to the appellant with the same two weapons.
The final submission is that the prosecution case is rendered suspicious because the evidence of discovery of the iron rod, the knife, two gold bangles and the cash at the instance of the appellant has been disbelieved by the Sessions Court and the High Court.
We have given our anxious consideration to these weighty considerations but on a close scrutiny of the evidence and the circumstances of the case we find ourselves unable to differ from the Courts below in regard to the assessment of the evidence in the case.
Counsel is not right in saying that the appellant was only thirteen years of age in May 1971.
It appears that the appellant gave his age as 13 during the committal proceedings but the age so given cannot be accepted as correct merely because, as counsel contends, the prosecution did not dispute the correctness of the assertion made by the appellant.
There was no assertion in regard to the appellant 's age and indeed it was not put in issue at any stage of the proceedings.
The point regarding the appellant 's age is being raised for the first time in this Court in the form and context in which it is raised by Shri Gupta.
The reference to the "tender age" of the appellant was made in the Sessions Court on the question of sentence and not that of guilt, nor indeed in the context that the nature of the offence is such that the appellant could not have committed it, being just a boy of 13 or so.
It is not a matter of uncommon experience that the age of an accused is mentioned in the committal proceedings without proper inquiry or scrutiny since, in most cases, nothing turns on it.
In fact if the appellant 263 was only 13 years of age at the time of the offence, the Sessions Court would not have failed to notice that fact and it would be amazing that the appellant 's advocates in the Courts below should not advert to it, though the minutest contentions were raised in arguments and subtle suggestions were made to prosecution witnesses in their cross examination.
During the trial, the appellant was suspected to be of a deranged mind and was for that reason sent to the mental hospital at Varanasi.
Exhibit K 20, which is the abstract of medical history maintained in that hospital, shows that at the time of the appellant 's admission to the hospital on July 19, 1973 he was 23 years of age.
The occurrence having taken place in May 1971, the appellant would be about 21 years of age at the relevant time.
That is what the High Court has found while dealing with the question of sentence when it was urged before it that the death sentence should not be confirmed since the appellant was just 14 or 15 years of age on the date of offence.
We concur in view of the High Court on the question of the appellant 's age and agree with it that the age given by the appellant in the committal Court and the Sessions Court was a random statement not based on any reliable data.
We cannot accept that an able bodied boy of eighteen or nineteen could not have committed an assault of the present nature for the motive alleged.
But we might mention that we are not in entire agreement with the Sessions Court and the High Court that the motive of the offender was necessarily to outrage the modesty of Geeta.
It is not possible to record a positive finding that the motive necessarily was to commit theft or robbery, but the nature of injuries on the person of Geeta does not fully bear out the inference that the motive of the outrage was concerned with sex.
There was no injury at all on Geeta 's private parts or anywhere nearabout, not even a scratch or an abrasion.
Most of the injuries were caused to her on the face and head.
It seems to us more probable that Geeta woke up while the almirah was being ransacked and she paid the price of her courage.
She resisted the robbery and was therefore done to death.
Shri Gupta made a very plausible case against the acceptance of the evidence of Sunil, the child witness.
We must confess that if the case were to rest solely on Sunil 's uncorroborated testimony, we might have found it difficult to sustain the appellant 's conviction.
But there are unimpeachable and the most eloquent matters on the 264 record which lend an unfailing assurance that Sunil is a witness of truth, not a witness of imagination as most children of that age generally are.
As we have stated earlier, the presence of the appellant is undisputed and is indeed indisputable.
The appellant himself received quite a large number of injuries during the incident, which proves his presence in the house at the relevant time beyond the shadow of a doubt.
If the appellant was present in the house at the time when Geeta was assaulted, it becomes necessary to examine his conduct without shifting the burden of proof on to him.
If the mistress of the house was killed by robbers, we should have thought that the appellant would raise a hue and cry at least after the robbers had made good their escape.
He did nothing of the kind and a little while later, he quitely walked to a neighbour and trotted out the story that a few "Badmashes" intruded into the house and killed Geeta and her son.
Not only does the conduct of the appellant corroborate the evidence of Sunil, but the very pattern of the crime corroborates that it is the appellant who committed it.
Anil was sleeping alongside his mother and he seems to have received an injury while the mother was assaulted.
But Sunil was assaulted obviously in order that he should not be left alive to identify the culprit.
The culprit whom Sunil could easily identify was the appellant who was a household servant engaged mainly to look after the two boys.
Total strangers, whom even the appellant could not identify except as "Badmashes", would have no reason whatever to assault Sunil.
The most important of the circumstances which corroborates the evidence of Sunil is the nature of injuries which were found on the person of the appellant.
Those injuries are typically of the kind which a woman in distress would cause while defending herself.
There is a trail of scratches and abrasions on the front portion of the appellant 's body and it is not without significance, as contended by Shri Bhardwaj who appears on behalf of the State of U.P., that the injuries on Geeta are also all on the front portion of her body.
A 'Badmash ' would not deal with the appellant with his nails, if indeed he wanted to put the appellant out of harm 's way.
There is one more argument which requires to be dealt with, namely, that two different weapons and the same two weapons were used against both Geeta and the appellant.
We are not quite sure whether Geeta had received an incised injury because, the injuries which were found on her forehead can give the appearance 265 of incised injuries, if caused by an iron rod.
The skin just above a hard surface can break by a severe blow and give the appearance of an incised injury.
But even assuming that the same two weapons were used on Geeta as also the appellant, it does not militate against the commission of the crime by the appellant himself.
It is clear from the evidence of Dr. Guha and Dr. Sharma that all the injuries on the person of both Geeta and the appellant were on the front portions of their respective bodies.
It is also clear that the injury which resulted in the death of Geeta as also her son Anil was caused by the iron rod.
We are inclined to the view that the weapons with which Geeta was defending herself at different stages of her life saving fight with the appellant were snatched by the appellant and he hit her with those weapons.
That is how similar injuries were found on the person of both.
We, therefore, agree with the Sessions Court and the High Court that it is the appellant who committed the murder of Geeta and her son Anil and caused injuries to Sunil.
Crimes like the one before us cannot be looked upon with equanimity because they tend to destroy one 's faith in all that is good in life.
A starving youth was given shelter by a kindly couple.
The reward of that kindness is the murder of the woman and her child.
We cannot condemn adequately the utterly disgraceful and dastardly conduct of the appellant.
But all the same, the question as to whether the death sentence is called for has to be examined in each case with dispassionate care.
The appellant was just about 21 years of age on the date of the offence and, very probably, a sudden impulse of sex or theft made him momentarily insensible.
The evidence of Sunil shows that immediately after the crime, the appellant was found sitting in the chowk of the house crying bitterly.
Having achieved his purpose he did not even try to run away, which he could easily have done since, his injuries were not of such a nature as to incapacitate him from fleeing from an inevitable arrest.
It would also appear that though he was not insane at the time of the offence in he sense that he did not know the nature and consequences of what he was doing, still he was somewhat unhinged.
He was suspected to be insane during the trial and was kept in a mental hospital from July 19, 1973 to February 2, 1975.
He was eventually declared fit to stand his trial but the evidence of Dr. R. N. Srivastava (P.W. 13), who was in charge of the hospital and the notes (Exhibit Ka 20) of the hospital show that the appellant had 266 shown aggressive symptoms and once, he had attacked another patient.
Coupled with these considerations is the fact that the basic evidence in the case is of a child of five who answered many vital questions with a nod of the head, one way or the other.
A witness who, by reason of his immature understanding, was not administered oath and who was privileged, by reason of his years, not to make his answers in an intelligible and coherent manner is unsafe to be trusted wholesale.
We cannot also overlook, what Shri L. N. Gupta highlighted, that Sunil 's statement was recorded about 20 days later.
There is valid reason for the delay, namely, his state of mind (he was a witness to the murder of his mother and an infant brother) and the state of his body (he was gagged as a result of which his clavicle was fractured).
Children, in the first place, mix up what they see with what they like to imagine to have seen and besides, a little tutoring is inevitable in their case in order to lend coherence and consistency to their disjointed thoughts which tend to stray.
The extreme sentence cannot seek its main support from evidence of this kind which, even if true, is not safe enough to act upon for putting out a life.
The learned Sessions Judge did not ask the appellant what he had to say on the question of sentence, holding that section 235 (2) of the Code of Criminal Procedure, 1973 did not, by reason of its section 484 (2) (a), apply to trials which were pending on the date when the new Code came into force.
We wish that the Sessions Court had questioned the appellant on the sentence, whether the letter of section 235(2) governed the matter or not.
That would have furnished to the Court useful data on the question of sentence which it proposed to pass.
In any case, the trial would not have been invalidated if the Court were to apply the provisions of that section which were introduced into the Code ex debito justiciae.
The learned Judge had before him a safe expedient, the benefit of which he needlessly denied to himself on technical considerations.
Finally, the appellant has been in jail for ten long years.
He has probably earned by now the right to be released, after taking into account the remissions admissible to him, were he sentenced to life imprisonment.
We suppose, though we are not confident, that some celebrity or the other must have visited the jail and large, wholesale remissions from sentence must have been doled out to the prisoners in order to commemorate the great and unusual event.
267 In the result, we confirm the order of conviction but set aside the sentence of death imposed upon the appellant and sentence him to imprisonment for life for the offence under section 302 of the Penal Code.
The sentence under section 307 will stand but the two sentences will run concurrently.
S.R. Appeal partly allowed.
| Based on the audit report dated January 5, 1973 revealing an embezzlement having been committed by the Respondent on 22.8.1972, a challan was presented against him on the 13th October, 1976 under Sec.
406 Penal Code for misappropriating the amounts deposited with him as a Cashier of the Tanda Badha Co operative Society, district Patiala.
The Trial Court convicted the respondent under section 406 Penal Code and sentenced him to rigorous imprisonment for one year and to pay a fine of Rupees one thousand.
The respondents ' appeal to the High Court was allowed accepting the plea of bar of limitation under section 468 of the Criminal Procedure Code.
Hence the State appeal after obtaining special leave of the Court.
Dismissing the appeal, the Court, ^ HELD: (1) Taking any of these dates, namely, 22nd August 1972, (Commission of embezzlement), and 5th January 1973 (date of detection of embezzlement) the prosecution was barred by limitation under sections 468(2) (a) and 469(b) of the Code of Criminal Procedure.
Therefore, the conviction and the sentence of the respondent as also the entire proceedings culminating in his conviction became non est.
G] (ii) The object of the Criminal Procedure Code in putting a bar of limitation on prosecution was clearly to prevent the parties from filing cases after a long time, as a result of which material evidence may disappear and also to prevent abuse of the process of the court by filing vexatious and belated prosecutions long after the date of the offence.
The object which the statute seeks to subserve is clearly in consonance with the concept of fairness of trial as enshrined in article 21 of the Constitution of India.
It is, therefore, of the utmost importance that any prosecution, whether by the State or a private party must abide by the letter of law or take the risk of the prosecution failing on the ground of limitation.
[351 E F] 350
|
Civil Appeal Nos.
524 to 539 of 1961.
Appeals by special leave from the judgment and order dated July 5, 1961, of the Patna High Court, in Misc.
Judicial cases Nos. 670 to 675 of 1959.
WITH Civil Appeal No. 434 of 1961.
Appeal by special leave from the judgment and order dated August 8, 1960, of the Patna High Court, in Misc.
Judicial Case No. 334 of 1960.
A.V. Viswanatha Sastri and B.P. Jha, for the appellants.
(in C. As.
534 to 538 and 434 of 1961).
B.P. Jha, for the appellant (in C.A. No. 539 of 1961).
Lal Narain Sinha, L.S. Sinha and S.P. Verma, for the respondents.
December 1.
The Judgment of the Court was delivered by HIDAYATULLAH, J.
The judgment in Civil Appeal No. 534 of 1961 will dispose of Civil Appeals Nos. 535 to 539 of 1961.
In these appeals, private operators of omnibuses challenge the orders of the Appeal Board of the State Transport Authority, by which it set aside the renewal of the permits on certain routes granted by the South Bihar Regional Transport Authority, Patna.
The appellants held 730 previously stage carriage permits over certain routes and which were due to expire in December, 1958 or in January, 1959.
They had applied for renewal of their permits under section 58(2) of the Motor Vehicles Act.
Under a scheme framed and notified on July 8, 1957, vide Notification No. P 2 203/57T/4794, the route, Gaya to Khijirsarai, was notified under section 68D of the Motor Vehicles Act.
The Rajya Transport, Bihar, was exclusively allowed to operate on that route.
In Civil Appeals No. 535 to 538 of 1961, the Rajya Transport, Bihar, filed objections against the renewal of the permits.
In Civil appeals Nos. 534 and 539 of 1961, no objections were filed.
The route, Gaya to Khijirsarai, which may be called conveniently route 'AB ' formed part of routes, on which the appellants were operating and in respect of which they had asked for renewal of their permits.
The south Bihar Regional Transport Authority, however, renewed the permits of the appellants, holding that route 'AB ' was different from the routes, for which renewal was demanded.
Against the orders of the Regional Transport Authority, appeals were filed by the Rajya Transport, Bihar in all the cases, that is to say, in those cases in which the Rajya Transport, Bihar, had objected, and those in which it had not objected.
While these appeals were pending, the State of Bihar, acting under section 3 of the (64 of 1950) notified on April 20, 1959 as follows: "No. R.T. Cor.
1/59 3090 In exercise of the powers conferred by section 3 of the Road Transport corporation Act, 1950 (LXIV of 1950), the Governor of Bihar is pleased to establish with effect from the 1st May, 1959 a Road Transport Corporation, for the State of Bihar, to be called, the Bihar State Road Transport Corporation '.
731 2.
The said Corporation shall with effect from the said date, exercise all the powers and perform all the functions which are at present being exercised and performed by the Rajya Transport, Bihar.
By order of the Governor of Bihar.
K. B. Sharma, Dy.
" At the hearing of the appeals, the Government Advocate, Mr. Lal Narain Sinha, appeared for the Road Transport Corporation.
Objection was taken to the competency of the appeals on two grounds.
In those cases in which the Rajya Transport, Bihar, had not objected to the renewal of the permits before the Regional Transport Authority, it was contended that it had no locus standi to file appeals.
In those cases in which it had so objected, the ground was that the Road Transport Corporation could not, in law, represent the Rajya Transport, Bihar, in the appeals filed by the latter.
On merits, it was contented that the order of the Regional Transport Authority that route ' AB ' though part of the routes for which renewal was asked, was a different route, and the State Corporation had an exclusive right to ply omnibuses on routes 'AB ' did not affect the rights of the appellants to ply their omnibuses on routes, which were entirely different.
The Government Advocate contended that, on the analogy of the principle underlying O. 22, Re. 10 of the Civil Procedure Code, the Road Transport Corporation on which devolved the powers and functions of the Rajya Transport, Bihar, could prosecute the appeals.
He also contended, in the alternative, that he was representing also the Rajya Transport, Bihar, and that the appeals were not defective.
The Board accepted the argument of the Government Advocate, and set aside the orders of renewal passed by the Regional Transport Authority.
The appellants then filed petitions 732 under articles 226 and 227 of the Constitution challenging the order of the Board on many grounds.
The High Court, by its judgment dated July 5, 1961, dismissed all the petitions.
In the order under appeal, the High Court considered the competency of the appeals, and held that the Rajya Transport, Bihar, was competent to prosecute the appeals before the Appeal Board.
In dealing with the question whether the Appeal Board was entitled to interfere with the order of the Regional Transport Authority at the instance of the Rajya Transport in those cases, where the Rajya Transport had not filed objections under the Motor Vehicles Act, the High Court held that it was not necessary to express an opinion on the correctness of the argument, because the Regional Transport Authority was not competent to grant a renewal, inasmuch as such a grant was a direct violation of the scheme approved by the State Government and published in the Official Gazette.
On the merits, the High Court was of opinion that under section 68F(2) (c) (iii), the Regional Transport Authority could curtail the length of the route covered by the permit, and exclude the portion, which overlapped a notified route.
The present appeals have been filed against the order of the High Court, with the special leave of this Court.
These appeals thus fall into two groups.
In one group are Civil Appeals Nos. 534 and 539 of 1961 and in the other are Civil Appeals Nos.
535 to 538 of 1961.
In the former, the grant of renewal of the permits has been made without any objection, and in the latter, in spite of the objections filed by the Rajya Transport.
The competency of the appeals before the Appeal Board is involved in both the groups, though on different grounds.
The answer to the different objections is, however, the same.
733 In Abdul Gafoor vs State of Mysore, the effect of notifying a scheme was considered by this Court, and it was there stated that when a scheme has been notified under Chap.
IVA of the Motor Vehicles Act, and an application is made for the grant of a permit on a route notified under the scheme by a private operator, the Regional Transport Authority has no option but to refuse the permit to the private operator, if the State Transport Undertaking has either applied for a permit or has already been granted one.
In all the present cases, the State Transport Undertaking had already been granted a permit over route 'AB ', and if the private operators, that is to say, the appellants, were not entitled, in law, to the renewal of their permits for routes which embraced also route 'AB ', then the Regional Transport Authority could not but refuse to renew the permits.
It was observed in Abdul Gafoor 's case that the duty of the Regional Transport Authority was merely mechanical, and that it was required to take note of routes which had been notified and to adapt its orders so as to be in conformity with the notified scheme.
In view of the fact, therefore, that the scheme had been notified and route 'AB ' had already been granted to the Rajya Transport and/or the State Transport Undertaking, the Regional Transport Authority was incompetent to renew a permit over a route embracing route 'AB '.
The Regional Transport Authority not having done its duty under the law, the Appeal Board was entitled, when the record was before it, to revise the order of the Regional Transport Authority, even if the appeal was incompetent, in view of the vast powers of revision under section 64A.
That section, omitting the provisos, reads: "The State Transport Authority may, either on its own motion or on an application made to it, call for the record of any case in which an order has been made by a Regional 734 Transport Authority and in which no appeal lies, and if it appears to the State Transport Authority that the order made by the Regional Transport Authority is improper or illegal, the State Transport Authority may pass such order in relation to the case as it deems fit." The High Court came to the conclusion that it should not interfere, in its discretionary powers under articles 226 and 227, with the order of the Appeal Board, because even if the appeal for some reason was incompetent, the Appeal Board had the record before it, and gave effect to the correct legal position arising from a notified scheme.
The same view was expressed also in Samarth Transport Co. vs Regional Transport Authority, Nagpur.
In our opinion, we should not interfere on this ground either.
In this connection, the difference between the two sets of cases arising from the fact whether the Rajya Transport, Bihar, had objected or not, completely disappears.
We are now concerned with the merits of the contention that where the scheme notifies, as a route, a part of a larger route operated by a private operator, the two routes must be regarded as different, and the private operator cannot be prevented from running his omnibuses on that portion of his route which is a different route, although notified.
Reliance is placed upon a decision of the Privy Council in Kelani Valley Motor Transit Co., Ltd., vs Colombo Ratnapura Omnibus Co., Ltd. There, the Privy Council was concerned with two Ordinances promulgated in Ceylon intituled the Motor Car Ordinance (No. 45 of 1938) and the Omnibus Service Licensing Ordinance (No. 47 of 1942).
By the first schedule, para I of the latter Ordinance, it was provided that if applications were made by two or more persons for road service licences in respect of the same route, preference should be given to (a) an 735 application from a company or partnership comprising the holders of all the licences for the time being in force under the Motor Car Ordinance No. 45 of 1938, authorising the use of omnibuses on such route, and (b) an application from a company or partnership comprising the holders of the majority of the licences referred to in (a) above.
Section 7, sub section 1, provides: "The issue of road service licences under this Ordinance shall be so regulated by the Commissioner as to secure that different persons are not authorised to provide regular omnibus services on the same section of any highway: Provided, however, that the Commissioner may, where he considers it necessary to do so having regard to the needs and convenience of the public, issue licences to two or more persons authorizing the provision of regular omnibus services involving the use of the same section of a highway, if, but only if (a) that section of the highway is common to the respective routes to be used for the purposes of the services to be provided under each of the licences, but does not constitute the whole or the major part of any such route." The real question in the case was whether the appellant there could take into account for the purpose of the first schedule, six omnibuses which had been licenced for the route, Panadura to Badulla via Colombo and the low level road.
Panadura is 16 miles along the coast to Colombo and thence from Colombo to Ratnapura is 50 miles and from Ratnapura to Badulla, a further 80 miles.
It was clear that the route from Panadura to Badulla was not the same or substantially the same route as the route, Colombo to Ratnapura; but if a licence for an omnibus on the route, Panadura to 736 Badulla, was one authorising the use of the omnibus on the route, Colombo to Ratnapura, then six omnibuses plied by the appellant could be taken into account to turn the scale between the parties.
Sir John Beaumont in expounding the meaning of the word "route" observed as follows: "If 'route ' has the same meaning as 'highway ' in the Ordinance this argument must prevail, since admittedly an omnibus running on the highway from Panadura to Badulla will pass over the whole of the highway between Colombo and Ratnapura, but in their Lordships ' opinion it impossible to say that 'route ' and 'highway ' in the two Ordinances are synonymous terms. .
A 'highway ' is the physical track along which an omnibus runs, whilst a 'route ' appears to their Lordships to be an abstract conception of a line of travel between one terminus and another, and to be something distinct from the highway traversed.
" This distinction between "route" and "road" is relied upon by the appellants to show that the notified route, which we have called 'AB ' was a different route from the routes for which renewal of permits was demanded, even though route 'AB ' might have been a portion of the "road" traversed by the omnibuses of the appellants plying on their "routes.
" The distinction made by the Privy Council is right; but it was made with reference to the words used in the Ordinances there under consideration.
The question is whether a similar distinction can be made in the context of the Motor Vehicles Act.
Mr. Viswanatha Sastri appearing for the appellants took us through sections 42 to 57 of the Motor Vehicles Act and drew our attention to those in which the word "route" has been used, contra distinguished from the word "area", and contended that everywhere the word "route" is used in the sense of a notional line between two 737 termini running a stated course, and is used in contradistinction to what may be conveyed by the word "area ".
In Kondala Rao vs Andhra Pradesh State Road Transport Corporation, this court, in dealing with the scheme of the Motor Vehicles Act, declined to make any such distinction between "route" and "area".
This Court, speaking through Subba Rao, J., observed at p. 93: "Under section 68C of the Act the scheme may be framed in respect of any area or a route or a portion of any area or a portion of a route.
There is no inherent inconsistency between an 'area ' and a 'route '.
The proposed route is also an area limited to the route proposed.
The scheme may as well propose to operate a transport service in respect of a new route from point A to point B and that route would certainly be an area within the meaning of section 68C." In any event, under section 68C it is provided that a scheme may notify a route or an area or a portion of a route or a portion of an area, and the exclusion of the private operators from the whole route or the whole area or a part of the route or a part of that area, as the case may be, may be either complete or partial, and under section 68F(2) (c) (iii), the Regional Transport Authority may modify the terms of any existing permit so as to "curtail the area or route covered by the permit, in so far as such permit relates to the notified area or notified route ".
This means that even in those cases where the notified route and the route applied for run over a common sector, the curtailment by virtue of the notified scheme would be by excluding that portion of the route or, in other words, the " road " common to both.
The distinction between " route " as the notional line and " road " as the physical track disappears in the working of Chap.
IVA, because you cannot curtail the route without curtailing a portion of the road, 738 and the ruling of the Court to which we have referred, would also show that even if the route was different, the area at least would be the same.
The ruling of the Judicial Committee cannot be made applicable to the Motor Vehicles Act, particularly Chap.
IVA, where the intention is to exclude private operators completely from running over certain sectors or routes vested in State Transport Undertakings.
In our opinion, therefore, the appellants were rightly held to be disentitled to run over those portions of their routes which were notified as part of the scheme.
Those portions cannot be said to be different routes, but must be regarded as portions of the routes of the private operators, from which the private operators stood excluded under section 68F (2)(c)(iii) of the Act.
The decision under appeal was, therefore, correct in all the circumstances of the case.
This leaves over for consideration Civil Appeal No. 434 of 1961.
There, the question which arose was decided in the same way in which we have disposed of the other appeals on merits.
Ramaswami, C.J., and Kanhaiya Singh, J., referred to an earlier decision (M.J.C. No. 354 of 1960 decided on May 13, 1960) given by the Chief Justice and Chaudhuri, J., in which they had applied the Privy Council case, and made a distinction between a route which was longer than the notified route, though running for part of the way along the notified route and the notified route.
In the judgment from which Civil Appeal No. 434 of 1961 arises, the learned Chief Justice has declined to follow his earlier ruling which, he considers, was given perincuriam, because the provisions of section 68 F(2)(c)(iii) of the Motor Vehicles Act were not taken into account.
After considering the matter in the light of that section, the Divisional Bench has reached the same conclusion as we have, and along almost the same line of reasoning.
In view of what we have said in Civil Appeal No. 534 of 1961, Civil Appeal No. 434 of 1961 must also fail.
739 In the result, the appeals are dismissed, but in the circumstances of the case, we make no order about costs.
Appeals dismissed.
| Under a scheme framed and notified under the Motor Vehicles Act a certain route was notified under section 68D of the Act and the Rajya Transport, Bihar was exclusively allowed to operate on that route.
The said notified route formed part of routes on which the appellants were operating, and in respect of which they had asked for renewal of their permits.
The Rajya Transport, Bihar filed objections against the renewal of the permits in some cases but in other case no objection was filed.
The question which arose for decision was whether the permits of the appellant could be renewed by the Regional Transport Authority.
The appellants contended that as the notified route formed part of a larger route operated by a private operator, the two routes must be regarded as different route, and the private operator could not be prevented from running his omnibuses on that portion of his route, which was a different route, although notified.
^ Held, that as decided by this Court in Abdul Gafoor 's case, the Regional Transport Authority had no option but to refuse the permit to the private operator, if the State Transport Undertaking had either applied for a permit or had already been granted one.
Abdul Gafoor vs State of Mysore, A.I.R. 1961 S.C. 1956, followed.
If the Regional Transport Authority did not do its duty under the law the Appeal Board was entitled, when the record was before it, to revise the order of the Regional Transport Authority under its revisional powers as provided in section 64A of the Act, even if the appeal was incompetent.
Samarth Transport Co. vs Regional Transport Authority Nagpur, ; , followed.
729 In the present case the appellants were not entitled to run over those portions of their routes which were notified as part of the scheme.
Those portions could not be said to be different routes, but must be regarded as portions of the routes of the private operators, from which the private operators stood excluded under section 68F (2) (c) (iii) of the Act.
Kelani Valley Motor Transit Co. vs Colombo Ratnapura Omnibus Co., and Kondala Rao vs Andhra Pradesh State Road Transport Corporation, A.I.R. 1961 S.C. 82, considered.
|
Appeal No. 213 of 1967.
Appeal from the Judgment and order dated February, 17th 1965 of the Patna High Court in First Appeal No. 113 of 1960.
M. C. Chagla, D. P. Singh, section C. Agarwal, V. J. Francis, R. Goburdhun and D. Goburdhun, for the appellant.
M. C. Setalvad, Sarjoo Prasad, A. G. Ratnaparkhi and Rajiv Shah, for respondent No. 1.
The Judgment of the Court was decided by Hegde, J.
In this appeal by certificate we are to consider the effect of the will executed by one Raghunath Prasad Singh, on August 31, 1938.
The said testator died very soon after the execution of the will leaving behind him his widow Jageshwar Kuer, 72 his daughter Satrupa Kuer and his two grand daughters Talkeshwari Devi (the appellant herein) and Sheorani.
The appellant and Sheorani are the daughters of Sukhdeo Prasad Singh, the son of the testator who had predeceased the testator.
Jageshwar Kuer died in November 1948 and Sheorani Devi on November 1, 1949 without leaving any issue.
The dispute in this case is as to who is entitled to the properties devolved on Sheorani under the provisions of the will left by the testator.
For deciding that question we have to refer to the relevant provisions of the will.
the genuineness or validity of which is not in dispute.
The will in question provides that after the death of the testator a portion of his properties (detailed in the will) was to devolve on Jageshwar Kuer absolutely and the remaining properties are also to devolve on her but therein she was to have only a life interest.
The will further provides that after her death "the entire property will be treated as 16 annas property out of which 5 annas 4 pies(five annas four pies) share constituting proprietary interest will pass to Shrimati Satrupa Kuer alias Nan daughter of me, the executant and her heirs as absolute owners and the remaining 10 annas 8 pies (annas ten and eight pies) share will pass to both the minor grand daughters, (1) Shrimati Talkeshwari Kuer alias Babu and (2) Shrimati Sheorani Kuer alias Bachan in equal shares as absolute proprietary interest" (cf. 4 of the will).
Clause 5 of the will says : "That if one of the two grand daughters named above, dies issueless, then under such circumstances the other living grand daughter will enter into possession and occupation of the entire 10 annas 8 pies and become the absolute owner thereof.
" At the time of the death of the testator, the appellant as well as Sheorani Kuer were minors.
After the death of Jageshwar Kuer, the appellant and her sister Sheorani Kuer divided the ten annas eight pies share of the properties which devolved on them in equal shares and each one came into possession of her share of the properties.
Immediately after the death of Sheorani Kuer, the appellant instituted a suit for possession of the properties that fell to the share of Sheorani Kuer purporting to base her claim on clause 5 of the will to which we have earlier made reference.
That suit was resisted by the first defendant, the husband of Sheorani.
He claimed that he was entitled to those properties as the heir of his wife.
The trial court dismissed the plaintiff 's suit and the decision of the trial court was upheld by the High Court.
It was contended on behalf of the appellant that in view of clause 5 of the will, the appellant is entitled to the suit properties 73 as Sheorani Kuer had died issueless.
This contention, as mentioned earlier, did not find favour either with the trial court or with the appellate court.
They have held that on a proper leading of the will as a whole, it is clear that clause 5 ceased to be operative on the death of Jageshwar Kuer, thereafter caluse 4 of the will was the only operative clause so far as the rights of the appellant and Sheorani ware concerned.
It is undisputed that the duty of the court is to find out the intention of the testator but that intention has to be gathered from the language of the will read as a whole.
I+ is clear from clause 4 of the will that the testator wanted to give to his grant daughters an absolute right in the properties that were to devolve on them after the death of his wife, Jageshwar Kuer.
The estate bequeathed under clause 4 of the will is not a conditional estate.
Clause 5 of the will relates to devolution and it does not provide for any divestment of an estate which had vested.
The estate that vested on Sheorani was an absolute one.
The will does not provide for the divestment of that estate.
It is plain from the language of clause 5 of the will that it refers to the devolution, which means when the properties devolved on the two sisters on the death of Jageshwar Kuer.
We are, unable to accept the contention of Mr. M. C. Chagla, learned Counsel for the appellant that there is an , conflict between clause 4 and clause 5 of the will.
Clause 5 in our judgment would have come into force if the contingency mentioned therein had happened before the properties absolutely devoted on the two sisters.
Clause 5 cannot be considered as a defeasance clause.
If the testator wanted that the bequest made to any of his grand daughters should stand divested on the happening of any contingency, then he would have said so in the will, assuming that he could have made such a provision.
But the will nowhere says that the properties bequeathed to the appellant and her sister should cease to be their properties on their dying issueless.
Obviously what the testator intended was that if any of his grand daughters dies issueless before the devolution took place then the entire property should go to the other granddaughter.
To our mind the intention of the testator is plain from the language of the will.
To find out the effect of the will before us we have to look to sections 1 4 and 131 of the .
Section 124 says : "Where a legacy is given if a specified uncertain event shall happen and no time is mentioned in the will for be occurrence of that event, the legacy cannot take effect, unless such event happens before the period when the fund bequeathed is payable or distributable." L864 Sup.
CI/72 74 Illustration (ii) to that section says "A legacy is bequeathed to A, and in the case of his death without children, to B.
If A survives the testator or dies in his lifetime leaving a child, the legacy to B does not take effect.
" If section 124 applies to the facts of the case, as we think it does, then it is clear that the legacy claimed by the appellant is unavailable as the contemplated contingency did not occur before the fund bequeathed was payable or distributable.
Section 124 deals with devolution.
But as we shall presently see section 131 deals with divestment of an estate that had vested.
Mr. Chagla contends that the governing provision is section 131.
That section says: "A bequest may be made to any person with the condition super added that, in case a specified uncertain event shall happen, the thing bequeathed shall go to another person, or that in case a specified uncertain event shall not happen, the thing bequeathed shall go over to another person." had already vested.
It speaks of an estate going over to another person.
As seen earlier clause 5 of the will is not a defeasance clause.
A case somewhat similar to the one before us came up for consideration before the Judicial Committee of the Privy Council in Norendra Nath Sircar and anr.
vs Kamal Basini Dasi(1) Therein a Hindu at his death left three sons, the eldest of full age and the other two minors.
In his will were the directions "My three sons shall be entitled to enjoy all the movable and immoveable properties left by me equally.
Any one of the sons dying sonless, the surviving son shall be entitled to all the properties equally".
Interpreting this clause the Judicial Committee held that those words gave a legacy to the survivors contingently on the happening of a specified uncertain event, which had not happened before the period when the property bequeathed was distributable, that period of distribution being the time of the testator 's death.
In arriving at this conclusion, the Judicial Committee relied on section 111 of the Indian Succession Act, 1865.
That provision is similar to section 124 of the .
For the reasons mentioned above we are in agreement with the courts below that the suit brought by the appellant is un sustainable.
This appeal is accordingly dismissed with costs.
Appeal dismissed.
K.B.N. Appeal dismissed.
| By clause 4 of a will the testator bequeathed to his grand daughters T and S an absolute right in the properties that were to devolve on them after the death of his wife.
, Clause 5 further provided that if one of the two grand daughters were to die issueless the other living grand daughter was to enter into possession of the entire property as absolute owner.
After the death of the testator 's wife T and S divided the properties which devolved on them in equal shares.
On S dying issueless T instituted a suit for possession of the properties that fell to the share of S basing her claim on clause 5 of the will.
The suit was dismissed.
Dismissing the appeal, HELD : Clause 5 of the will relates to devolution, it does not provide for any divestment of an estate which had vested.
The estate that vested in S under clause 4 of the will was not a conditional estate, it was an absolute one.
The will does not provide for the divestment of that estate.
Clause 5 would have come into operation if the contingency mentioned therein had happened before the properties absolutely devolved on T and section What the testator intended was that if any of his grand daughters died issueless before the devolution took place then the entire property should go to another grand daughter.
The intention of the testator is plain from the language of the will.
[73 E] Section 124 of the applies to the facts of the case and not section 131.
The legacy claimed by the appellant is unavailable as the contemplated contingency did not occur before the fund bequeathed was payable or distributable.
Section 131 provides for the divestment of an estate which had already vested; it speaks of an estate going over to another person.
[74B] Norendra Nath Sircar and anr.
vs Kamal Basini Dasi, I.L.R. , referred to.
|
Civil Appeal No. 2764 of 1977.
(From the Judgment and order dated 24 11 76 of the Delhi High Court in C.R.P. No. 1264/76).
M. K. Ramamurthi and Faqir Chand for the appellant.
P. N. Lekhi and Girish Chandra for the respondent.
The Judgment of the Court was delivered by SHINGHAL J.
, This appeal by special leave is directed against an order of the Delhi High Court dated November 24, 1976, dismissing the appellant 's writ petition in timing.
The appellant was promoted to the post of Director in the All India Radio after some thirty years of service under the Government of India.
She was working as Joint Director, Family Planning, in the Directorate General of the All India Radio, when she was served with an order dated March 26, 1976, retiring her prematurely from service, with immediate effect, on the ground that she had already attained the age of 50 years on April 11, 1972, and the President was of the opinion that her retirement was in the "public interest".
The appellant made representation on April 6, 1976, but it was rejected on July 1, 1976.
She therefore filed a writ petition in the Delhi High Court under article 226 of the Constitution in which she, inter alia, made a mention of the hostile attitude of one V. D. Vyas who took over as Chairman of the 204 Central Board of Film Censors from her on February 11, 1972.
She also made a mention of the adverse remarks made by Vyas in her service record after she had ceased to work under him which, according to her, were "totally unfounded, biased, malicious and without any justification".
She stated that "her integrity had never been considered doubtful 28 years before or 4 years after the period of 21 months she spent under him.
" It was also contended that some baseless allegations were made against her because of "malicious vendetta" carried on by Vyas, and that the order of premature retirement was not in public interest but was "arbitrary and capricious", and that the retiring authority had not "applied its mind to the record" of her case.
It was particularly pointed out that as he was confirmed in the post of Director on April 28, 1973, with retrospective effect from July 10, 1970, any adverse remark in her confidential report before that date could not legitimately form the basis of the order of her premature retirement.
The appellant also pointed out that the order cast a stigma on her conduct, character and integrity and amounted to the imposition of one of the major penal ties under the Central Civil Services (Classification, Control and Appeal)Rules, 1965.
It is not in controversy, and has in fact been specifically stated in the order of premature retirement dated March 26, 1976, that the appellant was retired in the "public interest" under clause (j) (i) of rule 56.
of the, Fundamental Rules.
That rule provides as follows, "(j) Notwithstanding anything contained in this rule the appropriate authority shall, if it is of the opinion that it is in.
the public interest to do so have the absolute right to retire any Government servant by giving him notice of not less than three months in writing or three months ' pay and allowances in lieu of notice.
(i) If he is in Class I or Class II service or post and had entered Government service before attaining the age of thirty five years, after he has attained the age of fifty years.
" It is also not in dispute that the power under the aforesaid rule had to be exercised in accordance with the criteria and the procedure laid down in office memorandum No. F.33/13/61 Ests (A), dated 23rd June, 1969, of the Ministry of Home Affairs, Government of India.
It is however the grievance of the appellant that her premature retirement was not made in accordance with the requirements of the rule and the memorandum, but was ordered because of malice, and was arbitrary and capricious as the Government did not apply its mind to her service record and the facts and circumstances of her case.
It has been speci 205 fically pleaded that the power under F.R. 56(j)(i) has not been exercised "for the furtherance of public interest" and has been based on "collateral grounds".
The appellant has pointed out in this connection that her service record was examined in March, 1976, by the Departmental Promotion Committee, with which the Union Public Service Commission was associated, and the Committee considered her fit for promotion to the selection grade subject to clearance in the departmental proceedings which were pending against her, and that she was retired because of bias and animosity.
Our attention has also been invited to the favourable entry which was made in her confidential report by the Secretary of the Ministry.
Mr. Lekhi, learned counsel for the Union of India, produced the, relevant record of the appellant for our perusal.
While doing so he frankly conceded that there was nothing on the record which could justify the order of the appellant 's premature retirement.
He went to the extent of saying that the Government was not in a position to support that unfair order.
We have made a mention of the plea of malice which the appellant had taken in her writ petition.
Although she made an allegation of malice against V. D. Vyas under whom she served for a very short period and got an adverse report, there is nothing on the record to show that Vyas was able to influence the Central Government in making the order of premature retirement dated March 26, 1976.
It is not therefore the case of the appellant that there was actual malicious intention on the part of the Government in making the alleged wrongful order of her premature retirement so as to amount to malice in fact.
Malice in law IS, however, quite different.
Viscount Haldane described it as follows in Shearer and another vs Shield,(1) 'A person who inflicts an injury upon another person in contravention of the law is not allowed to say that he did so with an innocent mind; he is taken to know the law, and he must act within the law.
He may, therefore be guilty of malice in law, although, so far the state of his mind is concerned, he acts ignorantly, and in that sense innocently.
" Thus malice in its legal sense means malice such as may be assumed from the doing of a wrongful act intentionally but without just cause or excuse or for want of reasonable or probable cause.
It is however not necessary to examine the question of malice in law in this case, for it is trite law that if a discretionary power has been exercised for an unauthorised purpose, it is generally immaterial whether (1) at p. 813.
206 its repository was acting in good faith or in bad faith.
As was stated by Lord Goddard C.J., in Pilling vs Abergele Urban District Council(1), where a duty to determine a question is conferred on an authority which state their reasons for the decision, "and the reasons which they state show that they have taken into account matters which they ought not to have taken into account, or that they have failed to take matters into account which they ought to have taken into account, the court to which an appeal lies can and ought to adjudicate on the matter.
" The principle which is applicable in such cases has thus been stated by Lord Esher M.R. in The Queen on the Prosecution of Richard West brook vs The Vestry of St. Paneras(2).
" If people who have to exercise a public duty by exercising their discretion take into account matters which the Courts consider not to be proper for the guidance of their discretion, then in the eye of the law they have not exercised their discretion.
" This view has been followed in Sedlar vs Sheffield Corporation.(3) We are in agreement with this view.
It is equally true that there will be an error of fact when a public body is prompted by a mistaken belief in the existence of a nonexisting fact or circumstance.
This is so clearly unreasonable that what is done under such a mistaken belief might almost be said to have been done in bad faith; and in actual experience, and as things go, these may well be said to run into one another.
The influence of extraneous matters will be undoubted where the authority making the order has admitted their influence.
It will therefore be a gross abuse of legal power to punish a person or destroy her service career in a manner not warranted by law by putting a rule which makes a useful provision for the premature retirement of government servants only in the ' 'public interest", to a purpose` wholly unwarranted by it, and to arrive at quite a contradictory result.
An administrative order which is based on reasons of fact which do not exist raust therefore be held to be infected with an abuse of power.
So when it has been conceded by Mr. Lekhi that there was nothing on the record which would justify the impugned order dated March 26, 1976, of the appellant 's premature retirement under clause (j) (i) of (1) (2) at p. 375.
(3) 207 Rule 56 of the Fundamental Rules, and that the Government was not in a position to support that unfair order, that order must be set aside, for it amounts to an abuse of the power which was vested in the authority concerned.
The appeal is allowed with costs and it is ordered accordingly.
N.V.K, Appeal allowed.
| The respondent obtained an ex parte maintenance award for a sum of Rs. 250/ p.m. from the Court of competent jurisdiction under Sec.
125 Crl.
Subsequently, as a result of a compromise between the parties and resumption of cohabitation an application was made by the respondent praying that her application for maintenance be dismissed and the execution proceedings for recovery of maintenance be withdrawn.
Though the Trial Court did not proceed to recover the arrears of maintenance it did not set aside the award.
As the respondent was betrayed, she proceeded to enforce the order for maintenance.
The petitioner resisted the application on the ground that resumption of cohabitation, after the original order for maintenance revoked the said order.
This plea having been rejected right through the petitioner came up by way of special leave.
Dismissing the petition, the Court, ^ HELD: the Criminal Procedure Code is complete on the topic and any defence against an order passed under section 125 Crl.
P.C. must be founded on a provision in the Code.
Section 125 b a provision to protect the weaker of the two parties, namely, the neglected wife.
If an order for maintenance has been made against the deserter it will operate until vacated or altered in terms of the provisions of the Code itself, if the husband has a case under section 125(4)(S) or section 127 of the Code it ii open to him to initiate appropriate proceedings.
But until the original order for maintenance is modified or cancelled by a higher court or is varied or vacated in terms of section 125(4) or (S) or section 127, its validity survives.
It is enforceable and no plea that there has been cohabitation in the interregnum or that there has been a compromise between the parties can hold good as a valid defence.
[294G H, 295A] A statutory order can ordinarily be demolished only in terms of the statute.
That being absent in the present case the Magistrate will execute the order for maintenance [295 B] Fazal Din vs Mt. Fatima, A.I.R 1932 Lahore P. 115; approved.
Natesan Pillai vs Jayammani, A.I.R. 1960 Madras, U. Po Chein vs Ma Sein Mya, A.I.R. 1931 Rangoon, 89, Ampavalli Veerabhadrudu vs Ampavalli Gaviramma 1955 A.l.
R. (Crl.) p. 244; over ruled.
|
Appeal No. 728 of 1980.
From the Judgment and Order dated 29.11.1978 of the Allahabad High Court in Civil Misc.
Writ No. 2955 of 1977.
Satish Chandra, Ms. Abha jain, Gaurav Jain and Ghayyute Alam for the Appellants Ashok Kumar Srivastava for the Respot, dent.
The Judgment of the Court was delivered by G.N RAY, J.
In this appeal by grant of special leave the appellants, four in number.
being sons of late Shri Wadood Ali Khan, have challenged the legality, validity and propri ety of redetermination of ceiling on lands of the said Wadood All Khan under the Uttar Pradesh Imposition of Ceil ing on Land Holdings Act, 1960 (hereinafter referred to as the Ceiling Act).
The relevant facts of the case of the appellants in appeal are as follows : (a) The appellants are four sons and legal representatives of late Shri Wadood All Khan who had died on 20.8.1974.
It is contended 162 mat in addition to the appellants the said Wadood Ali Khan had left the other heirs and legal representatives, namely, three sons Maskhur Ashud Khan, Mohdud Ali Khan and Mashkoor Ali Khan, widow Smt.
Firdaus Begum and daughters Shabana Begum, Farzana Begum and Qaiser Jahan Begum.
(b) That after the death of Wadood Ali Khan, the Prescribed Authority under the Ceiling Act served a notice under Section 10 of the Ceil ing Act proposing to declare lands to the extent of 178 15 19 bighas of irrigated land as surplus.
Such notice under Section 10 was served on appellant No. 1 although the notice was addressed to the deceased Wadood Ali Khan.
(c) Appellant No. 1 filed objections before the Prescribed Authority and also participated in the proceedings for determination of ceiling.
Such proceeding was decided by the Prescribed Authority by its Judgment dated 29th April, 1975, inter alia partly upholding objections of the appellant and declaring 87 1 19 19 bighas of irrigated lands as sur plus and treating the late Wadood Ali Khan as the tenure holder.
(d) The appellants filed an appeal before the learned Civil Judge against the aforesaid decision of the Prescribed Authority and it is stated in the appeal petition that such appeal was pending.
(e) The Ceiling Act was amended from time to time and in 1976 the Ceiling Act was further amended by the U.P. Act No. 20 of 1976.
Such Amending Act received the assent of the Presi dent on 30th April, 1976 and was published in the U.P. Gazette extraordinary dated 3rd May, 1976.
Various changes in different Sections of the Ceiling Act were introduced by the said U.P. Act 1976.
Section 31 (3) of the said U.P. Act 20 of 1976 provides as follows: 31.(3) Where an order determining surplus land in relation to a tenure holder has been made under the principal Act before the tenth day of October, 1975, the Prescribed Authority (as defined in the principal Act) may, at any time within a period of two years from the said date, re determine the surplus land in accord ance with the principal act as amended by this Act, whether or not any appeal was filed against such order and notwithstanding any appeal (whether pending or decided) against the original order of determination of surplus land.
(f) The Prescribed Authority issued a notice to/he appellant No. 1 on 8th July, 1976 under Section 10(2) of the Act inter alia holding that 199 1 1 bighas of irrigated lands were proposed to be 163 declared surplus.
The appellants filed objec tions to the proposed action of redetermina tion of ceiling by raising various objections.
The Prescribed Authority thereafter disposed of the proceeding of redetermination of ceil ing by order dated 22nd December, 1976 to the effect that 125 3 8 16 bighas of irrigated lands belonging to the said Wadood Ali Khan were surplus which were owned by Wadood Ali Khan as tenure holder on the appointed day.
(g) The appellants preferred an appeal in the Court of District Judge, Saharanpur, against such order dated 22nd December, 1976, but such appeal was dismissed by the learned Additional District Judge by Judgment and Order dated 16th May, 1977.
The appellants thereafter moved a Writ Petition in the Allahabad High Court being Civil Misc.
Writ No. 2955/77 which was disposed of by Order dated 29th November, 1976.
(h) The Writ Petition moved by the appellants were disposed of by the Allahabad High Court inter alia to the effect that previous deter mination of surplus land by the Prescribed Authority did not operate as res judicata and the appellate authority was justified in ignoring the Sale Deed dated October 27,1971.
The High Court of Allahabad, however, held inter alia that the determination about some plots of lands had not been properly made.
Accordingly, the case was remanded to the appellate authority with the direction to the appellate authority to issue notice to the other brothers of the appellants Mr. Satish Chandra, learned senior counsel appearing for the appelants, has strongly contended at the hearing of this appeal that such redetermination could only be made under the provisions of the Act as amended by U.P. Act No. 20 of 1976 in view of the fact that the initiation of the proceed ings for redetermination was made after the said Act 20 of 1976 was enforced.
He has also contended that the notice under Section 10(2) was deliberately issued to the appel lants by ignoring the other heirs of late Wadood Ali Khan although the concerned Prescribed Authority was aware that the said Wadood All Khan had died in 1974.
He had also contended that the notice under Section 10(2) was purported to have been issued under the Amending Act of 1975 although the Amending Act of 1976 had come into force.
Mr. Satish Chandra has also contended that if the Prescribed Authority had prima facie come to the finding that the lands indicated in the notice under Section 10(2) were surplus lands, it was his bounden duty to serve notices on all the heirs of Wadood All Khan and initiation of any proceeding without such notices to all the heirs was void.
In support of this con tention, he has relied upon a Full Bench 164 decision of the Allahabad High Court made in the case of Shantnu Kumar vs State of Uttar Pradesh and Others, 1977 Allahabad Law Report p. 564.
Mr. Satish Chandra has also contended that service of proper notice under Section 9(2) of the Ceiling Act on all the heirs of late Wadood Ali Khan was essential for assuming jurisdiction to redetermine the ceiling lands.
Admittedly, when such notice had not been issued to all the co sharers, no proceeding for redetermina tion could have been lawfully initiated.
Therefore, the adjudication made by the Prescribed Authority and consequen tial adjudication by the appellate authority and the Allaha bad High Court must be held to be illegal, void and without jurisdiction.
He has contended that since two years has elapsed from the enforcement of the said Act 20 of 1976, no fresh redetermination is permissible in law at present.
He has also contended that the purported initiation of the proceedings for redetermination of ceiling on lands and order passed by the Prescribed Authority and the consequen tial orders passed by the appellate authority and by the High Court of Allahabad on the Writ Petitions mentioned hereinbefore must be quashed.
We are, however, not inclined to accept the contention of Mr. Satish Chandra that the proceeding for redetermina tion of ceiling land could not have been initiated by the Prescribed Authority until Notice under Section 9(2) was issued by him to all the heirs and he could only assume jurisdiction for initiation of a proceeding for redetermina tion of ceiling land after serving such notices to all the heirs of late Wadood Ali Khan.
Section 31 (3) of U.P. Act 20 of 1976, in our view, authorises the Prescribed Authority to redetermine the surplus land in relation to the tenure holder if initiated with in two years from October 10, 1975.
Admittedly, the previous determination of ceiling was made before tenth of October, 1975.
Accordingly, under sub Section (3) of Section 31 of the said U.P. Act 20 of 1976, the Prescribed Authority had jurisdiction to initiate the said proceeding and such jurisdiction did not depend on issuance of notice under Section 9(2) of the Ceiling Act to the tenure holder and/or the successors in interest of the tenure holder.
It, however, appears to us that although the Prescribed Authority had jurisdiction to initiate the pro ceeding for redetermination of surplus land and he had in fact initiated such proceeding within two years as referred to in sub section (3) of Section 31 of U.P. Act 20 of 1976, such determination could not have been made without afford ing to the heirs and legal representatives of Wadood Ali Khan an opportunity of being heard and showing cause before the Prescribed Authority.
Admittedly, Wadood Ali Khan had died in 1974 and he said fact was made known to the Pre scribed Authority when the initial determination of surplus lands was made.
It is unfortunate that in spite of said fact, the Prescribed Authority failed and neglected to ascertain the 165 names of all the legal heirs and representatives of Wadood Ali Khan, and did not issue notices to such heirs for rede termination of surplus land.
The High Court of Allahabad has directed to issue notice to other brothers of Wadood Ali Khan.
The High Court has also remanded the case to the appellate authority so that other brothers get opportunity to appear and make submissions.
The High Court has, however, not directed to issue notices to other heirs and legal representatives.
Moreover, in our view, without giving other heirs and legal representatives an opportunity of being heard, adjudication of the case on merits by the concerned authorities or by the High Court was not warranted.
In the aforesaid facts, we dispose of this appeal by setting aside the order passed by the Prescribed Authority on 22nd Decem ber, 1976 and the impugned appellate orders passed by the learned Additional District Judge on 26th May, 1976 and also the impugned decision of Allahabad High Court in Writ Peti tion No. 2955/77.
Mr. Satish Chandra has contended that in view of subsequent changes of the Ceiling Act by the Amend ing Act 20 of 1976, there is no surplus land liable to be vested in the State of Uttar Pradesh.
It is not necessary to express any opinion on such contention of Mr. Satish Chandra in view of the fact that the Prescribed Authority will have to redetermine the case of surplus land on the basis of existing provisions of the Ceiling Act applicable on the relevant date and the parties will get opportunity to make appropriate submissions on fact and law.
The Prescribed Authority is directed to issue notices to all the heirs and legal representatives of late Wadood Ali Khan including the appellants herein and the other heirs and legal representa tives referred to in this judgment.
The Prescribed Authority will decide the question of surplus land in accordance with the provisions of the Ceiling Act after issuing such notices to the heirs and legal representatives of late Wadood Ali Khan and giving such heirs and legal representatives a reasonable opportunity of being heard.
In order to avoid any difficulty and any attempt to delay the disposal of redeter mination of surplus land by the appellants or the other heirs of Wadood Ali Khan, it is directed that if there has been any change in the survivorship of legal representatives of late Wadood Ali Khan or devolution of interest of such heirs by lapse of time, the appellants should inform the Prescribed Authority within a month from today the names and other particulars including the addresses of all such heirs and legal representatives of late Wadood Ali Khan so that appropriate notices may be issued by the Prescribed Authori ty.
If the names and particulars of the legal representa tives are not furnished within a month from today by the appellants to the Prescribed Authority in terms of this direction, liberty is given to the Prescribed Authority to serve the notices to the appellants and to the other heirs mentioned in this judgment by sending such notices under the care of the appellant No. 1, Mansoor Ali Khan, village Kailashpur, Pargana Haraura, 166 Tehsil and P.O. Saharanpur, UP., and it will be deemed that he is representing the interest of other heirs and legal representatives.
The Prescribed Authority is directed to dispose of the proceeding for redetermination of surplus land as early as possible in view of the fact that the matter is pending determination for long.
In the facts of the case, there will be no order as to costs.
R.P. Appeal disposed of.
| Certain plots of land of the appellant were acquired by notifications dated 12.1.1978, 27.7.1978 and 14.6.1979 issued under s.4(1) of the Land Acquisition Act, 1894.
The Land Acquisition Officer by an order dated 10.6.1982 fixed the market value at Rs. 42,000 per acre with 5 per cent deduction towards development cost.
In appellant 's appeal the Civil Court fixed the market value at Rs.200 per sq. yard with a deduction of 5 per cent towards the development charges.
On the appeal by the land acquisition officer, the High Court reassessed the entire evidence and fixed the market value at Rs.3 lakh per acre holding that if a deduction of 20 per cent was allowed, the market value would come to Rs.2,40,000 per acre which worked out at Rs.50 per sq.yard, and accordingly set aside the judgment and decree, and determined the market value at Rs.50 per sq.yard.
Dismissing the appeals of the appellant claimant this Court, HELD: 1.
In fixing the compensation, the High Court did not go by the percentage of deduction but kept in view the market value of the land at the time of the notification under s.4(1) of the Land Acquisition Act, 1894.
[p. 377 F] 2.
There was clear material and the High Court accepted it that price went up in the area after 1980.
The notifica tions were within a range of a year or two from that time.
Therefore, the valuation after 1980 was not the guideline.
[ p. 377 F G] 376 3.
In the instant case, the Collector had adopted a deduction of five per cent.
The referee Court adopted the deduction at 20 per cent and the High Court rejecting the claim of the Advocate General that deduction should be one third put it at one fifth.
The High Court did not go by the percentage of deduction.
The appropriate market value fixed by the High Court per sq.
yard was Rs 50 and if a 20 per cent deduction from out of Rs.3 lakhs per acre was accepted, it worked that way.
The finding of the High Court need not be disturbed.
[p. 377 E G]
|
Criminal Appeal No. 46, of 1969.
Appeal under Article 134(1)(c) of the Constitution of India from the judgment and order dated December 10, 1968, of the Patna High Court in Criminal Appeal No. 116 of 1966.
section M. Mishra and section section Jauhar, for the appellant.
B. P. Jha, for the respondent.
The Judgment of the Court was delivered by Khanna, J.
The short question which arises for determination in this appeal on certificate granted by Patna High Court is whether the appellant who was less than 21 years of age on the date of his conviction for an offence under section 326 read with section 149 Indian Penal Code, can claim the, benefit of section 6, of the (Act No. 20 of 1958).
, 876 The appellant and five others, who belong to village Mandil in District Gaya, were tried in the court of Additional Sessions Judge Gaya for offences under sections 147, 148, 307, 323 and 307 read with section 149 Indian Penal Code and section 25 of the Arms Act.
Jugal Kishore appellant was convicted under section 326 read with section 149 and section 148 Indian Penal Code and was sentenced to undergo rigorous imprisonment for a period of five years on the first count and rigorous imprisonment for a, period of two years on the second count.
The sentences awarded to the appellant were ordered to run concurrently.
The other five accused were also convicted for various offences and were sentenced on those counts.
On appeal the Patna High Court as per judgment dated January 22, 1968 acquitted two of the accused.
The conviction of the appellant for offences under section 326 read with section 149 and 148 Indian Penal Code was maintained.
The sentence of the appellant for the offence under section 326 read with section 149 Indian Penal Code was reduced from five years to three years.
The sentence for the offence under section 148 Indian Penal Code was, however, maintained.
The conviction of the other three accused was maintained for some of the offences, and they were awarded sentences of imprisonment on that count.
After the pro nouncement of the judgment by the High Court, an application was made on behalf of the appellant that his case be deal; with under the on the ground that he wag below 21 years of age at the time of his conviction by the trial court.
This application was rejected by the High Court as per ,order dated December 12, 1968 on the ground that the offence for which the appellant had been convicted was punishable with imprisonment for life, and as such, the provisions of could no be invoked in his case.
On prayer made by the appellant, the High Court certified the case to be fit for appeal to the Supreme Court as it involved the question relating to the applicability of the .
The appellant and his companions were tried on the allegation that on October 14, 1964 at about 10 a.m., while Madho Saran was getting his field bearing No. 1678 ploughed by his ploughman Rakshya Mahto, the appellant and Raghu accused went there and questioned Madho Saran for cutting the ridge between field No. 1678 and 1719.
Field No. 1719 belonged to the appellant.
Madho Saran went to his house and narrated the incident to his brother Sadho Saran.
Madho Saran and Sadho Saran along with others then came out of their house and while they were near a barrage, they met the accused who were accompanied by about 30 person of their village.
One of the accused, namely, Hira Lal, who was armed with a gun, fired a shot as a result of which Sadho 'Saran was hit on his head.
Sadho Saran fell down, whereafter 87 7 the other accused, including the appellant who was armed with a garasa, caused further injuries to Sadho Saran and his companions with sharp edged and blunt weapons.
The injured were thereafter taken to Jehanabad Hospital.
On receipt of intimation from the doctor incharge of the hospital, a police Sub Inspector went to the hospital and recorded the statement of Madho Saran, Nand Kishore, one of the accused, also lodged a report at the police station.
The question with which we are concerned in this appeal, as mentioned earlier, is whether the appellant can claim the benefit of the .
The appellant gave.
his age to be 19 years in his statement under Section 342 of the Code of Criminal Procedure, and the case has been argued before us on the assumption that the appellant was less than 21 years of age at the time of his conviction by the Additional Sessions Judge.
The main offence for which the appellant has been convicted is section 326 read with section 149 Indian Penal Code.
Section 326 deals with the offence of voluntarily causing grievous hurt by dangerous weapons or means and the punishment prescribed for the offence is imprisonment for life, or imprisonment of either description for a term which may extend to ten years.
The convicted person shall also be liable to pay fine.
According to section 149 of the Code, if an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence.
It is.
, therefore, manifest that the appellant on being convicted for the offence under section 326 read with section 149 Indian Penal Code was liable to be punished for imprisonment for life or with imprisonment of either description for a term which may extend to ten years and was also liable to pay fine.
The was enacted in 1958 with a view to provide for the release of offenders of certain categories on probation or after due admonition and for matters connected therewith.
The object of the Act is to prevent the conversion of youthful offenders into obdurate criminals as a result of their association with hardened criminals of mature age in case the youthful offenders are sentenced to undergo imprisonment in jail.
The above object is in consonance with the present trend in the field of penology, according to which effort should be made to bring about correction and reformation of the individual offenders and not to resort to retributive justice.
Modern criminal jurisprudence recognises that no one is a born criminal and that good many crimes are the product of socioeconomic milieu.
Although net much can be done for hardened criminals, considerable stress has 878 been laid on bringing about reform of young offenders not guilty of very serious offences and of preventing their association with hardened criminals.
The Act gives statutory recognition to the above objective.
It is, therefore provided that youthful offenders should not be sent to jail, except in certain circumstances.
Before, however, the benefit of the Act can be invoked, it has to be shown that the convicted person even though less than 21 years of age, is not guilty of an offence punishable with imprisonment for life.
This is clear from the language of section 6 of the Act.
Sub section (1) of that section reads as under "When any person under twenty one years of age.
is found guilty of having committed an offence punishable with imprisonment (but not with imprisonment for life), the Court by which the per son is found guilty shall not sentence him to imprisonment unless it is satisfied that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it would not be desirable to deal with him under section 3 or section 4, and if the Court passes any sentence of imprisonment on the offender, it shall record its reasons for doing so.
" Mr. Misra on behalf of the appellant has urged that as the offence under section 326 read with section 149 Indian Penal Code is punishable not only with imprisonment for life but also with imprisonment which may extend up to ten years, the benefit of section 6 of the Act can be invoked by the appellant.
This contention, in our opinion, is not well founded.
Plain reading of section 6 makes it manifest that it deals with persons under twenty one years of age who are found guilty of having committed an offence punishable with imprisonment but not with imprisonment for life.
As imprisonment for life can also be awarded for the offence under section 326 read with section 149 Indian Penal Code, a person found guilty of such an offence would not be entitled to claim the benefit of section 6.
To hold otherwise.
would have the effect of ignoring the words "but not with imprisonment for life" and treating them to be otiose.
Such a construction is plainly not permissible.
We also cannot subscribe to the view that the offences excluded from the purview of the section are only those offences wherein punishment prescribed is imprisonment for life and not for a lesser term, for the language used in the section does not warrant such a view.
On the contrary, the ,Plain meaning of the section is that the section cannot be invoked by a person who is convicted for an offence punishable with imprisonment for life.
The fact that imprisonment for a lesser term can also be awarded for the offence would not take it out of the category of offences punishable with imprisonment for life.
The policy underlying the Act appears to be that it is only in 879 cases of not very serious nature, viz., offences not punishable with imprisonment for life that the convicted person should have the benefit of provisions of the Act.
Where, however, the offence for which a person has been convicted is of a serious nature punishable with imprisonment for life, the benefit of the Act would not be permissible in his case.
Likewise, there are certain offences like those under the Prevention of Corruption Act wherein the convicted person cannot claim the protection of the Act.
Section 18 of the Act expresser excludes such offences from the purview of the Act.
In the case of Som Nath Puri vs State of Rajasthan (1) the appellant had been convicted for an offence under section 409 Indian Penal Code.
Punishment for the offence under section 409 Indian Penal Code is the same as for the offence under section 326, namely, imprisonment for life, or imprisonment of either description for a term which may extend to ten years and the liability to pay fine.
It was held by this Court that in such a case the provisions of section 4 of the cannot be invoked.
It may be mentioned that section 4 of the, Pro bation of Offenders Act also excludes from its operation persons convicted of offences punishable with imprisonment for life.
In that connection, the Court observed : "As the offence of criminal breach of trust under section 409, I.P.C. is punishable with imprisonment for life, the High Court, in our view, was right because the provisions of section 4 are only applicable to a case of a person found guilty of having comm itted an offence not punishable with death or imprisonment for life.
" We, therefore, hold that the appellant cannot invoke the benefit of section 6 of the .
The appeal fails and is dismissed.
Appellant to surrender to the bail bond.
Appeal dismissed.
| The appellant, who was less than 21 years of age, was convicted for an offence under section 326, read with 6. 140 I.P.C. and was sentenced to 3 years imprisonment.
On the question whether he could claim the benefit of section 6 of the , HELD : (1) The Act was enacted with a view to provide 'for the release of, offenders of certain categories on probation or after due admonition with the object of preventing the conversion of youthful Offenders of less than 21 years age into obdurate criminals as a result of their association with hardened criminals of mature age in the jail.
Where, however, the offence for which a person has been convicted is of a serious nature punishable with imprisonment for life, or is one of those specified in section 18 of the Act, the benefit of the Act would not be available.
[877G H; 879A C] (2) The appellant, on being convicted for the offence under a. 326 read with section 149, I.P.C., was liable to be punished with imprisonment for life.
Therefore, he would not be entitled to the benefit of section 6 of *a ., To hold otherwise would be treating the word but not with imprisonment for life ' in the section, as otiose, contrary to rules of construction.
[878E G] (3) The 'fact that imprisonment for a lesser term can also be awarded for the offence would not take it out of the category of offences punishable with imprisonment for life.
1878G H] Som Nath Puri vs State of Rajasthan, ; , followed.
|
CTION: C.M.P. No.8076 of 1988 and I.A. Nos.
3,5,6 and 7 of 1990 In Civil Appeal No. 3519 of 1984.
From the Judgment and Order dated 3.4.1984 of the Delhi High Court in W.P. No. 1144 of 1983.
WITH Writ Petition (C) Nos.
2620 59 of 1985.
Under Article 32 of the Constitution of India).
C.S. Vaidyanathan, Ms. Smitha Singh, K.A.Raja, A.K. Srivastava, Sushma Suri, C.V.S. Rao, Ms. C.K. Sucharita and Vimal Dave for the appearing parties.
The following Order of the court was delivered: CMP No. 8076/1988: This is an application by certain doctors of the Central Health Service for clarification of the earlier orders passed by this Court in C.A. 3519/1984.
Actually, the appellants ' grievance is that even though the appeal was disposed of by the order of this court dated 9.4.
1987 and the directions given therein have been reiterated in the subsequent orders of this Court, the Union of India has not given proper effect to the directions given by this Court.
Briefly, the appellants were originally appointed after interview by selection committees but only as adhoc appoint ees in the above service.
They were appointed on various dates between 1968 and 1977.
Their grievance is that dispite their long service in the Department they were not regula rised with reference to their original dates of appointment.
The Union of India pointed out certain difficulties in giving effect to the order of this Court of April, 1987 by filing a review petition and then a clarification applica tion but these have been dismissed.
The resultant position is that all the appellants have to be regularised in Group A of the Central 112 Health Service w.e.f.
1.1.1973 or the date of their respec tive original appointments whichever is later.
We may men tion here that this date 1.1.1973 is mentioned here because the appellants have now expressed their willingness to be considered for regular appointment only from this date and not from any earlier date, this being the date on which the group B and Group A services were merged together by the Government of India on the recommendations of the Third Pay Commission.
The only difficulty experienced by the Union of India in giving effect to the directions of this Court which now subsists is that if regularisation is granted to all the appellants, doctors who have been regularly appointed in Group A after an interview by the Union Public Service Commission may get relegated to secondary positions in view of the fact that the appellants were appointed much earlier though on an adhoc basis.
These regularly recruited doctors had not been heard earlier and they have now come up with intervention applications praying that any order of regular isation of the appellants should ensure that their interests are not prejudiced.
This was also the anxiety of the Union of India as expressed in the counter affidavit filed in this Court.
After heating all the counsel, we were inclined to think that while the appellants should get their rights which were declared by this Court in its earlier orders, there should at the same time be no prejudice to the doctors appointed through regular recruitment by the Union Public Service Commission.
After some discussion, counsel for the appel lants agreed to put forward certain proposals which would safeguard their interests and also at the same time not prejudice the regular appointees through the Union Public Service Commission.
The essence of the proposal made by them is that they may be treated to be a separate category with their own seniority list and entitled to promotion in ac cordance with that seniority list, the problem of conflict with the direct regular recruits being avoided by creation of an appropriate number of supernumerary posts.
The Union of India is not agreeable to accept these proposals which were set down by the appellants at our instance, in the form of an affidavit.
The proposals of the appellants have been set down in an annexure to an affidavit filed by Dr. PPC Rawani and dated 16th July, 1991.
However, after considering the matter we are of the opinion that there is no way of rendering justice to all the parties before us except by accepting these proposals in the manner to be set down below particularly because we find that while making the propos als, the appellants have also to some extent expressed the willingness to forgo certain rights that might have accrued to them in consequence of the earlier orders passed by this Court.
We are of the opinion that the proposals made are reasonable in the circumstances of the case and that they do not also in any way prejudice the rights of the regularly recruited doctors.
113 In view of this, we direct that the following proposal be implemented by the Department by way of giving effect to the order of this Court in C.A. 3519/84 dated April, 1987 and the subsequent clarificatory orders passed by this Court: The directions given are as follows: 1.
Each of the appellants will be treated as regularised in Group A of the Central Health Service from 1.1.1973 or the date of his first initial appointment in the service (though as adhoc Group B doctor), whichever is later.
In order to ensure that there is no disturbance of the seniority and the promo tional prospects of the regularly recruited doctors there will be a separate seniority list in respect of the appellants and their promotions ( 'about which directions are given below) shall be regulated by such separate 'seniority list and such promotions will only be in supernumerary posts to be created as mentioned below.
(a) Each of the appellants will be eligi ble for promotion to the post of Senior Medi cal Officer or Chief Medical Officer or fur ther promotional posts therefrom taking into account his seniority in the separate seniori ty list which is to be drawn up as indicated above.
(b) The promotion of any of the appellants to the post of Senior Medical Officer, Chief Medical Officer and further promotional post therefrom will be on par with the promotion of the regularly recruited doctor who is immedi ately junior to the concerned appellant on the basis of their respective dates of appoint ment.
In other words, if a regularly recruited doctor, on the basis of the seniority list maintained by the Department, gets a promotion as Senior Medical Officer or Chief Medical Officer or further promotion thereafter, then the appellant who was appointed immediately earlier to him will also be promoted as a Senior Medical Officer or Chief Medical Offi cer or further promotion therefrom (as the case may be) with effect from the same date.
In order that there may be no conflict or any possibilities of reversion, the post to which an appellant will be promoted (whether as Senior Medical Officer or Chief Medical Officer or on further promotion therefrom) should only be to a supernumerary post.
Such number of supernumerary posts should be creat ed by the Government as may be necessary to give effect to the above directions.
No promo tion will be given to any of the appellants in the existing vacancies which will go only to the regularly 114 appointed doctors.
The appellants hereby agree to give up all monetary claims on account of revision of scales, regularisation or promotion to which they would be entitled till 31.10.
199 1. 6.
Apart from the appellants there are certain doctors who fall in the same category but who had not filed writ petitions before the High Court.
They have filed directly writ petitions before this Court beating Nos.
2620 2659/1985 and intervention applications.
The intervention applications are allowed and rule nisi is issued in the writ petitions of which the other parties take notice.
These interveners and writ petitioner have to be granted the same relief as the appellants.
It is made clear that all these applicants and petitioners will be entitled to the same reliefs as the appellants for all purposes of seniority and promotion.
All monetary claims on account of revision of scales, regularisa tion or promotion till 31.10.1991 are given up by These applicants and petitioners as well.
We direct that, in view of the long pendency of litiga tion before this Court, the Union of India should take immediate steps to implement the above directions.
The directions should be given effect to latest by 31st March, 1992.
All the interim applications in the matter stand dis posed of in view of the fact that the main CMP itself has been disposed of.
R.P. Matters dis posed of.
| In Civil Appeal No.3519 of 1984, filed by the appel lants, who were appointed as doctors on adhoc basis in the Central Health Service on various dates between 1968 and 1977, praying for regularisation of their services with reference to their original dates of appointments, this Court, by its judgment dated 9.4.1987 and subsequent orders, gave certain directions.
Since the Union of India could not implement the directions, the appellants filed the civil miscellaneous petition for clarification of the earlier orders passed by this Court in the Civil Appeal.
Certain other doctors who fall in the category of the appellants (adhoc appointees) and who had not earlier filed writ peti tion before the High Court, filed writ petitions and inter vention applications before this Court praying for the benefits as granted to the appellants.
It was contended by the Union of India that if regulari sation was granted to all the appellants and the like cate gories of doctors, the doctors regularly appointed in Group A may get relegated to secondary position in view of the fact that the appellants were appointed much earlier on adhoc basis.
The regularly recruited doctors, not heard earlier, also filed intervention applications praying that any order of regularisation of the appellants and the similarly situated doctors should ensure that their interests were not preju diced.
The appellants and the other similarly situated doctors expressed their willingness to be considered for regular appointments 110 only from 1.1.1973, this being the date on which the Group B and Group A services were merged together by the Government of India.
They also agreed to give up monetary claims on account of revision of scales, regularisation or promotion to which they would be entitled till 31.10.1991.
Disposing of the matters, this court, HELD: 1.
Each of the appellants will be treated as regularised in Group A of the Central Health Service from 1.1.1973 or the date of his first initial appointment in the service (though as an adhoc Group B doctor) whichever is later.
[p. 113 B] 2.
In order to ensure that there is no disturbance in the seniority and the promotional prospects of the regularly recruited doctors there will be a separate seniority list in respect of the appellants and their promotions shall be regulated by such separate seniority list and such promo tions will only be in supernumerary posts to be created by the Government.
[p. 113 B C] 3(a).
Each of the appellants will be eligible for promo tion to the post of Senior Medical Officer or Chief Medical Officer or further promotional posts therefrom taking into account his seniority in the separate seniority list.
[p. 113 D] (b).The promotion of any of the appellants to the post of Senior Medical officer, Chief Medical Officer and further promotional post therefrom will be on par with the promotion of the regularly recruited doctor who is immediately junior to the concerned appellant on the basis of their respective dates of appointment, e.g. if a regularly recruited doctor, on the basis of the seniority list maintained by the Depart ment, gets a promotion as Senior Medical Officer or Chief Medical Officer or further promotion thereafter, then the appellant who was appointed immediately earlier to him will also be promoted as a Senior Medical officer or Chief Medi cal Officer or further promotion therefrom (as the case may be) with effect from the same date.
[p. 113 D F] 4.
In order to avoid any conflict or any possibilities of reversion, the post to which an appellant will be promot ed (whether as Senior Medical Officer or Chief Medical Officer or on further promotion therefrom) should only be to a supernumerary post.
Such number of supernumerary posts should be created by the Govern 111 ment as may be necessary to give effect to the above direc tions.
No promotion will be given to any of the appellants in the existing vacancies which will go only to the regular ly appointed doctors.
[pp. 113 F H, 114 A] All the writ petitioners and interveners, falling in the category of the appellants, would also be entitled to the same reliefs as the appellants for all purposes of seniority and promotion.
[p. 114 A C]
|
N: Criminal Appeal No. 669 of 1980.
Appeal by special leave from the judgment and order dated the 2nd February, 1979 of the Karnataka High Court in Criminal Revision Petition No. 320 of 1978.
B.R.L. Iyengar and N. Nettar for the Appellant.
A.L. Wahi and K.C. Dua for Respondent Nos.
Ram Jethmalani and Miss Rani Jethmalani for Respondent No. 4.
The Judgment of the Court was delivered by SEN, J.
In this appeal, by special leave, from the judgment of the Karnataka High Court, the only issue between the parties is as to the legality and propriety of the order of confiscation passed by the Deputy Commissioner, Belgaum, of a consignment of 7,200 kg.
of groundnut oil seized for contravention of sub cls.
(2) (a) and (b) of cl. 3 of the edible oil, edible oil Seeds and oil Cakes (Declaration of Stocks) order, 1976 hereinafter called the order).
Briefly stated the facts are these: on 6.6 1977 at about 11.30 a.m., the Sub Inspector of Police, Hukeri, intercepted a truck bearing registration No. MHL 2675 laden with 40 barrels of groundnut oil weighing 7,200 kg.
which were being transported from Kampli to Nippani, without furnishing a declaration in Form II to Tahsildar, Hospet, as required under sub cls.
(2) (a) and (b) of cl. 3 of the order.
The Sub Inspector of Police, after seizing the vehicle and the oil registered a case and thereafter reported the matter to the Deputy Commissioner, Belgaum.
He forwarded the report together with the seized vehicle and the oil to the Deputy Commissioner, Belgaum for taking action under section 6 A of the (hereinafter called the Act).
The truck was released to the owner on his executing an indemnity bond, and the groundnut oil released to the Respondent 4, Gopinath Manikchand Dharia, Proprietor, Messrs Anant Oil Mills, Nippani on his furnishing a bank guarantee for Rs. 70,000/ towards the price thereof.
The Deputy Commissioner gave notices as required under section 6 B of the Act to the parties concerned.
During the enquiry, the respondent No. 4 produced before him a copy of the invoice dated 5.6.1977 issued by Sri Satyanarayana Oil Mills, Bellary Road, Kampli, show 832 ing the sale of 7,200 kg.
of groundnut oil to Messrs Anant Oil Mills, Nippani.
He also produced a copy of the declaration in Form No. 39 prescribed under the Mysore Sales Tax Act, 1957.
The Deputy Commissioner, after affording the parties an opportunity of hearing, held that the respondents had contravened the provisions of sub cl.
(2) (a) and (b) of Cl.
3 of the order and accordingly confiscated 40 barrels of groundnut Oil and the truck bearing registration No. MHL 2675.
The respondents preferred an appeal under section 6 C of the Act before the II Additional Sessions Judge, Belgaum, who was the Appellate Authority.
But he, by his well considered judgment, confirmed the order of confiscation passed by the Deputy Commissioner under section 6 A of the Act.
Thereupon, the respondents preferred a revision before the High Court and a learned Single Judge has, by his judgment, set aside the order of the Appellate Authority as well as the Deputy Commissioner on the ground that there was substantial compliance of the requirements under sub cls.
(2) (a) and (b) of cl. 3 of the order inasmuch as the respondents had sent the prescribed declaration in Form II to the Tahsildar, Hospet on 7.6.1977.
According to the High Court, no such declaration could be furnished on 5.6.1977 as it was a holiday being Sunday.
Upon that view, the High Court set aside the order of confiscation passed by the Deputy Commissioner under section 6 A of the Act and directed restoration of all the properties to the persons concerned.
Hence this appeal by special leave.
The State was not interested in the confiscation of the truck and, therefore, special leave is confined to the question of the legality and propriety of the order of confiscation passed by the Deputy Commissioner under section 6 A of the Act in respect of the seized groundnut Oil.
On the admitted facts, there can be no doubt whatever that there was a contravention of sub cls.
(2) (a) and (b) of cl. 3 of the order.
Sub cls (2) (a) and (b) of cl. 3 are as follows: 3.
(2) A stock holder who transports Edible Oils, Edible Oil Seeds and Oil Cakes shall make a declaration in Form II to the officer specified in Sub Clause (I) in respect of such Edible Oils, Edible Oil Seeds and Oil Cakes, (a) at the place from where such Edible Oils, Edible Oil Seeds and Oil Cakes are transported, before such 833 Edible Oils, Edible Oil Seeds and Oil Cakes leave the said place; and (b) at every check post on the route, immediately after their arrival there: Provided that the declaration at a check post shall be made in person by the stock holder or by the person in charge of such Edible Oils, Edible Oil Seeds and Oil Cakes to such officer, as the Government may by special or general order specify.
The expression 'stock holder ' has been defined in the order as meaning "Every person who is in possession or control of 150 kilograms or more of groundnut oil. (b) 15 quintals or more of groundnut oil or cake. (c) 15 quintals or more of groundnut seeds. and (d) 20 quintals of groundnut shell.
The Explanation thereto provides that edible oil, edible oil seeds and oil cakes in transit shall be presumed to be under the control of the owner thereof.
D The order passed by the High Court setting aside the order of r confiscation made by the Deputy Commissioner under section 6 A of the Act can hardly be supported.
In reaching the conclusion that it did, the High Court observes that 5.6.1977 being Sunday, the declaration in Form II could not be delivered to the Tahsildar since the Taluka office was closed.
Nor could it be sent by registered post acknowledgement due as the Post office could not have been working on that day.
It then goes on to observe: Then, the question is, whether a stock holder should not at all transport his stock on a Sunday, though the contractual terms of his business of such transaction required that it should be done, as the stock should reach the consignee on a particular date.
It is impossible to conceive that law expects any citizen to perform what is impossible to be performed in law.
Now the fact that Form II has been received in the office of the Tahsildar on 7.6.1977, clearly indicates that it must have been sent by registered post on 6.6.1977.
Anyhow, when once it is seen that it was impossible for the stock holder (petitioner 4) to submit Form II on 5.6.1977 before transporting groundnut oil in that truck on that day, it cannot at all be said that petitioner 4 has committed any breach of the provisions of the order.
834 It is difficult to subscribe to the view expressed by the High Court.
When the parties were entering into a transaction of such magnitude there was a duty cast on them to comply with the requirements of sub cls.
(2) (a) and (b) of cl. 3 of the order before the consignment left the place.
If the consignment was to be loaded on 5.6.1977 which was a Sunday, nothing prevented the parties from furnishing a declaration on 4.6.1977.
The High Court appears to be labouring under a belief that there need be no strict observance of the laws on a Sunday.
There is no warrant for this view.
Faced with the situation that it was rather difficult, if not impossible, to support the view taken by the High Court, Shri Ram Jethmalani, learned counsel for the respondent No. 4 made a valiant effort to avert the order of confiscation passed under section 6 A of the Act, by advancing the following three contentions: (1) The power conferred on the Deputy Commissioner under section 6 A of the Act, by the use of the word 'may ', makes it a discretionary power which had to be used according to sound judicial principles.
It is urged that Messrs Anant Oil Mills to whom the groundnut oil belonged had committed no breach of sub cls.
(2) (a) and (b) of cl. 3 of the order and therefore, the order of confiscation of the entire consignment passed by the Deputy Commissioner was wholly arbitrary and excessive.
(2) The power of confiscation entrusted to the Deputy Commissioner under section 6 A of the Act is exercisable in relation to an essential commodity seized in pursuance of an order made under section 3.
There was nothing to show that the groundnut oil in question had been seized or that a report of such seizure had been made without unreasonable delay to the Deputy Commissioner under the order and, therefore, the Deputy Commissioner had no power to direct its confiscation under section 6 A of the Act.
(3) It is not established that the Deputy Commissioner had complied with the statutory requirements of section 6 B of the Act, by giving a show cause notice to the persons concerned against the action proposed to be taken or afforded them an opportunity of hearing and, therefore, the order of confiscation passed by him under section 6 A was a nullity.
We are afraid, none of these contentions can prevail.
As to point No. (1), it is axiomatic that the power of confiscation of an essential commodity seized for contravention of an order issued under cl. 3, is a discretionary power.
The use of the word 'may ', however, does not necessarily mean that the Deputy Com missioner cannot, in the given circumstances of a particular case, direct the confiscation of the entire consignment of an essential commodity in relation to which there is a contravention of any of the orders issued under section 3 of the Act.
It all depends on the facts 835 and circumstances of each case whether the confiscation should be of an entire consignment or part of it, depending upon the nature of the contravention.
The power conferred on the Deputy Commissioner under section 6 A of the Act, by the use of the word 'may ', makes the power coupled with a public duty.
Sometimes it may be in the public interest to direct confiscation of the entire consignment of an essential commodity when there is deliberate contravention of the provisions of an order issued under section 3 of the Act.
In the facts and circumstances of the present case, it cannot be doubted for a moment that the Deputy Commissioner acted in the public interest to direct confiscation of the entire consignment of the groundnut oil, as it was being transported from one place to.
another without furnishing the requisite declaration in Form II.
All systems of control, supply and distribution of essential commodities would fail unless the various control orders issued by the Central Government under section 3 of the Act in relation thereto are strictly observed.
These control orders are issued under section 3 when the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of essential commodities or for securing equitable distribution and availability at fair prices etc.
Sub cls.
(2) (a) and (b) of cl. 3 of the order enjoin that the stock holder shall make a declaration in From II in relation to movement of edible oil, edible oil seeds and oil cakes, to the Tahsildar in charge of the taluka of the place from where such edible oil, edible oil seeds and oil cakes are transported before such edible oil, edible oil seeds or oil cakes, leave the place.
The whole purpose is to maintain a control over the stock of such essential commodities at a place with a view to secure their equitable distribution and availability at fair prices.
The requirements of sub cls.
(2) (a) and (b) of cl. 3 of the order are clearly mandatory.
We fail to comprehend the contention that there was only a technical breach.
Under sub cls.
(2)(a) and (b) of cl. 3 of the order, a stock holder is required to furnish a declaration in Form II in relation to movement of edible oil, edible oil seeds and cakes, to the Tahsildar in charge of the taluka at the place from where such commodity is sought to be transported before such commodity leaves the place.
The definition of 'stock holder ' certainly means the consignor who holds such stock of edible oil, oil seeds and cakes and also may include a purchaser of such oil, seeds and cakes who is in possession or control thereof.
Explanation to the definition of 836 'stock holder ', by a legal fiction, treats the owner to have control over the edible oil, edible oil seeds and cakes, in transit.
The respondent No. 4, being the purchaser, also comes within the definition of 'stock holder ' by reason of the said Explanation.
There is nothing to show that the consignor had reserved the jus disponendi by the terms of the contract or appropriation and, therefore, the property in the goods passed to the respondent No. 4 on their delivery to a common carrier under section 25 of the .
The allegation in the complaint is that 40 barrels of groundnut oil weighing 7,200 kg. were being transported by the truck bearing No. MHL 2675 without furnishing the requisite declaration in Form II and it was intercepted at the Hukeri check post by the sub Inspector of Police.
In response to a notice issued by the Deputy Commissioner under section 6 B of the Act, the respondent No. 4 produced before him the documents of title in relation to the goods.
From these documents, it is clear that the consignor was Sri Satyanarayana Oil Mills, Kampli and the consignee was Messrs Anant Oil Mills, Nippani and that the truck was laden with the consignment.
These facts were also borne out by the particulars furnished in the declaration in Form 39 under the Mysore Sales Tax Act, 1957.
It appears from these documents that Sri Satyanarayana Oil Mills, after despatching the consignment, purported to furnish the declaration in Form II to the Tahsildar, Hospet, which was received by him on 7.6.1977, requesting for the release of the groundnut oil in question.
The respondent No. 4 contended before the Deputy Commissioner that there was substantial compliance of the requirements of sub cls.
(2)(a) and (b) of cl. 3 of the order and, therefore, the seized groundnut oil be released, but he rejected the contention on the ground that the declaration in Form II was required to be filed before the specified officer before the goods left the place.
The Deputy Commissioner requisitioned the form produced before the Tahsildar, but i t did not bear any date.
He was of the view that the declaration was not sent by registered post on 6.6.1977 as asserted, but had apparently been handed over in the Taluka office and acknowledgment obtained for the same.
The Deputy Commissioner observed that the requirement of law was that the declaration in Form II had to be produced at every check post during transit, and this was not done.
The driver of the truck did not have a copy of the declaration in Form II, but only the declaration in Form 39 which could not be taken to be in compliance of law.
Obviously, the stock holder, Sri Satyanarayana Oil Mills, after despatching the 837 consignment of groundnut oil, purported to furnish the declaration in Form II.
This was in complete breach of the requirements of sub cls.
(2) (a) and (b) of cl. 3 of the order.
The Deputy Commissioner, therefore, held that the respondents having contravened the provisions of sub cls.
(2) (a) and (b) of cl. 3 of the order, the seized truck alongwith the entire consignment of the groundnut oil was liable to be confiscated under section 6 A of the Act.
The learned Sessions Judge, in our opinion, rightly confirmed the order of confiscation passed by the Deputy Commissioner under section 6 A of the Act as it was unassailable.
At no point of time was there a contention raised that the Deputy Commissioner had failed to exercise his discretion as to the quantity of the groundnut oil liable to be seized.
It is now too late in the day to urge the point before this Court.
C As to point No. (2), there is no warrant for the submission that there was nothing to show that the groundnut oil had been seized and, therefore, the power of confiscation was not exercisable by the Deputy Commissioner under section 6 A of the Act, It is manifest from the order of the Deputy Commissioner that there was a contravention of sub cls.
(2) (a) and (b) of cl. 3 of the order and that the Sub Inspector of Police seized both the truck and the consignment of groundnut oil, and forwarded the same to him along with his report for taking action under section 6 A of the Act.
The contention of the Public Prosecutor before the Deputy Commissioner was that the seized truck and the groundnut oil were liable to be confiscated.
The very fact that the seized groundnut oil was released to the respondent No. 4 on his furnishing a bank guarantee for Rs. 70,000 for the price of the consignment of the groundnut oil clearly shows that it had been seized.
It is, therefore, idle to contend that the power of confiscation under section 6 A of the Act was not exercisable for want of seizure.
As to point No. (3), from the narration of facts above, it is amply clear that there was no breach of the requirements of section 6 B of the Act on the part of the Deputy Commissioner.
The record shows that the Deputy Commissioner, on receipt of the report of the Sub Inspector of Police mentioning the fact of contravention of sub cls.
G (2) (a) and (b) of cl. 3 of the order and forwarding the seized truck and the consignment of groundnut oil, issued notice to the parties concerned under section 6 B of the Act to show cause against their confiscation.
In response to the notice, the respondent No. 4 appeared before the Deputy Commissioner and filed a copy of the invoice together with a copy of the declaration in Form 39 under the Mysore 838 Sales Tax Act, 1957.
The Deputy Commissioner sent for the declaration in Form II as furnished to the Tahsildar which did not bear a date.
He also gave a hearing to the parties.
That being so, the validity of the order of confiscation under section 6 C cannot be challenged on the ground that the requirements of section 6 B had not been fulfilled.
The result, therefore, is that the appeal succeeds and is allowed.
The judgment of the High Court is set aside and that of the II Additional Sessions Judge, Belgaum, upholding the order of confiscation passed by the Deputy Commissioner, Belgaum, is restored, insofar as it relates to the confiscation of the consignment of groundnut oil weighing 7,200 kg.
under section 6 A of the .
P.B.R. Appeal allowed.
| The appellants were lessees holding a license for the manufacture of salt on the demised lands.
The salt was manufactured by a class of professional labourers known as agarias from rain water that got mixed up with saline matter in the soil.
The work was seasonal in nature and commenced in October after the rains and continued till June.
Thereafter the agarias left for their own villages for cultivation work.
The demised lands were divided into plots called Pattas and allotted to the a arias with a sum of Rs. 400/ for each Patta to meet the initial expenses.
Generally the same patta was allotted to the same aigaria every year and if a patta was extensive in area, it was allotted to two agarias working in partnership.
After the manufacture of salt the agayias were paid at the rate Of 5 as.
6 pies per maund.
At the end of each season the accounts were settled and the agarias paid the balance due to them.
The agarias who worked themselves with the members of their families were free to engage extra labour on their own account and the appellants had no concern therewith.
No hours of work were prescribed, no muster rolls maintained, nor were working hours controlled by the appellants.
There were no rules as regards leave or holidays and the agarias were free to go out of the factory after making arrangements for the manufacture of salt.
The question for decision was whether in such circumstances the agarias could be held to be workmen as defined by section 2(s) Of the Industrial Disputes Act of 1947, as found by the Industrial Tribunal and agreed with by the High Court or they were independent contractors and the reference for adjudication made by the Government competent under section 10 of the Act.
Held, that the finding of the Industrial Tribunal that the agarias were workmen within the meaning of section 2(S) of the Industrial Disputes Act of 1947 was correct and the reference was competent.
The real test whether a person was a workman was whether he had been employed by the employer and a relationship of employer and employee or master and servant subsisted between them and it was well settled that the prima facie test of such 153 relationship was the existence of the right in the employer not merely to direct what work was to be done but also to control the manner in which it was to be done, the nature or extent of such control varying in different industries and being by its nature incapable of being precisely defined.
The correct approach, therefore, was to consider whether, having regard to the nature of the work, there was due control and supervision of the employer.
Mersey Docks and Harbour Board vs Coggins & Griffith (Liver Pool) Ltd., and Another ; , and Simmons vs Heath Laundry Company , referred to.
The question whether the relation between the parties was one as between an employer and employee or master and servant was a pure question of fact and where the Industrial Tribunal having jurisdiction to decide that question came to a finding, such finding of fact was not open to question in a proceeding under article 226 of the Constitution unless it could be shown to be wholly unwarranted by the evidence.
Ebrahim Aboobakar vs Custodian General of Evacuee Property ; , referred to.
Performing Right, Society Ltd. etc.
vs Mitchell and Booker (Plaise De Danse) [1924] i K.B. 762, not followed.
A person could be a workman even though he did piece work and was paid not per day but by the job or employed his own labour and paid for it.
Sadler vs Henlock ; and Blake vs Thirst (1863) 32 L.J. (Exchequer) 188, referred to.
The broad distinction between a workman and an independent contractor was that while the former would be bound by agreement to work personally and would so work the latter was to get the work done by others.
A workman would not cease to be so even though lie got other persons to work with him and paid and controlled them.
Grainger vs Aynsley : Bromley vs Tams (1881) 6 Q.B.D. 182, Weaver vs Floyd (1825) 21 L.H., Q.B. 151 and Whitely vs Armitage , referred to.
As in the instant case the agayias, who were professional labourers and personally worked with the members of their families in manufacturing the salt, were workmen within the meaning of the Act, the fact that they were free to engage others to assist them and paid for them, could not affect their status as workmen.
|
vil Appeal No. 4289 of F 1991 etc.
From the Judgment and Order dated 25.8.1989 of the Punjab & Haryana High Court in Civil Writ Petition No. 2635 of 1989.
Soli J. Sorabjee, Krishnamurthy lyer, Bishamber Lal Khanna, H.K. Puri, Ms. Geetanjali Mohan, Ms. A.K. Verma, P.R. Ramasesh, MahabirSingh, R. Mohan and Ayyam Perumal for the appearing parties.
The Judgment of the Court was delivered by V. RAMASWAMI, J.
Leave granted in all Special Leave Peti tions.
526 In this batch of civil appeals, writ petition and trans ferred case, a common question of law arises as to whether the industries which manufacture sugar from sugar cane are covered by Entry 15 of Schedule I to the (Central Act 36 of 1977) (hereinafter called the 'Cess Act ').
Originally the Water (Prevention and Control of Pollu tion Act), 1974 (hereinafter called the Act) was enacted by the Parliament under Article 252 of the Constitution with a view to control the pollution of rivers and streams which has assumed considerable importance and urgency in recent years as a result of increasing industrialisation and urban isation.
The Act is intended to ensure that the domestic and industrial affluence are not allowed to be discharged into water coarses without adequate treatment.
This Act is now in force in almost all States and in all Union Territories.
The Act provides for the constitution of a Central Board by the Central Government and State Boards by the State Governments concerned for the prevention and control of water pollution.
There are also certain provisions relating to constitution of joint boards the details of which need not detain us.
The Act sets out in detail the functions and powers of these Boards.
Chapter VI of the Act requires the Central Govern ment and the State Governments to provide funds to the Central Board and the State Boards respectively for imple menting the provisions of the Act.
The Cess Act 36 of 1977 provides for levy of cess on water consumed by persons carrying on certain industries and by the local authorities with a view to augment the resources of the Central Board and the State Boards constituted for the prevention and control of water pollution.
Section 3 of the Cess Act which may be termed as the charging section states that "there shall be levied and collected a cess for the purposes of the and utilisation thereunder".
The cess is payable by every person carrying on any specified industry and every local authority and is calculated on the basis of water consumed by such person or local authority as the case may be for any of the purposes specified in column I of Schedule II to the Act, at such rate not exceeding the rates specified in the corre sponding Entry in column II thereof as the Central Govern ment may by notification in the Official Gazette from time to time, specify.
"Specified industry" is defined in the Act as meaning any industry specified in Schedule I.
There are 15 entries in Schedule I and they read as follows: SCHEDULE I (See Section 2(c)) 1.
Ferrous metallurgical industry.
527 2.
Non ferrous metallurgical industry.
Mining industry.
Ore processing industry.
Petroleum industry.
Petro chemical industry.
Chemical industry.
Ceramic industry.
Cement industry.
Textile industry.
Paper industry.
Fertilizer industry.
Coal (including coke) industry.
Power (thermal and diesel) generating industry. ' 15.
Processing of animal or vegetable products industry.
The concerned assessing authorities have in all the cases under consideration issued notices demanding water cess from the sugar manufacturers on the ground that this industry falls under item 15 "processing of animal or vege table products industry".
The Punjab and Haryana High Court and the Allahabad High Court have taken the view that the sugar manufacturing industries would come within Entry 15 as "processing vegetable products industry".
On the other hand the Andhra Pradesh High Court and Patna High Court have taken the view that sugar manufacturing industries would not come within Entry 15 of the ist Schedule.
A writ petition which was filed in the High Court of Karnataka, Bangalore, by one of the sugar mills in Karnataka raising similar question has been withdrawn to this Court in transfer peti tion No. 276 of 1984 to be dealt with along with other appeals raising identical question.
Similarly another writ petition has been withdrawn from the Allahabad High Court in Transfer Petition No. 277 of 1984 to be dealt with along with this group of cases.
The object of the Act is to control the water pollution and to ensure 528 that industrial affluents are not allowed to be discharged into the water coarses without adequate treatment.
The Cess Act is not an enactment to regulate and control pollution but a fiscal measure to raise revenue for augmenting the resources of the Pollution Control Boards.
The levy and collection of cess provided under the Cess Act is on water consumed by persons carrying on the industries specified in the Schedule.
The Cess is levied on the person carrying on the specified industry.
The question is whether industries manufacturing sugar is covered by Entry 15 that is "process ing of vegetable product industry".
From the botanic point of view 'vegetable ' may include any plant but in common parlance it is understood as refer ring to edible plants or parts of edible plants.
The word 'vegetable ' has been defined in many ways.
In the World Book it is defined as follows: "In the usual sense, the word vegetable is applied to those plants whose leaves, stalks, roots or tubers are used for food, such as lettuce, asparagus, cabbage, beet and turnip.
It also includes several plants whose fruits are the edible portions, as peas, beans, melons and tomatoes.
" In the Concise Oxford Dictionary, 3rd Ed. p. 1365, it is defined as: "Plant, esp.
herbaceous plant, used for culi nary purposes or for feeding cattle, e.g. cabbage, potato, turnip bean.
" Again in Webster 's International Dictionary, vegetable is defined as: "A plant used or cultivated for food for man or domestic animals, as the cabbage, turnip, potato, bean, dandelion, etc., also the edible part of such a plant, as prepared for market or the table.
Vegetables and fruits are some times loosely distinguished by the used need of cooking the former or the use of man, while the latter may be eaten raw; but the distinc tion often fails, as in the case of quinces, barberries, and other fruits, and lettuce, celery, and other vegetable.
Tomatoes if cooked are vegetables, if eaten raw are fruit.
" In the Encyclopaedie Britannica, vol.
23, 'vegetable ' is defined as: "A general term used as an adjective in refer ring to any kind of plant life or plant product, viz. 'vegetable matter '.
More common ly and specifically, in common language, the word is used 529 as a noun in referring to those generally herbaceous plants or any parts of such plants as are eaten by man.
The edible ' portions of many plants considered aS vegetables are in a botanical sense, fruits.
The common distinc tion between fruits and vegetables is often indefinite and confusing, since it is based generally on how the plant or plant part is used rather than on what it This Court in State of West Bengal & Ors.
vs Washi Ahmed etc.
; , with reference to the meaning of the word 'vegetable ' in Item (6) of Schedule I to the Bengal Finance (Sales Tax) Act, 1941 held: "That the word 'vegetable ' in Item (6) of Schedule I to the Act must be construed as understood in common parlance and it must be given its popular sense meaning 'that sense which people conversant with the subject matter with which the statute is dealing would attribute to it ' and so construed, it denotes those classes of vegetables which are grown in a kitchen garden or in a farm and are used for the table.
" The interpretation of one of the entries in Schedule I to the Cess Act came up for consideration in Member Secre tary, Andhra Pradesh State Board for Prevention and Control of Water Pollution vs Andhra Pradesh Rayons Ltd. and others; , The question for consideration was whether manufacturing of rayon grade pulp a base material for manu facturing of synthetics or manmade fabrics is an industry as mentioned in Schedule I to the Cess Act.
It was held: .lm13 "Whether a particular industry is an industry as covered in Schedule I of the Act, it has to be judged normally by what that industry produces mainly.
Every industry carries out multifarious activities to reach its goal through various multifarious methods.
Whether a particular industry falls within the realm of taxation, must be judged by the predominant purpose and process and not by any ancillary or incidental process carried on by a particular industry in running its business." This Court also observed: "It has to be borne in mind that this Act with which we are concerned is an Act imposing li ability for cess.
The Act is fiscal in nature.
The Act must, therefore, be strictly construed in order to find out whether a liability is fas tened on a particular 530 industry.
The subject is not to be taxed without clear words for that purpose, and also that every Act of Parliament must be read according to its natural construction of words.
See the observations In Re. Nicklethwait, 1985 (11) exhibit 452, 456.
Also see the observations in Tenant vs Smith ; and Lord Halsbury 's observa tions at page 154.
See also the observations of Lord Simonds in St. Aubyn vs A.G. 1951 (2) All.
ER, 473, 485.
Justice Rowlatt of England said a long time ago, that in a taxing Act one has to look merely at what is clearly said.
There is no room for any intendment.
There is no equity about a tax.
There is no presumption as to tax.
Nothing is to be read in, nothing is to be implied.
One has to look fairly at the language used.
See the observations in Cape Brandy Syndi cate vs IRC, , 71.
This Court has also reiterated the same view in Gursahai Saigal vs CIT, , CIT vs Mr. P. Firm, Muar, ; Controller of Estate duty vs Kantilal Trikamlal; , The question as to what is covered must be found out from the language according to its natural meaning fairly and squarely read.
See the obser vations in IRC vs Duke of Westminster, ([1963] AC 1, 24) and of this Court in A.V. Fernandez vs State of Kerala ; Justice Krishna Iyer of this Court in Martand Dairy & Fawn vs Union of India ; has observed that taxing consideration may stem from adminis trative experience and other factors of life and not artistic visualisation or neat logic and so the literal, though pedestrain, interpretation must prevail." This Court considered the question as to whether sugar cane is green vegetable with reference to an exemption given under Sales Tax Enactment in the decision in M/s. Motipur Zamindary Co. (P) Ltd. vs The State of Bihar [1962] Supp. 1 SCR 498.
This Court quoted with the approval a passage from the judgment of the Nagput High Court in Madhya Pradesh Pan Merchants Association vs State of Madhya Pradesh (1956 (7) S.T.C. 99) wherein it was held "the word vegetable in taxing statutes is to be understood as in common parlance that is denoting class of vegetables which are grown in a kitchen garden or in a farm and are used for the table".
It was further held that sugarcane is normally considered to be a grass specie and it would not fail within the definition of words green vegetable.
The use of the word processing is also significant.
Processing of 531 vegetable products industry are normally understood in the sense they relate processing of vegetables which even after processing retain its character as vegetable.
Processing: Section 3(1), Marine Product Export Develop ment Authority Act, 1972 defines processing in relation to marine products, as including the preservation of such products as canning, freezing, drying, salting, smoking, peeling or filleting or any other method of processing which the authority made by notification in the Gazette of India, specified in this behalf.
Section 2(g) of the Agricultural and Processed Food Products Export Development Authority Act, 1985 defines processing in relation to scheduled products as including the process of preservation of such products such as canning, freezing, drying, salting, smok ing, peeling or rilleting and any other methods of process ing which the authority made by notification in the official Gazette specified in this behalf.
Thus processing as gener ally understood in marine, agricultural and food products industries is an action, operation or method of treatment applying it to something.
It is refining, development, preparation or converting of material especially that in a raw state into marketable form.
It would be interesting to note that this Act contains a Schedule of the agricultural or processed food products" which are to be governed by the Act which reads as follows: THE SCHEDULE (See Section 2(i)) 1.
Fruits, vegetables and their products.
Meat and meat products.
Poultry and poultry products.
Dairy products.
Confectionary, biscuits and bakery products.
Honey, jaggery and sugar products.
Cocoa and its products, chocolates of all kinds.
Alcoholic and non alcoholic beverages.
Cereal products.
532 10.
Cashewnuts, groundnuts, peanuts and wal nuts.
Pickles, chutneys and papads.
Guar Gum. 13.
Floriculture and floriculture products.
Herbal and medicinal plants.
In CST v.A.R.Alladin, AIR 1964 Guj. 27 the expression "who processes any goods" in the Bombay Sales Tax was held to refer to the subjecting of any goods to a treatment or process.
In Addl.
CIT vs Farrukhabad Cold Storage, held that processing of goods means that the goods must be adopted for a particular use.
The variety of acts performed in respect of goods or their subjection to a process need not be such as may lead to the production of any new article.
The act of subjecting ' goods to a particu lar temperature for a long period of time as in cold storage amounts to processing of goods.
On the other hand manufac ture is a transformation of an article which is commercially different from the one which is converted.
The essence of manufacture is the change of one object to another for the purpose of making it marketable.
In Union of India vs Delhi Cloth and General Mills, AIR 1963 SC 79 this Court pointed out: "The word 'manufacture ' used as a verb is generally understood to mean as bringing into existence a new substance and does not mean 'merely ' to produce some change in a sub stance, however minor in consequence, the change may be." In the same decision the following passage from the Permanent Edition of Words and Phrases from an American Judgment was quoted with approval: "Manufacture implies a change but every change is not manufacture, and yet every change of an article is the result of treatment, labour and manipulation.
But something more is necessary and there must be transformation, a new and different article must emerges having a dis tinctive name, character or use.
" The essential point thus is that in manufacture some thing is brought into existence which is different from that originally existed in the sense that the thing produced is by itself a commercially different commodity 533 whereas in the case of processing it is not necessary to produce a commer cially different article.
Processing essentially effectuates a change in form, contour, physical appearance or chemical combination or otherwise by artificial or natural means and in its more complicated form involves progressive action in performing, producing or making something.
Vide Com Products Refining 60.
vs Federal Trade Commission, CCA.
7, In the decisions under appeal, the Allahabad High Court held that sugar mills will come within the meaning of 'pro cessing vegetable products industry ' in Entry 15 on the ground that the word 'vegetable ' has been used in opposition to the expression 'animal ' and that it could not be given the meaning of vegetables which are kept on the dining tables for dinner purposes, and it has a wider amplitude.
It was further of the view that in interpreting the word 'veg etable ' one has to keep in mind the object for which the Cess Act was made.
The learned Judges then stated that sugar industry is one of the main source of causing water pollu tion and since the object of the Pollution Act and the Cess Act were intended to control water pollution and since the entries are to be given a wider meaning sugar industry would be covered by the Act.
The Punjab & Haryana High Court also took a similar line of reasoning and said that 'vegetable products ' essentially mean what belongs to the plant kingdom as opposed to the animal kingdom.
In another words the word 'vegetable ' has been used in contra distinction to the word 'animal '.
Though the learned Judges were not prepared.to hold that sugar cane is vegetable, the word 'product ' gives a definite colour, meaning thereby all that belongs to the world of plants would come within the entry.
We are unable to appredate the reasonings of the learned judges.
Pollution Act may be a regulating Act but Cess Act is a fiscal enactment, as is held by this Court in Member Secretary, Andhra Pradesh State Board for Prevention and Control of Water Pollution vs Andhra Pradesh Rayons Ltd. and Others (supra) and Rajasthan State Electricity Board vs The Cess Appellate Committee & Anr., JT There fore we have to look merely at what is clearly said.
There is no room for any intendment and there is no room for bringing within the provision of the Act anything by impli cation.
Unless we give the botanical meaning to the word 'vegetable ' it is not possible to conclude sugar cane as vegetable.
The Patna High Court in Civil Writ Jurisdiction Case Nos.
4413 of 1981 and 2346 of 1983 M/s Champaran Sugar Co. Ltd. vs State of Bihar & 534 Ors.
held that sugar manufacturing industry would not fall under Entry 15 Of Schedule I.
The Andhra Pradesh High Court also seems to be as the same view and it had dismissed a Writ Petition without a speaking order.
Construction of words and the meaning to be given for such words shall normally depend on the nature, scope and purpose of the statute in which it is occurring and to the fitness of the matter to the statute.
The meaning given to the same word occurring in a. social security measure or a regulating enactment may not be apposite or appropriate when the same word is interpreted with reference to a taxing statute.
The Cess Act is a fiscal enactment.
In the context in which the word 'vegetable ' is used in Entry 15 'vegetable product ' means product of or made of or out of vegetable. 'Vegetables ' as understood in common parlance are not products of manufacture unless we say that agriculture is an industry for certain purposes and vegetables are products of that industry.
In order to bring an industry within any of the entires in Schedule I it has to be seen what is the end product produced by that industry.
Sugar cane is not a vegetable though it may be an agricultural product.
If the botanic meaning of vegetable as referring to any and every kind of plant life is to be given then some of the indus tries listed in Schedule I like Paper Industry and Textile Industry and even chemical industry which are covered by other entries could also be brought within Entry 15.
The word vegetable in the context does not attract the botanic meaning.
The sugar manufacturing industry do not, therefore, come within Entry 15 of Schedule I of the Cess Act.
In Civil Appeal (arising out of Special Leave Petition No. 814 of 1990) the appellant is Haryana Distillery who purchases molasses which is a by product of the .manufacture of sugar and manufactures alcohol.
Manufacture of alchohol was held by the High Court to come within Entry 15 of Sched ule I as processing agricultural prOduct industry.
We have held already that the industry manufacturing sugar itself is not an industry within the meaning of Entry 15 and a fortio ri the manufacture of alcohol from molasses could not be considered to be an industry within Entry 15 of Schedule I.
In the result we allow Civil Appeals (arising out of SLP Nos.
15828 of 1989, 7496 of 1989, 778, 814, 830, 1286, 1433 of 1990 and SLP No . . . of 1991 entitled Upper Doab Sugar Mills Ltd & Anr.
vs Union of India & Ors.
Writ Petition No. 77 of 1990, and Transfer CaSe (C) Nos.
6 of 1986 & 91 of 1989 and dismiss Civil Appeals (arising out of SLP Nos.
9558 62 of 1988) and the Rule Nisi is made abso lute.
N.P.V. Appeals disposed of.
| Section 3 of the Water (Prevention of Pollution and Control) Cess Act, 1977 provided that water cess was payable by every person carrying on any specified industry and every local authority, for the purposes of the .
"Specified industry" was defined in the Act meaning any industry specified in Schedule 1.
There were 15 items under Schedule I, including "processing of animal or vegetable products industry", under Entry 15.
The question for consideration in the batch of appeals, writ petitions and transferred cases arising out of the notices issued by the concerned assessing authorities de manding water cess from the sugar manufacturers was whether sugar manufacturing industry fell under Entry 15 of Schedule I of the .
Disposing of the appeals, writ petitions and transferred cases, this Court, HELD: 1.
In the context in which the word 'vegetable ' is used in Entry 15, Schedule I of the , 'vegetable product ' means product of or made of or out of 524 vegetable. 'Vegetables ' as understood in common parlance are not products of manufacture unless it is said that agricul ture is an industry for certain purposes and vegetables are products of that industry.
In order to bring an industry within any of the entries in Schedule 1 it has to be seen what is the end product produced by that industry.
Sugarcane is not a vegetable though it may be an agricultural product.
If the botanic meaning of vegetable as referring to any and every kind of plant life is to be given then some of the industries listed in Schedule I like Paper Industry and Textile Industry and even Chemical Industry which are cov ered by other entries could also be brought within Entry 15.
The word 'vegetable ' in the context does not attract the botanic meaning.
The sugar manufacturing industry does not, therefore, come within Entry 15 of Schedule I of the Cess Act.
Consequently, the manufacture of alcohol from molasses, which is a by product of manufacture of sugar, could not be considered to be an industry within Entry 15 of Schedule I. [534 C E, F] 2.1 The word 'vegetable ' has been defined in many ways.
From the botanic point of view 'vegetable ' may include any plant but in common parlance it is understood as referred to edible plants or parts of edible plants.
Unless the botani cal meaning is given to the word 'vegetable ' it is not possible to conclude sugarcane as vegetable.
[528 C] 2.2 Pollution Act may be a regulating Act, but Cess Act is a fiscal enactment.
Therefore, the Court has to look merely at what is clearly said.
There is no room for any intendment and no room for bringing within the provision of the Cess Act anything by implication.
[533 E,F] State of West Bengal & Ors.
vs Washi Ahmed Etc.
; ; Member Secretary, Andhra Pradesh State Board for Prevention and Control of Water Pollution vs
Andhra Pradesh Rayons Ltd. and others; , , M/s Motipur Zamind ary Co. (P) Ltd. vs The State of Bihar, [1962] Suppl.
1 SCR 498 and Rajasthan State Electricity Board vs The Cess Appel late Committee & Anr., JT , referred to.
World Book, Concise Oxford Dictionary, 3rd Ed.
p. 1365, Webster 's International Dictionary and Encyclopaedia Brit tannica, Vol. 23, referred to.
2.3 Construction of words and the meaning to be given for such words shall normally depend on the nature, scope and purpose of the statute in which it is occurring and to the fitness of the matter to the 525 statute.
The meaning given to the same word occurring in a social security measure or a regulating enactment may not be apposite or.
appropriate when the same word is interpreted with reference to a taxing state.
The Cess Act is a fiscal enactment.
[534 B] 3.1.
Processing of vegetable products industry is nor mally understood in the sense that it relates to processing of vegetables, which even after processing retain its char acter as vegetable.
[530 H,531A] 3.2 Processing as generally understood in marine, agri cultural and food products industries is an action, opera tion or method of treatment applying it to something.
It is refining, development, preparation or converting of material especially that in a raw state into marketable form.
In manufacture something is brought into existence, which is different from that originally existed in the sense that the thing produced is by itself a commercially different commod ity, whereas in the case of processing it is not necessary to produce a commercially different article.
[531 C,D] 3.3 Processing essentially effectuates a change in form, cantour, physical appearance or chemical combination or otherwise by artificial or natural means and in its more complicated form involves progressive action in performing, producing or making something.
[533 A,B] CST v.
A.R.Aladin, AIR 1964 Guj. 27.
CIT vs Farruk habad Cold Storage, ; Union of India vs Delhi Cloth and General Mills, AIR 1963 SC 79 and Corn Products Refining Co. vs Federal Trade Commission, CCA.7. , referred to.
|
Civil Appeals No. 2815 & 2816 of 1980.
110 Appeals by special leave from the Award dated the 3rd September, 1980 of the National Industrial Tribunal at Bombay in Complaint No. NTB 2 and NTB 3 of 1980 arising out of Reference No. NTB 1 of 1979.
WITH CIVIL APPEAL NO.
2607 of 1980 Appeal by special leave from the Award dated the 3rd Sept. 1980 passed by the National Industrial Tribunal, Bombay in Complaints Nos.
NTB 2 & 3 of 1980 in Reference No. NTB 1 of 1979.
AND CIVIL APPEAL NO.
3150 of 1980 Appeal by Special leave from the Award dated 3rd September, 1980 passed by the National Industrial Tribunal, Bombay in Complaints Nos.
NTB 2 & 3 of 1980 in Reference No. NTB 1 of 1979.
F.S. Nariman R.A. Shroff, H.S. Parihar and Shradul section Shroff, for the Appellant in CAS 2815 16/80, for Respondent No. 2 in CA.
2607/80 & for Respondent No. 1 in C.A. 3150/80.
C. N. Murthy and P. P. Mittal for Respondent No. 1 in CA.
2815 16/80.
M.K. Ramamurthy, P.S. Khera and S.K. Dawar, for RR 2 70 in CAS.
2815 16/80, for Respondent No. 3 in CA 2607/80 & for Respondent Nos. 3 & 40 67 in CA.
3150/80.
K.K. Venugopal, C.N. Murthy and P.P. Mittal 1980 for the Appellants.
A.K. Sen, A.K. Gupta, Brij Bhushan, N.P. Mahendra and Miss Renu Gupta, for the Appellants in CA.
3150/80.
S.K. Bisaria for RR.
2 4 and 6 39 in CA.
3150/80.
The Judgment of the Court was delivered by GUPTA, J.
These are four appeals by special leave from an Award of the National Industrial Tribunal, Bombay, made on September 3, 1980 disposing of two complaints under section 33 A of the holding that the employer, 111 Reserve Bank of India, Bombay had changed to the prejudice of the complainants their conditions of service by modifying the existing scheme of promotion during the pendency of a reference before the Tribunal and had thereby contravened the provisions of section 33 (1) (a) of the Act.
Civil Appeals 2815 and 2816 of 1980 have been preferred by the Reserve Bank of India, Bombay.
In civil appeal 2607 of 1980 the appellants are some of the stenographers employed in the Bombay office of the Reserve Bank of India.
The four appellants in civil appeal 3150 of 1980 are also employees of the Reserve Bank of India, Bombay, one of whom is a clerk grade I and the other three are officiating as staff officers grade A.
How the appellants in Civil Appeals 2607 and 3150 are affected by the Award will appear from the facts stated below.
The facts leading to the making of the complaints under section 33 A are as follows.
On June 16, 1979 the Government of India, Ministry of Labour, in exercise of powers conferred by section 7B of the constituted a National Industrial Tribunal with headquarters at Bombay and referred to it for adjudication an industrial dispute existing between the Reserve Bank of India and their class III workmen.
The dispute as described in the schedule to the order of reference related to "specific matters pertaining to class III workmen" enumerated in the schedule.
The schedule listed 35 matters in all, item No. 12 of which is described as 'Promotion '.
On May 13, 1972 appellant Reserve Bank of India, Bombay, had issued Administration Circular No. 8 introducing a revised scheme for promotion of employees as Staff Officers Grade A.
This Circular No. 8 prescribed as a condition for promotion passing a test consisting of three papers on the following subjects: noting, drafting, precis & essay writing, (ii) Reserve Bank of India Act, and (iii) functions and working of the Reserve Bank of India.
Candidates with less than 15 years ' service in class III cadre at the time of the test and who had not passed in the subjects 'Practice and Law of Banking ' and 'Book keeping and Accounts ' in Part I of the Institute of Bankers Examination were to appear and pass in an extra paper divided into two parts on the aforesaid two subjects.
Candidates who had passed in either or both these subjects in part I of the Institute of Bankers Examination were exempted from appearing in the corresponding part or both parts of this paper.
The circular further provided that an estimate of the vacancies anticipated to occur in each office during a 'panel year ' i. e. from September 1 to 112 August 31, was to be declared by the Bank in advance and the number of candidates in that office to be called for the test to fill the vacancies in that office was not to exceed twice the number of such vacancies.
A candidate who had been unsuccessful in more than one test was to be treated as a repeater and the number of such repeaters sitting for a test would be in addition to the aforesaid number of candidates.
An employee in the substantive rank of teller, stenographer grade II, stenographer grade I or personal assistant was eligible to appear in the test under this circular provided he had put in a minimum period of 15 years ' service in class III cadre.
A further condition relating to these three types of employees, tellers, stenographers and personal assistants, was that they could be called to appear in the test only if a clerical candidate of the same length of service found a place within twice the number in the combined seniority list.
The said three types of employees were required to pass both parts I and II of the Institute of Bankers examination, or if they were graduates, in part I only.
Those of them who would pass the test were to be posted on the clerical desk for one year for acquiring experience and thereafter they were to be absorbed in the next list to be prepared on the result of the test succeeding the one in which they had passed.
They were to rank in seniority below the juniormost successful candidate in the test in which they qualified.
A further requirement was that the stenographers and personal assistants should have worked for at least 5 years as such; this condition was thought necessary because it was possible that some of them may have been employed as typists for some time.
Feeling that the aforesaid circular No. 8 adversely affected them, the Stenographers filed a writ petition in the Andhra Pradesh High Court challenging the validity of the circular.
The main grievance seems to have been that by the said Circular No. 8 they were placed en bloc below the clerks which made the chances of promotion so far as they were concerned illusory.
The Andhra Pradesh High Court dismissed the writ petition with the following observations: ". .the clerks and the stenographers who have passed at the qualifying written examination do not acquire any right to promotion by merely being put in a panel.
As observed by the Supreme Court in the case cited in Gangaram vs Union of India, A.I.R. 1970 S.C. 2178, the effect of passing at the qualifying examination is only 113 to remove a hurdle in their way for further promotions to the posts of staff officers, grade II.
In the matter of actual promotion there is nothing illegal in the department promoting the clerks as a group in the first instance and postponing the promotions of the stenographers to a later stage. .It is urged on behalf of the petitioners that previous to the new scheme, the stenographers were placed at the top of the clerks en bloc and that they have now been brought to the bottom.
This argument is based upon a misconception that the panel creates any rights.
Hence nothing turns upon the place fixed in the panel".
The High Court however made certain recommendations "to avoid frustration and dissatisfaction among the stenographers".
It was suggested that "the Reserve Bank may frame suitable rules for fixing the seniority among the staff officers, grade II, on some rational and equitable principles, i.e., by length of service or marks obtained at the qualifying examination or by adopting a reasonable ratio between the two classes, so that the chances of further promotions for the stenographers may not be illusory".
This judgment was delivered on March 5,1973.
In the months of March and November, 1973 charters of demand were submitted respectively by the All India Reserve Bank Workers Organisation and the All India Reserve Bank Employees Association.
The latter Association is the one which is recognised by the Bank.
On January 23, 1976 by Administration Circular No. 5 the Bank modified Circular No. 8 to remedy the alleged adverse effect suffered by the stenographers as a result of Circular No. 8.
On June 16, 1979 the order referring to the National Tribunal at Bombay the dispute between the Bank and the class III workmen was made.
The All India Reserve Bank Employees Association filed a writ petition in the Calcutta High Court in July 1979 challenging this order of reference.
The High Court at Calcutta issued an injunction restraining the National Tribunal from adjudicating on the reference until the writ petition was disposed of.
A settlement was thereafter reached between the Bank and the All India Reserve Bank Employees Association and the injunction was vacated.
On November 21, 1979 the Bank and the Association applied to the Tribunal jointly for making an award on the basis of the settlement.
In the meantime on October, 10, 1979 the impugned Circular No. 6 was issued.
The following changes were introduced by Circular 114 No. 6 in the scheme of promotion set out in Circular No. 8 relating to personal assistants, stenographers, tellers and the clerical staff: (1) The eligibility period so far as these three types are concerned was reduced from 15 years to 10 years service.
(2) The condition requiring stenographers and personal assistants to put in 5 years service as such was dispensed with.
(3) Their period of training on clerical desk was reduced from 1 year to six months.
(4) They were to be fitted according to the length of their service in the panel for the year in which they passed the test and not in the next panel as before.
(5) Those who are graduates among these three groups, even if they had not passed in all the subjects in part I of Indian Institute of Bankers examination, would be eligible for exemption from appearing in the additional paper on 'Practice and Law of Banking ' and 'Book keeping and accounts ' if they had passed in these two subjects in the said examination.
(6) This benefit of exemption which was available to the clerical staff of 15 years ' standing previously was extended to those of them who had put in only 10 years service.
The two complaints (complaint Nos. 2 and 3 of 1980) on which the impugned award has been made were filed respectively on July 22, 1980 and August 1, 1980.
The complainants who were clerks grade I had passed the test in the panel year 1978 79 and were empanelled for promotion to the post of staff officer grade A.
The grievance made in the two complaints is that the result of the changes introduced in the promotional scheme by Circular No. 6 relaxing for the stenographers and personal assistants the conditions they were required to satisfy to be able to sit for the test and permitting them to be fitted according to the length of their service in the panel for the year in which they had passed the test, was that many who could not have been considered for promotion in preference to the complainants had circular No. 8 been in force, would 115 now be entitled to a higher preference.
According to the complainants the alterations made during the pendency of the reference before the National Tribunal amounted to changing their conditions of service to their prejudice in violation of section 33 (1) (a) of the .
The complainants in complaint No. 2 of 1980 stated that if the alterations introduced by Circular No. 6 were allowed to continue "the chances of promotion would become bleak for them '; complainants in complaint No. 3 of 1980 also expressed a similar apprehension that as a result of the changes introduced "their chances of promotion would recede further and further".
The appellants in civil appeal 2607 of 1980 who are stenographers acquired eligibility to appear in the qualifying test because of the modifications introduced in the existing scheme by Circular No. 6.
All the four appellants in civil appeal 3150 of 1980 are from clerical cadre, three of whom are officiating as staff officers grade A; they are also beneficiaries of the relaxations made in the existing scheme by circular No. 6.
The appellants in both these appeals are obviously affected by the Award allowing the complaints and declaring circular No. 6 as invalid.
Section 33 (1) (a) prohibits the employer during the pendency of a proceeding in respect of an industrial dispute before a Labour Court or Tribunal or National Tribunal from altering to the prejudice of the workmen concerned in the dispute their existing conditions of service.
Sub section (2) of section 33, however, permits the employer to alter the conditions of service in regard to any matter not connected with the dispute in accordance with the standing orders applicable to the workman concerned or in accordance with the terms of the contract between the employer and the workman.
The right given to the employer under sub section (2) is subject to the condition laid down in sub section (3) of section 33 that the right can be exercised only with the express permission in writing of the authority before which the proceeding is pending.
Section 33 A of the Act provides that where an employer contravenes the provisions of section 33 during the pendency of proceedings before a Labour Court, Tribunal or National Tribunal any employee aggrieved by such contravention may make complaint in writing to such Labour Court, Tribunal or National Tribunal, and on receipt of such complaint the Labour Court, Tribunal or National Tribunal shall adjudicate upon the complaint as if it were a dispute referred to it or pending before it in accordance with the provisions of the Act and submit its award to the appropriate government.
Section 31 (1) of the Act provides for penalty for contravention of the provisions of section 33; an 116 employer found guilty of such contravention is punishable with imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees or with both.
In this case circular No. 6 was not introduced with the permission of the National Tribunal, Bombay, before which the reference was pending; to determine whether thereby the provisions of section 33 have been contravened, the question that requires to be answered is whether the alterations introduced by Circular No. 6 are connected with the dispute pending in reference before the National Tribunal.
This again leads to the question, what was the dispute that was referred to the National Tribunal for adjudication? According to the complainants their promotional prospects were adversely affected by the impugned circular.
Item 12 of the schedule annexed to the order of reference is described as 'Promotion '.
Demand No. 19 in the charter of demands presented by the All India Reserve Bank Employees Association mentions 'Promotional avenues ' but, as the National Tribunal itself noticed, the matters specified under the head 'promotional avenues ' relate to the creation of more promotional posts and the upgrading of certain posts.
Demand No. 19 does not thus relate to the promotional scheme in question.
The impugned award also refers to demand No. 27 of the charter of demands submitted by the All India Reserve Bank Workers organisation.
Demand No. 27 is described as 'Promotional Policy ' and all that is said in the charter of demands under this head is that the matter "should be discussed and finalised on the basis of pre requisites of promotional policy submitted in 1969".
It is not therefore clear how demand No. 27 could have a connection with the promotional scheme set out in circular No. 6 issued in 1979.
The award does not refer to the statements of claim filed on behalf of the workmen; it is likely that because of the order of injunction issued by the Calcutta High Court to which we have earlier referred, the unions representing the workmen were not able to file their statements of claim before the National Tribunal disposed of the complaints under section 33A.
The Tribunal however held: " contemplates reference in wider terms than the actual item in dispute.
Section 10 (IA) of the which provides for the appointment of the National Tribunal shows that the Central Government could form its opinion not only on the existing dispute but also on the apprehended dispute and the order of reference can cover not only the dispute but any matter appearing to be connected with or relevant to the dispute.
In view of it, it cannot be said that when the item 'Promotion ' has been referred to 117 the Tribunal, it has the limitation of remaining in the frame work of the demand. the Tribunal has the jurisdiction to decide on the natural meaning of the words used in the item of reference.
The item seems to have been deliberately stated in terms. it looks to be referring to the process involving promotions." Having said so the Tribunal added: "The extent of such process will have to be carefully defined because there is no dispute with the axiomatic principle that promotion is a matter in the discretion of the employer".
It is difficult to follow the steps of reasoning in the extract from the award quoted above; it is also not clear how the view expressed therein helps in ascertaining what was the dispute referred to the Tribunal for adjudication.
No one can deny that under section 10 (IA) the Central Government could refer to the National Tribunal an existing or an apprehended dispute; the order or reference in this case however shows that it was not an apprehended dispute but an industrial dispute that "exists between the employers in relation to the Reserve Bank of India and their class III workmen in respect of the matters specified in the schedule" annexed to the order which was referred to the Tribunal for adjudication.
As section 10 (IA) expressly says, any matter appearing to be connected or relevant to the existing or apprehended dispute can also be referred to the National Tribunal for adjudication, but obviously unless it is determined what the dispute was that has been referred for adjudication, it is not possible to say whether a particular matter is connected with it.
The Tribunal thought it unjust to restrict the meaning of the word 'promotion ' to what was suggested by the charters of demand and decided to give it its "natural meaning" which according to the Tribunal includes "the process involving promotion".
The question however remains how did the Tribunal satisfy itself that when by the order of reference a specific matter, namely, 'promotion ' was referred to it for adjudication, it was implied that the word should be given a "natural meaning" in the sense in which the Tribunal understood it.
We do not think it reasonable to suppose that the order of reference required the Tribunal to adjudicate on all possible matters relating to promotion.
We therefore accept the contention of the appellants that the Tribunal should have defined the area of the dispute referred to it for adjudication before proceeding to consider whether the promotional scheme set out in Circular No. 6 could be said to be connected with that dispute.
118 Having reached this conclusion we should have sent the matter back to the National Tribunal for ascertaining the scope of the dispute referred to it for adjudication, if the assumption were correct that the alterations in the promotional scheme introduced by Circular No. 6 amounted to changing the conditions of service of the complainants; if not, remitting the matter to the Tribunal will be unnecessary.
What Circular No. 6 did was to relax for stenographers and personal assistants the conditions they had to satisfy to be able to sit for the test.
If they passed the test, they would get into the penal along with employees belonging to the clerical cadre who also had passed the test.
Vacancies in the post of staff officer Grade A are filled by recruiting employees from the panel.
The panel, it appears from the award, is a permanent one.
How those who come out successful in the test are to be fitted in the panel has been stated earlier.
The panel is made up of employees belonging to different cadres.
It is difficult to see how alteration of the conditions of eligibility governing employees belonging to a particular cadre can amount to changing the conditions of service of employees who belonged to another cadre, assuming for the present that the said conditions were conditions of service.
The changes introduced in respect of the stenographers and personal assistants may have an impact on the promotional prospects of employees from another cadre who are already in the panel or even of those who were expecting to be included in the panel, but it is not possible to agree that this would amount to changing their conditions of service.
It is difficult to think of the conditions of service of an employee as including an implied right to prevent the employer from altering the conditions of service of other employees.
In a given case such alteration may be inequitable, and a way may be found in the to redress the grievance of the employees affected thereby, but in this case the question is whether if amount to altering the condition of service of the complainants.
In Reserve Bank of India vs N.C. Paliwal this Court upheld the validity of the combined seniority scheme introduced by the Reserve Bank for the clerical staff.
The first paragraph of the head note to the report summarizes the facts on which challenge to the scheme was based: "At every centre of the Reserve Bank of India there were five departments, the General Department and four Specialised Departments.
There was a separate 119 seniority list for the employees in each Department at each centre and confirmation and promotion of employees was only in the vacancies arising within their Department at each centre.
There were two grades of clerks in each Department, namely, Grade I and Grade II.
The pay scales of Grade I and Grade II clerks in all the departments were the same and their conditions of service were also identical.
There was automatic promotion from Grade II to Grade I and when a clerk from Grade II was promoted to officiate in Grade I, he got an additional officiating allowance of Rs. 25/ per month.
There were also several categories of non clerical posts in the General as well as Specialised Departments, and their pay scale was the same as that of Grade II clerks.
In view of expanding activities in the Specialised Departments, there were greater opportunities for confirmation and promotion for employees in the Specialised Departments than in the General Department.
This gave rise to dissatisfaction amongst employees in the General Department and they claimed equal opportunities by having a combined seniority list for all the clerks for confirmation and promotion.
The Reserve Bank, sought to justify the separate seniority lists on the ground that the work in each department was of a special nature and inter transferability was undesirable and hard to achieve.
As a result of the recommendation of the National Tribunal.
however, the Reserve Bank introduced the Optee Scheme of 1965 as a first step towards equalization of opportunities.
Under the scheme, the option to go over to the Specialised Departments was confined to confirmed Grade II clerks and officiating Grade I clerks in the General Department.
If he exercised the option, he was eligible to be selected.
If he was selected.
he would be entitled to be absorbed only as Grade II clerk in one of the Specialised Departments with the result that if he was an officiating Grade I clerk in the General Department at the time of the exercise of the option, he would lose the benefit of officiation in Grade I in the General Department as also the monetary benefit of Rs. 25/ .
His seniority in the cadre of Grade II clerks in the Specialised Department in which he was absorbed would be deter 120 mined on the basis of his length of service calculated from the date of his recruitment if he was a graduate when he joined service, or from the date of his graduation if he became a graduate whilst in service.
It was argued in Paliwal 's case that the combined list was invalid because it discriminated against the petitioners vis a vis other grade II clerks who had opted under the optee Scheme of 1965.
This Court held: "The contention of the petitioners was that some of the Grade II clerks who had opted under the optee Scheme of 1965 were promoted as Grade I Clerks, while the petitioners continued as Grade II Clerks and before their turn for promotion could arrive, the Combined Seniority Scheme was brought into force and that prejudicially affected their promotional opportunities and thus brought about unjust discrimination between persons belonging to the same class.
This contention has no force and must be rejected.
We have already discussed and shown that it was competent to the Reserve Bank to introduce the Combined Seniority Scheme for the purpose of integrating the clerical staff in all the departments and the Reserve Bank was not bound to wait until all the transferee Grade II Clerks under the optee Scheme of 1965 were promoted as Grade I Clerks in their respective Specialised Departments.
There was no such assurance given by the Reserve Bank when it introduced the optee Scheme of 1965.
What it did was merely to equalise the opportunities of Grade II Clerks in the General Departments with those of Grade II Clerks in the Specialised Departments.
The Reserve Bank did not undertake that it will not take any steps for bringing about total integration of the Clerical services until all the transferee Grade II Clerks were promoted.
The Reserve Bank was entitled to introduce the Combined Seniority Scheme at any time it thought fit and the validity of the Combined Seniority Scheme cannot be assailed on the ground that it was introduced at a time when some of the transferee Grade II Clerks still remained to be promoted and was discriminatory 121 against them.
It may be that some transferee Grade II Clerks had already obtained promotion as Grade I Clerks by the time the Combined Seniority Scheme was introduced, while others like the petitioners had not.
But that cannot be helped.
It is all part of the incidence of service and in law, no grievance can be made against it." These observations in Paliwal 's case are equally applicable to the case before us.
It was competent for the Bank to introduce a combined promotional scheme for the clerical staff, stenographers, and personal assistants and the Bank was not bound to wait until all employees belonging to the clerical cadre whose names were already in the panel when circular No. 6 was introduced had been promoted as staff officers Grade A.
There was no such assurance given by the Bank when it introduced circular No. 8 on which the complainants rely.
The Bank did not undertake that it would not take any step to change the conditions the stenographers and the personal assistants were required to satisfy to be able to appear in the test until all the clerks already empanelled were promoted.
Circular No. 6 cannot therefore be assailed on the ground that it was introduced when some employees belonging to the clerical grade whose names were already in the panel remained to be promoted.
That cannot be helped, and, as observed in Paliwal 's case, "it is all part of the incidence of service and in law no grievance can be made against it".
Being in the panel in any particular year does not ensure a fixed place in the panel for an employee until he is promoted.
It may be recalled that in 1964 and again by circular No. 8 in 1972 the stenographers conditions of service were altered to their prejudice.
The right the complainants now claim is based on the change in the conditions of service of the stenographers made to their detriment earlier.
The grievance of the complainants really relates to the changes affecting their chances of promotion.
We have earlier quoted from the charters of demand to show that the complainants themselves looked upon the alterations made by circular No. 6 as affecting their "chances of promotion".
It is well settled that a rule which affects the promotion of a person relates to his condition of service but this is not so if what is affected is a chance of 122 promotion only.
This Court in Mohd. Shujat Ali and others etc.
vs Union of India & Ors. etc.
held: "But when we speak of a right to be considered for promotion, we must not confuse it with mere chance of promotion the latter would certainly not be a condition of service. that though a right to be considered for promotion is a condition of service, mere chances of promotion are not." In Shujat Ali 's case the respondents went down in seniority and it was urged that this affected their chances of promotion.
In Shujat Ali reference was made to earlier decision of this Court, State of Mysore vs G.B. Purohit where also it was held that though a right to be considered for promotion is a condition of service, mere chances of promotion are not and that a rule which merely affects chances of promotion cannot be regarded as varying a condition of service.
The facts of Purohit 's case and what was decided in that case have been summarized in Shujat Ali 's case as follows: "What happened in State of Mysore vs G.B. Purohit was that the districtwise seniority of Sanitary Inspectors was changed to Statewise seniority and as a result of this change, the respondents went down in seniority and became very junior.
This, it was urged, affected their chances of promotion which were protected.
This contention was negatived and Wanchoo J., as he then was, speaking on behalf of this Court observed: It is said on behalf of the respondents that as their chances of promotion have been affected their conditions of service have been changed to their disadvantage.
We see no force in this argument because chances of promotion are not conditions of service.
" The fact that as a result of the changes made by circular No. 6 the complainants lost a few places in the panel affects their chances of promotion but not the right to be considered for promotion.
123 that being so, it cannot be said that the alterations made by circular No. 6 amount to changing the conditions of service of the complainants; the grievance made by the complainants does not therefore appear to have any basis.
The appeals are accordingly allowed and the complaints dismissed, in the circumstances of the case the parties will bear their own costs.
V.D.K. Appeals allowed.
| The Aviation Research Centre was a temporary and ad hoc organisation set up in 1962 for carrying out the work of collecting intelligence by the use of highly sophisticated techniques.
For manning this Task Force, persons with experience in the specialised nature of the work were taken on deputation basis from different sources, such as the Intelligence Bureau, the Departments of Defence Science, Wireless Planning 'and Coordination, the Directorate General of Civil Aviation and the Police Cadres of different States and they were grouped together to form the ARC.
To supplement the man power some persons were also directly recruited to the organisation on a purely ad hoc basis.
The ARC organisation was initially treated as an extension of the Intelligence Bureau.
In February 1965, it was brought under the control of the Director General of Security.
The administrative control over the organisation which was originally vested in the Ministry of External Affairs and later with the Prime Minister 's Secretariat was transferred to the Cabinet Secretariat in 1965.
The sanction for continuance of the temporary organisation was accorded by the Government from year to year till the year 1971 when a decision was taken by the Government to make the ARC a permanent Department.
The finalisation of the principles to be adopted for constitution of the new permanent Department took considerable time and it was only on April 26, 1976 that the President of India promulgated the Aviation Research Centre (Technical) Service Rules ]976 providing for tho constitution of a new service the Aviation Research Centre (Technical) Service.
876 Rule 6 of the said Rules dealt with the initial constitution of the new ARC permanent Service and provided that all persons holding, as on the appoint ed day, any one of the categories of posts specified in rule 4, whether in a permanent or temporary or officiating capacity or on deputation basis, shall be eligible for appointment to the service at the initial constitution thereof.
Rule 7 laid down the principles to be applied for fixation, of seniority of those appointed to the various posts at the time of its initial constitution, while Rule 8 dealt with the filling up of vacancies in various grades remaining unfilled immediately after the initial constitution of the service and all vacancies that may subsequently arise in the Department.
Rule 12 provided that in regard to matters not specifically covered by the rules or by order issued by the Government, the members of the service shall be governed by general rules, regulations and orders applicable to persons belonging to the corresponding Central Civil Service.
The petitioners, who were persons recruited directly to the ARC organisation during the period between 1965 and 1971 challenged in their writ petition, the validity of the promotion given to respondent nos.
8 to 67 from the year 1968 onwards officers whose services were borrowed on deputation.
They contended that the deputationists were occupying the posts in the Department only on an ad hoc basis and such ad hoc appointees who were having the benefit of lien in their parent departments and were getting promotions in those departments had no claim whatever to seniority or promotions in the borrowing department viz.
A.R.C. They also assailed the Aviation Research Centre (Technical) Service Rules as conferring arbitrary powers on the controlling authority to equate the ad hoc service rendered by the deputationists in the ARC with the regular service rendered by persons like the petitioners who had been directly recruited to the Department on a regular basis which resulted in permanently blocking all the future chances of the petitioners in matters of promotion and other service benefits.
The Rules were highly arbitrary and infringed Articles 14 and 16 of the Constitution since it was based on illegal treatment of unequals as equals by equating persons functioning on a mere ad hoc basis with those holding posts in the organisation on a regular basis.
Rule 6(2) conferred arbitrary and unfettered powers on the Screening Committee and suffered from the vice of excessive delegation.
Rule 7 in so far as it empowered the Department to reckon the seniority of the deputationists by giving them the benefit of the ad hoc service rendered by them in the ARC as well as the prior service put in by them in their parent departments was arbitrary.
Rule 8(1) enabled the deputationists to consolidate the illegal advantage gained by them at the initial constitution by further promotions/appointments to still higher posts in the ARC, and by specifying the method of recruitment to the various posts in the Service and fixing a quota as between the vacancies to be filled up by promotions and those to be filled up by direct recruitment/deputation or re employment in Schedule II of the rules, the deputationists have been treated on a par with regular departmental personnel and this involved a clear violation of Articles 14 and 16 of the Constitution.
It was further contended that the position of the deputationists being that of persons permanently transferred from the parent departments to the ARC, under Article 26 of the Civil Service Regulations, such persons appointed by transfer shall be ranked below all the direct recruits as well as the promotees already functioning in the Department and the seniority list dated November 6, 1978 having been drawn up in contravention of the aforesaid principle laid down in Article 26, the said list should be declared to be illegal and void.
877 The case of the petitioners was resisted by respondent No. 1, who contended that the appointments made by direct recruitment were merely temporary and ad hoc in character.
While the deputationists were persons with rich experience and long years of service, the direct recruits were inexperienced and new to the job.
The delay in promulgation of the rules was due to the fact that because of the special features of the Department and the sensitive nature of the functions to be discharged by it, various circumstances and factors had to be taken into account before the draft rules were finally cleared by the several Ministries concerned.
There is no principle of law prohibiting the absorption in a newly constituted Department of persons who are functioning on deputation in a temporary organisation which was later constituted into a permanent service.
The Service Rules extend equal treatment to all categories of employees who were in position on the crucial date viz., April 26, 1976 in the matter of absorption as well as determination of seniority at the initial constitution, irrespective of whether they were direct recruits or deputationists.
The Screening Committee prepared the seniority List of the persons found suitable for absorption in accordance with the provisions contained in Rule 6(2) read with Rule 7.
The Rules cannot be said to be arbitrary or violative of the principles of equality enshrined in Articles 14 and 16.
Dismissing the writ petition, ^ HELD: l(i) A party seeking the intervention and aid of this Court under Article 32 of the Constitution for enforcement of his fundamental rights, should exercise due diligence and approach this Court within a reasonable time after the cause of action arises and if there has been undue delay or laches on his part, this Court has the undoubted discretion to deny him relief.
[900 H 901 A] (ii) The challenge raised by the petitioners against the validity of the promotions given to respondent nos.
8 to 67 during the period between 1968 and 1975 is liable to be rejected on the preliminary ground that it is most highly belated.
There is no valid explanation from the petitioners as to why they did not approach this Court within a reasonable time after those promotions were made.
This writ petition has been filed only in the year 1979 and after such a long lapse of time the petitioners cannot be permitted to assail before this Court the promotions that were effected during the years 1968 to ]975.
[900 F G] (iii) There is also no satisfactory explanation from the petitioners as to why no action at all was taken to challenge the validity of the promotions given to respondents nos.
8 to 67 for a period of nearly seven years subsequent to the judgment of the High Court in 1972.
[901 F] Rabindra Nath Bose and ors.
vs Union of India and ors ; referred to.
So long as there was no regular cadre and hierarchy of posts and no rules laying down the mode of appointment/promotion to those posts, it was perfectly open to the Government to fill up the posts by securing the services of persons who in its opinion were by virtu.
Of their experience and qualifications, best suited for being on trusted with the specialised kinds of functions attached to the various posts.
[902 E] 878 In the instant case the petitioners had been appointed as ACIOs II only on a temporary and ad hoc basis.
Such appointments did not confer on them any rights even to the posts of DFOs.
It had also been categorically made clear to them in the letters containing the offers of appointment that such appointments will not confer on them any right to be permanently absorbed in the post if and when it was made permanent.
There was also not even any executive order or administrative instruction declaring the post of DFO as the feeder category for appointment to the higher posts.
The petitioners, therefore, had no legal right or claim for being appointed by promotion to the higher posts of ACIO I (FO), ATO, etc.
[902 F G] 3(i) When a new service is proposed to be constituted by the Government, it is fully within the competence of the Government to decide as a matter of policy the sources from which the personnel required for manning the service are to be drawn.
[903 F] (ii) It is in the exercise of the said power, that provision has been made by sub rule (1) of Rule 6, that all the persons who, as on the appointed day, were already working in the ARC organisation on a temporary and ad hoc basis and had thereby acquired valuable experience in the specialised kinds of work would be eligible for appointment to the new service at the stage of its initial constitution.
Equal opportunity was given to all to get permanently appointed in the new ARC (Technical) Service subject to their being found fit by the Screening Committee under sub rule (2) of Rule 6.
The provision cannot be said to be violative of Articles 14 and 16.
[903 G, 904 A] 4(i) The provision for Constitution of a Screening Committee for adjudging the suitability of the persons in the field of eligibility for permanent appointment to the service is absolutely reasonable.
[904 D] (ii) The power conferred on the controlling authority to issue general or special instructions to a Screening Committee is really in the nature of a safeguard for ensuring that the rules relating to the initial constitution of the service were applied fairly and justly.
The controlling authority is the "Secretary Department of Cabinet Affairs".
When supervisory powers are entrusted to such a high and responsible official, it is reasonable to assume that they will be exercised fairly and judiciously and not arbitrarily.
The contention that the provisions of sub rule (2) of Rule 6 suffer from the vice of arbitrariness or excessive delegation therefore, fails.
[904 E] 5(i) When recruitment to the new Service was being made from two different classes of sources, it was necessary for the Government to evolve a fair and reasonable principle for regulating the inter se seniority of the personnel appointed to a new Department.
What has been done under Rule 6 is to give credit to the full length of continuous service put in by all the appointees in the concerned grade, whether such service was rendered in the temporary ARC organisation or in other departments of the Government.
The criterion applied, namely the quantum of previous experience possessed by the appointees measured in terms of the length of continuous service put in by them in the concerned or equivalent grade is perfectly relevant to the purpose underlying the framing of tho rule.
The principle laid down in rule 6(2) for determination of 879 inter se seniority was quite reasonable and fair and did not involve any arbitrary or unfair discrimination against the petitioners.
[905 C E] In the instant case while the petitioners had no substantive lien in respect of or title to any post in any department, the deputationists were having a lien on the posts held by them in their parent departments.
The petitioners, therefore, formed a different class consisting of persons who were virtually being recruited for the first time into regular Government service, as distinct from respondents 8 to 67 who had been holding posts in their parent departments for several years on regular basis who formed a separate class.
[905 B] 6.
The provisions contained in Rule 7 that the seniority of persons appointed on permanent basis in each grade at the initial constitution of the service shall be in the order in which they are shown in the relevant list prepared by the Screening Committee in accordance with the provisions of Rule 6 was upheld as perfectly valid and constitutional.
[905 F G] 7.
At the time of constituting a new service and laying down the mode of appointment to the various posts it is fully within the powers of the President of India to prescribe the methods by which vacancies arising in the different categories of posts in the department should be filled up.
In the instant case this is precisely what has been done by Rule 8 and the provisions of Schedule II.
[906 B] 8.
The draft rules were prepared by the Directorate of ARC and submitted to the Government in 1972 itself but on a detailed scrutiny being made it was found that the said draft required substantial modification in several respects.
Revised rules were, therefore, drafted and submitted to the Government late in 1974.
The time taken in finalising the rules was due to the fact that intensive examination of all the relevant aspects had to be done by the various concerned Ministries before the draft rules could be finally approved and issued.
The plea of malafides put forward by the petitioners is not established.
[906 H 907 B] 9.
Article 26(7)(iii) of the Civil Services Regulations applies to cases "where a person is appointed by transfer in accordance with a provision in the recruitment rules providing for such transfer in the event of non availability of candidates by direct recruitment or promotion".
The absorption of the erstwhile deputationists in the ARC (Technical) Service at the time of its initial constitution was not by such transfer.
The provisions of Article 26(7)(iii) are, therefore not attracted.
[909 F G] 10.
The provisions of Rule 6(3) and Rule 7 will be strictly conformed, to both in letter as well as in spirit, by respondents nos.
1 to 7.
In case it is found on examination that the ranking assigned to any of the petitioners in the impugned seniority list dated November 6, 1978 is not consistent with the principles laid down in the aforementioned rule, necessary action should be immediately taken to rectify the said defect.
If the promotional chances of any of the petitioners have been adversely affected by reason of any defect in the seniority list, such promotions should also be reviewed after following the requisite procedure.
The petitioners may bring to the notice of the first respondent specific instances, if any, of deviation from the principles enunciated in Rule 6(3) and Rule 7 resulting in incorrect assignment of seniority and rank by sub 880 mitting representations.
Such representations, if received, will be duly examined and appropriate orders passed thereon as expeditiously as possible.
[910 F 911 A]
|
ition No. 1519 of 1979.
(Under article 32 of the Constitution of India ) V.M. Tarkunde, P.H. Parekh and Miss Caprihan for the Petitioner R.R. Garg, L.R. Singh and Gopal Singh for Respondents 1 & 2.
D.P. Singh, L.R. Singh and Mr. Gopal Singh for Respondents 3 & 4.
Harbans Lal and G.S. Narain for Respondent No. 5.
Miss A. Subhashini, C.V. Subba Rao and R.N. Poddar for the Union of India.
The Judgment of the Court was delivered by MISRA J.
: By the present petition under Article 32 of the Constitution the petitioner seeks to challenge the appointment of Shri B.P. Adhikari, respondent No. 4, as the Director of the Indian Statistical Institute, respondent No. 1.
The Indian Statistical Institute is a Society registered under the Societies Registration Act.
It is governed by the Indian Statistical Institute Act, 1959 (hereinafter referred to as 'the Act ').
Its control completely vests in the Union of India, respondent No. 5.
It is wholly financed by the Union of India.
All the functions of the Institute are controlled by the Union of India, as is evident from the various provisions of the Act.
Under section 8 of the Act the annual work programmes of the Institute and the general financial estimates in respect of such work are settled by committees appointed by the Central Government and the Institute obviously cannot undertake any research or training programmes without the approval of the Central Government.
The Institute carries on an integrated programme of training, teaching and research in statistics and application of statistical techniques in other disciplines.
The Institute has been declared as an 'Institution of National Importance ' under the Act.
Under section 4 of the Act the Institute has been empowered to grant such degrees and diplomas in statistics as may be determined by the Institute from time to time.
In accordance with the provisions of section 5 of the Act the Central Government pays to the Institute in each financial year such sums of money as the Government considers 399 necessary by way of grant.
Loan or otherwise to enable the Institute to discharge efficiently its functions including research, education, training, project activities and statistical work relating to planning for national development.
Section.
6 of the Act deals with audit of accounts of the Institute by auditors duly qualified to act as auditors of companies under the and selected by the Central Government after consultation with the Comptroller and Auditor General of India.
Section 7 of the Act restricts the powers of the Institute to alter, extend or abridge its memorandum or rules and regulations and to sell or otherwise dispose of its property acquired with the money specifically provided for such acquisition by the Central Government except with the previous approval of the Central Government.
Section 9 empowers the Central Government to constitute a committee, inter alia, for reviewing and evaluating the work done by the Institute and the progress made by it as also advising Government generally on any matter which in the opinion of the Central Government is of importance in connection with the work of the Institute.
Section 11 of the Act empowers the Central Government to issue directions to the Institute.
Section 12 authorises the Central Government to assume control over the Institute under certain extreme circumstances.
The Institute receives grants from the Central Government to meet almost the entire expenditure on its plan and non plan activities.
The chief executive body of the Institute is the Council, respondent No. 2, consisting of 25 members including three representatives of the Central Government.
The Council is headed by the Chairman elected to that position by the Council by a simple majority from amongst the names proposed by the President or members of the Council.
The election of the Chairman of the Council is governed by bye laws of the Institute.
The initial appointment to carry out research and teaching work is to the post of professor.
The next post in the hierarchy is of Research professor and the highest in the hierarchy is the post of Distinguished scientist.
In order to discharge the administrative and academic responsibilities of the Institute, a Director, with distinctive administrative and academic acumen, is appointed by the Council, respondent No. 2.
Shri B. P. Adhikari, respondent No. 4, was appointed as the Director of the Institute by an order dated 3rd August, 1979.
This order of appointment has been challenged by the petitioner on various grounds.
400 According to the petitioner he was a Distinguished Scientist of the Institute at the relevant time.
To start with, he was appointed to the post of Economist in the Indian Statistical Institute on 1st October, 1962 on a monthly pay of Rs. 1000/ in the time scale of RS.
750 50 1250 plus special pay of Rs. 350/ per month.
Within a year he was promoted as Professor in the time scale of Rs. 1000 50 1500 with a starting pay of Rs 1400/ per month, and from 1st October, 1967 he had been holding the post of Research Professor in the time scale of Rs. 1600 100 1900.
On 1st January 1968 he was made officer in Charge and. entrusted with all technical matters, administration and developmental plans relating to planning and regional survey units special training in Delhi.
He was given a allowance of Rs. 200/ per month over and above the pay in the time scale of Research Professorship.
The petitioner has been responsible during the period 1962 1974 for the creation and promotion of several new activities of respondent No. 1 in Delhi.
Specialised training in National Planning and Econometrics for M. Stat.
(2nd Year) trainees of respondent No. 1 was started in Delhi under the direction of the petitioner.
In August 1974 the petitioner was designated as Head of the Delhi Centre and was also appointed to the Institute 's Committee of Administration.
On 12th March 1976 he was elevated to the position of 'Distinguished Scientist ' with pay of Rs. 3000/ per month plus allowances.
The petitioner has held responsible positions as Visiting Professor, Fellow, Chairman, Consultant, Research Associate, Lecturer etc.
in various Universities in India and in the United States of America and England.
He has been a member of the planning Commission, Government of India from January 1971 to December, 1973 and he has also been a member of the Sixth Finance Commission from July 1972 to October 1973.
The petitioner 's work has been acclaimed in the international as well as national spheres.
His work is rated high as evidenced by the award of Dadabhai Nauroji Memorial Prize for Economics in 1974 and the Jawaharlal Nehru Memorial Fellowship in 1975.
In 1976 the petitioner had the distinction of presiding over the annual conference of the Indian Society of agricultural Economics.
People abroad have also conferred recognition on the petitioner.
The petitioner 's scientific output has been substantial.
He has been active in research and he has published books.
Of importance on Theory of International Trade, Scheduling the operations of Multipurpose Reservoirs, Indian Planning, Planning and the Poor etc.
His contributions in the form of articles in collaboration with Indian 401 and foreign economists have been published in several journals in India and abroad.
One of his co authors, Prof. Arrow is a Nobel Laureate.
At present the petitioner is engaged in research on the following subjects: 1.
Growth, Poverty and Basic Need, Development Policy in Sri Lanka, Kerala and Punjab.
Inter Regional Comparisons of Agricultural Growth and Development in South Asia in the post colonial period.
It is claimed that a comparative evaluation of the achievements of the petitioner with those of respondent No. 4 clearly shows the superiority of the petitioner over respondent No. 4.
Respondent No. 4 had joined the Institute as Professor in the pay scale of Rs. 750 1250.
He was appointed in Delhi and was incharge of the evening course in Introductory Statistics.
He served in Delhi for about a year and then went to Calcutta and continued as professor from 1961 to 1974.
In contrast, the petitioner had started at a higher salary of Rs. 1000 p.m. plus a special pay of Rs 50 p.m.
The petitioner had been promoted to the higher rot of Research Professor on 1st October, 1967 in the time scale of Rs.1600 100 1900 while respondent No. 4 had been promoted to the post of Research Professor only in 1974.
At that time respondent No.4 's appointment as Research professor had been objected to as he had not published any technical paper since his joining the Institute in 1961.
The petitioner was senior to respondent No 4 as he had been appointed to the higher post of Research Professor earlier than respondent No.4.
On 12th March 1976 the petitioner was promoted to the position of a Distinguished Scientist.
The petitioner is senior to respondent No. 4 and all other scientists of the Institute.
The petitioner 's elevation to the position of Distinguished Scientists came much earlier than that of respondent No. 4.
The petitioner has been holding the position of Distinguished Scientist since 12th March 1976 while respondent No. 4 was not a Distinguished Scientist till his impugned appointment as Director.
Respondent No.4 has won no laurels in his sphere of work and his scientific output has been negligible.
Thus, from all accounts the petitioner was more qualified and his achievements in all spheres were much higher than those of respondent No. 4 or for the matter of that, than those of any other scientist of the Institute.
402 The Institute has an academic council consisting of the following members among others: "1.
All Professors, Research Professors and Distinguished Scientists.
. . 3. . 4. . 5.
. . 6. . 7.
Director (as Chairman of the academic council).
" The Institute is governed by its memorandum, regulations and bye Laws in the conduct of its affairs.
Bye law 2 provides the procedure for the appointment of a Director.
It reads: "The appointment of the Director shall be made by the Council on the recommendation made by a Selection Committee consisting of (i) Chairman of the Council (as Chairman), (ii) Two experts approved by the Council.
Before recruitment the Vacancy for Directorship should be suitably Publicised.
" In the meeting of the Council, respondent No. 2, on 16th April, 1979, Shri P.N. Haksar, respondent No. 3, the Chairman, reported about the absence of the Director and other allied matters and invited the attention of the members ' to the fact that the Director of the Institute, Prof. G. Kallianpur is unable to devote full time to the Institute.
The Council felt that since the Institute required full time attention it was desirable that Prof. Kallianpur should be requested to continue in the post of Director on a whole time basis.
The Chairman was authorised to write to the Director conveying the views of the members and after getting a response from Prof. KallianPur, to take further action.
In case Prof. Kallianpur resigned, 403 the Chairman was authorised to accept his resignation and then to set up a committee consisting of the following members to select a suitable person for the post of Director: 1.
Shri P.N. Haksar, Chairman.
Prof. Bhabatosh Datta.
Prof. S.S. Shrikhande.
Prof. M.S. Narasimhan. 5.
Dr. R Ramanna.
Subsequently another meeting of respondent No. 2 was held on 3rd August, 1979 in which the Chairman reported that Prof. Kallianpur had resigned from the Directorship of the Institute with effect from 30th June, 1979 and regarding the appointment of the new Director of the Institute the Chairman reported that the selection committee, which had been constituted by the Council in its meeting on 16th of April, 1979 had unanimously recommended the appointment of respondent No. 4 as Director of the Institute.
The Council approved the recommendation of the selection committee and it also approved the terms and conditions of appointment of respondent No. 4 as Director.
One of the terms of appointment of respondent No. 4 was that he should be in the substantive position of a 'Distinguished Scientist ' in the Institute on a monthly salary of Rs. 3000.
When the petitioner came to know about the appointment of respondent No.4 to the post of Director he felt aggrieved and met respondent No.3, the Chairman of the Council, Shri P.N. Haksar and expressed his deep unhappiness at the choice of the new Director of respondent No.1.
On getting no favourable response from respondent No.3 the petitioner tried to approach the other members of the Council to indicate his resentment at the alleged illegality and arbitrariness in the appointment of respondent No.4.
The petitioner addressed a letter to Shri N. Srinivasan, Secretary to respondent No.2, wherein he referred to the circular dated 4th August, 1979 which he had received intimating him about the appointment of respondent No.4 as Director of respondent No.1.
By this letter the petitioner pointed out to the Secretary that the appointing authority had not observed the rules and regulations and bye laws of the 404 Institute as laid down in the memorandum of association and had also violated the provisions of articles 14 and 16 of the Constitution.
He also pointed out that the vacancy of the post of Director had not been publicised and he being the seniormost researcher working as Distinguished Scientist of the Institute was not given an opportunity to apply for the same.
He also pointed out the arbitrary manner in which the appointment of respondent No.4 had been made, and he urged the Institute to rectify the error failing which he might be obliged to take legal action.
The petitioner likewise addressed a letter to another member of the Council, Prof. R.P. Bambah, who was a Professor of Mathematic in the Centre for advanced Studies, Punjab University and was one of the two Scientists co opted by the Council.
The petitioner in his letter to Prof. Bambah complained that with the appointment of respondent No. 4 the Directorship and his simultaneous designation to the post of Distinguished Scientist, the council had subverted the academic standards of the Institute and violated the rules and regulations as contained in the memorandum of association as also the various provisions of the Constitution.
Further, the appointment was arbitrary inasmuch as it was without any regard to the claims of senior and better known professional persons.
He appealed to Prof. Bambah to upheld the academic integrity of the Institute and initiate corrective action to rectify the wrong and rescue the Institute from manipulations of unprincipled people.
A similar letter was addressed by the petitioner to Shri S.C. Bhattacharya.
Director, Bose Institute, Calcutta, on 31st August, 1979, another member of the Governing Council of respondent No.1, who was one of the four representatives of the Indian National Science Academy.
He also wrote to Prof. P.V. Sukhatme, Professor of Biometry in Pune, who was also a distinguished member of the Council.
He was awarded the Padma Bhushan and also held the post of Director of Statistics Division of Food and Agriculture Organisation.
A Similar letter was addressed by him to Shri Subimal Dutt, President of respondent No. 1, reiterating the same grievances.
Similar letters dated 30th and 31st August, 1979 were addressed to Dr. K.C. Seal, Director, Central Statistical Organisation Government of India and to Shri Kirpa Narain, Secretary, Department of Statistics ' Government of India.
It may be pointed out that the members of the selection Committee and the members of the Council are all men of eminence and highly qualified persons.
405 Prof. S.C. Bhattacharya by his letter dated 5th of September, 1979 replied that the contents of the petitioner 's letter were disquieting.
He also stated that respondent No.4 had been identified as a suitable person by a group of eminent people and on the basis of advice received from them the Council, respondent No.2, had approved the appointment of respondent No.4.
the further.
stated that he was not making any further comments in the matter at this stage.
He was unaware of respondent No.4 having been designated as Distinguished Scientist by the Council in the meeting of 3rd August, 1979.
Regard in appointment he further said that no report of the selection committee had been circulated to the members of the Council but the announcement was made orally by the Chairman.
Since it was difficult to hear every word of the Chairman at the meeting he had assumed that the terms of appointment would be those ordinarily prescribed for the post of Director.
Prof Sukhatme in his reply said that he had not realised the grave issues which such an appointment could raise.
He wanted, however, to assure that there was no intention on their part to subvert the academic standards of the Institute.
He assured the petitioner that he would be writing to the Secretary on the Council to know what was the procedure tor appointing a person to the post of Distinguished Scientist and whether the same should have been explained to the Council before adopting the resolution.
Prof. R.P. Bambah on 22nd September, 1979 wrote a letter to Shri P.N. Haksar submitting his resignation presumably in protest against what had happened in regard to the appointment of respondent No. 4 as the Director of the Institute.
In his letter he stated that he had not received any official bio data or information regarding the scientific contribution of respondent No. 4 and other available candidates for the post of Director to enable him to form his own judgment.
He said that he presumed that the scientific contribution of respondent No. 4 must have been high enough to warrant his holding the post of Distinguished Scientist.
He also expressed the view that since the committee consisted of eminent scientific working under his guidance, he had presumed that all relevant factors had been taken into consideration regarding the appointment to the post of Director, including the quality of candidate 's scientific contribution, in coming to a decision.
In the circumstances he has constrained to resign from the Council since he had not displayed due diligence in the performance of his function as member of the Council.
406 The petitioner likewise received a letter from the Chairman in A which he did not deny the allegation contained in the petitioner 's letter dated 13th August, 1979 that the vacancy in the post of Director of respondent No. 1 had not been publicised.
Another meeting of the Council was held on 19th October, 1979 and in this meeting Prof. Raja Ramanna, Dr. S.C. Bhattacharya and Dr. P.V. Sukhatme were not present and Dr. Bambah had resigned on 22nd September, 1979.
Nonetheless, the proceedings of the meeting of 19th October, 1979 do not allude to Dr. Bambah 's resignation.
In this meeting the letter of the petitioner was considered, copies of which had been circulated to the members earlier and the Council decided that no action was necessary in the matter.
Shri V.M. Tarkunde appearing for the petitioner challenges the appointment of respondent No. 4 on various grounds: 1. (a) Bye law 2 expressly requires that the vacancy of the Directorship should be suitably publicised but in the present case no publicity whatsoever was given to the vacancy of Directorship.
(b) Even apart from the bye law, publicity was necessary if the appointment was to be fair and free from partiality.
(c) The petitioner and many others like him were not aware of the vacancy of the post of Director till the actual order of appointment of respondent No. 4 was made.
The petitioner was eminently suitable for being appointed to the post of Director keeping in view his various contributions in the field of his work and the active part played by him in resolving the administrative problems of the Institute.
No bio data or information was placed before the Council which under the bye laws was the appointing authority of the Director to enable the members to gauge the comparative suitability of various candidates for the post of Director.
No facts relating to the other candidates were presented before the 407 selection committee by the Chairman.
As such there was no application of mind by the members of, the Council, since no report was circulated regarding the recommendation of the selection committee, and the members of the Council took it for granted that all was well.
Shri R.K. Garg appearing for respondents Nos. 1 and 2 resisted the petition on the following grounds: (i) that the petition is not maintainable under article 32 of the Constitution as respondent Nos. 1 and 2 are not 'state or other authority ' within the meaning of article 12 of the Constitution.
(ii) (a) Even assuming, though not conceding, that there has been a violation of bye law 2 no writ can lie to correct the same as the alleged bye law has no statutory basis inasmuch as by the Indian Statistical Institute Act, 1959 Parliament only declared the Indian Statistical Institute, respondent No. 1 as an institution of national importance and if it has made bye law 2 for its guidance, such bye law cannot be said to have any statutory force.
(b) The bye laws not being statutory the respondents are under no obligation to observe the procedure laid down in the bye laws.
(iii) In any case the petitioner was duly and properly considered for selection to the post of Director and, therefore, he could not possibly make any grievance about violation of bye law 2.
In view of the contentions raised by the counsel for the parties the first question that falls to be considered is whether the writ petition is maintainable.
Article 12 of the Constitution defines 'State ' for the purposes of Part III of the Constitution.
It reads: 408 " 12.
In this part, unless the content otherwise requires, "the state" includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India.
" The learned counsel for the petitioner, Shri Tarkunde has contended that having regard to the provisions of the Act and the memorandum of association, the composition of respondent No. 1 is dominated by the representatives appointed by the Central Government.
The money required for running the Institute is provided entirely by the Central Government and even if any other moneys are to be received by the Institute it can be done only with the approval of the Central Government, and the accounts of the Institute have also to be submitted to the Central Government for its scrutiny and satisfaction.
The Society has to comply with all such directions as may be issued by the Central Government.
The control of the Central Government is deep and pervasive and, there fore, to all intents and purposes, it is an instrumentality of the Central Government and as such is an 'authority ' within the meaning of article 12 of the Constitution.
It is, therefore, subject to the constitutional obligations under articles 14 and 16 of the Constitution.
Reliance was placed upon Ajay Hasia etc.
vs Khalid Mujib Sehravardi & Ors. etc.
The Constitution Bench in that case took, the view that the expression 'other authorities ' in article 12 must be given a broad and liberal interpretation, where constitutional fundamentals vital to the maintenance of human rights are at stake and functional realism and not facial cosmetics must be the diagnostic tool, for constitutional law must seek the substance and not the form The Court pointed out the Government may act through the instrumentality or agency of juridical persons to carry out its functions, since, with the advent of the welfare State, its new tasks have increased manifold and such juridical persons acting as the instrumentality or agency of the Government must therefore be subject to the same discipline of fundamental rights as the State.
Proceeding further the Court observed: "It is undoubtedly true that the corporation is a distinct juristic entity with a corporate structure of its own and it carries on its functions on business principles 409 with a certain amount of autonomy whish is necessary as well as useful from the point of view of effective, business management, but behind the formal ownership which is cast in the corporate mould, the reality is very much the deeply pervasive presence of the Government.
It is really the Government which acts through the instrumentality or agency of the corporation and the juristic veil of corporate personality worn for the purpose of convenience of management and administration cannot be allowed to obliterate the true nature of the reality behind which is the Government.
Now it is obvious that if a corporation is an instrumentality or agency of the Government it must be subject to the same limitations in the field of constitutional law as the Government itself, though in the eye of the law it would be a distinct and independent legal entity.
If the government acting through its officers is subject to certain constitutional limitations, it must follow a fortiori that the Government acting through the instrumentality or agency of a corporation should equally be subject to the same limitations.
If such a corporation were to be free from the basic obligation to obey the Fundamental Rights, it would lead to considerable erosion of the efficiency of the fundamental Rights, for in that event the government would be enabled to over ride the Fundamental Rights by adopting the stratagem of carrying out its functions though the instrumentality or agency of a corporation, while retaining control over it." Having regard to this decision and in view of the facts and circumstances in the present case there can be no doubt that respondent No.2 is an 'authority ' within the meaning of article 12 of the Constitution and, therefore, the writ petition filed by the petitioner is competent and maintainable and the objection raised by Shri Garg cannot be accepted.
The next question that aries for consideration is whether the appointment of respondent No.4 as Director of respondent No.1 is illegal because of non compliance with bye law 2.
Bye law 2 does require that before appointment, the vacancy in the post of Director should be suitably publicised.
In the instant case, it is admitted on both sides that no publicity whatsoever was given in respect of the 410 vacancy.
The contention of Shri Garg, however, is that the bye law having no force of statute, non compliance with its requirement can not in any way affect the appointment of respondent No. 4 as Director of respondent No. 1.
Shri Tarkunde, however, contended that assuming that the bye law is not statutory, even so respondent No. 1 was bound to comply with it.
In support of his contention he strongly relied upon Ramana Dayaram Shetty vs International Airport Authority of India.
The Court in that case held: "It is a well settled rule of administrative law that an executive authority must be rigorously held to the standards by which it professes its actions to be judged a and it must scrupulously observe those standards on pain of invalidation of an act in violation of them.
This rule was enunciated by Mr. Justice Frankfurter in Viteralli vs Seton where the learned Judge said: "An executive agency must be rigorously held to the standards by which it professes its action to be judged.
Accordingly, if dismissal from employment is based on a defined procedure, even though generous beyond the requirements that bind such agency, that procedure must be scrupulously observed.
This judicially evolved rule of administrative law is now firmly established and, if I may add, rightly so.
He that takes the procedural sword shall perish with the sword.".
The aforesaid principle laid down by Mr. Justice Frankfurter in Viteralli vs Seton has been accepted as applicable in India by this Court in A. section Ahluwalia vs Punjab and in subsequent decision given in Sukhdev vs Bhagatram.
Mathew J. quoted the above referred observation of Mr. Justice Frankfurther with approval.
In view of the pronouncement of this Court on the point it must be held to be obligatory on the part of respondent No. 1 to follow the bye laws, if the bye laws have been framed for the conduct of its affairs to avoid arbitrariness.
Respondent No. 1 cannot, 411 therefore, escape the liability for not following the procedure prescribed by bye law 2.
Compliance with this bye law also seems to be necessary in the name of fair play.
If the vacancy in the post of Director had been publicised as contemplated by bye law 2, all the persons eligible for the post may have applied and in that case, the field of consideration would have been enlarged and the selection committee or the Council would have had a much larger field from which to choose the best available person and that would have removed all doubt, of arbitrariness from the mind of those eligible for the post.
Of course, we do not wish to suggest for a moment that appointment to every post must be made only after advertising or publicising the vacancy.
That would not be right, for there are quite a few posts at the top level which cannot be and should not be advertised or publicised, because they are posts for which there should be no lobbying nor should any applications be allowed to be entertained.
Examples of such posts may be found in the post of Commander of Armed Forces or the Chief Justice or the Judges of the Supreme Court or the High Court.
But here bye law 2 requires that vacancy in the post of Director should be publicised and hence we are making they above observation in this paragraph.
The grievance of the petitioner is that he has not been considered for appointment to the post of Director although he is far superior to respondent No. 4.
If there had been due publicity as required by bye law 2, he and many others like him would have applied for the post.
Shri Garg, however, contends for respondent No. 1 that the petitioner can have no grievance as his case was duly considered as stated clearly in the affidavit of respondent No. 3, Shri P.N. Haksar, Chairman of the Council.
We accept the statement of respondent No. 3 that the case of the petitioner was considered by the selection committee but it is a little unfortunate that there is no written report by the selection committee for consideration by the Council.
No minutes of the proceedings before the selection committee have been maintained and none were circulated amongst the members of the Council along with the agenda of the meeting nor were any such minutes placed before the Council meeting when the name of respondent No. 4 was approved by the Council.
There is also nothing on record to show that the Council was at any time informed as to what names had been considered by the selection committee or that the name of the petitioner had been considered but respondent No. 4 was found superior.
It is always desirable that in 412 public bodies the minutes of the proceedings regarding selection A should be properly maintained in order to obviate any suspicion or doubt and such minutes along with the relevant documents should be placed before the final authority entrusted with the task of selection for appointment.
A lot of argument has been advanced by Shri Tarkunde that the achievements and accomplishments of the petitioner were much higher than those of respondent No. 4.
His contribution in the matter of research had won him high praise.
He ha written articles and books of great merit.
On the other hand the achievements or accomplishments of respondent No. 4 were much lower when com pared to those of the petitioner.
Be that as it may, it is not for the Court to determine who is the superior of the two candidates and who should be selected.
It is for the authorities concerned to select from amongst the available candidates.
The members of the selection committee as also the members of the Council were eminent persons and they may be presumed to have taken into account all t relevant considerations before coming to a conclusion.
But the real difficulty is that in the absence of publicity as contemplated by bye law 2, it cannot be said that all other qualified persons like the petitioner were also considered by the selection committee for appointment, in the absence of any application by them for the post or any recommendation of them by any other authority or individual.
Shri Garg, however, contends that the office of the Director is a very high office and this honour is conferred and not demanded and an application for this office from the candidates was not at all necessary as in the case of Judges of the Supreme Court, High Court and other constitutional posts of Comptroller and Auditor General of India etc.
The selection committee composed of eminent scientists of high reputation must be knowing about the reputed men in the field of statistics and it is expected that they must have considered the; case of those persons also.
For reasons we have already indicated, we find no force in this contention.
There is no provision for publicity in case of the constitutional posts of the Judges of the Supreme Court and High Courts and Comptroller and Auditor General of India.
Rather in the very nature of things, they cannot be and are not publicised.
But in the case of appointment of a Director, bye law 2 clearly provides for publicity and it can only be with the object that all concerned may 413 know about the vacancy and either applications or recommendations may be made for the post and the names of the eligible candidates my be brought before the selection committee for its consideration.
In the state of the record before us it is not possible to say that the members of the Council considered the case of the petitioner and other candidates like him before approving the appointment of respondent No. 4.
It is true that the members of the selection committee and those of the Council were experts in their respective subjects and were eminent scientists and we must proceed on the basis that they acted in all fairness and no oblique motive can be attributed to them.
Indeed Shri Tarkunde did not allege any mala fides against the members of the selection committee or the members of the Council.
On the admitted position, no publicity in regard to the vacancy was done at all.
No information about it was published even on the notice board kept in the various branches of respondent No. 1 at Calcutta and other places.
Nor was the information published in the journal of respondent No. 1.
There was clearly a breach of bye law 2 in making appointment of respondent No. 4 and there was no adequate material before the Council on the basis of which the members could apply their mind for determining as to whether they should approve the recommendation of the selection committee in regard to appointment of respondent No. 4.
For the foregoing reasons the writ petition must succeed.
It is accordingly allowed.
The order of appointment dated 3rd August, 1979 of respondent No. 4 as the Director of respondent No. 1 is quashed and set aside.
This will however not in any way affect the validity of any action already taken by respondent No. 4 as Director nor will it involve him in any liability to refund any excess remuneration received by him in his capacity af Director.
Before respondent No. 1 proceeds to select a new Director, it will comply with the requirement of bye law 2 by giving suitable publicity to the vacancy in the office of Director.
In the circumstances of the case the parties will bear their own costs.
N.V.K. Petition allowed.
| An industrial dispute with regard to the raising of the age of retirement of the clerical staff employed in the Refinery Division of the respondent oil Company at Bombay from 55 to 60 years was referred to the Industrial Tribunal.
The workmen contended that there was a trend in the Bombay region to fix the age of retirement of clerical employees at 60 years and in the comparable concerns as well as in the Marketing Division of the Company itself the age of the clerical employees was above 55 years.
The Company contended that the wage scales of their clerical employees were far better than those of similar categories of employees in comparable concerns and that the company took a generous view in the settlement dated 31 10 1973 and arrived at a package deal and revised the benefits of the employees taking into consideration the agreement of the employees to continue the age of retirement of the clerical employees of the Refinery Division at 55 years.
Neither party led any oral evidence but filed their respective comparative statements.
The Tribunal found as a fact that the wage scales of the Company were not much better than the wage scales of other comparable concerns.
The Tribunal also noticed that the age of retirement of the clerical staff of the Company in its Marketing Division both at Bombay and other places was fixed at 58 years.
But the Tribunal found that the Company 's contention regarding the settlement being a package deal in regard even to the age of retirement after taking other benefits into consideration was not without substance and observed that it was, however, not sufficient to reject the workmen 's demand in toto and that it had to be taken into account while considering the extent to which the age of retirement should be raised.
Having regard to the circumstances of the case and in the interest of industrial harmony, the Tribunal raised the age of retirement to 58 years only.
In appeal to this Court the workmen relied on the 'trend ' in the Bombay region while the Company relied on the position in other oil Companies.
252 Allowing the appeal and fixing the age of retirement at 60 years, by majority.
HELD (Per Desai and Chinnappa Reddy, JJ.) In fixing the age of superannuation, the most important factor that has to be taken into consideration is the trend in a particular area.
From the various decisions rendered by this Court and by the Tribunals, it is obvious that in the early sixties the trend in the Bombay region was to raise the age of superannuation to 60 years.
Industrial and labour conditions do not remain stagnant despite the passage of time.
Industrial labour relations need revision from time to time to fit and suit changing conditions.
That there was an upward trend to raise the age of retirement to 60 in the early sixties may not necessarily mean that the same trend has continued till today.
[259 H; 260 D E; 260 G H] Guest, Keen, Willians Private Ltd. vs P. J. Sterling & Ors. ; ; Dunlop Rubber Company Limited vs Workmen & Ors. ; ; Imperial Chemical Industries (India) Pvt. Ltd. vs Workmen ; ; British Paints (India) Ltd. vs Its workmen [1961] 2 S.C.R. 523; G.M. Talang vs Shaw Wallace & Co. ; Burmah Shell Oil Storage & Distributing Company of India Ltd. vs Their Workmen [1970] I LLJ 363, referred to.
In the instant case, the Company did not plead that there was any reversal of the trend nor did the Company urge that there was any such reversal of the trend.
On the other hand, it may very well be said that there has been much progress in the last two decades in the matter of better living conditions and availability of medical and health facilities and, therefore, a further raise of the age of retirement may be considered necessary and justified.
[260 H; 261 A] In the instant case while raising the retirement age of the clerical staff of the Refinery Division to 58 years instead of 60 years since the retirement age of the clerical staff of the Marketing Division of the Company had been fixed at 58 years, the Tribunal fell into a serious error in failing to notice the relevant and outstanding fact that the clerical staff of the Marketing Division have a pension scheme while the clerical staff of the Refinery Division have no such scheme.
The general terminal benefits on attaining the age of superannuation are pension, gratuity and provident fund.
It is not in dispute that while the clerical staff of the Marketing Division have all the three benefits, the clerical staff of the Refinery Division are not entitled to any pension.
This must necessarily have an impact on the raising of their retirement age.
On the material available the Court thinks that the retirement age in the case of clerical staff of the Refinery Division should be fixed at 60 years.
[262 E H] In applying the region cum industry formula the emphasis to be placed on region or industry depends upon varying factors.
Where there are no comparable industries in the region, the regional aspect of the region cum industry formula must be given precedence.
G] Greaves Cotton and Co. Ltd. vs Their Workmen 1964 (I) L.L.J. 342; Workmen of Hindustan Motors vs Hindustan Motors 1962 (II) L.L.J. 352; 253 French Motor Car Company vs Their Workmen 1962 (II) L.L.J. 744; Workmen of Orient Paper Mills Ltd. vs Orient Paper Mills Ltd. 1969 (II) L.L.J. 398 referred to: It is observed that nowadays, because of better conditions of living and availability of medical and health facilities, the average span of life has increased and a person between 55 and 60 years of age is alert, active, hale and healthy may be said to be at the prime of his life.
That is also the time when he has to meet several financial commitments and demands.
To retire him at that age may mean virtually throwing him to the wolves.
Can the nation afford to throw away the knowledge and experience of these people by retiring them when they are still capable of turning out some years of good work and have on its hand several families unable to fully support themselves ? On the other hand, can the nation afford to have an army of unemployed youngmen necessarily leading bitter and frustrated lives by allowing them to fritter away their energies in unhealthy pursuits to which they may be tempted ? But then arises the broader question, is the retirement of men of experience at an age when they are still useful to the community the proper solution to the problem of unemployment among the young ? Is not the solution the creation of greater employment opportunities, by increasing production and its modes ? All these questions are difficult to answer and require deep investigation, research and study.
[261 D H] (Per Varadarajan, J.
Though the trend in a particular area is the most important factor to be taken into account for fixing the age of retirement of employees, it is only one of the several factors like the nature of work assigned to the employees, the wage structure of the employees, the retirement benefits and other amenities available to the employees, the nature of climate where the employees work and the age of superannuation fixed in comparable industries in the region.
Moreover, the trend must undoubtedly be in comparable industries.
[272 D E; F] Guest Keen Williams Private Ltd. vs Sterling and Ors.
1959 (II) L.L.J. 405; Burmah Shell (Delhi region) (1971) (I) L.L.J. 363 referred to.
In the present case, the employees have not placed any material on those factors before the Tribunal apart from relying upon the trend in the Bombay region.
They have also not placed any material on record to show that there is any trend in the Refinery Division of any other oil company in the Bombay region to fix the age of retirement of clerical employees at 60 years.
They have relied upon the trend generally and not in any comparable industry.
There is no evidence to show that there is any other Refinery in the Bombay region than that of the Company.
From the comparative statements filed by the Company, it appears that the trend in the Refinery Division of the Company throughout the country is to fix the age of retirement of the clerical employees at 58 years.
There is nothing in the award of the Tribunal to show that the employees contended before it that the "trend in the Bombay region" heavily relied upon by them, could be general in nature and not in comparable industries in the region.
[272 F; G; 273 B C] 254 Unfortunately, very limited material is available on record for arriving at a decision in this case.
The comparative statements filed by the Company show that the pay scales of junior grade clerical employees in the Refinery Division of the respondent company are better than those in another oil company.
The pay scales of junior grade clerical employees and senior grade clerical employees of the company in the Refinery Division at Bombay compare favourably with pay scales of junior grade clerical employees and senior grade clerical employees in the Marketing Division of the Company at Bombay Therefore, in considering the absence of a pension scheme for the clerical employees of the Company in the Refinery Division one has to take note of the fact that the pay scales of those employees are more advantageous and compare favourably with the pay scales of clerical employees of the company in the Marketing Division at Bombay.
There is no material on record to show the quantum of disadvantage to which the employees in question are subjected by the absence of a pension scheme compared with the section of clerical employees of the Company 's Marketing Division at Bombay who have the benefit of a pension scheme in addition to gratuity and provident fund benefits to which alone the employees concerned in this appeal are entitled as retirement benefits.
In those circumstances, there is no satisfactory reason for interfering with the Tribunal 's award raising the age of retirement of the clerical employees of the Company 's Refinery Division at Bombay from 55 years to 58 years.
[270 A; 271 A; E F; 272 B C; 273 H; 274 A B]
|
etition (Criminal) No. 1632 of 1981.
476 Under article 32 of the Constitution of India.
S.K Jain for the Petitioner.
The Judgment of the Court was delivered by SEN, J.
This petition under article 32 of the Constitution is clearly not maintainable and must be dismissed but in view of the growing trend of filing such frivolous applications, we deem it necessary to state the reasons therefor.
It appears that the petitioner along with two others was arraigned before the Sessions Judge of Alwar in Sessions Trial No. 110 of 1976 for having committed an alleged offence punishable under section 302 of the Indian Penal Code, alternatively, under section 302 read with section 34 of the Code.
By his finding and sentence dated April 21, 1977 the learned Sessions Judge convicted the petitioner and his two associates for having committed the murder of the deceased Jharia in furtherance of their common intention under section 302 read with section 34 and sentenced each of them to undergo imprisonment for life, while recording their acquittal under section 302.
On appeal, a Division Bench of the Rajasthan High Court (Jaipur Bench) in Criminal Appeal No. 219 of 1977 by judgment dated July 3, 1980 maintained the conviction of the petitioner under section 302 read with s.34 but acquitted his two associates giving them the benefit of doubt.
Dissatisfied with the judgment of the High Court, the petitioner applied to this Court for grant of special leave under article 136 of the Constitution.
The special leave petition was dismissed by this Court on February, 23, 1981.
An application for review was also dismissed on November 19, 1981.
Thereafter, the petitioner filed this petition under article 32 assailing his conviction and sentence.
The petitioner seeks the issuance of a writ of mandamus directing the State of Rajasthan to forbear from giving effect to the judgment and sentence passed by the learned Sessions Judge as also the judgment of the High Court as well as the order passed by this Court dismissing the special leave petition.
He further seeks a declaration that his conviction under section 302 read with section 34 by the High Court was illegal and therefore his detention in jail was without the authority of law and in violation of article 21 read with articles 14 and 19 of the Constitution.
477 The petitioner contends that in view of the decisions of this Court in Krishna Govind Patil vs State of Maharashtra(1), Maina Singh vs State of Rojasthan(2) and Piara Sinnh vs State of Punjab(3), his conviction under section 302 read with section 34 was illegal as he had been charged with two other named persons who have been acquitted by the High Court and therefore he cannot be convicted of an offence punishable under section 302 read with section 302 read with section 34.
Upon this basis, the contention is that the petitioner has been deprived of his life and liberty without the authority of law in violation of article 21 read with articles 14 and 19 of the Constitution.
It is represented to us that the contention based upon the decisions of this Court had been advanced during the course of the hearing of the special leave petition, but both the special leave petition and the application for review have been dismissed and therefore the petitioner has no other remedy except to approach this Court for appropriate writ, direction or order under article 32 of the Constitution.
We fail to appreciate the propriety of asking for a declaration n in there proceedings under article 32 that conviction of the petitioner by the High Court for an offence punishable under section 302 read with section 34 of the India Penal Code is illegal, particularly when this Court has declined to grant special leave under article 136.
Nor can the petitioner be heard to say that his detention in jail amounts to deprivation of the fundamental right to life and liberty without following the procedure established by law in violation of article 21 read with articles 14 and 19.
When a special leave petition is assigned to the learned Judges sitting in a Bench, they constitute the Supreme Court and there is a finality to their judgment which cannot be upset in these proceedings under article 32.
Obviously, the Supreme Court cannot issue a writ, direction or order to itself in respect of any judicial proceedings and the learned Judges constituting the Bench are not amenable to the writ jurisdiction of this Court.
In Shankar Ramchandra Abbyankar vs Krishnaji Dattatreya Bapat,(4) this Court laid down that if there are two modes of invoking the jurisdiction of the High Court and one of those modes has been 478 chosen as exhausted, it would not be a proper and sound exercise of discretion to grant relief the other set of proceedings in respect of the same order of the Subordinate Court.
In that case, the respondent had already chosen the remedy under section 115 of the Code of Civil Procedure 1908, but a learned Single Judge dismissed the revision.
Thereupon, the respondent moved the High Court by a petition under articles 226 and 227 of the Constitution challenging the same order of the appellate court.
A Division Bench of the High Court held that in spite of the dismissal of the revision petition, it could interfere under articles 226 and 227 on a proper case being made out, and after going into the merits of the case, it granted relief to the respondent.
On appeal to this Court, the contention was that the High Court could not have interfered under articles 226 and 227.
That contention of the appellant prevailed and the judgment of the Division Bench of the High Court was set aside.
It was observed: "The refusal to grant relief in such circumstances would be in consonance with the anxiety of the court to prevent abuse of process as also to respect and accord finality to its own decisions.
" There is no reason why the same principle should not equally apply to proceedings under article 32 of the Constitution which are initiated after the Court has declined to interfere under article 136.
For these reasons, the writ petition fails and is dismissed.
H.L.C. Petition dismissed.
| The petitioner and his two associates were convicted and sentenced under section 302 read with section 34, I.P.C. On appeal, the High Court maintained the conviction of the petitioner but acquitted his associates giving them the benefit of doubt.
The Petitioner applied to this Court for grant of special leave to appeal under article 136 but the same was dismissed.
By this petition under article 32 the petitioner sought issuance of a writ of mandamus directing the State to forbear from giving effect to the judgment and sentence passed by the trial court as also the judgment of the High Court as well as the order passed by this Court dismissing the special leave petition on the ground that his conviction was illegal and therefore his detention in jail was in violation of article 21 read with articles 14 and 19.
Dismissing the petition, ^ HELD: The propriety of asking for a declaration in these proceedings under article 32 that conviction of the petitioner by the High Court for an offence punishable under section 302 read with section 34 I.P.C. is illegal, particularly when this Court has declined to grant special leave under article 136 cannot be appreciated.
Nor can the petitioner be heard to say that his detention in jail amounts to deprivation of the fundamental right to life and liberty without following the procedure established by law in violation of article 21 read with articles 14 and 19.
When a special leave petition is assigned to the learned judges sitting in a Bench, they constitute the Supreme Court and there is a finality to their judgment which cannot be upset in these proceedings under article 32.
Obviously, the Supreme Court cannot issue a writ, direction or order to itself in respect of any judicial proceedings and the learned judges constituting the Bench are not amenable to the writ jurisdiction of this Court.
[470 D F] Shankar Ramchandra Abbyankar vs Krishnaji Dattatreya Bapat, ; , referred to.
|
Appeals Nos. 131, 131 A and 131 B of 1952.
Appeals from the Judgment and Decree dated the 2nd day of February, 1950, of the High Court of Judicature at Madras (Satyanarayana Rao and Vishwanath Sastri JJ.) in Cases Referred Nos. 76 and 78 of 1946 and 32 and 56 of 1947.
259 C.K. Daphtary, Solicitor General for India (G. N. Joshi, with him) for the appellant.
B. Somayya (Alladi Kuppuswami, with him) for the respondent.
October 14.
The Judgment of the Court was delivered by GHULAM HASAN J.
These three appeals arise from the judgment and order of the Madras High Court dated 2nd February, 1950, delivered on a reference by the Income tax Appellate Tribunal (hereinafter referred to as 'The Tribunal '), whereby the High Court answered the first referred question in, the negative, and as regards the second question, Satyanarayana Rao J. answered it in the affirmative, while Viswanatha Sastri J. answered it in the negative, as a result of which the judgment of Satyanarayana Rao J. ultimately prevailed.
They relate to the assessment for 1942 1943 and are filed by the Commissioner of Income tax, while Appeal No. 132 of 1952 which relates to 1943 1944 is filed by the assessee, and, is dealt with separately.
The two question which were referred in respect of the first group of appeals are as follows: (1) Whether there is any material for the Tribunal 's finding that the appellants (respondents in this case) were being assessed on cash basis in the prior years? (2) Whether on the facts and in the circumstances of the case the Appellate Tribunal 's finding that the sum of Rs. 2,26,850 could not be assessed for the assessment year 1942 43 is correct in law? The assessee is a registered firm (hereinafter referred to as 'the firm ') consisting of K.R.M.T.T. Thiagaraja Chetty and his two sons.
The firm is the managing agent of Shri Meenakshi Mills, Ltd., (hereinafter referred to as the Com pany) owning a, spinning mill at Madura.
The firm also con ducted insurance business and the business of ginning cotton in a ginning factory at another place.
Under the terms of L/B(D)2SCI 3(a) 260 the agreement the managing agents were entitled to a remu neration of Rs. 1,000 per mensem and a commission of I per cent.
on all purchases, I per cent.
on all sales and 10 per cent.
commission on the net profits of the mills before allowing for ,depreciation.
The firm had plenary powers of management of the affairs of the company subject to general supervision of the directors.
It was to have charge and custody on behalf of the company of all the property, books of accounts, papers and documents and effects belonging to the company.
It was required to keep at the expense of the company proper and complete books of account of all purchases and sales and of all payments made and moneys received on behalf of the company.
It had to defray all the expenses of maintaining a suitable office and a staff of assistants and clerks sufficient to transact the business of the firm as managing agents of the company.
Clause 16 is most important and lays down that the firm be at liberty to retain, reimburse, and pay themselves out of the funds of the company, all charges and expenses, legal or otherwise and all the costs and expenses of providing and maintaining offices for the company and the salaries of clerks, servants, agents or workmen and all moneys expended by them on behalf of the company and all sums due to the firm for commission or otherwise.
The company made considerable profit in the assessment year 1942 1943 and the firm became entitled to commission to the tune of Rs. 2,26,850 5 0.
The firm did not show this sum in the return on the ground that it was not actually re ceived in the year of account, viz., by the 31st March, 1942.
It relied upon a resolution of the Board of Directors of the company, dated the 30th March, 1942, by which they had decided to keep the aforesaid amount in suspense without paying it on the ground that an amount of two lakhs odd was due to the company from the firm.
It appears that the firm owed a debt to the company for a long time past which was outstanding.
The firm wrote on the 30th March, 1942, to the company requesting that the debt be written off.
The Firm also wrote that on account of the extraordinary increase in the 261 volume of business.
it found it difficult to bestow adequate attention on all the aspects of the mill business and proposed that the direct responsibility for sales and purchases may be transferred to some other agency, leaving the general supervision over the entire management in the firm 's hands.
The firm agreed to forego its commission on purchases and sales and agreed to take half of the commission on the net profits.
The directors by their resolution, passed on the same date, refused to write off the amount without consulting the general body of shareholders and pending the settlement of the dispute resolved, to keep the amount in suspense.
The Income tax Officer held that the firm followed the mercantile method of accounting and not the cash basis and that the income having accrued become assessable whether received or not.
The actual amount payable to the firm in, accordance with the terms and conditions of the agreement for the year 1942 1943 was not disputed.
The Appellate Assistant Commissioner confirmed the assessment and dismissed the appeal of the assessee.
The Commissioner upheld the view that the income was determined on the mercantile basis and that the income had accrued or arisen to the assessee within the meaning of section 4(1) (b)(i) of the Income tax Act.
and the mere fact that the amount was put in the suspense account did not alter the fact that the income had accrued to the firm Upon the matter being carried further in appeal by the assessee, the Tribunal held that the income had not accrued to the firm and that the amount should be excluded from taxation as not having been received during the accounting year.
The two questions aforementioned were then referred, at the instance of the Commissioner by the Tribunal to the High Court.
As already stated, the opinion on the first question was unanimous, both the learned Judges Satyanarayana Rao J. and Viswanatha Sastri J. holding against the assessee that there was no material for the Tribunal 's finding that the firm was being assessed on cash basis in previous years, the latter observing that finding in respect of 1942 1943 and 1943 1944 262 were mutually inconsistent, for in respect of the latter assessment year the Tribunal had held that the sum of Rs. 2,20,702 was assessable to income tax, though the amount merely stood as a credit to the firm in the books of the company and has not been drawn by the firm.
It is contended by Mr. Somayya on behalf of the firm that the finding of the Commissioner that the firm was not paid in cash in the prior years was set aside by the Tribunal and being a finding of fact ought not to have been interfered with by the High Court.
The firm had raised this question before the Tribunal at the time of the reference and had contended that no question of law arose from its order, as it was concluded by finding of fact.
The Tribunal, however repelled this contention observing that the question was one of ,law, as it related to the existence of any material for the finding.
The High Court upon such question being referred applied its mind to the precise question and came to the conclusion that there was No. material for the finding that the firm was being assessed on cash basis in the prior year.
The case of Commissinoer of Income tax, Bihar and Orissa vs Maharaiadhiraja of Darbhanga(1) does not support the contention of Mr. Somayya.
There the Income tax Officer had computed the profits of the business for a particular year by taking into account both actual receipts of interest in that year and sums treated by the assessee in that year as receipts of interest by their transference to the interest register from what might be regarded as a suspense account.
The Privy Council held that there was nothing illegel or contrary to principle in the computation arrived by the Income tax Officer.
The High Court under section 66(1) had to decide the question of law raised by the first question and decided it against the assessee.
Nor can it be said that in answering the question, the High Court acted illegally or contrary to principle.
Admittedly, the firm kept no separate books of accounts other than the (1) 60 I.A, 146.
263 books of accounts of the company in which there was a ledger containing entries relating to the remuneration and commis sion paid in cash to the firm.
The sum of Rs. 2,26,850 5 0 was debited as a revenue expenditure of the company as having been paid to the firm in the books of accounts of the company kept by the firm and was also allowed as a deduction in computing the profits and gains of the company for the purposes of income tax for 1941 1942.
The fact that certain moneys were drawn in cash by the firm from time to time does not necessarily lead to the inference that the firm kept its accounts on a cash basis.
Anyone familiar with commercial transactions knows that even in accounts kept on a mercantile basis there can be entries of cash credits and debits.
We see no flaw in the conclusion reached by the High Court on the first question.
The next question that falls to be determined is whether the sum of Rs. 2,26,850 5 0 was part of the profit and gains which had accrued to the firm during the accounting year 1941 1942.
The undisputed facts are that the amount in question was the commission earned by the firm as managing agents of the company.
In the books of the company main tained by the firm the aforesaid sum was debited as an item of revenue expenditure and the profits were computed after deducting that sum.
The amount was simultaneously credited to the managing agents ' commission account.
Under these circumstances, it is idle to contend that the aforesaid sum had not accrued.
There can be no doubt under the circum stances that the aforesaid sum was income which had accrued to the firm.
The only question is whether the aforesaid sum ceased to be, income by reason of the fact that on the 30th March the sum was carried to the suspense account by a reso lution of the directors as a result of the request made by the firm that the outstanding debt due from it may be written off.
It is true that the, sum was not drawn by the firm but that can hardly affect the question of its liability to tax, once it is established that the income had accrued or arisen to the firm 264 The mere fact that the company was withholding payment on account of a pending dispute cannot be held to mean that the amount did not accrue to the firm.
The resolution of the directors itself shows beyond doubt that the amount in question was treated as belonging to the firm though its payment was deferred on account of a pending dispute.
As Viswanatha Sastri J. tersely put it "The sum had irrevocably entered the debit side of the company 's account as a disbursement of managing agency commission to the firm and had been appropriated to the, firm 's dues and the same sum could not again be entered in a suspense account at a later date.
The sum, therefore, belonged to the firm and had to be included in the computation of the profits and gains that had accrued to it unless the firm had regularly kept its accounts on a cash basis, Which is not the case here" '.
A reference to the ledger folios in the books of the company shows that apart from the managing agents ' monthly remuneration of Rs. 1,00.0 which has duly entered in.
their account the amount in question also finds a place in the ledger as outstanding charges against the company and as credits in favour of the firm, The ' journal entries in the company 's books are the same.
Section 10 of the Act makes "profits and gains of busi ness, profession or vocation" ' carried on by an assessee liable to tax.
Section 12 makes "income from other sources in respect of income, profits and gains of every kind" liable to tax.
By section 13 income, profits and gains shall be computed for the purposes of both those sections in accordance with the method of accounting regularly employed by the assessee, but there is a proviso that, if no method of accounting has been regularly employed, or if the method employed is such that, in the opinion of the Income tax Officer, the income, profits and gains cannot properly be deduced therefrom, then the c Computation shall be made upon such basis and in such manner as the Income tex Officer may determine.
265 The Income tax Officer in computing the income of the assessee would have followed the mercantile system or the cash basis whichever was employed by the assessee.
There is some evidence, though not conclusive, on the record that the assessee followed the mercantile system of accountancy.
This appears from the assessment orders field in the case, but apart from this, ' the Income tax Officer had full authority under the proviso to compute the profits upon such basis and in such manner as he thought fit.
The case of St. Lucia Usines and Estates Company, Ltd. vs Colonial Treasurer of St. Lucia(1) was relied upon strongly before us as it was in the High Court in support of the contention that the sum not having been paid to or realized by the firm no income can be said to have accrued to the firm.
In that case the assessee company sold all its property in St. Lucia in 1920 and ceased to reside or carry on business there.
In 1921 interest upon the unpaid part of the purchase price, was payable to it, but was not paid.
The company was liable to pay income tax for the year 1921 under the Income tax Ordinance, 1910, of St. Lucia, only if the interest above mentioned was 'income arising and, accruing ' to it in 1921.
It was held that though the interest was a debt accruing in 1921, it was not 'income arising or accruing ' in 1921, and that the company was not liable.
The decision was based upon the meaning of the word 'income ' as used in the Ordinance which was said to connote the idea of something "coming in".
Lord Wrenbury who delivered the judgment of the Privy Council construed the words "income arising or accruing" as money arising or accruing by way of income and not "debts arising or accruing".
The learned Law Lord observed "A debt has accrued to him (taxpayer) but income has not".
It is clear that the case related to the meaning of the word "Income" as used in the Ordinance and can be no authority on the question of the assessment of profits and gains under the Indian Income tax Act.
The next case relied upon is Dewar vs Commissioners of Inland Revenue(2).
In that case one of the executors be (1) (2) 266 came entitled to a legacy which carried interest for such time as it remained unpaid.
The testator 's estate was sufficient at all material times to enable interest to be paid on the legacy but the legatee acting on the advice of his accountant did not demand the legacy or interest thereon.
It was held that as the legatee had not received interest, there was no income in respect of which he could be charged to sur tax.
The decision turned upon the language of Schedule D, clause 1, sub clause (b) of the English Income Tax Act of 1918, as distinguished from clause I (a).
Clause I (a) deals with annual profits or gains arising or accruing from any kind of property whatever. but clause (b) imposes a tax in respect of "all interest of money, annuities and other annual profits." Lord Hanworth.
M. R. drew the distinction between the two clauses and observed that the case was one of interest of money and fell under clause (b) and not under clause (a).
Under that clause the tax was limited.to any interest of money whether the same is received and payable half yearly or any shorter or more distant period.
The learned Master of the Rolls observed: "If the interest on the legacy in this case has not arisen to the respondent, if he had not become the dominus of this sum, if it does not lie to his order in the hands of his agent, can it be said that it has arisen to him? I think the answer definitely upon the facts must be: No. it has not." Lord Maugham L. J. put the question thus: "I think in the present case two circumstances may be accurately stated in regard to the sum of pound 40,000 which it is said can be brought into charge.
The first is that the sum of pound 40,000 was not during the year of assessment a debt due by the executors to Mr. Dewar, and secondly, that the sum in question may never be paid or received at all." The case of Commissioner of Taxes vs The Melbourne Trust, Limited(1) turned on the construction of the charging (1) 267 section in the Income Tax Act 1903 of Victoria, whereby a company was liable to pay tax upon the profits earned, in or derived in or from Victoria.
In this case the surplus realized by the assessees over the purchase price for the assets sold after making all just deductions was taxed as profit but it was held that they were entitled to hold in suspense part of the surplus realised to meet possible losses on other assets and that under the circumstances the profit was earned for the purposes of the Act only when distributed to the share holders.
Having considered all these cases, we are of opinion that neither of them has any bearing upon the facts and circumstances of the present case.
Lastly it was urged that the commission could not be said to have accrued, as the profit of the business could be computed only after the 31st March, and therefore the com mission could not be subjected to tax when it is no more than a mere right to receive.
This argument involves the fallacy that profits do not accrue unless and until they are actually computed.
The computation of the profits whenever it may take place cannot possibly be allowed to suspend their accrual.
In the case of income where there is a condition that the commission will not be payable until the expiry of a definite period or the making up of the account, it might be said with some justification, though we do not decide it, that the income has not accrued, but there is no such condition in the present case.
Clauses 7 & 8 of the agreement which relate to the payment of the commission and the calculation of the profits mean no more than this that the commission will be quantified only after certain deductions had been made and not that the commission will not accrue until the profits have been ascertained.
The quantification of the commission is not a condition precedent to its accrual.
If the profits of the company are said to have accrued on the 31st of March, upon a parity of reasoning, it must be conceded that the commission also accrued on the same date.
The date has as much to do with the accrual of the commission as it has to do with the accrual of the profits.
It was faintly suggested that the managing.
agency was not a business but this is immaterial for income tax purposes because section 13 will apply to cases both under sections 10 268 and 12, so we refrain from deciding the point.
We may, how ever, point out in passing that in two cases Tata Hydro Electric Agencies, Ltd. vs Commissioner of Income tax Bombay(1) and Commissioner of Income tax.
Bombay Presidency vs Tata Sons Ltd.(2) it was assumed that the managing agency is business but the point was directly decided in Inderchand Hari Ram vs Commissioner of Income tax, U.P. and C.P.(3) that it is so.
For the foregoing reasons, we accept the view taken by Viswanatha Sastri J. and allow the appeals.
The respondent shall pay the costs of the Commissioner both in this court and before the High Court.
Appeals allowed.
| The respondent was a teacher in a private college affiliated to the Gauhati University in Assam.
The college was receiving grants in aid from the State on certain conditions set out in the form of Rules.
One of the rules, r. 7, provided that if a teacher stood for election to the Legislature, he should be on compulsory leave without pay from the date of filing of nomination till the end of the next academic session or, till the termination of the term of the office to which he may be elected.
The respondent applied for leave for three months and contested for a. seat in Parliament but was defeated.
So, he applied for permission to rejoin, and the Governing Body granted him the permission.
The Director of Public Instruction, however, pointed out that such permission was in contravention of the aforesaid rule, and therefore, the Governing Body informed the respondent that he had been granted compulsory leave without pay till the end of the academic session.
The respondent thereupon filed a petition in the High Court for the issue of a writ of mandamus or other appropriate direction on the grounds that : (i) the rule had no legal force, (ii) the rule did not bind the Governing Body or the respondent and (iii) the order of the Governing Body putting him on compulsory leave was ineffective.
He also prayed that the State should be directed not to withhold the grant inlaid to the college if the Governing Body did not impose compulsory leave on him.
The Governing Body was also made a party to the petition.
The High Court held that the rules had no statutory force, and issued a direction to the Director, as a public authority, to refrain from giving effect to.
such rules.
The High Court also issued a similar direction to the Governing Body, on the ground that it had not applied its independent mind to the question of respondent 's leave.
The State appealed to the Supreme Court, but did not dispute that the Rules were only administrative instructions.
HELD: The order of the High Court issuing a writ to the State through its Director should be set aside.
[899 B] The rules being mere administrative instructions have not the force of law as statutory rules.
They therefore confer no right on the teachers of private colleges which would entitle them to maintain a writ petition under article 226, for the enforcement or non enforcement of any provision of the rules.
They being mere administrative instructions, are matters between private colleges and the Government in the matter of grants in aid to such colleges, and no teacher of any college has any right under the rules to ask either for their enforcement or non enforcement.
It is open to the Governing Body not to carry out any such instructions and it will then be open to the State to consider what grant to make.
But if the Governing Body chooses to carry out the instructions it could not be said that the instruction was carried out under any threat; and, it is not oven to a teacher 891 to insist that the Governing Body should not carry out the instruction.
[897 B H] Messrs Raman and Raman vs The State of Madras, [1959] Supp.2.
S.C.R. 227, referred to,
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Special Leave Petition (Civil) No. 8461 of 1986.
From the Judgment and Order dated 31.3.1986 of the Central Administrative Tribunal, New Delhi, in Original Appln.
No. 40 of 1986.
356 AND Writ Petition Nos.
1285, 1575/86, 352,361 & 1165 of 1989.
(Under Article 32 of the Constitution of India).
Petitioners in Person in SLP 8461 of 1986 and W.P. No. 1285 of 1986.
Shanti Bhushan, Mrs. Swaran Mahajan, Ms. Anuradha Maha jan, Mrs. Rekha Pandey, Jayant Bhushan, Badri Das Sharma, C.V. Francis, Ramesh Babu, Ms. Santosh Paul and G. Prakash, for the Petitioners in W.P. No. 1575 of 1986, 352,361 and 1165 of 1989.
Kapil Sibal, Additional Solicitor General, R.B. Datar, Mukul Mudgal, C.V. Subba Rao, B.D. Sharma, R.B. Mishra, B.K. Prasad and A.M. Khanwilkar for the Respondents.
N.P. Saxena for the Intervener.
The Judgment of the Court was delivered by K.N. SAIKIA, J.
This analogous cluster of five writ petitions and one special leave petition involves a common question of law.
The petitioner in Writ Petition No. 352 of 1989 is the President of the All India Retired Railwaymen (P.F. Terms) Association and the petition has been filed in a representative capacity on behalf of all the members of the Association who retired with Provident Fund benefits.
Writ Petition No. 361 of 1989 has been filed by three indi vidual retired Railway employees who also retired with Provident Fund benefits.
The petitioner in Writ Petition No. 1285 of 1986 retired as Block Inspector of Northern Railway on 7.1.1968, a non pensionable post.
All the petitioners except petitioner No. 5 in W.P. No. 1575 of 1986 retired from Railway service high posts.
Petitioner No. 1 retired as Additional Member, Railway Board on 5.11.1960 with Provident Fund benefits.
Petitioner No. 2 was Member, Railway Board and similarly retired on 1.3. 1968 opting for Provident Fund Scheme as at that time the maximum monthly pension was Rs.675 only.
Petitioner No. 3 similarly retired as General Manager on 5.12.1960.
Petitioner No. 4 retired as Member (Staff) Railway Board and Ex officio Secretary to the Gov ernment of India on 30.6.1977 opting for the Provident Fund Scheme.
Petitioner No. 5 also retired on 19.6.1972 opting for the Provident Fund Scheme.
Petitioner No. 6 retired on 28.8.1962 as Director 357 Health, Railway Board opting for Provident Fund Scheme.
Petitioner No. 7 similarly retired on 17.2.1968 as Director, Railway Board.
Petitioner No. 8 retired as General Manager, Indian Railways on 15.10.1966 with the Contributory Provi dent Fund Scheme.
The petitioners in Writ Petition No. 1165 of 1989are also similarly retired persons.
The petitioner in Special Leave Petition (Civil) No. 8461 of 1986 retired as Assistant Auditor, with Provident Fund benefits.
His claim to switch over to pension after retirement was rejected.
The petitioners are thus retired railway employees who were covered by or had opted for the Railway Contributory Provi dent Fund Scheme.
It is the petitioners ' case that before 1957 the only scheme for retirement benefits in the Railways was the Provident Fund Scheme wherein each employee had to contribute till retirement a portion of his annual income towards the Provident Fund and the Railways as the employer would make a matching contribution thereto.
This provident Fund Scheme was replaced in the year 1957 by the Pension Scheme whereunder the Railways would give posterior to his retirement certain monthly pension to each retired employee instead of making prior contribution to his Provident Fund.
It is stated that the employees who entered Railway service on or after 1.4.1957 were automatically covered by the Pension Scheme instead of the Provident Fund Scheme.
In so far as the employees who were already in service on 1.4.1957, they were given an option either to retain the Provident Fund benefits or to switch over to the pensionary benefits on condition that the matching Railway contribution already made to their Provident Fund accounts would revert to the Railway on exercise of the option.
It is the petitioners ' case that till 1.4.1957 or even sometime thereafter, the pensionary benefits and the alter native Contributory Provident Fund benefits were considered to be more or less equally beneficial, wherefore, employees opted for either of them.
That the benefits of the two were evenly balanced was evidenced by the Railway Board circular dated 17.9.1960 which gave an option to the employees cov ered by the Provident Fund Scheme to switch over to pension scheme and vice versa.
Mr. Shanti Bhushan, the learned counsel for the petitioners in Writ Petition Nos. 352 and 361 of 1989, submits that between 1957 and 1987 the pensionary benefits of Railway employees were enhanced on several occasions by different ways such as altering the formula for computing the pension, by including dearness allowance in the pay for computing pension, by removal of the ceiling on pension, and by intro 358 ducing or liberalising the Family Pension Scheme etc.
The Railway, it is urged, had expressed no intention of extend ing the benefits of this liberalised pension to those em ployees who had already retired.
At the time when the option was given to choose between pension and Provident Fund, the employees had no idea that in future improvements would be made to either of them.
However, it is stated, this Court in D.S. Nakara and Ors.
vs Union of India, ; held that the benefit of any liberalisation in computation of pension would also have to be extended to those employees who had already retired as they were similarly situated with those who were yet to retire.
It is submitted, that even though Nakara 's case related to Central Government employ ees, the Railways also implemented the Judgment and extended the liberalised pension benefits even to those employees who had retired long before the liberalisations concerned were introduced.
The decision to implement Nakara 's Judgment to Railway employees is admittedly contained in G.O. No. FI (3) EV/83 dated 22.10.1983.
This has, according to the learned counsel, given rise to the "strange situation" namely, that while two alternative benefits of provident fund and pension were more or less equal at the time when the petitioners were to make their choice, the pensions have thereafter been liberalised manifold to the benefit of the pension retirees, whereas no similar benefits have been extended to those who retired opting for Provident Fund, hereinafter called 'the P.F. retirees '.
It is asserted that due to successive liberalisations of pensions, the pension retirees derived manifold benefits while the P.F. retirees ' benefits remained stagnant.
It is submitted that had the petitioners, all of whom are P.F. retirees, known that pensionary benefits might subsequently be so increased, they would no doubt have opted for pension instead of Provident FUnd, The following twelve notifications given such options are referred to: Date of Notification Cut off date chosen 1.
17.09.60 01.07.59 2.
26.10.62 01.09.62 3.
03.03.66 31.12.65 4.
13.09.68 01.05.68 5.
23.07.74 01. 01.73 359 6.
23.08.79 31.03.79 7 01.09.80 23.02.80 8.
04.10.82 31.08.82 9.
09.11.82 31.01.82 10. 13.05.8 31.01.82 11.
18.06.85 31.03.85 12.
08.05.87 01.01.86 It may be noted that in case of each option the cut off date was anterior to the respective dates of.announcement, and as a result, employees who retired after the cut off date (specified date) and before the notification date were also made eligible for exercising the option despite the fact that they already retired in the meantime.
From the above, the 'main legal point ' that arises, submits Mr. Shanti Bhushan, is that the Railways issued the above noti fication giving option to certain P.F. retirees after the respective cut off dates to opt for the Pension Scheme even after their retirement, but the same options were not given to other similarly situated P.F. retirees beyond the respec tive cut off dates.
This, it is submitted, is clearly dis criminatory and violative of article 14 of the Constitution and deserves to be struck down.
It is contended by the petitioners that each of the above notifications including the last one, dated 8.5.
1987 had given a fresh option to some of the P.F. retirees while denying that option to other P.F. retirees who were identi cally placed but were separated from the rest by the arbi trary cut off date.
Each of the notifications specified a date and provided that the P.F. retirees who retired on or after that date would have fresh option of switching over to the pensionary benefits even though they had already re tired, and also had already drawn the entire Provident Fund benefits due to them.
It is also contended that the speci fied dates in these notifications having formed the basis of the discrimination between similarly placed P.F. retirees those were arbitrary and un related to the objects sought to be achieved by giving of the option and were clearly viola tive of article 14 and also of the principle laid down in Nakara 's case, which according to counsel, is that pension retirees could not be divided by such arbitrary cut off 360 dates for the purpose of giving benefitS ' to some and not to other similarly situated employees; and that by analogy the rule is equally applicable to the Provident Fund retirees as a class.
Mr. Kapil Sibal, the learned Additional Solicitor Gener al refuting the argument submits that each of the options was meant to give the P.F. retirees after the specified dates option to switch over to Pension Scheme and that each specified date had nexus with the reason for granting the particular option.
He relies on the following statements to substantiate his submission.
STATEMENT SHOWING PENSION OPTIONS GIVEN TO RAILWAY EMPLOYEES S1.
No. Option Granted Option Reasons for Rly.
Board 's validity granting letter No. period option date 1 2 3 4 5 1.
I Option F(E) 50/RTI/6 1.4.57 to 31.3.58 Intro dated 16.11.57 (For those duction in service on system 1.4.1957 on Rai lways Extensions F(P) 58.PN 1/6 Extended upto dated 7.3.58 30.6.56 F(P)58.PN 1/6 Extended upto dated 19.6.58 31.12.58 F(P)58.PN 1/6 Extended upto dated 24.12.58 31.3.59 F(P)58.PN 1/6 Extended upto dated 28.3.59 30.9.59 2.
II Option PC 60/RB/2/2 1.7.59 to 15.12.60 Revi dated 17.9.60 (For those in sion service on of Pay Struc ture (2 nd Pay Commiss ion re commenda tion) 361 Extensions PC 60/RB 2/2 Extended upto dated 7.4.61 30.6.61 PC/60/RB 2/2 Extended upto dated 2.11.61 31.12.61 3.
III Option F(P)62.PN 1/2 1.9.62 to 31.3.63 Consequ dated 26.10.62 (For those in ent upon service on 1.9.62 decision to count officiati ng pay for pensionary benefits.
IV Option F(P)63.PN/1/ 1.1.64 to 16.7.66 Introduc 40 dated 17.1.64 tion of family pension scheme.
V Option F(P)65.PN1/41 31.12.65 to In pursuance dated 3.3.66 30.6.66 of decision (for those to liberalise in service on the family 31.12.65 pension Scheme by Extending it to employ ess who die wh ile in service.
VI Option F(E) III.68.PN 1.5.68 to 31.12.68 In pursu 1/2 dated 13.9.88 (for those in ance of service on decision 1.5.68 to change the defi nition of "pay" w.e.
f.1.5.68 for the purpose of pensionary benifits.
362 Extensions F(E)III.68PN Extended upto 1/2 dated 31.1.69 31.3.69 7.
VII Option F(E)III.71.PN 15.7.72 to As a result of 1/3 dated 15.7.72 21.10.72 demandes from (for those orgnised in service labour.
on 15.7.72 8.
VIII Option PC III.73.PN/3 1.1.73 to 22.1.75 Consequet dated 23.7.74 (for those to acceptance in service III Pay Commis on 1.1.73) sions ' Recommen dations.
Extensions PC III.73.PN/3 Extended upto Extended becau dated 18.1.75 & 30.6.76 & se by schedule for 25.6.75 31.12.75 vsrious categories PC III, 73.PN/3 Extended upto were being Pt I 30.6.76 Finalised.
dated 16.12.75 PC III.73 PN/3 Extended upto Pt.
I 31.12.76 dated 30.6.76 PC III 73 PN/3 Extended upto Pt.
I 30.6.76 dated 3.1.77 PC III 73 PN/3 Extended upto Pt.
I 31.12.77 dated 12.7.77 PC III 73 PN/3 Extended upto Pt.
I 30.6.78 dated 17.4.78 PC III 73 PN/3 Option Exercised Pt.
I upto 31.12.78 be dated 20.5.78 considered as valid PC III.78 PN/3 (staff who were in Pt.
I service as on 1.1.73 & dated 27.12.78 retired/died/quited service during the period from 1.1.73 to 31.12.78) 363 9.
IX Option F(E) III.
to On account 1/4 22.2.80 of liberalisa dated 23.8.79 (For those in tion of pen service on sion formula 1.4.79) and introduc tion of slab system.
Extensions F(E) III.
PN Extended upto 1/4 dated 1.9.80 22.2.81 10.
X Option F(E) III 82.
31.8.82 to 28.2.830n account PN 1/7 (For those in of part of DA dated 4.10.82 service on treated as 31.8.82) pay.
Extension F(E)III 82.
PN Extended upto 1/7 dated 13.5.83 31.8.83 % made applicable from 31.1.82 under letter No. F(E) III dated 9.11.82 11.
XI Option F(E) III 85.
31.3.85 to Consequent PN 1/5 17.12.85 upon DA/ dated 18.6.85 (For those inADA upto service on average price 31.3.85 ) index at point 568 treated as pay for retire ment benefits.
XII Option PC IV/87/13/ 1.1.86 to 30.9.87 All CPFbene 881 ficiaries who dated 8.5.87 (for those in were in service service on on 1.1.86 and 1.1.86) who are still in service will be deemed to 364 have come over to pen sion Scheme unless they specifically opt out pension scheme and desire to retain the CPF scheme.
INTRODUCTION OF PENSION SCHEME OF RAILWAYS AND SUBSEQUENT PENSION OPTION (i) Introduction of Pension Scheme Pension Scheme was introduced on the Railways on 16.11.57 and was applicable to the following: (a) To all Railway servants who enter service on and after 16.11.57 and (b) To all non pensionable Railway servants who were in service on 1.4.57 or join Railway Service between 1.4.57 and 16.11.57 and opt for the Pension Scheme.
The scheme was made applicable from 1.4.57 because the financial year commences from April each year.
This option was extended 4 times from time to time and was valid upto 28.3.59.
The extensions were given because there were repre sentations for its extension so that the staff could get time to weigh the merits of the Schemes before they take decision.
(ii) Pension option dated 17.9.
1960 Orders were issued on 2.8.1960 notifying Railway Serv ices (Authorised Pay) Rules, 1960.
Under this notification new pay scales were introduced for Railway Servants.
These new pay scales were effective from 1st July, 1959.
Fresh option was granted on 17.9.60 to Railway employees who were in service on 1.7.59 to come over to the pension scheme.
The last 365 date for exercising the option was 15.12.60.
This was ex tended upto 31.12.60 to enable the concerned employees to come to a considered decision whether to retain the P.F. or opt for the pension scheme.
(iii) Pension Option dated 26.10.62 A decision was taken on 26.10.62 to count the officiat ing pay for the purpose of retirement benefits in case of those who were in service on 1.9.62.
Accordingly, a fresh option was given to staff to come over to pension scheme on 26.10.62.
This option remained open till 31.3.63.
(iv) Pension Option dated 17.
1964 As a result of introduction of Family Pension Scheme 1964, which came into force on 1.1.1964 orders were issued on 17.1.64 to the effect that all Railway employees who were in service could opt for pension scheme within a period of 6 months.
This option was extended upto 16.9.64.
(v) Pension Option dated 3.3.66 Family Pension Scheme was further liberalised for em ployees who die while in service.
In view of this improve ment in Pension Scheme, pension option under Railway Board 's orders dated 3.3.66 was given to employees who were in service on 31.12.65.
Since the liberalisation in Family Pension Scheme came into effect from 1st January, 1966, the option was open for employees who were in service on 31.12.65 and was open upto 30.6.1966.
(vi) Pension Option dated 13.9.68 The definition of 'Pay ' for pensionary benefits was changed from 1.5.68, through Board 's orders dated 13.9.68.
In view of this, a further option was given on 13.9.68 to Railway employees who were in service on and after 1.5.68 to opt for the Pension Scheme.
This option was open upto 31.12.68.
This was further extended upto 31.3.69.
(vii) Pension Option dt. 15.7.
72 On representation from the recognised labour federations that many employees had not clearly understood the liberali sation introduced in the pension scheme, a fresh option was allowed on 15.7.72 to all serving employees.
This was open till 21.10.72.
366 (viii) Pension Option dated 23.7.
74 This option was based on similar orders issued by Minis try of Finance.
The rationale behind this option was that the recommendations of the 3rd Pay Commission became effec tive from 1.1.73 but pay structure of all employees who were in service on 1.1.73 got altered through orders issued piecemeal from time to time.
There were liberalisations in the pension scheme also in the form of increase in the amount of gratuity as also introduction of the concept of Dearness Relief made available to the pensioners.
This option was made available to all employees who were in service on 1.1.73.
Employees who had retired earlier did not get affected in any way by the recommendations of the 3rd Pay Commission and were accordingly not given this option to come over to Pension Scheme.
This option was available upto 22.1.75, a period of 6 months.
The option given vide letter of 23.7.74 was extended from time to time till 31.12.78.
The reason why this exten sion had to be allowed was that the revised pay scales recommended by the Pay Commission for many of the categories could not be finalised and notified.
Till such time, the revised pay scale admissible to each category was made known, it was impossible for the concerned staff to assess the benefit admissible for opting for the revised scale as also for the pension option.
The pension option had there fore to be extended from time to time in this manner.
The letters authorising extension of the date of option were not very clearly worded with the result that the pen sion option during the periods of extension was granted, even to those who had retired before such extension became admissible but who were in service on 1.1.73.
The clarifica tion was accordingly issued to all the Railways stating that the subsequent orders extending the date of option were applicable to serving employees only, but the cases already decided otherwise may be treated as closed and need not be opened again.
It was subsequently represented by the organised labour that the options actually exercised upto 31.12.78 should be treated valid even though such cases may not have been decided by that date.
This was agreed to and orders issued accordingly.
(ix) Pension Option dated 23.8.
79 A liberalised formula and slab system for calculation of pension 367 effective from 31.3.79 was notified by Railway Board on 1.6.79.
Accordingly, orders were issued on 23.8.79 allowing pension option to those Railway employees who were in serv ice on 31.3.79.
This option was initially open till 22.2.80 but was extended subsequently to enable wider participation upto 22.2.1981.
(x) Pension Option dated 4.
10.82 Orders were issued by Board on 30.4.82 ordering that a portion of Dearness Allowance will be treated as pay for retirement benefits w.e.f. 31.1.82.
Accordingly a fresh option was allowed on 4.10.82 which could be exercised by Railway employees who were in service on 31.1.82.
This option was available upto 31.8.83.
(xi) Pension Option dated 18.6.85 Orders were issued by Railway Board on 17.5.85 merging Dearness Allowance to the price index upto 568 with pay for the purpose of retirement benefits and raising the ceiling of DCRG from 36,000 to 50,000 w.e.f. 31.3.85.
Accordingly, another option was granted to the Railway employees who were in service on 31.3.85.
This option was available for a period of 6 months i.e. upto 17.12.1985.
(xii) Pension Option dated 8.5.87 Consequent upon acceptance of the recommendations of the 4th Pay Commission the revised pay scales were notified on 19.9.86 and 14.3.87, effective from 1.1.1986.
Accordingly another pension option was given to the Railway employees who were in service on 1.1.86 vide orders of 8.5.87.
Under these orders those who did not specifically opt out of pension scheme by 17.12.87 would he automatically deemed to have opted for the pension scheme.
We may now examine these options.
The Railway Board 's letter No. F(E) 50 RTI/6 dated November 16, 1967 introduced the pension scheme for railway servants.
It said that the President had been pleased to decide that the pension rules, as liberalised vide Railway Board 's Memo No. E 48 OPC 208 dated 8.7.1950 as amended or clarified from time to time should apply "(a) to all railway servants who entered serv ice on or after issue of that letter and (b) to all non pensionable railway servants who were in service on 1.4.57 or have joined railway service between that date and the date of issue of the order." The Railway servants referred to in para (b) were required 368 to exercise an unconditional and unambiguous option on the prescribed form on or before 31.3.1958 electing for the pensionary benefits or retaining their existing retirement benefits under the State Railway Provident Fund Rules.
It further said that any such employee from whom an option form prescribed for the employee 's option was not received within the above time limit or whose option was incomplete or conditional or ambiguous shall be deemed to have opted for the pensionary benefits and if any such employee had died by that date or on or after 1.4.57 without exercising option for the pensionary scheme, his dues would be paid on the provident fund system.
The period of validity of this option was first extended upto 30.6.58, 31.12.58, 31.3.59 and lastly upto 30.9.59.
There could, therefore, be no doubt that those who did not opt for the pension scheme had ample opportunity to choose between the two.
The second option was given by the Board 's letter No. PC 60/ RB/2/2 dated 17.9.60 to elect the retirement benefits under the Provident Fund Rules or the Pension Rules.
All Railway servants who were in non pensionable service on 15.11.57 prior to the introduction of the pension scheme on the Railways and who were still in service including (IPR) on 1.7.59 were granted this option to have their retirement benefits regulated by the State Railway Provident Fund Rules or the Railway Pension Rules.
Every eligible railway servant was given the option to change over from P.F. benefits to pensionary benefits or vice versa.
It clearly said that Railway servants who did not exercise the option would continue to be eligible for the P.F. benefits or pensionary benefits as the case might be for which he was already eligible.
The option was subject to the special conditions stated therein.
Where the Railway servants opted for pensionary benefits, the part of the Government contribution together with interest thereon and/or special contribution to the Railway servants ' P.F. account had already been paid, the excess of the amount over the gratuity due under the Pension Rules should be refunded to the Government.
It clearly said that: "the option once exercised shall, however, be final and irrevocable irrespective of the decision taken on that issue.
" If a Railway servant opted for P.F. benefits and if the payment of pensionary benefits had already commenced, further payment would be stopped and his P.F. account would be reconstructed as if he had never opted for pensionary benefits.
The period of validity of option was extended upto 30.6.61, and then upto 31.12.61.
This letter clearly indi cated the reason for giving this option as "under the re vised pay structure introduced from 1.7.59, the bulk or whole of the D.A. previously payable 369 have been absorbed into pay and a number of changes are also being made in the rules regarding retirement benefits.
" In pursuance of the 3rd Pay Commission Report, Govern ment decided to give opportunity to opt for liberalised Railway Pension Rules including benefits of Family Pension Scheme, 1964, to Railway employees, who had retained the contributory P.F. Rules and who were in service on 31.3.1979 and retired on or after that date provided they gave in writing their option within six months.
Employees who had retired under the said State Railway P.F. (Contributory) Rules, their option would be valid if they refunded the entire Government contribution and the excess, if any, of special contribution to P.F. received by them over D.C.R.G. due to them under Pension Rules.
In case of deceased employ ees request could be made for option by valid nominee and in the absence.
of him by legal guardian.
Thereafter a number of representations were made and the Government extended the time for giving option for adopting Pension Scheme in place of contributory P.F. Scheme.
As a result of treatment of a portion of ADA as pay for purpose of retirement benefits and consequently enhancement in pensionary benefits, the date for giving option was further extended by 28.2.1983 only for these employees who were in service on 31.8.1982 and who quitted/retired on or after that date.
The date of option was further extended from time to time.
Keeping in view the treatment of entire DA upto the price index line of 568 as pay for retirement benefit with effect from 31.3.85, removal of ceiling limit of Rs. 1500 on pension and raising of ceiling of DCRG from Rs.36,000 to Rs.50,000 the date of option for employees who were in service on 31.3.85 and onwards and still governed by S.R.P.F. (Contributory) Rules, was further extended upto 17.12.1985 provided the amount of death cum retirement gratuity and the excess, if any, of special contribution over the D .C.R.G., was refunded.
The 12th option was as under.
"Government of India/Bharat Sarkar Ministry of Railways/Rail Mantralaya (Railway Board) Machine No. PC IV/87/13/881 No. PC IV/87/Imp.
PW 1 370 The General Managers, RBBIS.
No. 116/87 All Indian Railways, New Delhi, dated 8th May, 1987 Production Units etc.
as per mailing list.
Subject: Change over of Railway employees from the SRPF (Contributory Scheme) to Pension Scheme 'Implementation of the recommendation of the IV Central Pay Commission regard ing.
The Railway employees who are covered by the SRPF (Contributory Scheme) CPF Scheme have been given repeated options in the past to come over the Pension Scheme.
Howev er, some Railway employees still continue under the CPF Scheme.
The Fourth Central Pay Commission has now recommend ed that all CPF beneficiaries in service on January 1, 1986, should be deemed to have come over to the Pension Scheme on that date, unless they specifically opt out to continue under the GPF Scheme.
After careful consideration the President is pleased to decide that the said recommendation shall be accepted and implemented in the manner hereinafter indicated.
All CPF beneficiaries, who were in service on 1.1.86 and who are still in service on the date of issue of these orders, will be deemed to have come over to the Pension Scheme. ? 3.2.
The employees of the category mentioned above will, however, have an option to continue under the CPF Scheme, if they so desire.
The option will have to be exercised and conveyed to the concerned Head of Office by 30.9.87, in the form enclosed, if the employees wish to continue under the GPF Scheme.
1f no option is received by the Head of Office by the above date the employees will be deemed to have come over to the Pension Scheme.
The CPF beneficiaries, ,who were in service on 1.1.1986, but have since retired and in whose cases retire ment benefits have also been paid under the CPF Scheme, will have an option to 'have their retirement benefits calculated under the Pension Scheme provided they refund 371 to the Government the Government contribution to the Con tributory Provident Fund and the interest thereon, drawn by them at the time of settlement of the CPF Account.
Such option shall be exercised latest by 30.9.
CPF beneficiaries, who were in service on 1.1.1986 but were since retired, and in whose cases the CPF Account has not already been paid, will be allowed retirement benefits as if they were borne on pensionable establishments, unless they specifically opt, by 30.9.87, to have their retirement benefits settled under the CPF Scheme.
Cases of CPF beneficiaries, who were in service on 1.1.86, but have since died, either before retirement or after retirement, will be settled in accordance with para 3.3.
or 3.4 above, as the case may be.
Options in such cases will be exercised, latest by 30.9.87, by the widow/widower and, in the absence of widow/widower, by the eldest surviv ing member of the family, who would have otherwise been eligible to family pension under the Family Pension Scheme, if such Scheme were applicable.
The option, once exercised, shall be final.
3.7. . . . . 4.1. . . . . . 4 . 2 In the case of employees referred to above who come over or are deemed to have come over to the Pension Scheme, the Government 's contribution to the CPF together with the interest thereon, credited to the CPF Account of the employee, will be resumed by the Government.
Special contribution to Provident Fund if already paid in these cases, will be adjusted against the death/ retirement Gratuity, payable under these orders.
The employee 's contri bution, together with the interest thereon at his credit in the CPF account, will be transferred to the CRPF (Non Con tributory) Account, to be allotted to him, on his coming over to the Pension Scheme.
4.3. . . . . . . . 5 'A proposal to grant ex gratia payment to the benefici aries, who retired prior to 1.1.1986 and to the 372 families of CPF beneficiaries who died prior to 1.1.1986, on the basis of the recommendations of the Fourth Central Pay Commission, is separately under consideration of the Govern ment.
The said ex gratia payment, if and when sanctioned, will not be admissible to the employees or their families who opt to continue under the CPF Scheme from 1.1.1986 onward.
6. . . . . (G. Chatterjee) Executive Director, Pay Commission Railway Board.
" The learned Additional Solicitor General stated that each option was given for stated reasons related to the options.
On each occasion time was given not only to the persons in service on the date of the Railway Board 's letter but also to persons who were in service till the stated anterior date but had retired in the meantime.
The period of validity of option was extended in all the options except Nos.
3rd, 4th, 5th and 7th.
We find the statements to have been substantiated by facts.
The cut off dates were not arbitrarily chosen but had nexus with the purpose for which the option was given.
Mr. Shanti Bhushan however submits that applying the law laid down in Nakara 's case this Court should simply strike down or read down paragraph 8.1 of the above 12th option dated 8.5.
That paragraph said that aH C.P.F. benefi ciaries who were in service on 1.1.86 and who were still in service on the date of issue of the order would be deemed to have come over to the pension scheme.
It is submitted that once this limiting requirement is removed all the C.P.F. beneficiaries shall be eligible and will be deemed to have come over to the pension scheme.
As the basis or justification for striking or reading down paragraph 3.1 on Nakara 's ratio, it is urged that all the Railway employees numbering about 22 lakhs comprising 16,22,000 in service and about 6 lakhs pensioners constitute one family and must be treated as one class as the Govern ment 's obligation to look after the retired Railway employ ees both under the pension scheme and the provident fund scheme being the same, they could not be treated different ly.
Any differential treatment will be discriminatory and violative of Article 14 of the Constitution of India.
In Nalcara 's case the date arbitrarily 373 chosen was struck down and as a result the revised formula for computing pension was made applicable to all the retired pensioners.
The same principle, it is urged, has to be extended to the provident fund retires also otherwise there would be discrimination.
It is stated that though at the time of choosing between provident fund and pension scheme both the alternative appeared to be more or less equal and the retired provident funders took their lump sum yet subse quently stage by stage the pensioners benefits were in creased in such ways and to such extent that it became more and more discriminatory against the provident funders old and new.
It was because of this discrimination that aucces sive options were given by the Railway Board for the provi dent funders to become pensioners.
Hence the submission that this limitation must go, and all the provident funders must be deemed to have become pensioners subject to the condition that the Government contribution received by them along with interest thereon is refunded or adjusted.
Obviously this gives no importance to the condition in the notifications that option once exercised shall be final and binding and to the fact that in each option a cut off date was there relat ed to the purpose of giving that option: Admittedly, the entire case of the petitioners is sought to be based on the decision in Nakara 's case.
Mr. Kapil Sibal submits that the petitioners ' basic assumption is erroneous inasmuch as Nakara 's case did not hold that when ever there was a liberalisation of pension all other pension retirees and P.F. retirees must be given option and that the older system of pension or Provident Fund was always insuf ficient.
According to counsel the only question decided in Nakara can be gathered from the following paragraph of the report at page 172: "Do pensioners entitled to receive superannuation or retir ing pension under Central Civil Services (Pension) Rules, 1972 ( ' 1972 Rules ' for short) form a class as a whole? Is the date of retirement a relevant consideration for eligi bility when a revised formula for computation of pension is ushered in and made effective from a specified date? Would differential treatment to pensioners related to the date of retirement qua the revised formula for computation of pen sion attract Article 14 of the Constitution and the element of discrimination liable to be declared unconstitutional as being violative of article 14?" The basic question of law that has to be decided, therefore, is what was the ratio decidendi in Nakara 's case and how far that would 374 be applicable to the case of the P.F. retirees.
The doctrine of precedent, that is being bound by a previous decision, is limited to the decision itself and as to what is necessarily involved in it.
It does not mean that this Court is bound by the various reasons given in support of it, especially when they contain "propositions wider than the case itself required.
" This was what Lord Selborne said in Caledonian Railway Co. vs Walker 's Trustees and Lord Halsbury in Quinn vs Leathem, , (502).
Sir Frederick Pollock has also said: "Judicial authority belongs not to the exact words used in this or that judgment, nor even to all the reasons given, but only to the principles accepted and applied as necessary grounds of the decision." In other words, the enunciation of the reason or princi ple upon which a question before a court has been decided is along binding as a precedent.
The ratio decidendi is the underlying principle, namely, the general reasons or the general grounds upon which the decision is based on the test or abstract from the specific peculiarities of the particu lar case which gives rise to the decision.
The ratio deci dendi has to be ascertained by an analysis of the facts of the case and the process of reasoning involving the major premise consisting of a pre existing rule of law, either statutory or judge made, and a minor premise consisting of the material facts of the case under immediate considera tion.
If it is not clear, it is not the duty of the court to spell it out with difficulty in order to be bound by it.
In the words of Halsbury, 4th Edn., Vol. 26, para 573: "The concrete decision alone is binding between the parties to it but it is the abstract ratio decidendi, as ascertained on a consideration of the judgment in relation to the sub ject matter of the decision, which alone has the force of law and which when it is clear it is not part of a tribu nal 's duty to spell out with difficulty a ratio decidendi in order to bound by it, and it is always dangerous to take one or two observations out of a long judgment and treat them as if they gave the ratio decidendi of the case.
If more rea sons than one are given by a tribunal for its judgment, all are taken as forming the ratio decidendi.
" The question then is, has the court said in Nakara that what was applicable to pensioners vis a vis liberalisation of pension was to be equally applicable to P.F. retirees? In Nakara 's case petitioners 1 and 375 2 were retired pensioners of the Central Government, the first being a civil servant and the second being a member of the service personnel of the Armed Forces.
The third peti tioner was a society registered under the Societies Regis tration Act, 1860, formed to ventilate the legitimate public problems and was espousing the cause of the pensioners all over the country.
The first petitioner retired in 1972 and on computation, his pension worked out at Rs.675 per month and with dearness allowance he was drawing monthly pension of Rs.935.
The second petitioner retired at or about that time and at the relevant time was in receipt of a pension plus dearness relief of Rs .981.
The Union of India had been revising and liberalising the pension rules from time to time.
The Central Government servants on retirement from service were entitled to receive pension under the Central Civil Services (Pension) Rules, 1972.
Successive Central Pay Commissions recommended en hancement of pension in different ways.
The first Central Pay Commission (1946 47) recommended raising of the retire ment age to 58 years and the scale of pension to 1/80 of the emoluments of each year of service subject to a limit 35/80 with a ceiling of Rs.8,000 per year for 35 years of service.
The Second Central Pay Commission (1957 58) did not recom mend any increase in the non contributory retirement bene fits.
The Administrative Reforms Commissioner (ARC) 1956 took note of the fact that the cost of living had shot up and correspondingly the possibility of savings had gone down and accordingly recommended that the quantum of pension may be raised to 3/6 of the emoluments of the last three years of service from existing 3/8 and the ceiling to be raised from Rs.675 per month to Rs. 1,000 per month.
Before the Government acted upon it, the Third Central Pay Commission did not examine the question of relief to pensioners because of its terms and recommended no change in the pension formu la except that the existing ceiling to be raised from Rs.675 to Rs. 1,000 per month and the maximum gratuity should be raised from Rs.24,000 to Rs.30,000.
On May 25, 1979, Government of India, Ministry of Finance, issued Office Memorandum No. F 19(3) EV 79 whereby the formula for computation of pension was liberalised but made it applicable.
to Government servants who were in service on March 31, 1979 and retired from service on or after that date.
The formula introduced a slab system for computation of pension which was applicable to employees governed by the 1972 rules retiring on or after the speci fied date.
The pension for the service personnel which would include Army, Navy and Air Force staff was governed by the relevant regulations.
By 376 the Memorandum of the Ministry of Defence bearing No. B/40725/ AG/PS4 C/1816/AD (Pension)/Services dated September 28, 1979, the liberalised pension formula introduced for the government servants governed by the 1972 rules was extended to the armed forces personnel subject to the limitations set out in the memorandum with a condition that the new rules of pension would be effective from April 1, 1979 and may be applicable to all service officers who become/ became non effective on or after that date.
This liberalised 'pension formula was to be applicable prospectively to those who retired on or after March 31, 1979 in case of government servants governed by 1972 rules and in respect of defence personnel those who became/become non effective on or after April 1, 1979.
Consequently those who retired prior to the specified date would not be entitled to the benefits of the liberalised pension formula.
On the above facts the petitioners ' therein contended that this Court would consider the raison d 'etre for payment of pension, namely, whether it was paid for past satisfacto ry service rendered, and to avoid destitution in old age as well as a social welfare or socioeconomic justice measure, the differential treatment for those who retired prior to a certain date and those retiring subsequently, the choice of the date being wholly arbitrary would amount to discrimina tion and violative of article 14; and whether the classifica tion based on fortuitous circumstance of retirement before or subsequent to a date, fixing of which was not shown to be related to any rational principle, would be equally viola tive of article 14.
It was contended that pensioners of the Central Government formed a class for the purpose of pen sionary benefits and there could not be mini classification within the class designated as pensioners.
The Court considered the nature and purposes of pension in the context of a welfare State and found that though unquestionably pension was linked to length of service and the last pay drawn which did not imply the pay on the last day of retirement but average emoluments of 36 months serv ice which under the liberalised scheme was reduced to aver age emoluments of 10 months preceding the date which was expected to be higher than that of the higher average emolu ments of 36 months, coupled with the slab system for compu tation amounted to liberalisation of pension in different ways.
If the pensioners who retired prior to the specified date had to earn pension on the average emoluments of 36 months ' salary just preceding the date of retirement, natu rally the average would be lower and they would be doubly hit because the slab system newly introduced was not avail able to them 377 while the ceiling was at a lower level and thus they would suffer "triple jeopardy, viz., lower average emoluments, absence of slab system and lower ceiling.
" This Court, therefore, wanted to know what was the purpose in prescrib ing the specified date vertically dividing the pensioners between those who retired prior to the specified date and those who retired subsequent to that date and why was the pension scheme liberalised.
Receiving no satisfactory reply the Court observed: "Both the impugned memoranda do not spell out the raison d 'etre for liberalising the pension formula.
In the affida vit in opposition by Shri S.N. Mathut, it has been stated that the liberalisation of pension of retiring Government servants was decided by the Government in view of the per sistent demand of the Central Government employees repre sented in the scheme of Joint Consultative Machinery.
This would clearly imply that the pre liberalised pension scheme did not provide adequate protection in old age and that a further liberalisation was necessary as a measure of econom ic security.
When Government favorably responded to the demand it thereby ipso facto conceded that there was a larger available national cake part of which could be uti lised for providing higher security to erstwhile government servants who would retire.
The Government also took note of the fact that Continuous upward movement of the cost of living index as a sequel of inflationary inputs and dimin ishing purchasing power of rupee necessitated upward revi sion of pension.
If this be the underlying intendment of liberalisation of pension scheme, can any one be bold enough to assert that it was good enough only for those who would retire subsequent to the specified date but those who had already retired did not suffer the pangs of rising prices and falling purchasing power of the rupee?" The Court then proceeded to examine whether there was any rationale behind the eligibility qualification and finding no rationale concluded: "Therefore, this division which classified pensioners into two classes is not based on any rational principle and if the rational principle is the one of dividing pensioners with a view to giving something more to persons otherwise equally placed, it would be discriminatory." 378 The Court accordingly concluded that the division was thus arbitrary and unprincipled and therefore the classifi cation did not stand the test of article 14.
It was also arbi trary as the Court did not find a single acceptable or persuasive reason for this division and this arbitrary action violated the guarantee of article 14.
The Court observed that the pension scheme including the liberalised scheme to the Government employees was non contributory in ' character.
The payment of pension was a statutory liability undertaken by the Government and whatever became due and payable was 2budgeted for.
The Court specifically observed: "One could have appreciated this line of reasoning where there is a contributory scheme and a pension fund from which alone pension is disbursed.
That being not the case, there is no question of pensioners dividing the pension fund which, if more persons are admitted to the scheme, would pro rata affect the share.
Therefore, there is no question of dividing the pension fund.
Pension is a liability incurred and has to be provided for in the budget.
" The Court further observed: "If from the impugned memoranda the event of being in serv ice and retiring subsequent to specified date is served, all pensioners would be governed by the liberalised pension scheme.
The pension will have to be recomputed in accordance with the provisions of the liberalised pension scheme as salaries were required to be recomputed in accordance with the recommendation of the Third Pay Commission but becoming operative from the specified date.
It does therefore appear that the reading down of impugned memoranda by severing the objectionable portion would not render the liberalised pension scheme vague, unenforceable or unworkable." The Court in Nakara was not satisfied with the explana tion that the legislation had defined the class with clarity and precision and it would not be the function of this Court to enlarge the class.
The Court held in paragraph 65 of the report: "With the expanding horizons of socio economic justice, the Socialist Republic and welfare State which we endeavour to set up and largely influenced by the fact that 379 the old men who retired when emoluments were comparatively low and are exposed to vagaries of continuously rising prices, the falling value of the rupee consequent upon inflationary inputs, we are satisfied that by introducing an arbitrary eligibility criterion: 'being in service and retiring subsequent to the specified date ' for being eligi ble for the liberalised pension scheme and thereby dividing a homogeneous class, the classification being not based on any discernible rational principle and having been found wholly unrelated to the objects sought to be achieved by grant of liberalised pension and the eligibility criteria devised being thoroughly arbitrary, we are of the view that the eligibility for liberalised pension scheme of 'being in service on the specified date and retiring subsequent to that date ' in impugned memoranda, Exs.
P 1 and P 2, violates Article 14 and is unconstitutional and is struck down.
Both the memoranda shall be enforced and implemented as read down as under: In other words, exhibit P 1, the words: 'that in respect of the government servants who were in service on March 31, 1979 and retiring from service on or after that date '; and in exhibit P 2, the words: 'the new rates of pension are effective from April 1, 1979 and will be applicable to all service officers who became/become non effective on or after that date '; are unconstitutional and are struck down with this specifi cation that the date mentioned therein will be relevant as being one from which the liberalised pension scheme becomes operative to all pensioners governed by 1972 Rules irrespec tive of the date of retirement.
Omitting the unconstitution al part it is declared that all pensioners governed by the 1972 Rules and Army Pension Regulations shall be entitled to pension as computed under the liberalised pension scheme from the specified date, irrespective of the date of retire ment.
Arrears of pension prior to the specified date as per fresh computation is not admissible.
" Thus the Court treated the pension retirees only as a homogeneous class.
The P.F. retirees were not in mind.
The Court also clearly observed that while so reading down it was not dealing with any fund 380 and there was no question of the same cake being divided amongst larger number of the pensioners than would have been under the notification with respect to the specified date.
All the pensioners governed by the 1972 Rules were treated as a class because payment of pension was a continuing obligation on the part of the State till the death of each of the pensioners and, unlike the case of Contributory Provident Fund, there was no question of a fund in libera lising pension.
The argument of Mr. Shanti Bhushan is that the State 's obligation towards pension retirees is the same as that towards P.F. retirees.
That may be morally so.
But that was not the ratio decidendi of Nakara.
Legislation has not said so.
To say so legally would amount to legislation by enlarg ing the circumference of the obligation and converting a moral obligation into a legal obligation.
It reminds us of the distinction between law and morality and limits which separate morals from legislation.
Bentham in his Theory of Legislation, Chapter XII, page 60 said: "Morality in general is the art of directing the actions of men in such a way as to produce the greatest possible sum of good.
Legislation ought to have precisely the same object.
But although these two arts, or rather sciences, have the same end, they differ greatly in extent.
All actions, wheth er public or private, fall under the jurisdiction of morals.
It is a guide which leads the individual, as it were, by the hand through all the details of his life, all his relations with his fellows.
Legislation cannot do this; and, if it could, it ought not to exercise a continual interference and dictation over the conduct of men.
Morality commands each individual to do all that is advantageous to the community, his own personal advantage included.
But there are many acts useful to the community which legislation ought not to command.
There are also many injurious actions which it ought not to forbid, although morality does so.
In a word legislation has the same centre with morals, but it has not the same circumference.
" In Nakara it was never held that both the pension reti rees and the P.F. retirees formed a homogeneous class and that any further classification among them would be viola tive of article 14.
On the other hand the Court clearly ob served that it was not dealing with the problem of a "fund".
The Railway Contributory Provident Fund is by 381 definition a fund.
Besides, the Government 's obligation towards an employee under C.P.F. Scheme to give the matching contribution begins as soon as his account is opened and ends with his retirement when his rights qua the Government in respect of the Provident Fund is finally crystallized and thereafter no statutory obligation continues.
Whether there still remained a moral obligation is a different matter.
On the other hand under the Pension Scheme the Government 's obligation does not begin until the employee retires when only it begins and it continues till the death of the em ployee.
Thus, on the retirement of an employee Government 's legal obligation under the Provident Fund account ends while under the Pension Scheme it begins.
The rules governing the Provident Fund and its contribution are entirely different from the rules governing pension.
It would not, therefore, be reasonable to argue that what is applicable to the pen sion retirees must also equally be applicable to P.F. reti rees.
This being the legal position the rights of each individual P.F. retiree finally crystallized on his retire ment whereafter no continuing obligation remained while on the other hand, as regards Pension retirees, the obligation continued till their death.
The continuing obligation of the State in respect of pension retirees is adversely affected by fall in rupee value and rising prices which, considering the corpus already received by the P.F. retirees they would not be so adversely affected ipso facto.
It cannot, there fore, be said that it was the ratio decidendi in Nakara that the State 's obligation towards its P.F. retirees must be the same as that towards the pension retirees An imaginary definition of obligation to include all the Government retirees in a class was 'not decided and could not form the basis for any classification for the purpose of this case.
Nakara cannot, therefore, be an authority for this case.
Stare decisis et non guieta movere.
To adhere to prece dent and not to unsettle things which are settled.
But it applies to litigated facts and necessarily decided ques tions.
Apart from article 141 of the Constitution of India, the policy of courts is to stand by precedent and not to disturb settled point.
When court has once laid down a principle of law as applicable to certain state of facts, it will adhere to that principle, and apply it to all future cases where facts are substantially the same.
A deliberate and solemn decision of court made after argument on question of law fairly arising in the case, and necessary to its determina tion, is an authority, or binding precedent in the same court, or in other courts of equal or lower rank in subse quent cases where the very point is again in controversy unless there are occasions when departure is rendered neces sary to vindicate plain, obvious principles of law and remedy continued injustice.
It should be invariably applied 382 and should not ordinarily be departed from where decision is of long standing and rights have been acquired under it, unless considerations of public policy demand it.
But in Nakara it was never required to be decided that all the retirees formed a class and no further classification was permissible.
The next argument of the petitioners is that the option given to the P.F. employees to switch over to the pension scheme with effect from a specified cut off date is bad as violative of article 14 of the Constitution for the same rea sons for which in Nakara the notification were read down.
We have extracted the 12th option letter.
This argument is fallacious in view of the fact that while in case of pension retirees who are alive the Government has a continuing obligation and if one is affected by dearness the others may also be similarly affected.
In case of P.F. retirees each one 's rights having finally crystallized on the date of retirement and receipt of P.F. benefits and there being no continuing obligation thereafter they could not be treated at par with the living pensioners.
How the corpus after retirement of a P.F. retiree was affected or benefitted by prices and interest rise was not kept any track of by the Railways.
It appears in each of the cases of option the specified date bore a definite nexus to the objects sought to be achieved by giving of the option.
Option once exer cised was told to have been final.
Options were exercisable vice versa.
It is clarified by Mr. Kapil Sibal that the specified date has been fixed in relation to the reason for giving the option and only the employees who retired after the specified date and before and after the date of notifi cation were made eligible.
This submission appears to have been substantiated by what has been stated by the successive Pay Commissions.
It would also appear that corresponding concomitant benefits were also granted to the Provident Fund holders.
There was, therefore, no discrimination and the question of striking down or reading down clause 3.1 of the 12th Option does not arise.
It would also appear that most of the petitioners before their filing these petitions had more than one opportunities to switch over to the Pension Scheme which they did not exercise.
Some again opted for P.F. Scheme from the Pension Scheme.
Mr. Shanti Bhushan then submits that the same relief as is being canvassed by the petitioners herein has been upheld by this Hon 'ble Court by dismissing the SLP No. 5973/88 of the Government in the case of Union of India vs Ghansham Das and Ors.
against the Judgment of the Central Administrative Tribunal, Bombay.
The Tribunal 383 had held the same notifications as were impugned herein to be discriminatory and had directed that a flesh option be given to all P.F. retirees subject to refund of the Govern ment contribution to Provident Fund received by adjusting it against their pensionary rights.
Similarly, it is submitted, in a Rajasthan case, both the single Judge and the Division Bench have held that all the retirees would have to be given a flesh option as the notifications giving the option only to some retirees are clearly discriminatory.
This view has, it is urged, again been upheld by this Hon 'ble Court by dismissing the Special Leave Petition No. 7192/87 of the Government by order dated 11.8.87.
We have perused the judgments.
The Central Administra tive Tribunal in Transferred Application No. 27/87 was dealing with the case of the petitioners ' right to revise options during the period from 1.4.69 to 14.7.72 as both the petitioners retired during that period.
The tribunal ob served that no explanation was given to it nor could it find any such explanation.
In State of Rajasthan vs Retired C.P.F. Holder Association, Jodhpur, the erstwhile employees of erstwhile Princely State of Jodhpur who after becoming Government servants opted Contributory Provident Fund wanted to be given option to switch over to Pension Scheme, were directed to be allowed to do so by the Rajasthan High Court relying on Nakara which was also followed in Union of India vs Bidhubhushan Malik, ; , subject matter of which was High Court Judges ' pension and as such both are distinguishable on facts.
That the Pension Scheme and the P.F. Scheme are struc turally different is also the view of the Central Pay Com missions and hence ex gratia benefits have been recommended, which may be suitably increased.
In the report of the Third Central Pay Commission 1973, Vol. 4 at page 49, dealing with State Railway Provident Fund it was said: "49.
Both gazetted and non gazetted Railway employees with a service of not less than 15 years who are governed by the State Railway Provident Fund Scheme are at present allowed a special contribution at the rate of 1/4th of a month 's pay for each completed 6 monthly period of service but not exceeding 15 months ' pay or Rs.35,000, whichever is less.
We have been informed by the Railway Board that for such em ployees the Government contribution and the special contri bution to the Provident Fund 384 together constitute the retirement benefits which in other civil departments are given in the shape of pension and death cum retirement gratuity.
Accordingly, when pensionery benefits to the other civil employees were im proved in 1956 and 1957, the maximum of the special contri bution to the provident fund for the Railway employees was also increased from Rs.25,000 to Rs.35,000.
We have not examined whether and to what extent any further increase in this contribution should be made consequent upon the en hancement of the maximum pension and gratuity being recom mended by us for pensionable employees.
The Government may decide the same as they deem fit.
" In the Report of the Fourth Central Pay Commission, in Chapter 9 the Commission has discussed the State Railway Provident Fund Scheme including Contributory Provident Fund Scheme.
In para 9.1 of the report, the Commission said that the employees who joined railways prior to November 16, 1957 and did not opt for the pension scheme were also covered under the C.P.F. Scheme known as State Railways Provident Fund Scheme (SRPF).
About 50,000 employees were stated to be covered under the C.P.F. Scheme of which the majority were in the railways.
The number of employees who retired under the CPF and SRPF schemes were 1.20 lakhs.
Under the CPF scheme every employee was required to subscribe a minimum of 8 1/3 per cent of his reckonable emoluments to be credited to the fund.
The Government makes a matching contribution.
Both the contributions earned interest at a rate specified by the Government from time to time.
On retirement, employ ees governed under the scheme was paid his contribution, the contribution made by the Government and the interest earned on the total amount.
In para 9.3 of the Report it was stated: "The SRPF scheme in the railways was replaced by the pension scheme as applicable to other Central Government employees, in November, 1957 and those employees who were in service on April 1, 1957 and were governed by the scheme were given an option to come under the pension scheme.
Whenever changes occurred in the pension structure for the Central Government employees an option was given to railway employees still covered by the scheme.
Such options have been given on eleven occasions in the 385 past and the last such option was valid upto December, 1985.
" Comparing the advantage and disadvantage of the schemes the Commission said: "While pension scheme has been improved, enlarged and lib eralised from time to time, there has been no similar im provement in the CPF scheme, excepting through improvement of rates of interest which were modified from 7 per cent on 1974 to 9 per cent in 1983 84, to 10 per cent in 1984 85 and to 12 per cent in 1985 86.
While those governed by the pension scheme are entitled to receive dearness relief sanctioned from time to time to compensate for increase in the cost of living, those under the CPF scheme were not entitled to such relief.
The employees governed by the CPF scheme are also not entitled to the family pension available to those governed by the pension scheme.
The matching gov ernment contribution in the case of CPF employees is paid for the full period of service the restriction of 33 years for those governed by pension scheme does not apply in their case.
Those who have retired under the CPF scheme have a corpus yielding regular return.
In the case of railway employees, special contribution to PF is paid at the time of retirement equivalent to half a month 's salary for each completed year of service subject to a maximum of 16 months ' salary or Rs.60,000 whichever is less.
The amount of special contribution has been raised from time to time as and when the limit on death cum retirement gratuity was changed.
" In para 9.5 of the Report as to ex gratia alternative it is stated: "As the pension scheme was introduced on the railways m ' 1957, those who retired earlier did not have an opportunity to opt for pension.
It was, therefore, decided to give some ex gratia payment to them in consideration of the fact that the retirement benefits were lower than what they would have received if they had retired under the pension scheme.
Since this applied mainly to the low paid employees, the ex gratia payment ranging from Rs. 15 to Rs.22.50 per mensem was sanctioned to those drawing pay upto Rs.500 per month.
They were also given relief on a 386 graded scale subsequently.
The amount of ex gratia payment together with the relief now ranges from Rs. 170 to Rs. 283 per mensem.
" In para 9.6, the Commission said that the P.F. and pension schemes are structurally different.
Accordingly alternative ex gratia reliefs were suggested: "We have received a number of suggestions from individuals, associations and other organisations in respect of the CPF scheme.
It has been stated that the objective of both the schemes, viz., pension scheme and the CPF scheme being the same, there should not be differences in the matter of retirement benefits between the pensioners and the benefici aries of the CPF.
It has been urged that the liberalisation in the pension scheme needs to be appropriately extended to the beneficiaries under the CPF scheme.
Since the schemes are structurally different, equality of benefits under the two schemes is not feasible.
We are, however, of the view that the CPF beneficiaries who have retired on low scales of pay deserve some measure of relief.
We according recommend that all the CPF beneficiaries who have retired prior to March 31, 1985 with a basic pay upto Rs.500 per mensem may be given an ex gratia payment of Rs.300 per mensem which will be in addition to the benefits already received by them under the CPF scheme.
The ex gratia payments and the period ic increases already received by those who retired on pay upto Rs.500 may be so adjusted that the total ex gratia amount is not less than Rs.300.
We further recommend that ex gratia amount of Rs.300 per mensem may be reviewed as and when dearness relief is sanctioned to pensioners." "9.7.
Railways have suggested grant of ex gratia payment to the widows and dependent children of deceased employees covered by CPF scheme at 50 per cent of the rate for ex gratia payment.
We agree and recommend accordingly for those getting pay upto Rs.500 per mensem.
The eligibility of widow and minor children for the purposes of this relief may be same as laid down under the pension rules." "9.8.
In so far as the CPF beneficiaries still in service on 387 January 1, 1986 are concerned, we recommend that they should be deemed to have come over to the pension scheme on that date unless they specifically opt out to continue under the CPF scheme.
The CPF beneficiaries who decide to continue to remain under that scheme should not be eligible on retire ment for ex gratia payment recommended by us for the CPF retirees.
Government may, however, extend the benefit of DCRG to CPF beneficiaries in other departments on the same lines as in railways." "9.9.
Government may also consider the feasibility of giving an option to all other CPF retirees who are not covered under paragraph 9.6 above to come over to the pension scheme with effect from January 1, 1986 subject to their refunding to government the entire amount of government contribution inclusive of interest thereon credited to their Provident Fund account at the time of their retirement.
" We have no doubt about the above recommendations receiv ing due consideration by the Union of India.
The 12th Option already given has to be viewed in this context.
The next question debated is that of financial implica tions.
It is submitted that given the fact that the budget for the year 1990 91 for disbursement of pension is Rs.900 crores (as per page 11 of the Budget of the Railway Revenue and Expenditure of the Central Government for 1990 91), the additional liability which would arise by giving relief to the Petitioners would be insignificant in comparison.
Ac cording to the petitioners as per their affidavit dated 15.9.88, the additional liability would come to Rs. 18 crores per annum and this figure would steadily decrease as the number of P.F. retirees diminishes every year due to the fact that this question arises only with respect to very old retirees, and a substantial number of them pass away every year.
The Government in its affidavit dated 21.9.88 has stated that the additional liability as far as the Railway employ ees are concerned, would be Rs.50 crores a year.
This is based on the assumption that there are 79,000 surviving P.F. retirees.
Apart from the fact that this number of 79,000 was based on calculations made in 1988, and would be greatly reduced by this time, the petitioners submit that the actual number of survivors would only be about 38,000.
Thus, the actual burden would be less than half.
Further, even assum ing that the figure 388 of 79,000 put forth by the Government is correct, the aver age annual expenditure per retiree for pension calculated by the Government is incorrect as the calculation includes the non recurring arrear payments for the year 1987 88.
Taking the correct figures of total pension outlay and total number of beneficiaries the per capita pension expenditure per annum works out to Rs.4521.
Multiplying this by 79,000 (assuming the figures of the Railways to be correct) the annual expenditure comes to Rs.35.71 crores.
This compared to the current budget of pensions of Rs.900 crores, is quite insignificant and can be easily awarded by this Court as was done in Nakara, it is urged.
It is submitted in the alternative that if this Court feels that a positive direction cannot be made to the Gov ernment in this regard, it is prayed that at least an option should no given to the respondents either to withdraw the benefit of switching over to pension from every one or to give it to the petitioners as well, so that the discrimina tion must go.
We are not inclined to accept either of these submis sions.
The P.F. retirees and pension retirees having not belonged to a class, there is no discrimination.
In the matter of expenditure includable in the Annual Financial Statement, this Court has to be loath to pass any order to give any direction, because of the division of functions between the three co equal organs of the Government under the Constitution.
Lastly, the question of feasibility of converting all living P.F. retirees to Pension retirees was debated from the point of view of records and adjustments.
Because of the view we have taken in the matter, we do not consider it necessary to express any opinion.
Mr. C.V. Francis in W.P. No. 1165 of 1989 argued the case more or less adopting the arguments of Mr. Shanti Bhushan.
Mrs. Swaran Mahajan, in W.P. No. 1575 of 1986, submitted that the rule as to commuted portion of the pen sion reviving after 15 years should be applied to P.F. retirees so that the corpus of Provident Fund dues received more than 15 years ago should be treated as committed por tion of pension and be allowed to revive for adjustments against pension.
In the view we have taken in this case it is not necessary to express any opinion on this question.
389 Mr. R.B. Datar for the respondent in W.P. No. 1575 of 1986 and W.P. No. 352 of 1989 more or less adopted the arguments of the learned Additional Solicitor General.
In the result, all the Writ Petitions and the Special Leave Petition are dismissed, but the petitioners being retirees, we make no order as to costs.
R.S.S. ' Petitions dismissed.
| The petitioner was carrying on business as a stockist of Baba Brand Tobacco.
The petitioner 's husband, who was a sub dealer of the product, was living with her at all mate rial times.
A search under section 132 of the Income Tax Act was conducted at their house and valuables and books of account seized.
A notice under rule 112A of the Income Tax Rules read with sub section (5) of section 132 of the Act was served on the petitioner.
The petitioner filed an application in the High Court under Article 226 of the Constitution claiming return of account books and other valuables to her.
On the other hand, in the proceedings under Section 132(5) of the Act against the petitioner 's husband, he had claimed that the ornaments belonged to him and that the same could be treated as representing his undisclosed income.
The High Court came to the conclusion that the authori sation for search under section 132(1) of the Act against the petitioner was not in accordance with law and, there fore, the seizure of the assets could not be said to have been in accordance with law.
The High Court however noted that in view of the order made under section 132(5) of the Act against the husband, the valuables could not be ordered to be returned to the petitioner.
Before this Court, it was contended on behalf of the petitioner that if search and seizure were illegal, the items of jewellery were liable to be returned On behalf of the Revenue, it was contended that in a situation where there was a dispute as to who was the owner of the jewellery and ornaments, the decision of the High Court declining to direct their return to the petitioner could not be faulted.
394 Dismissing the special leave petition, the Court, HELD: (1) A dispute as to the ownership of jewellery in question cannot be resolved in proceedings under Article 226 of the Constitution in the manner sought for by the peti tioner.
[397F] (2) In the instant controversy the Court is not con cerned whether the proceedings against the husband under section 132(5) of the Act are valid or not, but irrespective of the validity of the proceedings, the evidence or testimo ny wherein the husband has asserted the ornaments and jewel lery to be his, cannot be wiped out and does not become non existent.
The aforesaid being the factual matrix, the High Court was pre eminently justified in declining to direct return of these items of jewellery and other items to the wife.
If that is the position, then it cannot be said that the High Court has committed any error in law which required rectification by this Court under Article 136 of the Constitution.
[397E G] Assainer & Anr.
vs Income Tax Officer, Calicut, ; J.R. Malhotra & Anr.
vs Additional Sessions Judge, Jullunder, ; and Commissioner of Commercial Taxes, Board of Revenue, Madras vs Ramkishnan Shrikishan Jhaver, ; , distinguished.
|
ivil Appeal No. 565 of 1976.
629 From the Judgment and Order dated 5.8.1975 of the Bombay High Court in Special Civil Application No, 429 of 1970.
K. Rajgopal, pardeep Rajgopal, Ms. Rekha Rajgopal M.S. Ganesh and section Sukumaran for the Appellant.
Dr. V. Gauri Shankar, M. Arora and Ms. A. Subhashini for the Respondent, The Judgment of the Court was delivered by KULDIP SINGH, J.
The appellant company carries on the business of exporting manganese ore to England and United States of America.
The Income Tax Officer, Nagpur issued a notice dated March 20, 1970 under Section 148 of the Income Tax Act, 1961 (hereinafter called the 'Act ') stating that he had reasons to believe that the income of the appellant chargeable to tax for the assessment year 1953 54 had es caped assessment within the meaning of Section 147 of the Act.
The company was called upon to show cause why it should not be re assessed to.
income for the said year.
The appel lant company challenged the notice by way of writ petition under Article 226/227 of the Constitution of India before the Nagpur bench of the Bombay High Court.
The High Court by its judgment dated August 5, 1975 dismissed the writ peti tion with costs.
This appeal via special leave petition is against the said judgment of the High Court.
The relevant facts are hereinafter.
The appellant: is a non resident company having its office in London.
It has its office in India at Nagpur.
The appellant is assessed to income tax at Nagpur and it has been the practice of the ,appellant company to produce before the Income Tax Officer the relevant books which are kept by the local office at Nagpur, the balance sheets, the trade account and the prof it/ loss account from their head office in London.
It ap pears that sometime in 1958 the customs authorities came to know that the appellant company had declared very low prices in respect of all the consignments of manganese ore exported by them out of India.
It was also found that most of the export was only to three buyers who in turn did not purchase manganese ore from any other company except the appellant.
After due enquiries investigation the custom authorities found that the appellant was systematically showing lesser value for the manganese ore exported as com pared with the prevailing market price for the same grade of manganese ore.
630 The Collector, Customs, Visakhapatnam, by an order dated March 2, 1959 held that there was under invoicing by the appellant to.
the tune of Rs.78 lacs.
The said order of the collector was, however, set aside in appeal and the matter was remanded to the Collector for re hearing.
In the final order passed by the Collector of Customs dated November 16, 1972, under invoicing was shown to the tune of about Rs.44/45 lacs.
It is thus obvious that the custom authori ties came to the conclusion that the prices mentioned in the relevant contracts between the appellant and the buyers were lesser than the contemporaneous market prices.
The custom authorities thus found as a fact that the appellant company was indulging in under invoicing.
The Income Tax Officer, on coming to know about the pendency of proceedings before the Collector of Customs, issued a notice dated March 20, 1970 under Section 148 of the Act.
In the notice the reasons on the basis of which he entertained the necessary belief as required under Section 147 of the Act, were not given, however, alongwith the return filed on behalf of the revenue before the High Court, the reasons which led to the issue of notice under Section 148 on the grounds mentioned under Section 147(a) of the Act were disclosed.
It is not disputed that the reasons need not be set out in the notice and the same can be produced before the court.
Section 147 of the Act provides for assessment or re assessment in cases where income has escaped assessment.
The Revenue 's right to take action under the section is subject to the conditions laid down therein.
The requisite condi tions provided under Section 147(a) at the relevant time were as under: The income tax officer should have reason to believe that income has "escaped assess ment" by reason of omission or failure on the part of the assessee: (i) to make return of his income under the relevant provisions of the Act; or (ii) to disclose fully and truly all material facts necessary for his assessment for the year.
SeCtion 147(b) of the Act on the other hand required that 'the Income Tax Officer should have, in consequence of information in .his possession reason to believe that income has "escaped assessment".
631 It is not disputed in the year 1970 the Income Tax Officer had no jurisdiction to issue notice under Section 148 on the grounds contained under Section 147(b) of the Act as the period of limitation for the issue of such notice provided under the Act had expired.
There was however no bar at that point of time to issue the said notice on the grounds under Section 147(a) of the Act.
Mr. V. Rajagopal, Senior Advocate, learned counsel for the appellant has contended that the Income Tax Officer could not have reason to believe that there was omission or failure on the part of the appellant to disclose fully and truly all material facts necessary for the assessment and that 'the income chargeable to tax had escaped assessment.
According to him, it was not the practice with the appellant to produce the account books from their head office in London before the Income Tax Officer.
The appellant company produced before the Income Tax Officer the balance sheets, profit and loss account and all other necessary records required for the purpose of assessment.
According to the learned counsel the only material before the Income Tax Officer was the original order of the Collector of Customs wherein it was held that the appellant had indulged in under invoicing, resulting in declaring lesser price than the prevailing market price.
The learned counsel contended that the order of the Collector could at the most be an information within the ambit of Section 147(b) of the Act but it could not be the basis or the reason to entertain the belief as requires under Section 147(a) of the Act.
The only question which arises for our consideration is whether the two conditions required to confer jurisdiction on the Income Tax Officer under Section 147(a) of the Act have been satisfied in this case.
The first is that the Income Tax Officer must have reason to believe that the income chargeable to income tax had been under assessed and the second that Such under assessment has occurred by reason of omission or failure on the part of the assessee to dis close fully and truly all material facts necessary for its assessment for the year 1953 54.
So far as the first condition is concerned, the Income Tax Officer, in his recorded reasons, has relied upon the fact as found by the Custom Authorities that the appellant under invoiced the goods he exported.
It is no doubt correct that the said finding may not be binding upon the Income Tax Authorities but it can be a valid reason to believe that the chargeable income has been under assessed.
The final outcome of the proceedings is not relevant.
What is relevant is the existence of reasons to make the Income Tax Officer believe that there 632 has been under assessment of the assessee 's income for a particular year.
We are satisfied that the first condition to invoke the jurisdiction of the Income Tax Officer under Section 147(a) of the Act was satisfied.
As regards the second condition the appellant did not produce the books of accounts kept by them at their head office in London nor the original contracts of sale which were entered into at London with the buyers.
The appellant did not produce before the income Tax OffiCer any of the accounts which related to the foreign buyers.
No reasons Were given for the supply of manganese ore at a lower than the market rate.
It is for the assessee to disclose all the primary facts before the Income Tax Officer to enable him to account the true income of the assessee.
The proven charge of under invoicing per se satisfy the second condition.
The appellant 's assessable income has to be determined On the basis of the price received by it for the goods exported.
If the true price has not been disclosed and there was underin voicing the logical conclusion prima facie is that there has been failure on 'the part of the appellant to disclose fully.and truly all material facts before the Income Tax Officer.
We are therefore, satisfied that both the condi tions required to attract the provisions of Section 147(a)have been complied with in this case.
Mr. V. Rajagopal further argued that in fact the notice was issued under Section 147(b)of the ACt and not under Section 147(a) of the Act.
We are unable to accept this contention.
Although the notice only mentioned Section 147 of the Act without indicating whether it was under Section 147(a) or 147(b), but the reasons recorded by the Income Tax Officer on February 26, 1970 which run into more than 20 pages specifically state that the proposed action was under Section 147(a) of the Act.
Even otherwise we are satisfied that the material on the record and the reasons recorded by the Income Tax Officer justify the issue of the notice under Section 147(a) of the Act.
We therefore, dismiss the appeal with costs which we quantify as Rs. 15,000.
N.P.V. Appeal dis missed.
| The appellant, a non resident company, was carrying on the business of exporting manganese ore, and was assessed to income tax for the assessment year 1953 54.
Subsequently, on coming to know that proceedings for under invoicing were pending against the appellant before the Customs Authori ties, the respondent, the Income Tax Officer issued a notice under Section 148 of the Income Tax Act, 1961 to the appel lant stating that he 'had reasons to believe that the income of the appellant chargeable to, tax for the assessment year 1953 54 had escaped assessment within the meaning of Section 147 of the Act and called upon the appellant to show cause as to why it should not be re assesseed to income.
The appellant 's writ petition challenging the notice was dis missed by the High Court.
In the appeal before this Court on behalf of the appel lantcompany, it was contended that the only material before the Income Tax Officer was the original order of the Collec tor of Customs wherein it was held that the appellant had indulged in under invoicing, resulting in declaring lesser price than the prevailing market price, which could at the most he an information within the ambit of Section 147 of the Act, but could not be the basis or the reason to enter tain the belief, as required under Section 147(a) of the Act and that the notice had been issued under Section 147(b) and not under Section 147(a).
Dismissing the appeal, this Court, HELD: 1.1 Two conditions are required to confer juris diction on the Income Tax Officer under Section 147(a) of the Income Tax Act, 1961.
The first is that the Income Tax Officer must have reason to. 628 believe that the income chargeable to income tax had been underassesseed and the second that such under assessment has occurred by reason of omission or failure on the part of the assessee to disclose fully and truly all material facts necessary for its assessment for the year 1953 54.
[631F] 1.2 In the instant case, the Income Tax Officer in his recorded reasons, has relied upon the facts as found by the Customs Authorities that the appellant under invoiced the goods he exported.
Though the said finding may not be bind ing upon the Income Tax Authorities, it can be a valid reason to believe that the chargeable income has been under assesseed.
The final outcome of the proceedings is not relevant.
There should be existence of reasons to make the Income Tax Officer believe that there has been under assess ment of the assessee 's income for a particular year.
Thus, the first condition was satisfied.
Secondly, the appellant company did not produce the books of accounts kept by it at its head office located outside the country, nor the origi nal contracts of sale which were entered into with the buyers at that place, or .any of the accounts which related to the foreign banks.
No reasons were given for the supply of manganese ore at lower than the market rate.
It is for the assessee to disclose all the primary facts before the Income Tax Officer to enable him to account the true income of the asessee.
Thus, the proven charge of under invoicing per se satisfies the second condition.
[631G H, 632A C] 1.3 The appellant 's assessable income has to be deter mined on the basis of the price received by it for the goods exported.
If the true price had not been disclosed and there was under invoicing, the logical conclusion prima facie is that there has been failure on the part of the appellant to disclose fully and truly all material facts before the Income Tax Officer.
In the circumstances, both the condi tions required to attract the provisions of Section 147(a) have been complied with.
[632D] 2.
Although the notice only mentioned Section 146 of the Act without indicating whether it was under SUb Section(a) or Sub.
Section (b) the reasons recorded by the Income Tax Officer specifically state that the proposed action was under Section 147(a)i of the Act.
Even otherwise, the material on record and the reasons recorded by IncomeTax Officer justify the issue of the notice under Section 147(a) of the Act.
[632F]
|
minal Appeal No. 245 of 1969.
Appeal by special leave from the judgment and order dated July 17, 1969 of the Mysore High Court in Criminal Appeal No. 111 of 1968 and Criminal Referred Case No. 2 of 1968.
K. M. K. Nair, for the appellant.
section section Javali and section P. Nayar, for the respondent.
The Judgment of the Court was delivered by Dua, J.
The appellant was convicted by the Sessions Judge, Shimoga, under section 302, I.P.C. for the murder of one Govindappa, a village postman and was awarded capital sentence.
He was also held guilty of an offence under section 201, I.P.C. and sentenced to rigorous imprisonment for 7 years.
The High Court of Mysore confirmed the conviction and sentence under section 302, I.P.C. It also upheld his conviction under section 201, I.P.C. but set aside the sentence on this count observing that when a person is convicted both under section 302 and section 201, I.P.C. it is undesirable to pass separate sentence for both offences.
In this appeal with, special leave the appellant challenges his conviction and sentence under section 302, I.P.C. The appellant was tried, along with Laxmamma (accused No. 2) wife of the deceased Govindappa and her mother Gangamma (accused No. 3) wife of late Mylappa.
The two women were charged with abetment of murder and were acquitted by the trial court.
We are not concerned with them in this appeal.
There is no eye witness in the case and the courts below have accepted the prosecution story on circumstantial evidence.
The question before us is whether the circumstantial evidence accepted by the courts below establishes the murder of the deceased by the appellant beyond reasonable doubt.
The prosecution story may now be stated.
The deceased, Govindappa resident of Kommanal village in Shimoga Taluk worked as Extra Departmental Delivery Agent in the postal department.
He was attached to the post 217 office at Kommanal and was in common parlance called a postman.
G. Sangaiah (P.W. 1) resident of village Abbalagere worked as an Assistant School Teacher in Kommanal.
The distance between the two villages is 1 3/4 miles.
P.W. 1 also worked as Branch Postmaster in Kommanal, and was called Extra Departmental Postmaster.
According to him the duties of the deceased were to bring the postal bags from the M.M.S. Bus on the main road in the morning at about 8.30 a.m. and after the bags were opened by P.W. 1 to deliver the postal articles to their respective addressees.
At about 4.30 p.m. he would return to the post office to take the postal bags to the Mail Service Bus.
Six villages were, attached to this post office.
The deceased used to deliver postal articles in two groups of three villages each on alternate days.
On July 21, 1967 at about 10 a.m. the deceased received the postal articles from P.W. 1 for, delivering them to the addressees in, villages Kittadal, Kunchenhalli and Bikkonahalli.
The articles to be delivered included two registered letters addressed to Krishna Naika and Halanaika of Kittadal.
At about 3.30 p.m. the deceased returned and told P.W. 1 that the addressees, having gone to their fields, were not in the village, and that he would again try to deliver the. registered articles to them.
The deceased took the postal bags from the post office for delivery to the Mail bus.
He did not return to duty thereafter.
As the deceased had been in the service of the post office for nearly 32 years, P.W. 1 did not suspect his bona fides.
On July 22, 1967 P.W. I went to the house of the deceased but did not find him there.
Thinking that the deceased might have been unavoidably held up somewhere P.W. 1 in addition to his own duties performed those of the deceased as well on that day.
On July 23, P.W. 1 went to village KittadaJ to inquire about the delivery of the registered articles to the addressees.
There he learnt from Krishna Naika (P.W. 15) that on July 21, 1967 the deceased had delivered to him.
the registered article at about 6 p.m. P.W. 15 on being questioned by the court gave the time of delivery to be about 4 p.m.
But this differences as to time, in the opinion of the trial court, was due to the fact that the witness had no precise idea of time.
After having waited for another day on July 24, 1967 P.W. I reported to the Postal Inspector, Shimoga Circle about the disappearance of the deceased exhibit P 1 is this report.
P.W. I informed the Postal Inspector of the steps taken by him in his search for the deceased.
Those steps included the inquiries made by him from the addressees of the registered letters which had been delivered by the deceased.
P.W. I had looked at those registered letters and left instructions for their production when required.
It was further reported that the receipts L11 Sup.
CI 15 218 pertaining to the delivery of RL No. 456/Udipi, and RL No. 825/Udipi and the visit book had not been returned by the deceased to the post office.
A request was made by P.W. 1 for the appointment of someone in place of the deceased so that the registered articles received on the 24th and 25th July, 1967 be ,delivered to their respective addressees.
The Postal Inspector was asked to visit Kommanal for making the necessary arrangements.
This report reached the Inspector (S.W. Pawar, P.W. 2) on July 26, 1967 and he visited Kommanal on July 27, 1967.
There he collected four Panchayatdars and examined Laxmamma, the wife of the deceased.
The same day he submitted his report, exhibit P 3, to the Sub Inspector of ' Police, Kasaba Police Station, Shimoga, attaching with it a copy of the report of P.W. 1, and also a copy of the statement of LaxmaMma.
in this report all the relevant facts were stated.
The important thing to be noted about this report is that according to it the deceased had two keys of letters boxes fixed at Kunchenhalli and Somanakoppa.
The duplicate keys of these locks were, however, available with P.W. 1.
This report was sent because, according to P.W. 2, neither the wife of the deceased nor anyone else from the village had reported to the police about the disappearance of the de ceased While investigation into the fact of disappearance of the deceased pursuant to this report was going on, it appears that Bheema Naika, (P.W. 3), resident of Kommanal while grazing his cattle near Ayanoor forest sensed some foul smell from a spot near 'Korakalu '.
On going closer, he saw, what appeared to him to be, a human skeleton with Khakhi half pants, khakhi shirt and belt and a pair of chappals.
He got frightened and reported to the village patel about what he had seen.
As it was late in the evening the patel did not go to the spot that day.
The following morning, August 4, 1967, P.W. 3 took the pate (Shankargowda, P.W. 12) and some others to the spot and showed them what he had seen.
The pate then reported the matter to the Sub Inspector of Police, Shimoga Taluk (exhibit P 11) Investigation then appears to have started for establishing the identity of the dead body, the cause of his death and, if his death was considered to be homicidal, who was the offender.
As a result of the investigation the three accused persons, as observed earlier, were sent up for trial.
The three questions requiring consideration by us relate to the identity of the dead body represented to be of the deceased, the cause of the death and whether the appellant has committed the murder.
In so far as the question of identity is concerned, there can hardly be any doubt that the skeleton was that of the deceased.
The Khakhi shirt, exhibit M.O. 1 and the half pant exhibit M.O. 2 have 219 been identified by P.W. 1 as the uniform given to the deceased. ' The visit book (exhibit M.O. 5) is also proved by P.W. 1 to have been delivered to the deceased The two postal acknowledgments entrusted to the deceased with the registered articles (exhibit M.O. 6) and the two duplicate keys (Exs. MO 3) of the locks of the post boxes at Kunchenhalli and Somanakoppa have also been identified and proved by P.W. 1.
All these articles were recovered from near the dead body.
This evidence leaves little doubt that the skeleton was of the deceased.
Some doubt was sought to be created on the question whether the bones found at the spot were those of a human body.
But on this point the testimony of Dr. Shambulingaswami, Assistant Surgeon, Mccann Hospital, Shimoga (P.W. 26) is clear and it establishes beyond doubt that the bones found were those of a human being.
For the present we are leaving out of consideration the evidence of Ganga (P.W. 4) and the oral confession made by the appellant to this witness.
We will deal with that witness a little later Turning to the question whether the deceased died a natural death or his death was homicidal, Dr. Ramu, Associate Professor of Forensic Medicine , Bangalore Medical College, was required to examine this question and the skeleton concerned was forwarded to him.
His report (exhibit P 20) records.
the following opinion "I am of opinion that (a) all the bones sent are of ' human origin and appear to belong to the same individual; (b) the bones belong to a male; (c) the age of the person is between 25 35 years; (d) the height of the person is about 5 feet 6 inches one inch; (e) the cause of death is due to external violence; (f) the time since death is about 4 8 weeks from the date of examination.
" This report is dated August 30, 1967.
When Dr. Ramu appeared as a witness he was cross examined by the counsel for the, appellant.
A suggestion was thrown that, the dead body might have been bitten by wild animals.
This suggestion was denied by the witness who replied that the gnawing by the wild animals would result in irregular surface which was not the case in respect of the bones sent to him.
The witness also refuted the suggestion that the base of the skull in question could have been fractured by a violent fall.
The fracture of bones caused by wild animals trampling on them was also stated by the witness to be different in 220 nature from the fractures which were found in the present case.
The doctor was clearly of opinion that the injuries caused to the bones sent to him for examination were ante mortem and not postmortem.
On being questioned by the court the doctor replied that at least two blows must have been given to the deceased, one on the nape of the neck and the other on the left cheek.
He further stated that the spinal cord must have been cut and completely severed because the two pieces M.O. 18 and M.O. 18 (a) were completely severed and this result could not have come about without the spinal cord being cut.
The injury on the base of the skull, he continued, must have been the result of a very hard blow and this was by itself sufficient in the ordinary course of nature to cause death.
The man whose bones were sent to him, must, according to the doctor, have been brutally attacked with a sharp cutting instrument.
This evidence, in our opinion, convincingly establishes that the deceased was the victim of grievous assault as a result of which he died and the courts below were quite right in so concluding.
We now come to the question whether it, was the appellant who committed the murder.
It is in evidence that the deceased was last seen in the company of the appellant at about 4.30 p.m. when the deceased had gone to deliver the mail bags to the bus.
At about 3.30 p.m., according to P.W. 1, the deceased had gone to the post office and taken the postal bags to be delivered to the Mail Bus, M.M.S. Bus Service.
He had also told the witness that he would again try to contact Krishna Naika and Halla Naika of Kittadal for delivering the registered articles.
Chennabasappa (P.W. 16) has also deposed that he saw Govindappa and the appellant delivering the mail bags to the bus after they had taken coffee in the hotel near the bus stop that evening.
P.W. 9, the brother of the appellant who was also at the bus stop that evening saw the deceased and the appellant travelling in the same bus.
Gangamma (P.W. 8), the wife of the brother of the deceased who lives in a portion of the same house in which the deceased lived.
has stated that she saw the deceased on Friday evening at about 4.30 p.m. with the appellant going from their house towards the post office building.
The appellant was at that time carrying an axe on his shoulder.
The demeanor of this witness was described by the trial court as natural.
Sulochana, an eleven year old daughter of the deceased, appeared as P.W. 10 and stated that on Friday, the day her father disappeared, at about 4.30 p.m. he left the house to deliver the mail bags.
At about 5 p.m. the appellant took an axe from her mother and proceeded towards the 'Post office.
At about 8 p.m. the appellant returned home.
According to this witness four or five days earlier, the appellant had suggested to the deceased to accompany him to the forest area for bringing 221 teak logs so as to be able to make some money.
People of village Haramghatta required teak logs and the deceased, according to the suggestion, could earn at least Rs. 151.
The deceased first expressed his inability to spare time from his official duties but the suggestion, could earn at least Rs. 151 .
The deceased first expresed his inability to spare time from his official duties but the suggestion having been repeated the deceased ultimately agreed.
This witness, though being only 1 1 years old was not administered oath, created a favourable impression on the trial court as is obvious from the following note "The witness gave her evidence without faltering or visible signs of hesitancy.
She speaks clearly, precisely and straight to the question.
" The trial court also interrupted the witness in the middle of her testimony, in order to satisfy itself, by breaking the continuity of the story, that she was not reproducing a tutored version.
On going through her statement we are satisfied that she is a truthful witness and her evidence deserves to be accepted and was rightly accepted by the courts below.
There is in our opinion, cogent and trustworthy evidence.
to support the conclusion of the courts below that the deceased was last seen with the appellant a short time before his disappearance.
Having upheld this conclusion, we may appropriately examine the appellant 's explanation.
He has merely denied, by expressing his ignorance, that the deceased had been last seen alive with him.
In fact he has simply described as false all the material allegations including that of his acquaintance with Laxmamma and that he used to stay in Kommanal.
This bare denial without any explanation is not wholly unimportant.
This takes us to the motive for the appellant to get rid of the deceased.
There can be little doubt on the evidence on the record that the appellant had developed close intimacy with the wife of the deceased.
The evidence of Gangamma (P.W. 8), wife of the brother of the deceased who, it may recalled, lives in one portion of the ancestral house owned by the two brothers, is quite clear on the point.
Laxmamma, the wife of the deceased, used to run her shop in the other half of the same house.
P.W. 8 was, therefore, in a position to know about the appellant 's frequent visits to that shop.
According to her the appellant sometimes used to take his food in Laxmamma 's house and also to sleep there.
This was due to their intimacy.
Though many customers used to come to that shop no one ever stayed on in the house except the appellant.
P.W. 8 has also deposed that the deceased and his wife used to quarrel with each other and the deceased used to 222 protest against her feeding the appellant and neglecting him in the matter of food.
To this Laxamma used to report that the deceased did not provide her with enough money for that purpose whereas the appellant did.
The suggestion that her husband and the deceased had quarrelled over partition of a field was repudiated by her.
The trial court was favourably impressed by the demeanor of this witness as well.
P.W. 9, the brother of the deceased, has also stated about the quarrels between the deceased and his wife.
He has deposed : "My brother and his wife A2 were often quarreling bitterly.
That was after Ugadi of last year.
lie used to complain to his wife that she was not cooking food at the proper time.
A2 in turn used to reply that he was not supplying her with provision and therefore he could not expect her to cook food in time.
He sometimes used to thrash A2.
She would weep and sleep away.
When my brother used to go away without food, I used to invite him to take his food.
Sometimes he used to take his food in my house.
After the last Ugadi, Thimma (A1) 's visit and stay in my brother 's house increased.
Al and A2 used to go together for work.
They used to go to Nyamathi Shandy to fetch goods.
Al used to carry the goods back to Komminal from Nyamathi.
Two days prior to the disappearance of my brother there was a bitter quarrel between A2 and himself.
During that quarrel, Govindappa questioned A2 how Al remained under his roof and that she fed him and that by the time he returned, there was nothing left for him.
A2 replied that he earns and supplied the provi sions and therefore she was feeding him whereas he (Govindappa) did not supply the provisions and consequently she did not look after him.
The quarrel resulted in severe beating of A2 by my brother.
A2 never served him food.
" From this evidence the motive on the part of the appellant to do away with the deceased is obvious.
We now turn to the extra judicial confessions of the appellant and his conduct on the day following the disappearance of the deceased.
Ganga (P.W. 4) is a nephew of the appellant, being the son of his elder brother.
The appellant, according to this witneSS, had taken up a contract of uprooting plants and trees so as to render the land cultivable.
This witness used to visit Laxmamma 's shop when he was working at Kommanal and he 223 also knew the deceased.
On Saturday following the day when the deceased had disappeared, in the early hours of the morning a little before sunrise. the appellant went to the house of the witness in Bodekanna colony near Kommannal and woke him up.
As the witness began to tether his bullocks the appellant went to, his father 's house nearby.
After, a short while the appellant returned and told the witness that the previous evening he had gone to the field of one Mahadevappa and had lost his purse containing Rs. 200/ .
The appellant desired the witness to accompany him to find the lost purse.
On their way through the forest by the side of the hill they met one Sivappanavar Basappa (P.W. 13) on whose enquiry as to what had brought them there so early, the appellant replied that he had some work in the fallow land of Mahadevappa .
On reaching the 'Korakalu ' which was about 2 1/2 ft.
deep, the witness saw the dead body of Govindappa.
The dead body was lying flat on its back and the witness observed injuries on the neck, face and chest of the deceased.
He also saw near the dead body Khakhi shirt (M.O. 1), Khakhi half pants (M.O. 2), a pair of chappals (M.O. 7), a plaster belt (M.O. 8) and banian (M.O. 10).
The appellant then pulled the red waist thread (M.O. 10) worn by the deceased and as he took it into his hands, a pair of small keys (M.O. 3 A) were noticed by the witness.
The appellant remarked that those were not the keys he wanted.
So saying he threw away the thread, the keys and a talisman (M.O. 11) which was also found there.
Directing the witness to keep a watch from a higher elevation the appellant cut some branches of the trees and after collecting some twigs covered the dead body with them.
After picking up some papers the appellant and the witness started on return journey.
After covering some distance the appellant threw away the papers in a bush.
The appellant told the witness that he had killed the deceased with the sickle (matchu) given by the wife of the deceased and that the same had been thrown away by him in a bush.
As they reached the main road the appellant warned the witness not to disclose to anyone what he had seen and learnt, otherwise he was threatened with the same fate as the deceased had met.
The trial court was not favourably impressed by the testimony of Ganga (P.W. 4) though it felt convinced that on the day following the disappearance of the deceased he had knowledge both of the commission of the offence and of the place where the dead body was lying.
That court did not rely _on his testimony in regard to the extra judicial confession because it was considered incredible.
The High Court on appeal disagreed with the trial court in its appreciation of the evidence of P.W. 4.
According to the High Court the evidence of P.W. 4 was corroborated by the evidence of P.W. 13 and P.W. 25.
The extra judicial confession was, 224 therefore, held to be admissible and trust Worthy.
Before us it was contended, that the extra judicial confession said to have "been made to P.W. 4 is inadmissible and in any event without corroboration in material particulars from independent source it is unsafe to act upon it.
It was emphasised that P.W. 4 was at one stage of the investigation suspected of complicity in this murder and, therefore, he should be treated no better than an accomplice.
In our opinion, this criticism is not justified.
An unambiguous confession, if admissible in evidence, and free from suspicion suggesting its falsity, is a valuable piece of evidence which possesses a high probative force because it emanates directly from the person committing the offence.
But in the process of proof of an alleged confession the court has to be satisfied that, it is voluntary, it does not appear to be the result of inducement, threat or promise as contemplated by section 24, Indian Evidence Act and the surrounding circumstances do not indicate that it is inspired by some improperly or collateral consideration suggesting that it may not be true.
For this purpose, the court must scrutinise all the relevant factors, such as, the person to whom the confession is made, the time and place of making it, the circumstances in which it is made and finally the actual words.
In the case in hand it is quite clear that P.W. 4 is not a person in authority.
There can thus be no question of any inducement, threat or promise rendering the confession irrelevant.
Nor has any cogent reason ' been suggested why the appellant should have made an untrue confession to P.W. 4 within 24 hours of the disappearance of the deceased.
On the other hand, the appellant appears to have been impelled by some inner urge to take the assistance of P.W. 4, his real nephew, to go to the place of occurrence to see as to what had happened to the dead body of his victim.
Such behaviour cannot be considered unnatural.
The confession appears to us to be free from any taint which would throw suspicion on its voluntary character and it has a ring of truth in it.
The fact that during the investigation P.W. 4 was suspected of being involved in the murder would also not cast any doubt on the voluntary character of the confession or on its true nature because it is the knowledge of P.W. 4 derived from this very confession which perhaps invited suspicion on him.
We do not consider this to be a cogent ground for holding that P.W. 4 had any motive to concoct the story of confession.
This confession is, therefore, admisible in evidence and being true, deserves to be acted upon.
The words used are quite clear and 'admit of no doubt of the appellant 's guilt.
And then though the evidence of P.W. 4 does not need any corroboration we find that corroboration in material particulars is forthcoming on the record.
The existence of the dead body and all the other articles at the place where they were later found and the evidence of Basappa (P.W. 13) which proves the visit of the 225 appellant and P.W. 4 to the spot on Saturday following the disappearance of the deceased furnish strong corroboration.
The High Court was thus quite right in relying on the extra judicial confession made to P.W. 4.
The confessions said to have been made to P.W. 31 and to Abdul Rahman (P.W. 22) stand on a different footing.
Both the courts below have not considered it safe to rely on these confessions and we do not find any sufficient reason for disagreeing with them.
Reliance on behalf of the prosecution was also placed on the information given by the appellant which led to the discovery of the dead body and other articles found at the spot.
It was contended that the information received from him related distinctly to the facts discovered and, therefore, the statement conveying the information was admissible in evidence under section 27 of the Indian 'Evidence Act.
This information, it was argued, also lends support to the appellant 's guilt.
It appears to us that when P.W. 4 was suspected of complicity in this offence he would in all probability have disclosed to the police the existence of the dead body and the other articles at the place where they were actually found.
Once a fact is discovered from other sources there can be no fresh discovery even if relevant information is extracted from the accused and courts have to be watchful against the ingenuity of the investigating officer in this respect so that the protection afforded by the wholesome provisions of sections 25 and 26 of the Indian Evi dence Act is not whittled down by mere manipulation of the record of case diary.
It would, in the circumstances, be somewhat unsafe to rely on this information for proving the appellant 's guilt.
We are accordingly disinclined to take into consideration this statement.
The trial court and the High Court have also been influenced by the fact that the appellant had absconded after September 1, 1967 when the police got suspicious of his complicity in this offence.
It is true that the appellant did make himself scarce with effect from September 1, 1967 till he was arrested on September 5, 1967 and this conduct is relevant under section 8 of.
the Indian Evidence Act and might well be indicative to some extent of guilty mind.
But this is not the only conclusion to which it must lead the court.
Even innocent persons may, when suspected of grave crimes, be tempted to, evade arrest: such is the instinct of self preservation in an average human being.
We are, therefore, not inclined to attach much significance to this conduct on the peculiar facts and circumstances of this case.
In this case the appellant being a pauper was provided with counsel at State expense in the trial court.
The entire prosecution case depends on circumstantial evidence and the dead body 226 was actually recovered in a decomposed state when it was not capable of identification.
In view of these peculiar features we undertook to examine the evidence ourselves, a course which this Court as a matter of settled practice, does not ordinarily adopt.
We are satisfied that the evidence on the record establishes the appellant 's guilt beyond reasonable doubt and the courts below were quite right in convicting him.
On the question of sentence also we do not find any cogent ground for interference.
This appeal fails and is dismissed.
Y.P. Appeal dismissed.
| Gift tax was levied under the Gift Tax Act, 1958, on gifts, of coffee plantations, paddy and other agricultural lands and buildings, made by the respondents.
The Gift Tax Act was enacted by Parliament but there is no entry in the Union or Concurrent Lists mentioning such a tax.
The High Court held that Parliament was not competent to enact a law impos ing a gift tax on lands and buildings, because, entries 18 and 49 of the State List reserved the power to State Legislatures.
On appeal to this Court.
HELD : The Constitution divides the topics of legislation into three broad categories : (a) entRies enabling laws to be made, (b) entries enabling taxes to be imposed, and (c) entries enabling fees and stamp duties to be collected.
The taxes are separately mentioned and contain the whole of the power of taxation, except entry 97 of the Union List under which, Parliament ha, , exclusive power to make a law in respect of any matter not enumerated in the Concurrent or State Lists and the power includes the power of making a law imposing a tax not mentioned in either of the Lists.
[199 G H] Entry 18 of the State List dealing with 'land ', though very wide, does not therefore confer any power of taxation and cannot authorise a tax not expressly mentioned.[199 H] Entry 49 of the State List contemplates a tax directly levied bY reason of the general ownership of lands and buildings.
But the pith and substance of the Gift Tax Act,is to place the tax on the gift of property which may include land, and buildings.
It is not a tax imposed directly upon lands and buildings but is a tax upon the value of the total gifts made in a year which is above the exempted limit.
The lands and buildings are valued only as a measure of the value of the gift and what is taxed is the gift.
A gift tax is thus not a tax on lands and buildings as such but is a levy upon a particular use, namely, the transmission of title by gift.
[200 A E] There being no other entry in the State List which might cover a gift tax, the residuary powers of Parliament under article 248, and entry 97 of the Union List, could be exercised by Parliament to enact the law.
[200 E F] Sudhir Chandra Nawn vs Wealth Tax Officer, Calcutta & Ors. followed.
section Dhandapani vs Addl.
Gift Tax Officer, Cuddalore, , Shyam Sunder vs Gift Tax Officer, A.I.R. 1967 All. 19, Jupadi Sesharatnam vs Gift Tax officer, Palacole, and Joseph vs Gift Tax, Officer, , approved.
|
l Appeals Nos.
1764 to 1767 of 1967.
Appeals from the judgment and decree dated January 17, 1964 of the Allahabad High Court in Income tax Reference No. 193 of 1955.
C.K. Daphtary, Attorney General, R. Gopalakrishnan, R.N. Sachthey and B.D. Sharma, for the appellant (in all the appeals).
M.C. Chagla and R.P. Kapur for 1.
N. Shroff, for the respondent (in C.A. No. 1764 of 1967).
R.P. Kapur for 1.
N. Shroff, for the respondent (in C.As.
1765 to 1767 of 1967).
The Judgment of the Court was delivered by Shah, J.
M/s. Madan Gopal Radhey Lal hereinafter called the assessees deal in shares and securities.
They held in the relevant years as part of their stock in trade shares of certain companies.
The assessees received from the Companies at different times bonus shares proportionate to their equity holding.
From time to time the assessees sold the bonus shares received by them.
The Income tax Officer brought to tax Rs. 55,607 in the assessment year 1946 47; Rs. 41,625 in the assessment year 1948 49; Rs. 1,43,050 in the assessment year 1949 50 and Rs. 33,170 in the assessment year 1950 51 being the sale proceeds of the bonus shares, holding that those receipts represented income of the assessee arising from their business in shares.
The order of the Income tax Officer was confirmed by the Appellate Assistant Commissioner and by the Income tax Appellate Tribunal.
At the instance of the assessees, the Tribunal referred the following question of law to.
the High Court of Allahabad for opinion: "Whether the sale proceeds of bonus shares which had been issued in respect of shares which formed part of the assessee 's stock in trade of the share dealing business are liable to inclusion in the assessee 's total incomes for the respective years as profits of the share dealing business?" The High Court called for a supplementary statement of case.
Full Bench of the High Court (Manchanda, J., dissenting) ans 9 wered the question in the negative.
The Commissioner has appealed to this Court with certificate granted by the High Court.
The Articles of Association of the various Companies which had issued the bonus shares.
are not on the record.
It has been assumed that the Companies had issued bonus shares in exercise of the power conferred upon them by the ArtiCles of Association, and no argument has been raised in that behalf.
A company when authorised by its Articles of Association may convert its accumulated profit into capital and then utilise such profit by issuing additional shares.
by way of bonus to the shareholders.
Under the Income tax Act, 1922, at the relevant time, issue of such bonus shares by capitalisation of the accumulated profit was not treated as distribution of dividend.
In commissioners of Inland Revenue vs John Blott(1) the House of Lords (by majority) held that bonus shares issued by a Company in exercise of the power under the Articles of Association are not dividend, and therefore not income of the shareholder.
Viscount Haldane observed at p. 126: " .
I think that it is a matter of principle within the power of an ordinary joint stock company with articles such as those in the case before us to determine conclusively against the whole world whether it will ' withhold profits it has accumulated from distribution to its shareholders as income, and as an alternative, not distribute them at all, but apply them in_ paying up the capital sums which shareholders electing to take up unissued shares could otherwise have to contribute.
If this is done, the money so applied is capital and never becomes profit in the hands of the shareholder at all.
What the latter gets is no doubt a valuable thing.
But it is a thing in the nature .of an extra share certificate in the company.
His new shares do not give him an immediate right to a larger amount of the existing assets.
These remain where they were.
The new shares simply confer a title to a larger proportion of the surplus.
assets if and when a general distribution takes place, as in the winding up.
In these assets, the undistributed profits now allocated to capital, will be included profits which will be used by the company for its business, but henceforth as part of its issued share capital.
" Similarly Lord Cave observed at p. 135: "The profits remained in the hands of the Company as capital, and the shareholders received a paper certificate as evidence of his interest in the additional capital (1) 2Sup.
C.I./69 2 10 so set aside.
The transaction took nothing out of the Company 's coffers, and put nothing into the shareholders ' pockets; and the only result was that the Company, which before the resolution could have distributed the profit by way of dividend or carried it temporarily to reserve, came thenceforth under an obligation to retain it permanently as capital.
It is true that the shareholder could sell his bonus shares, but in that case he would be realising a capital asset producing income, and the proceeds would not be income in his hands.
" The principle of the case was affirmed by the Judicial Committee in a case arising under the Indian Income tax Act, 1922: Commissioner of Income tax, Bengal vs Mercantile Bank of India and Others(1).
Accordingly bonus shares given by a Company in proportion to the holding of equity capital by a shareholder are, in the absence of any express provision to the contrary liable to be treated as capital and not income.
We are unable to agree with the judgment of the Bombay High Court (to which reference was made by the Tribunal) in Commissioner of Income tax, Central Bombay vs Maniklal Chunnifat and Sons Ltd., Bombay I.T. Reference No. 16 of 1948that bonus shares received by a shareholder who carries on business in shares and securities "ipso facto become accretion to his stock in trade." Bonus shares would normally be deemed to be distributed by the Company as capital and the shareholder receives the shares as capital.
The bonus shares are accretions to the shares in respect of which they are issued, but on that account those shares do not become stock in trade of the business of the shareholder.
A trader may acquire a commodity in which he is dealing for his own purposes, and hold it apart from the stock intrade of his business.
There is no presumption that every acquisition by a dealer in a particular commodity is acquisition for the purpose of his business: in each case the question is one of intention to be gathered from the evidence of conduct and dealings by the acquirer with the commodity.
Bonus shares having been received by the assessees in respect of their stock in trade did not therefore become part of their stock in trade, merely because they were accretions to the stock intrade.
The bonus shares were received as capital: they could be converted by the assessees into their stock in trade or retained as their capital asset.
The Tribunal observed in paragraph 5 of its order that "the assessee deals in shares and the sales proceeds of the bonus shares was (were) received by him in the course and as part of his share (1) 11 dealing business.
The amount received by the assessee is therefore part of his profit from the share dealing business and is liable to tax as such".
Counsel for the assessees contended that the Tribunal has not referred to any evidence in support of its conclusion and has made a cryptic statement which is not capable of the interpretation that the assessees had converted the bonus shares into their stock in trade.
If there is no presumption that the accretion to the stock in trade necessarily gets incorporated into the stock in trade, says Mr. Chagla, in the absence of evidence showing that the bonus shares were treated by the assessees as stock.in trade the finding of the Tribunal cannot be sustained Counsel invited our attention to the supplementary statement of case in which the Tribunal recorded that in the copies of balance sheets filed by the assessees as of February 14, 1948, March 8, 1949 and March 8, 1950, the shares did not find a place and that the sale proceeds of the bonus shares were credited in the capital account of the assessees for the four years in question on the last dates of the relevant accounting years.
But the Tribunal has found that the sale proceeds of the bonus shares were received in the course and as part of their business in shares and were on that account taxable.
It is.
somewhat unfortunate that the Tribunal has not set out in detail the facts found by it and the inference drawn therefrom.
Even in the supplementary statement no attempt has been made to set out the facts on which the conclusion was based.
The orders of the Income tax Officer and the Appellate Assistant Commissioner are also not before us.
The mere circumstance that in the copies of the balance sheets tendered by the assessees the bonus shares did not find a place has, in our judgment, no importance, and the credit entries in the capital account on the last dates of the respective accounting years in the four years in question also do not support an inference in favour of the assessees.
The question posed for the opinion of the Court was not whether the conclusion of the Tribunal was rounded on evidence, but whether the sale proceeds of the bonus shares were of the nature of revenue.
On this question an inquiry into whether the conclusion of the Tribunal is supported by the evidence cannot be made.
In India Cements Ltd. vs Commissioner of Income tax(x) this Court observed that in a reference under the Income tax Act the High Court must accept the findings of fact made by the Appellate Tribunal, and it is for the person who has applied for a reference to challenge these findings first by an application under section 66( 1 ).
If he has failed to file an application under section 66(1 ) expressly raising the question about the validity of the findings of fact, he is not entitled .to urge before the High Court that the findings are (1) 12 vitiated for one reason or another. 'The principle of that case applies here.
It is not open to the assessees to contend on the question, raised that the finding of the Tribunal is not supported by evidence.
The answer recorded by the High Court is discharged '.
The answer to the question submitted is in the affirmative.
No order as to costs of the appeal to this Court and of the reference ' in the High Court.
V.P.S. Appeal allowed.
| The assessee, a dealer in shares and securities, held as part of its stock in trade, shares of certain companies.
The assessee 'received from those companies, at different times, bonus shares proportionate to its equity holding.
On the question whether the sale proceeds of such bonus shares are liable to be included in the assessee 's total income as profits of the share dealing business, the Tribunal found that the sale proceeds of the bonus shares were received by the assessee in the course of and as part of its business in shares, and held that the proceeds were, on that account, taxable as income.
The High Court, on reference, held in favour of the assessee.
In appeal to this Court, HELD: (1 ) A trader may acquire a commodity in which he is dealing, for, his own purposes, and hold it apart from the stock in trade of his business.
There is no presumption that such an .acquisition, even if it is an accretion to the stock in trade of the business, is an acquisition for the purpose of his business: in each case the question is one of intention to be gathered from the evidence of conduct and dealings by the acquirer with the commodity.
Bonus shares given by a company in proportion to the holding of equity capital by a shareholder are, under the income tax Act at the relevant time (1946 50), liable to be treated as capital and not as income.
Therefore, the bonus shares received by the assessee did not become part of its stock in trade merely because they were accretion to its stock in trade.
[10 C, F, G] C.I.T. Central Bombay vs Maneklal Chunilal, I.T. Ref.
No. 16 of 1948 (Bombay High Court), disapproved.
C.I.T., Bengal vs Mercantile Bank of India, 4 I.T.R. 239(P.C.), applied.
Commissioner of Inland Revenue vs John Blottt, 8 T.C. 101 (H.L.) referred to.
(2) In the present case, however, the Tribunal found that the bonus shares, received as capital, were converted by the assessee into its stockin trade and were not retained as a capital asset.
The question posed for the opinion of the High Court was no whether the finding of the Tribunal was rounded on evidence, but whether the sale proceeds of the bonus shares were of the nature of revenue.
On this question, when the assessee had not filed any application under section 66(1) of the Income tax , expressly raising the question about the validity of the Tribunal 's finding of fact, the High Court must accept the finding and cannot enquire whether the finding is supported by evidence or not.
The High Court was therefore, not justified in interfering with the finding and conclusion of the Tribunal.
[11 D, F H] India Cements Ltd. vs
C.I.T., followed.
|
Appeal No. 1720 of 1986.
From the Judgment and Order dated 5.7.1985 of the Andhra Pradesh High Court in Writ Appeal No. 577 of 1985.
B. Kanta Rao for the Appellant.
K. Madhava Reddy and G. Prabhakar for the Respondents.
The Judgment of the Court was delivered by KANIA, J.
This is an appeal by Special Leave from the judgment of a Division Bench of the Andhra Pradesh High Court dismissing the Writ Appeal No.577 of 1985 filed in that Court.
Very few facts are necessary for the disposal of this ap peal.
The appellant is the owner of a plot comprising roughly 2 acres of land in Ramavarappadu village, Vijayawada Taluk, in the Krishna District in Andhra Pradesh.
The Government of Andhra Pradesh sought to acquire about 1 acre and 89 cents out of the aforesaid land for a public propose.
A Notifica tion under section 4(1) of the Land Acquisition Act, 1894 (hereinafter referred to as "the said Act") was published in the Government 117 Gazette on February 9, 1976.
The substance of the said notification was published in the locality where the land proposed to be acquired is situated, on April 2, 1978, long after the period of 40 days within which it was required to be published as per the provisions of section 4(1) of the said Act as amended by the Andhra Pradesh (Amendment) Act, 1983, (Act 9 of 1983).
Enquiry under section 5A of the said Act was dispensed with invoking the urgency clause as per section 17(4) of the said Act.
Notification under section 6 was published on the same day as the publication of the notification under section 4(1) of the said Act.
An inquiry was conducted regarding the fixation of compensation to be awarded to the appellant and others whose lands were ac quired under the said notification.
It appears that during the course of the said inquiry the appellant stated to the Land Acquisition Officer concerned that he was willing to agree to the land being acquired provided he was given compensation in a lump sum.
Probably the reason was that if the compensation was awarded in a lump sum without delay, the appellant might have been able to purchase some other land, as his holding was under the ceiling limit.
The aforesaid facts have been found by the Trial Court and accepted by the High Court.
On November 9, 1979, before any award was made, the consent to the acquisi tion of the land given by the appellant, as aforestated, was withdrawn by him and on May 14, 1981, the appellant filed a writ petition in the High Court questioning the validity of the land acquisition proceedings.
The learned Single Judge before whom the said writ petition along with another writ petition came up for hearing held that the appellant had agreed to the acquisition of the said land on compensation being paid as aforestated, and hence it was not open to the appellant to challenge the validity of the said notifica tions issued under section 4(1) and section 6 of the said Act.
It was held by him that the withdrawal of the said representation or consent by the appellant did not in any manner assist him.
The learned Judge dismissed the writ petition filed by the appellant without going into the merits of the aforesaid petition on the aforesaid basis.
This judgment was upheld by the Division Bench of the High Court which dismissed the aforesaid writ appeal.
It is the correctness of these decisions which is impugned before us.
In our view, the learned Single Judge and the Division Bench of the High Court of Andhra Pradesh were, with re spect, clearly in error in dismissing the respective writ petition and the appeal filed by the appellant on the ground that the appellant had stated that he was willing to accept the acquisition provided a lump sum compensation was awarded to him.
The statement of the appellant amounted in law to no more than an offer in terms of the Contract Act.
The said offer was never accepted by the Land Acquisition Officer to whom it was made.
Leave alone, making 118 the award of lump sum compensation, no award at all was made by the said officer awarding compensation to the appellant till November 9, 1979, when the aforesaid offer was with drawn by the appellant or even till the writ petition was filed.
Till the offer was accepted there was no contract between the parties and the appellant was entitled to with draw his offer.
There was nothing inequitable or improper in withdrawing the offer, as the appellant was in no way bound to keep the offer open indefinitely.
The writ petition, therefore, ought not to have been dismissed on the ground of the appellant having made a statement or consented as afore stated before the Land Acquisition Officer.
On the merits, it is clear that the acquisition of the land is bad in law because the substance of the notification under section 40) of the said Act was not published in the locality within forty days of the publication of the notifi cation in the Government Gazette.
The time limit of forty days for such publication in the locality has been made mandatory by section 4(1) of the said Act as amended by the Andhra Pradesh (Amendment) Act.
It is well settled that such non compliance renders acquisition bad in law.
In the result, the appeal succeeds and Rule in the writ petition is made absolute.
It is declared that the acquisi tion of the aforesaid land of the appellant is bad in law.
If the possession has been taken, the same must be returned to the appellant.
The appeal is allowed as aforestated with costs throughout.
T.N.A. Appeal Allowed.
| The appellant was alleged to have misap propriated a sum of Rs. 12,163.50 [though acquitted of the charge of misappropriation] and for the recovery thereof his 13.07 acres of coffee estate was brought to sale under the Tamil Nadu Revenue Recovery Act, 1894.
On March 30,1979 the sale by public auc tion was held by the Tehsildar.
The first respondent purchased the said estate for a sum of Rs. 12,225 and deposited a sum of Rupees 2000 being 15% of the sale price.
Under sec tion 36 of the Act, he should have deposited the balance consideration within 30 days from the date of the auction.
This sale was con firmed on October 23,1981 and the balance amount was deposited on November 4, 1981.
So the appellant filed an application to set aside the sale but the Revenue Divisional Officer overruled the objections and dismissed the application.
On appeal to Additional District Collector on October 13, 1982, the sale was set aside.
So the first respondent filed writ petition in the High Court and the single High Court Judge quashed the order of the Additional District Collector.
The writ appeal by the appellant to the Division Bench was also dismissed.
Hence the appellant came to this Court.
The appellant urged that under section 36 of the Act it is mandatory that the date and place of sale 'shall ' be published in the Gazetee and that the publication did not mention the place of sale so the sale is invalid in law.
It was further submitted that it was equally mandatory that the balance sale consideration of 85% should be deposited within 30 days from the date of sale which was done by the first respondent only on November 4, 1981 long after one year 182 and eight months of the date of sale and therefore illegal.
While the first respondent contended that it was Form 7 and not Form 7A that would be applicable to the facts of the instant case and that Form 7 contains the place o[ sale and that it was complied with.
Therefore, the said sale is not illegal.
It was further submitted that the deposit was made after protracted correspondence and that the non deposit within 30 days from the date of sale is not illegal since the deposit was accepted by the authority.
Therefore the confirmation of the sale is not illegal.
Granting the special leave, dismissing the writ Petition, setting aside the Judgment of the High Court, and restoring the order of the Additional District Collector, the Court HELD: That in the instant case, the High Court has wholly misconceived section 36 of the Act.
A reading of the said section mani fests that the word 'shall ' is mandatory in the context.
The publication is an invitation to the intending bidders to prepare an partic ipate at the bid.
Unless there is due publica tion of the date and the place of sale, the intending purchasers cannot be expected to run after the sale officer.
The sale officer has a statutory duty and a responsibility to have the date and place of sale mentioned in the notice giving due, publication in terms of the Act and the Rules.
Public auction is one of the modes of sale intending to get highest competitive price for the property and it also ensures fairness in actions of the public authorities or the sale officers who should act fairly objectively and kindly.
Nothing should be suggestive of bias favouritism nepotism or beset with suspicious features of under bidding detrimental to the legitimate interest of the debtor.
[184 F, G 1 85 A] Further it is settled law that the word 'shall ' be construed in the light of the purpose of the Act or Rule that seeks to serve.
Even though the word 'shall ' be ordi narily mandatory but in the context or if the intention is otherwise it may be construed to be directory.
The construction ultimately depends upon the provision itself.
Considered from this prospective of non compliance of section 35 that is comission to mention the place of sale would visit the deprivation of the property to the debtor for an adequate consideration due to absence of competing bidders.
Hence the specification of the date & place of sale 'shall ' be mandatory.
The forms either 7 or 7A are only procedural and they should be in conformity with section 36.
The form cannot prevail over the statute.
The omission of specification of the place of sale in the form renders the sale not merely irreg ular but also invalid.
[185 C; H 186 B] 183 Equally the second objection is insur mountable.
It is mandatory that the balance of the sale amount shall be remitted within 30 days from the date of auction and if not the earnest money deposited is liable to forfei ture.
Section 36 mandates remittance of the balance of 85% of the sale consideration within 30 days from the date of auction.
It is obligatory on the purchaser to deposit the amount within the period unless prevented by an order of the Court or Tribunal.
So the confirmation of sale without compliance is illegal and the sale is vitiated by manifest error of Law & rightly set aside by the Addi tional District Magistrate.
The High Court has committed error in law in interfering with the order of the appellate authority.
[186 B D]
|
Appeal No. 901 of 1963.
Appeal by special leave from the judgment and decree dated December 22, 1959, of the Calcutta High Court in Appeal from Appellate Decree No. 1039 of 1954.
Niren De, Additional Solicitor General, B. P. Singh and P. K. Chakravarti, for the appellant.
D. N. Mukherjee, for respondent Nos. 1 to 4.
Sukumar Ghose, for respondent No. 10.
The Judgment of the Court was delivered by Wanchoo J.
This appeal by special, leave raises a question as to the interpretation of section 37 A of the Bengal Agricultural Debtors Act, No. VII of 1936 (hereinafter referred to as the Act).
The respondents brought a suit in the court of the Second Munsif, Burdwan for a declaration that they were entitled to the property in dispute, for confirmation of their possession thereof and for a permanent injunction restraining the appellant from interfering with their possession.
In the alternative they prayed for delivery of possession to them of the property in dispute in case it was found that they were not in possession.
The case of the respondents was that the property in dispute belonged to one Jatindra Mohan Hajra, who was the father of three of the respondents.
He mortgaged the property to Kali Krishna Chandra who was a defendant in the suit.
Kali Krishna Chandra obtained a mortgage decree in the Court of the Subordinate Judge Burdwan and in execution of the said decree got the mortgaged property sold, purchased the property in auction sale and thus came into possession thereof in November 1937.
This happened before section 37 A was introduced in the Act by the Bengal Agricultural Debtors (Amendment) Act, 1942, (No. 11 of 1942).
After the introduction of section 37 A in the Act, the respondents applied thereunder for getting back possession of the property.
931 the meantime it appears that Kali Krishna Chandra sold the property to the present appellant in June 1942.
That is how she was made a party to the proceedings under section 37 A of the Act.
The respondents succeeded in their application under section 37 A of the Act and obtained possession of the property in suit in November 1947.
The respondents case further was that their possession was disturbed by the appellant thereafter and they had to go to the criminal court in that connection.
But the criminal case resulted in acquittal and consequently the respondents brought the present suit in order to remove the cloud on their title and to obtain possession in case it was found that they were not in possession.
The suit was resisted by the appellant on a number of grounds.
In the present appeal, however, learned counsel for the appellant has raised only two rounds before us, namely (i) that the Debt Settlement Board (hereinafter referred to as the Board) had no jurisdiction in the matter as the decree in the mortgage suit was for more than Rs. 5,000, and (ii) that section 37 A of the Act did not apply to a bona fide purchaser for value from the auction purchaser.
We shall confine ourselves therefore to these two points only.
The Munsif who tried the suit held that section 37 A was available against a bona fide transferee for value also.
But the question of jurisdiction of the Board on the ground that the amount involved was more than Rs. 5,000 was not raised before the Munsif and so there is no finding on that aspect of the matter in the Munsif 's judgment.
Holding that section 37 A applied to bona fide transferees for value also, the Munsif decreed the suit.
Then there was an appeal by the appellant which was decided by the Subordinate Judge.
It was in that appeal that it was urged for the first time that the Board had no jurisdiction inasmuch as the amount involved was over Rs. 5,000.
That objection was however over ruled by the Subordinate Judge on the ground that the amount involved was only Rs. 4,044/8/ .
But the Subordinate Judge seems to have held that a bona fide transferee for value cannot be affected by the provisions of section 37 A.
He therefore allowed the appeal and dismissed the suit.
Then followed an appeal to the High Court.
The High Court considered the two questions, which we have set out above.
On the question of jurisdiction the High Court held that the amount of debt involved was only Rs. 4,044/8/ and therefore the Board had jurisdiction.
On the question whether bona fide transferees for value were bound, the High Court reversed the 932 view taken by the Subordinate Judge and held that such transferees were also covered by section 37 A.
It therefore allowed the appeal and restored the decree of the Munsif but ordered parties to bear their own costs throughout.
In the present appeal by special leave, the appellant raises the same two points before us.
We shall first consider the question of the jurisdiction of the Board.
It is urged in this connection that the very application made by the respondents under section 37 A shows that the amount of decretal dues was Rs. 5,841 and therefore the Board had no jurisdiction.
We are of opinion that this point as to jurisdiction should have been raised at the earliest possible stage in the Munsif 's court and as it was not so raised it should not have been permitted to be raised for the first time in the Sub ordinate Judge 's court in appeal.
Rule 144, framed under the Act, which relates to jurisdiction of the Board, provides that the maximum amount of the sum total of all debts due from a debtor which can be dealt with under the provisions of Act shall be Rs. 5,000.
There is however a proviso to this rule to the effect that with the previous sanction in writing of the Collector, a Board may deal with an application if the sum total of all debts due from the debtors exceeds Rs. 5,000 but does not exceed Rs. 25,000.
it is unnecessary for us to decide in the present appeal whether the High Court was right in holding that the debt due was only Rs. 4,044/8/ and not Rs. 5,841, which was shown to be the amount of decretal dues in the application under section 37 A.
It is enough to point out that if this point had been raised in the trial court, the respondents would have been able to show that even if the debt was over Rs. 5,000, permission of the Collector as required by the proviso had been taken by the Board before it dealt with the matter.
It is not as if the Board has no jurisdiction above Rs. 5,000 at all.
Ordinarily the Board has jurisdiction upto Rs. 5,000 but with the sanction of the Collector in writing its jurisdiction can go upto Rs. 25,000.
Therefore if any party wishes to urge that the Board had no jurisdiction because the amount of the debt was over Rs. 5,000, it must urge it in the trial court in order to give an opportunity to the other party to show that even if the amount due was over Rs. 5,000 the sanction of the Collector had been obtained by the Board.
As the point was not taken in the trial court in this case, we are not prepared to go into the question whether the total debt due in the present case was over Rs. 5,000 or not, for the respondents had no opportunity of showing that even if the debt was over Rs. 5,000 the sanction of the Collector had been obtained.
We 933 therefore reject the contention as to jurisdiction on the ground that the point was not taken in the trial court.
This brings us to the principal argument urged in this case that section 37 A does not apply to bona fide transferees for value.
now the Act was an ameliorative measure for the relief of indebtedness of agricultural debtors and the preamble of the Act shows that it was passed because it was expedient to provide for the relief of indebtedness of agricultural debtors.
For that purpose it established Boards and also provided for reduction of the amount due under certain circumstances by sections 18 and 22 thereof.
It also made other provisions with respect to recovery of amounts due within a period of 15 to 20 years under sections 19 and 22 by instalments and made consequential provisions where the instalment was not paid.
Section 37 A was introduced in the Act in 1942 and provided for certain reliefs to an agricultural debtor where any immovable property of such person had been sold after August 12, 1935 in execution of a decree of a civil court or a certificate under the Bengal Public Demands Recovery Act, 191.3, under certain conditions.
It allowed the debtor to apply for relief thereunder to the Board within one year of the coming into force thereof.
On receipt of such application, the Board had first to decide whether the application was maintainable and had fulfilled the conditions subject to which such an application could be made.
Thereafter the Board had to proceed in accordance with sub sections
(4) to (7) and make an award under sub section
After the award had been made under sub section
(5), we come to s.37 A (8) which may be read in extenso : "The debtor may present a copy of the award made under sub section (5) to the Civil Court or Certificate officer at whose order the property was sold, and such Court or Certificate officer shall thereupon direct that the sale be set aside, that the debtor together with any person who was in possession of the property sold or any part thereof at the time of delivery of possession of such property to the decree holder as an under raiyat of the debtor and who has been ejected therefrom by reason of such sale be restored to possession of the property with effect from the first day of Baisakh next following or the first day of Kartic next following, whichever is earlier, and that any person who is in possession of the property other than a person who was in possession of the property or part thereof as an under raiyat of the debtor at the time of delivery of 934 possession of such property to the decree holder shall be ejected therefrom with effect from that date.
" Decree holder is defined in section 37 A(12) as under : "In this section the expression 'decree holder ' includes the certificate holder and any person to whom any interest in the decree or certificate is transferred by assignment in writing or by operation of law.
" The contention on behalf of the appellant is that sub section
(4) of section 37 A speaks only of the applicant before the Board, the decree holder and the landlord of the applicant in respect of the property sold in the case where the decree holder is not such landlord and therefore a bona fide transferee for value from the auction purchaser cannot be ejected under section 37 A (8) and it is only the decree holder who can be ejected thereunder if he is still in possession of the property.
Now if we read the words of section 37 A (8), that provision clearly lays down that any person who is in possession of the property (except an under riyat under certain conditions) shall be ejected therefrom with effect from that date.
The words "any person" used in section 37 A(8) are of very wide import and would include even a bona fide transferee for value of the property sold.
If the argument for the appellant were to be accepted, the benefit of section 37 A(8) would only be given in a case where the property sold in execution is purchased by the decree holder himself and he remains in possession upto the time the agricultural debtor asks for relief under section 37A(8).
We do not think that the legislature could have intended that the relief under section 37 A(8) should be given only in this limited class of cases.
In any case if that was the intention, the legislature would not have used the words which we have mentioned above and which clearly imply that any person in possession is liable to be ejected under section 37 A(8).
This would also seem to follow from another part of section 37 A(8) which imperatively enjoins on the civil court or the certificate officer to set aside the sale.
It follows from this that where a sale is set aside, whoever may have purchased the property in the sale wheather the decree holder himself or somebody else will have to give up possession, for the right of the person who had purchased the property to remain in possession would only exist so long as the sale subsists.
Once the sale is set aside, the auctionpurchaser whether he be the decree holder or somebody else cannot remain in possession; and this is enforced by the latter part of section 37 A(8) which lays down that any person in possession would be ejected (except an under riyat tinder certain condi 935 tions).Further on the same reasoning if the auctionpurchaser whether he be the decree holder or somebody else has parted with the property subsequently, that person would be equally liale to ejectment, for his right to remain in possession only flows from the sale which is ordered to be set aside under the first part of section 37 A(8).
If the intention had been that a bona fide purchaser for value other than the decree holder auction purchaser would be out of the purview of section 37 A(8), we should have found a specific provision to that effect in that sub section by the addition of a proviso or in some other suitable manner.
Further it may be pointed out that the word "decree holder" in sub section
(12) has been given an inclusive definition and it cannot therefore be said that when the word "decree holder" is used in s.37 A(8), it is confined only to the decree holder auction pur chaser.
There is no doubt that section 37 A(8) is somewhat clumsily drafted but there is equally no doubt that it intends that the sale should be set aside whoever may be the auction purchaser and it also intends that after setting aside the sale the property should be delivered back to the debtor whoever may be in possession thereof at the time of this delivery back (except in the case of an under riyat under certain conditions).
We may in this connection refer to sub section
(1) (c) of section 37 A, which would show what the intention of the legislature was in spite of the clumsy drafting of section 37 A(8).
Clause (c) lays down one of the conditions which has to be satisfied before an application under section 37 A(1) can be made.
It reads thus : "(c) if the property sold was in the possession of the decree holder on or after the twentieth day of December 1939 or was alienated by the decree holder before that date in any manner otherwise than by (i) a bona fide gift by a heba whether by registered instrument or not, or (ii) any other bona fide gift by registered instrument, or (iii) a bona fide lease for valuable consideration whether by registered instrument, or not, or (iv) any other bona fide transfer for valuable consideration (excepting a mortgage) by registered instrument.
" This provision would suggest that an application under 37 A(1) can be made if the property was in possession of the 936 decree holder on or after December 20, 1939.
In this case that condition was fulfilled and therefore the application under section 37 A(1) would lie.
Further the latter part of cl.
(c) shows that only certain alienations by the decree holder were excepted for the purpose of deciding whether an application under section 37 A(1) could be made.
These exceptions require firstly that the alienation by the decree holder should have been made before December 20, 1939.
Further even so far as alienations before December 20, 1939 were concerned, exceptions were only of the four kinds mentioned above.
These include bona fide transfers for valuable consideration (excepting a mortgage) before December 20, 1939.
So an application could be made even where there was an alienation by the decree holder of any kind so long as the alienation was after December 20, 1939.
Thus the only exceptions to which section 37 A would not apply would be alienations by the decree holder before December 20, 1939 of the four kinds specified in cl.
The present alienation was by the decree holder after December 20, 1939 and therefore the appellant cannot say that she is not covered by section 37 A because she was a bona fide transferee for value.
Reading therefore the wide language used in section 37 A(8) with section 37 A (1) (c), it is clear that once the sale is set aside, even alienees from the decree holder would be liable to be ejected and would be covered by the words "any person" used in the latter part of section 37 A(8) unless they were alienees of the four kinds mentioned in section 37 A(1)(c).
We are therefore of opinion that the High Court was right in holding that persons like the appellant were covered by section 37 A of the Act.
The appeal therefore fails and is hereby dismissed.
In the circumstances we order parties to bear their own costs.
Appeal dismissed.
| The appellant company, which carried on the business of buying bulk electrical energy and distributing it to consumers, made an application under the , to the Certifying Officer, Madras, for an amendment of two of its certified Standing Orders relating to holidays and leave.
It was claimed by the appellant that the urgent need for increased production and for increased supply of electrical energy could be met if the existing rules embodied in the two standing orders were suitably amended; the amendments pro posed sought to introduce different rules relating to holidays and leave for employees who were appointed before a specified date and those who joined service after that date.
The proposed amendments were resisted by the respondents ' union on the ground, inter alia, that they would introduce discrimination between one se of employees and another resulting in industrial unrest and disharmony.
The Certifying Officer upheld the respondents I plea and nega tived the amendments.
An appeal to the appellate authority against this decision was dismissed.
it was contended on behalf of the appellant that the proposed amendments were fair and reasonable and that the Certifying Officer and, the appellate authority had erred in law in not certifying the Standing Orders as proposed to be amended.
HELD : (i) The Certifying Officer and the appellate authority committed no error of law in refusing to certify the modified Standing Orders.
[510 E] The Act provides a self contained code and the Certifying Officer is given the power to consider questions of fairness and reasonableness as well as other questions indicated by section 4(a) and (b).
An appeal is provided against the decision of the Certifying Officer and in case a dispute arises as to the interpretation or the application of the Standing Order, a remedy is provided In section 13A.
A Tight is given both to the employer and the workman to move the appropriate authorities for modification of the existing Standing Orders.
[505 G H] (ii) It is clear from the provisions of the Act requiring industrial establishments to have their Standing Orders certified that matters specified in the Schedule to the Act should be covered by uniform Standing Orders applicable to all workmen employed in an industrial establishment.
[505 B] 499 Rai Bahadur Diwan Badri Das V. The Industrial Tribunal, Punjab;[1963] 3 S.C.R. 930; Associated Cement Staff Union vs Associated Cement Co.,& Ors. ; Guest Keen Williams Private Ltd. vs F. I. Sterling and others: ; ; referred to.
|
Appeal No. 1336 of 1967.
Appeal by special leave from the judgment and order dated October 7, 1966 of the Andhra Pradesh High Court in Writ Petition No. 1268 of 1966.
P. Ram Reddy and A. V. V. Nair, for the appellants.
K.Narayana Rao and G. Narayana Rao, for the intervener.
The Judgment of the Court was delivered by Shah, J.
Against the order passed by the High Court of Andhra Pradesh declaring invalid the "reservation for backward classes under Rule 4A and 5A respectively of the Telangana and the Andhra Rules, and the directions in respect of the President 's Scouts and.
Guides", under Government orders Nos.
1135 & 1136 Health, Housing & Municipal Administration Department dated June 16, 1966, as modified by G.O. M.S. 1880 dated July 29, 1966 for the Telangana region, and by G.O.M.S. 1786 dated August 2, 1966 for the Andhra Region, the State of Andhra Pradesh has appealed to this Court with special leave.
The State of Andhra Pradesh is divided into two areas Telan gana and Andhra areas.
In the Telangana area there are two Medical Colleges having in the aggregate 270 seats for entrants to the medical degree course.
In Andhra area there are four Medical Colleges having in the aggregate 550 seats for new entrants.
In admitting candidates for the medical degree course by Government orders Nos.
1135 & 1136 Health, Housing and Municipal Administration Department dated June 16, 1966, seats were reserved for Central Government nominees, for N.C.C., A.C.C President 's Scouts & Guides, for candidates with sports and extracurricular proficiency, for children of ex Service army personnel, for children of displaced goldsmiths, for candidates from Scheduled Castes and Tribes, for women candidates, for candidates appearing from H.S.C. Multipurpose I.S.C. & P.U.C. Examinations, 597 and for candidates who had secured the M.Sc. & B.Sc. de grees.
By Government order No. 1880 dated July 29, 1966, twenty per cent.
of the total number of seats were reserved for backward classes in each area, and pursuant thereto the Telangana Rules were amended by G.O. M.S. No. 1784 Health and the Andhra Rules were amended by G.O. M.S. No. 1783 Health dated August 2, 1966.
The Validity of the Government orders Nos.
1135 & 1136 was challenged on the ground that they infringed the fundamental freedoms guaranteed under articles 15(4), 16(4) and 29(2) of the Constitution.
The High Court held that in reserving seats for nominees of the Central Government and from other States, for cultural scholars, for women, for graduates and for students from H.S.C. & P.U.C. Courses, no fundamental rights were infringed, but the reservations for members of the backward classes described in the list prepared by the Government of Andhra Pradesh were invalid.
By article 15 of the Constitution, as originally enacted, it was provided that "(1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.
(2). . . . . . (3)Nothing in this article shall prevent the State from making my special provisions for women and children.
" Article 29(2) provided that "No citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them.
By article 46, which occurs in Ch.
IV relating to Directive Principles of State Policy, the State was enjoined to promote the educational and economic interests of the weaker sections of the people, but articles ' 15 and 29 as originally framed prohibited the making of,any discrimination against any citizen on grounds only of religion,, race, caste, sex, place, of birth or any of them.
In the State of Madras vs Shrimati Champakam Dorairajan(1) an order issued by the Government of the State of Madras fixing the number of seats for particular communities for selection of candidates for admission to the Engineering and Medical Colleges in the State was challenged on the ground that it violated the guarantee against d crimination under article 25(2) of the"Constitution.
This Court held that the Government order constituted a violation of the (1) ; 598 fundamental right guaranteed to the citizens of India by article 29(2) of the Constitution, notwithstanding the directive principles of State policy laid down in Part IV of the Constitution.
The Part thereafter added cl.
(4) in article 15, by the Constitution (First Amendment) Act, 1951, providing that: "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.
" On July 31, 1962, the State of Mysore, in supersession of all previous orders made under article I 5(4) divided backward classes into two categories : backward classes and more backward classes, and reserved 68% of the seats in the Engineering and Medical Colleges and other technical institutions for the educationally and socially backward classes and the Scheduled Castes and Scheduled Tribes, and left 32% seats for the merit pool.
That order was challenged by a group of writ petitions under article 32 of the Constitution before this Court.
This Court in M. R. Balaji & others vs State of 'Mysore(1) held that the order passed by the State of Mysore "was a fraud on the constitutional power conferred on the State by article 15(4)" and was liable to be quashed, because the order categorised, contrary to the plain intendment of article 15(4), the backward classes on the sole basis of caste.
A similar order G.O. M.S. No. 1880 Health issued by the State of Andhra Pradesh on June 21, 1963, notifying a list of castes for the purpose of selecting candidates from the backward classes in the Medical Colleges in the State of Andhra Pradesh was declared invalid by the High Court of Andhra Pradesh on the ground that the order which classified the backward classes solely on the basis of caste subverted the object of article 15(4) of the Constitution : see P. Sukhadev and others vs The Government of Andhra Pradesh (2).
On February 3, 1964, the.
previous order issued by the State of Andhra Pradesh was cancelled.
Thereafter it is claimed by the ' State of Andhra Pradesh that it took steps to prepare a fresh list of backward classes consistently with the provisions of the Constitution.
The Chief Secretary of the Government of Andhra Pradesh has sworn in his affidavit that the Council of Ministers appointed a Sub Committee to draw up a list of backward classes, inter alia, for the purpose of admission of students to professional Colleges.
The Committee invited the Law Secretary and the Director of Social Welfare to attend the meetings of the Sub Committe, and letters were written to the other States calling for information about the criteria adopted by those States for determining backward classes for purposes of Am.
15(4) and 16(4) of the (1) [1963] Supp. 1 S.C.R. 439.
(2) (1966) 1 Andbra W.R. 294.
599 Constitution, that after considering the replies received from the Chief Secretaries of the various States it was resolved 'that the existing list of backward classes pertaining to Andhra and Telangana areas he scrutinised with a view to selecting from that list those castes or communities which are "considered backward on account of the low standard of living, education, poverty, places of habitation, inferiority of occupations followed etc "; that at another meeting it was resolved that the, list of 146 backward communities prepared by the Director be rearranged in "the order of priority in consultation with the Law Secretary, taking into consideration the criteria given by Law Secretary in his note to the Cabinet Sub Committee and that in doing so such of the criteria as capable of being practically possible for consideration may be taken into account", and accordingly the Law Secretary and the Director of Social Welfare considered the representations made by certain communities to the Government from time to time and "drew up a list of the order of priority as called for by the Cabinet Sub Committee", that thereafter the Cabinet Sub Committee made its recommendations which were considered by the Council of Ministers on July 4, 1966, and that the Council of Ministers considered the social, educational and economic conditions of the backward classes named in the lists submitted to them, and dealt with each individual class and deleted certain items or classes in the lists, changed the denomination of certain classes "for the more premise effectuation of concessions to those classes only who really need them", and consolidated the backward classes into one list, ruling out the priorities suggested by the Director of Social Welfare in accordance with the opinion of the Cabinet Sub Committee, and thereafter published resolution No. G.O. 1880 pursuant to which the rules were amended reserving 20% of the seats for the backward classes mentioned in the list prepared by the Cabinet of the State.
The list prepared on the basis of reservations for socially and educationally backward classes is indisputably a list community wise.
On behalf of the petitioners it was contended in the High Court that the Government of Andhra Pradesh had adopted the same list of backward classes which was struck down by the High Court in P. Sukhadev 's caw() with some slight modifications and the new list also having made a reservation in favour of castes and not classes, it infringed the guarantee Under article 15(1).
On behalf of the State it was urged that caste is one of the relevant tests in determining backwardness, and cannot be ignored in determining the socially and educationally backward classes: if a group has been classified as backward on other relevant considerations, the classification is not liable to be changed as invalid on the ground that for the purpose of classifying,the designation of caste 'is given.
The High Court held that the earlier G.O. was struck down (1) (1966) 1 Andhra W.R. 294.
600 in P. Cukhadev 's case( ') on the ground that it was based on caste alone, and since the G.O. under challenge was again prepared on the same basis it could not be sustained as falling within,the exception provided in article 15(4).
Counsel for the State contends that the High Court erred in holding that the impugned rules reserving seats for backward classes made caste the determining factor.
In the context in which it occurs the expression "class" means a homogeneous section of the people grouped together because of certain likenesses or common traits and who are identifiable by some common attributes such as status, rank, occupation, residence .in a locality, race, religion and the like.
In determining whether a particular section forms a class, caste cannot be excluded altogether.
But in the determination of a class a test solely based upon the caste or community cannot also be accepted.
By cl.
(1), article 15 prohibits the State from discriminating against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.
By cl.
(3) of article, 15 the State is, notwithstanding the provision contained in cl.
(1), permitted to make special pro,vision for women and children.
By cl.
(4) a special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and Scheduled Tribes is outside the purview of cl.
But cl.
(4) is an exception to cl.
Being an exception, it cannot be extended so as in effect to destroy the Guarantee of cl.
The Parliament has by enacting cl.
(4) attempted to balance as against the right of equality of citizens the special necessities of the weaker sections of the people by allowing a provision to be made for their advancement.
In order that effect may be given to cl.
(4), it must a pear that the beneficiaries of the special provision are classes which are backward socially and educationally and they are other than the Sche duled Castes and Scheduled Tribes, and that the provision made .is for their advancement.
Reservation may be adopted to advance the interests of weaker sections of society, but in doing so, care must be taken to see that deserving and qualified candidates are not excluded from admission, to higher educational institutions.
The criterion for determining the backwardness Must not be based solely on religion, race, caste, sex, or place of birth, and, the backwardness being social, and educational must be similar to the backwardness from which the Scheduled Castes and the Scheduled Tribes suffer.
These are the principles which have been enunciated in the decision of this Court in.
M. R. Balaji 's case(3) and R. Chitralekha & Another vs State of Mysore.and.
others(2).
In R. Chitralekha 's case (2), Subba Rao, J., speaking for the majority of the Court observed at p. 388 (1) (1963) Supp.1 S.C.R.439. (2) (1964) 6 S.C.R.368 601 .lm15 "The important factor to be noticed in article 15(4) is that it does not speak of castes, but only speaks of classes.
If the makers of the Constitution intended to take castes also as units of social and educational backwardness, they would have said so as they have said in the case of the Scheduled Castes and the Scheduled Tribes.
Though it may be suggested that the wider expression "cLasses" is used in cl.
(4) of article 15 as there are communities without castes, if the intention was to equate classes with castes, nothing prevented the makers of the constitution from using the expression "backward classes or castes '.
The juxtaposition of the expression "backward classes" and "Scheduled Castes" in article 15(4) also leads to a reasonable inference that the expression "classes" is not synonymous with castes.
It may be that for ascertaining whether a particular citizen or a group of citizens belong to a backward class or not, his or their caste may have some relevance, but it cannot be either the sole or the dominant criterion for ascertaining the class to which he or they belong.
" In a recent judgment of this Court P. Rajendran & Ors.
vs The State of Madras and others( '), Wanchoo, C.J., speaking for the Court observed : ".
if the reservation in question had been based only on caste and had not taken into account the social and educational backwardness of the caste in question, it would be violative of article 15(1).
But it must not be forgotten that a caste is also a class of citizens and if the caste as a whole is socially and educationally backward reservation can be made in favour of such a caste on the ground that it is a socially and educationally backward class of citizens within, the meaning of article 15(4).
It is true that in the present cases the list of socially and educationally backward classes has been specified by caste.
But that does not necessarily mean that caste was the sole consideration and that persons belonging to these castes are also not a class of socially and educationally backward citizens.
" That case makes no departure from the rule enunciated in the earlier cases.
The list dated June 21, 1963, of castes prepared by the Andhra Pradesh Government to determine backward classes for the purpose of article 15(4) was declared invalid by the High Court of ' Andhra Pradesh in P. Sukhadev 's case( ').
A fresh list was published under the amended rules with some modifications, but the (1) ; (2) [1966] 1 Andhra W.R. 294.
602 basic scheme of the list was apparently not altered.
It is true that the affidavits filed by the Chief Secretary in the High Court and the Director of Social Welfare in this Court have set out the steps taken for preparing the Est of backward classes.
It is also stated in the affidavit of the Director of Social Welfare that he considered the representations made to him, consulted the Law Secretary and certain publications relating to the study of backward classes e.g. Thurston 's "Caste and Tribes" and Sirajul Hasan 's "Castes and Tribes", and made his recommendations which were modified by the Sub Committee appointed by the Council of Ministers and ultimately the Council of Ministers prepared a final list of backward classes.
But before the High Court the materials which the Cabinet Sub Committee or the Council of Ministers considered were not placed, nor was any evidence led about the criteria adopted by them for the purpose of determining the backward classes.
The High Court observed : "A perusal of this affidavit (Chief Secretary 's affidavit) as well as that of the Director of Social Welfare,.
.which are filed on behalf of the Government do not say what was the material placed before the Cabinet Sub Committee or the Council of Ministers, from which we could conclude that the criteria laid down by their Lordships of the Supreme Court have been applied in preparing the list of backward classes.
After referring to the opinion of the Law Secretary and the views ,of the Director of Social Welfare they observed: ".
We are not able to ascertain whether any material, and if so, what material was placed before the Cabinet Sub Committee, upon which the list of backward classes was drawn.
On the other hand, it is stated that the Law Secretary and the Director of Social Welfare sat together and drew up a list, the former specifying the legal requirements and the latter as an expert advising on the social and educational backwardness of class or classes.
" It was urged before the High Court that expert knowledge of the Director of Social Welfare and of the Law Secretary was brought to bear upon the consideration of the relevant materials in the preparation of the list and they were satisfied that the correct tests were applied in the determination of backward classes and on that account the list should be accepted by the High Court.
The High Court in dealing with the argument observed: ". the impugned backward classes list cannot be and has not been sustained by the Government as 603 coming within the exception provided in article 15(4) on any material placed before this Court.
In fact, there is a total absence of any material, from which we can say that the Government applied the criteria enunciated by their Lordships of the Supreme Court in the above referred cases, in preparing the list of backward classes.
We cannot accept the contention of the learned Advocate General that "once there is proof that the Government bona fide considered the matter it is sufficient".
Acceptance of this argument would make for arbitrariness, absolving the party on whom the burden of proof to bring it within the exception rests, from proving it.
The mere fact that the act is bona fide and that there was total absence of mala fides, is not relevant.
" Article 15 guarantees by the first clause a fundamental right of far reaching importance to the public generally.
Within certain defined limits an exception has been engrafted upon the guarantee of the freedom in cl.
(1), but being in the nature of an exception, the conditions which justify departure must be strictly shown to exist.
When a dispute is raised before a Court that a particular law which is inconsistent with the Guarantee against discrimination is valid on the plea that it is permitted under cl.
(4) of article 15, the assertion by the State that the officers of the State had taken into consideration the criteria which had been adopted by the Courts for determining who the socially and educationally backward classes of the Society are, or that the authorities had acted in good faith in, determining the socially and educationally, backward classes of citizens, would not be sufficient to sustain the validity of the claim.
The Courts of the country are invested with the power to determine the validity of the law which infringes the fundamental rights of citizens and others and when a question arises whether a law which prima facie infringes a guaranteed fundamental right is within an exception, the validity of that law has to be determined by the Courts on materials placed before them.
By merely asserting that the law was made after full consideration of the relevant evidence and criteria which have a bearing thereon, and was within the exception, the jurisdiction of the .Courts to determine whether by making the law a fundamental right has been infringed is not excluded.
The High Court has repeatedly observed in the course of their judgment that no materials at all were placed on the record to enable them to decide whether the criteria laid down by this Court for determining that the list prepared by the Government conformed to the requirements of cl.
(4) of article 15 were followed.
On behalf of the State it was merely asserted that an enquiry was in fact made with the aid of expert officers and the Law Secretary and the question was examined from all points of view by the L7Sup.
C.I/68 14 604 officers of the State, by the Cabinet Sub Committee and by the Cabinet.
But whether in that examination the correct criteria were applied is not a matter on which any assumption could be made especially when the list prepared is exfacie based on castes or communities and in substantially the list which was struck down by the High Court in P. Sukhadev 's case(1) Honesty of purpose of those who prepared and published the list was not and is not challenged, but the validity of a law which apparently infringes the fundamental rights of citizens cannot be upheld merely because the law maker was satisfied that what he did was right or that he believes that he acted in manner consistent with the constitutional guarantees of the citizen.
The test of the validity of a law alleged to infringe the fundamental rights of a citizen or any.
act done in execution of that law lies not in the belief of the maker of the law or of the person executing the law, but in the demonstration by evidence and argument before the Courts that the guaranteed right is not infringed.
The appeal therefore fails and is dismissed.
, R.K.P.S. Appeal dismissed.
(1) [1966] 1 Andhra W.R. 294.
| The appellant was an assistant medical officer in a railway hospital at Gaya.
Though he had certain privileges ordinarily available to gazetted officers he was only a non gazetted Class III officer.
He was convicted for offenses tinder section 161 I.P.C. and 'section 5 (2) read with section 5 (I) (d) of the Prevention of Corruption Act, 1947.
The complaint that he had received illegal gratification, was investigated into by an Inspector of Police.
The Inspector obtained permission from a First Class Magistrate for laying a trap, investigated into the case, and later, after the entire investigation was over, he obtained permission from the Magistrate to investigate into, the case.
The sanction to prosecute required under section 6(1) of the Act, was granted by the Chief Medical Officer, who was the bead of the department.
The conviction was challenged on the following grounds : (1) The investigation was without authority of law, because, under section 5A, the Inspector could not have investigated without the prior permission of a Magistrate of the First Class; (2) The permission granted by the Magistrate did not meet the requirements of law because, it was given casually and without applying his mind to the question as to whether there was any need for departing from the normal rule laid down in the section, namely, that such cases should ordinarily be investigated by an officer of the rank of Dy.
Superintendent of Police or above and there should be good reasons before a Magistrate accords permission to officers below that rank; (3) The presumption under section 4 that the appellant had accepted the sum a motive or reward should not be drawn unless the prosecution proved that the amount was paid as a bribe; (4) The presumption was rebutted by the appellant 's explanation that what was paid to him was the return of a loan; and (5) the sanction to prosecute granted by the Chief Medical Officer was invalid as lie was not the authority competent to remove him.
HELD : (1) There is no basis for the contention that any portion of ' the investigation was done without authority by law.
[567 D].
Investigation under section 4(1) Cr.
P.C. is one and indivisible and includes all the steps taken by the Inspector to ascertain the truth of the complaint alleging that the appellant was attempting to obtain a bribe.
Laying a trap, is a part of the investigation and a permission given under section 5A of the Prevention of Corruption Act enables the officer concerned not only to lay a trap but also to further investigate.
The fact that the Inspector of Police obtain the two permissions, one for laying a trap and 564 another for investigating the case, does not affect the earlier order as the second permission was wholly superfluous.
[566 G H, 567 B D] (2) The order giving permission to.
the Inspector did not give any reasons and there is thus a violation of section 5A.
But an illegality committed in the course of an investigation does not vitiate the result of a trial unless there was a miscarriage of justice.
In the present case the legality of the investigation was not challenged in the trial court and prejudice to the appellant was neither pleaded nor established.
[568 C D, F G].
(3) The presumption under section 4 arises when it is shown that the accused had received the stated amount and that the said amount was not legal remuneration.
[569 D].
(4) The words 'unless the contrary is proved ' in section 4(1) show that the presumption was to be rebutted by proof and not by a bare explanation which is merely plausible.
The 'burden testing on the accused will however be satisfied if he establishes his case by a mere preponderance of probability and it is not necessary for him to prove it beyond reasonable doubt.
In the present case, the appellant 's plea was not accepted by the trial court and the High Court and hence, it must be held that he had not discharged the burden placed on him.
[571 C E].
State of M.P. vs Mubarak Ali, , H. N. Rishbud and Inder Singh vs State of Delhi, [1955] 1 S.C.R. 1150, State of U.P. vs Bhagwant Kishore Joshi, A.I.R. , Munnalal vs State of U.P. ; , C. 1.
Emden vs State of U.P. ; , Dhanvantrai Balwantrai Desai vs State of Maharashtra, A.I.R. and V. D. Jhangan vs, State of U.P. ; , followed.
(5) Under section 6(1) (c) of the Prevention of Corruption Act, the appellant could not be prosecuted without the previous sanction of the authority competent to remove him.
Oral evidence of the officer giving sanction cannot be relied on for deciding the validity of the sanction.
The Court must be satisfied by reference to the rules on the subject.
Schedule 11 to the 1961 Rules relating to discipline and appeal of railway servants makes provision for the punishment of railway servants employed in zonal railways.
Under the Schedule I a head of a department was not competent to impose on Class III officers the punishment of removal from service.
That punishment could only be imposed by an appointing authority or any other higher authority.
Under r, 134.
the authorities competent to make first appointments to non gazetted posts are the General Manager.
the Chief Administrative Officer or a lower authority to whom he may delegate power; but the power has not been delegated to heads of departments.
Therefore, the Chief Medical Officer was neither the appointing authority nor was he competent to.
remove the appellant from his Office.
Hence he was also not competent to grant the sanction for prosecuting the appellant.
D; 573B C, H;574A B].
R. R. Chari vs State of U.P. [1963].1 S.C.R. 121, followed.
|
ffidavit and the addi tional affidavit before the High Court as well as this Court are filed by the Deputy Superintendent of Police who has no connection whatsoever with the passing of the order or dealing with or processing the file at any point of time.
In fact, he could not have got any personal knowledge with the passing of the order of its subsequent proceeding since the order has been passed by the State Government and the subse quent proceedings have been dealt with by the officials of the Secretariat.
It is, therefore, terribly shocking and surprising that a police officer who has no connection whatsoever with this detention order and who had not at any relevant time personally dealt with the case has come for ward to swear about the entire proceedings from the begin ning right up to the rejection of the representation includ ing the holding of the meeting of the Advisory Board on behalf of the appropriate authority.
The affidavit filed by the Deputy Superintendent of Police is, therefore, not worth consideration.
[841D F; 836F G] & CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 30 1 of 1990.
From the Judgment and Order dated 15.1.1990 of the Rajasthan High Court in H.C.P. No. 2866 of 1989.
Pallave Shishodia, Sandeep Mehta and D. Bhandari for the Appellant.
Chandmal Lodha, S.C. Gupta (N.P.), M.N. Shroff, I. Makwana and Manoj Prasad for the Respondents.
The Judgment of the Court was delivered by section RATNAVEL PANDIAN, J.
This appeal by grant of special leave is directed against the Order of the High Court of Rajasthan at Jodhpur in Habeas Corpus Petition No. 2866/1989 dismissing the Writ Petition filed by the detenu Gazi Khan @ Chotia.
The order of detention dated 30.5.
1989 under challenge has been passed by the Administrative Secretary and Commis sioner, Home Department, State of Rajasthan in exercise of powers under Section 834 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substance Act, 1989 (for short 'the Act ') on reaching his subjective satisfaction that the detenu has been involved in illegal business of smuggled charas and heroin and other psychotropic substances.
The relevant facts as set out in the grounds of deten tion giving rise to this appeal may be recapitulated as follows: The detenu Gazi Khan @ Chotia was actively involved in illegal and objectionable activities by organising a group of smugglers and financing them in the activities of smug gling without directly involving himself in such activities.
However, the police of Jaisalmer has opened a history sheet showing the indirect involvement of the detenu in such smuggling activities.
The modus operandi of the detenu is revealed in the statements recorded under Section 108 of the Customs Act from a number of smugglers who were apprehended in the course of smuggling.
On 3.11.
1986 the detenu has himself given a statement before the Customs Officer admit ting his involvement in smuggling of readymade garments and bides.
He was suspected in Offence No. 32 dated 30.3.1988 as well in Offence No. 17 dated 17.4.88 under the provisions of the Act as well under Section 25 of the Arms Act.
But since no evidence was available incriminating the detenu with those offences no action could be taken.
Further the detenu is said to have been involved along with his associates in certain criminal cases registered under the provisions of the Indian Penal Code.
The detaining authority on the above materials placed before him has passed this impugned order.
The High Court before which he challenged the impugned order of detention on various grounds has dismissed the Writ Petition holding that all the contentions did not merit consideration.
Hence this appeal.
The learned counsel appearing on behalf of the appel lant, raised several contentions, the main thrust of which being that the representation made by the detenu was not decided within.
a reasonable time and hence the delay is fatal to the detention.
This point has been taken even before the High Court.
But the High Court accepting the explanation given by the Deputy Superintendent of Police, Jaisalmer in his additional affidavit filed on behalf of the respondents spumed that plea observing: "In the present case as from the facts mentioned in the additional affidavit and referred to above, it cannot be said that there was undue lethargy or indifference." 835 Under Ground No. (d) of paragraph 16 of the Special Leave Petition, a contention is raised with regard to the delay of disposal of the representation stating that "the extraordinary delay of 27 days in consideration of representation of the petitioner is sought to be explained by mere ipso dixit of the detaining authorities who merely rest content with the skeletal chronology of days taken allegedly by several authorities with copies of unexplained silence about why actually several days as alleged by au thorities were taken to process and consider the representa tion of petitioner.
" Before this Court a reply is filed by the Deputy Super intendent of Police, Jaisalmer stating that he is "appointed as Officer Incharge in this case" and that he is replying to the allegations made in the Special Leave Petition with reference to the record connected with this case.
In para graph 15(d) of his reply, it is averred that "there is no delay in the consideration of representation of the peti tioner.
" The same Deputy Superintendent of Police in an additional affidavit filed before the High Court has sought to explain the delay stating that the representation of the detenu was placed before the Assistant Secretary on 19.6.
1989 with a proposal that a report might be called from the District Magistrate, Jaisalmer, who was the sponsoring authority, that the District Magistrate who received the communication on 22.6.1989 forwarded his comments to the State Government on 29.6.1989, that the comments were re ceived by the State Government on 1.7. 1989 and were placed for perusal of the Assistant Secretary on 3.7.1989 and that the Assistant Secretary after putting up a note incorporat ing the comments of the District Magistrate on the represen tation placed the same for perusal to the Deputy Secretary on 9.7.1989 and thereafter on the recommendation of the Special Secretary (Home) the representation was rejected on 11.7.1989.
A perusal of the above additional affidavit shows that the Deputy Superintendent of Police speaks on behalf of the detaining authority, namely, the State Government as well the authorities who dealt with the representation, namely, the Assistant Secretary and the Special Secretary (Home Department).
Finally, in regard to the delay in the disposal of the representation he states in para 7 of the said affi davit thus: " . . The delay has occasioned not by lack of deligence 836 or promptness on the part of the party concerned but due to unavoidable circumstances and for the reasons entirely beyond the control of the Detaining Authority.
" In this connection, we would like to point out that the main reply and the additional affidavit before the High Court as well as the reply affidavit before this Court are filed only by the same Deputy Superintendent of Police on behalf of the Respondents 1 and 2.
After the judgment was reserved, we after going through the papers directed the matter to be reported for further hearing.
Accordingly the matter was listed on 17.4.1990 on which date we asked the learned counsel for the respondents to explain as to under what authority the Deputy Superin tendent of Police has arrogated himself to the knowledge of the entire file relating to the impugned order and speaks for the detaining authority and other authorities who subse quently dealt with the file.
The learned counsel took an adjournment and has now filed an additional affidavit sworn by the Commissioner and Secretary (Home Department) dated 21.4.1990.
In the present additional affidavit no explana tion is given to our query.
The explanation given by the Secretary in his affidavit for the complaint of delayed disposal of the representation is as follows: "That there was no inordinate delay in considering the representation of the petitioner and the same was rejected after careful consideration.
" We are terribly shocked and surprised to note that a police officer who seems to have no connection whatsoever with this detention order and who had not at any relevant time personally dealt with the case has come forward to swear about the entire proceedings from the beginning right up to the rejection of the representation including the holding of the meeting of the Advisory Board on behalf of the appropriate authority.
This practice of allowing a police officer who has not dealt with the case at any point of time at any level and who in the very nature of the case could not have any personal knowledge of the proceedings, to swear the counter and reply affidavits on behalf of the appropriate authorities should be highly deprecated and condemned and the counter and reply affidavits sworn by such officer merit nothing but rejection.
This Court on several occasions has expressed its views that in response to the Rule Nisi a counter affidavit should normally be filed 837 by the detaining authority himself though it cannot be suggested as a rigid or inflexible rule applicable in all cases of detention under all circumstances.
However, when allegation of mala fide or abuse of powers or personal bias is attributed to the detaining authority, the said authority should himself swear to the counter affidavit.
In the ab sence of any such allegation in the petition a counter affidavit may be sworn by a responsible officer who person ally dealt with or processed the case or by an officer duly authorised under the Rules of Business of the Government concerned.
A Constitution Bench of this Court in the State of Bombay vs Purushottam Jog Naik, ; in which a similar question arose, the learned Judges answered as follows: " . . if the Home Secretary has the requisite means of knowledge, for example, if the Minister had told him that he was satisfied or he had indicated satisfaction by his con duct and act and the Home Secretary 's affidavit was regarded as sufficient in the particular case, then that would con stitute legally sufficient proof.
But whether that would be enough in any given case, or whether the "best evidence rule" should be applied in strictness in that particular case, must necessarily depend upon its facts.
In the present case, there was the element that 57 cases were dealt with in the course of 6 days and orders passed in all on one day.
But we do not intend to enter into the merits.
All we desire to say is that if the learned Judges of the High Court intended to lay down as a proposition of law that an affida vit from the Minister in charge of the department is indis pensable in all such cases, then they went too far." In Ranjit Dam vs State of West Bengal, 16 the counter affidavit was filed by the Assistant Secretary, Home (Special) Department, who was authorised to file it as the detaining authority had since then been appointed as Secretary of the State Electricity Board.
This Court in that circumstance stated thus: "The reason given in this counter affidavit for the District Magistrate not making the affidavit himself does not appear to be satisfactory.
But as nothing terms on that fact we need say no more about it for the present.
" Sarkaria, J. in Shaik Hanif vs State of West Bengal, ; observed thus: 838 "Since the Court is precluded from testing the subjective satisfaction of the detaining authority by objective stand ards, it is all the more desirable that in response to the rule nisi the counter affidavit on behalf of the State should be sworn to by the District Magistrate or the author ity on whose subjective satisfaction the detention order under Section 3_ .was passed.
If for sufficient reason shown to the satisfaction of the Court, the affidavit of the person who passed the order of detention under Section 3 cannot be furnished, the counter affidavit should be sworn by some responsible officer who personally dealt with or processed the case in the Government Secretariat or submit ted it to the Minister or other officer duly authorised under the rules of business framed by the Governor under Article 166 of the Constitution to pass orders on behalf of the Government in such matters.
" The learned Judge after referring to Ranjit Dam 's case (albeit) and to I.N. Roy vs State of West Bengal, stated as under: "Nevertheless, the failure to furnish the counter affidavit of the Magistrate who passed the order of detention, is an impropriety.
In most cases, it may not be of much conse quence but in a few cases, for instance, where mala fides or extraneous considerations are attributed to the Magistrate or the detaining authority, it may, taken in conjunction with other circumstances, assume the shape of a serious infirmity, leading the Court to declare the detention ille gal.
" 71 having regard to the facts of that case wherein the Deputy Secretary Home) filed the counter instead of District Magistrate it was held that he mere omission to file the affidavit by District Magistrate did not vitiate the deten tion order.
Speaking for the Bench, Krishna Iyer, J. in Bhut Nath Mete vs State of West Bengal, 11974] 1 SCC 645 at page 658 (para 21) has expressed his considered view on this point as hereunder: "True, we should have expected an affidavit from the detain ing authority but even that is felt too inconvenient and a Deputy Secretary who merely peruses the records and swears an affidavit in every case is the poor proxy.
Why 839 is an affidavit then needed at all? The fact of subjective satisfaction, solemnly reached, considering relevant and excluding irrelevant facts, sufficient in degree of danger and certainty to warrant pre emptive casting into prison, is best made out by the detaining District Magistrate, not one who professionally reads records and makes out a precis in the form of an affidavit.
The purpose is missed, going by the seriousness of the matter, the proof is deficient, going by ordinary rules of evidence, and the Court is denied the benefit of the word of one who takes responsibility for the action, if action has to be taken against the detainer later for misuse.
We are aware that in the exigencies of adminis tration, an officer may be held up far away, engrossed in other important work, thus being unavailable to swear an affidavit.
The next best would then be the oath of one in the Secretariat who officially is cognisant of or has par ticipated in the process of approval by Government not one who, long later, reads old files and gives its gist to the Court.
Mechanical means are easy but not legitimate.
We emphasize this infirmity because routine summaries of files, marked as affidavits, appear in the returns to rules nisi, showing scant courtesy to the constitutional gravity of deprivation of civil liberty.
In some cases, where a valid reason for the District Magistrate 's inability to swear affidavits directly has been furnished, this Court has accepted the concerned Deputy Secretary 's affidavit.
This should, however, be the exception, not the rule.
" Khanna, J. in Asgar Ali vs District Magistrate, Burdwan & Ors., while answering a contention that an affidavit by the detaining authority was essential for sustaining the validity of the detention order 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 respond ents.
It would indeed depend upon the nature of allegations made by the detenu in the petition for determining whether the absence of affidavit of the person making the detention order introduces a fatal infirmity.
In case an allegation is made that the officer making the detention order was actuat ed by some personal bias against the detenu in 840 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 peti tion showing that the order was mala fide or based upon some extraneous considerations.
In the absence of any such alle gation in the petition, the fact that the affidavit filed on behalf of the respondents is not that of the District Magis trate 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.
" In Suru Mallick vs State of West Bengal, , this Court accepted the affidavit of the Deputy Secretary (Home) who dealt with the matter as the District Magistrate was not available and preoccupied with some urgent business.
In Gulab Mehra vs State of U.P. & Ors., [ 1988] 1 SCR 126, a Station House Officer of Kydganj Police Station filed the counter stating that District Magistrate had passed the detention order when the appellant was already in jail on the apprehension that the appellant therein was likely to be released on bail in the near future.
Ray, J. speaking for the Bench while setting aside the order of detention held thus: "This clearly goes to show that the Sub inspector has arro gated to himself the knowledge about the subjective satis faction of the District Magistrate on whom the power is conferred by the Act.
The District Magistrate, the detaining authority in this case has not chosen to file his affidavit.
The affidavit in opposition filed by the Station Officer of Police implies that he has access to the file of the Dis trict Magistrate or he influenced the decision of the Dis trict Magistrate for making the detention order.
" Again in State of Gujarat vs Sunil Fulchand Shah & Anr., ; , accepting a further affidavit of the Deputy Secretary (Home Department), this Court did not attach much importance to the fact that the affidavit was not filed by the detaining authority personally.
However, the Court said: "It is true that in a case where a point as mentioned above arises the detaining authority should personally affirm on oath the stand taken on his behalf, but it cannot be sug gested as an inflexible rule applicable to all detention cases irrespective of the circumstances." 841 Recently in Madan Lal Anand vs Union of India, Dutt, J. speaking for the Bench pointed out: "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 the court.
We do not think that any importance should be attached to the said statement made by the deponent in the counter affidavit.
" Thereafter the learned Judge has expressed his views that when there is an allegation of mala fide or bias made against the detaining authority, then the detaining authori ty should himself swear to the counter affidavit.
Ultimately having regard to the allegation made therein and to the fact that the Under Secretary to the Government has filed the counter, the learned Judge pointed out: "Merely because the detaining authority has not sworn an affidavit, it will not in all circumstances be fatal to the sustenance of the order of detention." As we have pointed out supra the reply affidavit and the additional affidavit before the High Court as well as this Court are filed by the Deputy Superintendent of Police who does not seem to have any connection whatsoever with the passing of the order or dealing with or processing the file at any point of time.
In fact, the Deputy Superintendent of Police could not have got any personal knowledge with the passing of the order or its subsequent proceeding since the impugned order has been passed by the State Government and the subsequent proceedings have been dealt with by the officials of the Secretariat.
Reverting to the facts of the case there is no explanation for the delay from 3rd to 9th July 1989, i.e. for 7 days for the Assistant Secretary merely to put up a note on the basis of the comments of the District Magistrate.
The present additional affidavit sworn to by the Commissioner and Secretary on 21.4.1990 also does not whisper any explanation as to why such a delay of 7 days had occurred at the hands of the Assistant Secretary.
The learned counsel appearing for the appellant in support of his contention that the unexplained delay has vitiated the order has placed reliance on a decision of this Court in Rama Dhondu Borade vs V.K. Saraf, Commissioner of Police & Ors., to which decision one of us (Ratnavel Pandian, J.) was a party.
In that decision 842 after referring to various decisions of this Court including Smt.
Shalini Soni vs Union of India.
[ ; the following proposition was laid down: "The detenu has an independent constitutional right to make his representation under Article 22(5) of the Constitution of India.
Correspondingly, there is a constitutional mandate commanding the concerned authority to whom the detenu for wards this representation questioning the correctness of the detention order clamped upon him and requesting for his release, to consider the said representation within reasona ble dispatch and to dispose the same as expeditiously as possible.
This constitutional requirement must be satisfied with respect but if this constitutional imperative is ob served in breach, it would amount to negation of the consti tutional obligation rendering breach would defeat the very concept of liberty the highly cherished right which is enshrined in Article 21 of the Constitution." However, in the same decision it has been pointed out that "what is reasonable dispatch depends on the facts and cir cumstances of each case and no hard and fast rule can be laid in that regard.
" We have already expressed that the affidavit filed by the Deputy Superintendent of Police is not worth consideration and there is absolutely no explana tion for the delay caused at the hands of the Assistant Secretary.
Therefore, for the reasons stated above, we set aside the impugned order of detention on the ground that there is a breach of constitutional obligation as enshrined under Article 22(5) of the Constitution of India.
In the result, the appeal is allowed and the detenu is directed to be set at liberty forthwith.
P.V. Appeal al lowed.
| The appellant had filed a suit in the High Court of Calcutta for a declaration that the properties set out in the schedule belonged to a joint family and that the trust created by the father of the plaintiff/appellant in respect of the said properties was void.
Pending the suit, a Receiv er was appointed by Justice A.N. Sen.
While making the appointment the learned Judge had passed an order restrain ing the Receiver from selling or ' 'transferring ' ' any of the properties.
The property in dispute is a building at Alipore, Calcutta, which comprised of four fiats.
Grindlays Bank Ltd., respondent No. 1, had taken all the four flats on lease for 10 years from 1st June, 1958.
After the expiry of the period of lease, Grindlays continued to be the tenant.
On 1st April, 1978 Grindlays surrendered a portion of the tenancy, namely, two fiats i.e. fiats Nos. 1 and 2, in favour of Tatas.
The Receiver let out these two fiats to M/s Tata Finlay Ltd. with effect from February 1979.
Questioning the action of the Receiver, an application was filed in the High Court contending that the Receiver had no authority to create 962 any tenancy, that he had virtually created two new tenancies after terminating the original tenancy of Grindlays, and that neither Grindlays nor Tatas was entitled to occupy the premises and they were liable to be evicted summarily.
The learned Single Judge was not inclined to order summary eviction as prayed for.
An appeal was filed before the Division Bench.
The Division Bench inter alia observed that any such relief could be obtained in a suit but the same could not be filed in the High Court inasmuch as the per mises in question was situated outside the Original Side Jurisdiction of the High Court.
Before this Court it was contended on behalf of the appellant that (i) the Receiver had only such powers as were expressly granted by the Court; (ii) "transfer" included lease and therefore the Receiver by creating a new lease i.e. tenancy, had violated the injunction order passed by Justice A.N. Sen; (iii) after the expiry of the stipulated period of lease in favour of Grindlays, the tenancy turned to be a monthly tenancy and therefore the entire character of tenancy changed, and the monthly tenancy therefore was a new tenancy; (iv) protection under the West Bengal Premises Tenancy Act could not be extended to the tenant of a Receiv er; (v) the break up of the tenancy affected the integrity of the tenancy inasmuch as by virtue of this break up two new tenancies had come into existence; and (vi) the lease in favour of Grindlays had expired and by creating a monthly tenancy which may even go beyond three years, the Receiver had created a new lease in violation of Chapter 21 Rule 5(a) of the Original Side Rules.
In reply, it was contended on behalf of Tatas that a monthly tenancy in respect of the said two flats had been created in their favour and therefore they were entitled to protection under the Tenancy Act.
On behalf of Grindlays it was contended that after the expiry of the period of the original lease in 1968, rela tionship between Grindlays and the Trust continued to be of landlord and tenant; that at all material times they re tained the tenancy in respect of flats Nos. 3 and 4, and were governed by the Tenancy Act; that the surrender of flats Nos. 1 and 2 by the Grindlays and their continuation as tenants at reduced rent did not amount to a new lease in respect of flats Nos. 3 and 4, and hence there was no trans fer and no violation of the injunction.
Dismissing the appeal as against respondent No. 1 and allowing it against respondent No. 2, this Court, HELD: (1) In the Transfer of Property Act, the word 'trans fer ' is 963 defined with reference to the word 'convey '.
Similarly, the term 'transfer ' as used in Section 11 or Section 88 of the Bengal Tenancy Act, included a lease, as a lease is a trans fer of an interest in immovable property.
A lease, there fore, comes within the meaning of the word 'transfer ' [968A B] Hari Mohan alias Hari Charan Pal vs Atal Krishana Bose & Ors., XXIII Vol.
Indian Cases 925, referred to.
(2) Surrender of part of the tenancy did not amount to implied surrender of the entire tenancy.
Likewise the mere increase or reduction of rent also would not necessarily import a surrender of an existing lease and the creation of a new tenancy.
[972C D] Konijeti Venkayya & Anr.
vs Thammana Peda Venkata Subba rao & Anr.
AIR 1957 A.P. 619 and N.M. Ponniah Nadar vs Smt.
Kamalakshmi Ammal, AIR 1989 S.C. 467, referred to.
(3) The Tenancy in favour of Grindlays continued as monthly tenancy for a period exceeding three years.
It was an accretion to the old tenancy and not a new tenancy It could not therefore be said that the Receiver had created tenancy for a period exceeding three years in violation of Chapter 21 Rule 5(a) of the Original Side Rules.
Merely because there was change in the character of a tenancy, namely that it had become a monthly tenancy, it did not amount to a new tenancy.
[972G H] Utility Articles Manufacturing Co. vs Raja Bahadur Motilal Bombay Mills Ltd., , referred to.
(4) A clear injuction order was passed by Justice A.N. Sen specifically restraining the Receiver from creating any new tenancy.
But the injunction did not apply to the tenancy in favour of Grindlays in respect of fiats Nos. 3 and 4 inasmuch as it was an old tenancy though in a modification form.
The Grindlays were therefore entitled to the protec tion under the provisions of the Tenancy Act.
[974G H; 975A, C] Damadilal & Ors.
vs Parshram & Ors., [1976] Supp.
SCR 645 and Biswabani (P) Ltd. vs Santosh Kumar Dutta, ; , referred to.
Ashrafi Devi & Anr.
vs Satyapal Gupta & Ors., Suit No. 966 58 dated 9th Sept. 1977.
Calcutta High Court and Armugha Gounder vs Ardhanari Mudaliar & Ors., , distinguished.
964 (5) In the case of Tatas, it was a new tenancy.
Such a lease came within the meaning of 'transfer ' and in view of the injunction order passed by Justice A.N. Sen, creation of such a new tenancy was legally barred.
Consequently the Tatas could not claim any protection under the provisions of the Act and were liable to be evicted.
[978C] Kanhaiyalal vs Dr. D.R. Banaji, ; at p. 729; Smt.
Ashrafi Devi & Anr.
vs Satyapal Gupta & Ors., (supra) and Armugha Gounder vs Ardhanari Mudalier, (supra), referred to.
|
ivil Appeals Nos.
1895 1896 1907 of 1974.
(From the Judgment and Decree dated the 14 10 1974 of the Madras High Court in Election Petitions Nos. 1 and 2 of 1974).
R. N. Choudhary and Mrs. V.D. Khanna, for the appellant in CAs 1896/74.
Y.S. Chitley, T.N.S. Srinivasavaradacharya & G. Ramas wamy, C. Lakshminarain, S.R.L. Narain and Vineet Kumar, for the appellant in CA 1907/74.
T.N.C. Srinivasavaradacharya, S.C. Lakshminarain, S.R.L.Narayan, M.S. Narasimahan, for respondent No. 10 in CA 1895, Resp.
No. 6 in CA 1896 and respondent No. 7 in CA 1907.
A. V. Rangam and Miss A. Subshashini, for respondent No. 1 in all the appeals and for respondent No. 2 in 1907.
J. M. Khanna, for respondent No. 8 in CAs.
1895 1896.
The Judgment of the Court was delivered by SARKARIA, J.
The basic facts giving rise to these appeals being common, the same will be disposed of under one judgment.
Notice calling for nominations to be filed before 3 P.M. 11 3 1974, for filling six vacancies to the Rajya Sabha from the State of Tamil Nadu in the biennial elections was issued on March 4, 1974, Eleven candidates filed their nominations.
On scrutiny which was held on March 12, 1974.
all those nominations were found to be valid.
On 541 14 3 1974, which was the last date fixed for withdrawal, three candidates withdrew their nominations leaving eight in the field.
The poll was held on 21 3 1974.
Counting of votes took place on the same date.
The result was published, according to which, the contesting candidates secured the votes noted against their names as follows: 1.
Shri Khadar Sha . 3500 2.
Shri Khaja Mohideen . 3700 3.
Shri V. Subrahmanyam . 300 4.
Shri C.D. Natarajan . 3500 5.
Shri R. Mohanarangam .
Nil 6 .Shri section Ranaganathan . 4100 7.
G. Lakshmanan . 3600 8.
D.C. John @ Valampuri John . 3700 The requisite quota to secure the election of a candidate was fixed at 22,400/(6+1) +1 =3201 and candidates mentioned at serial Nos. 1, 2, 4, 6, 7 and 8 were declared elected.
Two Election Petitions were filed by the unsuccessful candidates.
Election Petition 1 of 1974 was filed by Shri R. Mohan Rangam and Election Petition 2 of 1974 by Shri V. Subrahmanyam.
The petitioners prayed that the election of Shri D.C. John be declared void and set aside under section 100 of the Representation of the People Act, 1951.
Each of the petitioners claimed that in the event of Shri John 's elec tion being set aside, he be declared elected under section 101 of the Act.
In addition to the Returning Officer, the Elec toral Registration Officer and the Chief Election Commis sioner, all the seven contestants were impleaded as respond ents.
The election of Shri John was assailed on the ground that on March 9, 1974, the date of the scrutiny of his nomination, he was less than 30 years ' of age and as such, did not possess the qualification as to age laid down in Article 84(b) of.the Constitution.
On these premises it was pleaded that the nomination of Shri John was improperly accepted and in consequence thereof, the result of the election has been materially affected.
A recriminatory petition No. 1/74 under section 97 read with section 83 of the Act was also filed by Shri V. Subrahmanyam petitioner in E.P. 2/ 74, opposing Mohana Rangam 's relief for declaration under section 101.
The recriminator alleged that since the petitioner in E.P. 1/74 had not secured any vote, he.
in the event of the election of Shri John being set aside, was entitled to be declared elected in the place of Shri John.
The learned trial Judge of the High Court tried all the three petitions together and decided them by a common judg ment.
8 502SCI/77 542 The trial Court held that on the date of the scrutiny of his nomination, Shri John being less than 30 years of age, was not qualified under article 84(b) of the Constitution, to contest the election to the Rajya Sabha.
On this short ground his election was set aside and the Election Petitions were accepted pro tanto.
The trial Court, however,declined to grant the further declaration under section 101 in favour of either of the election petitioners.
Aggrieved by that judgment, Shri John, has filed in this Court Civil Appeals 1895 1896 of 1974, and Shri V. Subrah manyam Civil Appeal 1907 of 1974.
The first question that fails to be determined in these appeals is: Whether Shri John Was born on May 14, 1946, as has been found by the Court below, or on May 14, 1943 as contended by him ? Mr. Chowdhary appearing for the appellant (Shri John) contends that the burden of proving that Shri John, was at the material date below 30 years of age was on the elec tion petitioner and that the latter had failed to discharge such burden.
Further grievance of Shri Chowdhary is that the High Court had wrongly rejected the oral and docu mentary evidence produced by Shri John.
We find these contentions wholly devoid of merit.
While it is true that the onus of proving that on the date fixed for the scrutiny of nominations, Shri John was less than 30 yea.rs of age, was on the election petitioners, they had amply discharged this onus by bringing on record overwhelming documentary evidence of a cogent and convinc ing character.
This documentary evidence includes no less than a dozen previous admissions and declarations made by Shri John himself about his age, between March 1964 and July 1973.
These documents containing such declarations consti tuting Shri John 's admissions are: (i) exhibit
P.7 Application for Pre University Examination.
(ii) exhibit
P 9 Application for B.A. Examination.
(iii) exhibit P l4 Application for appearing in University Examination.
(iv) exhibit
P l5 Application for the first B.G.L. Examination.
(v) exhibit
P l7 Application for admission to B.G.L. Examina tion.
(vi) exhibit
P l8 Application for second B.G.L. Examination April 1972.
(vii) exhibit
P 19 Application for second BGL Examination, Octo ber 1972.
(viii) exhibit
P 21 Application for admission into Law Col lege.
(iv) exhibit 22 Application for B.L. Degree Examination.
543 (x) Ex.
P 23(a), (b) & (c) Applications dated 23 71973 for enrolment as Advocate submitted to the Bar Council.
(xi) Ex.
P 27 Voters Card containing declaration of his age as 28 years signed by Shri John.
(xii) exhibit
P 87 a Book written by Shri John, containing a passage on its page 18 suggesting the inference that Shri John was born in 1946.
All these documents aforesaid contain admissions made by Shri John that he was born in 1946.
In several of these documents he declared 14 5 1946 as his date of birth.
It is well settled that a party 's admission as defined in Sees.
17 to 20, fulfilling the requirements of Sec. 21, Evidence Act, is substantive evidence proprio vigore.
An admission, if clearly and unequivocally made, is the best evidence against the party making it and though not conclu sive, shifts the onus on to the maker on the principle that "what a party himself admits to be true may reasonably be presumed to be so" and until the presumption was rebutted the fact admitted must be taken to be established.
The above principle will apply with greater force in the instant case.
Here, there are a number of clear admissions in prior declarations precisely and deliberately made in solemn documents by Shri John.
These admissions were made ante litem motam during the decade preceding the election in question.
These admissions were entitled to great weight.
They had shifted the burden on the appellant (Shri John) to show that they were incorrect.
The appellant had miserably failed to show that these admissions were incor rect.
Apart from the evidence of these prior admissions the election petitioners had brought other documentary evidence, also, pointing to the conclusion that Shri John was born on 14 5 1946 and not 14 5 1943.
This evidence consisted of 1.
(a) Exhibit P 1 an entry in the records of St. Xavier 's College School, wherein the date of Shri John 's birth is recorded as 14 5 1946; (b) exhibit
P.3 which purports to have been signed by the guardian of Shri John, declar ing his age as 14 5 1946; (c) Ex.
P 2, the E.Ss.
L.C. signed by Rama Prabhu, the Secretary to the Commission for Government Examinations.
This Certificate was issued under the authority of law.
exhibit
P 4 Secondary School Leaving Certifi cate wherein Shri John 's date of birth is entered as 14 5 1946.
544 3.
exhibit
P 50, copy of the Fort St. George Gazette, dated 19 2 1964 showing Shri John 's date of birth as 14 5 1946.
(a)Ex.
P 5 the transfer certificate issued by the St. Xavier 's High School.
(b) exhibit
P 10 transfer certificate issued by the Principal of the College.
(c) exhibit
P 13 entry in the admission register of the College for joining the first year B.G.L. (d) exhibit
P 16 entry in the admission regis ter of the College, for admission to second year B.G.L. Class.
(e) exhibit P 10 entry in admission register of the College, 5.
Bar Council Records relating to exhibit 'P 23. 6.
Marriage Register, exhibit
P 29, containing in the column captioned "Age" as against the name of Shri John, the entry "26 years" and the date of his baptism as 19 10 1946.
Ex.P.30, Periodical report from the Church es regarding marriages solemnised therein, required under the , showing that Shri John 's marriage was solemnised in St. Francis Xavier 's Church ' Madras, on 6 4 1972 by Fr. G.K. Swami, and that on the date of this marriage he was 26 years of age.
Exhibits P11, P 11(a), P 12 and P l2(a) records T.E.L.C. Kabis High School showing Shri John 's date of birth as 14 6 1946.
9. Ex.p 28 Book Varalatril Kalaignar Writ ten by Shri John containing biographical sketch.
Therein, his date of birth is men tioned as 14 10 1946.
The petitioner had also examined witnesses who testi fied with regard to these documents and the facts appear ing therein.
The learned trial Judge has carefully dis cussed and evaluated this documentary and oral evidence.
No material error or illegality on the part of the learned Judge in appreciating this evidence has been pointed out.
The learned Judge found that the entries, Ex.P.29, in the Marriage Register are of great evidentiary value.
Mr. Chaudhury assails this finding.
According to him, no legal provision or rule of practice requires that the date of Baptism should be entered in such Register.
Secondly, it is urged that the date of baptism given therein is 19 10 1946, which stands falsified by the evidence of Rev. Fr. Rosario, the Parish Priest who had baptised Shri John about 7 days after his birth in 1943.
It is further argued that the best evidence as to Shri John 's date of birth could be that of the entry in the Public Birth Register maintained under authority of law and that the election petitioner on whom the onus lay, did not produce that evidence.
545 We find no substance in these contentions.
In the witness box both Shri John (RW. 1 ) and his eider brother (RW 3 )admitted their respective signatures on this entry (Ex.P. 29) in the Marriage Register.
They however, con tended that the information about the date of baptism was not supplied by them to the Priest who solemnised the mar riage and made this entry.
The eider brother (RW. 3) howev er, admitted that they had signed the Register, notwith standing the fact that the age of Shri John was mentioned therein as 26 years.
Both the brothers however, admitted that Shri John 's marriage was solemnised in St. Francis Xavier Church on 6 4 1972.
In view of the admissions of RWs 1 and 3, the High Court was right in holding that Ex.P.29 stood proved, and the entries therein were entitled to great weight.
As regards the Birth Register of 1946, the election petitioner made repeated attempts to get the same summoned and produced in Court.
The process issued by the Court was returned with the report that the Register of 1946 was untraceable.
Thereafter, a direction was issued by the Court to trace and produce it.
A search for this record was made by the record remained untraceable.
The Election Petitioner contended before the High Court that Shri John had by the exercise of his influence, prevented the produc tion of this record.
The High Court found this charge to be incorrect.
Nevertheless, it held that the Public Birth Register of 1946 had been lost long ago.
This being the case, the non production of the Birth Register of 1946, must be held to be a neutral circumstance.
The discrepancy pointed out by Shri Choudhury as to the date of the baptism of Shri John, takes us to the evidence produced by him.
Shri John brought on the record three documents, R1, R2 and R4.
R 1 is an extract from the Bap tism Register kept by the Ovari Tuticorin Diocese.
The document R 1 according to the High Court was induct ed in a questionable manner, without even an application for it.
This was issued by the Parish Priest, Peter Royan (RW 5), and purports to be a copy of an entry in the Baptism Register, which according to the admission wrung out from RW 5, had itself been re written and copied from the original.
The Parish Priest conceded that he had burnt the original because it was in a very bad condition.
The High Court found and we think rightly that this explanation of non production of the original was thoroughly unsatisfactory, and unbecoming of any Christian, more so, one connected with Church affairs, that by this 'unholy act ' of burning the register which was a violation of.
Canon 777, Paragraph 676, the witness (RW 5) had done great disservice to Christianity and greater disservice to the cause of truth".
Since R 1 was only a copy of a copy (R 4), the prepara tion of which was itself suspect and the explanation about the non production of the original was palpably unbelieva ble, these documents were rightly ruled out of evidence.
R.W. 2, Rev. Fr.
Rosario stated that he positively remembered that in the year 1943 when he was the Parish Priest, he had baptised Shri John.
The witness was an old man.
He had no Baptism Regis 546 ter or any other contemporaneous record to refresh his memory with regard to an event which took place more than a quarter of a century back.
He was deposing to a fact in issue merely from memory.
Human memory being fallible, it was hazardous to accept his ipse dixit.
The oral evidence of the witness could not be preferred to the entry in the Marriage Register, exhibit P 29, showing that Shri John on the date of his marriage, which took place in 1972, was 26 year old and had been baptised in 1946.
It is true that there is a slight discrepancy between the date of his baptism as entered in the Marriage Register and the date of his birth as admitted by him in the various applications he submitted for admission to various classes in College or for enrolment as an Advocate.
But there is no discrepancy with regard to the year of birth as well as baptism being 1946.
In exhibit
P. 29, the date of his baptism is entered as 19 10 1946.
The biodata appearing in the book exhibit
P.28, which, according to the publisher, RW 4, was entered by him on the basis of information derived from Shri John, gives his date of birth as 14 10 1946, while all the numerous public records, the declarations constituting the prior admissions of Shri John, produced in evidence by the Election Petitioner, consistent ly show Shri John 's date of birth as 24 5 1946.
We have been taken through the oral evidence rendered by Shri John (RW 1) and his eider brother (RW 3).
Their inter ested testimony makes interesting reading.
Shri John was asked in cross examination to state how he came to contest the Rajya Sabha elections ? He replied that, as usual, in his village Ovari, he was having a dis cussion with the members of his community to settle a dispute between owners of catamaran and mechanised boats.
A suggestion was made to him that he should contest an elec tion to Parliament as a representative of the fishermen community.
Shri John told them that ". an election to the Council of States is fast approaching and the only thing is I cannot enter the Rajya Sabha, because I have not complet ed the age of 30 years." Shri John was further questioned by the Counsel: "Then what happened ?" He replied: "My eldest brother was one among those who were assembled there.
He told me along with another elderly gentleman, whose name I am not able to recollect now: "What non sense are you talking? You have compleated 30 years positively." Moreover they told me in adition : We have to refer to the Registers kept in the Church ' ".
With this idea put into his head, the witness next morning along with his brother visited the village Church and met Rev. Fr.
Peter (R.W. 5) and asked for the Baptism Register relating to the witness.
Rev. Fr.
Peter took out the Register, exhibit R 4, and turned .the leaves, and to the surprise of the witness, he saw his date of birth noted therein as 14 5 1943.
Thereafter, Shri John approached the Chief 547 Electoral Officer, Madras, and made an application (Ex.P.23) on 26 2 1974 for correction and change of the date of his birth, as noted in the Electoral Roll, from '14 5 1946 ' to '14 5 1943 '.
His application was allowed and the entry in the Electoral Roll as to age wag amended accordingly on the 6th or 7th March 1974.
On further cross examination, Shri John frankly conceded that before seeing the Baptism Register in the second week of February 1974, he had all along been under the genuine impression that he was born on 14 5 1946.
It was only on seeing the Register that he came to believe that he was born in 1943.
It is to be remembered that this Baptism Register (R. 4) is the same, which was found by the High Court to be a suspicious record, prepared in suspicious circumstances, wholly unworthy of reliance.
3, the eider brother of Shri John also stated that when the elders of the village asked him to contest the election, he replied that he had not attained the proper age, i.e. "31 years" which was necessary to contest the election.
Immediately, the witness intervened: "What non sense you are talking ? You have attained the proper age . you must go and refer in the Church".
About their going to Priest Rev. Fr.
Peter Royan at the village Church and scrutinising the Baptism Register his version is more or less the same as of RW 1.
This witness, as already noticed, admitted that at the time of his broth er, Shri John 's marriage, he had also signed the entry, exhibit
P 29, in the Marriage Register on 6 4 1972.
He further conceded that in this entry exhibit P 29, the age of the bride groom, Shri John, was mentioned as 26 years.
He further conceded that in exhibit P. 29, the date of Shri John 's baptism is noted as 19 10 1946.
But the witness, wanted the Court to have it believed that he had signed this entry without looking into it.
This version was too incredible to be swallowed without demur.
The conclusion was inescapable that on 6 4 1972, Shri J.D. Mohan, RW 3, the eldest brother of Shri John, whose parents were dead, knew that the particulars of this entry.
showing his age to be 26 years on 6 4 1972, and the date of his baptism in 1946, were true.
That is why he and his brother John, without raising any objection, affixed their signatures thereto in token of its correctness.
We need not dilate on the question of Shri John 's age further.
All aspects of this issue have been discussed threadbare by the High Court.
Suffice it to say, that from the evidence on record it stood clearly established that on the date of the scrutiny of the nominations, Shri John was less than 30 years of are and in view of Article 84(b) of the Constitution he was not competent to contest the elec tion for the Rajya Sabha.
His nomination was therefore improperly accepted by the Returning Officer, and this improper acceptance has, in so far as it concerned the returned candidate, Shri John, materially affected the result of the election.
Shri John 's election was thus rightly set aside by the High Court.
Now we come to the second question, whether Shri V. Subramanyan, appellant in C.A. 1907 of 1974, is entitled to be declared elected in lieu of Shri John whose election has been set aside ? 548 Shri Ramaswami, learned Counsel for this appellant, has advanced alternative arguments.
It is submitted that since Shri Mohana Rangam did not secure any vote at all, he had ceased to be a continuing candidate and stood ' automatically excluded, leaving only Shri Subramanyam, sole continuing candidate in the field.
It is emphasised that Shri Rangam has not filed any recriminatory petition.
In this situa tion, it is maintained, Shri Subramanyam would be deemed to have been elected, although he had secured only 300 votes.
Reference in this connection has been made to Rule 81(2) of the Conduct of Election Rules, 1961.
The alternative argument of Shri Ramaswami is that since Shri John was not a qualified candidate, the votes cast in his favour have to be treated as thrown away, and even if both Shri Mohan Rangam and Shri Subramanyam are assumed to be continuing_ candidates, the surplus votes cast in favour of the five successful candidates had to be trans ferred and redistributed in favour of these continuing candidates.
It is urged that for this purpose the Court should send for and scrutinise the ballot papers for further counting.
Shri Ramaswami further pointed out that the observations of this Court in Viswanatha Reddy vs Konap pa Rudrappa Nadganda(1) to the effect, that the votes cast in favour of the disqualified candidate are to be treated as thrown away, are equally applicable to the elections for filling vacant seats in the Council of States, notwithstand ing the fact that these elections are held according to the system of proportional representation with a single trans ferable vote whereunder there is no question of obtaining majority of valid votes, but only the required quota.
In support of his contentions Shri Ramaswami has copi ously referred to the treatise, the Single Transferable Vote by K.V. Krishnaswamy Aiyar published in 1946, and the rele vant provisions of the Conduct of Election Rules, 1961 (for short, referred to as the Election Rules).
The provisions material for our purpose are contained.in Part VII of the Election Rules.
Shri K.V.
Krishnaswamy Aiyar m his book,The Single Transferable Vote (1946 Edn.) page 23, sums up the general principles of this mode of election, thus: "The single vote is transferable from one nominee to another and that takes place in two contingencies where there would otherwise be a wastage of votes.
They are: (1 ) when a candidate obtains more than what is required for his success and therefore has an unnecessary surplus; (2) When a candidate polls so few votes that he has absolutely no chance and therefore the votes nominating him are liable to be wasted." Relevant Rules in Part VII of the Election Rules are modulated on the principles enunciated by Shri Aiyar in the aforesaid book.
The (1) A.I.R. 1969 S.C. 604.
549 material provisions are contained in Rule 2(1)(c), 67, 70, 71, 73 to 81 and 85.
Under the scheme and system envisaged by these Election Rules, each elector has only one vote, irrespective of the number of seats to be filled.
But that single vote is transferable from one candidate to another.
The ballot paper bears the names of the candidates, and the elector marks on it his preferences for the candidates by denoting it with the figures 1, 2, 3, 4 and so on against the names chosen by him and this denotation is understood to be alter native in the order indicated (vide Aiyar 's The Single Transferable Vote), The figure 1 set by the elector opposite the name of a candidate means "first preference"; the figure 2 set opposite the name of a candidate, the "second prefer ence", and so on [Rule 71(ii)].
The minimum number of valid votes requisite to secure the return of a candidate at the election is called the quota.
At an election where only one seat is to be filled, every ballot paper is deemed to be of the value of 1 at each count, and the quota is determined by adding the values credit to all the candi dates, and dividing the total by 2, and adding 1 to the quotient, ignoring the remainder, if any, and the resulting number is the quota, vide, Rule 75 (1 ).
At an election where more than one seat is to be filled, every ballot paper is deemed of the value of 100 and the quota is determined by adding the values credited to all the candidates, and divid ing the total by a number which exceeds by 1 the number of vacancies to be filled, and adding 1 to the quotient ignor ing the remainder, if any, and the resulting number is the quota (Rule 76).
The computation in the preliminary process is as under: The returning officer first deals with the covers containing the postal ballot papers, and then opens the ballot boxes, counts the ballot papers and sorts out and rejects the ballot papers found invalid.
A ballot paper is deemed invalid on which (a) the figure 1 is not marked; or (b) the figure 1 is set opposite the name of more than one candidate or is so placed as to render it doubtful to which candidate it is intended to apply; or (c) the figure 1 and some other figures are set opposite the name of the same candi date; or (d) there is any mark or writing by which the elector can be identified (Rule 73).
After rejecting the invalid papers, the returning officer (a) arranges the remaining ballot papers in parcels accord ing to the first preference recorded for each candidate; (b) counts and records the number of papers in each parcel and the total number; and (c) credits to each candidate the value of the papers in his parcel.
He then determines the quota in accordance with Rule 75(1), or Rule 76, if the election is to fill one seat or more than one seat, as the case may be.
550 If (at any election held for filling more than one seat) at the end of any count or at the end of the transfer of any parcel or sub parcel of an excluded candidate the value of ballot papers credited to a candidate is equal to, or great er than the quota, that candidate shall be declared elected (Rule 78).
if at the end of any count the value of the ballot papers credited to a candidate is greater than the quota, the surplus is transferred in accordance with the provisions of Rule 79, to the continuing candidates indicat ed in the ballot papers of that candidate as being next in order of the electors ' preference [Sub Rule (1 ) of Rule79] "Surplus" means the number by which the value of the votes original and transferred, of any candidate exceed the quota [Sub rule (6) of Rule 71].
"Continuing candidate" means any candidate not elected and not excluded from the poll at any given time [Sub rule (1 ) of Rule 71].
If more than one candidate have a surplus, the largest surplus is dealt with first and the others in order of magnitude, but every sur plus arising on the first count is dealt with before those arising on the second count and so on.
Where there are more surpluses than one to distribute and two or more surpluses are equal, regard shall be had to the original votes of each candidate and the candidate for whom most original votes are recorded shall have his surplus first distributed; and if the values of their original votes are equal,.
the returning officer decides by lot which candidate shall have his sur plus first distributed.
[Sub rules (2) & (3) of Rule 78]. "Original Vote", in relation to any candidate, means a vote derived from a ballot paper on which a first preference is recorded, for such candidate.
If the surplus of any candidate to be transferred arises from original votes only, the returning officer shall exam ine all the papers in the parcel belonging to that candi date, divide the unexhausted papers into sub parcels accord ing to the next preferences recorded thereon and make a separate sub parcel of the exhausted papers [Clause (a) of sub rule (4) of Rule 78].
"Exhausted paper" means a ballot paper on which no further preference is recorded for a continuing candidate, provided that a paper shall be deemed to have become exhausted whenever (a) the names of two or more candidates, whether continuing or not, are marked with the same figure and are next in order of preference; or (b) the name of the candidate next in order of preference, whether continuing or not, is marked by a figure not falling consecutively after some other figure on the ballot paper or by two or more figures [Sub Rule (3) of Rule 71].
The Returning Officer has to ascertain the value of the papers in each sub parcel and of all the unexhausted papers.
If the value of the unexhausted papers is equal or less than the surplus, he shall transfer all the unexhausted papers at the value at which they were received by the candidate whose surplus is being transferred.
If the value of the unex hausted paVers is greater than the surplus, he shall trans fer the sub parcels of unexhausted papers and the value at which each paper shall be transferred shall be ascertained by dividing the surplus by the total number of unexhausted Papers [Sub Rule (4) of Rule 78].
Sub Rule (5) indicates the procedure where the surplus of any candidate to be transferred arises from transferred as well as orginal votes; All papers in the parcel or sub parcel of an elected candidate not tansferred under this rule have to set apart as finally dealt with [Sub Rule (7) of Rule 78].
551 Rule 80 speaks of exclusion of candidates lowest on the poll.
It reads: "80.
Exclusion of candidates lowest on the poll.
(1) If after all surpluses have been transferred as hereinbefore provided, the number of candidates elected is less than the required number,, the returning officer shall exclude from the poll the candidate lowest on the poll and shall distribute his unexhausted papers among the continuing candi dates according to the next preferences re corded thereon; and any exhausted papers shall be set apart as finally dealt with.
(2) The papers containing original votes of an excluded candidate shall first be trans ferred, the transfer value of each paper being one hundred.
(3 ) The papers containing transferred votes of an excluded candidate shall then be transferred in the order of the transfers in which, and at the value at which, he obtained them.
(4) Each of such transfers shall be deemed to be a separate transfer but not a separate count.
(5) If, as a result of the transfer of papers, the value of votes obtained by a candidate is equal to or greater than the quota, the count then proceeding shall be completed but no further papers shall be transferred to him.
(6) The process directed by this rule shall be repeated on the successive exclusion one after another of the candidates lowest on the poll until such vacancy is filled either by the election of a candidate with the quota or as hereinafter provided.
(7) If at any time it becomes necessary to exclude a candidate and two or more candi dates have the same value of votes and are the lowest on the poll, regard shall be had to the original votes of each candidate and the candidate for whom fewest original votes are recorded shall be excluded; and if the values of their original votes are equal the candi date with the smallest value at the earliest count at which these candidates had unequal values shall be excluded.
(8) If two or more candidates are lowest on the poll and each has the same value of votes at all counts the returning officer shall decide by lot which candidate shall be excluded.
" Rule 81 deals with the filling of the last vacancies.
It may also be extracted in full because a good deal of argument is founded on it.
It provides: "81.
Filling the last vacancies. (1) When at the end of any count the number of continuing candidates is reduced to the number of vacancies remaining unfilled, the continu ing candidates shall be declared elected.
552 (2) When at the end of any count only one vacancy remains unfilled and the value of the papers of some one candidate exceeds the total value of the papers of all the other continuing candidates together with any sur plus not transferred, that candidate shall be declared elected.
(3 ) When at the end of any count only one vacancy remains unfilled and there are only two continuing candidates and each of them has the same value of votes and no sur plus remains capable of transfer, the return ing officer shall decide by lot which of them shall be excluded; and after excluding him in the manner aforesaid, declare the other candi date.
to be elected.
" The stage is now set for dealing with the contentions canvassed before us.
The first question that falls to be considered is: Whether Shri Mohana Rangam, on account of his failure to secure any vote in the first count is to be treated as excluded from the poll ? In other words, had he ceased to be a 'continuing candidate ' within the contempla tion of the Election Rules ? We have already referred to the definition of 'Continuing Candidate ' in Rule 71(1).
The definition has two elements which must be satisfied before a candidate can be said to be a continuing candidate.
He should be a "candidate not elected" and further.
he must not have been excluded from the poll at any given time.
Shri Mohann Rangam fulfils both these conditions.
Shri Ramaswami however,, contended that this definition is to be interpreted and applied in the light of what has been said in Rules 74 and 81.
The argument is that an essential pre requisite to the continuance of a candidate is the allotment of a "basket" or "parcel" under Rule 74, and only such candidate is entitled to the allotment of a 'ba sket ' who at the end of the count, gets some vote to his credit and opens his account.
Since Shri Rangam proceeds the argument did not get any vote whatever, he stood auto matically excluded and no question of allotting any "parcel" to him arose.
The contention must be repelled.
There is nothing in Rule 74 or any other Rule which, at an election to fill more than one seat, requires or empowers the returning officer to exclude a candidate from the poll merely on the ground that in the counting of the first preferences, he has not secured any valid vote.
SubRule (3) of Rule 75, to which reference was made at one stage, has no application to the instant case.
That sub rule which requires the returning officer to exclude from the poll a candidate whose score is the lowest governs the counting of votes where only one seat is to be filled and at the end of any count, no candidate can be declared elected.
Such is not the case before us.
Rule 80 also can have no application because it comes into operation at a stage "after all sur pluses have been transferred".
That stage never arrived in the instant case because in the first counting itself, all the six seats were filled up, six candidates 553 (including Shri John) having secured the requisite quota of first preference votes.
Nor did the stage for applying Rule 81 arise, because at the end of the first count, no vacancy remained unfilled.
We therefore, repel the contention of the learned coun sel and hold that Shri Mohana Rangam did not get automati cally excluded.
Both he and Shri Subramanyan were 'contin uing candidates '.
Shri Subramanyan could not be declared elected as he had not obtained the required quota of 3,201 votes.
This takes us to the next question.
Should all the votes that had polled in favour of the candidate (Shri John) who has been found by the Court to be statutorily disquali fied for election,, be regarded as thrown away, and in consequence, the appellant, Shri Subramanyan, who secured 300 votes as against none obtained by Shri Mohana Rangam, be declared elected ? Again, the answer to this question, in our opinion, must be in tire negative.
It is nobody 's case that the electors who voted for Shri John, had at the time of election, knowl edge or notice of the statutory disqualification of this candidate.
On the contrary, they must have been under the impression that Shri John was a candidate whose nomination had been validly accepted by the returning officer.
Had the electors notice of Shri John 's disqualification, how many of them would have voted for him and how many for the other continuing candidates, including Sarv Shri Subramanyan and Mohan Rangam, and in what preferential order, remains a question in the realm of speculation and unpredictability.
In the view we take, we are fortified by the observa tions in this Court 's decision in R.M. Seshadri vs
G.V. Pai (1).
In that case, the election of R.M. Seshadri to the Madras Legislative Council was set aside on the ground that he was guilty of the corrupt practice of hiring or procuring motor vehicles to carry voters.
The total votes polled were 12,153.
Since the voting was by a single transferable vote, three out of the five candidates were eliminated at different counts with the result that their votes were transferred to the second candidate named in the ballot.
At the final count Seshadri received 5643 votes and his nearest rival, G.V. Pal received 5388 votes.
The number of the voters who were carried in the hired or procured vehicles could not be ascertained.
Before this Court, it was contended that the election of Seshadri having been set aside, G.V. Pai who had polled the next highest number of votes should be declared elected.
Hidayatullah C.J. speaking for the Court, rejected this contention with these observations: "This (question) will depend on our reaching the conclusion that but for the fact that voters were brought through this cor rupt practiee to the polling booths, the result of the election had been materially affected In a single transferable vote, it is very difficult to say how the voting would have gone; , , at page 701 554 because if all the votes which Seshadri had got, had gone to one of the other candidates who got eliminated at the earlier counts, those candidates would have won.
We cannot order a recount because those voters were not free from complicity.
It would 'be speculating to decide how many of the voters were brought to the polling booths in car.
We think that we are not in a position to declare Vasanta Pai as elected, because that would be merely a guess or surmise as to the nature of the voting which would have taken place if this corrupt practice had not been perpetrated.
" The position in the instant case is no better.
It is extremely difficult, if not impossible, to predicate what the voting pattern would have been if the electors knew at the time of election, that Shri John was not qualified to contest the election.
In any case, Shri Subramanyan.
was neither the sole continuing candidate, nor had he secured the requisite quota of votes.
He cannot therefore, be declared elected.
The dictum of this Court in Viswanatha vs Konappa (supra) does not advance the case of the appellant, Shri Subramanyan.
In that case, the election in question was not held according to the system of a single transferable vote.
There were only two candidates, in the field for a single seat, and one of them was under a statutory disqualifica tion, Shah J. (as he then was) speaking for the Court, held that the votes cast in favour of the disqualified candidate may be regarded as thrown away, even if the voters who had voted for him were unaware of the disqualification, and the candidate securing the next highest number of votes was declared elected.
The learned Judge was however careful enough to add: "This is not to say that where there are more than two candidates in the field for a single seat, and one alone is disquali fied, on proof of disqualification all the votes cast in his favour will be discard ed and the candidate securing the next highest number of votes will be declared elected.
In such a case, question of notice to the voters may assume, significance, for the voters may not, if aware of the disqualification, have voted for the disqualified candidate" The ratio decidendi of Viswanatha vs Konappa is applicable only where (a) there are two contesting candidates and one of them is disqualified,.
(b) and the election is on the basis of single non transferable vote.
Both these condi tions do not exist in the present case.
As already dis cussed, Shri Subramanyan appellant was not the sole surviv ing continuing candidate left in the field, after exclusion of the disqualified candidate, Shri John.
The election in question was not held by mode of single transferable vote according to which a simple majority of votes secured en sures the success of a candidate, but by proportional repre sentation with single transferable vote, under which system the success of a candidate normally depends on his securing the requisite quota.
555 However, the principle underlying the obiter in Viswanatha vs Konappa, which we have extracted, is.
applica ble to the instant case because here, after the exclusion of the disqualified candidate, two continuing candidates were left in the field.
| Under section 38(1)(b)(i) of the Gujarat Municipalities Act, 1963, if a councillor.
during the term for which he has been elected or nominated, acts as a councillor in any matter in which he has directly or indirectly any share or interest, he shall, subject to the provisions of sub section 2, be disabled from continuing to be a councillor and his office shall become vacant.
While functioning as President of a municipality the appellant obtained a plot of land within the municipality for running a mill.
The Chief Officer who was the authority to grant such permission permitted the appellant to hold the plot on certain conditions.
The High Court in writ petition by the respondent held that the appellant was disqualified from continuing President of the municipality.
Allowing the appeal to this Court, HELD: (1) Section 38(1)(b)(i) disables a councillor from continuing as such if he, "acts as a councillor" in the matter of allotment of any land to himself; there is no bar in the Act to a councillor getting a lease of the land from the municipality as would appear from section 11(3)(A)(i).
It is only in a case where he acts as a councillor in getting the lease that he is disqualified.
There is nothing on the record to show that the appellant had acted as a councillor to have the plot allotted to himself.
[887 H] (2) Whether or not the Chief Officer was influenced by the fact that the applicant before him was President of the municipality, was not relevant to the question whether section 38(1)(b)(i) was attracted.
[888 A] (3) The general power of supervision conferred on the Presi dent does not imply that in every case where he applied for a lease, which he is entitled to do as section 11(3)(A)(i) indi cates, he should be deemed to have 'acted ' within the mean ing of section 38(1)(b)(i); otherwise the President of a munici pality under the Act, by virtue of his office would be disentitled altogether from applying for permission to use any land of the municipality.
If this were the correct position then there was no point in limiting the disqualifi cation contemplated in section 38(1)(b)(i) to cases where the councillor acts as a councillor.
The words 'acts as a councillor ' cannot be treated as redundant.
The councillor acts as a councillor within the meaning of section 38(1)(b)(i) when he performs any of the functions, which, under the Act, he is required to perform.
An allegation of misuse of his position against a councillor would not attract the disabil ity unders.
38(1)(b)(i) unless it was shown further that he has acted as a councillor in the matter.
[888 B D]
|
Appeals Nos. 123 to 127 and 135 of 1953.
102 On appeal from the judgment and decree dated the 12th May 1950 of the Patna High Court in Appeal from Original Orders Nos. 266, 267, 268, 271, 274 and 280 of 1948 arising out of the Order dated the 26th June 1948 of the Court of the District Judge, Purulia in Insolvency Cases Nos. 1/44, 13/46, 12/46, 10/46 and 44/41, respectively.
section C. Isaacs (P. K. Chatterjee, with him) for the appellant.
Bhabananda Mukherji, section N. Mukherji and B. N. Ghose, for the respondents.
February 14.
The Judgment of the Court was delivered by CHANDRASEKHARA AIYAR J.
These appeals are by a creditor of six employees in the Tin Plate Co. of India Ltd. who had been adjudged insolvents.
The employees are members in a Provident Fund of the Tin Plate Co. and there were amounts standing to their credit in the said Fund.
The creditor, Mukti Lal Agarwala, filed applications under section 4 of the Insolvency Act for orders that the amounts standing to the credit of the insolvents in the Provident Fund account were their properties and had vested in the court and were available for distribution amongst the creditors.
He sought a direction that the monies may be brought into Court.
The petitions were directed primarily against the Tin Plate Co. Ltd. and the Trustees of the Provident Fund.
They pleaded in answer that the amount standing to the credit of each insolvent in the Provident Fund represented the contributions of the Company and of the employees and that the corpus was a trust fund in the hands of the trustees of the fund; so they were not properties of the insolvents over which they had a disposing power and that they were not debts due to the insolvents.
It was said that according to the rules governing the Provident Fund the monies become payable to the employee or any other member of his family only on the happening of certain contingencies ' such as retirement, discharge, 103 dismissal or death and that till then no right accrued to the insolvent.
It was further urged that the trustees could not be removed from the custody and control of the fund by the Official Receiver.
The Insolvency Court, which was the court of the District Judge at Purulia, heard the petitions and found on a construction of the rules of the Provident Fund that the monies standing to the credit of A & C accounts in the name of each insolvent was his property over which he had a disposing power and hence they were available for distribution among the creditors under the Insolvency Act.
The trustees of the Fund and the Tin Plate Co. carried the matter on appeal to the High Court at Patna and the they were successful.
The learned Judges (V. Ramaswami and Sarjoo Prasad, JJ.) held that under the rules governing the Fund the insolvents had no present disposing power over the monies standing to their credit and that the Fund was really vested in the trustees.
As the amount involved in the several petitions taken together was over Rs. 20,000, the High Court granted leave to the creditors to appeal to this court.
The main contentions urged by Mr. Isaacs on behalf of the appellants were three in number: (a) The monies standing to the credit of each insolvent in the Provident Fund are his property, though payable at a future date and the question of present disposing power arises only for bringing within the scope of the definition what may not otherwise be regarded as "property".
(b) Though the Provident Fund rules speak of a trust Fund and trustees, in reality, there was no transfer of ownership by the employees in favour of the trustees and that there is no trust as such.
(c) In any event, even on the footing that a trust was created over the Fund, the beneficial interest continues in the employees and this interest would vest in the Official Receiver for the benefit of the creditors in insolvency.
We have to examine the soundness of these contentions.
104 The Provident Fund was started on the 1st January, 1929.
The rules and regulations of this Fund are found in the deed of trust dated the 15th July, 1930, marked as Exhibit 1.
These rules, as amended from time to time in certain respects by supplementary deeds, are given in the appendix to this judgment.
On the making of an order of adjudication, the whole of the property of the insolvent shall vest in the court or in a Receiver and shall become divisible among the creditors.
(Section 28 (2) of the ).
The property of the insolvent for the purposes of vesting shall not include any property which is exempted by the Code of Civil Procedure, or by any other enactment for the time being in force from liability to attachment and sale in execution of a decree (section 28(5)).
Section 2(d) of the Act states:" 'Property ' includes any property over which or the profits of which any person has a disposing power which he may exercise for his own benefit".
A person has a disposing power over property which he may exercise for his own benefit, such as a power of appointment conferred on him under a will or a settlement, or the power of a Hindu father who is the manager of a joint Hindu family to sell the shares of his sons in the family property in discharge of their pious obligation to pay off his debts.
In clause (b) of sub section (2) of section 38 of the English Bankruptcy Act, 1914, this power is specified in these words: "The capacity to exercise and to take proceedings for exercising all such powers in or over or in respect of property as might have been exercised by the bankrupt for his own benefit at the commencement of his bankruptcy or before his discharge, except the right of nomination to a vacant ecclesiastical benefice;".
All that we have to find out is whether the amounts standing to the credit of the several subscribers in the fund who have been adjudged insolvents are divisible among their creditors.
If so, they would vest 105 in the court or the Official Receiver and would become available for distribution.
Whether they have any present interest in the monies is the primary question that falls to be considered.
Section 60 of the Civil Procedure Code sets out what property is liable to attachment and sale and what items are not.
The first part of section 60 runs in these terms: "The following property is liable to attachment and sale in execution of a decree namely, lands, houses, or other buildings, goods, money, bank notes, cheques, bills of exchange, hundis, promissory notes, Government securities, bonds or other securities for money, debts, shares in a corporation and, save as hereinafter mentioned, all other saleable property, movable or immovable, belonging to the judgmentdebtor, or over which, or the profits of which, he has a disposing power which he may exercise for his own benefit, whether the same be held in the name of the judgment debtor or by another person in trust for him or on his behalf".
The exempted items do not apply.
Clause (k) deals with funds governed by the Provident Fund Act.
Reference has, however, been made to clause (m) which speaks of "an expectancy of succession by survivorship or other merely contingent or possible right or interest".
Let us now advert to the relevant rules of the Fund.
The object of the Fund as set out in rule 2 is to accumulate for the benefit of the Company 's employees who have joined the Fund certain sums as a future provision for them and for their families.
Under rule 3, any employee, who has completed one year 's service with the Company, shall be eligible for membership.
Rule 4 provides for a declaration as regards the disposition of the Fund in the event of death.
This declaration can be cancelled and changed.
Rule 5 provides that if the declaration becomes obsolete, the trustees could decide who were to be recognized as the next of kin and that payment by them to such person will be an absolute discharge.
Every member shall be allowed to contribute any 11 106 sum not exceeding one twelfth of his or her earnings and such amounts would be credited in the name of each member in an account called 'A ' Account (Rule 6).
At the end of each year, an amount equal to the contribution by the member shall be paid by the Company and credited to another account to be opened in the name of the member and to be denominated his or her 'B ' Account.
An increased contribution by the Company in certain events at particular specified rates is contemplated by rule 7(B).
This further sum will go into a 'C ' account to be opened in the name of each member.
Rule 8 provides that the moneys of the Fund shall be invested by the Trustees in accordance with the provisions from time to time in force under the Indian Income tax (Provident Funds Relief) Act, 1929.
Every year the A, B and C Accounts are to be made up including the income from the investments according to certain calculations.
Then come the important rules 10, 11, 12, 13, 15, 16, 17 & 18.
Though the Fund is intended as a future provision for the employees and their families, the membership is purely voluntary and arises on an application to the Company, the trustees having nothing to do with the admission.
It is only the management of the Fund and the control of its funds which vests in the trustees under rule 1.
There is no transfer of the ownership of the Fund.
The contributions made by the members are not compulsory in their nature.
The monies of the Fund may, no doubt, be invested by the trustees, but the subscriber does not divest himself or herself of control over the Fund in certain respects.
He or she can declare to whom the monies are to be paid in the event of his or her death.
This declaration can be changed at any time.
If the service terminates after fifteen years, the subscriber can get the full amount in the A,B & C Accounts.
If he or she retires with the Company 's consent before completion of fifteen years ' service, he or she can get the amounts standing in A & C Accounts together with a portion in B account.
Dismissal, or misconduct, or resignation without the 107 Company 's consent before completion of the 15 years would still entitle the subscriber to the payment of the moneys in A & C Accounts.
The provision in rule 16 that on the death of any member, the amount will be paid to the next of kin, of course proceeds on the same footing that the property belongs to the subscriber. , Whether the provisions that in the event of the declaration becoming obsolete, or a member becoming insane or demented, the moneys can be paid at the absolute discretion of the trustees to whomsoever they determine to be the next of kin, or hold to be a proper and suitable person to receive payment, are valid is not a question that arises in these appeals.
Retirement or death is not a mere possibility.
It is a contingency that is sure to happen, sooner or later.
Dismissal for misconduct or resignation without consent before 15 years ' service will secure earlier payment.
(Rule 11).
It is reasonably clear from these rules that a subscriber has a present interest in the Fund though the moneys may become payable to him, or his nominee or heirs only in the future.
Even where there is a declaration about the nominee who is to receive payment after the subscriber 's death, the fund would still be the property of the subscriber in the hands of the nominee for the satisfaction of his debts, as there is no present gift to take effect immediately.
It is not easy to see how it could be maintained that the subscribers have no right, title or interest in the fund, or that such interest as they may possess is dependent upon a possible contingency which may or may not occur.
The amount standing to the credit of a subscriber even if payable in future would be a debt due by the Company to him within the meaning of section 60 of the Code and hence liable to attachment and sale.
See Banchharam Majumdar vs Adyanath Bhattacharjee(1).
Rule 17, which provides that on the adjudication of the debtor as an insolvent the amounts standing to his credit in the Fund shall be liable to be forfeited (1) Cal 936.
108 to the Fund, was strongly relied upon by the respondents.
But such a condition or agreement is invalid.
A man may give (in India only by will) property or its income to a donee with a condition that the donee 's interest will cease on bankruptcy and the property will in that event go to another; if insolvency supervenes, the property will not vest in the Official Receiver.
If there is no gift over on the cesser of the donee 's interest, the property will revert to the donee and will vest in the Official Receiver on the donee 's insolvency.
But a person cannot enter into any arrangement or agreement by which his own title will cease in the event of bankruptcy, for it would then be a fraud perpetrated on the Insolvency Law.
This principle has been enunciated in an early English case Wilson vs Greenwood(1) in the following words and adopted in later cases too: "The general distinction seems to be, that the owner of property may, on alienation, qualify the interest of his alienee, by a condition to take effect on bankruptcy; but cannot, by contract or otherwise, qualify his own interest by a like condition, determining or controlling it in the event of his own bankruptcy, to the disappointment or delay of his creditors".
In Re Dugdale(2) we find the following observations of Kay, J. "The liability of the estate to be attached by creditors on a bankruptcy or judgment is an incident of the estate, and no attempt to deprive it of that incident by direct prohibition would be valid.
If a testator, after giving an estate in fee simple to A, were to declare that such estate should not be subject to the bankruptcy laws, that would clearly be inoperative.
I apprehend that this is the test.
An incident of the estate given which cannot be directly taken away or prevented by the donor cannot be taken away indirectly by a condition which would cause the estate to revert to the donor, or by a conditional limitation or executory devise which would (1) , 476; ; , 485.
(2) 176, 182.
109 cause it to shift to another person".
The proposition is thus stated in Williams on Bankruptcyt(1) at page 293: "But the owner of property cannot, by contract or otherwise, qualify his own interest by a condition determining or controlling it in the event of his own bankruptcy to the prejudice of his creditors".
It appears to us to be unnecessary to refer to all the decisions cited and relied upon in the course of the arguments on either side.
A few cases may, however, be dealt with.
The English decisions relied upon by the learned counsel for the appellant do not furnish much guidance.
Ex part Dever.
In re Suse and Sibeth(2) was a case of what is obviously a contingent interest dependent upon a mere possibility.
The decision in Hudson vs Gribble(3) dealt with a different question altogether.
Under a scheme framed by the Municipal Corporation, persons in its service were to contribute to a Fund for the encouragement of thrift among their officers and servants a certain percentage of their salaries to be deducted from time to time from those salaries.
Were they exempt from payment of income tax under the first rule of section 146 of the Income Tax Act, 1842, was answered in the negative.
The point was whether they were exempt because they were "sums payable or chargeable on the salaries by virtue of any Act of Parliament where the same have been really and bona fide paid and borne by the party to be charged".
It is true that Lord Justice Vaughan Williams says at page 525 that the sums contributed never ceased to be the property of the persons from whose salaries or wages they were deducted; and Lord Justice Stirling observes at page 528 "It is obvious that, though the amounts so deducted are not immediately paid to the person employed, they remain his property to a great extent".
Both of them refer to the fact that the subscribers were entitled to get back their contributions upon retiring from the service.
But they were dealing with particular words employed in an Act of Parliament (1) 16th Eaition.
(2) (3) [1903] 1.K.B. 517, 110 and the rules made under a Corporation Act.
General observations of the kind should not be extracted from the context in which they were used and applied to other facts and different language.
Coming to the Indian decisions, D. Palaiya vs T. P. Sen and another(1) is a case where the rules of a provident fund created by the Tata Steel Company were similar to the rules we have before us but the forfeiture clause was construed as applying only to the portion of the amount at the credit of members ' account contributed by the company and it was read to mean that it was inapplicable to the subscribers ' own contributions.
Secretary, Burma Oil Subsidiary Provident Fund (India) Ltd. vs Dadibhar Singh(2) which held against the vesting proceeded upon the footing that there was a trust created in favour of the trustees.
Even if so, what was to happen to the beneficial interest was not dealt with.
The relevant observations are: "The forfeiture does not vest the money in the trustees, the money having already vested in them.
The money cannot be attached as a 'debt ' due to the judgment debtor, because the word 'debt ' as used in section 60 and in 0. 21, R. 46, Civil Procedure Code means an actually existing debt that is a perfected and absolute debt, not merely a sum of money which may or may not become payable at some future time or the payment of which depends upon contingencies which may or may not happen".
The decision of Beaumont,, C. J. and Rangnekar, J. in Gajraj Sheokarandas vs Sir Hukamchand Sarupchand and another(1) does not apply because in that case there was a clause in the articles providing that all moneys received by the East India Cotton Association from its members would be under the absolute control of the Association and could be used by it as if the moneys belonged to it absolutely.
Further the deposit was also subject to certain liens.
Subject to the liability to forfeiture and to the satisfaction of the liens, the deposit with interest was repayable to (1) A.I.R. 1935 Pat. 211.
(2) A.I.R. 1941 Rang.
256, 259.
(3) A.I.R. 1939 Bom.90.
111 the member on his ceasing from any cause to be a member.
The facts were, therefore, very different.
Anandrao alias Adkoba s/o Risaramji vs Vishwanath Watuji Kalar and others(1) is again a case where the money ceased to belong to the employee and the title was in the trustees.
Referring to a Karachi case reported in Ismail Jakaria & Co. vs Burmah Shell Provident Trust Ltd.(2), Bose, J. distinguished it on the ground that there the money was not vested in the trustees but was only handed over to them for the purposes of management, which was not the case before him.
The learned counsel for the respondents strongly relied on Bishwa Nath Sao vs The Official Receiver(3) and argued that there can be no property within the meaning of the Insolvency Act unless the insolvent had a present absolute power of disposal over the same but the decision which is that of a Full Bench and which interpreted the decision of the Privy Council in Sat Narain vs Behari Lal(4) does not support any such position all that was held was that on the insolvency of a father, his power to sell the shares of his sons in the joint family property to discharge the pious obligation vests in the Official Receiver, though the shares themselves do not so vest.
Sufficient has been stated above to show that not withstanding the rules of the Fund in the present case, the subscribers have an interest in the moneys which can vest in the Official Receiver on their adjudication.
Even if we regard the deed creating the fund as a trust deed, notwithstanding that, no ownership has been transferred to the trustees and all that they have got is the right of the management and control, the subscribers, who joined the fund have undoubtedly got a beneficial interest which will vest in the Official Receiver as property liable to attachment and sale under section 60 which uses the language "whether the same be held in the name of the judgment debtor or by another person in interest for him or in his behalf".
(1) A.I.R. 1944 Nag.
(3) Patna 60.
(2) A.I.R. 1942 Sind 47.
(4) [1924] L.R. 52 I.A. 22, 112 The learned Judges of the High Court held that the 'property ' mentioned in the Insolvency Act must be such that the insolvent has an absolute and unconditional present disposing power over the same.
With great respect, this, however, does not seem to be a correct interpretation.
The word 'property ' is used in the widest possible sense which includes even property which may belong to or is vested in another but over which the insolvent has a disposing power which he may exercise for his own benefit; and as pointed out already, this part of the definition has reference obviously to powers of appointment and the power of a Hindu father who is the managing member of a joint family.
The fact that on the date of the adjudicationthe insolvent could not transfer the property doesnot militate against the view that be has a vested interest in the same.
Reference was made to section 56(3) of the which provides that "Where the Court appoints a receiver, it may remove the person in whose possession or custody any such property as aforesaid is from the possession or custody thereof: Provided that nothing in this section shall be deemed to authorise the court to remove from the possession or custody of property any person whom the insolvent has not a present right so to remove".
This has no relevancy to the point at issue.
Whenever possession and custody could be taken by the Receiver, the person in whose possession and custody the property is can be evicted.
If possession or custody could not be taken, still the right of the insolvent will vest in the Official Receiver.
Mention has been made of three accounts in the Fund called A, B and C; the first represents monies contributed by the subscriber, the second consists of monies paid by the Company and the third represents what may be roughly described as bonus which represents deferred wages.
The learned counsel for the appellant confined the relief he wanted to the .amounts standing to the credit of each subscriber in his A and C Accounts and conceded that the B Account monies would stand on a different footing.
In 113 fact, even in the Insolvency Court the creditor concerned himself only with the A & C Accounts.
Mr. Isaacs contended at first that he was entitled to an order that the monies in the A & C Accounts should be brought to the Insolvency Court but later he abandoned this contention.
For the respondents, it was urged that under section 10 of the Employees ' Provident Funds Act, 1952, which came into force after these proceedings were instituted, there could be no attachment.
This again is a question which is outside the scope of the present proceedings.
Once it is held that the right, title and interest of the insolvents in the A & C Accounts with the Fund vest in the Official Receiver, it is for him under the directions of the Insolvency Court to take steps to realize the same, in whatever manner the law allows him to do.
The learned counsel for the respondents handed to us a paper showing which of the respondents was still in service and which have been discharged, their dates of appointments and of joining the posts.
Mohibulla, Anjab Alli and Hasimulla, respondents insolvents in Civil Appeal No. 124, Civil Appeal No. 127 and Civil Appeal No. 126, have been shown as discharged from service.
A.M. Joseph, Rasid Alli alias Tasim Alli, and Baldev Singh, respondents in Civil Appeals 135, 125 and 123, joined the Fund in 1933, 1932 and 1936 respectively and are still in service.
In the result, the appeals are partly allowed and there will be a declaration that the right, title and interest of the above mentioned insolvents in the moneys standing to their credit in A & C Accounts respectively will vest in the Official Receiver.
In other respects the appeals will stand dismissed.
The Tin Plate Co. which is the respondent No. 2, will pay to the appellant his costs here and in the High Court.
But the costs in this Court will be limited only to one set.
APPENDIX.
This Indenture made the fifteenth day of July, one thousand nine hundred and thirty BETWEEN THE 15 114 TINPLATE COMPANY OF INDIA LIMITED a Joint Stock Company with Limited Liability duly incorporated under the Indian Companies Act and having its Registered Office at No. 4, Bankshall Street in the City of Calcutta (hereinafter called "the Company" of the first part HARRY DOUGHLAS TOWNEND CHARLES ROLAND HATFIELD AND JAMES PERCY AINSCOUGH all of No. 4, Bankshall Street aforesaid Merchants (hereinafter called the "the Trustees" which expression shall mean and include the said Harry Douglas Townend Charles Roland Hatfield and James Percy Anscough or other the " Trustees of the fund herein mentioned for the time being appointed as hereinafter mentioned) of the Second Part and the PERSONS whose names appear in the Schedule hereto or who may by separate writings agree to become parties hereto and bound hereby of the third part WHEREAS the Company has decided to start as from the first day of January one thousand nine hundred and twenty nine a Provident Fund for the benefit of the employees of the Company (hereinafter called "the said fund") and has accepted contributions from the employees from the first January, one thousand nine hundred and twenty nine and for the management and regulations of such fund has framed rules and 'regulations NOW THIS INDENTURE WITNESSETH and it is hereby agreed between the parties hereto that the said Fund shall be governed by the following rules and regulations: Rules and Regulations 1.
The Fund shall be called "THE PROVIDENT FUND OF THE TIN PLATE COMPANY OF INDIA LIMITED".
The management of the Fund and the control of its funds shall be vested in the Trustees who will undertake such management without remuneration.
The object of the Fund is to accumulate for the benefit of the Company 's Employees who have joined 115 the Fund certain sums as a future provision for them and for their families.
All employees of the Company (excepting only such covenanted employees on the higher grades of pay as may be excluded by the Trustees at their discretion) upon completion of one year 's services with the Company shall be eligible for membership of the Fund.
Applications to join the Fund shall be in writing to the Company in a specified form and written notification shall be given by the Company to applicants of their inclusion as members.
Every application for membership shall be accompanied by a declaration in a specified form signed by the applicant in the presence of two witnesses who shall not be in any way related to the applicant.
Such declaration shall set forth the disposition in the event of his or her death while a member of the Fund of the money which shall be standing to the applicant 's credit in the Fund.
Should a member at any time desire to cancel his or her form of declaration be or she may do so by submitting to the Company a revised or substituted form in writing duly signed and witnessed in the same manner as in the case of the original form which should specifically cancel and annul all previous forms of declaration deposited by the member with the Fund.
5.In the event of the declaration as made under rule 4 having become obsolete full discretion shall rest with the Trustees as to the disposition of any sums standing to the credit of a member on his or her decease and no person or persons shall be recognised as having any claims thereto save and except such as shall be ascertained by the Trustees or their delegate duly appointed to make enquiry in that be half upon satisfactory evidence adduced as to which the Trustees or their delegate appointed to conduct the enquiry shall be sole judge to be the next of kin of the deceased member and payment by the Trustees the moneys representing his or her share in the fund 116 to the persons or person so ascertained shall operate as an absolute discharge to the Trustees from all liability there for to all persons whomsoever.
Each member shall be allowed to contribute a definite proportion not exceeding one twelfth of his or her earnings during any one year which shall be deducted from his or her earnings in monthly or weekly instalments.
Contributions as above shall be credited to an account to be opened in the name of each member to be denominated his or her 'A ' Account.
For the purpose of this fund, earnings shall be deemed to mean solely the monthly or weekly sum paid to the Employee for wages excluding from the purview of such term all accretions thereto and perquisites in the way of acting allowance commissions bonus payments overtime messing housing allowance lodging money travelling expenses and all such similar payments.
7.(a) On or as at the thirty first December in each year a sum equal to the amount contributed by each member to his or her 'A ' account during that year shall be credited by the company to another account to be opened in the name of each member and to be denominated his or her 'B ' Account.
The Company reserves to itself liberty to make such further contributions as may be requisite for the purposes of Rule 14 below.
(b) If the net dividend paid by the Company on its ordinary share capital in respect of any financial year shall be at a rate of not less than seven and a half per cent on such ordinary share capital a further sum calculated as hereinafter set out shall be paid by the Company.
Unless the Company shall decide that such further sum shall be paid into a separate Fund or otherwise than into this Fund such further sum shall be paid into this Fund to another account to be opened in the name of each person who shall have been a member on the thirty first day of December in the said financial year and to be denominated his or her 'C ' account.
The amount of such further sum 117 shall depend upon the rate of such net dividend and shall be ascertained according to the following scale: Rate of net dividend paid Amount of the further sum as aforesaid.
sum payable.
Not less than 7 1/2% and not One week 's wages.
exceeding 8 3/4% Exceeding 8 3/4 but not ex Two week 's wages.
ceeding 11 1/4% Exceeding 11 1/4 but not Three weeek 's wages.
exceeding 13 3/4% Exceeding 13 3/4% but not Four week 's wages.
exceeding 16 1/4% Exceeding 16 1/4% but not Five week 's wages.
exceeding 181% Exceeding 18 3/4% but not Six week 's wages.
exceeding 211% For each additional 2 1/2% An additional week 's wages.
For the purpose of this clause one week 's wages 'shall mean in the case of a worker in receipt of daily wages six times his daily rate of pay at the thirty first day of December in such financial year as aforesaid and in the case of a worker in receipt of monthly pay one fifty second part of twelve times his monthly rate of pay at the thirty first day of December in such financial year".
"Provided always that if at any time the Company 's Ordinary share capital shall be increased by capitalisation of any of its undistributed profits (not including profits arising from a revaluation of assets, from the sale of assets or from the sale of shares at a premium) or reduced, then the rate of net dividend paid by the Company in respect of any financial year after the coming into force of any such increase or reduction shall for the purposes of this clause be deemed to be the rate of net dividend actually so paid by the company altered in the ratio which the nominal value of the Company 's paid up capital at the end of such financial year (excluding therefrom all 118 portions of such capital which represent capitalised profits derived from revaluation of assets sale of assets or issue of shares at a premium) shall bear to the value which it would have had if such increase or increases or reduction or reductions of capital as shall come into effect after the first day of January one thousand nine hundred and thirty eight had never taken place".
"The payment into each member 's 'C ' Account in accordance with the above provisions shall be made as soon as conveniently may be after the holding of the annual Ordinary General Meeting of the Company at which such net dividend as aforesaid is finally declared and ascertained".
The moneys of the Fund shall be invested by the Trustees in accordance with the provisions from time to time in force under the Indian Income tax (Provident Funds Relief) Act, 1929.
(1) (a) On or as soon as may be after the thirty first day of December in each year the Trustees shall determine the amount standing to the credit of each member in his 'A ', B and C accounts on that date and for that purpose a general account shall be taken of the assets of the fund and of the receipts payments dealings and transactions in connection therewith during the calendar year terminating on such thirty first day of December (hereinafter referred to as the period of account).
(b) Each such general account shall comprise three revenue Accounts to be known as the 'A ' Revenue Account, the 'B ' Revenue Account and the "C" Revenue Account respectively.
The "A" Revenue Account shall be credited with all income accrued or profits realised during the period of account in respect of the investments representing moneys lying to the credit of the "A" accounts and the appreciation (if any) of such investments during the period of account.
The "A" Revenue Account shall be debited with all losses (if say) in respect of 119 depreciation of such investments and all sums paid during the period of account in respect of interest on contributions to retiring members or the representatives of deceased members as herein before provided.
The 'B ' Revenue Account shall be credited with all forfeits and all income accrued or profit realised during the period of account in respect of the investments representing moneys lying to the credit of the 'B ' Accounts and the appreciation (if any) of such investments during the period of account.
The 'B ' Revenue account shall be debited with all losses (if any) in respect of depreciation of such investments and all expenses of the Fund.
The "C" Revenue Account shall be credited with all income accrued or profit realised during the period of account in respect of the investments representing moneys lying to the credit of the 'C ' Accounts of the members, the appreciation (if any) of such investments during the said period and all interest received by the Trustees or., withdrawals made under Rule 18 hereof.
The "C" Revenue Account shall be debited with all losses (if any) in respect of depreciation of such investment as last aforesaid.
(c) The balance of the "A", "B" and "C ' Revenue Accounts respectively shall be appropriated to the "A", "B" and "C" accounts of the members in each case in proportion to the amounts standing to the credit of their respective "A", "B" and "C ' accounts at the close of the period of accounts provided always that for the purpose of such appropriation the Trustees may if they think fit disregard any sum standing to the credit of any member in his "A" "B" or the "C" Revenue Account not exceeding on( rupee and may carry forward to the next period of account any part of the balance of the "A" revenue account, the "B" revenue account or the "C" Revenue account which will not suffice to pay a complete one half percent on the total amount standing to the "B" or "C" accounts as the casecredit of the "A", may be of all the members.
Provided also that in ascertaining the amount at credit of a member 's "C ' 120 account for the purpose of calculating the proportions herein mentioned there shall be deducted from such "C" Account only those sums withdrawn under the provisions of Rule 18 hereof on which interest is not payable by him to the Fund.
(d)For the purpose of such Revenue Account the Trustees shall value the investments and securities of the Fund, and if the same shall in their opinion, which shall be final and conclusive, have appreciated or depreciated since the date of purchase, or if a general account shall have been taken subsequent to the date of purchase then since the date of the last preceding general account the amount of such appre ciation or depreciation shall be credited or debited to such revenue account as though the same were a realised profit or loss as the case may be.
(2)Notwithstanding the terms of Rule 9(1) the Trustees shall have the right should they in their uncontrolled discretion deem it necessary in the interests of the members as a whole to take out a general account of the assets of the fund as at any date in any year other than or in addition to the thirty first day of December and Members "A", "B" and "C" accounts shall be adjusted accordingly.
(3)In the case of the taking of a general account under rule 9(2) the words "the period of account" used throughout these rules shall mean and refer to (where the context shall admit) the period whereof such general account of the assets of the fund was taken under rule 9(2).
10.On retirement of any member with the consent of the General Manager of the Company before completion of more than fifteen years service with the company he or she shall be paid the entirety of the amount then standing to the credit of his or her "A" and "C" account together with one fifteenth of the moneys standing to the credit of his or her "B" account for such completed years service.
If any member before completion of fifteen 121 years service with the company shall be dismissed for misconduct or shall resign therefrom without the consent of the General Manager he or she shall be paid only the amount then standing to his or her credit in "A" account and 'C" Account.
The residue of any moneys standing to the credit of a member 's "B" account after payment of the moneys payable to him or her there out under Rule 10 and the entirety thereof if he or she shall be dismissed or resign in the circumstances as mentioned in rule 11 shall be forfeited to the Fund and carried to the "B" Revenue Account to be dealt with under Rule 9 (1) 13.
Upon termination by any means of a member 's service if more than fifteen years thereof shall then have been completed he or she shall be paid the entirety of the amount then standing to the credit of his or her "B" and "C" account.
For the computation of length of service under the foregoing rules continuous service only shall be reckoned as from the date or last date on which the employee entered or re entered service.
If in consequence of depreciation of securities the amount as received by a member or his or her representatives in respect of his or her "A" account under the last preceding rules shall fall short of the total of the contributions as made thereto the company may make an additional and contingent contribution to the fund to the amount of the deficiency for payment thereof to the member. 15.
If it shall be proved to the satisfaction of any of the trustees that any member has become insane or otherwise incapacitated from exercising proper control over his affairs they make payment out of the moneys standing to his or her credit in the Fund and at such time or times to such person or persons on his or her account as they may in their absolute discretion think expedient.
The above provisions for 16 122 payment shall not apply to moneys forfeited under Rule 17 which shall be dealt with by the Trustees at their absolute discretion thereunder.
On the death of any member while still in the service of the Company the sum standing to his or her credit in "A", "B" and 'C" accounts shall be paid to the person or persons named in the declaration form signed under Rule 4 or failing such declaration to the person or persons who shall be ascertained to be next of kin under the provisions of Rule 5.
No member of the Fund shall have any claim on the moneys standing to his or her credit therein otherwise than in accordance with the provisions of these rules and no person or persons other than a member save and except such as shall be nominated in the declaration under the provisions of Rule 4 or shall be ascertained to be the member 's next of kin under Rule 5 shall have any claim thereto in any right whatsoever.
Any assignment by a member of the moneys which would otherwise be payable to him or her under these rules whether absolute or by way of charge shall be wholly void and in the event of any member executing any such assignment or being adjudicated insolvent or if any order shall be served upon the Trustees of the Company for payment of the moneys standing to his or her credit to any person under any attachment or other process of any Court the said moneys shall at the time when they would have otherwise become payable to the member but for such assignment insolvency or attachment be liable to be forfeited to the FUND PROVIDED ALWAYS that the Trustees shall at their absolute discretion and without any legal obligation so to do pay and apply the same for the benefit of the member or his or her dependents and relatives.
Withdrawals by members of the money standing to their credit with the Fund shall not be allowed by the Trustees except that withdrawals from the amount standing to the credit of a member 's 'C ' 123 account may be allowed on the special grounds to the extent and subject to the conditions laid down by the Indian Income Tax Act and the Rules made thereunder in that behalf as in force from time to time.
There shall be not less than three Trustees of the said Fund. 20.
If and whenever any Trustees shall die resign or become incapable of acting or shall permanently leave India one or more persons in his place shall be appointed by the Company as such Trustees.
No copy shall be furnished to any member of his or her account but member may have inspection thereof in the Books of the Fund at all reasonable times.
These Rules may from time to time be altered and amended and other Rules and Regulations may be added or substituted for the management and working of the Fund in every case by the Company and the Trustees and with out reference to the parties hereto of the third part, provided always that should such addition or alteration curtail the rights or increase the obligations of the members of the Fund any member shall be entitled to withdraw from and at his or her own request in writing to the Fund, cease to be a member of the Fund in which case he or she shall be paid the money standing to his or her credit in the Fund (provided that the same shall not have become forfeited under Rule 17) or such portion thereof as he or she would have been entitled to if he or she had then retired from the service of the Company with the consent of the General Manager of the Company.
Any such alteration or amendment shall, be notified in writing to the parties responsible for according recognition to the Fund under the provisions of the Indian Income Tax (Provident Fund Relief) Act, 1929.
124 23.
The Company may at any time in its discretion dissolve or terminate the Fund and shall in such case carry out the winding up of the Fund and the members of the Fund shall receive all the moneys standing to their credit provided they shall not then have become forfeited under Rule 17 'A ', 'B ' and C '.
Any payment made in accordance with the Rules of the Fund to the member, his nominee or next of kin as ascertained or to any person or persons other than the foregoing shall operate as a full and efficient discharge of all liability of the Fund in respect thereof 25 These Rules and Regulations shall come into force with effect from the 1st day of January, 1929.
| The petitioners native of Quilon within the Travancore State had been assessed to income tax for the years 1942 and 1943, the final orders in his assessment having been passed by the Chief Revenue authority of Travancore in December 1946 and November 1946 respectively.
Travancore Taxation on Income (Investigation Commission) Act, 1124 (Act XIV of 1124) modelled on the Indian Act XXX of 1947 was passed by the Travancore Legislature, to provide for an investigation into matters relating to taxation on income.
In July 1949 , the United State of Travancore and Cochin was brought into existence as a result of integration between the two States.
All existing laws of Travancore were to continue in force by virtue of Ordinance I of 1124 which was later enacted as Act VI of 1125.
In November 1949 the Government of the 'United State of Travancore 1197 Cochin issued orders under section 5(1) of the Travancore Act XIV of 1 124 referring the cases of the petitioner for the years 1942 and 1943 (called Evasion Cases Nos. 1 & 2 of 1125) for investigation by the Travancore Income Tax Investigation Commission.
Before the Commission could make its report the Constitution of India came into force and the United State of Travancore Cochin became a part of India (Part B State) and the Travancore Act XIV of 1124 was continued in force until altered, amended or repealed by a competent authority.
In April 1950 Parliament passed Act XXXIII of 1950 whereby Taxation on Income (Investigation Commission) Act, (Act XXX of 1947) was extended to Travancore Cochin and the law of Travancore corresponding to Act XXX of 1947 was to continue in force with certain modifications.
In October 1951, a notification issued by the Indian Investigation Commission appointed Respondent No. 1 as an authorised official under section 6 of Travancore Act XIV of 1124 read with Act XXXIII of 1950.
Respondent No. I sent a copy of that notification to the petitioner on 21st November, 1951 for his information and further intimated to him that the investigation proposed to be conducted will not be confined to the years 1942 and 1943 but that it would be necessary for him to investigate the petitioner 's income for the period from 1940 to the last completed assessment year.
The petitioner filed a writ petition in the Travancore High Court against Respondent No. I and Respondent No. 2 (Indian Income Tax Investigation Commission) for a writ of prohibition or any other writ prohibiting the Respondents from holding an enquiry into the cases registered as Evasion Cases Nos. 1 & 2 of 1126 or from holding an investigation into the income of the petitioner from the year 1940 to the last completed assessment year.
The Travancore High Court held that the Respondent No. 2 had all the powers that the Travancore Commission had under Travancore Act XIV of 1124 and no more and granted the writ prohibiting respondents from conducting an enquiry into years other than 1942 and 1943.
Both the parties appealed to the Supreme Court against the order of the High Court.
A preliminary objection to the jurisdiction of the High Court to entertain the writ petition was repeated in the Supreme Court by the Attorney General.
Held, that the High Court bad jurisdiction under article 226 of the Constitution to issue a writ against Respondent No. 1 because under the provisions of section 6 of the Travancore Act XIV of 1124 the authorised official (Respondent No. 1) had considerable powers conferred upon him in the conduct of the investigation, and if he did anything as authorised official which was not authorised by law or was violative of the fundamental rights of the petitioner as in the present case be would be amenable to the jurisdiction of the High Court under article 226 of the Constitution.
Held, further that under the provisions of the Travancore Act XIV of 1124 the Commission had no authority 'to investigate any case suo motu.
It could only investigate cases referred to it by 1198 Government.
All that was done in the present case was that by two separate orders made under section 5(1) of the Act the Government referred two cases of the petitioner for the two years 1942 and 1943 to the Commission.
There was no other order under section 5(1) at any time before 16th February 1950 and none could be made under that sub section after that date.
Therefore neither Respondent No. 2 nor Respondent No. 1 who had been appointed as authorised Official by Respondent No. 2 had jurisdiction to cover any period beyond the two specific years 1942 and 1943 and the notice dated 21st November 1951 issued by Respondent No. 1 to investigate the petitioner 's income for the period from 1940 to the last completed assessment year was clearly illegal and without jurisdiction.
Held, also that section 5(1) of the Travancore Act XIV of 1124 which is to be read in juxta position with section 47 of the Travancore Inc6me Tax Act, 1121 (XXIII of 1121) is not discriminatory and violative of the fundamental right guaranteed under article 14 of the Constitution.
Section 47(1) of the Travancore Act XXIII of 1121 was directed only against those persons concerning whom definite information came into the possession of the, Income tax Officer and in consequence of which the Income tax Officer discovered that the income of those persons had escaped or been under assessed or assessed at too low a rate or had been the subject of excessive relief.
The class of persons envisaged by section 47(1) was a definite class about which there was definite information leading to discovery within 8 years or 4 years as the case may be of definite item or items of income which had escaped assessment.
The action to be taken under Travancore Act XXIII of 1121 was not confined to escapement from assessment of income made during the war period (September 1939 to 1946).
Action could be taken in respect of income which escaped assessment even before the war and also more than 8 years after the end of the war.
On the other hand under section 5(1) of the Travancore Act XIV of 1124 the class of persons sought to be reached comprised only these persons about whom there was no definite information and no discovery of any definite item or items of income which escaped taxation but about whom the Government had only prima facie reason to believe that they had evaded payment of tax to a substantial amount.
Further, action under section 5(1) read with section 8(2) of the Travancore Act XIV of 1124 was definitely limited to the evasion of payment of taxation on income made during the war period and therefore section 5(1) of the Travancore Act XIV of 1124 was not discriminatory in comparison with section 47(1) of the Travancore Act XXIII of 1121.
Election Commission, India vs Saka Venkata Rao ([1953] S.C.R. 1144), K. section Rashid & Son vs The Income tax Investigation Commission, etc.
([1954] S.C.R. 738), Azmat Ullah vs Custodian, Evacuee Property, U.P., Lucknow (A.I.R. 1955 All, 435), Burhanpur 1199 National Textile Workers Union, Burhanpur vs Labour Appellate Tribunal of India at Bombay and others (A.I.R. 1955 Rag. 148), Joginder Singh Waryam Singh vs Director, Rural Rehabilitation, Pepsu, Patiala and others (A.I.R. 1955 Pepsu 91), Chiranjit Lal Chowdhuri vs The Union of India ([1950] S.C.R. 869), Budhan Chowdhury and others vs The State of Bihar ([1955] 1 S.C.R. 1045), Suraj Mall Mohta & Co. vs A. V. Visvanatha Sastri and another ([1955] 1 S.C.R. 448), Shree Meenakshi Mills Ltd. vs Sri A. V. Visvanatha Sastri and Another ([1955] 1 S.C.R. 787), Aswini Kumar Ghose 's case ([1953] S.C.R. 1), Subodh Gopal Bose 's case ([1954] S.C.R. 587, 628), Kathi Baning Bawat vs The State of Saurashtra ([1952] S.C.R. 435), Palser vs Grinling ([1948] A.C. 291) and Kedar Nath Bajoria vs The State of West Bengal ([1954] S.C.R. 30), referred to.
|
iminal Appeals Nos.
57 and 58 of 1960.
Appeals by special leave from the judgment and order dated November 5/6, 1958, of the Bombay High Court at Nagpur in Criminal Appeal No. 94 of 1958.
Jai Gopal Sethi and G. C. Mathur, for the appellant (in Cr. A. No. 57 of 1960).
G. C. Mathur, for the appellant (in Cr. A. No. 58 of 1960).
Gopal Singh and D. Gupta, for the respondent.
December 5.
The Judgment of the Court was delivered by SUBBA RAO, J.
These two appeals raise rather an important question on the interpretation of the provisions of section 207A of the Criminal Procedure Code (hereinafter referred to as the Code). ' The facts that have given rise to these appeals may be briefly stated.
The appeals arise out of an incident that took place on November 29, 1957, when one Sadashiv was murdered in the courtyard of his house in village Nimgaon.
The case of the prosecution was that the four appellants, armed with sticks, went to the house of the deceased, dragged him 'out of the house and beat him with sticks in the courtyard; and that as a result of the beating he died on the next day at about 5 p.m. at Bhandara Hospital.
After investigation, the police submitted their report to the Magistrate under 'section 173 of the Code along with the relevant documents.
After forwarding the report, the officer in charge of the; police station furnished 892 the appellants with a copy of the report forwarded under sub section
(1) of section 173, the First Information Report recorded under section 154 and all other documents or relevant extracts thereof on which the prosecution proposed to rely, including the statements recorded under sub section (3) of section 161 and also intimated them of the persons the: prosecution proposed to.
examine as its witnesses.
The Magistrate posted the case for inquiry on February 10, 1958 and on that date the prosecution intimated that it did not intend to examine any witnesses in the Magistrate 's Court., , On behalf of the appellants no objection was raised, to,that course.
But the Magistrate adjourned the inquiry to February 12, 1958, as he wanted to consider whether any evidence was necessary to be recorded before commitment.
On February 12, 1958, reexpressed his opinion that no witness need.
be examined at that stage; thereafter, he framed charges against accused appellants under section 302, read with section 34, of the Indian Penal Code, and also under section 448 thereof and committed the appellants to the Sessions Court.
Before the learned Sessions Judge the prosecution led four types of evidence, i.e. (1) eye witnesses, namely, P.Ws. 6, 11, 20 and 25; (2) dying declaration, exhibit P 15, supported by P. Ws. 18,22 and 19; (3) the identification of the appellants in jail by P.Ws. 20 and 25; and (4) recovery of various articles at, the instance of the accused appellants.
The defence examined four witnesses.
On a consideration of the entire evidence, the learned Sessions Judge held that,the prosecution, case had been amply borne out and that the four appellants entered into the house of the deceased and beat him in the manner described by the prosecution wit nesses.
no less than 12 confused wounds were inflicted on the deceased, which resulted in the fracture of his ribs and injury to the lung,.
and as the, doctor opined that the death was due to shock and haemorrhage resulting from said fracture, the learned Sessions Judge hold that the accused appellants were guilty of murder and convicted them under s.302, read with a. 34, Indian Penal Code,and he further convicted them, under section 448 of the Indian 893 Penal Code for trespassing into the house of the deceased.
On these findings the learned Sessions Judge sentenced the appellants to undergo imprisonment for life on the first count and for 3 months rigorous imprisonment on the second count.
The appellants preferred an appeal against their convictions and sentences to the High Court of Bombay at Nagpur.
The learned Judges of the High Court, on a resurvey of the entire evidence, agreeing with the learned Sessions Judge, accepted the prosecution case, but they held that the appellants were guilty only under section 304, Part 1, read with section 34, Indian Penal Code, and in the result they reduced the sentence from life imprisonment to 10 years ' rigorous imprisonment in regard to appellant 1 and to 7 years ' rigorous imprisonment in regard to appellants 2 to 4.
Against the said convictions and sentences, the appellants have preferred, by special leave, appeals to this Court.
Criminal Appeal No. 57 of 1960 has been preferred by the first appellant and Criminal Appeal No. 58 of 1960 by appel lants 2 to 4.
Learned counsel for the appellants raised before us the following two points: (1) The Sessions Court and, on appeal, the High Court have not properly appreciated the evidence and the circumstances of the case in holding that the appellants had committed the offences.
(2) The trial and conviction of the appellants by the Sessions Court were null and void, as the Magistrate had no jurisdiction to commit the appellants to Sessions without examining witnesses under sub section
(4) of section 207A of the Code and that, as the order of 'committal was without jurisdiction, the defect was not cured either under section 532 or section 537 of the Code.
The first question does not merit any consideration.
Both the courts below have, carefully considered the evidence adduced by the prosecution as well as the accused appellants and have accepted the prosecution case.
It is a well established practice of this Court not to interfere on questions of fact, particularly when they are concurrent findings, except under exceptional circumstances.
We find, no such exceptional 894 circumstances in this case.
We, therefore, reject the first contention.
The second contention turns upon the interpretation of the relevant provisions of section 207A of the Code.
Before attempting to construe the relevant provisions of the section it would be helpful to notice briefly the history of the said section.
Under the Criminal Procedure Code, as it originally stood, in the matter of committal proceedings there was no distinction between the proceeding instituated on a police report and that instituted otherwise than on police report.
The main object of the committal proceedings was to hold an inquiry to ascertain and record the case which was to be tried before the Court of Sessions.
It was primarily to give an opportunity to an accused to know in advance the particulars of evidence that would be adduced against him in the Court of Sessions so that he could be in a position to prepare his defence.
Another object, which was no less important, was to enable the Magistrate to discharge an accused if there was no prima facie case against him.
This procedure prevented unnecessary harassment to such accused and at the same time saved the valuable time of the Sessions Court.
In practice the committal proceeding, whether intended by the Legislature or not, served another purpose, namely, it gave an opportunity to the accused to test the credibility of witnesses by bringing out the discrepancies between their evidence in the committing court, the statements made by them to the police under section 161 of the Code and the evidence given by them in the Court of Sessions.
Though very often accused persons took full advantage of this additional opportunity to test the veracity of the witnesses, as often as not, it had turned out to be duplication of trials with the resultants long delays in the disposal of criminal cases.
The advantage of committal proceeding.
was not solely for the accused, for the.
prosecution by examining the witnesses before the committing Magistrate secured their testimony in the sense that though it was tampered subsequenty it is unfortunately a frequent phenomenon in criminal, cases it could use the said evidence as substantive 895 one under section 288 of the Code.
The Legislature, in its wisdom, presumably thought that undue delay in the disposal of sessions cases was due to the elaborate and ' prolonged committal proceedings and stepped in to amend the Code in that respect.
The whole of section 207A has been inserted by Act XXVI of 1955.
While the section simplified the procedure in regard to commitment proceedings instituted on a police report, it confined the existing procedure to proceedings initiated otherwise than on a police report.
This distinc tion between the two classes of cases had a reasonable factual basis.
In the case of a police report, a thorough inquiry would have been made and the investigating officer would have sent a report to the Magistrate under section 173 of the Code.
The amended section 173 of the Code also enjoins on the officer in charge of the police station a duty to furnish before trial, free of cost, to the accused copies of the report forwarded under that section to the Magistrate, the First Information Report recorded under section 154 and all other documents or relevant extracts thereof on which the prosecution proposes to rely, including the statements, if any, recorded under section 164 of the Code and those recorded under sub section
(3) of section 161 and a list of witnesses whom the prosecution proposes to examine as its witnesses.
The Magistrate in a proceeding instituted on police report would ordinarily be in a position, on the said material to understand the case of the prosecution and know the nature of the evidence that would be adduced on the basis of which the accused is sought to be proceeded against.
The accused also would have an opportunity to know beforehand the case he would have to meet and the evidence that would be adduced against him.
But in a proceeding instituted otherwise than on a police report, no such maternal would be available and therefore the old procedure continued to apply to such a case.
With this background let us look at the provisions of section 207A of the Code.
The relevant provisions of section 207A of the Code may now be read: Section 207A: (1) When, in any proceeding instituted on a police report, the Magistrate receives the 896 report forwarded under section 173, he shall, for the purpose of holding an inquiry under this section, fix a date which shall be a date not later than fourteen days from the date of the receipt of the report, unless the Magistrate, for reasons to be recorded, fixes any later date.
If, at any time before such date, the officer conducting the prosecution applies to the Magistrate to issue a process to compel the attendance of any witness or the production of any document or thing, the Magistrate shall issue such process unless, for reasons to be recorded, he deems it unnecessary to do so.
At the commencement of the inquiry, the Magistrate shall, when the accused appears or is brought before him, satisfy himself that 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 the same to be so furnished.
The Magistrate shall then proceed to take the evidence of such persons, if any, as may be produced by the prosecution as witnesses to the actual commission of the offence alleged, and if the Magistrate is.
of opinion that it is necessary in the interests of justice to take the evidence of any one or more of the other witnesses for the prosecution, he may take such evidence also.
The accused shall be at liberty to cross examine the witnesses examined under sub section (4), and in such case, the prosecutor may re examine them.
(6) When the evidence referred to in sub section (4) has been taken and the Magistrate has considered all the documents referred to in section 173 and has, if necessary, examined the accused for the purpose of enabling him to explain any circumstances appearing in the evidence against him and given the prosecution and the accused an opportunity of being heard, such Magistrate shall, if he is of opinion that such evidence and documents disclose no grounds for committing the accused person for trial, record his reasons ,and discharge him, unless it appears to the Magistrate 897 that such person should be tried before himself or some other Magistrate, in which case he shall proceed, accordingly.
When, upon such evidence being taken, such documents being considered, such examination (if any) being made and the prosecution and the accused being given an opportunity of being heard, the Magistrate is of opinion that the accused should be committed for trial, he shall frame a charge under his hand, declaring with what offence the accused is charged.
On the interpretation, of sub section
(4), which is the main sub section under scrutiny in the present case, the High Courts in India have expressed conflicting views.
It would not be necessary to consider the said decisions in detail, but it would be enough if we state the conflicting views, which areas follow: (1) Under sub section
(4) the prosecution is bound to examine all the eye witnesses indicated in the police report, and the discretion of the Magistrate to examine witnesses under the second part of the said sub section is only in respect of witnesses other than the eye wit nesses: vide M. Pavalappa vs State of Mysore (1), State vs Andi Betankar (2), Ghisa vs State (3 ) and Chandu Satyanarayana vs The State (4).
(2) The Magistrate 's power to examine eye witnesses under the first part of sub section
(4) is confined only to such witnesses as are produced in court by the officer conducting the prosecution and if he has not produced any such witnesses, the Magistrate cannot examine any eye witnesses under the second part of the said sub section, for, according to this view, the second part deals with only witnesses other than eye ,witnesses.
(3) If the prosecution has not produced any eye witnesses the court may not in its discretion examine any witness under the second part, but can, if satisfied, discharge or commit the accused to sessions on the basis of the documents referred to in section 178 of the Code: vide State vs Lakshmi Narain (5), State, of U. P. vs Satyavir (6).
(4) The first part confers a power on a Magistrate only to examine the eyewitnesses produced, but (1) A.I.R. (3) A.I.R. 1919 Raj.
(5) A.I.R. 1960 All. 237.
(2) A.I.R. 1958 Orissa 241.
(4) A.I.R. 1959 A.P.651.
(6) A.I.R. 1959 All.
898 the second part empowers him to examine any witness other than those produced, whether eyewitnesses or not, and in a case where the prosecution failed to discharge its duty to produce any witnesses or any important eye witnesses, the court would not be exercising its judicial discretion if it commits the accused to sessions on the basis of documents referred to under section 173 of the Code without examining at least the important witnesses: vide State vs Yasin (1), In re Pedda Amma Muttigadu (2), A. Ishaque vs The State (3) and Manik Chand vs The State (4).
We have gone through the judgments of the High Courts cited at the Bar and derived considerable assistance from them for deciding the question raised.
But as the question is to be primarily decided on the interpretation of the relevant provisions, we think, without any disrespect to the learned Judges, that it is not necessary to consider the said decisions in detail.
Now let us look at the relevant provisions of section 207A of the Code to ascertain its intendment.
Sub section
(4) is the most important section vis a vis the taking of evidence.
It is in two parts, the first part provides for the examination of witnesses produced by the prosecution and the second part for the examination of other witnesses.
One of the fundamental rules of interpretation is that if the words of a statute are in themselves precise and unambiguous "no more is necessary than, to expound those words in their natural and ordinary sense, the words themselves in such case best declaring the intention of the legislature".
The first part of the sub section reads: "The.
Magistrate shall then proceed to take the evidence of such persons, if any, as may be produced by the prosecution as witnesses to the actual commission of the offence alleged.
" The word "shall" imposes a peremptory duty on the Magistrate to take the evidence; but the nature of the said evidence is clearly defined thereafter.
The clause "as may be produced by the prosecution as witnesses to the actual commission of the offence alleged" governs the words "such persons"; (1) A.I.R. 1958 All.
(3) A.I.R. 1958 Cal.
(2) A.I.R. 1959 A.P. 469.
(4) A.I.R. 1958 Cal.
324. 899 with the result that the duty of the Magistrate to take evidence is only confined to the witnesses produced by the prosecution.
Learned counsel for the appellants contends that it could not have been the intention of the Legislature to permit the prosecution to keep back the eye witnesses in the committal court and therefore the word "produced" should be read as "cited".
To accept this interpretation is to substitute the word "cited" in place of the word "produced": such a construction is not permissible, especially, when the plain meaning of the word used by the Legislature is clear and unambiguous, and the acceptance of that meaning does not make the section otiose.
The phrase "if any" between the words "such persons" and the aforesaid clause emphasizes that the prosecution may not produce any such persons, in which case the obligation to examine such witnesses cannot arise.
The wording of the second part of the sub section is also without any ambiguity and it reads: "and if the Magistrate is of opinion that it is necessary in the interests of justice to take the evidence of any one or more of the other witnesses for the prosecution, he may take such evidence also.
" No doubt the word "may" in the clause "he may take evidence" imposes duty upon the Magistrate to take other evidence; but that duty can arise only if he is of opinion that it is necessary in the interests of justice to take the evidence.
The fulfilment of the condition that gives rise to the duty is left to the discretion of the Magistrate.
The duty to take evidence arises only if he is of the requisite opinion.
Doubtless the discretion being a judicial one, it should be exercised reasonably by the Magistrate.
If he exercises it perversely, it may be liable to be set aside by a superior court.
If so, what do the words "other.
witnesses" mean? Do they mean witnesses other than eyewitnesses or witnesses, eye witnesses or not, other than those produced before the Magistrate, by the prosecution? The witnesses who will depose to the prosecution case may be of different categories, namely, (i) witnesses who are eye witnesses to the actual commission of the offence alleged; (ii) witnesses who speak to the facts 900 which afford a motive for the commission of the offence; (iii) witnesses who speak to the investigation and to the facts unfurled by the investigation; and (iv) witnesses who speak to the circumstances and facts probablizing the commission of the offence, which is technically described as substantive evidence.
Sub section (4) enjoins on the Magistrate a duty to examine the first category of witnesses produced by the prosecution.
The word "actual" qualifying the word "commission" emphasises the fact that the said witnesses should be those who have seen the commission of the offence.
We have held in interpreting the first part that the Magistrate should examine only such witnesses who are produced before him by the prosecution; but there may not be eyewitnesses in a case, or, if there are, the prosecution may not have produced all of them before the Magistrate.
The second part of the sub section therefore confers a discretionary power on the Magistrate to examine any one or more of witnesses of all categories, including the eye witnesses who have not been produced by the prosecution within the meaning of the first part of the said sub section.
But it is said that sub sections
(6) and (7) indicate that taking of evidence by the Magistrate is a condition precedent for making an order of discharge or of committal and, therefore, the provisions of Sub section
(4) must be so construed as to impose a duty on the Magistrate to examine some witnesses.
Firstly, we cannot hold that the sub sections impose any such condition.
The argument is that the clause in subs.
(6), namely, "When the evidence referred to in subsection (4) has been taken" is a condition precedent for making an order of discharge.
The adverb "when" in the clause in the context denotes a point of time and not a condition precedent.
The clause means nothing more than that an order of discharge can be made under sub section (6) after the events mentioned therein have taken place.
Secondly, the two clauses necessarily refer to the corresponding or appropriate situations under the earlier sub sections.
The first clause will not come into play if the Magistrate has not taken any evidence.
So too, in sub section (7) also the 901 adverb "when" denotes the time when the Magistrate can make the order of committal.
If evidence has, not been taken, that sub section is not applicable a the Magistrate proceeds to make an order of committal on other material referred to in the sub section.
On the other hand ', if the said two sub sections are construed as imposing a condition precedent for making an order of discharge or commitment, as the case may be, the said two sub sections will directly, come into conflict with the provisions of sub section
When one.
sub section clearly confers a discretion on the Magistrate to take or not to take evidence, the other subsections take it away.
It is not permissible to create conflict by construction, when by an alternative construction all the three sub sections can be harmonized and reconciled.
If the construction suggested by learned counsel for the appellants be adopted, it would also lead to an anomaly in that the Magistrate, though the documents referred to in section 173 clearly pronounce the innocence of the accused, has to go through the pretence of examining one or more witnesses to satisfy the provisions of the sub section.
Reliance is placed upon section 251A of the Code relating to warrant cases whereunder the Magistrate is authorized, upon consideration of all the documents referred to in section 173 and upon making such examination of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, to discharge the accused, if he considers the charge against the accused to be groundless; but if he is of opinion that there is ground that the accused has committed an offence alleged against him, he shall frame in writing a charge against the accused.
By contrasting this provision with section 207A, it is contended that if the construction put forward by learned counsel is not accepted, the obvious difference between the two.
procedures indicated by the Legislature would be obliterated.
We cannot agree with this contention.
The difference between the two procedures is that, in a case covered by section 207A, evidence will have to be taken under certain 902 contingencies, whereas under section 251A no evidence need be taken at all.
That distinguishes the different procedures under the two sections and it is not the province of the court to add any further conditions or limitations to those provided by the Legislature.
We are fortified in our view by a decision of this Court in Macherla Hanumantha Rao vs The State of Andhra Pradesh (1).
There the point in controversy was whether sa.
207 and 207A, inserted in the Code by the Amending Act XXVI of 1955, violated the provisions of article 14 of the Constitution.
In support of the contention that they violated article 14 of the Constitution, it was sought to be made out that the provisions of section 207A of the Code, in comparison and contrast with other provisions of Ch.
XVIII of the Code, prescribed a less advantageous position for the accused persons in a proceeding started under a police report than the procedure prescribed in other cases in the succeeding provisions of that chapter.
This Court held that there was a reasonable classification to support the difference in the procedures.
Sinha J., as he then was, who spoke for the Court, in order to meet the argument based on discri mination, considered the scope of the new section.
In doing so, the learned Judge observed thus at p. 403: "The magistrate then has to record the evidence of such witnesses as figure as eye witnesses to the occurrence, and are produced before him.
He has also the power ' in the interest of justice, to record such other evidence of the prosecution as he may think necessary, but he is not obliged to record any evidence.
Without recording any evidence but after considering all the documents referred to in section 1973 and after examining the accused person and after hearing the parties, it is open to the magistrate to discharge the accused person after recording his reasons that no ground for committing the accused 1 for trial has been made out, unless he decides to try the accused himself or to send him for trial by another magistrate.
If, on the other hand, he finds that the accused should be committed for trial, he is required to frame a charge (1) ; 903 disclosing the offence with which the accused is charged.
" Then the learned Judge proceeded to consider the scope of section 208 of the Code.
After having found that there was obvious difference in the procedure, the learned Judge came to the conclusion that "the Legislature has provided for a clear classification between the two kinds of proceedings at the commitment stage based upon a very relevant consideration, namely, whether or not there has been a previous inquiry by a responsible public servant whose duty it is to discover crime and to bring criminals to speedy justice".
It will thus be seen that the observations of the learned Judge at p. 403 cannot be said to be obiter, as learned counsel asks us to hold, for the construction of the provisions of section 207A was necessary to ascertain whether there was reasonable classification or not.
Assuming that the said observations are obiter, even then, they record the considered opinion of five learned Judges of this Court.
The view we have expressed also is consistent with the said observations.
Our view could now be expressed in the following propositions: (1) In a proceeding instituted on a police report, the Magistrate is bound to take evidence of only such eye witnesses as are actually produced by the prosecution in court.
(2) The Magistrate, if he is of opinion that it is in the interest of justice to take evidence, whether of eye witnesses or others, he has a duty to do so.
(3) If the Magistrate is not of that opinion and if the prosecution has not examined any eye witnesses, he has jurisdiction to discharge or commit the accused to sessions on the basis of the documents referred to in s, 173 of the Code.
(4) The discretion of the Magistrate under sub section (4) is a judicial discretion and, therefore, in appropriate cases the order of discharge or committal, as the case may be, is liable to be set aside by a superior court.
Before closing we would like to make some observations.
Rarely we come across cases where the prosecution does not examine important eye witnesses, for such a procedure would entail the danger of the said witnesses being tampered with by the accused, with 904 the result that there will not be any evidence taken by the committing Magistrate which could be used as substantive evidence under section 288 of the Code.
Even if the prosecution takes that risk, the Magistrate shall exercise a sound judicial discretion under the second part of sub section
(4) of section 207A in forming the opinion whether witnesses should be examined or not, and any perverse exercise of that discretion can always be rectified by a superior court.
Rut there may be a case where the Magistrate can make up his mind definitely on the documents referred to in section 173 without the aid of any oral evidence and in that event he would be within his rights to discharge or commit the accused, as the case may be.
In this view, it is not necessary to express our opinion whether even if the Magistrate acted illegally in committing an accused without taking any evidence, the said illegality is cured either by section 537 of the Code or any other section thereof.
In the result, the appeals fail and are dismissed.
Appeals dismissed.
| During controversy between two brothers each of whom claimed to be appointed Mutawalli, the Commissioner of Wakfs appointed a third brother as a temporary Mutawalli under section 40 of the Bengal Wakf Act, which appointment was challenged on the ground that the order of the Commissioner appointing a temporary Mutawalli was illegal because under the rules framed by the Government of West Bengal the Board constituted under Bengal Wakf Act could alone make the appointment and the Commissioner could only make a report and recommendation to the Board.
Held, that under the provisions of section 40 read with section 29 of the Bengal Wakf Act, a temporary Mutawalli can be appointed by the Commissioner to whom the powers and duties have been 760 delegated by the Board.
The Rules cannot affect the powers of the Board to delegate its functions under section 29 of the Act to the Commissioner, and once the delegation is made the rules cease to apply.
Held, further, that where power and duty are interconnected and it is not possible to separate one from the other in such wise that power can be delegated while duty is retained and vice versa, the delegation of powers takes with it the duties.
|
Appeals Nos. 3, 30 and 31 of 1953.
Appeal from the Judgment and Order dated the 12th day of September, 1951, of the High Court of Judicature at Bombay in Income tax Reference No. 27 of 1951 arising out of the order dated the 23rd day of November, 1949, of the Income tax Appellate Tribunal in Income tax Appeal No. 122 of 1947 48.
B.J. M. Mackenna (D. H. Dwarka Das and Rajinder Narain, with him) for the appellant in C. A. No. 3 of 1953.
M.C. Setalvad, Attorney General for India, (G. N. Joshi and P. A. Mehta, with him) for the respondent in C. A. No. 3 and for the appellant in C. A. Nos. 30 and 31.
C.K. Daphtary, Solicitor General for India, (R. J. Kolah, N. A. Palkhiwala and 1.
N. Shroff, with him) for therespondent in C. A. No. 30, R. J. Kolah, N. A. Palkhiwala and I. N. Shroff for the respondent in C. A. No. 3 1.
316 1954.
May 14.
The judgment of Das and Bhagwati JJ. was delivered by Bhagwati J. Jagannadhadas J. delivered a separate judgment.
BHAGWATI J.
These appeals arise out of two judgments and orders of the.
High Court of Judicature at Bombay in Income tax References Nos. 23, 24 and 27 of 1951 made by the Income tax Appellate Tribunal under section 66(1) of the Indian Income tax Act and section 21 of the Excess Profits Tax Act.
E. D. Sassoon and Company Ltd., (hereinafter refered to as the Sassoons) were the Managing Agents of (1) E. D. Sassoon United Mills Ltd., under Agreements dated the 24th February, 1920, and the 2nd October, 1934, (2) Elphinstone Spinning and Weaving Mills Company Ltd. under the Agreement dated 23rd May, 1922, and (3) Apollo Mills Ltd., under the Agreement dated the 23rd May, 1922.
The Sassoons agreed to transfer their Managing Agencies of the said Companies to Messrs. Agarwal and Company, Chidambaram Mulraj and Company Ltd., and Rajputana Textile (Agencies) Ltd. respectively by letters dated the 3rd September, 1943, 16th April, 1943, and the 27th April, 1943.
The consent of the shareholders of the respective companies to the Agreements for transfer was duly obtained and the Managing Agencies were ultimately transferred to the respective transferees with effect from the 1st December, 1943, 1st June, 1943, and 1st July, 1943, respectively.
The Sassoons executed in favour of Messrs. Agarwal and Company, Chidambarain Mulraj and Company Ltd., and Rajputana Textile (Agencies) Ltd., formal deeds of assignment and transfer and received from them Rs. 57,80,000, Rs. 12,50,000 and Rs. 6,00,000 respectively on transfers of the Manaoing Agencies, and the net consideration, viz., Rs. 75,77,693, received by them on such transfers was taken by them to the "Capital Reserve Account".
The accounts of the Managing Agency commission payable by the respective Companies to the Managing Agents for the year 1943 were made up in the year 1944 and Messrs. Agarwal and Company received from the E. D. Sassoon United Mills Ltd., a sum of Rs. 27,94,504, Chidambaram Mulraj and Company Ltd., received from the Elphiiistone Weaving and 317 Spinning Mills Company Ltd., a sum of Rs. 2,37,602 and the Rajputana Textile (Agencies) Ltd., received from the Apollo Mills Ltd., a sum of Rs. 3,82,608 as and by way of such commission.
For the assessment year 1944 45 and the chargeable accounting period 1st January, 1943, to the 31st December, 1943, the original income tax and excese profits tax assessments of the Sassoons were made or the 31st May, 1945, at a total income of Rs. 46,48,483.
This income however did not include any part of the Managing Agency commission received by the transferees.
The entire amounts of the Managing Agency commission received by the transferees were assessed by the Income tax Officer for the assessment year 194546 as the income of the transferees.
The transferees appealed to the Appellate Assistant Commissioner who confirmed the orders of the Income tax Officer.
Wher the matter was taken in further appeal to the Income.
tax Appellate Tribunal, the Tribunal by its order dated the 28th December, 1949, accepted the trans.
ferees ' contention that the Managing Agency commission received by them should be apportioned on a proportionate basis and the transferees should be made liable to pay tax only on the commission earned by them during the period that they had worked as the Managing Agents of the respective Companies.
The Income tax Officer and the Excess Profits Tax.
Officer appear to have discovered that the amounts of the Managing Agency commission earned by the Sassoons prior to the dates of the respective transfers were not brought to tax and therefore issued on the 29th June, 1946, notices under section 34 of the Indian Income tax Act and section 15 of the Excess Profits Tax Act upon the Sassoons on the ground that their income from the Managing Agency had escaped assessment.
The Income tax Officer and the Excess Profits Tax Officer wanted to include in the assessable income of the Sassoons Rs. 28,51,934 made up of Rs. 25,61,629 in respect of the Managing Agency of the E. D. Sassoon United Mills Ltd., for the period of 11 months from the 1st January, 1943, to the 30th November, 1943, Rs. 99,001 in respect of the Managing Agency of the 318 Elphinstone spinning and Weaving Mills Ltd for the period of five months from the 1st January, 1943, to the 31st May, 1943, and ]Rs. 1,91,304 in respect of the Managing Agency of the Apollo Mills Ltd., for the period of six months from the 1st January, 1943, to the 30th June, 1943, contending that such Managing Agency commission had accrued to the Sassoons for services rendered so that on the dates on which the Agencies were transferred the Sassoons were entitled to such remuneration from the managed Companies in the form of commission for services rendered up to the dates of the transfers.
In spite of the objection of the Sassoons the Income tax Officer and the Excess Profits Tax Officer determined these sums as their escaped incomes and assessed them accordingly.
The Sassoons appealed to the Appellate Assistant Commissioner who dismissed the appeals and further appeals were taken to the Income tax Appellate Tribunal.
The Incometax Appellate Tribunal relied upon its order dated the 28th December, 1949, in the case of the transferees and confirmed the orders of the Appellate Assistant Com missioner.
The Tribunal was of the opinon that the Managing Agency commission was earned for services rendered and therefore it was taxed in the hands of the person who carried on the business of the Managing Agency and not in the hands of the person to whom it was assigned, and that therefore so far as the Sassoons were concerned the Managing Agency commission should be apportioned between them and their transferees.
The Sassoons applied under section 66(1) of the Indian Income tax Act and section 21 of the Excess Profits Tax Act requesting the Tribunal to draw a statement of the case and refer the question of law arising out of the orders to the High Court for its decision.
On the 12th January, 1951, the Tribunal by its statement of the case referred to the High Court one question of law as arising out of its orders, viz., " whether in the circumstances of the case was the Managing Agency commission liable to be apportioned between the assessee Company and the assignee " observing that in its opinion the question was not when the Managing Agency commission accrued but the real question was to whom it accrued.
This reference was made by the 319 Tribunal in R.A. No. 474 of 1950 51, and R.A. No. 475 of 1950 51 referring the question of law thus framed in regard to the Managing Agency commission of the D. Sassoon United Mills Ltd., and the Elphinstone Spinning and Weaving Mills Ltd., the whole of the Managing Agency commission having been paid respectively to Messrs. Agarwal and Company and to Chidambaram Mulraj and Company Ltd., in the year 1944.
This was Income tax Reference No. 27 of 1951.
The Commissioner of Income tax Excess Profits Tax, Bombay City, also required the Tribunal to refer to the High Court the question of law arising out of its order in the appeal of Messrs. Agarwal and Company in which the Tribunal had held as above that the Managing Agency comniission should be apportioned between the Sassoons and the transferees.
The statement of the case was accordingly submitted by the Tribunal on the 12th January, 1951, and the same question as above was referred to the High Court.
This reference was Income tax Reference No. 24 of 1951.
A similar application was made by the Commissioner of Income tax/Excess Profits Tax, Bombay City, for reference in the appeal of Chidambaram Mulraj and Company Ltd. The Tribunal submitted its statement of case also on the same day and referred the very same question to the High Court.
This reference was Income tax Reference No. 23 of 1951.
All these references came for hearing and final disposal before the High Court.
Income tax References Nos.
24 and 27 of 1951 were heard together and one judgment was delivered, answering the question submitted to the High Court in both the references in the affirmative.
Following upon this judgment the High Court also answered in the affirmative the question which had been referred to it by the Tribunal in Income tax Reference No. 23 of 1951.
The decision of the High Court was thus against the contentions which had been urged both by the Sassoons and the Commissioner of Income tax and the Sassoons as well as the Commissioner of Income tax obtained leave under section 66A(3) of the Indian Income tax Act and 320 section 133(1)((c) of the Constitution for filing appeals to this Court.
The appeal of the Sassoons was Civil Appeal No. 3 of 1953, and it was filed against the Commissioner of Income tax, Bombay City.
The appeals of the Commissioner of Income tax against Messrs. Agarwal and Company and Chidambaram Mulraj and Company Ltd., respectively were Civil Appeal No. 30 of 1953, and Civil Appeal No. 31 of 1953.
These appeals have come for hearing and final disposal before us.
All the appeals raise one common question of law, viz., whether in the circumstances of the case the Managing Agency commission was liable to be apportioned between the Sassoons and their respective transferees in the proportion of the services rendered as Managing Agents by each one of them and the decision turns upon the question whether any income had accrued to the Sassoons on the dates of the respective transfers of the Managing Agencies to the transferees or at any time thereafter.
This judgment will (, over our decision in all the appeals.
It will be convenient at this stage to set out the relevant clauses of the respective Managing Agency Agreements and the deeds of assignment and transfer.
The original agreement with the E.D. Sassoon United Mills Ltd., was entered into on the 24th February, 1920, by Sir Edward Sassoon and others carrying on business in partnership in the style and form of Messrs. E.D. Sassoon and Company.
The Managing Agency was transferred with the consent of the Company by E. D. Sassoon and Company to the Sassoons and another Managing Agency Agreement was executed between the Company and the Sassoons on the 2nd October, 1934, appointing and recognising the latter as the Agents of the Company from the lst January, 1921, for the residue of the period and upon the same terms and conditions set out in the original Agreement dated the 24th February, 1920.
Under clause 1 of that Agreement the Sassoons and their assigns were appointed the Agents of the Company for a period of 30 years from the date of the registration thereof and thereafter until they resigned or were removed from office by a special resolution of 321 the Company.
Udder clause.
2 the remuneration of the Sassoons and their assigns was fixed at a commission of 71/2 per cent.
per annum on the annual net profit of the Company after making all proper allowances and deductions from revenue for working expenses charge the able against profits, provided however that if in any year no such commission was earned or it fell short of Rs. 1,20,000 the Company was to pay to them a sum sufficient to make up the minimum remuneration of Rs. 1,20,000 per annum on account of such commission.
The said commission was under clause 2(d) to be due to them yearly on the 31st of March in each and every year.
during the continuance of the Agreement and was to be payable and to be paid immediately after the annual accounts of the Company had been passed by the shareholders.
Under clause 3 the Sassoons and their assigns agreed with the Company that they.
would be and act as the Agents of the Company during the said term for the said remuneration and upon and subject to the terms and conditions therein contained.
Clause 10 of the Agreement provided as under: " It shall be lawful for the said firm to assign this Agreement and the rights of the said firm hereunder to any person, firm or Company having authority by its constitution to become bound by the obligations undertaken by the said firm hereunder and upon such assignment being made and notified to the said Company the said Company shall be bound to recognise the person or firm or Company aforesaid as the Agents of the said Company in like manner as if the name of such person, firm or Company had entered into this Agreement with the said Company and the said Company shall forthwith upon demand by the said firm enter into an Agreement with the person, firm or Company aforesaid appointing such person, firm or Company the Agents of the said Company for the then residue of the term outstanding under the Agreement and with the like powers and authorities remuneration and emoluments and subject to the like terms and conditions as are herein contained.
" The letter dated the 3rd September, 1943, recording the Agreement of transfer of the Managing Agency 322 322 provided that in the event of the transaction being com pleted in its entirety as therein stated the transferees would be entitled to receive the commission payable by the Company under the Managing Agency Agreement in the profits for the calendar year 1943.
The deed of assignment and transfer executed between the Sassoons and Messrs. Agarwal and Company in pursuance of this Agreement on the 26th January, 1945, stated that the Sassoons thereby transferred to Messrs. Agarwal and Company as from the lst December, 1943, their office as Managing Agents of the Company for the unexpired residue of the term created by the said Agreement dated the 24th February, 1920, as also the said Agreements dated the 24th February, 1920, and the 2nd October, 1934, and all their rights and benefits as Managing Agents 'under the said Agreements and Messrs. Agarwal and Company agreed to be the Managing Agents of the Company from the 1 st December, J 943, in place, and stead of the Sassoons for the said unexpired residue of the term with like powers authorities remuneration and emoluments as were contained in the said Agreements.
It may be noted that even though the letter recording the Agreement of transfer expressly provided that the transferees would be entitled to receive the commission payable by the Company under the Managing Agency Agreement on the profits for the calendar year 1943 no such term was incorporated in the deed of assignment and transfer.
The original Agreement entered into by the Elphin stone Spinning and Weaving Mills Company Ltd., was with Messrs. Hajee Mahomed Hajee Esmail and Company and was dated the 24th July, 1919.
The Managing Agency was transferred with the consent of the Company by Messrs. Hajee Mahomed Hajee Esmail and Company to the Sassoons and on the 23rd May, 1922, another Managing, Agency Agreement was executed by the Company in favour of the Sassoons their successors and assigns employing them the Agents of the Com pany from the 1st February, 1922, for the unexpired 'Period of the term of 60 years commencing from the 3rd July, 1919.
Under clause 3 of the Agreement the Company was during the continuance thereof to pay to 323 the Sassoons, their successors and assigns by way of remuneration a commission of ten per cent.
on the net profits of the Company and a further sum of Rs. 1,500 per month.
Under clause 6 the Sassooris, their successors and assigns were to be at liberty to retain, reimburse and pay themselves out of the moneys of the ' Company inter alia all sums due to them for commission and otherwise.
The deed of transfer executed by the Sassoons in favour of Chidambaram Mulraj and Company Ltd., on the 2nd June, 1943, stated that the Sassooins assigned and transferred the Agreement dated the 23rd May, 1922, between themselves and the company for the unexpired residue of the term of sixty years specified therein and the full benefit and advantage thereof together with the benefit of the Agency and the office of the Agents thereunder and the right to receive the remuneration thereafter to become payable by the Company under or by virtue of the said Agreement and together with the benefit of all rights, privileges, powers and authorities given and conferred on the Sassoons there under.
It is significant to observe that before the incometax authorities as also the High Court no distinction was drawn between the provisions of these two Agency Agreements in regard to the right of the Managing Agent to remuneration thereunder and the facts in so far as they related to all the Managing Agencies were treated as similar.
The quantum also was not disputed in each case though the principle of apportionment was in dispute.
The Sassoons were assesse for this "escaped income" on the basis that they had earned the income by rendering services as Managing Agents to the Companies for the respective periods that they continued to be the Managing Agents and the transferees had rendered the services for the balance of the periods completing the full year of accounting and had earned the proportionate commission and therefore the amount of commission which the latter actually received included the Sassoons ' share of commission in respect of which they were not liable to tax but the Sassoons.
The High Court adopted this test of the services rendered by the Sassoons as well as the transferees during the whole of 325 become a debt due by the Companies to the Sassoons and it could not therefore be said to have accrued to them.
The contract of employment was an entire ' and an indivisible contract and the remuneration payable by the Companies to the Sassoons thereunder was payable at stated periods.
It was a condition precedent to the Sassoons earning the remuneration that they fulfilled the terms of their employment, completed the period for which the remuneration was payable to them and the service for the particular period was a condition precedent to their earning the remuneration for that period.
The stated period was that of a year and no remuneration was payable to the Sassoons till the end of the year and unless and until they completed the period of the year they would not be entitled to any commission or remuneration for the year, much less for the broken period.
It was therefore contended that the Sassoons had not earned any commission for the broken periods and that not having earned the same they could not have assigned it to the transferees with the result that when the transferees were paid the commission under the terms of the Managing Agency Agreements, the transferees received the same in their own right even though they had not rendered the services to the Company for the whole of the calendar year 1943.
It was contended that in any event, what.
ever be the position as between the Companies and the transferees, the Sassoons had not earned any part of the Managing Agency commission which had been paid by the Companies to the transferees and were not liable to tax in respect of the same.
It was on the other hand urged on behalf of the transferees that even though under the terms of the deeds of assignment and transfer they were paid by the Companies the whole of the Managing Agency commission for the calendar year 1943 they had merely earned the commission or remuneration for the period of actual services rendered by them to the Company and the portions of the Managing Agency commission proportionate to the services actually rendered by the Sassoons to the Companies had accrued to the Sassoons though it had been ascertained and paid to the transferees in the year 1944.
Even though the asceertainment 326 and the payment came later it made no difference which could be referred to the accrual of the income back to the period during which the income was earn Ltded and accordingly whatever amount was earned by me the Sassoons durin 'g the respective periods that they had acted as the Managing Agents of the Companies had accrued to them during those periods and was received by the transferees only by virtue of the respective deeds of assignment and transfer.
Having been received by the transferees by virtue of the assignment those portions of the Managing Agency commission received by them none the less constituted income which had accrued to the Sassoons and were liable to tax against the Sassoons the assignors and not against them the assignees.
The position of an employee under an entire contract of service has been thus enunciated in Halsbury 's Laws of England Hailsham Edition Vol. 22, page 133, paragraph 221: "When the contract of service is an entire contract, providing for payment on the completion of a definite period of service, or of a definite piece of work, it is a con dition precedent to the recovery of any salary or wages in respect thereof that the service or duty shall be completely performed, unless the employer so alters the contract as to entitle the servant to regard it at an end, in which case the whole sum payable under the contract becomes due, or unless there is a usage that the servant is entitled to wages in proportion to the time actually served.
But when the contract,, though in respect of work terminating at a particular time, is to be construed as providing that remuneration shall accrue due and become vested at stated periods, such remuneration constitutes a, debt recoverable at the end of each such period of service.
" Section 219 of the Indian Contract Act also provides that in the absence of any special contract, payment for the performance of any act is not due to the agent until the completion of such act.
Our attention was drawn in this connection to the case of Boston Deep Sea Fishing and Ice Co. vs Ansell(1).
327 In that case the defendant was employed as the managing director of the company for 5 years, at a yearly salary.
He was dismissed for misconduct before the expiration of the current year and claimed against the company damages for wrongful dismissal and the salary for the quarter which had expired before his dismissal.
His claim for salary was disallowed and it was, held that having been dismissed for misconduct he was not entitled to any part of the unpaid salary for the current year of his service.
Lord Justice Cotton at page 360 posed the question as under: "Can he sue for a proportionate part of the salary for the current year?. . .
What he would have been entitled to if he continued in their service until the end of the year would have been pound 8OO, but in my; opinion that would give him no right of action until the year was completed." Lord Justice Bowen observed at page 364: "As regards his, current salary it is clear and established beyond all doubt by authorities. . . that the servant who is dismissed for wrongful behaviour cannot recover his current salary, that is to say, he cannot recover salary which is not due and payable at the time of his dismissal but which is only to accrue due and become payable at some later date, and on the condition that he had fulfilled his duty as a faithful servant down to that later date.
" The case of Moriarty vs Regents Garage & Engineering Company Limited(1) was particularly relied upon by the learned counsel for the Sassoona.
No question of dismissal or removal for misconduct arose in that case, but the director whose remuneration was fixed "at the rate of pound150 per annum" ceased to be a director on settlement of disputes between himself and the company the director agreeing to accept payment of all money due to him upon his debentures and the debentures being paid off in the middle of the year.
The director sued the company to recover a proportionate part of the pound 150 as his fees for the broken period.
The Deputy County Court Judge gave judgment for the company, (1) (1921] 2 K.B. 766, 328 holding that the director was not entitled to remuneraion for a broken part of a year.
The Divisional Court versed the decision of the Deputy County Court judge and there was a further appeal.
It was held by the Court of Appeal that neither under the Agreement or under the articles was the director entitled to the he claimed.
The question of the applicability of the Apportionment Act was sought to be raised before the appeal Court but was not allowed to be raised in appeal as it had not been done in the County Court.
arriving at this decision Lord Sterndale M.R. stated the position as follows at page 774: "it seems to me that upon the construction of the agreement it must fail.
It is a payment per annum, a payment for a year, And unless he serves for the year the cannot get the payment.
" The decision in Swabey vs Port Darwin Gold Mining to.(1), had been cited before the Court of Appeal in support of the proposition that the director was in such cases entitled to his proportionate remuneration for the broken period.
The Learned Master of the Rolls however observed at page 777: "There is nothing is Swabey vs Port Darwin Gold Mining Co.(1) in my opinion to oblige us to hold that wherever there is power, mutual or one sided, to terminate an agreement in the middle of the year, there must, as a matter of necessity, be inferred a right to rceive payment from day to day, and receive payment for the broken period.
I do not think in this case there re circumstances which oblige me or induce me to raw that inference.
" These authorities as well as the cases of Mapleson vs years(2), and Sanders vs Whittle(3), enunciate the well stablished principle that wages and salaries are not apportionable upon the sudden cessation of a contract of service, which is stated to be still the law in Batt on the Law of Master and Servant, 4th Edn., at page 209 until a hardy litigant successfully seeks in a higher Court a confirmation of the view of McCardie J. expressed in Moriarty 's case(4) as regards the injustice (I) I Meg.
(3) (2) (4) , 329 of denying the benefit of the Apportionment Act to a man who may have been guilty of misconduct.
This rule applies not only when there is a sudden ' cessation of a contract of service by the unilateral act of the master or the servant but also when,, there is such cessation by mutual consent of the parties.
In the former event the servant would be Part deprived of his proportionate wages by his own act or default or he would be able to sue his master for damages for wrongful dismissal, but no claim for proportionate salary or wages would survive under the contract of service.
In the latter event the consensus of opinion between the master and the servant would be sufficient to terminate the contract of service and no claim for proportionate wages or salary would survive unless it was made an express term of the Agreement thus arrived at between the parties.
In either event there would be no question of the servant claiming from his master wages or salary for the broken period.
Learned counsel for the transferees attempted to throw doubt on the correctness of the rule as enunciated above by citing a passage from Palmer 's Company Precedents 16th Edition Vol. 1, page 583, where the learned author discusses the question of apportionment in the case of director 's remuneration payable at so much per annum: "Where the clause provides that a director is to be paid so much per annum, the words 'at the rate of ' being omitted, and he vacates office before the end of a current year, the question whether he can maintain a claim for an apportioned part of the remuneration for that year has given rise to some difference of opinion.
In Swabey vs Port Darwin Gold Mining Company(1), in the Court of Appeal, the article was as follows, and not as stated in the report: 'The directors shall each receive by way of remuneration out of the funds of the Company in each year the sum of pound 2OO, and the chairman in addition pound 100 per annum. ' The words at the rate of ' were not present (as appears from the articles registered 'at Somerset House).
A director resigned in the course of a current year, (i) (1889) I Meg.
43 330 and was held entitled to an apportioned part of the remuneration for that year.
But in Salton vs New Beeston Cycle Co.(1), where the article provided that 'the directors shall ' be entittled to receive by way of remuneration in each year pound 5,000, Cozens Hardy J. held that a director who vacated office before the end of a current year was not entitled to any apportionment.
This case was followed by Wright J. in McConnell 's Claim(2), the words being ,each director shall be paid the sum of pound 300 per annum ' and by Bruce J. in Inman vs Acroyd and Bert(1).
See also Central de Kapp Gold Mines(4).
In these four cases the Court no doubt proceeded on the assumption that the report of Swabey 's case(5) was correct,, and that the article in that case contained the words 'at the rate of. ' Certainly Lord Alverstone C. J. acted on this assumption in Harrison vs British Mutoscope, etc.
, Co.(,).
There the words were 'the sum of E 1,500 per annum.
In 'the meantime Inman vs Acroyd(7) had been taken to the Court of Appeal, and affirmed, but on the ground that it was by the articles left to the directors, to apportion the remuneration at the end of each year.
This case, therefore, really turned on the construction of the particular article, and as it was carefully distinguished from Swabey 's case(5), the authority of that case, on an article omitting the Words 'at the rate of, ' remains unshaken.
" Swabey 's case(5) was referred to by Lord Sterndale M. R. at page 777 in Moriarty case(3) and the learned Master of the Rolls stated that there was nothing in that case which would oblige the Court to hold that wherever there was power, mutual or one sided, to terminate an Agreement in the middle of the year, there must, as a matter of necessity, be inferred a right to receive payment from.
day to day, and receive payment for the broken period.
(i) [1898] I Ch.
775 (2) [1901] I Ch. 728.
(3) ; on appeal [1901] I Q.B., 613.
(4) , 235; J.).
(5) (1889) I Meg.
(6) Times, Nov. 10, (7) [1901] I Q.B. 613.
(8) [1921] 2 H.B,D. 766.
331 It really depended on the circumstances of each case whether to draw that inference or not.
In any event we have not before us under the terms of the Managing Agency Agreements any provision for payment of remuneration " at the rate of " any particular sum a, year and the ratio of the four cases referred to by Palmer in the passage quoted above as also the observations of Lord Sterndale M. R. at page 777 in Moriarty 's case (1) set out above are sufficient to enable us to hold that when the remuneration or commission is ex pressed at so much per annum without anything more it would amount in law to a stipulation for the payment of remuneration per year and the servant would not be entitled to get any remuneration unless and until he has completely performed his contract and such performance would be a condition precedent to the recovery of any wages or salary for that definite period of service.
That would be the position even if the remuneration was to accrue due and becomes vested at stated periods and unless the servant performed the condition and fulfilled his duty as a faithful servant down to that stipulated date or the stated period no salary would accrue due and become payable to him until at the end of such period of service.
We shall now examine the terms of the Managing Agency Agreements with a view to see whether the Sassoons were entitled thereunder to remuneration or commission for the broken periods.
The Agreement between the E. D. Sassoon United Mills Ltd. and the Managing Agents was for a fixed period of 30 years from the date of the registration of the Company and thereafter until they resigned or were removed from their office by a special resolution of the Company and the appointment of the firm of E. D .
Sassoon and Company and their assigns was for the whole period.
E. D. Sassoon and Company and their assigns covenanted and agreed with the Company to be and act as such Agents for the remuneration and upon and subject to the terms and conditions therein contained.
It was lawful for them to assign the agreement and their rights thereunder to any person, firm or 'Company (1) [1921) 2 K.B.D. 766.
332 having authority by its constitution to become bound by these obligations and upon such assignment being made and notified to the Company, the Company was bound to recognise such person, firm or Company as the Agents of the Company in like manner as if the name of such person, firm or Company had appeared in these presents in lieu of the names of the partners of E. D. Sassoon and Company and as if such person, firm or Company had entered into the Agreement with the Company and the Company agreed upon demand to enter into an Agreement appointing such person, firm or Company the Agents of the Company for the then residue of the term outstanding under the Agreement and with the like powers and authorities remuneration and emoluments and subject to the like terms and.
conditions as therein contained.
These provisions of the Agreement showed the continuity of the Managing Agents who were employed as the Agents of the Company for this specified period and under the terms and conditions therein recorded.
The new or the substituted Managing Agents were treated as if they had entered into the Agreement with the Company and their name had appeared in the original Agreement in lieu of E. D. Sassoon and Company who were in the first instance appointed the Agents of the company These Managing Agents described as such were to be paid the remuneration specified in clause 2(a) of the Agreement which was a commission of 71 per cent per annum on the annual net profits of the Company with a stipulation in regard to the minimum remuneration of Rs. 1,20,000 per annum.
Clause 2(d) specified when the said commission was to become due to the Managing Agents and it provided that the commission was to be due to them yearly on the 31st March in each and every year during the continuance of the Agreement.
The commission was thus an annual payment calculated upon the annual net profits of the Company and was to be due to the Managing Agents yearly on the 31st March in each and every year.
Unless and until the annual net profits of the Company were determined the 71/2 per cent.
commission could not be ascertained but the sum none the less became due on 333 the 31st March in each and every year following the close of the accounting year of the Company.
The ' amount of such commission did not become a debt ' owing by the Company to the Managing Agents until the 31st March in each and every year and was to be paid immediately after the annual accounts of the Company had been passed by the shareholders.
The postponement of the date of payment, in this manner however did not prevent the amount of the commission thus ascertained becoming due to the Managing Agents and it was on the 31st March in each and every year that the amount of commission thus calculated at 71 per cent.
# per annum on the annual net profits of the Company became due by the Company to the Managing Agents.
Until and unless the accounting year of the Company had gone by and the Managing Agents had served the Company as their Agents for the full period no part of the Managing Agency commission which was payable per year in the manner aforesaid could become due to them and the performance of the service, for the year was a condition precedent to the Managing Agents being entitled to any part of the remuneration, or commission for the accounting year of the Company.
The Managing Agency Agreement therefore was an entire and indivisible contract stipulating a payment of remuneration or commission per year and enjoined upon the Managing Agents the duty and obligation of rendering the services to the Company for the whole year by way of condition precedent to their earning any remuneration or commission for the particular accounting year.
It was however urged that clause 10 of the Managing Agency Agreement itself contemplated a broken period, because there was nothing therein to prevent the Managing Agents from assigning the Agreement and their rights thereunder at any time in a particular year during the continuance of the Agreement.
If the Managing Agents therefore could assign the Agreement and their rights thereunder it could not be suggested that neither the transferors who could not complete the year of service nor the transferees who had also not rendered the services as the Managing Agents for the 334 whole of the accounting year could earn any remuneration or commission which would be payable to the managing Agents only if they rendered the services to the Company for the whole year.
It therefore followed as a necessary corollary that both the transferors and the transferees would be paid their remuneration or commission and both would be entitled to the proportionate commission for the respective periods during which they rendered services as Managing Agents to the Company.
This argument however ignores the fact that whatever be the position as between the transferor and the transferee, whatever be their arrangements inter, se, whatever be the periods of the year during which they might have served the Company in their capacity as the Managing Agents, the Managing Agents as described in the recitals and clauses I and 3 of the Managing Agency Agreement were one entity and no severance of I such periods of service during the course of a particular year was ever contemplated under the Agreement.
On assignment, the transferee became the Managing Agent as if its name had been inserted in the Managing Agency Agreement from the beginning.
For the future period the transferor effaced itself and the transferee took the place of the transferor and preserved the continuity of the Managing Agency so that whoever happened to satisfy the description of the Managing Agents at the time when the commission for the accounting year became due to the Managing Agents thus described, which was expressly stated to be due yearly on the 31st March in each and every year, became entitled to receive the debt which thus became due and to the payment thereof after the annual accounts of the Company had been passed by the shareholders.
The stipulation for the Company executing in favour of the new or the substituted Managing Agents an Agreement appointing them the Agents of the Company for the then residue of the term outstanding under the Agreement was merely consequential upon the earlier provision therein contained which stated in so many terms that the Company was bound to recognise such new or substituted Managing Agents in like manner as if their names had appeared in the 335 mid Agreement in lieu of the partners of E.D. Sassoon and Company and as if they had entered into the Agreement with the Company.
The rights of such new or substituted.
Agents were created by the very terms of clause 10 of the Agreement and the formal embodiment thereof in the fresh Agreement to be entered into by the Company with them merely confirmed the rights which had already been created in them under that clause.
It was further pointed out that at the end of the Managing Agency Agreement if not earlier, during the continuance thereof there would certainly be a broken period because the period of 30 years stipulated in clause I of the Agreement would certainly expire on some date in February, 1950.
The calendar year would expire on the 31st December, 1949, and there would of necessity be between the date of the expiration of the calendar year and the date of the expiration of the term of the agreement a period of about 2 months which would certainly be a broken period and not a full year.
What would happen however on the expiration of the period of the Managing Agency Agreement cannot affect the construction of the relevant terms of the Agreement which have reference to a year or years during the continuance of the Agreement.
It is unnecessary to speculate as to whether by reason of the fact that E. D. Sassoon and Company must have received the full year 's remuneration or commission at the end of the first accounting year of the Company ending with the 31st December, 1920, they might just as well give up, if need be, their remuneration or commission for the last two months on the expiration of the term of the Managing Agency Agreement.
We see nothing in the terms of the Managing Agency Agreement which would compel or induce us to hold that there must as a matter of necessity be inferred therefrom a right to receive remuneration or commission for a broken period.
Learned counsel for Chidambaram Mulraj and Company Ltd. however sought to distinguish the terms of the Managing Agency Agreement of the Elphinstone Spinning and Weaving Company Ltd. from those of the 336 Managing Agency Agreement of the E. D. Sassoon United Mills Company Ltd. even though as stated 'before no such distinction was made either before the income tax authorities or the High Court.
He contended that there was nothing in the Agency Agreement with the Elphinstone Spinning and Weaving Company Ltd. which corresponded with clauses 2(a), 2(d) and clause 10 of the Agreement between the E. D. Sassoon United Mills and their Managing Agents.
The only term which was to be found in the Agency Agreement of the Elphinstone Spinning and Weaving Company Ltd. was that the Company was during the continuance of the Agreement to pay to the Managing Agents who were there described as E. D. Sassoon and Company Ltd. their successors and their assigns by way of remuneration a commission of ten per cent.
on the net profits of the Company and a further sum of Rs. 1,500 per month.
There was besides clause 6 of the Agreement which conferred upon the Managing Agents the right of retainer, and reimbursement in connection inter alia with all sums due to them for commission or otherwise.
These terms it was submitted did not constitute the payment of remuneration or commission a payment per annum and it was not possible to argue that the Sassoons were not entitled to any remuneration or commission for a broken period thereunder.
It may however be observed that the Managing Agency Agreement with which we are here concerned was the Agreement dated the 23rd May, 1922, between the Company and the Sassoons and the Managing Agents there described were E. D. Sassoon and Company Ltd on behalf of themselves, their successors and assigns.
Clause 1 of the Agreement employed the Sassoons, their successors and assigns the Agents of the Company from the 1 st February, 1,922, for the unexpired portion of the term of 60 years commencing from the 3rd July, 1919, and it was these Managing Agents thus described, viz., the Sassoons, their successors and assigns, who were during the continuance of the Agreement to be remunerated by a commission of 10 per cent.
on the net profits of the Company and the Company agreed to pay such commission to them.
The 337 right of retainer and reimbursement reserved under clause 6 of the Agreement would not carry the transferees any further because it was in respect of all sums due to them for commission or otherwise.
Unless and until the commission became due to them they had no such right of retainer.
It would still have to be determined whether any sum became due to them by way of such commission.
Whether any commission became due to them would depend upon the construction of clause 3 of the Agreement and under that clause the commission calculated at 10 per cent.
of the net profits of the Company was to become due to them and was to be paid by the Company to them during the continuance of the Agreement.
We have got to determine what is the full implication of this clause of the Agreement, "the commission of 10 per cent.
on the net profits of the Company.
" The word "profits" has a welldefined legal meaning as was observed by Lord Justice Fletcher Moulton at page 98 in The Spanish Prospect ing Company Limited(1): "The word 'Profits ' has in my opinion a welldefined legal meaning, and this meaning coincides with the fundamental conception of profits in general parlance, although in mercantile phraseology the word may at times bear meanings indicated by the special context which deviate in some respects from this fundamental signification. 'Profits ' implies a comparison between the state of a business at two specific dates usually separated by an interval of a year.
The fundamental meaning is the amount of gain made by the the business during the year.
This can only be ascertained by a comparison of the assets of the business at the two dates.
" This concept of the term was also adopted by Mr. Justice Mahajan, as he then was, in Commissioner of Income tax, Bombay vs Ahmedbhai Umarbhai and Company, Bombay(2): "Profits of a trade or business are what is gained by the business.
The term implies a comparison between the state of business at two specific dates separated by, an interval of a year and the fundamental (i) [1911] i Ch. D. 92.
44 (2) [1950] i8 I.T.R. 472 at page 5o2.
338 meaning is the amount of gain made by the business during the year and can only be ascertained by a comparison of the assets of the business at the two dates, the increase shown at a later date compared to the ,earlier date represents the profits of the business.
" It was urged before us that there was nothing in the terms of the Agreement which provided that the profits were to be ascertained at the end of every year, and there was nothing to prevent the Company if it so chose from casting its accounts and ascertaining the net profits half yearly or quarterly or even every month by preparing trial balance sheets in that manner.
Theoretically speaking all this may be possible but we have got to construe the Agreements arrived at between business people in a, business sense.
Ordinarily in the case of business or trading concerns accounts of profits are not made except at stated intervals usually separated by a year.
Particularly in the case of limited Companies incorporated under the Indian Companies Act the accounts are cast every year and the net profits earned by the Company are ascertained every year both for the declaration of dividends and for submitting the returns to the income tax authorities.
Under section 131 (I)of the Indian Companies Act of 1913 every Company was required once at least in every year and at intervals of not more than 15 months to cause the accounts to be balanced and a balance sheet to be prepared which was called the annual balance sheet.
The first schedule to the Companies Act which contained the regulations by which unless excluded the affairs of the Company were to be governed provided under Regulation 106 the preparation once at least every year of the profit and loss account for the period and under the Regulation 108 for the balance sheet to be made out in every year and laid before the Company in general meeting.
Having regard to the course of business which prevailed in this Company also so far as it is evidenced by the fact that the account of the Managing Agency commission was made up for the calendar year 1943 and was paid to Chidambaram Mulraj and Company Ltd., who became the Managing Agents in place and stead of the Sasssoons in the year 1944, it is reasonable to assume that the 339 accounts of this Company were throughout made up at the end of every calendar year.
The profit and loss of the Company was then ascertained and a commission of 10 per cent.
on the net profits of the Company was paid to the Managing Agents of the Company for the, time being.
In the case of limited Companies like those before us we would be justified in presuming that normally the accounts are made up every year and even though there may be a theoretical possibility of the accounts being cast half yearly or quarterly or even every month no such procedure would be adopted by the Company.
In any event it would be absurd to suggest that the profits of the Company could accrue from day to day or even from month to month.
The working of the Company from day to day could certainly not indicate any profit or loss.
Even the working of the Company from month to month could not be taken as a reliable guide for this purpose.
If the profit or loss has got to be ascertained by a comparison of the assets at two stated periods, the most businesslike way of doing it would be to do so at stated intervals of one year and that would be a reasonable period to be adopted for the purpose.
In the case of large business concerns like these the working of the Company during a particular month may show profits and the working in a particular month may show loss.
The working during the earlier part of the year may show profit or loss and working in the later part of the year may show loss or profit which would go to counterbalance the profit or loss as the case may be in the earlier part of the year.
It may as well happen that the profits which the Company may appear to have earned during the earlier months of the year or even during the II months of the year may be considerably reduced or even wiped out during the later months or the last months of the year by reason of some catastrophe or unforeseen events.
It would be therefore reasonable to assume that the profit or loss as the case may be should be determined at the end of every year so that on such calculation of net profits the Managing Agents may be paid their remuneration or commission at the percentage stipulated in the Managing Agency Agreement and 340 the shareholders also be paid dividends out of the net profits of the Company.
We are sure that these were the considerations which weighed with the Managing Agents of this Company in not taking up any such contention before the Income tax authorities and the High Court that the remuneration or commission payable to them under the Managing Agency Agreement was not payable per year and the contention put forward before us in this behalf was a clear after thought.
We would be therefore justified in treating the terms and conditions in regard to the payment of Managing Agency Commission in both these Managing Agency Agreements as on a par with each other stipulating for such payment per year on the net annual profits of the Companies.
If this be the true construction of the Managing Agency Agreements it follows that the contract of service between the Companies and the Managing Agents was entire and indivisible, that the remuneration or commission became due by the Companies to the Managing Agents only on completion of a definite period of service and at stated periods, that it was a condition precedent to the recovery of any wages or salary in respect thereof that the service or duty should be completely performed, that such remuneration constituted a debt only at the end of each such period of service and that no remuneration or commission was payable to the Managing Agents for broken periods.
The question still remains whether the remuneration for the broken periods accrued to the Sassoons and the contention which was strenuously urged before us on behalf of the transferees was that the Sassoons had rendered the services in terms of the Managing Agency Agreements to the respective Companies, that the services thus rendered were the source of income and whatever income could be attributed to those services was earned by the Sassoons and accrued to them in the chargeable accounting period though it was ascertained and paid in the year 1944 to the transferees.
The word "earned" has not been used in section 4 of the Income tax Act.
The section talks of " income, 341 profits and gains " from whatever source derived which (a) are received by or on behalf of the assessee, or (b) accrue or arise to the assessee in the taxable territories during the chargeable accounting period.
Neither the word " income " nor the words "is received," "accrues" and " arises " have been defined in the Act.
The Privy Council in Commissioner of Income tax, Bengal vs Shau Wallace & Co.(1) attempted a definition of the term income " in the words following : " Income, their Lordships think, in the Indian Income tax Act, connotes a periodical monetary return ' coming in ' with some sort of regularity, or expected regularity from definite sources.
The source is not necessarily one which is expected to be continuously productive, but it must be one whose object is the production of a definite return excluding anything in the nature of a mere windfall." Mukerji J. has defined these terms in Rogers Pyatt Shellac & Co. vs Secretary of State for India(2): " Now what is income? The term is nowhere defined in the Act.
In the absence of a statutory definition we must take its ordinary dictionary meaning that which comes in as the periodical produce of one 's work, business, lands or investments (considered in reference to its amount and commonly expressed in terms of money) ; annual or periodical receipts accruing to a person or corporation " (Oxford Dictionary).
The word clearly implies the idea of receipt, actual or constructive.
The policy of the Act is to make the amount taxable when it is paid or received either actually or constructively.
i Accrues, ' arises ' and I is received ' are three distinct terms.
So far as receiving of income is concerned there can be no difficulty; it conveys a clear and definite meaning, and I can think of no expression which makes its meaning plainer than the word ' receiving ' itself The words I accrue and arise also are not defined in the Act.
The ordinary dictionary meanings of these words have got to be taken as the meanings attaching to them.
Accruing ' is synonymous with 'arising ' in the sense (i) I.L.R. at p. 1352.
(2) at P. 371 342 of springing as a natural growth or result.
The three Expressions accrues, I arises ' and I is received ' having been used in the section, strictly speaking 'accrues ' should hot be taken as synonymous with I arises ' but on the distinct sense of growing up by way of addition for increase or as an accession or advantage; while the word I arises ' means comes into existence or notice or presents itself.
The former connotes the idea of a growth or accumulation and the latter of the growth or accumulation with a tangible shape so as to be receivable.
It is difficult to say that this distinction has been throughout maintained in the Act and perhaps the two words seem to denote the same idea or ideas very similar, and the difference only lies in this that one is more appropriate than the other when applied to particular cases.
It is clear, however, as pointed out by Fry L.J. in Colquhoun vs Brooks(1), [this part of the decision not having been affected by the reversal of the decision by the House of Lords(2)] that both the words are used in contradistinction to the word " receive " and indicate a right to receive.
They represent a stage anterior to the point of time when the income becomes receivable and connote a character of the income which is more or less inchoate.
One other matter need be referred to in connection with the section.
What is sought to be taxed must be income and it cannot be taxed unless it has arrived at a stage when it can be called 'income '.
" The observations of Lord Justice Fry quoted above by Mukerji J. were made in Colquhoun vs Brooks(1) while construing the provisions of 16 and 17 Victoria Chapter 34 section 2 schedule 'D '.
The words to be construed there were ' profits or gains, arising or accruing ' and it was observed by Lord Justice Fry at page 59: " In the first place, I would observe that the tax is in respect of 'profits or gains arising or accruing.
' I cannot read those words as meaning I received by. ' If the enactment were limited to profits and gains 'received (i) at P. 59.
(2) (I889) 14 APP.
493. 343 by ' the person to be charged, that limitation would apply as much to all Her Majesty 's subjects as to foreigners residing in this country.
The result ' would be that no income tax would be payable upon profits 'which accrued but which were not actually received, although profits might have been earned in the kingdom and might have accrued in the kingdom.
I think, therefore, that the words I arising or accruing are general words descriptive of a right to receive profits.
" To the same effect are the observations of Satyanarayana Rao J. in Commissioner of Income tax, Madras vs Anamallais Timber Trust Ltd.(1) and Mukherjea J. in Commissioner of Income tax, Bombay vs Ahmedbhai Umarbhai & Co., Bombay(2) where this passage from the judgment of Mukerji J. in Roqers Pyatt Shellac & Co. vs Secretary of State for India(3), is approved and adopted.
It is clear therefore that income may accrue to an assesee without the actual receipt of the same.
If the assessee acquires a right to receive the income, the income can be said to have accrued to him though it may be received later on its being ascertained.
The basic conception is that he must have acquired a right to receive the income.
There must be a debt owed to him by somebody.
There must be as is otherwise expressed debitum in presenti, solvendum in futuro; See W. section Try Ltd. vs Johnson (Inspector of Taxes)(4), and Webb vs Stenton and Others, Garnishees(5).
Unless and until there is created in favour of the assessee a debt due by somebody it cannot be said that he has acquired a right to receive the income or that income has accrued to him.
The word "earned" even though it does not appear in section 4 of the Act has been very often used in the course of the judgments by learned Judges both in the High Courts as well as the Supreme Court.
(Vide Commissioner of Income tax, Bombay vs Ahmedbhai Umarbhai & Co., Bombay(6), and Commissioner of Income tax, Madras vs K. R. M. T. T. Thiagaraja Chetty & Co.(7).
(i) 18 I.T.R.1 333 at P. 342.
(5) II Q.B.D. 5i8 at pp.
522 and 527 ' (2) [19501] S.C. R. 335 at P. 389.
(6) [1950] S.C.R. 335 at P. 364.
(3) I I.T.C. 363 at P. 372.
(7) at P. 533.
(4) [1946] I A.E.R. 532 at P. 539.
344 It has also been used by the Judicial Committee of the Privy Council in Commissioners of Taxation vs Kirk(1).
The concept however cannot be divorced from that of income accruing to the assessee.
If income has accrured to the assessee it is certainly earned by him in the sense that he has contributed to its production or the parenthood of the income can be traced to him.
But in order that the income can be said to have accrued to or earned by the assessee it is not only necessary that the assessee must have contributed to its accruing or arising by rendering services or otherwise but he must have created a debt in his favour.
A debt must have come into existence and he must have acquired a right to receive the payment.
Unless and until his contribution or parenthood is effective in bringing into existence a debt or a right to receive the payment or in other words a debitum in presenti, solvendum in futuro it cannot be said that any income has accrued to him.
The mere expression "earned" in the sense of rendering the services etc., by itself is of no avail.
If therefore on the construction of the Managing Agency Agreements we cannot come to the conclusion that the Sassoons had created any debt in their favour or had acquired a right to receive the payments from the Companies as at the date of the transfers of the Managing Agencies in favour of the transferees no income can be said to have accrued to them.
They had no doubt rendered services as Managing Agents of the Companies for the broken periods.
But unless and until they completed their performance, viz., the completion of the definite period of service of a year which was a condition precedent to their being entitled to receive the remuneration or commission stipulated thereunder, no debt payable by the Companies was created in their favour and they had no right to receive any payment from the Companies.
No remuneration or commission could therefore be said to have accrued to them at the dates of the respective transfers.
It was however urged that even though no income can be said to have accrued to the Sassoons at the date of the respective transfers which could be the (1) at p. 592, 345 subject matter of any assignment by them in favour of the transferees, the moment the remuneration or commission was ascertained at the end of the calendar year and became a debt due to the Managing Agents under the terms of the Managing Agency Agreements it could be referred back to the period in which it was earned and the portions of the remuneration or commission which were earned by the Sassoons during the broken period could certainly then be said to be the income which had accrued to them during the chargeable accounting period.
Reliance was placed is support of this position on Commissioners of Inland Revenue vs Gardner Mountain & D ' Ambrumenil, Ltd.(1).
The assessee in that case carried on inter alia the business of underwriting Agents, and entered into Agreements with certain underwriters at Lloyds under which it was entitled to receive as remuneration for its services in conducting the Agency, commissions on the net profits of each year 's underwriting.
The Agreements provided that " accounts should be kept for the period ending 31st December in each year and that each such account shall be made up and balanced at the end of the second clear year from the expiration of the period or year to which it relates and the amount then remaining to the credit of the account shall be taken to represent the amount of the net profit of the period or year to which it relates and the commission payable to the Company shall be calculated and paid thereon.
" The accounts for the underwriting done in the calendar year 1936 were made up at the end of 1938 and the question that arose was whether the assessee was liable to additional assessment in respect of the commission on under writer 's profits from the policies underwritten in the calendar year 1936 in the year in which the policies were underwritten or in the year when the accounts were thus made up.
The assessee contended that the contracts into which it entered were executory contracts, under which its services were not completed or paid for, as regards commission, until the conclusion of the relevant account; that the profit in the form of commission was (I) 45 346.
not ascertainable or earned, and did not arise, until that time and that the additional assessment which was made in the year in which the policies were underwritten should accordingly be discharged.
The Special ,Commissioner allowed the assessee 's contention and, discharged the additional assessment.
The decision of the Special Commissioners was confirmed on appeal by Macnaghten J. in the King 's Bench Division of the High Court.
The Court of Appeal however reversed this decision and a further appeal was taken by the assessee to the House of Lords.
The House of Lords held that on the true construction of the Agreements, the commissions in question were earned by the assessee in the year in which the policies were underwritten, and must be brought into account accordingly and confirmed the decision of the Court of Appeal.
It may be noted that the charge was on profits arising in each chargeable accounting period and the profits were to be taken to be the actual profits arising in the chargeable accounting period.
The ratio of the decision was that the commission paid was remuneration for services completely performed in the particular year, that, the assessee had at the end of the year done everything it had to do to earn it and that it was remuneration for work done and completely done in the particular year though it was ascertained and paid two years later.
Viscount Simon in his speech at page 93 stated that the assessee had acquired a legal right to be paid in futuro and that the principle was to refer back to the year in which it was earned so far as possible remuneration subsequently received even though it could only be precisely calculated.
afterwards.
Lord Wright in his speech at page 94 said that it was necessary to determine in what year the Commission was earned, or in the language of the Act, in what year the assessee 's profits arose and observed at page 96 : "I agree with the Court of Appeal in thinking that the necessary conclusion from that must be that the right to the commission is treated as a vested right which has accrued at the time when the risk was underwritten, It has then been earned, though the profits resulting from the insurance cannot be then 347 ascertained, but in practice are not ascertained until the end of two years beyond the date of underwriting.
The right is vested, though its valuation is postponed, ' and is not merely postponed but depends on all the contingencies which, are inevitable in any insurance risk, losses which may or may not happen, returns of premium, premiums to be arranged for additional risks, reinsurance, and the whole catalogue of uncertain future factors.
All these have to be brought into account according to ordinary commercial practice and understanding.
But the delays and difficulties which there may be in any particular case, however they may affect the profit, do not affect the right for what it eventually proves to be worth.
" Lord Simonds in his speech at page 110 stated:" It is clear to me that the commission is wholly earned in year 1 in respect of the profits of that year 's underwriting.
If so, I should have thought that it was not arguable that that commission did not accrue for income tax purposes in that same year though it was not ascertainable until later.
" The fact that the account of the commission could not be made up until later did not make any difference to the position that the commission had been wholly earned during the chargeable accounting period and the income had accrued to the assessee during that period.
Learned counsel for the transferees also relied upon the decisions in Bangalore Woollen, Cotton and Silk Mills Co., Ltd. vs Commissioner of Income tax, Madras(1), and Turner Morrison and Co., Ltd. vs Commissioner of Income tax, West Bengal(2), to show that as and when the sale proceeds were received by the Company the profits made by the Company were embedded in those sale proceeds and if that was so the percentage of the net profits which was payable by the Companies to the Managing Agents as and by way of commission was similarly embedded in those sale proceeds.
If the profits thus accrued to the Company.
during the chargeable accounting period the commission payable to the Managing Agents also could be said to have accrued to them during that period.
(I) [1950] is I.T.R 423.
(2) 11953) 348 It is no doubt true that the accrual of income does not depend upon its ascertainment or the accounts cast by assessee.
The accounts may be made up at a much later date.
That depends upon the convenience of the assessee and also upon the exigencies of the situation.
The amount of the income, profits or gains may thus be ascertained later on the accounts being made up.
But when the accounts are thus made up the income, profits or gains ascertained as the result of the account are referred back to the chargeable accounting period during which they have accrued or arisen and the assessee is liable to tax in respect of the same during that chargeable accounting period.
"The computation of the profits whenever it may take place cannot possibly be allowed to suspend their accrual. :. . . . ". "The quantification of the commission is not a condition precedent to ' its accrual." (Per Ghulam Hassan J., in Commissioner of Income tax, Madras vs K. B. M. T. T. Thiagaraja Chetty and Co.(1).
See also Isaac Holden and Sons, Ltd. vs Commissioners of Inland Revenue(2), and Commissioners of Inland Revenue, vs Newcastle Breweries Ltd.(3).
What has however got to be determined is whether the income, profits or gains accrued to the assessee and in order that the same may accrue to him it is necessary that he must have acquired a right to receive the same or that a right to the income, profits or gains has become vested in him though its valuation may be postponed or though its materialisation.
may depend on the contingency that the making up of the accounts would show income, profits or gains.
The argument that the income, profits or gains are embedded in the sale proceeds as and when received by the Company also does not help the transferees, because the Managing Agents have no share or interest in the sale proceeds received as such.
They are not co sharers with the Company and no part of the sale proceeds belongs to them.
Nor is there any ground for saying that the Company are the trustees for the business or any of the assets for the Managing Agents.
The Managing Agents cannot therefore be said to have acquired a (1) at P. 534.
(2) 12 Tax Cases 768.
(3) 12 Tax Cases 927.
349 right to receive any commission unless and until the accounts are made up at the end of the year, the net profits ascertained and the amount of commission due by the Company to the Managing Agents thus determined.
(See Commissioners of Inland Revenue vs Lebus(1) ).
It is cleat therefore that no part of the Managing Agency commission had accrued to the Sassoons at the dates of the respective transfers of the Agencies to the transferees.
The two decisions which were sought to be distinguished by the High Court in the judgments under appeal also support this conclusion.
In the unreported decision of the High Court of Bombay in Commissioner of Excess Profits Tax, Bombay City vs Messrs. P. N. Mehta and Sons(1), the Managing Agency Agreement was couched in the very same terms as that of the E. D. Sassoon United Mills Company Ltd. The Managing Agents were to be paid 10 per cent.
of the net annual profits made by the Company with a guaranteed minimum commission of Rs. 15,000 per annum.
The accounting year of the Company was the calendar year.
The Tribunal had held that the annual profits could only be ascertained when the accounts of the Company were made up and it was then that the 10 per cent.
commission would accrue to the Managing Agents.
The contention of the Department was that as the Managing Agents worked as such from day to day and helped the Company to earn profits, profits accrued to them from day to day and not at the end of the year.
This contention was negatived by the High Court : "It is only on net annual profits that the Managing Agents are entitled to any commission.
A Company may have worked 'for six months at a loss, for the remaining six months it may make a large profit so as to wipe off the loss, and have a net profit to show.
It is only as a result of the working of the Mills for the whole year that it will be possible to ascertain whether the Mills have worked at a loss or at a profit, and what the profit was.
Therefore, the Managing Agents are only entitled to a commission on the result of the (1) [ 1946] i A.E.R. 476 ; S.C. 27 Tax Cases 136.
(2) [1950] I.T.Ref.
No. 19 Of 1950.
350 working of the Mills for a whole year.
If the working shows a net annual profit which gives them a commission of more than Rs. 15,000 on the basis of 10 per cent.
, they are entitled to that amount.
If, on the ,other hand, the working does not show a profit, which entitles them to a comnission of Rs. 15,000 they are in any case entitled to that amount.
Therefore in our opinion, the Tribunal rightly held that the accrual of the commission was at the end of the calendar year, which was the year maintained by the Mills and not from time to time as contended by the Depart ment.
" In the case of Salt and Industries Agencies Ltd., Bombay vs Commissioner of Income tax, Bombay City(1),, the question for the consideration of the Court no doubt was what was the place where the profits had accrued.
In determining the place where the profits had accrued it was however necessary to find when the profits had accrued to the assessee and it was held that, what was conclusive of the matter was the consideration as to when the right to Managing Agency com mission arose and when did the Company become liable to pay Managing Agency commission to the Managing Agents and it was further held that it was only when all the accounts of the working of the Company were submitted to the head office in Bombay and the profit was determined that it could be said that a right to receive a commission at the rate specified in the Managing Agency Agreement had arisen and the Managing Agents became entitled to a certain specified commission.
These considerations are germane to the question which we have to decide in these appeals and support the conclusion which we have already arrived at, that the right to receive the commission would arise and the income, profits or gains would accrue to the Managing Agents only at the end of the calendar year which was the terminus a quo for the making up of the accounts and ascertaining the net profits earned by the Company.
We fail to see how these cases which were relied upon by the Revenue before the High Court could, be distinguished in the manner in which it was done.
(i) iS I.T.R. 58. 351 We were invited by the learned counsel for the Sassoons to approach the question from another point of view and that was that what had been transferred by the Sassoons to the transferees was a source of income, viz., the Managing Agency which was to run for the unexpired residue of the term.
It was urged that where a source of income was transferred any income which accrued from that source after the date of the transfer was the transferees ' income and not of the transferors, and that it was immaterial (a) that at the date of the transfer there was an expectation that at a future date income would accrue, (b) that the transferor by the work before the transfer had contributed to create any income which might eventually accrue and (c) that because of the expectation of income a higher price had been paid for the transfer.
Reliance was placed in this connection on the case Of Commissioners of Inland Revenue vs Forrest (1).
In that case the assessee purchased certain shares on the 25th November, 1919, and paid an excess price " to cover the portion of the dividend accrued to date.
" A dividend of 10 per cent.
for the period ending on 28th February, 1920, was declared on the 13th May, 1920.
The contention of the assessee was that the dividend should be treated as capital in view of the terms of the contract of purchase and not included in the computation of his income.
Under the provisions of the Incometax Act the dividends which were receivable by him 'were required to be included in the computation of his income.
The learned Judges however discussed the legal effect of such a transaction of the purchase of shares.
Lord Ormidale observed at page 709: " The value of the shares had to be determined as a matter of bargain between the parties, and the purchaser thought that it was not unreasonable that he should pay something over par for them because of the possibility, not the certainty but the possibility, of a dividend six months afterwards being paid upon the shares so purchased by him." Lord Anderson observed at page 710: (i) 8 Tax Cases 704.
352 He buys two things with his money.
He buys, in the first place, a share of the assets of the industrial concern proportionate to the number of shares which he hat; purchased; and he also buys the right to participate in any profits which the Company may make in the future.
Now, when a transaction of this nature is entered into during the currency of the financial year of the industrial concern it is obvious that what happens is this, that not only is a part of the assets purchased outright but that a chance is bought as well a chance of sharing in any profits which may be made during the currency of that financial year.
" Wigmore (H. M. Inspector of Taxes) vs, Thomas Summerson and Sons, Limited (1) was the case of a vendor of war loan stock bearing interest payable without deduction of tax.
The sale was effected on the 10th April, 1923, with interest rights.
The vendor was assessed for the year 1923 24 in respect of the amount of interest said to have accrued on the stock in the period between the last payment of interest.
and the sale of the stock, it being contended that the price received by the vendor on sale of stock included this interest.
The purchasers said that they were not liable to tax in respect of the income which had been accruing on the security they had purchased in a period anterior to the date on which they purchased.
It was observed that the truth of the matter was that the vendor did not receive interest and interest was the subject matter of the tax.
But he received the price of an expectancy of interest which was not the subject of taxation.
It was not argued that the interest accrued de die in them and the vendor was held not assessable in respect of the interest accrued at the date of the sale of the stock.
Commissioners of Ihland Revenue vs Pilcher (2) was the case of the gale of an orchard inclusive of the year 's fruit crop.
The assessee had valued the cherries which were on the trees at pound 2,500 and had pat a man immediately in the orchard after he had purchased it at the. auction.
He commenced to pick the fruit on the 25th May, 1942, and completed the operations on the (i) 9 Tax Cases 577.
(2) 3 i Tax Cases 314.
353 12th June, 1942.
He realised pound, 2,903 as the price of the cherries.
This sum was brought into the profit and loss account as a trading receipt and the contention of the assessee was that in computing his profits he was entitled to charge the sum of i 2,500 being the purchase price of the cherries sold for pound 2,903 which sum had been brought into credit as a trading receipt.
This contention was negatived and it was observed by Lord Justice Jenkins at page 332 " It is a well settled principle that outlay on the purchase of an income bearing asset is in the nature of capital outlay, and no part of the capital so laid out can, for income tax purposes, be set off as expenditure against income accruing from the asset in question.
" There is a further passage in the judgment of Jenkins L. J. at page 335 which is very instructive.
It had been contended that the revenue should look at the transaction from the assessee 's point of view and should consider it in a manner favourable to him.
This contention was dealt with in the manner following: One has to remember that this transaction concerned not merely Mr. Pilcher but also the vendor of the orchard.
Mr. Pilcher was able to buy the orchard complete with the cherries from the vendor and by that means, according to his own calculation, the cherries stood him in pound 2,500.
It by no means follows that if he had been minded to buy the cherries from the vendor apart from the land, as a separate transaction, the vendor would have been willing to sell them to him for pound 2,500, or at any price.
The difference is obviously a material one from the vendor 's point of view because, dealing with the matter as he did, he was selling a capital asset, and the resulting capital receipt, prima facie, would attract no tax.
If he sold the cherries separately in the way of trade he would at once have created an income receipt on which, prima facie, tax would have been exigible.
Therefore the alteration in the form of the bargain required to make it more favourable to Mr. Pilcheer from the tax point of view would have involved an alteration not merely of form but of substance owing to its adverse effect on 46 354 the tax situation of the vendor, and it cannot be assumed that the bargain thus altered would have been one to which Mr. Pilcher could have secured the vendor 's agreement.
" These observations throw considerable light on the situation obtaining,in the cases before us.
It will be remembered that the total amount of Rs. 75,77,693 received by the Sassoons on the transfers of the Managing Agencies was taken by them to the " Capital Reserve Account.
" No part of that amount was treated by them as a receipt of income and it is debatable whether any part of the same could have been allocated as a receipt of income even though the transferees had desired to do so.
All that the transferees obtained under the deeds of assignment and transfer executed by the Sassoons in their favour was an income bearing asset consisting of the office of Managing Agents, the Managing Agency Agreement and all the rights and benefits as such Managing Agents under the Agreements and no part of the consideration paid by the transferees to the Sassoons could be allocated as a receipt of income by reason of their contribution towards the earning of the commission in the shape of services rendered by them as Managing Agents of the Companies for the broken periods.
What the transferees obtained under the deeds of assignment and transfer was the expectancy of earning a commission in the event of the condition precedent by way of complete performance of the obligation of the Managing Agents under the Managing Agency Agreements being fulfilled and a debt arising in favour of the Managing Agents at the end of the stated periods of service contingent on the ascertainment of net profits as a result of the working of the Company during the calendar year.
The last case to which we were referred by the learned counsel for the Sassoons was The City of London Contract Corporation, Limited vs Styles (Surveyor of Paxes) (1).
The part of the business taken over by the assessee in that case consisted of unexecuted and partly executed contracts.
The contracts were executed after the date of the purchase by the assessee and the (1) 2 Tax cases.
239, 355 assessee sought to deduct the price paid for the contracts from the profits arising from their performance.
This deduction was not allowed because whatever price the assessee paid for the purchase of the business was treated as the capital which had been invested for the purpose of acquiring that business and the assessee could not deduct from the net profits of the working of the business after the date of the purchase any part of the capital which had been thus invested by it.
This result was achieved even though in the purchase of unexecuted contracts there was included the part of the work done towards the performance of the contracts by the vendors.
The assessee derived the benefit from such partial execution of the contracts by the vendors; nevertheless the value of such work was not treated as any income which had accrued to the vendors and which the assessee was entitled to deduct from its profits arising from the performance by it of those unexecuted contracts.
Learned counsel on behalf of the transferees contended that all these cases were concerned with the question whether the income derived by the assessee out of the income bearing asset after the date of the purchase could be treated as a capital expenditure so far as it formed part of the consideration paid by the assessee to the vendors and in none of these cases were the Courts concerned with the question that arises before us, viz., whether any part of the income which was actually received by the assessees could be said to have accrued to the vendor.
Even though the question did not arise in terms it is nonetheless involved in the consideration of the question whether the assessee was liable to pay the income tax on the whole of the income thus derived by him.
As was pointed out by Jenkins L. J. in Commissioner of Inland Revenue and vs Pilcher(1), quoted above, the vendor 's point of view cannot be neglected and once you come to the conclusion that the assesse alone is liable it necessarily follows that the vendor certainly has nothing to do with the same.
If it were otherwise the vendor would certainly be liable to tax and no purchaser would miss the opportunity of avoiding his liability for that portion of (i) 31 Tax Cases 314 at P. 335.
356 the income which can be said to have accrued to the vendor.
As a matter of fact such a contention was taken by the purchasers in Wigmore (H.M. Inspector of Taxes) vs Thomas Summerson and Sons Limited(1), where they declined to be assessed for tax in respect of income which had been accruing on the securities they had purchased in a period anterior to the date at which they did purchase.
This contention however did not prevail and the vendors were held not assessable in respect of the interest accrued on the date of the sale of the stock.
It is therefore clear that the Sassoons had not earned any income for the broken periods nor had any income accrued to them in respect of the same, and what they transferred to the transferees under the respective deeds of assignment and transfer did not include any income, which they had earned or had accrued to them and which the transferees by virtue of the assignment in their favour were in a position to collect.
If any debt had accrued due to the Sassoons by the respective Companies at the dates of respective transfers of Managing Agencies such debt would certainly have been the subject matter of assignment.
But it what was transferred by the Sassoons, to the respective transferees were merely expectations of earning commission and not any part of the commission actually earned by them or which had accrued to them under the terms of the Managing Agency Agreements, what the transferees received from the Companies under the terms of the Managing Agency Agreements which were thus transferred to them would be their income and no part of such income could ever be said to have accrued to the Sassoons, during the chargeable accounting period.
In view of the above it is unnecessary to deal with the contention which was urged by the learned counsel for the Sassoons that ever be an assignment of income the assignee and not the assignor would be liable to pay the tax.
He referred us to the case of the Commissioner of Income tax, Bombay Presidency vs Tata Sons Ltd.(2), in support of this contention of his and he also referred us to note 'G ' at page 209 in (i) 9 Tax Cases 577.
(2) 357 Simon 's Income tax, 2nd Edn., Vol.
II, where the ratio of Parkins vs Warwick (H.M. Inspector of Taxes)(1), relied upon by the High Court in the judgments under, appeal has been criticised.
We do not however think it necessary to go into this question, as in our opinion there were no debts due by the Companies to the Sassoons which were assigned under the respective deeds of transfer and assignment.
The only question which remains to consider is whether section 36 of the Transfer of Property Act imports the principle of apportionment in regard to the commission received by the transferees herein.
Section 36 of the Transfer of Property Act provides "In the Absence of a contract or local usage to the contrary, all rents, annuities, pensions, dividends and other periodical payments in the nature of income shall, upon the transfer of the interest of the person entitled to receive such payments, be deemed, as between the transferor and the transferee, to accrue due from day to day, and to be apportionable accordingly, but to be payable on the days appointed for the payment thereof.
" It may be noted that the section applies in the absence of a contract or local usage to the contrary and also applies as between the transferor and the transferee.
There is no room for the application of these provisions as between the subject and the Crown.
(Vide The Commissioners of Inland Revenue vs Henderson 's Executors(2)).
The contract to the contrary must of necessity be as between the transferor and the transferee and it is only when there is no such contract to the contrary that the rents, annuities, pensions, dividends and other periodical payments in the nature of income become apportionable as between the transferor and transferee, deemed to accrue due from day to day and be apportionable accordingly.
The deeds of assignment and transfer executed by the Sassoons in favour of the transferees transferred all the rights and benefits under the Agency Agreement to the transferees and there was no question of apportionment of any commission between the Sassoons and the transferees.
In fact the transfer claimed to retain and did retain (1) [I943] (2) i6 Tax CaseS 282 at P. 291, 358 the whole of the commission, which had been paid by the Companies to them in the year 1944 and the Sassoons never claimed any part of it as having been earned by them.
Whatever was their contribution .towards the earning of that commission during the whole of the calendar year 1943 was the subjectmatter of the assignment in favour of the transferees and that was sufficient to spell out a contract to the contrary as provided in section 36 of the Transfer of Property Act.
Section 26(2) of the Indian Income tax Act also does not help the transferees because it is only when the person succeeded has acquired an actual share of the income profits or gains of the previous year that he is liable to tax in respect of it and as set out herein above no part of the commission actually accrued to or became a debt due by the Company to the Sassoons on the dates of the respective transfers of the Managing Agencies to the transferees.
In order to attract the operation of section 26(2) the person succeeded must have had an actual share in the income, profits or gains of the previous year and on the construction of the Agreements the Sassoons cannot be said to have acquired any share in commission for the broken periods.
The whole difficulty has arisen because the High Court could could not reconcile itself to the situation that the transferee had not worked for the whole calendar year and yet they would be held entitled to the whole income of the year of account; whereas the transfers had worked for the broken periods and yet they would be held disentitled to any share in the income for the year.
If the work done by the transferors as well as the transferees during the respective periods of the, year were taken to be the criterion the result would certainly be anomalous.
But the true test under section 4(1)(a) of the Income tax Act is not whether the transferors and the transferees had worked for any particular periods of the year but whether any income had accrued to the transferors and the transferees within the chargeable accounting period.
It is not the work done or the services rendered by the person but the income 359 received or the income which has accrued to the person within the chargeable accounting period that is the subject matter of taxation.
That is the proper method of approach while considering the taxability or otherwise of income and no considerations of the work done for broken periods or contribution made towards the ultimate income derived from the source of income nor any equitable considerations can make any difference to the position which rests entirely on a strict interpretation of the provisions of section 4(1)(a) of the Income tax Act.
The result therefore is that the question referred by the Tribunal to the High Court must be answered in the negative.
All the appeals will accordingly be allowed.
But as regards the costs, under the peculiar circumstances of these appeals where the Commissioner of Income tax, Bombay, has supported the Sassoons in Civil Appeal No. 3 of 1953 and the brunt of the attack in Civil Appeals Nos. 30 of 1953 and 31 of 1953 has been borne not by the Commissioner of the Income tax who is the appellant in both, but by the Sassoons, the proper order should be that each party should bear pay his own costs here as well as in the Court below JAGANNADHADAS J.
I am unable to agree with the judgment just delivered on behalf of both my learned brothers.
It is with considerable regret that I feel constrained to write a separate judgment expressing the reasons for my not being able to agree with them in spite of my profound respect for their views.
These three are appeals against a judgment of the Bombay High Court by leave granted under section 66A(2) of the Indian Income tax Act.
They arise out of a set of facts mostly common.
E. D. Sassoon and Company, Ltd. now in voluntary liquidation (hereinafter referred to as the Sassoonal had the Managing Agency of three Mills (1) F.D. Sassoon United Mills Ltd. (2) Elphinstone Spinning and We having Mills Company, Ltd., and (3) The Apollo Mills Ltd. With the 360 consent of the Mill Companies and by virtue of clauses in the Managing Agency Agreements enabling thereunto, the Sassoons transferred the Managing Agency of the three Mills to three other Companies during the course of the calendar year 1943 as follows: (1) to Agarwal and Company, Ltd. (hereinafter referred to as Agarwals) on the 1st December, 1943, (2) to Chidambaram Mulraj and Company, Ltd. (hereinafter referred to as Chidambarams) on the 1st June 1943, and (3) to Rajputana Textile (Agencies) Ltd., on the 1st july, 1943.
The assessments with which we are concerned are those of (1) Sassoons, (2) Agarwals, and (3) Chidam barams and relate to income by way of Managing Agency remuneration paid in the year 1944 by the Mill Companies to the respective assignee Companies for the calendar year 1943.
For Sassoons and Agarwals the assessment year was 1944 45 and the accounting year was the calendar year 1943.
For Chidambarams the assessment year was 1945 46 and the chargeable accounting period was from 1st July, 1943, to 30th June, 1944.
The tax was assessed on the basis not of receipts but of accrual.
The income tax authorities treated the total remuneration for the entire year 1943 in each case as income which accrued to the assigneeCompanies in the respective accounting periods.
The assignee Companies objected on the ground that part of the remuneration, up to the date of the respective assignments, accrued to the assignor Company, viz., Sassoons and that they were, therefore, liable to be assessed only in respect of the balance of the remuneration referable to the portion of the calendar year 1943 subsequent to the respective dates of the assignments.
The objection was overruled and the assessments were made.
On appeals to the Income tax Appellate Tribunal, their contention was accepted and the assessments were modified.
It may be mentioned that the Rajputans Textiles (Agencies) Ltd. does not appear to have filed any appeal to the Tribunal.
Meanwhile (presumably by way of caution) the income tax authorities issued notices to the assignor Company, viz., Sassoons, under section 34 of the Indian Income tax Act and assessed it in respect of the proportionate part 361 of the year 's Managing Agency commission up to the date of the respective assignments.
The Sassoons objected to this before the income tax.authorities, but the objection was overruled.
It has been stated to us in the case filed by the Sassoons in this Court that the entire net consideration for the three assignments was taken by them into their accounts as capital reserve.
But this finds no mention in the Tribunal 's statement of the case to the High Court.
How the Sassoons made entries in their own accounts is not decisive and has not been relied on before us.
On their objection being overruled, the Sassoons filed an appeal to the Income.
tax Appellate Tribunal.
The Tribunal rejected the appeal in view of the decision they had already given in the appeals filed by the two assignee Companies, Agarwals and Chidambarams.
The three Companies concerned obtained references to the High Court under section 66 of the Indian Income tax Act.
The question referred by the Tribunal in each of the three cases was the same and is as follows: " Whether in the circumstances of the case; was the Managing Agency commission liable to be apportioned between the assessee Company and the assignee (or assignor, as the case may be).
" The High Court answered the question against the Sassoons and in favour of the other two.
What the High Court held was in substance that (1) the Managing Agency remuneration for the year in question accrued as the joint income of both the assignor and the assignee and was apportionable between them, and (2) the assignee Companies received the assignor 's share of the joint income by virtue of the assignments of the assignor 's share and hence to that extent it was not their taxable income but continued to be the taxable income of the assignor ' There are thus three appeals, one by the Sassoons against the Income tax Commissioner and the other two by the Income tax Commissioner against Agarwals and Chidambarams respectively.
In the first of the appeals, the Income tax Commissioner supports the position taken up by the Sassoons, while in the other two the Commissioner is the appellant and contests the position taken by the 47 362 Agarwals and the Chidambarams.
Thus it will be seen that though in form the three appeals are each between the Income tax Commissioner and one of the three Companies, in fact they raise a controversy between the assignor Company, the Sassoons, on the one side and the two assignee Companies, the Agarwals and the Chidambarams on the other, the Commissioner supporting the Sassoons and opposing the other two.
The arguments before us covered a wide range and were advanced on the assumption that what the High Court held was that the Sassoons became entitled on the.
very date of the respective assignments to a proportionate share of the year 's remuneration for the Managing Agency, and that accordingly that share accrued to the Sassoons as their taxable income, then and there, and did not cease to be such notwithstanding the assignment thereof The case was accordingly debated before us as though the decision turned upon the question whether any income could accrue to the Sassoons on the dates of the respective transfers of the Managing Agency to the transferees.
It is necessary, therefore, to clarify, at the outset, what the question was which was directly raised on the reference made to the High Court and what, in the view of the High Court, was the date When a share of the year 's remuneration accrued to the Sassoons as its income.
It appears to me that the judgment of the High Court taken as a whole is based only on the view that the entire Managing Agency remuneration for the year accrued on the completion of 'the year, i.e., on the 31st December, 1943, and that when it so accrued it accrued both to the assignor and to the assignee together.
This appears from the following passage of the judgment of the High.
Court.
" In order to levy income tax it is not enough to enquire when a particular income accrues.
What is more important and what is more pertinent is to enquire whose income it is which is sought to be taxed.
Assuming that this particular income accrued on the 31st December and till 31st December there was nothing earned, even so, when.
the income does accrue the question still remains to be answered as to whose 363 income it is which has accrued on the 31st December, 1943.
" It appears to me also that it is on the footing of the accrual on the completion of the year that the High Court dealt with the question of assignment of the, income as appears from the following passage: " And clearly one of the rights which E. D. Sassoon and Company, Ltd. had, was to receive the Managing.
Agency commission (share therein ?) when it accrued on 31st December. . .
They transferred that right.
" From these passages it appears to me clear that the High Court proceeded on the view that income accrued at the end of the year to both together and that what passed to the assignee under the assignment included a future right of the assignor to a share in the remuneration, when it accrued on the completion of the year, and not on the view that the assignment operated as the transfer of a present right to such a share on the very date of the assignment.
It is in view of the assumption that the remuneration for the year accrued only on the 31st December that the Income tax Appellate Tribunal also took care to say, in making their reference to the High Court, as follows: " The question is not when the Managing Agency commission accrued.
The real question is to whom it accrued.
" It appears to me, therefore, that it is not correct to approach the consideration of this case as though, the decision therein turns directly upon the question whether any income had accrued to the Sassoons on the dates of the respective transfers of the Managing Agency to the transferees.
In the arguments before us, considerable stress was laid by learned counsel appearing for the Sassoons on the fact that the Managing Agency Agreements with which we are concerned provide for annual remuneration for an year 's work.
It was pointed out that the remuneration payable was fixed as commission at a certain specified percentage of the net profits of the respective Mill Companies.
So far as the Sassoons United Mills Ltd., are concerned, whose Managing Agency had been 364 assigned to Agarwals, the commission was in terms stated in the Agency Agreement to be per annum and on the annual net profits of the Company.
So far as Elphinstone Spinning and Weaving Mills Company,Ltd., are concerned, whose Managing Agency was assigned to Chidambarams.
, the remuneration, is merely stated in the corresponding Agreement to be a percentage of the net profits of the company, but is not in terms stated to be per annum or on the annual net profits.
But there can be no reasonable doubt that as a matter of construction, the remuneration in the latter case also must be taken to be per annum and on the annual net profits, notwithstanding some argument before us to the contrary.
Having regard to this basic fact, the following are, in substance, the arguments put forward before us by learned counsel for the assignor Sassoons.
(1) The Managing Agency commission was payable in respect of services for an entire calendar year and not for a portion thereof and therefore no commission became due to the Sassoons for the services rendered by them to the respective Mill Companies for broken periods of the year up to the dates of the respective assignments.
(2) Since no remuneration became a debt due to the Sassoons from any of the Mill Companies on the dates of the respective assignments, no taxable income accrued to them for the broken periods.
(3) By the dates of the respective assignments, the Sassoons had only a bare expectancy, if any, to receive remuneration for the broken period and this expectancy could not be the subject matter of any assignment, and (4) The true legal position, therefore, is that what was assigned was an income bearing asset, viz., the Managing Agency which was the source of income and which entitled the respective assignees to receive all the remuneration for the year payable under the Managing Agency Agreement subsequent to the respective dates of assignment.
Accordingly the same became in its entirety taxable income in the hands of the respective assignees and no portion of it accrued at any time as taxable income of the assignor Sassoons.
In the view that I take of the High Court 's judgment as to the date of accrual of the income and as to 365 the scope of the question presented on the references the first three of the above arguments do not appear, to me to call for any examination.
In the present case no question arises as to the enforceability of the claim for a proportionate share of the remuneration by, the assignor from the very date of assignment.
Nor does any question arise as to the non payability of remuneration on account of non completion of the work.
The year 's work has been completed by the assignee Company in continuation of that of the assignor Company.
The total remuneration for the year has in fact been paid into the hands of the assignee Company.
The only questions, therefore, are (1) whether the money so received accrued by way of remuneration for the year 's work and became taxable income on the 31st December, 1943, (2) if so, whether.
it was the joint income of the assignor and the assignee or the, sole income of the assignee, and (3) whether the assignment operated to transfer the assignor 's share of the income on its accrual.
The answer to the first of the above questions seem$ to me to admit of no doubt.
The remuneration was for the year 's work.
The year 's work was completed on the expiry of the year.
The right to receive the remuneration became, therefore, vested on the 31st December, 1943.
It is true that in Agarwal 's case there is a clause ' in the original Managing Agency Agreement that "the Managing Agency commission shall be due yearly on the 31 st day of March in each and every year and shall be payable and be paid immediately after the annual accounts of the Mill Company have been passed, by the shareholders.
" It has been urged, in reliance on this clause that the accrual of the income, in so far as the case of Agarwals is concerned, is not on the 31st December, but on the 31st March next.
In the first place such a contention in so far as it relates to the date of accrual, is not permissible in view of the clarification in the order of reference made by the Tribunal to the High Court and: in view of the specific and categorical language of some ' of the grounds in the statements of the case filed.
366 before us both by Sassoons and the Income tax Commissioner showing 31st December, 1943, as the date of accrual of the entire remuneration.
(Vide paragraphs 19(1), 26(a) and (g) of the Sassoons ' statement, and paragraphs 12, 15(1), (2) and (5) of the Income tax Commissioner s statement, in Civil Appeal No. 3 of 1953).
But even if the contention be permissible and granting the view strenuously urged on behalf of the appellant Sassoons that there is no accrual of income until there exists a right to receive it, I do not think that the clause in question has any relevancy so far as the date of accrual of income is concerned.
Accrual of income for purposes of taxation, does not depend on the question ' as to when the income becomes payable.
It depends only on when a vested right to receive the income arises.
(See Commissioners of Inland Revenue vs Gardner Mountain and D ' Ambrumenil Ltd., (1)).
The accrual is accordingly complete when the right to the remuneration becomes vested by the occurrence of all the events on which the remuneration depends.
A mere clause that the remuneration shall be due at a later date, notwithstanding ' that all the events on which the remuneration depends have occurred, can only have the effect of postponing the liability for payment and not of postponing the vesting of the right to income.
The requirement of lapse of further time after the occurrence of all the qualifying events is not itself an additional event which imports any element of contingency in the right.
It appears to me, therefore, that the above clause which has been relied upon whatever the reason may be for the distinction which the language seeks to suggest between due and payable can have no bearing on the date of the accrual and cannot have the affect of postponing the accrual from the 31st December to 31st March.
But even otherwise, this does not at all affect.
the final conclusion in this case reached by the High Court of Bombay.
If the view of the High Court is correct that the ncome accrued both to the assignor and to the assignee after the completion of the year 's work it seems to matter little whether that accrual is on the 31st December or on the 31st March next.
(1) 367 by the High Court that the assignments operated to transfer to the assignee the assignor 's share of the year 's remuneration after it accrued to him as his income and whether it continues to remain the assignor 's taxable income in spite of the assignment, may also be shortly dealt with.
If the High Court be right in its view that the remuneration accrued both to the assignor and to the assignee together, whenever it may ' be, then it is clear that on the respective dates of the assignment,, the assignor bad a future right to a share of the remuneration on the completion of the year.
If so, there is ample authority for the position that the assignment of such a future right is valid and becomes operative by way of attaching itself to the right when it springs up.
(See Bansidhar vs Sant Lal (1), Misri Lal vs Mozhar Hossain (2), Palaniappa vs Lakshmanan (3) and Baldeo vs Miller (4).) The validity of such an assignment as between the assignor and the assignee and the effect thereof on the assignor 's future right may also be supported with reference to the principle of estoppel feeding title which finds recognition in section 43 of the Transfer of Property Act.
For the further position, ViZ., that a person continues to be liable for tax in respect of accrued income notwithstanding assignment thereof operating on or after such accrual, there is authority in Parkins vs Warwick (5).
This view is confirmed by the following passages in the Privy Council case in Pondicherry Railway Co. Ltd. vs commissioner of Income tax, Madras (6).
" Profits on their coming into existence attract tax at that point and the revenue is not concerned with the subsequent application of the profits.
" The destination of the profits or the charge which has been made on those profits by previous agreement or otherwise is perfectly immaterial." (Quoted out of an extract from the case in Gresham Life Assurance Society vs Styles(7)).
(1) I.L.R.1o All I33.
(2) I.L.R. (3) I (4) I.L R. (5) 25 Tax Cases gig.
(6) A.I.R. 1931 P.C. i65 at 170.
(7) [I892] A.C. 309. 368 clear recongnition of the principle that when once income accrues to a person, an assignment operative in respect thereof, does not affect his taxability for that income.
It may be mentioned that it is not seriously disputed that the consideration for each assignment included the value of the prospective advantage of collecting the remuneration for the entire year, i.e., in the sense that the actual consideration paid was higher than what it might have been if the assignment had taken place at the very commencement of the year.
The only substantial question, therefore, which this case raises is whether the view taken by the High Court, that the remuneration for the year accrued as income both to the assignor and the assignee, is correct.
It is apparently as an answer to this question that learned counsel appearing for the Sassoons put forward the argument No. 4 above enumerated, viz., that the assignment of Managing Agency is the transfer of an income bearing asset and that all income received subsequent to the date of assignment is entirely the assignee 's taxable income.
It is the validity of this argument that now requires examination.
The cases that have been relied on in support of this argument are the following : The Commissioners of Inland Revenue vs Forrest(1); Wigmore vs Thomas Summerson(2); and Commissioners of Inland Revenue vs Pilcher(3).
Commissioners of Inland Revenue vs Forrest(1) is a case of purchase of certain shares and the income derived therefrom and is analogous to the second head of income chargeable to income tax under section 6, of the Indian Income tax Act, viz., Securities.
The income therefrom is directly referable only to the ownership of the shares or securities.
Mere lapse of time makes income payable and the taxation depends on the receipt of the income.
Wigmore vs Thomas Summerson(2) is also a case similar to the above.
Commissioners of In.
land Revenue vs Pilcher(3) is the case of a sale of an orchard inclusive of the year 's fruit crop, which by the date of the sale does not appear to have become ripe.
(i) 8 Tax Cases 704.
(2) 9 Tax Cases 577 (3) 3T Tax Cases 314.
369 enough to be treated as a severable item of property.
This was a case of property whose.
ownership itself, in the ordinary course and by lapse of time, gives rise to income and is analogous to head No. 3 of section 6 of ' the Indian Income tax Act.
It is interesting to note, that in this case, the learned Judges make a distinction between fructus industriales and fructus naturales and point out that the fruits derived from the orchard being cherries are fructus naturales and not fructus industrials.
That the result might have been different if it was fructus industriales appears clearly, at least so far as Lord Justice Singleton and Lord Justice Tucker are concerned.
In the case of fructus industriales the income does not arise by mere ownership but as a result of further investment and labour which may be the effective source of income.
These decisions refer only to cases where the sole or effective source of income is mere ownership and taxability depends on receipt of the income.
Another case that has been relied on before us is the City of London Contract Corporation vs Styles(1).
That was a case where one Company purchased as a going concern the business carried on by another Company, as contractors for public works.
It was claimed that the assignee Company was entitled to deduction from their taxable income for a portion of the purchase price which may be attributed to the purchase of the right, title and interest to, and the benefit of, certain building contracts of the Company, from the execution of which, a portion of the net profits of the Company arose.
This was negatived on the ground that the entire purchase price was capital investment and that what all was received later on was income derived by the execution of the contracts so purchased.
This, so far as it goes, may seem to suggest by implication that there may be a purchase of contracts yet to be executed and that the benefit of the entire profits therefrom is to be treated as income in the hands of the purchaser.
The report of this case, however, does not indicate clearly whether the contracts, whose benefit was purchased were partially executed and if so, whether the partial execution (1) 2 Tax Cases 239, 370 was substantial or negligible.
The statement of the facts of the case at page 241 of the report shows that the business which was purchased consisted entirely " of partially executed or wholly unexecuted contracts, and of the rights thereunder and the benefits to accrue therefrom.
" If the business consisted of only unexecuted contracts, this case is not an authority for the position contended for on behalf of the Sassoons.
But in any case, even if some of the contracts were partially executed there is nothing to show that the execution was of any such extent as to have become a substantial source of income.
It may also be noted that this decision is a direct authority only on what is capital expenditure and what is revenue expenditure for pur poses of deduction.
The point in the form relevant for the present case was not raised there and cannot be taken to have been decided.
It is interesting to notice that in Simon 's Income tax, Vol. 2, (1949 Edn.), page 188, paragraph 222, the following passage appears.
" In City of London Contract Corporation Ltd. vs Styles(1) where the Company acquired a business including a number of unexecuted contracts, it was held that the sum paid for the contracts could not be deducted in computing the Company 's profits, on the ground that the whole of the purchase price of the business was a sum ' employed or intended to be employed as capital in such trade '.
" Similarly in Spicer and Pegler 's Income tax and Profits tax (20th Edn.), at page 116 it is stated as follows : " Cost of unexecuted contracts taken over with a business (in arriving at the profits from the performance of the contracts)" and the case of City of London Contract Corporation vs Styles(1) is quoted as authority.
These standard textbooks also show that this case has been treated as having reference to unexecuted contracts (and not to partially executed contracts) and as being authority for the question as to what are Permissible deductions from taxable income of business concerns, (I) 2 Tax CaseS 239.
371 The above cases, therefore, cannot be treated as in any way supporting the contention put forward by learned counsel for the appellant Sassoons that in the case of an assignment of Managing Agency the entire remuneration for the year 's work accrues as a matter of law to the assignee and is his sole income, on the ground that the Agency is the source of income and that in this respect it is to be treated as an income bearing asset.
No specific authority has been cited ' before us covering the case of a Managing Agency nor can the case in City of London Contract Corporation vs Styles(1) be treated as an authority showing that in the case of an assignment of partially executed contracts the remuneration or profits relatable to such partial execution is necesarily the income of the assignee.
The question thus raised has, therefore, to be examined on principle.
On such examination it appears to me that the argument advanced in this behalf is based on a fundamental misconception.
Income of the kind with which we are concerned in this case does not arise by virtue of any mere ownership of an asset.
What produces income is not the ownership of the Managing Agency but the actual work turned out for the benefit of the principal.
It is not the fact of a Company having obtained the right to work as a Managing Agent that produces the income but it is the continuous functioning of the Company, as the Managing Agent, in terms of the contract of Agency, that produces the income.
Hence, it is the rendering of the service of the Managing Agency or the carrying out of the Managing Agency business, which is the effective and direct source of income.
This is not to say that work or service is the subject of taxation.
It is the remuneration that is the subject of tax and work is the source of the remuneration.
Hence in such a case service or work is the source of income and not.
the ownership of the right to work.
The above legal position has been very succinctly brought out by Lord Finlay, though in another context, in John Smith & Son vs Moore(2) in the following passage: (1) 2 Tax Cases 239.
(2) (1921] 2 A.C. I3 at 25.
372 "The business makes no profits.
The profits are not fruits yielded by a tree spontaneously.
They are the result of the operations carried on by the owner of 'the business for the time being." Therefore, on principle, apart from authority, it appears to me to be erroneous to treat the Managing Agency.
Agreement as by itself the direct source of income and to treat it as an income producing asset.
An examination of the provisions of the Indian Income tax Act clearly bears out this view.
Sections 3 and 4 of the Income tax Act are the charging sections.
The charge is (in so far, as it is relevant for purposes of this case) on the income of the previous year (a) which is received by the assessee within the taxable territory, or (b) which accrued or arose within the taxable territory to a resident assessee.
As stated at the outset the assessment in the present case is based on accrual and not on receipt.
Computation of the taxable income is governed by the provisions of Chapter III of the Act.
Section 6 thereof enumerates the following heads of income as being chargeable to income tax.
(1) Salaries, (2) Interest on securities, (3) Income from property, (4) Profits and gains of business, profession or vocation, (5) Income from other sources.
The residual item (5) may for the present purposes be left out.
Of the other four heads, items 2 and 3 are the only items in which the taxable income is directly related to the ownership of an asset.
In the present case the computation of the taxable income 'has no relation to those items but may conceivably fall under head No. 1 or head No. 4.
At this stage, it is necessary to observe that, though, so far, in the above discussion, the Managing Agency has been referred to as service and the commission therefor as remuneration, for purposes of convenience, the true nature of the functioning of a Managing Agent, where it is, a firm or a Company, which so functions, has been recently held by this Court in Lakshminarayan Ram Gopal and Son, Ltd. vs The Government of Hyderabad(1) to be a business and the remuneration to be income by way of profits or gains from the business.
The i) Civil Appeals Nos. 292 and 312 Of 1050 of the Suprem Court of India.
373 income, therefore; falls under head No. 4 and the com petation thereof has to be made under section 10 of the Income tax Act.
Sub section (1) of that section runs as follows: "The tax shall be payable by an assessee under the head profits and gains of business, profession or vocation in respect of the profits or gains of any business, profession or vocation carried on by him.
" Now, in computing the taxable income of the assignee, can it reasonably be said that the remuneration for the entire year is the income of the assignee and that it is the profits and gains of the business carried on by the assignee, when as a fact he stepped into the position of the Managing Agent only on some date in the course of the year by virtue of the assignment.
It appears to me that before income can be attributed under this head to an assessee, it must relate to the business carried on by the assessee himself In the present case, therefore, the profits and gains of the whole year seem to me clearly to relate to the business carried on both by the assignor and the assignee taken together and are hence taxable as income accruing to both and apportionable as such between them.
The importance of not overlooking the significance of the phrase "carried on by him" in subsection (1) of section 10, though in a different context, has been emphasised by the Privy Council in Commissioner of Income tax, Bengal vs Shaw Wallace and Co.(1).
A recent decision of this Court in the Liquidators of Pursa Limited vs Commissioner of Incometax, Bihar(2) also emphasises this and explains that the phrase "carried on by him" in section 10(1) of the Indian Income tax Act "connotes the.
fundamental idea of the continuous exercise of an activity as the essential constituent of that which is to produce the taxable income.
" This phrase appears to me also clearly to connote the idea that the taxable income is that of the very assessee or the combination of assessee whose continuous activity produces the income.
Where, as in this case, that continuity is kept up by two persons successively, it appears to tile (i) I.L.R. (2) Civil Appeal NO.
33 Of 1953.
374 that under this section, the profits and gains are the assessable income of both together.
This is in accord with the well accepted notion, under the normal law, that if two persons jointly carry out a work or conduct a business, the total remuneration in fact earned for the work or the total gains made on that business belongs to both of them as their joint property and that such property has to be apportioned between them on some equitable basis.
This is quite independent of any question as to whether the claim for remuneration for the work or for the emoluments of the business can be individually or jointly enforced as against the person who is liable to pay.
It cannot be disputed that in the absence of any specific contract to the contrary between the persons who contribute to the work or business, the fruit of such work or of such business is the joint property of both, when the same has in fact been realised.
Nor can it be said that this holds good only in cases where both the persons concurrently join together to earn the remuneration for the work or the profits of the business.
There is no reason in law why the same principle should not be equally applicable where the two together contribute to the total work or to the total business in succession as in this case and not in concurrence.
If, what arises on such continuous and successive functioning of two persons is the joint remuneration of both, there can be no doubt that such remuneration would be apportionable between them on some equitable basis on the principle that joint property is normally severable.
To such a situation section 26(2) of the Income tax Act would also clearly apply.
That section no doubt indicates nothing as to the principle of apportionment.
But there is no difficulty in the present case since it is agreed that the apportionment, if any, is to be timewise.
This also prima facie is the only equitable way of apportionment on the facts of this case.
At this stage it becomes necessary to notice certain provisions of the relevant Managing Agency Agreements which have been strongly relied on as supporting the view contrary to what I have indicated above.
Reliance 375 has been placed on two provisions of the Managing Agency Agreement between the Sassoon United Mills Ltd. and the Sassoons which are relevant only in the appeal relating to the Agarwals.
The first of these provisions is the one already noticed in another context, viz., clause 2 (d) of the Agency Agreement which, runs as follows: "The said commission shall be due to the said firm yearly on the 31st day of March in each and every year during the continuance of this Agreement. . .
It is urged that this term stamps the Managing Agency Agreement with the characteristic of an incomebearing asset which vests solely in, the assignee the right to the entire income payable after the date of assignment.
But it appears to me that a term of this kind has reference only to the payment aspect of the.
money which constitutes remuneration and has no, bearing on the question as to whose income it is for purposes of taxation.
Taxable income must be derived from specified sources indicated in the Indian Incometax Act.
Since the mere ownership of Managing Agency cannot as a matter of law be treated as the source of ' income, as explained above, any term in the Managing Agency Agreement between the principal and the agent entitling only the assignee to receive the year 's remuneration and negativing to the assignor any direct recourse to his quondam principal for his share of the income, cannot have the effect of denying to the assignor a substantial right to a share in the remuneration, if otherwise he has a vested right thereto.
A distinction exists in law between the right to receive or get payment of a certain amount of money and the right to the money itself.
The right to enforce payment of money may belong to one person.
But the beneficial right in that money may belong wholly or partially to another.
Benami contracts are familar examples of such a case.
Instances of joint rights in money or money 's worth enforceable only at the instance of one out of the persons entitled, in special situations, are easily conceivable.
It may be true that there is no accrual of income unless there is a vested right to receive the money which constitutes income.
But this 376 proposition has relevance only to the factum or date of accrual but not necessarily to the ownership of the income on such accrual.
None of the cases that have been cited before us in support of the proposition that there is no accrual of income unless there is a right to receive it negative this view.
In the course of the arguments repeated stress has been laid on the proposition that there is no accrual of income 'Unless there is a right to receive the income.
This may be so.
But it does not follow that the very person who has the right to receive the money which constitutes the income is the owner of that money or that the income accrues to him alone.
That must depend on the substantive rights, if any, applicable to a particular situation.
A term in a Managing Agency Agreement between the principal and the agent as to the person to whom the remuneration is payable or is to become due can only have been meant as a protection of the principal in respect of multiplicity of claims against himself and cannot settle the substantive rights between persons who may have contributed to earn the remuneration.
The second provision relied on is clause 10 of the Managing Agency Agreement with which the case of Agarwals is concerned.
Clause 10 of the agreement runs as follows: "It shall be lawful for the said firm to assign this agreement and the rights of the said firm hereunder to any person, firm or Company having authority by its constitution to become bound by the obligations undertaken by the said firm hereunder and upon such assignment being made and notified to the said Company shall be bound to recognise the person or firm or Company aforesaid as the Agents of the said Company in like manner as if the name of such person, firm or Company had appeared in these presents in lieu of the names of the partners in the said firm and as if such person, firm or Company, had entered into this Agreement with the said Company and the said Company shall forthwith upon demand by the said firm enter into an Agreement with the person firm or Company aforesaid appointing such person firm of Company the 377 Agents of the said Company for the then residue of the term outstanding under the Agreement and with the like powers and authorities remuneration and emoluments and subject to the like terms and conditions as are herein contained.
" Stress has been laid on the underlined portion of the above clause.
It is urged that this as well as clauses I and 3 of the Managing Agency Agreement show that the assignor and the assignee are to be treated as one entity and that on assignment the assignee becomes the Managing Agent as if his name had been inserted in the Managing Agency Agreement from the beginning, and that the continuity of the Managing Agency was preserved thereby and that whoever satisfies the description of the Managing Agent at the time when the commission for the year becomes due, is also the person entitled to the amount by way of remuneration not, as per this argument by virtue of any mutual arrangement between the assignor and the assignee, but by the very terms of the Managing Agency which is the source of income.
It is urged.
therefore, that this feature stamps the Managing Agency as an income bearing asset.
In substance, therefore, this argument amounts to saying that by virtue of this clause the service of the assignee subsequent to the date of assignment can be tacked on to the service of the assignor for the earlier portion of the year, so as to constitute it service for the entire year which earns the remuneration, as the sole property of the assignee, i.e., that the assignment has to be given retrospective operation from the commencement of the year in respect of the work so far done.
But if this clause is to be construed as having such retrospective operation, it must, on the very terms of the underlined portion, become so operative from the original commencement 2of the Agreement itself and not from any particular date or event thereafter.
There is no reason to confine such retrospective operation only to the inchoate advantage for remuneration arising from partly finished work of the year.
The underlined portion of the clause, if it is to ' have retrospective effect at all, is comprehensive enough to take within its ambit every othere claim,which may have accrued but remained 49 378 unpaid, commencing from the initial stage of the Agency.
On this construction, therefore, the right to. ,very such claim would pass to the assignee.
Such a result would obviously be untenable and no reason exists why the retrospective operation, to be imputed to this clause, should be confined to the limited extent which serves the argument put forward in this behalf by the appellant Sassoons.
It appears to me, therefore, quite clear on a fair reading of the entire clause 10 of the Managing Agency Agreement that the only effect thereof is to bring about the result specifically stated in the second portion of that clause (which has been side lined) i.e. that on assignment, the assignee firm shall be entitled to demand and obtain from the principal Company a fresh Managing Agency Agreement in its own favour for the residue of the term outstanding and with like powers authorities remuneration and emoluments and subject to the like terms and conditions.
In my opinion all that the clause 10 taken as a whole means is no more than that the assignee is entitled to demand a fresh Agreement on the same terms and that even without a fresh Agreement being formally executed as between the principal Mill Company and the assignee company their mutual rights and obligations will be governed by the old Agreement for the residue of the term with the assignee Company 's name substituted for the assignor Company 's name.
Such effect can only be prospective and not retrospective.
There can be no doubt, however, that though any mere clause in the Managing Agency Agreement that the employer is to be responsible only to the assignee for the payment of the entire year 's remuneration is not by itself enough to vest in the assignee a beneficial right to the remuneration of the year, such a right may arise by virtue of a specific or implied term as between the transferor and the transferee, either as part of the deed of transfer or independent thereof.
It may be mentioned that in the Agarwals ' case there was such a specific term in the Agreement preliminary to the actual assignment.
But learned counsel for the Sassoons expressly disclaimed it on the ground that it was not incorporated in the deed of transfer and was, 379 in any case, superfluous and did not rely on it.
In his view the right of the assignee to receive the entire remuneration did not depend on any specific term between the assignor and the assignee, but on the fact that what was transferred is an income bearing asset which carried with it a right to the entire income that falls due after the date of assignment.
It is on account of the insistence on this view, that, as I apprehend, learned counsel for the Sassoons disclaimed the above mentioned special term between the assignor and the assignee as being superfluous.
He seems to have sought thereby to obviate the consequence of the contention that the assignor 's share of remuneration became the assignee 's by virtue of the specific assignment thereof operating thereon 'on its accrual and that hence it remained the taxable income of the assignor.
It may be mentioned in this context that clause 10 of the Managing Agency Agreement in Agarwals ' case has been relied on by learned counsel for Agarwals to show that while, it may be, that in the normal run of events the contract for remuneration under the Managing Agency Agreement is an indivisible contract for a whole year 's remuneration on the completion of a whole year 's work, this clause necessarily implied divisibility of contract and of the remuneration in the year of assignment since the assignment necessarily took place with the consent of the principal Mill Company.
(Vide section 87 B(c) of the Indian Companies Act).
This argument was advanced to support the contention that the Sassoon 's share of the year 's income accrued on the very date of assignment.
Since, however, in my view that was not the basis of the judgment of the High Court as explained above and since such an argument is not, in my opinion, open, having regard to the statement of the case by the Income tax Appellate Tribunal as well as of the statements of appellants and respondents herein, I do not consider it necessary to deal with that argument.
In my view, therefore, the continuous and successive functioning by both the assignor and the assignee under the Managing Agency Agreement was the effective source of the year 's income.
That income accrued on the completion of the year and was the joint income 380 of both the assignor and the assignee.
The prior assignments in the course of the year operated as assign ments of this future right to a share of the income.
It is only by virtue of inter se arrangement between the assignor and the assignee, resulting from the transactions of assignment, that the assignee had the right to collect the entire income.
Nevertheless, the share in this income which accrued to the Sassoons on the completion of the year remained the taxable income of the Sassoons and they were rightly taxed in respect thereof.
The very strenuous arguments of learned counsel for Sassoons to counter the above view are based on the insistence that the Managing Agency is like property which per se produces income and, on ignoring the distinction between right to receive the income and right to the ownership of the income and on treating the former as settling the question of the person to whom income accrues.
In my opinion these arguments are unsustainable and the conclusion reached by the learned Judges of the Bombay High Court is correct.
The appeals are, therefore, liable to be dismissed.
I express no opinion on any of the other points raised.
Appeals allowed.
| Appellants Nirpal Singh, Gurdev Singh and Jagmohan Singh were convicted under section 302 J.P.C. and sentenced to death while the appellants Devinder Singh, and Maha Singh were convicted under section 302 but sentenced to imprisonment for life by the Sessions Judge.
The High Court upheld the convictions as also the sentences while accepting the refer ence under section 366 made by the Sessions Judge and dismissing the appeals by the accused.
On appeal by special leave, the appellants contended inter alia, that the sentence passed against them was bad as the Sessions Judge, after delivering the judgment of conviction has not given any opportunity to them of being heard on the question of sentence separately.
Dismissing the appeals of Devinder Singh and Maha Singh and partly allowing the appeals of the other three appel lants, the Court maintained their convictions set aside the sentence of death passed on them and remitted their cases to the trial Court for passing sentences on them afresh under section 235(2) of the Criminal Procedure Code.
The Court HELD: (1) Though the commitment inquiry was held under the Code of Criminal Procedure, 1973, since the procedure under section 235(2) has not been adopted by the Sessions Judge, the sentence of death passed on the appellants, Narpal Singh, Gurdev Singh and Jagmohan Singh in the instant case cannot be sustained.
Since Devinder Singh and Maha Singh have already been given sentences of life imprisonment which is the minimum sentence that could be passed under section 302, remetting their cases to the Sessions Judge was not neces sary.
[902 F G, 903 E] Santa Singh vs State of Punjab [1977] 1 S.C.R. 229, reiter ated.
(2) When a case is remitted by this Court to the Ses sions Court for giving a hearing on the question of sentence under section 235(2) of the Code of Criminal Procedure 1973.
there would be fresh evidence and the principle that the Sessions Judge may not act on evidence already recorded before his predecessor and must conduct de novo trial would not be violated.
The ratio of Pyare Lal 's case cannot be applied or projected into the facts and circumstances of the present case or to cases where the trial has ended in a conviction but the matter has been remitted to the trial Court for hearing the case only on the question of sentence.
[903 A D] Pyare Lal vs State of Punjab , distin guished.
|
ition No. 2030 of 1980.
Under Article 32 of the Constitution.
Ramjethmalani, M. M. Lodha and Harjinder Singh for the Petitioner.
V. section Desai, Mrs. Shobha Dixit, R. N. Poddar and Miss A. Subhashini for the Respondent.
The Judgment of the Court was delivered by 643 BHAGWATI, J.
This petition for a writ of habeas corpus challenges the continued detention of one Mahendra Chordia under sub section (1) of section 3 of the (hereinafter referred to as COFEPOSA Act).
On 4th June, 1980 an order of detention dated 27th May 1980 was served on Mahendra Chordia (hereinafter referred to as the detenu) and he was taken under detention.
The order of detention recited that the Governor of Maharashtra was satisfied with respect to the detenu that, with a view to preventing him from smuggling goods and abetting the smuggling of goods, it was necessary to make an order directing him to be detained and by the order of detention, the Governor of Maharashtra in exercise of the powers conferred under sub section (1) of section 3 of the COFEPOSA Act read with the Order of the President of India in the notification of the Government of India dated 17 February, 1980 directed that the detenu be detained under that Act.
Simultaneously with the order of detention, another order dated 27th May was also issued by the Governor of Maharashtra directing that the detenu be detained in the Nasik Road Central Prison.
When the petitioner was arrested and taken under detention, he was also served with a document dated 27 May 1980 containing the grounds of detention as required by sub section (3) of the COFEPOSA Act read with clause (5) of Article 22 of the Constitution.
The grounds of detention referred to several documents and statements including two tape recorded conversations, one between the detenu and one Ahluwalia and the other between the detenu, Ahluwalia and an advocate by the name of Kumar Mehta.
The detenu therefore addressed a letter dated 6th June, 1980 to the Deputy Secretary to the Government of Maharashtra requesting him at his earliest to send "all statements documents and material" to enable him to make an effective representation against his detention.
The detenu also sent a representation dated 9th June, 1980 to the Deputy Secretary once again requesting him to supply immediately the documents, statements and materials relied upon in the grounds of detention so that the detenu could make an effective representation and also specifically calling upon the Deputy Secretary to furnish the transcripts of the tapes as also to produce the original tapes for his inspection so that he could prove that the voice recorded on the tapes was not his.
This representation was admittedly received by the Deputy Secretary on 14th June 1980.
The detenu thereafter addressed another communication to the Deputy Secretary requesting him to supply one accurate copy of the tapes, so that he could have the tapes played in the presence of those 644 who would recognise his voice, to enable him to lead evidence through them that the voice recorded on the tapes was not his as also to let him know on whose final satisfaction the order of detention was made.
This letter though originally dated 14th June, 1980 was not despatched to the Deputy Secretary until 1st July, 1980 because in the meanwhile the detenu had been taken to Bombay and it was only after his return to Nasik Road Central Prison that the letter could be despatched through the jailor and hence the date was altered to 1st July, 1980.
It appears that this letter was received by the Deputy Secretary on 8th July, 1980.
But, prior to his forwarding the letter dated 1st July, 1980 to the Deputy Secretary, the detenu addressed another representation dated 26th June, 1980 to the Chairman of the Advisory Board, the Central Government and the Deputy Secretary to the Government of Maharashtra praying for re vocation of the order of detention.
The detenu pointed out in this representation that, by his letters dated 5th, 6th and 14th June, 1980, he had requested for the tapes to be supplied to him to enable him to prove that the voice recorded on the tapes was not his and that this request had not been complied with and, in the circumstances, the hearing of the case before the Advisory Board would be futile.
The detenu also complained in the representation that though he had asked for copies of the documents and statements relied upon in the grounds of detention, they had not been supplied to him.
This representation containing the prayer for revocation of the order of detention was received by the Deputy Secretary on 30th June, 1980.
Now it appears that copies of the statements and documents relied upon in the grounds of detention were forwarded by the Deputy Secretary to the Superintendent of Nasik Road Central Prison by registered letter dated 3rd July 1980 and these copies were handed over to the detenu on 11th July 1980.
Mean while, one Vikraman Investigating officer of the Customs Department was deputed to the Nasik Road Central Prison alongwith the tapes and the tapes were played in the presence of the detenu and the Deputy Superintendent of Nasik Road Central Prison on 8th July 1980.
The representations of the detenu dated 9th June, 1980 and 26th June, 1980 were then considered by the Under Secretary on 11th July, 1980 and since in the mean time the letter dated 1st July 1980 requesting for supply of one accurate copy of the tapes was received by the Government, the Under Secretary suggested, with reference to this request that "since the tapes were given to the detenu for inspection and played before him, the request for supply of copies of the tapes may have to be rejected" and he also recommended that the request of the detenu for revocation of the order of detention may be rejected.
The Deputy Secretary approved the noting of the Under Secretary that the request for revocation of the detention order may 645 be rejected and the file was immediately put up before the Secretary on the same day and the secretary also approved the proposal for rejecting the request for revocation of the order of detention but recommended that the Customs Department must give to the detenu the transcripts of the tapes, as otherwise he would take a stand in the Court that his defence was prejudiced.
It appears that the Chief Minister endorsed the noting of the Secretary on 14th July 1980.
Pursuant to this decision of the Government, a letter dated 15th July 1980 was addressed to the detenu rejecting his representations and declining to revoke the order of detention.
It is difficult to appreciate what purpose could possibly be intended to be served by giving copies of the tapes to the detenu after rejecting his representations, but all the same, copies of the tapes were handed over to the detenu on 20th July, 1980.
The detenu 's mother in the mean while preferred the present petition in this Court and on 10th July, 1980 rule nisi was issued on the petition by this Court.
There were several grounds on which the detention of the detenu was challenged in the petition.
But it is not necessary to refer to all the grounds since there is one ground which is, in our opinion, fatal to the continued detention of the detenu and it will be sufficient if we confine our attention to that ground.
The contention of the petitioner under the ground was that though several statements and documents were relied upon in the grounds of detention and considerable reliance was also placed on two tape recorded conversations in the grounds of detention, the detaining authority did not serve on the detenu along with the grounds of detention, copies of those statements, documents and tapes and it could not therefore be said that the grounds of detention were duly served on the detenu as required by sub section (3) of section 3 of the COFEPOSA Act and clause (5) of Article 22 of the Constitution.
The petitioner urged that sub section (3) of section 3 of the COFEPOSA Act and clause (5) of Article 22 of the Constitution required that the detaining authority should as soon as may be, communicate to the detenu the grounds on which the order of detention has been made and such grounds would comprise not merely a bare recital of the grounds of detention but also all statements and documents relied upon in the grounds of detention, because these latter would also form part of such grounds.
It was also contended by the petitioner in the alternative that, in any event, the detaining authority was bound to give copies of the statements, documents and tapes relied upon in the grounds of detention to the detenu without any avoidable delay in order that the detenu should have the earliest opportunity of making an effective representation against the order of detention.
The argument of the petitioner was 646 that, in the present case, though the detenu asked for the copies of statements, documents and material relied upon in the grounds of detention as early as 6th June, 1980, the detaining authority did not supply copies of such statements, documents and materials until 11th July, 1980 and on that day also, what were supplied were merely copies of the statements and documents and not the copies of the tapes which were supplied only on 20th July 1980.
This delay in supplying copies of the statements, documents and tapes was, in the submission of the petitioner wholly unjustified and the detenu was thus denied the earliest opportunity of making an effective representation and this infected the continued detention of the detenu with the vice of illegality.
This ground of challenge urged on behalf of the petitioner appeared to us to be well founded and that is why, by an order dated 8th August 1980 made immediately on the conclusion of the arguments, we allowed the petition and directed that the detenue be set at liberty forthwith.
We now proceed to give our reasons for making that Order.
We may point out straightway that we are not at all happy at the thought that our order may have resulted in setting free a possible smuggler.
We are not unmindful of the fact that the COFEPOSA Act has been enacted for the purpose of eradicating the evil of smuggling which is eating into the vitals of the nation like a cancerous growth and eroding the economic stability of the country and when an order is made by the Court releasing a person detained under this Act, it is quite possible that the effect of the order may be to let loose on the society, a smuggler who might in all probability, resume his nefarious activities causing incalculable mischief and harm to the economy of the nation.
But at the same time we cannot forget that the power of preventive detention is a draconian power justified only in the interest of public security and order and it is tolerated in a free society only as a necessary evil.
The power to detain without trial is an extraordinary power constituting encroachment on personal liberty and it is the solemn duty of the Courts to ensure that this power is exercised strictly in accordance with the requirements of the Constitution and the law.
The courts should always lean in favour of upholding personal liberty, for it is one of the most cherished values of mankind.
Without it life would not be worth living.
It is one of the pillars of free democratic society.
Men have rightly laid down their lives at its altar in order to secure it, protect it and preserve it.
The Constitution has therefore, while conceding the power of preventive detention, provided procedural safeguards with a view to protecting the citizen against arbitrary and unjustified invasion of personal liberty and the courts have always zealously tried to uphold and enforce these safeguards.
This Court has also through its judicial pronouncements created various legal bulwarks and breakwaters into the vast powers conferred on the executive by the laws of preventive detention prevalent at different points of time.
It is true that sometimes even a smuggler may be able to secure his release from detention if one of the safeguards or requirements laid down by the Constitution or the law has not been observed by the detaining authority but that can be no reason for whittling down or diluting the safeguards provided by the Constitution and the law.
If the detaining authority wants to preventively detain a smuggler, it can certainly do so, but only in accordance with the provisions of the Constitution and the law and if there is a breach of any such provision, the rule of law requires that the detenu must be set at liberty, however wicked or mischievous he may be.
The law cannot be subverted, particularly in the area of personal liberty, in order to prevent a smuggler from securing his release from detention, because whatever is the law laid down by the courts in the case of a smuggler would be equally applicable in the case of preventive detention under any other law.
This Court would be laying down a dangerous precedent if it allows a hard case to make bad law.
We must, therefore, interpret the provisions of the Constitution and the law in regard to preventive detention without being in any manner tramelled by the fact that this is a case where a possible smuggler is seeking his release from detention.
It is also necessary to point out that in case of an application for a writ of habeas corpus, the practice evolved by this Court is not to follow strict rules of pleading nor place undue emphasis on the question as to on whom the burden of proof lies.
Even a postcard written by a detenu from jail has been sufficient to activise this Court into examining the legality of detention.
This Court has consistently shown great anxiety for personal liberty and refused to throw out a petition merely on the ground that it does not disclose a prima facie case invalidating the order of detention.
Whenever a petition for a writ of habeas corpus has come up before this Court, it has almost invariably issued a rule calling upon the detaining authority to justify the detention.
This Court has on many occasions pointed out that when a rule is issued, it is incumbent on the detaining authority to satisfy the court that the detention of the petitioner is legal and in conformity with the mandatory provisions of the law authorising such detention: Vide Naranjan Singh vs State of Madhya Pradesh; Sheikh Hanif, Gudma Majhi & Kamal Saha vs State of West Bengal, and Dulal Roy vs The District Magistrate, Burdwan & Ors.
It has also been insisted by this Court that, in answer to this rule, the detaining authority must place all the relevant facts before the court which would show that the detention is in accordance with the provisions of the Act.
It would be no argument on the part of the detaining authority to say that a particular ground is not taken in the petition:Vide Nazamuddin vs The State of West Bengal.
Once the rule is issued it is the bounden duty of the Court to satisfy itself that all the safeguards provided by the law have been scrupulously observed and the citizen is not deprived of his personal liberty otherwise than in accordance with law.:Vide Mohd. Alam vs State of West Bengal and Khudiram Das vs State of West Bengal & Ors.
This practice marks a departure from that obtaining in England where observance of the strict rules of pleading is insisted upon even in case of an application for a writ of habeas corpus, but it has been adopted by this Court in view of the peculiar socio economic conditions prevailing in the country.
Where large masses of people are poor, illiterate and ignorant and access to the courts is not easy on account of lack of financial resources, it would be most unreasonable to insist that the petitioner should set out clearly and specifically the grounds on which he challenges the order of detention and make out a prima facie case in support of those grounds before a rule is issued or to hold that the detaining authority should not be liable to do anything more than just meet the specific grounds of challenge put forward by the petitioner in the petition.
The burden of showing that the detention is in accordance with the procedure established by law has always been placed by this Court on the detaining authority because Article 21 of the Constitution provides in clear and explicit terms that no one shall be deprived of his life or personal liberty except in accordance with procedure established by law.
This constitutional right of life and personal liberty is placed on such a high pedestal by this Court that it has always insisted that whenever there is any deprivation of life or personal liberty, the authority responsible for such deprivation must satisfy the court that it has acted in accordance with the law.
This is an area where the court has been most strict and scrupulous in ensuring observance with the requirements of the law, and even where a requirement of the law is breached in the slightest measure, the court has not hesitated to strike down the order of detention or to direct the release of the detenue even though the detention may have been valid till the breach occurred.
The court has always regarded personal liberty as the most precious possession 649 of mankind and refused to tolerate illegal detention, regardless of the social cost involved in the release of a possible renegade.
We must therefore now proceed to examine whether there was any breach of the requirements of Article 22 clause (5) of the Constitution and Section 3, sub section (3) of the COFEPOSA Act, for that is the breach which is claimed by the petitioner as invalidating the continued detention of the detenue.
Clause (5) of Article 22 of the Constitution reads as follows: "article 22(5): When any person is detained in pursuance of an order made under any 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.
" Section 3, sub section of the COFEPOSA Act provides as under: "For the purposes of clause (5) of Article 22 of the Constitution, the communication to a person detained in pursuance of a detention order, of the grounds on which the order has been made shall be made, as soon as may be, after the detention, but ordinarily not later than five days and in exceptional circumstances and for reasons to be recorded in writing not later than fifteen days from the date of detention."
The true meaning and import of clause (5) of Article 22 of the Constitution was explained by this Court in Khudiram Das vs State of West Bengal (supra): "The constitutional imperatives enacted in this article are two fold: (1) the detaining authority must, as soon as may be, that is, as soon as practicable after the detention, communicate to the detenue the grounds on which the order of detention has been made, and (2) the detaining authority must afford the detenue the earliest opportunity of making a representation against the order of detention.
These are the barest minimum safeguards which must be observed before an executive authority can be permitted to preventively detain a person and thereby drown his right of personal liberty in the name of public good and social security."
It will be seen that one of the basic requirements of clause (5) of Article 22 is that the authority making the order of detention must, as soon as may be, communicate to the detenu the grounds on which the order of detention has been made and under sub section (3) of section 3 of the COFEPOSA Act, the words "as soon as may be" 650 have been translated to mean "ordinarily not later than five days and in exceptional circumstances and for reasons to be recorded in writing not later than fifteen days, from the date of detention.
" The grounds of detention must therefore be furnished to the detenu ordinarily within five days from the date of detention, but in exceptional circumstances and for reasons to be recorded in writing, the time for furnishing the grounds of detention may stand extended but in any event it cannot be later than fifteen days from the date of detention.
These are the two outside time limits provided by section 3, sub section (3) of the COFEPOSA Act because unless the grounds of detention are furnished to the detenu, it would not be possible for him to make a representation against the order of detention and it is a basic requirement of clause (5) of Article 22 that the detenu must be afforded the earliest opportunity of making a representation against his detention.
If the grounds of detention are not furnished to the detenu within five or fifteen days, as the case may be, the continued detention of the detenu would be rendered illegal both on the ground of violation of clause (5) of Article 22 as also on the ground of breach of requirement of section 3, sub section (3) of the COFEPOSA Act.
Now it is obvious that when clause (5) of Article 22 and sub section (3) of Section 3 of the COFEPOSA Act provide that the grounds of detention should be communicated to the detenu within five or fifteen days, as the case may be, what is meant is that the grounds of detention in their entirety must be furnished to the detenu.
If there are any documents, statements or other materials relied upon in the grounds of detention, they must also be communicated to the detenu, because being incorporated in the grounds of detention, they form part of the grounds and the grounds furnished to the detenu cannot be said to be complete without them.
It would not therefore be sufficient to communicate to the detenu a bare recital of the grounds of detention, but copies of the documents, statements and other materials relied upon in the grounds of detention must also be furnished to the detenu within the prescribed time subject of course to clause (6) of Article 22 in order to constitute compliance with clause (5) of Article 22 and section 3, sub section (3) of the COFEPOSA Act.
One of the primary objects of communicating the grounds of detention to the detenu is to enable the detenu, at the earliest opportunity, to make a representation against his detention and it is difficult to see how the detenu can possibly make an effective representation unless he is also furnished copies of the documents, statements and other materials relied upon in the grounds of detention.
There can therefore be no doubt that on a proper construction of clause (5) of Article 22 read with section 3, sub section (3) of the COFEPOSA Act, it is necessary for the valid continuance of detention that subject to clause (6) of 651 Article 22 copies of the documents, statements and other materials relied upon in the grounds of detention should be furnished to the detenu alongwith the grounds of detention or in any event not later than five days and in exceptional circumstances and for reasons to be recorded in writing, not later than fifteen days from the date of detention.
If this requirement of clause (5) of Article 22 read with section 3, sub section (3) is not satisfied the continued detention of the detenu would be illegal and void.
Now, in the present case, the grounds of detention were detention were served upon the detenu on 4th June, 1980 at the time when he was taken under detention, but these grounds which were served upon the detenu did not include the documents, statements and other materials relied upon in the grounds and forming part of them.
The detenu, therefore by his letter dated 6th June, 1980, requested the Deputy Secretary to send at his earliest "all statements, documents, materials" relied upon in the grounds of detention in order to enable him to make an effective representation against his detention.
But copies of these documents, statements and other materials were not supplied to the detenu until 11th July, 1980 and so far as the tapes were concerned, their copies were furnished to the detenu even later on 20th July, 1980.
It is clear from the discussion in the preceding paragraph that under clause (5) of Article 22 read with section 3, sub section (3) of the COFEPOSA Act, the detaining authority was bound to supply copies of the documents, statements and other materials relied upon in the grounds of detention to the detenu within five days from the date of detention, that is, on or before 9th June, 1980 and in any event, even if we assume that there were exceptional circumstances and reasons for not supplying such copies within five days were recorded in writing, such copies should have been supplied to the detenu not later than fifteen days from the date of detention, that is, on or before 19th June, 1980.
It was, of course, not the case of the detaining authority before us that reasons for not supplying copies of the documents, statements and other materials to the detenu within five days were recorded in writing nor were any such reasons produced before us, but even if there were any such reasons recorded in writing, coupled with the existence of exceptional circumstances, the detaining authority, could not delay the supply of copies of the documents, statements and other materials to the detenu beyond 19th June, 1980.
Even if there were any circumstances justifying the delay in supply of copies of documents, statements and other materials beyond 19th June, 1980 it would afford no defence to the detaining authority, for clause (5) of Article 22 read with section 3, sub section (3) of the COFEPOSA Act lays down an inexorable rule of law that the grounds of detention shall be communicated to the detenu not later than fifteen days from the 652 date of detention.
There are no exceptions or qualifications provided to this rule which operates in all its rigour and strictness and if there is any breach of this rule, it must have the effect of invalidating the continued detention of the detenu.
There can therefore be no doubt that, in the present case, the continuance of the detention of the detenu after 19th June, 1980 was unconstitutional and it was not open to the detaining authority to seek to justify the continued detention on the ground that there were sufficiently compelling reasons which prevented it from supplying copies of the documents, statements and other materials to the detenu until 11th July, 1980 and copies of the tapes until 20th July, 1980.
It may be pointed out that even if our interpretation of the words "the grounds on which the order has been made" in clause (5) of Article 22 and section 3 sub section (3) of the COFEPOSA Act be wrong and these words do not include the documents, statements and other materials relied upon in the grounds of detention, it is unquestionable that copies of such documents, statements and other materials must be supplied to the detenu without any unreasonable delay, because otherwise the detenu would not be able to make an effective representation and the fundamental right conferred on him to be afforded the earliest opportunity of making a representation against his detention would be denied to him.
The right to be supplied copies of the documents, statements and other materials relied upon in the grounds of detention without any undue delay flows directly as a necessary corollary from the right conferred on the detenu to be afforded the earliest opportunity of making a representation against the detention, because unless the former right is available, the later cannot be meaning fully exercised.
This would seem to be clear on a fair interpretation of clause (5) of Article 22 but apart from this view which we are inclined to take on principle as a matter of interpretation, the law is now well settled as a result of several decisions of this court commencing from Ramachandra A. Kamat vs Union of INDIA (1) that: "When the grounds of detention are served on the detenu, he is entitled to ask for copies of statements and documents referred to in the grounds of detention to enable him to make an effective representation.
When the detenu makes a request for such documents, they should be supplied to him expeditiously.
when copies of such documents are asked for by the detenu, the detaining authority should be in a position to supply them with reasonable expedition.
What is reasonable expedition will depend on the facts of each case.
" The facts as we find them here are that the detenu asked for copies of the documents, statements and other materials relied upon 653 in the grounds of detention by his letters dated 6th June, 1980 and 9th June, 1980 and he also complained about non supply of such copies in his representation dated 26th June, 1980 but it was only on 11th July, 1980 that such copies were supplied to him and even then the copies of the tapes were not furnished until 20th July, 1980.
There was thus a delay of more than one month in supply of copies of the documents, statements and other materials to the detenu.
The burden of satisfactorily explaining this delay and showing that there was sufficient cause for it was on the detaining authority and an attempt was made by the detaining authority to discharge this burden by filing an affidavit made by C.R. Mulherkar, Deputy Secretary to the Government of Maharashtra.
It was stated in this affidavit that the letter of the detenu dated 6th June, 1980 requesting for copies of the documents, statements and other materials relied upon in the grounds of detention was received in the Home Department on 10th June, 1980 and on receipt, this letter was forwarded to the Asstt.Collector of Customs for his remarks on 12th June, 1980.
The Assistant Collector of Customs forwarded his remarks to the Deputy Secretary on 24th June, 1980 alongwith one set of copies of documents and statements relied upon in the grounds of detention and these were received by the Deputy Secretary in the Home Department on 27th June 1980.
The next two days, namely 28th and 29th June, 1980 were holidays and on 2nd July 1980 the State Government took a decision to supply these copies to the detenu and they were forwarded to the detenu through the Superintendent of Nasik Road Central Prison alongwith a registered letter dated 3rd July 1980 which, for some inexplicable reason was not received by the Superintendent until 10th July 1980, and hence it was said these copies could not be delivered to the detenu until 11th July 1980.
This was the explanation offered by the detaining authority for the delay in supplying copies of the documents, statements and other materials to the detenu but we do not think this explanation can be accepted by us as satisfactory.
It is clear from the facts narrated above that though the Assistant Collector of Customs received the letter of the detenu forwarded by the Deputy Secretary on 12th June 1980, he did not respond to it until 24th June 1980 and this delay of 12 days has not been satisfactorily explained either in the affidavit of C.R. Mulherkar or in any affidavit filed by the Assistant Collector of Customs.
It was urged before us that the documents and statements of which copies were requested by the detenu ran into 89 pages and it was therefore reasonable to assume that a few days must have been taken in the Customs Department to make copies of these documents and statements and hence the time of 12 days taken up by the Assistant Collector of Customs in sending copies of the documents and statements to the 654 Deputy Secretary could not be said to be unreasonable.
This argument is patently unsound, because the Assistant Collector of Customs ought to have kept ready with him copies of the documents, statements and other materials relied upon in the grounds of detention since it should have been anticipated that these copies would have to be supplied to the detenu in order to enable him to make an effective representation against his detention and it does not lie in the mouth of the Assistant Collector of Customs to say that his department started making copies for the first time when a request for copies was made by the detenu.
In fact, copies of the documents,statements and other materials relied upon in the grounds of detention should have been available with the detaining authority itself so that they could be supplied to the detenu immediately as soon as a request was made in that behalf.
Of course, our view is and that is what we have said in the earlier part of the judgment, that copies of the documents, statements and other materials relied upon in the grounds of detention from part of such grounds and they have to be supplied to the detenu within the time limited under clause (5) of Article 22 and section 3 sub section (3) of COFEPOSA Act, but even if that be not the correct view, there is little doubt that copies of these documents.
statements and other materials should be available with the detaining authority and they should be supplied without unreasonable delay as soon as the detenu makes a request for the same.
The time of 12 days taken up by the Assistant Collector of Customs was therefore unreasonably long for which no explanation at all was forthcoming from the detaining authority.
We must in the circumstances hold that there was unreasonable delay on the part of the detaining authority in supplying to the detenu copies of the documents, statements and other materials relied upon in the grounds of detention and the continued detention of the detenu was accordingly illegal and void and the detenu was entitled to be released forthwith from detention.
It is also necessary to point out that there was unreasonable delay in considering the representations of the detenu dated 9th June 1980 and 26th June 1980.
It is now settled law that on a proper interpretation of clause (5) of Article 22, the detaining authority is under a constitutional obligation to consider the representation of the detenu as early as possible, and if there is unreasonable delay in considering such representation, it would have the effect of invalidating the detention of the detenu.
Vide; V. J. Jain vs Pradhan (1) here in the present case the representation of the detenu dated 9th June 1980 was received by the Deputy Secretary on 14th June 1980 while the representation dated 26th June 1980 was received on 30th June 1980 and yet no decision was taken on these representation of the detenu until 14th 655 July 1980.
The question is whether this delay could be said to have been reasonably explained by the detaining authority.
The representation of the detenu dated 9th June 1980 was received in the Mantralaya on 14th June 1980 but that day and the next day being holidays, it came to the hands of the concerned officer only on 16th June 1980, and a copy of it was forwarded to the Assistant Collector of Customs for his remarks on 23rd June 1980.
It is difficult to see to see why the concerned officer in the Mantralaya should have taken seven days for just forwarding a copy of the representation of the detenu to the Assistant Collector of Customs.
There is no explanation at all for this delay in any of the affidavits filed on behalf of the detaining authority.
The Collector of Customs thereafter forwarded his remarks on 30th June 1980 and here again there was a delay of seven days for which no explanation is forthcoming.
The remarks of the Assistant Collector of Customs were received by the concerned officer on 2nd July 1980 and there after the representation started on its upward journey from the Undersecretary to the Chief Minister.
It appears that by this time the second representation of the detenu dated 26th June 1980 was also received by the State Government and hence this representation was also subjected to the same process as the representation dated 9th June, 1980.
It was only on 11th July 1980 that these two representations dated 9th June 1980 and 26th June 1980 came to be considered by the Under Secretary and he made a noting on the file recommending that the request of the detenu for revocation of the order of detention may be rejected, and this noting was approved by the Deputy Secretary as well as the Secretary on the same day and the Chief Minister endorsed it on 14th July 1980.
It is indeed difficult to see how these two representations of the detenu could be rejected by the detaining authority when the request of the detenu for copies of the tapes was pending and the Secretary to the State Government in fact made a noting on 11th July 1980 that the copies of the tapes must be given to the detenu by the Customs Department.
But even if we take the view that it was not necessary for the detaining authority to wait until after the copies of the tapes were supplied to the detenu, it is difficult to resist the conclusion that the detaining authority was guilty of unreasonable delay in considering the two representations of the detenu, and particularly the representation dated 9th June 1980.
This ground is also in our opinion sufficient to invalidate the continued detention of the detenu.
These were the reasons for which we allowed the writ petition and directed immediate release of the detenu from detention.
We may point out that we have not pronounced upon the validity of the order of detention but merely held the continued detention of the detenu 656 to be illegal on the ground of non compliance with the requirements of clause (5) of Article 22 and sub section (3) of section 3 of the COFEPOSA Act, and therefore nothing that is said by us in this judgment should be considered as an expression of opinion on the validity or correctness of the order of detention as made.
We are unable to appreciate as to why the Customs Department has not yet filed a charge sheet against the detenu for prosecuting him in respect of the incidents referred to in the grounds of detention even though more than six months have passed since then.
If the investigation reveals that the detenu was responsible for smuggling or abetting the smuggling of goods in contravention of law, the Customs officers should adopt criminal proceedings against the detenu as quickly as possible and try to bring him to book in the criminal courts.
We hope and trust that there will be no unreasonable delay on the part of the Customs officers in completing the investigation of the cases against the detenu and prosecuting him in the criminal courts if the evidence gathered by them in the course of the investigation justifies such a course.
N.V.K. Petition allowed.
| Section 3(3) of the , provides that when an order of detention is made by an officer mentioned in section 3(2) he shall forthwith report the fact to the State Government together with the grounds on which the order has been made. . and no such order. shall remain in force for more than twelve days after the making thereof unless in the meantime it has been approved by the State Government.
On 13th January 1956 the Commissioner of Police, Bombay, passed orders under section 3(2) of the directing the detention of the petitioners and in pursuance thereof ' they were arrested on 16th January 1956 The grounds on which the orders were made were furnished to the petitioners on 20th January 1956 and the next day the Commissioner reported the fact of the order and the grounds therefor to the State Government which approved of the same on 23rd January 1956.
The petitioners contested the validity of the detention on the ground that when the Commissioner passed the orders for detention on 13th January 1956 it was his duty under section 3(3) to report that fact forthwith to the State Government, and as he did not do so until 21st January '1956 he had acted in contravention of the statute and that the detention was therefore illegal.
It was found that the delay in sending the report could not have been avoided by the Commissioner and that it was due to causes to which the petitioners had very largely con tributed.
Held, that the word "forthwith" in section 3(3) of the , has not a fixed and an absolute meaning and it must be construed with reference to the object of the section and the circumstances of the case.
It cannot mean the same thing as "as soon as may be" in section 7 of the Act and the former is more peremptory than the latter.
The difference between the two .
expressions lies in this that while under a. 7 the time that is allowed to the authority to send the communication to the detenu is what is reasonably convenient, under section 3(3) what is allowed is only the 654 period during which he could not, without any fault of his own, send the report.
An act which is to be done forthwith must be held to have been so done when it is done with all reasonable despatch and without avoidable delay.
The Queen vs The Justices of Berkshire ([1878 79] 4 Q.B.D. 469), Hudson and others vs Hill and others ([1874] 43 L. J. C.P. 273), and Beg.
vs Price, ; , relied on.
|
Appeal No.2929 of 1986.
From the Judgment and Order dated 20.12.1985 of the Delhi High Court in C.W.P. No. 3120 of 1985 .
K.R. Nagaraja, R.S. Hegde and Mrs. Sushila for the Appel lant.
G.Venkatesh Rao and Ms. A. Subhashini for the Respondents.
The Judgment of the Court was delivered by KASLIWAL, J.
This appeal by special leave is directed against the order of the High Court of Delhi dated 20th December, 1985 dismissing in 140 limine the writ petition filed by the appellant against the order of the Lt. Governor, Delhi dated 8th November, 1985.
This Court by order dated 25th August, 1986 granted special leave limited to the following question.
"One of the questions raised by the learned counsel before us is whether the samples taken from 3 out of 80 bags of Khandsari could be treated as representative samples.
He has cited before us a judgment of the High Court where it has been held that they cannot be so treated.
We grant special leave limited to the question stated above.
We find no force in other Submissions.
In order to decide the above question we would mention facts in brief necessary in this regard.
In a raid in the business premises of the appellant on 28th February, 1980, the following bags of Khandsari (sugar) were seized in the presence of Shri Ram Niwas, sole proprie tor of the firm.
Khandsari 53 bags Khandsari (dust) 18 bags Khandsari (sulphur) 9 bags Total 80 bags Two samples each from all the three varieties of Khandsari were taken and three samples of sugar were sent for analysis to the public analyst.
The public analyst reported that the samples of sugar contained Sucrose 93.5%, 94.2% and 97.16% respectively.
The Collector passed an order confis cating the entire goods as the same were kept in contraven tion of the provisions of Delhi Sugar Dealers Licensing Order, 1963 (in short the 'Licensing Order ').
It is not necessary to mention the details of this order of confisca tion because the matter had gone upto the High Court and the case was ultimately remanded by the High Court of Delhi by order dated 27th March, 1984.
The High Court directed the Collector for denovo determination of the proceedings under Section 6A of the , in ac cordance with law.
The Collector (North) after remand gave a fresh show cause notice to the appellant on 21st May, 1984 setting forth the brief sequence of the proceedings and asking him to show cause as to why the entire stock of 80 bags of sugar seized in the case, be not confiscated to the State? The appellant appeared and Fred a written reply to the show cause notice.
The case was then heard at length and the Collector again passed an order confiscating the entire seized stock of 80 quintals of sugar.
An appeal fried against the aforesaid order was dismissed by the Lt. Gover nor, Delhi by order dated 8th November, 1985.
A writ peti tion filed against the order of the Lt. Governor was dis missed in limine by the High Court by order dated 20th December, 1985.
Hence this appeal.
141 Clause 2 (f) (i) of the Licensing Order defines sugar as under.
"Sugar means any form of sugar including Khandsari sugar containing more than 90% of Sucrose." Under the Licensing Order a person was entitled to keep only upto a maximum of 10 quintals of sugar, without a licence.
Admittedly the appellant was not having any li cence.
It was contended on behalf of the appellant that in order to prove that Khandsari was sugar under the Licensing Order, it was necessary to prove that it contained more than 90% of Sucrose.
It was submitted that the prosecution only took two samples each out of the three bags from the entire lot of 80 bags of Khandsari and this could at the most show that only 3 quintals of Khandsari was sugar and the same being less than 10 quintals, there was no violation of the Licensing Order.
It was submitted that it was necessary for the prosecution to prove that the appellant was in posses sion of more than 10 quintals of sugar and this could only be done by taking samples from all the bags of Khandsari if it wanted to show that other bags of Khandsari also con tained more than 90% bags of Sucrose.
It was also submitted that the possibility cannot be excluded that those bags from which samples were not taken, did not contain Sucrose more than 90%.
It was argued that the burden lay on the prosecu tion to prove that more than 10 quintals of sugar was found in the premises and then alone any order of confiscation could have been passed.
In support of the above contention reliance was placed on a judgment of learned Single Judge of Delhi High Court in Suraj Bhan Sharad Kumar vs Delhi Admin istration (Crl.
Revision No. 104 of 1980 decided on 25th September, 1980).
In the facts and circumstances of the present case the contention raised on behalf of the appellant has no force.
The admitted facts of the case are that at the time of seizure of the goods Shri Ram Niwas was present and the samples were taken in his presence.
Two samples each were taken separately from three different varieties of Khandsari at the instance of Shri Ram Niwas himself.
It was proved by the public analyst that all the three samples contained Sucrose more than 90%.
It was nowhere disputed nor suggest ed by Shri Ram Niwas at the time of taking samples or there after that the samples taken would not represent the correct quantity of Sucrose in those bags of Khandsari from which samples were not taken.
Shri Ram Niwas had filed a reply in writing, to show cause notice, but in such reply also no objection was taken as sought to be raised now.
In the facts and circumstances mentioned above if the Collector was satisfied that 80 quintals of sugar were found in the prem ises without licence.
it cannot be said that the order of confiscation passed by 142 the Collector was arbitrary or based on no material.
The decision of the learned Single Judge of Delhi High Court in Suraj Bhan Sharad Kumar vs Delhi Administration (supra) is totally distinguishable as in that case the dealer was having licence and the prosecution failed to prove that he was in possession of more than 1000 quintals of sugar.
In the case in hand before us the facts are entirely different.
As already mentioned above Only two samples each were taken from the three varieties, and all the three samples were found to contain more than 90% Sucrose.
A large quanti ty of 80 quintals of Khandsari was found in the premises, whereas only 10 quintals of sugar was allowed to be kept without licence.
Thus it was quite reasonable for the col lector to hold that there were more than 10 quintals of Khandsari having more than 90% Sucrose and this violated the Licensing Order.
Thus in the facts and circumstances of the present case we are fully satisfied that the Collector had enough materi al for his satisfaction that there was violation of the Licensing Order and there was sufficient justification for him to pass the order of confiscation.
The order of confis cation passed by the Collector is maintained and the appeal is dismissed.
During the course of arguments learned counsel for the appellant submitted that though a criminal prosecution is pending against the appellant Ram Niwas but no effective progress has been made in the case except filing of challan.
It appears to us that the State is not serious in pursuing the criminal proceedings and even otherwise more than 10 years have already elapsed to the alleged commission of the offence.
It would be against the interest of justice to further continue any criminal proceedings in the case.
We, therefore, direct to drop the criminal proceedings launched and pending against the appellant Shri Ram Niwas in the present matter.
T.N.A. Appeal dismissed.
| The appellant was declared elected to the Orissa Legislative Assembly and the first respondent filed an election petition challenging the election, inter alia, on the ground that the appellant had committed the corrupt practice under section 123(7)(f) Representation of the People Act, 1951, by obtaining the assistance of Sarpanches of certain Grama Panchayats for the furtherance of the prospects of his election.
The petition was dismissed by the Election Tribunal but on appeal., was allowed by the High Court and the election was set aside.
The High Court held that a Sarpanch was a person in the service of the Government with in the meaning of section I23(7)(f) Of the Act.
Held, that a Sarpanch of Grama Panchayat in Orissa was not one of the persons contemplated by section I23(7)(f) and consequently the appellant was not guilty of any corrupt practice in obtaining assistance of Sarpanches.
Two conditions must co exist before S123(7)(f) could apply to a Sarpanch: (i) that he was in the service of the Government, and (ii) that he fell within the class 953 specified in cl.
There was a distinction between " serving under the Government " and " in the service of the Government "; while one may serve under a Government one may not necessarily be in the service of the Government; under the latter expression one not only served under the Government but was in the service of the Government and this imported the relationship of master and servant.
None of the provisions of the Orissa Grama Panchayats Act, 1948, suggested that as between the State Government and the Grama Panchayat and its Sarpanch any such relationship existed.
The mere power of control and supervision of Government over a Grama Panchayat exercising administrative functions or performing duties of governmental nature could not make the Grama Panchayat or its Sarpanch a person in the service of the Government.
The Sarpanch was the executive head of the Grama Panchayat : he was neither appointed nor paid by the Government; he could only be removed by Government on grounds of negligence, inefficiency or misbehaviour.
He was not under the control of the Government while discharging his functions and could not be said to be in service of the Government.
The second condition also did not exist as a Sarpanch was neither a revenue officer nor a village accountant and as such was not one of the class of officers mentioned in cl.
(f) of section 123(7).
|
: Criminal Appeal Nos.
578/88 & 728/89.
From the Judgment and Order dated 15.7.
1986 of Patna High Court in Crl.
A. Nos.
97 & 87 of 1983.
A. Sharan for the Appellants.
D. Goburdhan for the Respondent.
These two appeals are directed against the judgment and order of the High Court of Patna dated 15.7.
1986 upholding the conviction of Dr. Harendra Narain Singh and Ram Nath Singh, appellants for the offences under Section 302/34 of the I.P.C. Briefly, the facts as disclosed by the prosecution are that Smt.
Jagia Devi; a widow having two sons was carrying four months pregnancy.
She was taken to the dispensary of Dr. Harendra Narain Singh, the appellant who was a Homeo pathic doctor on the pretext of treatment of pain in her stomach though the real purpose for taking ' 57 her to the dispensary was for aborting foetus which she was carrying.
She was murdered in the dispensary and her dead body was taken to Village Dibbi in an Ekka and placed in the courtyard of the house of Smt.
Tileshwara Kuar.
Teg Bahadur Singh PW 11 came to know from a young boy that a dead body was kept in the courtyard of Smt.
fileshwara Kuar.
He went to the house of Smt.
Tileshwara Kuar and on interrogation she told him that some persons after committing murder of Jagia Devi had kept her dead body inside her house.
The door of the house was locked.
Tileshwara handed over the key to Teg Bahadur Singh who unlocked the door and entered the house and found the dead body of Jagia lying on the ground in the courtyard.
He rushed to the Police Station and re ported the matter to the police which was reduced in writ ing.
The police registered a case and proceeded to the spot.
The Investigating Officer recovered the dead body from the house of Tileshwara Kuar and made inquest and sent the dead body for post mortem.
On completion of investigation the police submitted ' chargesheet against seven accused persons, namely, Tileshwara Kuar, Ram Nath Singh, Bishwanath Roy s/o Dip Roy, Ishwar Shah, Dr. Harendra Narain Singh, Smt.
Jota Kuar w/o Dip Roy and Bishwanath Singh alias Bissu.
During the pendency of the case before the Trial Court Bishwanath Roy and Jota Kuar died, therefore, the trial proceeded only against the remaining five accused persons.
Before the Trial Court, the prosecution produced 14 witnesses in support of its case but there was no direct evidence or eye witness to support the charge of murder.
Entire case of the prosecution is founded on circumstantial evidence.
The Trial Court acquitted Smt.
Tileshwara Kuar who had been charged for offences under Section 302/34 and 201 of the IPC but it convicted the remaining accused Ram Nath Singh, Ishwar Shah, Harendra Narain Singh & Bishwanath Singh alias Bissu for the offences under Section 302 of the IPC read with Section 34 of the IPC and also under Section 3 15/34, IPC.
On appeal by the accused the High Court acquit ted Ishwar Shah, Bishwanath Singh alias Bissu but it upheld the conviction of Dr. Harendra Narain Singh and Ram Nath Singh for offences under Section 302/34 of the IPC.
Ag grieved Dr. Harendra Narain Singh and Ram Nath Singh have preferred these two appeals.
The entire case of the prosecution rests on the circum stantial evidence as no prosecution witness has given any direct testimony against the appellants for the commission of the offence for which they have been convicted.
The Trial Court as well as *he High Court both have relied on circum stantial evidence in convicting the appellants for 58 the offences under Section 302/34 of the IPC.
Since the entire case rests on circumstantial evidence it is necessary to refer to the principles which should guide the Court in considering the conviction of an accused resting on circum stantial evidence.
It is a cardinal principle of criminal jurisprudence that circumstantial evidence must be fully established from which there should be inevitable conclusion of the guilt of the accused beyond any reasonable doubt and the facts so established should be consistent only with the hypothesis of the guilt of the accused, ruling out any hypothesis of innocence of the accused.
In Hanurnant vs The State of Madhya Pradesh, this Court laid down fundamental and basic principles for appreciating the circumstantial evidence.
Mahajan, J, speaking for the Court observed: "It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the ac cused.
Again the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved.
In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.
" These principles were reiterated by this Court in Shi vaji Saheb Rao Bobde & Anr.
vs State of Maharashtra, ; wherein it was emphasised that where the prosecu tion rests merely on circumstantial evidence, the facts established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty.
The Court further observed that the circumstances should be of a conclusive nature and tendency and they should exclude every possible hypothesis except the one to be proved and the chain of evidence should be so complete as to rule out any reasonable ground for the conclusion con sistent with the innocence of the accused and the circum stances must show that in all human probability the act must have been done by the accused.
These principles have been consistently laid down by this Court in several decisions, it is not necessary to refer to all these decisions.
Howev er, we would like to refer to the decision in Sharad B. Chand vs Maharashtra, [1985] 1 SCR page 88 as 59 this case has been relied upon by the High Court in uphold ing the conviction of the appellants.
In Sharad B. Chand 's case this Court while considering the absence of explanation or a false explanation of the accused for the circumstances and the facts proved against him, struck a note of caution that before a false explanation is used as additional link against the accused the Court should satisfy itself that (1) Various links in the chain of evidence led by the prosecu tion have been satisfactorily proved.
(2) The circumstances point to the guilt of accused with reasonable definiteness; and (3) The circumstances are in proximity to the time and situation where all these conditions are fulfilled only then a Court can use a false explanation or a false defence of an accused, as an additional link to lend an assurance to the Court and not otherwise.
There is yet another basic rule of criminal jurisprudence that if two views are possible on the evidence adduced in a case of circumstantial evidence, one pointing to the guilt of the accused and the other to his innocence, the Court should adopt the latter view favourable to the accused.
We have reminded ourselves of these princi ples with a view to ascertain as to whether the High Court has correctly applied these principles in convicting and sentencing the appellants.
The evidence produced by the prosecution relates to establish the circmustances that (1) Smt.
Jagia Devi, a widow (brother 's daughter of Smt.
Tileshwara Kuar, the accused) died on 22.9.1973.
(2) Death of Jagia Devi was caused due to throttling leading to asphyxia as deposed by Dr. Anand Mohan PW 6.
The Doctor who carried on the postmor tem of the dead body was of the opinion that Jagia Devi killed by strangulation in the neck.
(3) 1n the night be tween 22.9.
1973 and 23.9.1973, a dead body was taken out of the dispensary of Dr. Harendra Narain Singh by the accused Ram Nath Singh and Bish wanath Singh alias Bissu and placed on an ekka in the presence of Ishwar Shah and Dr. Harendra Narain Singh.
Jota Kuar (mother of Ram Nath Singh, the appellant) was also present there.
(4) The dead body was placed on the ekka of Amanat Khan PW 10 and the same was carried to village Dibbi.
Ram Nath Singh, Bishwanath Singh and Jota Kuar also accompanied the dead body to village Dibbi.
(5) Recovery of the dead body of Jagia Devi from the courtyard of Smt.
Tileshwara Kuar, an accused.
On the basis of these circumstances, the High Court upheld the conviction of Ram Nath Singh and Dr. Harendra Narain Singh, the appellants, as in its opinion Ram Nath Singh had motive to murder Jagia Devi as she being a widow was carrying pregnancy of four 60 months.
The murder was committed in the dispensary of Dr. Harendra Narain Singh where she had been taken for medical aid for pain in stomach.
The Trial Court had acquitted Smt.
Teleshwara Kuar, from whose house dead body was recovered.
In appeal the High Court acquitted Ishwar Shah and Bishwa nath Singh alias Bissu also.
The prosecution evidence and the circumstances on the basis of which Ram Nath Singh and Dr. Harendra Narain Singh have been convicted are the same as applicable to the case of Ishwar Shah and Bishwanath Singh alias Bissu, but the High Court acquitted them and at the same time it upheld the conviction of Ram Nath Singh and Dr. Harendra Narain Singh on the same set of the evidence and circumstances without ' there being any distinction.
The main circumstances which weighed with the High Court in upholding the conviction of Ram Nath Singh and Dr. Harendra Narain Singh was that the dead body of Jagia Devi was taken out of the dispensary of Dr. Harendra Narain Singh and placed on the ekka of Amanat Khan PW 10 by Ram Nath Singh.
In view of this proved circumstance the High Court concluded that in all likelihood Jagia Devi was murdered in the dis pensary of Dr. Harendra Narain Singh with his connivance and thereafter the dead ' body was taken on ekka to village Dibbi and placed in the courtyard of Smt.
Teleshwara Kuar.
The presumption that Ram Nath Singh committed murder of Jagia Devi by strangulation in the dispensary of Dr. Harendra Narain Singh with his connivance is based on conjecture without there being any conclusive circumstance justifying such presumption.
The High Court has placed strong reliance on the evi dence of PW 10 Amanat Khan in holding the appellants Dr. Harendra Narain Singh and Ram Nath Singh guilty of murder.
PW 10 Amanat Khan was an ekkawala who plied passengers on hire, he was resident of village Bagaura, where the dispen sary of Dr. Harendra Narain Singh was situate.
Amanat Khan testified that at about 2 a.m. in the night the appellants Ram Nath Singh, Dr. Harendra Narain Singh and Bishwanath Singh alias Bissu awakened him and requested him to 'carry a patient to village Dibbi.
At first he refused to ply his ekka at that odd hour of the night but after some time they again returned and put pressure on him to take his ekka to the dispensary of Dr. Harendra Narain Singh for transporting the patient to Village Dibbi.
On their pursuasion he took his ekka to the dispensary of Dr. Harendra Narain Singh where he found Ishwar Shah, Jagannath and Smt.
Jota Kuar (mother of appellant Ram Nath) present at the dispensary.
According to him Ram Nath and Bishwanath, deceased brought a dead body from the dispensary of the appellant Harendra Narain Singh and placed the 61 same on the ekka.
Ram Nath Singh, Bishwanath Singh alias Bissu and Smt.
Jota Kuar also sat in the ekka.
On their request he carried them to village Dibbi Where Ram Nath and Bishwanath alias Bissu unloaded the dead body from the ekka at the house of Smt.
Teleshwara Kuar.
Amanat Khan 's testimo ny is supported by PW 3, Dukhan Majhi, PW 4 Bisheshvar Chowkidar and PW 5 Shiv Dutt.
Their testimony is merely to the fact that the appellants Ram Nath Singh and Bishwanath Singh were sitting on the ekka which was carrying a dead body from the dispensary of Dr. Harendra Narain Singh.
Placing reliance on the testimony of these witnesses the High Court and the Trial Court concluded that Smt.
Jagia Devi, the deceased was murdered in the dispensary of Dr. Harendra Narain Singh and the dead body was carried by them on the ekka to village Dibbi and placed in the courtyard of Smt.
Tileshwara Kuar.
The High Court and the Trial Court both failed to notice that the prosecution produced no evidence to show that Smt.
Jagia, the deceased was brought to the dispensary of Dr. Harendra Narain Singh while she was alive.
There is further no evidence as to who brought her to the dispensary in what condition.
The only evidence which the prosecution has produced in this respect is that a dead body was taken out from the dispensary of Dr. Harendra Narain Singh and placed on the ekka by Ram Nath Singh and others and taken to village Dibbi.
The High Court was conscious of the weakness of the prosecution case, even then it upheld the conviction of the appellant perhaps on moral grounds.
In para 3 of its judg ment the High Court observed: "although 14 witnesses have been examined on behalf of the prosecution there is no direct evidence or eye witness account of murder.
The witnesses however are not all relevant even for proving the circumstances and other colat oral matters".
After making the aforesaid observations ordinarily the High Court should have rejected the prosecution case which was based on circumstantial evidence but strangely enough the High Court inspite of the aforesaid observations, upheld the conviction of the appellants.
While dealing with the case of Dr. Harendra Narain Singh the High Court observed that he was a man of shaky charac ter.
This observation was made on the basis that even though he was a homeopathic doctor but allopathic medicines were recovered from his dispensary.
In our opinion, mere recovery of allopathic medicines from the dis 62 pensary of Dr. Harendra Narain Singh does not necessarily show that he was a man of shaky character.
It is a matter of common knowledge that even a homeopathic doctor sometimes refer the patients to allopathic treatment.
The fact of recovery of allopathic medicines has no connection or rela tion to the commission of the offence for which Dr. Harendra Narain Singh has been convicted.
The High Court further observed that when the dead body of the deceased was taken out from the dispensary by Ram Nath Singh and other accused persons Dr. Harendra Narain Singh was present at the spot, therefore he was so closely connected with the affairs taking place at his house that none could without his as sistance do anything, Apart from this there was no other evidence or circumstance against Dr. Harendra Narain Singh It is significant to note that according to the prosecution when the dead body of the deceased was taken out of dispen sary and placed on ekka Ishwar Shah and Bishwanath Singh alias Bissu accused were also present at the dispensary along with Dr. Harendra Narain Singh yet 'they have been acquitted by the High Court.
The High Court failed to give any cogent reason for upholding the conviction of Dr. Haren dra Narain Singh.
We have carefully gone through the evidence on record and considered the various circumstances and the facts of the case.
In our opinion, there are two glaring circum stances which are fatal to the prosecution case.
The prose cution has produced evidence only to the effect that a dead body was taken out of the dispensary of Dr. Harendra Narain Singh by Ram Nath Singh and other accused persons and the same was carried on the ekka to village Dibbi.
The prosecu tion witnesses have merely deposed that they had seen a dead body being placed on the ekka and taken to village Dibbi.
None of the prosecution witness has however, deposed that he had seen the face of the dead body or identified the same.
In the absence of such evidence it would not be reasonable to assume that the dead body which was taken out from the dispensary and placed on the ekka was that of the deceased Jagia Devi.
In the absence of identification of dead body by the witnes ses it is not legitimate to hold that the dead body which was taken out from the dispensary of Dr. Harendra Narain Singh was that of Jagia Devi.
There is another vital defect in the prosecution case: The prosecution failed to produce any evidence that the deceased Jagia Devi was taken to the hospital for treatment by Ram Nath Singh and other accused persons while she was alive and that she was admit ted to the dispensary of Dr. Harendra Narain Singh for treatment, at a time when she was alive.
In the absence of any Such evidence there are various possibilities and proba bilities, one of them being that the 63 deceased may have been brought to the dispensary for medical assistance after she was found to be strangulated by some one.
There is further no evidence of the fact that when the deceased was inside the dispensary no other person had access to her except the appellants.
In the absence of any such evidence it would not be legitimate to assume that the deceased was strangulated in the dispensary by Ram Nath Singh with the connivance of Dr. Harendra Narain Singh.
Merely because the appellants failed to raise any such plea in their defence does not lend any support to the prosecu tion case.
The prosecution has to succeed on the basis of its own evidence and it can not rely on the absence of defence to sustain the guilt as there is no justification for raising such assumption against the appellants.
The circumstances established by the prosecution are not suffi cient to conclusively point to the appellants as the perpe trator of the crime or to rule out the hypothesis of their innocence.
Since the prosecution failed to prove the neces sary facts showing that the deceased while alive was last seen in the company of the appellants or that the dead body which was carried on the ekka was that of the deceased Jagia Devi, the High Court was not justified in drawing adverse inference for completing the chain of circumstances to uphold the appellant 's conviction merely on the appellant 's false explanation in defence.
In view of the above discussion, we are of the opinion that the High Court and the Trial Court both committed error in convicting the appellants.
We accordingly allow the appeals and set aside the judgment and order of the High Court convicting the appellants.
T.N.A. Appeals allowed.
| The appellant held a Stage Carriage Permit for plying his vehicle on the Kota Khanpur route, which overlaps a portion of the KotaSangod route.
The State Road Transport Corporation vide Notification dated 11.10.1979 proposed a scheme under Section 68 C of the for the exclusive operation of its vehicles on the Kota Sangod route.
The affected operators of the route, including the appellant, filed their objections against the scheme before the authority appointed by the State Government which ap proved the scheme.
Before the State Government could issue the final Noti fication under Section 68 D(3) of the old Act, the appellant and other affected operators made representation to the Minister for Transport for affording them a fresh opportuni ty of hearing.
501 Meanwhile, the was enforced with effect from 1.7.1989 repealing the old Act.
The appellant, thereupon, filed a writ petition before the High Court for restraining the State Government from issuing the final Notification on the ground that on the enforcement of the new Act, the Notification dated 11.10.1979 issued under Section 68 C of the old Act had lapsed on account of delay in finalisation of the same.
A similar writ petition had been filed earlier in re spect of Kishangarh Sarwad route by one affected party, on similar grounds.
A learned Single Judge of the High Court dismissed that writ petition holding that the draft scheme under the old Act was saved by the new Act and the same could legally be finalised under the provisions of the new Act.
When he filed a Letters Patent Appeal, the Division Bench dismissed the Appeal as well as the various writ petitions including that of the appellant by a common order, against which the present appeal was made.
After the judgment of the High Court, the final notifi cation was published in the Official Gazette on 29.8.1990 section 100(3) of the new Act.
The appellant, contended before the Court that since there was undue delay of 11 years in issuing the final Notification, the scheme as proposed under Section 68 C of the old Act should be deemed to have lapsed and the State Government had no authority or jurisdiction to finalise the same or to issue Notification under Section 100(3) of the new Act; that since the draft scheme dated 11.10.1979 was not finalised under Section 100(3) of the new Act, the same had lapsed after one year from the date of the notification issued section 68 C of the old Act; and that since period of one year had already expired from the date of the publica tion of the scheme under Section 68 C of old Act, the scheme automatically lapsed and the same could not be finally published under Section 100 of the new Act.
Dismissing the appeal this Court, HELD: 1.1.
The object and purpose of Section 100(4) is to avoid delay in finalising a scheme.
The Parliament was aware that under the old Act schemes were not finalised for long years as a result of which public interest suffered, therefore, it prescribed a time frame for the approval and publication of schemes.
Sub section (4) prescribes a period of limitation during which the State Government should hear 502 and consider the objections of the objectors and finalise the scheme and publish the same in the Official Gazette and on its failure to do so within that period, penal conse quences would ensue as a result of which the scheme itself shall stand lapsed.
[507H 508A, 507F G] 1.2.
The Legislative intent is clear that the schemes proposed under Section 68 C of the old Act pending on the date of the commencement of the new Act should not lapse instead those schemes should be finalised in accordance with the provisions of Section 100 of the new Act.
The pending schemes were therefore saved and the same were to be fina lised within one year as contemplated by Section 100(4) of the new Act.
[509C D] 1.3.
Section 217(2)(e) has been enacted to save the schemes published under Section 68 C of the old Act which were pending on the date of the commencement of the Act with a further direction that the same shall be finalised in accordance with Section 100 of the Act.
[510C ] 1.4.
If the period of one year from the date of the publication of proposed scheme is applied to the pending schemes under Section 68 C of the old Act, the purpose and object of saving the old schemes under Clause (e) of Section 217(2) of the new Act would be frustrated.
[509E F] 2.1.
While Section 217(2)(e) permits finalisation of a scheme in accordance with Section 100 of the new Act, sub section (4) of Section 100 lays down that a scheme if not finalised within a period of one year shall be deemed to have lapsed.
If the period of one year as prescribed under Section 100(4) is not computed from the date of publication of the scheme under Section 68 C of the old Act and instead the period of one year is computed from the date of com mencement of the Act, both the provisions could be given full effect.
[510F H] 2.2.
While in the case of a scheme under Section 68 C of the old Act, pending on the date of enforcement of the new Act, namely, 1.7.1989, the period of one year as prescribed under Section 100(4) should be computed from the date of commencement of the new Act.
[511D E] 2.3.
The appellant was himself responsible for the delay therefore he is not entitled to complain for the delay.
Delay would not automatically render the scheme illegal.
[500G] 2.4.
Since under the old Act no time frame was pre scribed for finalising a scheme penal consequences could not ensue.
Under the old 503 Act a scheme proposed section 68 could continue to remain in force till it was quashed.
[505G H] 2.5.
Since the scheme proposed on 11.10.1979 had not been quashed by any Court, the same continued to be in force on the date of commencement of the new Act.
In the absence of any provision in the old Act rendering the scheme inef fective on the ground of delay, the scheme proposed section 68 C of the old Act could not lapse ipso facto.
[505H 506A] 2.6.
In the instant case stay order passed by the High Court remained in force from May to 9th August, 1990.
On the exclusion of that period the final Notification issued by the State Government under Section 100(3) of the new Act on 29.8.1990 was well within the prescribed period.
[512C D] Yogeshwar Jaiswal etc.
vs State Transport Appellate Tribunal & Ors., AIR 1985 SC 516; Onkar Singh & Ors.
vs Regional Transport Authority, Agra & Ors., ; ; Devki Nandan vs State of Rajasthan & Ors., and Srichand vs Government of U.P., [1985] 4 SCC 169, distinguished.
Santosh Kumar & Ors.
vs Regional Transport Authority, CMWP No. 21773/89, decided on 16th March, 1990, over ruled.
Where there appears to be inconsistency in two sec tions of the same Act, the principle of harmonious construc tion should be followed in avoiding a head on clash.
It should not be lightly assumed that what the Parliament has given with one hand, it took away with the other.
The provi sions of one section of statute cannot be used to defeat those of another unless it is impossible to reconcile the same.
The essence of harmonious construction is to give effect to both the provisions.
Venkataramana Devaru vs State of Mysore, AIR 1958 'SC 225 at p. 268. Followed.
|
ivil Appeal No. 3566 of 1989.
712 From the Judgment and Order dated 17.2.1989 of the Gauhati High Court in F.A. No. 7 of 1972.
K.N. Bhatt, H.N. Salve, A.K. Sil and G. Joshi for the Appel lant.
section Parekh for the Respondent.
The Judgment of the Court was delivered by K. JAGANNATHA SHETT, J.
The question of law which is concerned in this appeal is whether in the circumstances of the case, the appellant ("Bank") was required to act as agent of the respondent or as bailee in respect of goods entrusted for delivery to the respondent against payment.
In 1945 the respondent was carrying on the business of wholesome and retail dealership in textile yarn and cloth at Agartala and in the course of that business he was appointed as a Government nominee to indent for and lift the quanti ties of cloth and yarn to Agartala from different mills situated in Bengal, Bombay, Ahmedabad and other places.
For the purpose of that business, the respondent had maintained Current Account No. 391 with the Agartala Branch of the United Commercial Bank Limited which has since been styled as 'UCO Bank ', the appellant in this appeal.
The case of the respondent plaintiff was that there was an oral agreement with the Bank on September 2, 1950 under which the latter inter alia was to receive bills, documents and air receipts sent by or on behalf of the plaintiff from his agents or suppliers and would release and/or take delivery of goods sent by them, as and when the goods arrive at Agartala.
The Bank would hold or keep the said goods stored in its godown for and on behalf of and on account of the plaintiff for his benefit etc.
It was also alleged that payment of the bills in respect of goods dispatched to the Bank should be made by the plaintiff.
He should be given delivery of the goods and air receipts by the Bank according to his convenience and requirement.
It was further stated that under the said terms and conditions, the Banker consti tuted himself and acted as an express trustee and/or agent of the plaintiff in relation to the said goods and air receipts and thus stood in fiduciary relationship with the plaintiff.
713 Complaining non delivery of goods even after receiving payment thereof, the plaintiff brought a suit for accounts, damages, compensation and delivery of goods or their equiva lent in money valued at Rs.2,68,198.97.
The Bank has denied all the allegations and asserted that it never acted as an agent, trustee or depositee of the plaintiff in respect of the goods and documents.
The exist ence of fiduciary relationship between the parties was also denied.
It was however stated that certain parties from Calcutta were supplying goods to various parties in Agartala including the plaintiff and they used to send bills with air receipts Covering the goods to the Bank for presentation to the drawees and the Bank would deliver the same against payment.
The Bank collected bill amounts on behalf of those parties in the usual course of business.
It was further admitted that some parties from Calcutta engaged the Bank to collect the amounts of the bills drawn on the plaintiff, to clear the goods dispatched by them from the Airways on their behalf, to store them in Bank 's godown and to allow the drawee (plaintiff) to take delivery of the goods against payment of their costs and charges including the salaries of the godown staff, handling and insurance charges etc.
Those charges and costs were recovered from the plaintiff by the Bank on behalf or ' the parties sending the goods to the plaintiff.
The Bank maintained that it had dealt with such goods of the Calcutta parties, recovered monthly charges at the instructions of the drawers and the drawee (plaintiff) and debited to the account of the plaintiff.
When there was no amount available in the plaintiff 's account or when the plaintiff defaulted in retiring the bills, the said charges were recovered from the drawers.
The goods in the custord of the Bank on behalf of the Calcutta parties which were paid for by the plaintiff would be delivered to the plaintiff and the goods for which no payment was made by the plaintiff would be returned to the drawers of the bills.
The trial court framed among others, the following three issues: (9) Was there any agreement and/or arrangements between the parties as alleged in the plaint? 10) Was the defendant a trustee and/or agent of the plaintiff as alleged in the plaint? and (11) Was there any fiduciary relationship between the parties as alleged by the plaintiff? 714 The trial court recorded findings on all these issues in the affirmative and in favour of the plaintiff.
On Issue No. (9) as to the existence of agreement, it was observed: "The evidence on record shows that regular accounts of goods for the plaintiff would be maintained by the defendant Bank.
Although the purpose of current account No. 391 of the plaintiff cannot alter the nature being that of debtor and creditor attributable to the account, the factum of the account and its operation also indicate that there was an agreement between the parties.
This does not however exclude necessary agreement or arrangement by the bank with the Calcutta parties.
Debits in the account of the plaintiff started to be made from 13.9.50 in connection with transac tions of the plaintiff, whereas the alleged agreement be tween the bank and S.T. Bros, occured in March, 1951.
All these factors lead to the inference that there was an agree ment or arrangement between the bank and the plaintiff regarding payment of bills and charges for the account of the plaintiff and otherwise and regarding storing of those goods received by the Bank in its godowns, of which the plaintiff came to be owner and for delivery of those goods as and when required by the plaintiff.
These are the minimum terms deducible from the evidence on record.
To this extent the issue is answered in favour of the plaintiff." Issue No. (10) was determined as follows: "It is in evidence that the Bank collected bills, made remittances to mills, applied for purchasing drafts on behalf of the plaintiff, met expenses of storing the goods by debiting account No. 391 of the plaintiff, collected treasury bills of the plaintiff and vide Ext.
P 56 series made adjustment of bills by debiting account No. 391 without cheques issued by the plaintiff and did similar other works.
All this leads to the reasonable inference that the bank also acted as agent of the plaintiff.
In this suit, such agency of the defendant involved a relation of trust and confidence and the goods which came to be owned by the plaintiff on payment of value thereof and which remained in the hands of the bank were impressed with trust for the benefit of the plaintiff.
As matter of fact, the defendant bank 's position 715 was that of an intermediary owing duties to both the Cal cutta parties and the plaintiff." Issue No. (11) as to the fiduciary relationship between the Bank and plaintiff, it was remarked: "The bank collected cheques issued in its favour and under advice of the plaintiff remitted the money to the mills and the Calcutta parties to meet the value of the bills drawn by the mills and the agents of the plaintiff (Calcutta parties).
It has to be noted in this connection that the Calcutta parties acted as agents of the plaintiff in so far as they acted on behalf of the plaintiff in lifting the controlled commodities from the mills and arranging for their dispatch to Agartala.
The bank also made adjustment of bills by debiting account No. 391 without any cheques being issued by the plaintiff, vide Ext.
P 56 series, and met the expenses of storing the goods by debiting from the account No. 391 of the plaintiff.
From Ext.
P 61, stock register, it is seen that the bank stocked goods on account of the plain tiff in its godowns on those premises, according to the learned counsel for the plaintiff, there is no escape from the conclusion that the bank stood in a fiduciary relation ship with the plaintiff.
Learned counsel for the defendant bank urged that save and except relationship of banker and customer there was no other relationship between the plain tiff and defendant bank.
But in view of the materials on record I find that there was fiduciary relationship between the plaintiff and the defendant bank.
This issue is decided in favour of the plaintiff." Accordingly, the suit was decreed in part directing delivery of goods or the value equivalent to Rs.1,26,500.
A Commis sioner was also appointed to take accounts with regard to the transactions.
The High Court of Calcutta has affirmed the decree of the trial court.
As to the question of relationship between the Bank and customer, the High Court observed: "In our opinion if we find that the plaintiff paid the value of the goods and the appellant bank neither delivered the goods nor rendered accounts, a fiduciary relationship could exist between the plaintiff and the bank in respect of the 716 goods for which value was paid by the plaintiff." The Bank by obtaining leave has now appealed to this court.
In opening the appeal, Counsel for the appellant urged that the case of the plaintiff based on oral agreement which is expressly contrary to banking transactions ought not to be relied upon.
It was claimed that the Bank was a collect ing agent for the supplier of goods and not an agent or trustee for the respondent.
Adjustment of bills by debiting to the current account without cheques from the respondent would not change the ordinary relationship of bank and customer.
There was no 'special relationship ' created either by opening the current account or storing the goods meant for delivery to the plaintiff and there was nothing to take the parties outside the usual course of banking business.
It was further argued that the Bank received and took charge of the goods only as bailee and any inference of fiduciary relationship between parties was unwarranted and unjusti fied.
Counsel for the appellant appears to be very particular to get rid of the finding recorded by the Courts below as to the fiduciary relationship in bank and customer relation ship.
We agree with him that the High Court and the trial court were not justified in holding that a fiduciary rela tionship could exist between the parties in respect of goods for which the suit claim was based.
This inference was drawn primarily from the debit entries in the plaintiff 's current account.
Reference was made to collection of bills, remit tances to mills, meeting expenses of storing the goods and debiting the same to the current account even without cheques from the plaintiff.
These acts according to the trial court would lead to an inference that the Bank acted as agent of the plaintiff and there was thus fiduciary relationship between parties.
But we do not find anything in this method of operation to take the parties outside the ordinary relationship of banker and customer.
Lord Chorley says that "the main mass of daily banking activity in branch banks is concerned with the operations of current accounts which thus provide a sort of hub round which the wheels of the whole set up of commercial banking revolve . .
There is no accepted definition of a current account; though in its normal form it is easily recognised in practice.
The principal feature of such an account is the fact that the customer gets his money repaid from it, or any advances which he is receiving from his banker by way of loan: and this is so whether the repayment is to himself or to a third party.
Normally the repayment is made through the machinery of the cheque and conversely unless otherwise indicated by the customer it is implied that 717 cheques paid in are for the credit of the current account, and that they will be so credited . .
We have seen that overdrawings by the customer when allowed by the banker are treated as loans. ' They will be debited to the current account.
Indeed it is through the current account, and by means of overdrafts on it that loans and advances are nor mally made by bankers to their customers".
(Law of Banking by Lord Chorley 6th ed.
at 167 168).
In Paget 's Law of Banking, 9th ed.
at 82 83, it is stated that "the current or drawing account may be either a credit or an overdrawn account.
A credit account is made up of moneys paid in by the customer, the proceeds of cheques and bills collected for him, coupons collected, interest and dividends paid direct to the banker and from various other sources, less any money properly paid out.
Moneys from different sources, once they have found their way into the current account, are treated as one entire debt.
" This is the normal method of banking operation and the maintenance of the current account in this case appears to be not outside this principle and therefore, no inference could be drawn that the Bank stood in fiduciary relationship with the plaintiff.
Next question for consideration is whether the Bank acted as agent of the plaintiff in respect of the goods in question? Here also Counsel appears to be right in his submission.
Banks take charge of goods, articles, securities as bailee and not as trustee or agent.
Bailment is the delivery or transfer of possession of a chattel (or other item of personal property) with a specific mandate which requires the identical res either to be returned to the bailor or to be dealt with in a particular way by the bailee as per directions of the bailor.
One important distinguish ing feature between agency and bailment is that the bailee does not represent the bailor.
He merely exercises, with the leave of the bailor (under contract or otherwise), certain powers of the bailor in respect of his property.
Secondly, the bailee has no power to make contracts on the bailor 's behalf; nor can he make the bailor liable, simply as bailor, for any acts he does.
(See Fridman 's Law of Agency 5th ed.
p. 23).
In the instant case, there is nothing to indicate that the Bank represented the Calcutta parties or the plain tiff with authority to change the contractual or legal relationship of parties and therefore, there is no justifi cation to hold that the Bank acted as agent of the plain tiff.
But that however, does not mean that the Bank could succeed in this appeal.
Having regard to the finding of fact recorded by the Courts below, it is immaterial whether the Bank acted as bailee or in any other capacity.
On the evi dence adduced by the parties it has been 718 established that the plaintiff did pay the price of the goods in respect of which he based his claim in the suit.
The Bank, however, took the plea that the goods were deliv ered to one Shishu Ranjan Sen, who was the authorised agent of the plaintiff.
But at the relevant time the plaintiff had his own agent called Dhani Ram and he did not receive the goods.
The Bank has neither examined Shishu Ranjan Sen nor Dhani Ram.
The Bank examined one Dhawan (DW 2) to prove some initials of Shishu Ran jan Sen on certain documents but his evidence has not been accepted.
The fact, therefore, remains that the Bank having received the price of the goods from the plaintiff has failed to deliver the same to him.
This finding has not been seriously disputed and indeed cannot be disputed since the Bank having chosen not to call Shishu Ranjan Sen or Dhani Ram to give evidence.
The evidence adduced by the Bank was thus insufficient to establish the factum of delivery of goods to the plaintiff.
The banker bailee gratuitous or for reward is bound to take the same care of the property entrusted to him as a reasonably pru dent and careful man may fairly be expected to take of his own property of the like description.
(See: Halsbury 's Laws of England 4th ed.
3 para 93).
In fact a paid bailee must use the greatest possible care and is expected to employ all precautions in respect of the goods deposited with him.
If the property is not delivered to the true owner, the banker cannot avoid his liability in conversion.
(See: (i) The Law Relating to Banking by T.G. Reeday 4th ed.
p. 81; (ii) Law And Practice relating to Banking by F.E. Ferry 5th ed.
p. 21).
In the light of these principles the Bank could not avoid the liability to return the goods as agreed upon or to pay an equivalent amount to the plaintiff.
Even if we assume that the goods were delivered to a wrong person, the Bank has to own the responsibility to pay the plaintiff.
The liability of banker to customer in such a case is absolute even if no negligence is proved.
In Hals bury 's Laws of England (supra, para 94), it is stated "where the bank delivers the goods to the wrong person, whereby they are lost to the owner, the liability of the bank is absolute, though there is no element of negligence, as where delivery is obtained by means of an artfully forged order.
In law the banker could contract out of this liability, but he would be unlikely to do so in practice.
" Before parting with the case, we may also state that in practice, bankers do not set up the statute of limitations against their customers or their legal representatives, and we see no reason why this case should be an exception to that practice.
In the result, the appeal is dismissed with costs, but not for all the reasons stated by the trial court and the High Court.
N.P.V. Appeal dis missed.
| The appellant, an officer of Bihar State, filed a writ petition before the High Court, challenging the order of compulsory retirement passed by the respondent State, under Rule 74(b)(ii) of Bihar Service Code, 1979, contending that throughout his service of 30 years he had an exemplary service career and his integrity remained unquestionable and that neither any adverse remarks were communicated to him nor any departmental proceedings were initiated against him, nor any explanation called for from him.
The High Court dismissed the writ petition by a laconic order.
In the appeal, by special leave, the appellant contended that though the order was couched in innocuous terms and made in compliance with the provisions of Rule 74(b)(ii) of Bihar Service Code on appellant 's reaching the age of more than 50 years, and prima facie not appearing to cast any stigma, it was not made in public interest, but made by way of punishment for oblique purposes, in consideration of extraneous matter and purporting to removal from service on certain serious allegations of misconduct, casting a stigma, and hence the order was illegal, bad and in violation of audi alterem partem rule and Article 311(2) of the Constitu tion and was liable to be quashed.
On behalf of the respondent State it was contended that the order had been made in public interest under Rule 74(b)(ii) and there was nothing to show from the order itself that it had been made by way of punishment, casting a stigma, the language of the order was innocuous, and the appellant could not delve into the secretariat files, to find out the basis of the order.
680 Allowing the appeal, this Court, HELD: 1.1 Even though the order of compulsory retirement is couched in innocuous language without making imputations against the government servant, who is directed to be com pulsorily retired from service, the Court, if challenged, in appropriate cases can lift the veil to find out whether the order is based on any misconduct of the government servant concerned or the order has been made bona fide and not with any oblique or extraneous purposes.
Mere form of the order in such cases cannot deter the Court from delving into the basis of the order if the order in question is challenged by the concerned government servant.
[693F G] Shamsher Singh & Anr.
vs State of Punjab, and Anoop Jaiswal vs Government of India and Am '.
, ; , relied on.
Shyam Lalv.
The State of U. P. & Anr., ; ; Baldev Raj Chadha vs Union of India and Ors., ; and Union of India vs Col. J.N. Sinha and Anr., [1971] 1 SCR 791, referred to.
I.N. Saxsena vs The State of Madhya Pradesh, ; , distinguished.
1.2 The object of Rule 74(b)(ii) of the Bihar Service Code is to get rid of the government servant who has become dead wood.
This order is made only to do away with service of only those employees who have lost their utility, become useless and whose further continuance in service is consid ered not to be in public interest.
[655D] 1.3 In the instant case, the appellant had an unblem ished career, and undoubtedly by dint of merit and flawless service career, had been promoted to the post of Joint Director and ultimately to the post of General Manager.
The counter affidavit filed on behalf of the respondent State has categorically stated that while passing the order of compulsory retirement the officers concerned were guided by the report dated September 19, 1987 which stated that the appellant was responsible for grave and serious financial irregularities resulting in financial loss to the State Government, without giving any opportunity of hearing and without intimating allegations to the appellant before forming the opinion.
The memorandum in question has clearly stated that the order of compulsory retirement was made as the appellant 's misconduct tarnished the image of the Gov ernment in the public.
This categorical 681 statement clearly proves that the basis of making the order is the report dated September 19, 1987.
Therefore, the order of compulsory retirement cannot be defended on the mere plea that it has been made in accordance with the provisions of Rule 74(b)(ii) which prima facie does not make any imputa tion or does not cast any stigma on the career of the appel lant.
[657E, 689F H, 690A, 693H, 694A] In view of the clear and specific averments made by the respondent State that the order has been made under Rule 74(b)(ii) as the appellant was found to have committed grave financial irregularities leading to financial loss to the State, the order cannot but be said to have been made by way of punishment.
Such an order is in contravention of Article 311 of the Constitution and arbitrary as it violates princi ples of natural justice.
It has not been made bona fide, but for collateral purposes and for extraneous consideration by way of punishment and is, therefore, illegal, unwarranted and liable to be quashed.
[694A B, C] Accordingly the order of compulsory retirement is set aside and the respondents are directed to reinstate the appellant with full back wages.
[694D]
|
Appeals Nos.
1003 and 1004 of 1964.
Appeals by special leave from the judgment and order dated January 7, 1963 of the Bombay High Court, Nagpur Bench in Civil Revision Applications Nos. 294 and 295 of 1962.
section T. Desai, G. L. Sanghi and O. C. Mathur, for the appel lant (in both the appeals).
C. B. Agarwala, section K. Gambhir and Ganpat Rai, for respondent No. 1 (in both the appeals).
R. N. Sachthey, section P. Nayar for R. H. Dhebar, for the res pondent No. 3 (in both the appeals).
The Judgment of the Court was delivered by Sikri, J.
These two appeals, by special leave, are directed against the judgment of High Court of Judicature at Bombay (Nagpur Bench), dated January 7, 1963, allowing two Civil Revision applications Nos. 294 of 1962 and 295 of 1962, filed by Paramsukhdas, a respondent before us.
The High Court, by this judgment, quashed orders dated April 9, 1962, in the Land Acquisition Cases No. 189 of 1961.
and No. 190 of 1961 (as amended subsequently on July 6, 1962) and remitted the matter to the Court of the Civil Judge, Akola, for a fresh decision on merits with advertence to the remarks in the judgment.
The High Court further directed that Paramsukhdas be allowed to be impleaded as a non applicant in the two proceedings and all parties will be allowed to amend their pleadings or make fresh pleadings with respect to the alleged compromise as filed before the High Court in Special Civil Application No. 232 of 1960.
Mr. section T. Desai, the learned counsel for the appellant, con tends: (1)That the High Court has no jurisdiction under section 115.
to interfere with the orders of the Civil Judge, dated April 9, 1962; 364 (2) That Paramsukhdas, respondent No. 1, is not a person interested in the compensation and is not entitled to be impleaded as a party to the references under section 18 of the Land Acquisition Act, 1894, (I of 1894) hereinafter referred to as the Act , (3) That, if at all, no revision but appeal lay to the High Court.
Before dealing with the above contentions it is necessary to state the relevant facts.
Sunderlal, appellant, owned some land (field No. 22) in Monza Umari, Taluq and District Akola.
This field had been leased to Khushal Singh under a registered lease for 5 years commencing from April 1, 1954.
The field was acquired by the Government.
The Land Acquisition Officer made his award on January 30, 1960, and assessed the total compensation at Rs. 26,105.58, and apportioned the amount equally between Sunderlal and Khushal Singh.
On February 17, 1960, the Land Acquisition Officer noted the following regarding Khushal Singh: "2.
Khushalsing s/o Tolaram (a) According to letter No. 154 / 60 of 15th February 1960 from the Court of Civil Judge (Sr.
Dn.) Khamgaon, and the attachment order issued by that Court, in C.S. No. 4 B/1958, the amount to be paid to Khushalsing Tolaram be kept in Revenue Deposit.
(b) One Sunderlal minor guardian father Madanlal Harjimal, of Akola, has presented an objection petition against this payment.
" Sunderlal filed an application for reference under section 18 of the Act, claiming more compensation and also complaining in regard to the apportionment of the amount of compensation between him and Khushal Singh.
According to him, Khushal Singh was not a protected tenant and his period of lease having expired, he was not at all entitled to any portion of the amount of compensation.
A reference under section 18 was made on June 27, 1961, and this reference was numbered Land Acquisition Case No. 189 of 1961.
Khushal Singh also applied for a reference and he claimed enhancement of compensation and challenged the basis of apportionment adopted by the Land Asquisition Officer.
The Collector made the reference and it was numbered Land Acquisition No. 190 of 1961.
Before we deal with what happened before the Civil Judge, it is necessary to give some facts about the litigation between Sunderlal and Khushal Singh. 'On July 21, 1956, Sunderlal filed a suit (Civil Suit No. 133 B of 1956) against Khushal Singh for rent due on January 1, 1955, and January 1, 1956, in the, Court of Civil Judge, Akola.
On July 22, 1957, the Civil Court referred the matter to the Revenue Court under section 16 A of the Berar Regulation of Agricultural Leases Act, 1951.
On July 25, 1958, the Sub Divisional Officer, Akola, answered the reference 365 Revenue Case No. 79 of 1957 58) holding that Khushal Singh was not a protected lessee.
On appeal, the Deputy Collector.
Akola, held, on October 8, 1959, that Khushal Singh was a protected lessee.
The Bombay Revenue Tribunal confirmed the order of the Deputy Collector on March 22, 1960.
Sunderlal filed a petition before the High Court under article 226 of the Constitution.
It was numbered Special Civil Application No. 232 of 1960.
On February 8, 1961, a compromise petition (Civil Application No. 163 of 1961) was filed in the High Court, in Special Civil Application No. 232 of 1960.
It was stated in.
the compromise petition that Khushal Singh did not wish to dispute Sunderlal 's contention that the land was leased for horticulture purposes and that he had not acquired the status of a protected lessee, as defined in the Berar Regulation of Agricultural Leases Act, 1951.
Khushal Singh further stated that he had no objection to the quashing of the orders of the Bombay Revenue Tribunal dated March 22, 1960, and of the Deputy Collector dated October 8, 1959.
On March 11, 1961, Paramsukhdas filed an application (Civil Application No. 246 of 1961) in the High Court in Special Civil Application No. 232 of 1960, claiming to be heard.
He alleged that he had obtained a decree against Khushal Singh and started execution proceedings for Rs. 20,013/ and the amount of Rs. 13,644.27 ordered to be paid to Khushal Singh as compensation had been attached by him for the satisfaction of his decree.
He alleged that Khushal Singh and Sunderlal had mala fide entered into an agreement and had filed a compromise application asking for quashing of the orders of the Revenue Courts with the sole object of setting at naught the attachment and execution of his decree.
He prayed, therefore, for leave to appear in the case as a party vitally interested.
He further prayed that the compromise application should not be entertained and, should be dismissed in the interest of justice.
It appears that on March 20, 1961, this application came up for hearing before the High Court.
Paramsukhdas, however, took three weeks ' more time from the High Court, which was granted to him.
It further appears that Paramsukhdas withdrew the said amount of Rs. 13,644 27 towards satisfaction of his decree.
On April 18, 1961, he filed another application (Civil Application No. 365/61) wherein he stated that he had withdrawn the amount and alleged that he was now an interested party, and, therefore, he should be joined as a party.
On the same date, his Advocate, Mr. Sohoni gave an undertaking in the following terms: "Mr. Sohoni undertakes to hold the moneys withdrawn 'by his client subject to the orders of this Court 'on this application." On August 3, 1961, the High Court disposed of Civil Applica tion No. 163 of 1961, Civil Application No. 246 of 1961 and Civil Application No. 365 of 1961.
The High Court held that in L/S5SCI 10 366 the circumstances "we do not consider it advisable to proceed in this matter ourselves.
The parties will be at liberty to file the compromise petition in the Civil Court where proceedings are pending on reference under section 18 of the Land Acquisition Act." The High Court, in order to safeguard the interests of the parties, kept these proceedings pending till the decision on the, compromise petition by the Civil Court.
The compromise petition was directed to be returned to Sunderlal.
On September 18, 1961, Sunderlal and Khushal Singh filed applications for compromise in both the Land Acquisition references.
Paramsukhdas filed applications under 0.
XXII r. 10, read with section 151, C.P.C., praying that his name be substituted or added as an applicant.
He alleged that the compromise was fraudulent and that Khushal Singh was abandoning the case, and as an attaching creditor, he was entitled to be added a party to the case.
Both Khushal Singh and Sunderlal objected, and by two orders dated April 9, 1962, the Civil Judge rejected the applications of Paramsukhdas.
He framed the issue: "Whether Paramsukhdas can be permitted to be substituted or added as a party to these two references." He held that admittedly Paramsukhdas had not approached the Land Acquisition Officer in the proceedings in which the award was passed on January 30, 1960.
He had not appeared before the Land Acquisition Officer as a person interested in the land or the compensation that would be determined by the authorities.
He further held that under the circumstances Paramsukhdas was not one of the persons interested in the acquired land before the Collector, and he also could not be one, of the persons interested in the objections under section 20.(b) of the Act.
After referring to Manjoor Ahmad vs Rajlaxmi Dasi (1) and Abu Bakar vs Peary Mohan Mukherjee (2), he hold that the scope of the reference under section 18 was limited and new questions not covered by the reference could not be entertained.
He reviewed his orders on July 6, 1962, but nothing turns on that in the present appeals.
Paramsukhdas filed two revisions, Nos. 294 and 295 of 1962, before the High Court on June 30, 1962.
On August 22, 1962, Sunderlal filed an application for withdrawal of Special Civil Application No. 232 of 1960.
The High Court, on September 24, 1962, ordered: "Allowed, main petition dismissed as withdrawn.
No costs.".
Before the High Court a preliminary objection was raised in Civil Revisions Nos. 294 and 295 of 1962, that revisions were not competent because appeals lay against the orders of the Civil (1) A.I.R, 1956 Cal, 263.
(2) I.L.R. 367 Judge.
The High Court overruled this objection.
Regarding the ,claim of Paramsukhdas to be added as a party, the High Court ;held that his application showed that he was not claiming any interest in the lands themselves but was only claiming an interest in the compensation for the land which had been deposited in the Court for payment to the persons concerned, and as such was a person interested, as defined in section 3 (b) of the Act, and he.
would, therefore, be entitled to claim that he should be allowed to join as a party.
Mr. Desai contends that an attaching creditor is not interested in the amount of compensation as compensation.
His interest, he urges, is only to get moneys belonging to the judgment debtor in enforcement of his rights, and accordingly he is not entitled to be made a party to the reference under section 18 of the Act.
He further contends that the Court in hearing a reference under section 18 of the Act can only deal with an objection, which has been referred and cannot go into any matter beyond the reference.
He con cludes: if this is so, even if Paramsukhdas is ordered to be added a party he would not be able to challenge the compromise between Sunderlal and Khushal Singh.
The learned counsel for the respondent, Mr. C. B. Agarwala, controverts these submissions.
,He says that Paramsukhdas is a person interested in the objection within section 20, and is a person affected by the objection within section 21 of the Act.
He also relies on 0.
XXII r. 10(2), C.P.C., which is made applicable by section 53 of the Act.
Before examining the authorities cited at the Bar, it is necessary to examine the scheme and the provisions of the Act insofar as they are relevant to the question of determination of compensation, the question of apportionment of the compensation, and the question as to the persons who are entitled to be heard.
Section 3(b) defines the expression "person interested" as follows: "the expression person interested includes all persons claiming an interest in compensation to be made on account of the acquisition of land under this Act, and a person shall be deemed to be interested in land if be is interested in an easement affecting the land.
" It will be noticed that it is an inclusive definition.
It is not necessary that in order to fall within the definition a person should claim an interest in land, which has been acquired.
A person becomes a person interested if he claims an interest in compensation to be awarded.
It seems to us that Paramsukhdas is a "person interested" within section 3(b) of the Act because he claims an interest in compensation.
But before he can be made a party in a reference it has to be seen whether he comes within s, 20(b) and s.21 of the Act.
L/S5SCI 10(a) 368 The scheme of the Act seems to be to first deal with persons who are interested in land.
These persons are heard under section 5A of the Act.
The ordinary meaning of "the person interested in land" is expanded by section 5A(3), for the purposes of this section, to include a person who would be entitled to claim an interest in compensation.
It would be strange to come to the conclusion that the Legislature is keen that a person claiming an interest in compensation should be heard before the land is acquired but is not interested in him after the land is acquired.
On the contrary, it follows from section 5A(3) that a person claiming an interest in compensation would be one of the persons whose interests are meant to be safeguarded.
It appears from sections 6 to 10 that a person claiming an interest in compensation is not expressly mentioned.
But in section 11 he is expressly mentioned, and it is directed that the Collector shall inquire into respective interests of the persons claiming the compensation and shall make an award.
Section 12 makes the award final and conclusive as between persons interested, i.e., including persons claiming an interest in compensation.
Under section 14 the Collector has power, inter alia, to summon the parties interested.
Under section 18 any person interested can claim a reference.
A person claiming an interest in compensation would also be entitled to claim a reference.
After a reference is made the Court is enjoined under section 20 to determine the objections, and serve, among others, all persons interested in the objection.
A person claiming an interest in compensation would, it seems to us, be a person interested in the objection if the objection is to the amount of compensation or the apportionment of compensation, and if his claim is likely to be affected by the decision on the objection.
Section 21 restricts the scope of enquiry to a consideration of the interests of the persons affected by the objection.
But it does not follow from section 21 that there is any restriction on the grounds which can be raised by a person affected by the objection to protect his interests.
The restriction that is laid is not to consider the interests of a person who is not affected by the objection.
Section 29 deals with apportionment of compensation, if there is agreement, and section 30 enables the Collector to refer disputes as to apportionment to the Court.
From the above discussion it follows that a person claiming an interest in compensation is entitled to be heard under sections 20 and 21 of the Act.
The provisions of the Act, including sections 20 and 21, do not prescribe that his claim to an interest in compensation should be "as compensation", as urged by Mr. Desai.
This is really a contradictory statement.
For, a fortiori, he has no interest in land, and compensation is given for interests in land.
He can never claim compensation qua compensation for what he claims is an interest in the compensation to be awarded.
This is not to say that a person claiming an interest in compensation may not claim that the compensation awarded for the acquired land is low, if it affects his interests, 369 In the view we have taken we are supported by some autho rities.
Shah, J., speaking for the majority in Grant vs State of Bihar,(1) observed: "The right of the State of Bihar arose on May 22, 1952 when the title to the land vested in it by virtue of the notification issued under the Bihar Land Reforms Act.
There is nothing in the Land Acquisition Act which prohibits the Collector from making a reference under section 30 for determination of the title of the person who has since the date of the award acquired a right to the compensation.
If after a reference is made to the Court the person interested dies and his title devolves upon another person, because of inheritance, succession, insolvency, forfeiture, compulsory winding up or other form of statutory transfer, it would be open to the, party upon whom the title has devolved to prosecute the claim which the person from whom the title has devolved could have prosecuted.
In Promotha Nath Mitra vs Rakshal Das Addy(2) it was held that a reference made by the Collector under section 30 of the Land Acquisition Act at the in stance of a proprietor of land may be prosecuted by the purchaser of his rights after the award at a revenue auction.
If the right to prosecute a reference by a person on whom the title of the person interested has devolved be granted, there is no reason why the right to claim a reference of a dispute about the person entitled to compensation may not be exercised by the person on whom the title has devolved since the date of the award.
The scheme of the Land Acquisition Act is that all disputes about the quantum of compensation must be decided by resort to the procedure prescribed by the Act; it is also intended that disputes about the rights of owners to compensation being ancillary to the principal dispute should be decided by the Court to which power is entrusted.
Jurisdiction of the Court in this behalf is not restricted to cases of apportionment, but extends to adjudication of disputes as to the person who are entitled to receive compensation, and there is nothing in section 30 which excludes a reference to the Court of a dispute raised by a person on whom the title of the owner of land has, since the award, devolved.
" In Golap Khan vs Bholanath Marick(3) an attaching creditor was directed to be made a party to the reference under the Land (1) ; (2) (3) 370 Acquisition Act, before the Civil Court.
Mookerjee, J., observed: "The petitioner was entitled to be added as a party, not under Rule 10, but on the ground that he was a person interested in the subject matter of the litigation and that no order ought to have been made for its disposal without any opportunity afforded to him to establish his claim." In Siva Pratapa Bhattadu vs A.E.L. Mission(1) an attaching creditor was held to be a person interested within section 3(b) of the Act.
Mr. Desai relies on Manjur Ahmed vs Rajlakshmi(2) but in that case the point decided by the Court was different.
It was held there that if a party to a land acquisition proceeding before the Collector had not obtained a reference under section 18 of the Act, its representative could not do indirectly what they did not do directly, i.e. they could not be added a party in a reference pending at the instance of other parties in order that the nil award against the party might be reversed and in order that they might be awarded a share of the compensation money.
Here no such point has been raised.
It has not been urged before us that Paramsukhdas was a party before the Collector and that having not applied for a reference under section 18 he is now debarred from being added as a party.
The case of Gobinda Kumar Roy Chowdhury vs Debendra Kumar Roy Chowdhury(3) was also decided on the same lines.
Similar view was reiterated in Mahammad Safi vs Haran Chandra(4).
Both these cases had followed Abu Bakar vs Peary Mahan Mukerjee(5).
Maclean, C. J., observed as follows in Abu Bakar vs Peary Mohan Mukerjee(5).
"If we read that section in connection with section 20 and section 18, I think it is impossible to avoid the conclusion that the Legislature intended that all that the Court could deal with was the objection which had been referred to it; and this seems to be a view consistent with commonsense and with the ordinary method of procedure in civil cases.
The zemindar here could, if he liked, have raised the objection as to the whole com pensation for the trees being given to the tenants, but he did not do so.
He must, therefore, be taken to have accepted the award in that respect; and it would be little less than dangerous if we were to hold that the Judge to (1) A.I.R. 1926 Mad. 307.
(2) A.I.R. 1956 Cal. 263.
(3) C.W.N. 98.
(4) (5) 371 whom only one objection was referred could go into all sorts of questions and objections which had not been referred to him.
" These three cases are distinguishable inasmuch as they are dealing with the cases of persons who having a right to seek a reference failed to claim that reference but ought to raise the point in a, reference made at the instance of another party.
The case of Karuna Sindhu Dhar vs Panna Lal Paramanik(1) also does not assist the appellant.
The High Court held in that case that as Rajmohan never claimed the entire compensation money before the Collector, the Land Acquisition Judge was not entitled to vary the awards by a declaration that Rajmohan alone was entitled to get the compensation.
It seems to us that Paramsukhdas was clearly a person in terested in the objections which were pending before the Court in the references made to it and that he was also a person whose interest would be affected by the objections, within section 21.
He was accordingly entitled to be made a party.
In the result we uphold the order made by the High Court in this respect.
Mr. Desai says that at any rate direction should be given that Paramsukhdas should not be entitled to challenge the compromise entered into between Sunderlal and Khushal Singh.
We are unable to accept this submission.
Paramsukhdas is entitled to raise all points to protect his interests which were affected by the objections.
It is also in the interest of justice that there should not be multifarious proceedings and all points arising which are not expressly barred under section 21 should be gone into by the Court.
This leaves only the two points regarding the jurisdiction of the High Court.
In our view, the High Court is quite right in holding that the orders of the Civil Judge, dated April 9, 1962, were not awards within section 54 of the Act.
The awards had still to be made.
If no appeal lay, then the revisions were competent and the High Court was right in entertaining the revisions because the Civil Judge had either refused to exercise jurisdiction vesting in him or had acted with material irregularity in the exercise of his jurisdiction.
In the result the appeals fail and are dismissed with costs in favour of Respondent No. 1; one hearing fee.
Y.P. Appeal dismissed.
| On August 19, 1964, officers belonging to the Department of the appellant raided and searched the premises of a company and foreibly removed certain accounts and goods.
The respondents challenged the department 's action by writ petitions filed in the High Court under article 226 of the Constitution praying that the articles seized should be returned.
It was contended by the petitioners that on a proper construction of section 41 of the Madras General Sales Tax Act, No. 1 of 1959, the officers of the Department had no authority to search the premises and seize any account books or goods found there; that if section 41(4) authorised seizure and confiscation of goods, it was beyond the legislative competence of the State Legislature, for it was not covered by item 54 of List II of the Seventh Schedule to the Constitution relating to "taxes on the sale or purchase of goods"; and that if various provisions in section 41 were capable of being construed as authorising search and seizure, they were violative of article 19(1)(f) and (g) of the Constitution.
The High Court allowed the Petitions holding, inter alia, that section 41 (2) did not permit a search being made and only provided for inspection; the power of seizure or confiscation in section 41(4) was beyond the legislative competence of the State Legislature; and that subsections (2), (3) and (4) of section 41 contained unreasonable res trictions and were violative of article 19(1) (f) and (g).
The High Court also found with respect to one of the petitions that the search warrant had been issued without the application of Mind by the magistrate and was bad.
On appeal to this Court; Held: dismissing the appeal, (i)Anything recovered during the search must be returned to the petitioners for the safeguards provided by section 165 of the Code of Criminal Procedure were not followed and in one case the finding of the High Court that the search warrant issued by the magistrate was bad on various grounds was not challenged; furthermore anything confiscated must also be returned as sub section (4) of section 41 must fall.[163 B D].
Clause (a) of the second proviso to sub section (4) gives power to the officer ordering confiscation to give the person affected an option to pay in lieu of confiscation, in cases where the goods are taxable under the Act, the tax recoverable and an additional amount and thus provides for recovery of tax even before the first sale in 149 the State which is the point of time in a large majority of cases for recovery of tax.
As such it was repugnant to the entire scheme of the Act and sub section (4) must therefore be struck down.
As Clause (a) compels the officer to give the option and thus compels recovery of tax before the first point of sale, which cannot have occurred in cases of goods seized from the dealer himself, it is clearly intended by the legislature to go together with the main part of the Section and is not therefore severable.
[159F 16OD].
(ii) Although generally speaking the power to inspect does not give power to search, where, as in the case of section 41 (2) the power has been given to inspect not merely accounts registers, records, goods, etc., but also to inspect the offices, shops etc.
, these two powers together amount to giving the concerned officer the power to enter and search the offices etc.
and if he finds any accounts or goods in the offices, shops, etc., to respect them.
The High Court was therefore wrong in holding that there was no power of search whatsoever under sub section (2).
[154H 155E].
The proviso to sub section (2) in providing that all searches under "this sub section" shall be made in accordance with the provisions of the Code of Criminal Procedure, bears out the construction that the main part of sub section (2) contemplates searches.
Similarly it is clear from sub section (3) which gives power to seize accounts etc., in certain circumstances, that sub section (2) must include the power of search for a seizure under sub section (3) is not possible unless there is a search.
[156D E. 158B C].
The contention that as the main part of sub section (2) does not provide for search of a purely residential accommodation and therefore the proviso is otiose must be rejected.
Although generally a provision is an exception to the main part of the section, it Is recognised that in exceptional cases, as in the present case, the provision may be a substantive provision itself.
[156D F].
Bhonda Urban District Council vs Taff Vale Railway Co., L. R. Commissioner of Income tax vs Nandlal Bhandari & Sons , and State of Rajasthan vs Leela Jain.
; , referred to.
(ii)Sub sections (2) and (3) of section 41 are not violative of article 19 as they are protected by clauses (5) and (6) of article 19 of the Constitution.
[162F G].
The High Court had wrongly assumed that the provisions of the Criminal Procedure Code did not apply to a search under section 41(2).
In view of the safeguards provided in section 165 Cr.
P.C. and in Chapter VII of that Code, it cannot be said that the power to search provided in sub section (2) is not a reasonable restriction keeping in View the object of the search, namely, prevention of evasion of tax.
[161EG].
The mere fact that the Act gives power to Government to em power any officer to conduct the search is no reason to strike down the provision for it cannot be assumed that Government will not empower officers of proper status to make searches.
[160 H], To, exercise the power of seizure under sub section (3) the officer concerned has to record his reasons in writing, has to give a receipt for the accounts seized, and can only retain the items seized beyond a period of 30 days with the permission of the next higher officer.
These are sufficient safeguards and the restriction, if any, on 150 the right to hold property and the right to carry on trade by sub section (3) must therefore be held to be a reasonable restriction.
[162 D G].
While the court held that the Legislature has power to provide for search and seizure in connection with taxation law in order that evasion may be checked, it did not decide the general question whether a power to confiscate goods which are found on search and which are not entered in account books of the dealer is an ancillary power necessary for the purpose of stopping evasion of tax.
[159C D].
K.S. Papanna and another vs Deputy Commercial Tax Officer, Gunkakal, (1967) XIX S.T.C. 506; referred to.
|
Civil Appeal No. 223 of 1974.
From the Judgment and order dated 13.7.1973 of the Railways Rates Tribunal, Madras in Complaint No. 2 of 1969.
K.K. Jain, Bishamber Lal, Pramod Dayal and A.D. Sanger for the Appellant.
Bed Brat Barua, Ms. A. Subhashini,.
C.V. Subba Rao, Mrs. section Suri, P. Parmeswaran and Anil Katiyar for the Respondent.
The Judgment of the Court was delivered by JAGANNATHA SHETTY, J.
This appeal, with Special Leave, is against the order and judgment dated July 13, 1973, of the Railways Rates Tribunal Madras, in complaint filed by the appellant under Section 41(1) of the Indian Railways Act No. 9 of 1890.
The background facts are these: The appellant is a Company.
It has set up a fertilizer factory at 387 Kota in Rajasthan.
It is said to be an industrially backward area.
The factory manufactures Urea for which the main raw material is Naptha.
Naptha has to be transported from Koyali Refinery of Indian oil Corporation.
The nearest railway station is Bajuva near Baroda.
The nearest railway station serving Company 's factory is Dadhevi in Rajasthan.
The distance between Bajuva and Dadhevi is about 520 kms.
For transportation, the Naptha has been classified by the Railway under Clause 110 B of the tariff.
Before the actual setting up of the factory, the Company, by its letter dated September 5, 1966 requested the Railway Board for a concessional frieght rate for the carriage of Naptha.
It requested the Railway Board for fixed Station to Station rate equivalent to classification 62.5 B.
That would have meant reduction of about 43% in the normal tariff under clause 110 B.
In that letter it was pointed out that if such concessional rate was not fixed, the Company would be put to disadvantageous position as against the other factories located at ports or near the refineries.
The Railway Board by its letter exhibit C5 dated November 5, 1966 agreed to quote station to station rate equal to 85 B (Special).
In the said letter it was also stated that as the special rate was being quoted ahead of the actual setting up of the factory the freight rate need to be reviewed when the traffic actually begins to move.
When the factory was almost ready for operation the company wrote a letter dated June 5, 1967 requesting the Railway Board for charging the rate under classification 62.5 B instead of 85 B(Special).
The Railway Board did not accede to the request.
On May 31, 1968 the company wrote another letter informing the Railway Board that the movement of Naptha would commence from June/July 1968 and pending decision of the company 's earlier request, the Railway Board may permit charging the rate equivalent to 85 B (Special) already offered in terms of the letter exhibit 5.
The Railway Board refused to grant that request also.
The Railway Board, however, informed the Company in the letter dated July 11, 1968 as follows: "However, if on the basis of facts and figures your cost of production (date to be furnished for at least one complete year) vis a vis the sale price of fertilizers, it can be established that production of fertilizers at Kota is uneconomical, until freight concession on the movement of Naptha from Bajuva/Trombay to Kota is granted, the Railway Board would be prepared to reconsider the question.
" 388 on April 19, 1969, the company filed a complaint under Section 41(1)(a) and (b) of the Railways Act, 1890 before the Railway Rates Tribunal Madras.
The principal contentions raised in the complaint are as follows: "(i) The Railway Board was estopped and/or precluded from going back on the assurance Of quoting station to station concessional rate 85 B when the company had in vested a large amount of capital in setting up the factory at a place away from the refinery or port (ii) The rate charges by the Railway for the carriage of Naptha between two stations Bajuva and Dadhevi was unreasonable under Section 41(1)(b) of the Indian Railways Act, 1980, and (iii) The Railways were showing undue preference or advantage in respect of other traffic and contravening the provisions of Section 28 of the Indian Railway Act, 1890.
" With these and other contentions, the company requested the tribunal to declare the rate charged for the carriage of Naptha as unreasonable and to fix a reasonable rate for such carriage.
The Railway Board in its reply maintained that while quoting the concessional rate equal to 85 B (Special) it was made clear to the company that the rate was subject to review when the traffic starts moving and that concessional rate was provisional in character.
The company did not construct the factory relying solely on the concessional rate offered by the Railway Board.
There was no scope for any such understanding since the Railway reserved its right to determine the correct rate when the traffic started moving.
It was later found that the chemicals have been advisedly given low class rate with a view to encourage fertilizer industry and no further concession was necessary to the company.
It was further stated that the question of any undue prejudice of undue favour to any party does not arise when charging the respective class rates for specified commodities.
On these pleadings the Tribunal considered among others, the following issues: 1.
Whether freight charges, now charged, for the carriage of a Company 's traffic in Neptha from Bajuva to Dadhevi station are unreasonable under Section 41(1) of the Indian Railways Act, 1890? 389 2.
Whether the Railways are contravening Section 28 of the Indian Railways Act in charging the respective class rates for commodities naptha, chemical manures, divisions A & B, Urea and Gypsum? 3.
Whether the Railways are estopped by the doctrine of promissory estoppel in view of the assurance given in the letter exhibit C? The Tribunal determined all these questions against the company.
It was held that there was no unreasonableness in the rate charged for the carriage of Naptha from Bajuva to Dadhevi.
The Railways are not contravening Section 28 of the Railways Act.
The rate charged has not caused any prejudice to the company.
On the question of promissory estoppel, the Tribunal held that the assurance given by the Railway Board in the letter exhibit C5 was not mainly responsible for setting up of fertilizer factory at Kota.
It was further held that even if exhibit CS was an assurance to the Company the withdrawal of that assurance has not adversely affected the interests of the company.
Upon the submissions made by learned counsel on both sides, the following questions arise for our consideration: (1) Whether the Railway Board was bound to give the concessional rate offered to the company under exhibit C5 dated November 5, 1966? (2) Whether the rate charged for the carriage of Naptha between Bajuva and Dadhevi is unreasonable? (3) Whether the Railways are showing undue preference or advantage in respect of other traffic and contravening the provisions of Section 28 of the Railways Act? We may conveniently take up third question first for consideration.
The relevant provisions of the Railways Act, 1890, which have a material bearing on the question are these: Section 41 provides for filing complaints against Railway Administration.
The Section provides as follows, so far as it is material: 390 41(I) Any complaint that a railway administration (a) is contravening the provisions of Section 28 or (b) is charging for the carriage of any commodity between two stations a rate which is unreasonable, or (c) x x x x x may be made to the Tribunal and the Tribunal shall hear and decide any such complaint in accordance with the provisions of this chapter.
Section 28 provides: "28.
A Railway administration shall not make or give any undue or unreasonable preference or advantage to, or in favour of, any particular person or railway administration, or any particular description of traffic, in any respect what soever, or subject any particular person or railway administration or any particular description of traffic to any undue or unreasonable prejudice or disadvantage in any respect whatsoever.
" The third question formulated by us relates, to the contravention of Section 28 of the Railways Act.
The scope of this Section has been considered by this Court in Rajgarh Jute Mills Ltd v Eastern Railway and another, [ ; at 241.
There it was observed that a party who complains against the railway administration that the provisions of Section 28 have been contravened must establish that there has been preference between himself and his goods on the one hand and his competitor and his goods on the other.
Gajendragadkar, J. (as he then was) observed: "Section 28 is obviously based on the principle that the power derived from the monopoly of railway carriage must be used in a fair and just manner in respect of all persons and all descriptions of traffic passing over the railway area.
In other words, equal charges should normally be levied against persons or goods of the same or similar kinds pas sing over the same or similar area of the railway lines and under the same or similar circumstances; but this rule does not mean that, if the railway administration charges un 391 equal rates in respect of the same or similar class of goods travelling over the same or similar areas, the inequality of rates necessarily attract the provisions of section 28.
All cases of unequal rates cannot necessarily be treated as cases of preference because the very concept of preference postulates competition between the person of traffic receiving preference and the person or traffic suffering prejudice in consequence.
It is only as between competitors in the same trade that a complaint of preference can be made by one in reference to the other." In the light of these principles, the Tribunal considering the material on record held that there is no evidence produced by the Company to justify any grievance under Section 28.
We see no reason to disagree with this conclusion.
It is, in our opinion, perfectly justified.
In fact Mr. K.K. Jain learned counsel for the appellant also did not seriously dispute the correctness of that finding recorded by the Tribunal.
We may now turn to the second question.
K.K. Jain urged that the rate charged by the Railway Administration is per se unreasonable.
Here again the onus to prove the alleged unreasonableness of the freight rests on the company.
It is for the company to establish that the rate charged by the Railway Administration for the carriage of Naptha is unreasonable.
Of course, this onus could be discharged by relying upon the material produced by the Railways.
Mr. Jain, therefore, relied upon a statement exhibit C46 in support of his case.
exhibit C46 is a statement of surplus "working cost" in respect of carriage of Naptha from Bajuva to Dadhevi.
It is, in our opinion, not necessary to analyse the statement.
Even assuming that the railways are earning some surplus income after deducting the operation cost that by itself is no ground to hold that the freight charged is per se unreasonable.
It must be born in mind that the railways are run as commercial undertaking and at the same time it being an instrumentality of the State, should serve the national interest as well.
There is however, no obligation on the railways to pass on the extra amount realised by the carriage of goods to customers.
Nor it is necessary to share the profit with the commuters.
As Mr. Barua learned counsel for the Railways said that in the case of commodities of national needs such a foodgrains, crude oil etc., it may be necessary for the Railways to charge below the operation cost.
To off set such a loss the Railways may charge higher freight for certain other classified commodities.
Therefore, it seems to us, that the cost of operation cannot by itself be the basis for judging the reasonableness of the rate changed.
392 It was next urged by Mr. K.K. Jain that the crude oil and Naptha are considered as comparable commodities for the purpose of carriage.
The crude oil carries the rate equal to class 85 B(old), 85(new) while Naptha carries rate 110 B(old), 105 B(new).
In terms of amounts it works out at Rs.59.45 for crude oil as against Rs.73.13 for Naptha.
The counsel urged that there is no justification shown for this wide disparity in the first place.
Secondly, the freight rate of crude oil was the rate offered to the company under exhibit CS and the denial of that rate without any good reason is arbitrary.
This argument though attractive does not carry conviction if one analyses the evidence on record.
Crude oil has been clubbed with Glycerine, fruit juices and syrups, fibres, flax etc.
Naptha has been clubbed with Aviation Spirit, Petrol, Petroleum, Ether and solvent oil.
From the evidence produced by the Railways Naptha has been classified as a dangerous commodity with the flash point below 24.4 xf8C spontaneously.
The crude oil has no such dangerous characteristics.
It is also on record that Naptha requires special type of tank wagons and the Railways have to take special precautions for transportation.
These and other relevant factors have been taken into account by the Tribunal for rejecting the demand of the company for parity in freights.
This Court cannot, interfere with such a finding in this appeal under Article 136 of the Constitution.
On the merits also, we see no justification to demand that Neptha should take the same freight rate as that of crude oil.
We may now revert to the first question.
It relates to the correctness of the view taken by the Tribunal on the doctrine of promissory estoppel resulting by the letter exhibit CS of the Railway Board.
The Tribunal has rejected this claim of the company by summarising its conclusion in the following terms: "We must, therefore, hold that the assurance contained in .
CS was not mainly responsible for the setting up of the Fertilizer Factory at Kota.
Even if it was held that exhibit CS was a definite encouragement to the complainant to set up the Kota factory, there is no evidence on record to show that the withdrawal of the concession by exhibit 12 has adversely affected the complainant.
We will show in the (i succeeding paragraphs that the complainant has suffered no material injury by virtue of the withdrawal of the concessional rate and the charging of the normal rate.
It is well settled that the principle of estoppel cannot be applied unless the person pleading estoppel can show that he has been prejudiced by the conduct of the party on whose assurance l l he has acted.
" 393 Here the Railways Rates Tribunal apparently, appears to have gone off the track.
The doctrine of promissory estoppel has not been correctly understood by the Tribunal.
It is true, that is the formative period, it was generally said that the doctrine of promissory estoppel cannot be invoked by the promisee unless he has suffered 'detriment ' or 'prejudice '.
It was often said simply, that the party asserting the estoppel must have been induced to act to his detriment.
But this has now been explained in so many decisions all over.
All that is now required is that the party asserting the estoppel must have acted upon the assurance given to him.
Must have relied upon the representation made to him.
It means, the party has changed or altered the position by relying on the assurance or the representation.
The,alteration of position by the party is the only indispensable requirement of the doctrine.
It is not necessary to prove further any damage, detriment or prejudice to the party asserting the estoppel.
The Court, however, would compel the opposite party to adhere to the representation acted upon or abstained from acting.
The entire doctrine proceeds on the promise that it is reliance based and nothing more.
This principle would be clear if we study the cases in which the doctrine has been applied even since it was burst out into sudden blaze in 1946.
Lord Denning in Central London Properties Ltd v High Trees House Ltd, 11947] K.B. 130 sitting as a trial judge, asserted: "A promise intended to be binding, intended to be acted upon, and in fact acted upon is binding . .
The history of the High Trees principle is too well known to bear repetition.
It will be enough to make the following points.
The promisor is bound because he led the promisee to commit himself to change the position.
If the promisee has acted upon the promise, the promisor is.
precluded from receding his promise.
No further detriment to the promisee upon his temporal interests need be established.
This position has been made clear by Lord Denning himself in his article "Recent Developments in the Doctrine of Consideration" Modern Law Review, Vol. 15 at p. 5.
"A man should keep his word.
All the more so when the promise is not a bare promise but is made with the intention that the other party should act upon it.
Just a contract is different from tort and from estoppel, so also in the sphere now under discussion promises may give rise to a different equity from other conduct.
394 The difference may lie in the necessity of showing "detriment" where one party deliberately promises to waive, modify or discharge his strict legal rights, intending the other party to act on the faith of promise, and the other party actually does act on it, then it is contrary, not only to equity but also to good faith, to allow the promisor to go back on his promise.
It should not be necessary for the other party to show that he acted to his detriment in reliance on the promise.
It should be sufficient that he acted on it.
The principle governing this branch of the subject cannot be better put then in the wolds of a great Australian jurist, DIXON, J. in Grundt v The Great Boulder Pty Gold Mines Ltd, ; There he said: "It is often said simply that the party asserting the estoppel must have been induced to act to his detriment.
Although substantially such a statement is correct and leads to no misunderstanding, it does not bring out clearly the basal purpose of the doctrine.
That purpose is to avoid or pre vent a detriment to the party asserting the estoppel by compelling the opposite party to adhere to the assumption upon which the former acted or abstained from acting.
This means that the real detriment or harm from which the law seeks to give protection is that which would flow from the change of position if the assumption were deserted that led to it.
So long as the assumption is adhered to, the party who altered his situation upon the faith of it cannot complain.
His complaint is that when afterwards the other party makes a different state of affairs the basis of an assertion of right against him then, if it is allowed, his own original change of position will operate as a detriment.
His action or inaction must be such that if the assumption upon which he proceeded were shown to be wrong, and an inconsistent state of affairs were accepted as the foundation of the rights and duties of himself and the opposite party, the consequence would be to make his original act or failure to act a source of prejudice.
" This passage was referred to, with approval, by Lord Denning in Central Newbury Car Auction Ltd v Unity Finance Ltd, at 909.
The said passage has also been quoted, with approval, 395 by Bhagwati, J. (as he then was) in Motilal Padampat Sugar Mills Co A Ltd v state of U.P. & Ors.,[ 1979]2 SCR 641 at p. 695= 1979(2)SCC 409.
The learned Judge then said: "We do not think that in order to invoke the doctrine of promissory estoppel it is necessary for the promisee to show that he suffered detriment as a result of acting in reliance on the promise.
But we may make it clear that if by detriment we mean injustice to the promisee which could result if the promisor were to recede from his promise then detriment would certainly come in as a necessary ingredient.
The detriment in such a case is not some prejudice suffered by the promisee by acting on the promise, but the prejudice which would be caused to the promisee, if the promisor were allowed to go back on the promise.
" The view taken in Motilal Padmapat Sugar Mills case (supra) has been reiterated in Union of India & Ors.
vs Godfrey Philips India Ltd,, [ 1985 ] 4 SCC 369 = [ 1985 ] Supp 3 SCR 123 .
The concept of detriment as we know understand is whether it appears unjust, unreasonable or inequitable that the promisor should be allowed to resile from his assurance or representation, having regard to what the promisee has done or refrained from doing in reliance on the assurance or representation.
It is, however, quite fundamental that the doctrine of promissory estoppel, cannot be used to compel the public bodies or the Government to carry out the representation or promise which is contrary to law or which is outside their authority or power.
Secondly, the estoppel stems from equitable doctrine.
It, therefore, requires that he who seeks equity must do equity.
The doctrine, therefore, cannot, also be invoked if it is found to be inequitable or unjust in its enforcement.
We may also state that for the purpose of invoking the doctrine, it is not necessary for the company to show that the assurance contained in exhibit
C5 was mainly responsible for establishing the factory at Kota.
There may be several representations to one party from different authorities in regard to different matters.
Or, there may be several representations from the same party in regard to different matters.
As in the instant case, there was one representation by the Rajasthan Government to supply power to the company at concessional rate.
There was another representation from the same Govern 396 ment to exempt the company from payment of tax for certain period.
There may be other representations from the same or some other authorities.
If those representations have been relied upon by the company, the Court would compel those parties to adhere to their respective representations.
It is immaterial whether each of the representations was wholly responsible or partly responsible for locating the factory at Kota.
It is sufficient if the company was induced to act on that representation.
The last and final aspect of the matter to which attention should be drawn is that for the purpose of finding whether an estoppel arises in favour of the person acting on the representation, it is necessary to look into the whole of the representation made.
It is also necessary to state that the representation must be clear and unambiguous and not tentative or uncertain.
In this context we may usefully refer to the following passage from Halsbury 's Laws of England, Halsbury 's Laws of England 4th Edn.
16 p. 1071 para 1595. "1595.
Representation must be unambiguous To found an estoppel a representation must be clear and unambiguous, not necessarily susceptible of only one interpretation, but such as will reasonably be understood by the person to whom it is made in the sense contended for, and for this purpose the whole of the representation must be looked at.
This is merely an application of the old maxim applicable to all estoppels, that they "must be certain to every intent The question now is whether the assurance given by the Railway Board in the letter exhibit
C5 was clear and unqualified.
But unfortunately, it is not so.
It was subject to review to be undertaken when the company starts moving the raw material.
exhibit C5 reads: New Delhi I, Dated S Nov., 1966 Dear Sir, Sub: Integrated Fertilizer PVC project at Kota, Rajasthan Rail movement of Naptha.
397 Ref: Your letter No. SFC/Gen 72 dated 5.9.1966 I am directed to state that the Railway Board agree to quote a special rate equal o class 85 B (Special) CC: K for transport of Naptha in train loads from Bombay or Koyali to Kota, for manufacture of fertilizers.
The proposed special rate will apply at owner 's risk.
Since the special rate is being quoted ahead of the actual setting up of the factory the rate may need to be reviewed when the traffic actually begins to move.
The Railway may accordingly be approached before the traffic actually starts moving.
Yours faithfully, Sd/ R.L. Sharma for Secretary Railway Board" What does this letter mean? The first part of the letter offering the concessional rate equal to class 85 B (Special) has been completely watered down in the second part of the letter.
It has been expressly stated that the rate may need be reviewed when the traffic actually begins to move.
The company was put to notice that it has to again approach the Railway Administration.
The Railway authorities now states that they have reviewed the whole matter and found no justification to offer a concessional freight rate for Naptha, since fertilizers are deliberately given a low classification in the tariff.
From the tenor of exhibit S the Railways are entitled to state so, and it does not amount to resiling from the earlier assurance.
No question of estoppel arises in favour of appellant out of the representation made in exhibit CS.
We, therefore, agree with the conclusion of the Tribunal but not for all the reasons stated.
In the result the appeal fails and is dismissed.
In the circumstances.
however, we make no order as to costs.
S.L. Appeal dismissed.
| Rule 63 of the U.P. State Handloom Corporation Rules stipulates termination of temporary service on one month 's notice on either side.
Rule 68 provides that if the punishment of discharge or dismissal is imposed, an enquiry commensurate with requirements of natural justice is a condition precedent.
The appellant was employed in the aforesaid Corporation on temporary basis.
The order of appointment stated that his services were liable for termination with one month 's notice or one month 's pay in lieu of notice on either side.
He was placed under suspension in November 1982 on charges of misconduct, dereliction of duty, mismanagement and showing fictitious production entries.
That order, however, was revoked in November 1983 and his services terminated forthwith by notice entitling him to one month 's salary.
The High Court held that the termination was not punitive and the question of breach of principles of natural justice did not arise.
In this appeal by special leave it was contended that the appellant was entitled to the protection of Articles 14 and 16 of the Constitution, that though his order of termination was innocuous, the setting in which it has been made clearly makes it an order of dismissal punitive in character and that as his service was determined by the order attaching stigma the appellant was entitled to a hearing commensurate with rules of natural justice and in the absence of the opportunity of being heard the order was liable to be quashed.
Dismissing the appeal, ^ HELD: As long as the adverse feature of the employee remains the motive and does not become transferred as the foundation of the order of termination, it is unexceptionable.
Whether 'motive ' has be 502 come the foundation has to be decided by the Court with reference to the facts of a given case.
[510 G] It is necessary for every employer to assess the service of the temporary incumbent in order to find out as to whether he should be confirmed in his appointment or his services should be terminated.
It may also be necessary to find out whether the officer should be tried for some more time on temporary basis.
Since both in regard to a temporary employee or an officiating employee in a higher post such an assessment would be necessary, merely because the appropriate authority proceeds to make an assessment and leaves a record of its views the same would not be available to be utilised to make the order of termination following such assessment punitive in character.
[509G H; 510A B] There may be cases where an enquiry is undertaken and prima facie material for serious charges are found; by disclosing the result of such preliminary enquiry, the officer concerned is put under suspension in contemplation of disciplinary action.
After such steps have been taken, the employer/appropriate authority decides not to continue the departmental proceedings but makes an order terminating the service.
[510C D] In the instant case the appellant was a temporary servant and had no right to the post.
Both under the contract of service as also the Service Rules governing him the employer had the right to terminate his services by giving him one month 's notice.
The order of termination was in innocuous terms.
It did not cast any stigma on him nor did it visit him with any evil consequences.
The order was, therefore, not open to challenge.
[S11C D] The appellant is not entitled to compensation under the law.
But since he has been put out of employment at an advanced age and it may be difficult for him to get an alternate employment, the Corporation to pay him a consolidated amount of Rs.25,000.
[511F] Purshotam Lal Dhingra vs Union of India, ; ; Champaklal Chimanlal Shah vs The Union of India, ; Shamsher Singh & Anr.
vs State of Punjab, ; ; Regional Manager & Anr.
vs Pawan Kumar Dubey; ; ; State of U.P. vs Ram Chandra Trivedi, and State of Orissa & Anr.
vs Ram Narayan Dass, [19611 I SCR 606, referred to.
|
N: Criminal Appeal No. 329 of 1975.
From the Judgment & Order dated the 15th April, 1975 of the Allahabad High Court in Crl.
A. No. 1144 of 1971.
R.L. Kohli and S.K. Sabharwal for the Appellants.
D.P. Uniyal and R.K. Bhatt for the Respondent.
The following Judgments were delivered: FAZAL ALI, J.
This appeal by special leave is directed against a judgment dated 15.4.1975 of the Allahabad High Court by which the Judges of the High Court while acquitting the accused, Anil Kumar and Satish Kumar, altered the conviction of Ram Karan, Sunil Kumar and Ved Prakash from one under sections 302 and 307 read with section 149 I.P.C. to one under sections 302 and 307 read with section 34, I.P.C. and confirmed the sentences of imprisonment for life imposed on these appellants.
The prosecution case has been detailed in the judgment of the High Court as also in the judgment of our learned Brother Varadarajan J. and it is not necessary to repeat the same.
So far as the question of occurrence is concerned that has been proved beyond reasonable doubt as pointed out by Brother Varadarajan, J. as also by the High Court.
We also agree with the appreciation of the evidence by Brother Varadarajan, J. and his conclusion that the two deceased died at the hands of the appellants.
The entire occurrence seems to have been the result of a chronic land dispute between the parties in which several commissions were issued and which ultimately proved futile.
The prosecution has no doubt proved that the two persons were killed at the hands of the accused and that the occurrence had taken place while the Commissioners were present at the spot though they were not able to see the actual assault and were, therefore, not in a position to depose the detailed manner in which the assault had taken place.
The only serious question on which we would like to sound a discordant note from our Brother Varadarajan, J. is as to the actual nature of the offence which had been committed by the appellants, Sunil Kumar and Ved Prakash.
It would appear from the evidence 398 of CW 1 as also other eye witnesses that the accused were also assaulted with knife and one of them, Chhotey Lal, died as a result of the injuries caused to him.
The medical evidence as also the evidence of CW 1 clearly shows that there was exchange of hot words, followed by the assault on the appellants which, according to the prosecution, was a result of the exercise of self defence by the prosecution party, particularly Dinesh Chandra.
In fact, the learned Sessions Judge and the High Court held that the accused were the aggressors and, therefore, they had no right of private defence.
In order to ascertain whether the accused had the right of private defence, the genesis of the incident has to be traced.
Now, in this case the prosecution witnesses being partisan, the only important injured witness Dinesh Chandra, PW 11 being the son of the deceased, it would be necessary to ascertain with accuracy the genesis of the quarrel as revealed from the evidence of Court witnesses not shown to be partisan.
CW 1, Prem Narain Mathur is the practising advocate and was appointed as a Commissioner.
He was accompanied by Mahesh Chandra, Vakil, CW 3, advocate appearing on behalf of the plaintiffs (accused Ram Karan) in the suit in which Commission was issued and Shri Jafar Imam, CW 2, learned advocate appearing for the defendants in the same suit.
C.W. 1 and C.W. 3 were at the house of accused 1 Ram Karan.
C.W. 1 says that several persons assembled at that time at the house of Ram Karan.
He is a bit vague but he says that at that time after tea was served and he was about to leave that place he saw a person lying on the pavement of the road.
This injured person was lying in front of the house of accused 1 Ram Karan.
This statement has not been questioned in cross examination nor adversely commented upon.
It gives a clue to the genesis of the occurrence.
After measurements were taken as directed by the Court, C.W. 1 and C.W. 3 came to the house of accused 1 Ram Karan.
Some persons collected there.
According to C.W. 1 injured persons were seen lying in front of the house of accused 1 and that was none else than the deceased.
If amongst those who collected at the house were the two deceased and P.W. 11 Dinesh Chandra, another injured witness on the side of the prosecution, it is crystal clear that the prosecution witnesses and the two deceased Prakash Chandra and Umesh Chandra had come to the house of accused 1 Ram Karan.
How, if one of them was armed with a knife, they must have come with a view to either picking up quarrel or to guard themselves.
The occurrence took place in front of the house of 399 accused 1.
On the side of the prosecution Prakash Chandra and Umesh Chandra received fatal injuries and Dinesh Chandra was also injured.
However, on the side of the accused Chhotelal, son of accused 1 Ram Karan, suffered six injuries one of which proved fatal and he died.
Accused Ram Karan himself was also injured.
Injuries on both sides appear to have been caused with sharp cutting weapon like knife.
It is easy to infer the genesis of the dispute.
Both the parties were completely exasperated with the litigation.
Accused 1 Ram Karan had summoned Commission on five to six occasions and his attempt to end the litigation was thwarted by objections being taken on the side of Prakash Chandra deceased.
Therefore, both sides were in an exasperated mood.
Suddenly at the spur of the moment there ensued a quarrel.
Prakash Chandra and Umesh Chandra on the side of the prosecution died and Chhotelal on the side of the accused died and each of them met a homicidal death.
On the side of the prosecution Dinesh Chandra was injured, on the side of accused Ram Karan was injured.
From this an irresistible inference ensues that exception 4 to section 300, I.P.C. would be attracted.
The exception provides that culpable homicide is not murder, if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offenders having taken undue advantage or acted in a cruel or unusual manner.
All the ingredients of Exception 4 are satisfied.
Prakash Chandra and his two sons and others came to the house of accused 1 to protest for the work of the Commissioner.
Dinesh Chandra amongst them was armed with a knife.
May be, he may be usually carrying the same for his safety.
The incident occurred in front of the house of accused 1 upon a sudden quarrel by this confrontation with eyebrows having been raised because of a persistent litigation, the occurrence took place.
There is no clear evidence to show that any one took undue advantage or acted in a cruel or unusual manner.
Taking an overall view of the situation, we find no evidence of any intention to kill the two deceased on the part of the accused because the occurrence itself had taken place suddenly when, to begin with, the entire episode started for the particular purpose of partitioning the land by the Commissioners who had visited the village.
In these circumstances we are satisfied that Exception 4 of section 300, I.P.C. is attracted and the offence of murder would be reduced to culpable homicide in respect of accused Sunil Kumar and Ved Prakash and, therefore, they would be guilty of committing 400 an offence under section 304(1)/34 I.P.C. and they should be convicted accordingly.
To this extent, therefore, we are unable to agree with Brother Varadarajan, J. that the conviction of the appellants Sunil Kumar and Ved Prakash under section 302 read with section 34 of the I.P.C. should be confirmed.
We, therefore, allow this appeal to the extent that the conviction of Sunil Kumar and Ved Prakash are altered from one under section 302 read with section 34 of the I.P.C. to that under section 304(1)/34 I.P.C. and they are sentenced to rigorous imprisonment for seven years.
Conviction and sentences under section 307/34, I.P.C. are maintained and sentences awarded have already been directed to run concurrently.
We allow the appeal of Ram Karan as indicated by Brother Varadarajan, J. VARADARAJAN, J.
This Criminal Appeal by special leave is directed against the judgment of a Division Bench of the Allahabad High Court in Criminal Appeal No. 1144 of 1971, whereby the learned Judges, while acquitting two appellants Anil Kumar and Satish Kumar of the charges, altered the conviction of Ram Karan, Sunil Kumar and Ved Prakash, appellants in this Criminal Appeal, under section 302 and 307, both read with section 149 I.P.C., into one under sections 302 and 307 both read with section 34 I.P.C. and confirmed the sentences of imprisonment for life for each of the two counts of murder of Prakash Chandra and Umesh Chandra and rigorous imprisonment for four years for attempt to murder Dinesh Chandra (P.W. 11) to run concurrently and set aside the conviction of the appellant Ram Karan under section 147 and the other two appellants under section 148 I.P.C.
The first appellant Ram Karan is the father of other appellants Sunil Kumar and Ved Prakash and also of Anil Kumar and Satish Kumar, who have been acquitted by the High Court as well as of deceased Chhotey Lal.
The learned Sessions Judge who tried the case convicted Ram Karan and all his four sons, Sunil Kumar, Anil Kumar, Ved Prakash and Satish Kumar under section 302 read with section 149 I.P.C. (two counts) and section 307 read with section 149 I.P.C. and sentenced them to undergo imprisonment for life on each of the two counts under section 302 read with section 149 I.P.C. and to imprisonment for four years under section 307 read with section 149 I.P.C. He convicted Ram Karan under section 147 and his aforesaid four sons under section 148 I.P.C. and sentenced Ram Karan to undergo rigorous imprisonment 401 for one year and his sons to undergo rigorous imprisonment for two years under section 147 and section 148 I.P.C. respectively.
The case of the prosecution was this: The deceased Prakash Chandra was the father of the deceased Umesh Chandra and the injured witness Dinesh Chandra (P.W. 11) as well as of Gyan Chand (P.W. 1).
Prakash Chandra and his sons were living in Seohara town, Bijnor district.
The appellant Ram Karan and his five sons including the deceased Chhotey Lal were living in another house in the same town as the neighbours of Prakash Chandra and his sons.
Prakash Chandra and his sons built a new house on a vacant land which existed between these two houses about three years prior to the occurrence in this case which has taken place at about 1.00 p.m. on 6.9.1970.
The appellant Ram Karan and five others filed Civil Suit No. 34 of 1967 in the court of the Munsif, Nagina against Prakash Chandra and his brother Gopi Chandra and one Krishna Devi, alleging that while constructing the new house Prakash Chandra had encroached upon a portion of their land.
In that suit, Ram Karan got Commissioners appointed by the court on five or six occasions for taking measurements of the properties with the object of proving his case of encroachment by Prakash Chandra.
But those Commissioners ' reports were set aside on the objection raised by Prakash Chandra and the other defendents.
The last Advocate Commissioner Mr. Mathur (C.W. 1) visited the spot on 6.9.1970, accompanied by Mr. Zafar Hussain (C.W. 2) who appeared for Prakash Chandra and another and Mr. Mahesh Chand (C.W. 3) who appeared for Ram Karan.
After the completion of the survey work at about 12.30 p.m. all the three lawyers were standing and talking in front of Ram Karan 's baithak at about 1.00 p.m.
Then Prakash Chandra and Umesh Chandra came there to talk with the Commissioner.
Ram Karan, who was present there along with his five sons, did not like that interference of Prakash Chandra and Umesh Chandra with the Commissioner.
He stated that he has spent thousands of rupees for taking out the commissions and that the reports of the Commissioners were set aside on the objection of Prakash Chandra.
So saying, he instigated his sons to kill Prakash Chandra and his sons.
Thereupon, Chhotey Lal and Ved Prakash attacked Prakash Chandra with knives while Sunil Kumar, Anil Kumar and Satish attacked Umesh Chandra with knives.
On seeing Dinesh Chandra (P.W. 11) who rushed meanwhile from the eastern side to help his father and brother, Ram Karan instigated his sons to attack him and caught hold of him by 402 his waist, and all his five sons attacked him and inflicted injuries.
Then P.W. 11 took out a knife from his pent pocket and wielded it against Ram Karan and Chhotey Lal in self defence and they sustained injuries.
P.W. 11 received injuries and fell down.
Gyan Chandra (P.W. 1), who was seeing the occurrence, ran to his house along with some others and bolted the door when Sunil Kumar, Anil Kumar and Satish chased him for attacking him.
Abdul Wahid, P.W. 10, and others who were witnessing the occurrence raised an alarm, and Ram Karan and his sons ran away.
Gyan Chand, (P.W. 1) came out of his house sometime later and found his father Prakash Chandra and brother Umesh Chandra dead and Dinesh Chandra (P.W. 11) lying with injuries.
He prepared the report, exhibit Ka. 3 and proceeded in a jeep with his brother Dinesh Chandra (P.W. 11), to Seohara Police Station situate about half a mile away and handed over that report at 1.30 p.m. Dinesh Chandra (P.W. 11) was taken to Dhampur hospital after he was given first aid by a Doctor on the way.
He was examined at the Dhampur hospital by Dr. Bagchi, P.W. 3 who found on his person an abrasion and nine incised wounds of which injury No. 7 on the right side of the chest through which blood and air were coming out was serious and the rest were simple.
The dead bodies of Prakash Chandra and Umesh Chandra which were found lying in front of their house where blood also was found, were later sent for autopsy.
Ram Karan and Chhotey Lal went to the Government hospital, Bijnor where they were examined by Dr. Sarin (P.W. 2) at 4 p.m. and 4.15 p.m. respectively on 6.9.1970.
P.W. 2 found one punctured wound and four incised wounds on Chhotey Lal and three incised wounds on Ram Karan.
The injuries on both of them were fresh and those on Ram Karan were simple while injury No. 1 on Chhotey Lal, namely, a punctured wound which was lung deep and anterior to the left nipple, was grievous and the rest were simple.
The injuries on both could, in the opinion of P.W. 2, have been caused by knife.
P.W. 2 issued the wound certificates exhibit Ka. 12 and Ka. 13.
Ram Karan 's report was lodged at the Police Station at 10.30 p.m. on 6.9.1970.
Chhotey Lal died in the District hospital, Bijnor on 10.9.1970.
Dr. Zuber conducted autopsy on the bodies of Prakash Chandra and Umesh Chandra on 7.9.1970 and found nine antemortem, injuries, of which six were incised wounds, on the body of Prakash Chandra and six antemortem incised wounds on the body 403 of Umesh Chandra and he opined that the death of both of them was due to shock and haemorrhage resulting from the incised injuries.
exhibit Ka. 1 and Ka. 2 are the postmortem certificates relating to Prakash Chandra and Umesh Chandra issued by Dr. Zuber who was examined as P.W. 1 in the Committing Magistrate 's Court (exhibit Ka. 37).
Dr. Dua (C.W. 4) conducted autopsy on the body of Chhotey Lal on 11.9.1970 and found an abrasion and five incised wounds which were sufficient in the ordinary course of nature to cause death.
The prosecution 's case rests mainly on the evidence of Gyan Chand (P.W. 1), Abdul Wahid (P.W. 10) and Dinesh Chandra (P.W. 11).
As stated earlier P.Ws 1 and 11 are the sons of deceased Prakash Chandra and brothers of the other deceased Umesh Chandra.
P.W. 11 had received injuries during the occurrence and P.W. 1 is the witness who had lodged the First Information Report (exhibit K. 3) in the Seohara Police Station at the earliest opportunity at 1.30 p.m. soon after the occurrence which had taken place at about 1.00 p.m.
These three witnesses were put forward as eyewitnesses and they have deposed in support of the case of the prosecution.
The accused put forward their version of the case.
According to the accused, after the Commissioner (C.W. 1) finished his work and went to the house of the appellant Ram Karan, Prakash Chandra and his sons Umesh Chandra and Dinesh Chandra (P.W. 11) came to the baithak of Ram Karan and attacked Ram Karan and deceased Chhotey Lal with knives and thereupon they grappled with those three persons and wrested the knives from them and attacked them in self defence.
The accused examined D.W. 1 on their behalf.
The court examined the Commissioner and the counsel of the parties in the civil suit as C. Ws. 1 to 3 and the Doctor who conducted autopsy on the body of Chhotey Lal as C.W. 4.
The evidence of C.W. 1 is that after he completed taking measurements he went along with Ram Karan 's counsel Mr. Mahesh Chandra (C.W. 3) to the baithak of Ram Karan 's house, that both of them came out of the house 8 or 10 minutes later, that when he advanced from the door of the baithak he saw a person lying injured on the pavement of the road and another injured person standing there, that a third person came and struck the injured person who was standing, and that he and C.W. 3 left the place thereafter.
The evidence of C.W. 3 is that he and C.W. 1 who had gone to the baithak of Ram Karan 's house after C.W. 1 had 404 taken the measurements, came out of the baithak 5 or 7 minutes later, and saw Chhotey Lal grappling with a young man, that in the course of grappling Chhotey Lal fell down bleeding, that Chhotey Lal managed to get up and snatched the weapon of the assailant and struck him with it, that Prakash Chandra came to the rescue of the young man and Chhotey Lal struck him with the same weapon and both the young man and Prakash Chandra fell down after receiving injuries from Chhotey Lal, and that on account of the incident he went away along with C.W. has added that soon after he went and sat in the baithak of Ram Karan 's house, Zafar Hussain (C.W. 2) came and said something to C.W. 1 from beyond the door of the baithak.
The evidence of Zafar Hussain (C.W. 2) is that after measurements had been taken C. Ws. 1 and 3 went to the baithak of Ram Karan 's house while he sat in the verandah of the old haveli of Prakash Chandra, that he and Prakash Chandra 's son, who is now no more, thereafter went near the Commissioner (C.W 1) and he told C.W. 1 that he may hear what Prakash Chandra wanted to say, that after saying so he got back for meeting another person while Prakash Chandra and his son remained there, that after reaching the verandah of Prakash Chandra he went away with Mehboob Ali who was waiting for him to Mehboob Ali 's house and that no quarrel took place when he was present there though when he was returning to the verandah of Prakash Chandra 's house he heard some hot words being exchanged near the baithak of Ram Karan 's house.
The learned Sessions Judge has observed in his judgment that the evidence of C.Ws. 1 to 3 is contradictory, unnatural and not truthful.
He found that P.W. 1 's report (Ka. 3) was lodged in the Police Station at 1.30 p.m. soon after the occurrence had taken place at about 1.00 p.m. and that there has been no attempt at concoction in this case.
He rejected the contention that Abdul Wahid, (P.W. 10) had any reason to depose falsely against the appellant Ved Prakash and found his evidence to be reliable.
He observed that though Prakash Chandra had been working as an Engineer in a sugar mill at Seohara and P.W. 10 was employed in the engineering department, P.W. 10 was actually working under one Bachcha Lal and is an independent witness.
P.W. 1 has stated in his evidence that Prakash Chandra, Umesh Chandra and Ram Karan did not have any weapon at the time of the occurrence.
The evidence of the injured witness P.W. 11 is that when he returned home from Moradabad at about 12.30 p.m. on the day of occurrence 405 he saw his father Prakash Chandra and brother Umesh Chandra lying in a pool of blood and that on seeing him Ram Karan shouted that he also should be killed and caught hold of him by his waist and that he was attacked with knives by the accused persons including Ram Karan and he wielded in self defence the knife which he had purchased on that day for his work.
The learned Sessions Judge accepted the evidence of P.Ws. 1, 10 and 11 and commented upon Ram Karan and Chhotey Lal going to the hospital at Bijnor without arranging for a report being given at the Police Station at Seohara in time and held that the accused were the aggressors and that Dinesh Chandra (P.W. 11) caused injuries to Ram Karan and the deceased Chhotey Lal in the exercise of the right of private defence.
Accordingly he found the accused guilty and convicted them and sentenced them as mentioned above.
The High Court also rejected the defence theory that Chhotey Lal was attacked by three persons armed with knife, chura and khukhri having regard to the fact that he had only one lung deep punctured wound and the other four wounds were only skin deep and of very minor dimensions.
The learned Judges of the High Court found that the name of Anil Kumar is not mentioned in the First Information Report (exhibit Ka. 3) but instead the name of one Virendra is mentioned and that it appears from the evidence of P.W. 1 that Virendra is the name of Prakash Chandra 's brother.
They found that in the statement of P.W. 11 recorded as dying declaration, Sushil Kumar is mentioned instead of Satish Kumar.
In these circumstances the learned Judges found that there is reasonable doubt regarding the participation of the accused Anil Kumar and Satish Kumar and they gave the benefit of that doubt to those two appellants before them and acquitted them.
In other respects, the learned Judges accepted the evidence of P.Ws. 1, 10 and 11 regarding the occurrence and rejected the defence version and held the appellants guilty under section 302 read with section 34 in respect of the murder of Prakash Chandra and Umesh Chandra and under section 307 read with section 34 in respect of Dinesh Chandra, (P.W. 11) and convicted them accordingly and sentenced them to undergo imprisonment for life under section 302 read with section 34 I.P.C. and rigorous imprisonment for four years under section 307 read with section 34 I.P.C. 406 We perused the records and the judgments of the learned Sessions Judge and of the learned Judges of the High Court and heard the arguments of Mr. R.L. Kohli, Senior Advocate who appeared for the appellants and of Mr. D.P. Uniyal, Senior Advocate who appeared for the respondent State of U.P.
We were taken through the evidence of P.Ws. 1, 10 and 11.
The learned Sessions Judge has observed in his judgment that the evidence of the three lawyers C.Ws. 1 to 3 is contradictory, unnatural and not truthful and that if they had given honest evidence it would have been easier for the court to conclude which side was the aggressor.
This observation of the learned Sessions Judge appears to be too sweeping and not correct at least with reference to C.W. 2 who has professed ignorance about the actual occurrence in the case and has stated that he left after asking C.W. 1 from outside the baithak of Ram Karan 's house to hear what Prakash Chandra who had gone with him and his deceased son wanted to tell him because another person Mehboob Ali with whom he later went to his house was waiting for him in the verandah of Prakash Chandra 's house.
The evidence of C.W. 2 that no quarrel took place when he was present there though when he was returning to the verandah of Prakash Chandra 's house he heard some hot words being exchanged near the baithak of Ram Karan 's house, is, in a way, corroborated by the evidence of P.W. 1.
P.W. 1 has stated that when exchange of hot words started the Commissioner and Vakils of the parties moved from there to the road and that just when Ram Karan 's Vakil had gone a short distance from Ram Karan 's house, Ram Karan and others stated that "they have got our thousands of rupees spent over litigation.
We have become tired of getting commissions issued.
Kill them today so that the trouble may be ended for ever.
At that time all the five sons of Ram Karan, Chhotey Lal, Ved Prakash, Satish Kumar, Sunil Kumar and Anil Kumar were present, and when Ram Karan said so all five sons whipped out knives and started assulting. .".
This portion of the evidence of P.W. 1 is to the effect that the lawyers C.Ws. 1 3 were not present at the time of the actual assault on the deceased Prakash Chandra and Umesh Chandra as a well as on P.W. 11.
Even P.W. 10 has stated in his evidence that "when he reached near dharmshala at about 12.45 p.m. he heard the shouts of Ram Karan from his house situate at a distance of 30 paces, that when he reached the end of the road he was in a position to see the house of Ram Karan, that on hearing the shouts he proceeded towards the place from where they came and stood near 407 the wall and found three Vakils present and also Prakash Chandra and Umesh Chandra, that as soon as he reached the place, the Vakils left the place, that Ram Karan then stated that he got the Commissioner appointed 5 or 6 times and spent several thousands of rupees and he should be killed and that when Ram Karan said so his sons Chhotey Lal and Ved Prakash began to attack Prakash Chandra with knives, that Sunil Kumar and Ram Karan 's other sons began to assault Umesh Chandra with knives, that during the marpit Prakash Chandra and Umesh Chandra fell down after receiving injuries, that thereafter Dinesh Chandra, son of Prakash Chandra came from the eastern direction, and on seeing him Ram Karan shouted that he should also be done to death, and he caught hold of Dinesh Chandra by his waist, and that all the four boys and deceased Chhotey Lal began to assault Dinesh Chandra with knives, and Dinesh Chandra wielded his knife in self defence and caused injuries to Ram Karan and Chhotey Lal and thereafter fell down and became unconscious. ".
This portion of the evidence of P.W. 10 also shows that C.Ws. 1 to 3 left the place soon after exchange of hot words began between the two sides.
Therefore, I am of the opinion that there is no reason to reject the evidence of C.W. 2 that no quarrel took place when he was present near about the scene of occurrence.
In the circumstances of the case, it is very probable that before serious trouble started from the exchange of hot words, C.Ws. 1 to 3.
the Commissioner and the counsel for both the parties in the civil suit, left the place and were not present at the time of the actual occurrence as stated by P.Ws. 1 and 10.
Mr. R.L. Kohli drew our attention to some portions of the judgment of the learned Judges of the High Court and submitted that the observation of the learned Judges that from the side of the defence it was not suggested to any witness that Abdul Wahid (P.W. 10) was a different man and that he has been introduced because the real Abdul Wahid was not prepared to support the prosecution case is incorrect.
The learned counsel further submitted that the observation of the learned Judges that the presence of Gyan Chand (P.W. 1) at the time of the occurrence does not appear to have been challenged by the defence is also not correct.
This criticism of the learned counsel for the appellants appears to be well founded, for I find that a suggestion has been made to P.W. 10 in cross examination and he has admitted that there is also 408 another person named Wahid son of Abdul Rehman in his mohalla and that that person was an accused in a rioting case.
And in the cross examination of P.W. 1 it has been clearly suggested that he was not present at the spot and that he prepared the report exhibit Ka. 3 afterwards with some consultation.
P.W. 1 has no doubt denied that suggestion and stated that he was present at the spot and that he himself wrote the report exhibit Ka. 3 before he came out of the house by opening the door.
The learned Judges have stated in their judgment that after Ram Karan stated that he has spent thousands of rupees on commissions and every time the report of the Commissioner was set aside on the objection of Prakash Chandra and he instigated his sons to kill Prakash Chandra and Umesh Chandra, all the five sons of Ram Karan started giving knife blows to Prakash Chandra and Umesh Chandra and both of them fell down.
This portion of the judgment of the learned Judges is to the effect that all the five sons of Ram Karan including the deceased Chhotey Lal attacked the deceased Prakash Chandra and Umesh Chandra whereas it is the case of the prosecution as brought out in the evidence of P.W. 1 that after Ram Karan instigated his sons to open the attack only Chhotey Lal and Ved Prakash attacked Prakash Chandra with knives and only Sunil Kumar.
Anil Kumar and Satish Kumar attacked Umesh Chandra with knives.
It is unfortunate that these inaccuracies have crept into the judgment of the learned Judges of the High Court.
But on an overall consideration of the entire material on record and the evidence in the case in the light of the arguments of the learned counsel for the parties I am of the opinion that the appreciation of the evidence of P.Ws. 1, 10 and 11 by the learned Sessions Judge and the learned Judges of the High Court in so far as the appellants Sunil Kumar and Ved Prakash are concerned is correct and that the evidence of P.Ws. 1 and 10 proves beyond reasonable doubt that these two appellants Sunil Kumar and Ved Prakash attacked the deceased Prakash Chandra and Umesh Chandra with knives as a result of which both of them, who had no weapons died on the spot, and the evidence of P.Ws. 10 and 11 proves satisfactorily and beyond any reasonable doubt that these two appellants attacked P.W. 11 with knives with such intention that if he had died as a result of the injuries sustained by him they would be guilty of murder in furtherance of their common intention to murder.
The dead bodies of Prakash Chandra and Umesh Chandra and blood were found in front of the house of both the 409 deceased and P.W. 11.
Both the deceased had no weapons and they had been attacked before P.W. 11 arrived and wield his knife against Ram Karan and Chhotey Lal.
The main occurrence had taken place in front of the house of both the deceased and P.W. 11.
Before the trial court it was not submitted that the attack by the accused persons on both the deceased Prakash Chandra and Umesh Chandra and P.W. 11 was without any pre meditation in a sudden fight in the heat of passion upon a sudden quarrel.
Nor is it a case in which it could be said that the offenders had not taken undue advantage or had not acted in a cruel or unusual manner.
No such argument was put forward even before the High Court to bring the main occurrence under section 304 (Part I) I.P.C.
Since I have found that the occurrence has taken place in front of the house of the two deceased and P.W. 11 in this case and that the accused persons were the aggressors neither Exception 2 nor Exception 4 to section 300 I.P.C. would apply to the facts of this case and the offence cannot be brought under section 304 (Part I) I.P.C.
In these circumstances, I agree with the learned Sessions Judge that the appellants Sunil Kumar and Ved Prakash were the aggressors and find that they have been rightly convicted under section 302 read with section 34 I.P.C. for the offence of murder of those two persons and under section 307 read with section 34 I.P.C. with reference to P.W. 11.
But I am of the opinion, having regard to the age of appellant Ram Karan, who was about 70 years old at the time of the occurrence that there is a reasonable doubt as to whether he would have caught hold of the young man Dinesh Chandra (P.W. 11) by his waist and whether he would have asked all his sons to attack and kill Prakash Chandra and his son.
I therefore, give the benefit of this reasonable doubt to the appellant Ram Karan and set aside his conviction under section 302 read with s.34 (two counts) and under section 307 read with section 34 and acquit him and direct him to be set at liberty forthwith if he is in custody and his presence is not required in connection with any other case.
In other respects I dismiss the criminal appeal and confirm the conviction of Sunil Kumar and Ved Prakash and the sentences awarded to them.
In accordance with the opinion of the majority, the appeal is allowed to the extent that the conviction of Ram Karan under section 302 read with section 34 (two counts) and under section 307 read with section 34 of the Indian Penal Code is set aside and he is acquitted and that convictions of the appellants, Sunil Kumar and Ved Prakash, are 410 altered from one under section 302/34, I.P.C. to that under section 304(1)/34, IPC and they are sentenced to rigorous imprisonment for seven years.
Conviction and sentences under section 307/34, I.P.C. are maintained and sentences awarded have already been directed to run concurrently.
S.R. Appeal partly allowed.
| The raw material for manufacturing sugar or Khandsari sugar is sugarcane.
When the vacuum pan process is employed the end product is called sugar and when the open pan process is employed the end product is called Khandsari sugar.
In order to extend protection to the farmers who had undertaken raising of sugarcane crop, the Central Government issued the Sugarcane (Control) Order 1966.
Clause 3 of this Order conferred power on the Central Government to fix minimum price of sugarcane to be paid by producers of sugar for sugarcane purchased by them.
Clause 4 conferred similar power to fix the minimum price to be paid by the producers of khandsari sugar for the sugarcane purchased.
Clause 3A which was introduced on September 24, 1976 conferred power on the Central Government and various other authorities to allow a suitable rebate in regard to the weight of the binding material not exceeding 0.625 Kg.
per quintal of sugarcane, when sugarcane was purchased by the producer of the sugar.
Later, Clause 4A was introduced on March 20, 1978 to provide for the rebate that can be deducted from the price paid for sugarcane by producers of khandsari sugar.
The State Government issued a notification on September 3, 1980 to provide that where sugarcane is brought in bundles and is weighed as such, a rebate in regard to the binding material at 0.625 Kg.
per quintal should be allowed.
As there was a printing error in mentioning the figure '0.650 kg. ' a corrigendum was issued to correct it, to '0.625 kg ' per quintal in the notification.
The petitioners in the writ petitions who were manufacturing khandsari sugar by the open pan process assailed the decision of the State Government allowing rebate.
They contended that: (1) the power to prescribe the rate of rebate under the third proviso to clause 4 is conditional upon the fixing of the minimum price of sugarcane and as the pre condition for exercise of that power was not satisfied, the authorities cannot exercise power to prescribe the rate of 372 rebate, (2) if the purchaser and seller of sugarcane are free agents to negotiate the price no useful purpose would be served by prescribing the rate of rebate statutorily.
If higher rebate is to be allowed, the producer of khandsari sugar and the grower of sugarcane would work out the price accordingly and if less rebate is allowed, it will have a direct impact on the negotiated price, (3) assuming that the power to prescribe the rate of rebate under clause 4A read with the third proviso could also be exercised where the price of sugarcane was left to be negotiated between the growers of sugarcane and the producers of khandsari sugar, the quantum of rebate determined must have a reasonable relation to the reality of market situation as well as to prevalent trade practice, (4) assuming that the Central Government was influenced by the report made by the Director, National Sugar Institute the report suggests that the average works out at 0.741 kg per quintal, and consequently there was no justification for further reducing it to 0.625 kg, (5) the notification places a restriction on the freedom of trade guaranteed under Article 19(1) (g) and as it is neither reasonable nor imposed in public interest, it is violative of freedom of trade and therefore void, and (6) in order that a restriction may be reasonable it must have a reasonable relation to the object which the statute seeks to achieve and must not be in excess of that object.
Dismissing the writ petitions.
^ HELD: The State Government notification dated September 3, 1980 directing that where sugarcane is brought in bundles and is weighed as such a rebate in regard to the binding material at 0.625 kg per quintal be allowed, is valid and legal.
The rebate was statutorily prescribed to ensure that sugarcane growers were not at the mercy of the producers of sugar and khandsari sugar.
The statutory rebate serves two fold purpose: (i) it ensures price of sugarcane avoiding impermissible deductions and (ii) it circumvents fraud by making such deductions as would render illusory even the negotiated price, if not fixed price.
The restriction is undoubtedly reasonable and is imposed in the interest of the general public and the guarantee of freedom of trade is not violated.
[376 E; 392 H; 393 A C] 1.
(i) Though clause 3A was inserted in the Control Order in 1976 conferring power on the Central Government or with the approval of the Central Government, on the State Government to allow rebate at 0.625 kg.
per quintal of sugarcane purchased by manufacturers of sugar, such rebate was being prescribed by the Central Government since 1968.
[379 G] (ii) Clause 4 confers power on the Central Government or a State Government with the concurrence of the Central Government to fix the minimum price or the price of sugarcane to be paid by producers of khandsari sugar for sugarcane purchased by them.
Third proviso to clause 4 provides that the Central Government or with the approval of the Central Government the State Government to allow a suitable rebate in the price so fixed.
If the provision were to end with clause 4, the question may arise whether the power to determine rate of rebate can be exercised de hors the power to fix minimum price or price of sugarcane or can be unilaterally exercised.
But the language of the third proviso ". as it may specify, allow a suitable rebate of the price so fixed", indicates that the rebate is co related to the price fixed.
[381 C F] 373 (iii) The rebate contemplated by the third proviso to clause 4 is not necessarily confined to rate of rebate for binding material only but permissible rate of rebate from the price or minimum price fixed under the substantive provision of clause 4 can be prescribed.
[381 H; 382 A] (iv) Clause 4A stands on an independent footing and it is independent of clause 4.
Clause 4A is neither inter dependent nor interrelated to clause 4.
Clause 4A visualises a situation in which either the minimum price of sugarcane is fixed under clause 4 or where no such price if fixed, the price agreed to between the sugarcane grower and the producer who purchased sugarcane and even in this latter situation the power to prescribe rate of rebate only in respect of binding material was conferred on the authorities set out in the third proviso to clause 4A.
Therefore, fixing of the minimum price may be a pre condition to the exercise of power under the third proviso of clause 4, as far as clause 4A is concerned, even where the price to be paid by the producer to the sugarcane grower is the one negotiated between the two, the producer or his agent will have to allow that much rebate and no more for binding material if notified under the third proviso.
This literal construction accords with the intendment of the provision.
[382 B E; 383 G] 2.
(i) Sugarcane is a perishable commodity.
The grower of the sugarcane is at the mercy of producers of sugar or khandsari sugar.
It would be uneconomic for him to transport sugarcane to a long distance.
The product, being perishable and transport over a distance being uneconomic, the grower of sugarcane has limited choice in selecting the producer to whom it could be sold.
Between the producer of khandsari and the grower of sugarcane, the first one is primarily in a position to dominate and dictate and they do not operate on the level of equality.
The grower of sugarcane in relation to the producer of the khandsari sugar would therefore be weaker and requires to be protected.
If the protection of fixing of minimum price is not resorted to because the authorities have information that the grower of sugarcane would be able to obtain a reasonably fair price for his labour, the only thing which is required to be protected against is iniquitous.
unauthorised and impermissible deductions.
In the States of Uttar Pradesh and Bihar the weight of the binding material when sugarcane is brought in bundles to the producer has been a fruitful source for the producers of khandsari sugar to make deductions from the weight of sugarcane delivered to them in an exorbitant quantity so as to deny in real money worth the negotiated price.
[382 H; 388 A D] (ii) While retaining the power to fix minimum price or price to be paid and also in a given situation leaving it to the purchaser of sugarcane to negotiate the price in order to eschew any exploitation of the weaker section between the two, the power to prescribe the rate of rebate was acquired and it can be rightly enforced.
There is therefore no merit in the submission that unless the power to fix the price or minimum price is exercised there is no power to prescribe the rate of rebate.
[383 F G] 3.
The rate of rebate has been determined by the law of averages after collection information from all over the country, and the present rate of rebate 374 is in vogue for over a quarter of a century.
It is therefore difficult to accept the submission that the fixation of rate of rebate for binding material at 0.625 kg.
for the whole country is either arbitrary or unreal or unrelated to trade and practice.
[376 G H] 4.
(i) The differential between what is prescribed and what is calculated as average by the study of the National Sugar Institute is not so wide as to render the prescribed rate arbitrary or unrealistic.
The differentials being within a narrow range, the one which is in vogue for over a quarter of a century cannot be rejected as arbitrary or unrelated to trade and practice.
Nor is the Court competent to work out the exact permissible rebate with mathematical accuracy.
[387 D E] (ii) The rate of rebate set out in the impugned notification bears resemblance to the sample testing of actual weight of binding material used in binding sugarcane when brought in bundles to the khandsari factory.
[388 G] (iii) This does not however imply that no case has been made for upward revision of the rebate.
The Central Government may realistically examine the same before the next crushing season commences.
[388 G] 5.
(i) It would be open to the producer of khandsari sugar to buy sugarcane from the grower who may be asked to bring sugarcane not bound in bundles.
The rebate for binding material is to be allowed only when sugarcane is brought to the khandsari sugar producing unit bound in bundles.
It is always open to the purchaser of sugarcane to insist upon the grower bringing the sugarcane not bound in bundles and he is free to negotiate the price of sugarcane is not fixed and the impugned notification will not even remotely impinge upon his freedom to carry on his trade.
The restriction complained of therefore does not directly and proximately interfere with the exercise of freedom of trade and Article 19(1) (g) is not attracted.
[389 E G] (ii) Producers of sugar and khandsari sugar constitute powerful trade lobby, and this can be taken judicial notice.
Sugar being an essential commodity occasionally kept in short supply and being a commodity needed for consumption by almost the entire population, the powerful industry magnates are in a position to dominate both the growers of sugarcane as also the consumers of the essential commodity.
Number of regulations have been enacted to regulate this powerful combination of manufacturers of sugar and khandsari sugar all over the country for the ultimate benefit of consumers, the farmers the growers of sugarcane.
The marginal farmers, are unable to stand up against the organised industry and need protection for selling at fair price their meagre agricultural produce.
[391 D G] (iii) Sugarcane growers who are farmers cannot negotiate on the footing of equality with the producers of sugar and khandsari sugar.
The State action for the protection of the weaker sections is not only justified but absolutely necessary unless the restriction imposed is excessive.
If price or minimum price of sugarcane is fixed, the producers of sugar would try to circumvent the price or minimum price by unrealistic and impermissible deductions.
The rebate for weight of binding material seems to be a source for indulging in this nefarious, if not wholly fraudulent conduct.
375 6.
To strike the balance between the conflicting interests not only the State acquired power to fix minimum price of sugar and khandsari sugar but that this wholesome effort may not work to the disadvantage of the sugarcane growers another weaker section of the society, the power to prescribe rate of rebate was acquired.
And the power to fix price or minimum price comprehends the power to so regulate supply as to ensure the price so fixed and to ensure that in the name of unauthorised and unwarranted deduction the price fixed or negotiated is not rendered illusory.
[393 G H; 394 A]
|
tion (Criminal) No. 296 of 1989.
(Under Article 32 of the Constitution of India).
U.R. Lalit, Mrs. Rani Chhabra and Ms. Meera Chhiba for the Petitioner.
B. Dutta, Additional Solicitor General, Yogeshwar Pd., Ms. Sucharita, Ms. A Subhashini, Dalveer Bhandari, Ms. Rachna Joshi and Rachna Gupta for the Respondents.
The Judgment of the Court was delivered by DUTT, J.
In this writ petition under Article 32 of the Constitution of India, the mother of the detenu, Shri Pra veen Kumar Gupta, has prayed for the quashing of the deten tion order of her son dated May 6, 1989 passed under sub section (2) read with sub section (3) of section 3 of the , as confirmed by the order dated May 11, 1989 of the State of U.P. on the report of the Advisory Board.
There is also a prayer for issuance of an appropriate writ in the nature of habeas corpus directing the respondents to release the said Praveen Kumar Gupta forthwith.
The grounds of detention, as communicated to the detenu by the District Magistrate, Meerut, are as follows: 243 "That on 30.4.89 at about 9.15 P.M. at Delhi Road, Kesarganj, P.S. Delhi Gate, Meerut, you along with your other accomplice with the common intention to kill Babli showing your wrath gave him a gun injury and also threat ened to give gun shot to those persons who came in his rescue.
On the basis of informa tion given by Mohd. Bhura a Crime Case No. 12 1 was registered against you u/s 307 IPC in P.S. Delhi Gate, Meerut, which is pending.
By your above misdeed fear and terror was spread in the hearts of public in the markets, Mela Manchandi and in the city of Meerut.
Thus you have committed an act which is prejudicial to the maintenance of public order.
You are at present in jail and are trying to be released on bail and there is every possibility of releasing you on bail.
On the basis of above grounds and reasons 1 am satisfied that you are likely to indulge in the activities prejudicial to the public order and public life and with a view to prevent you from acting in any manner prejudicial to the public order and public life, it has become necessary to detain you.
" It is apparent from the grounds of detention that a crime case was registered against him under section 307 IPC and he was arrested and detained in jail.
Along with the grounds of detention, a copy of the report of the Inspector in Charge, P.S. Delhi Gate, Meerut, was also supplied to the detenu in jail.
The relevant por tion of the report is extracted below: "On 30.4.89 at busy road (Delhi Road) at about 21.15 P.M. he without any reasons gave a gun shot to one Babli S/o Sh.
Bhura R/o Mohalla Purwa Hamidnagar who had come for reading Namaz, as a result of which he was seriously injured.
At present he is in serious condition in the hospital.
This site is the most sensi tive area of the city for communal point of view.
On receiving the information of the gun injury to Babli by the Muslim community on the pious occasion of Ramzan there spread great excitement.
Thousands of people from community gathered.
There was 244 an apprehension of communal threat in the city and area.
People closed their shops feeling threat of communal riots and the road became quiet due to fear and terror.
Above all, on receiving the news of this incident the people of famous Manchandi Mela started running to their houses.
This news of fear and terror created due to this incident was also pub lished in the newspaper Amar Ujala on 1.5.89.
Bhura S/o Dilsad R/o 29, Purwa Hamid Hussain got lodged one report in the Police Station Delhi Gate and a Crime Case No. 12 1 of 89 under section 307 IPC is pending consid eration.
Praveen Kumar is in jail for commission of this offence.
Praveen Kumar has given application for bail in the above matter and there is every possibility of his release on bail.
He is a man of strong means.
After release on bail he would again commit such serious act which would be prejudicial to communal harmony and cause adverse reaction in general public especially in Muslim community.
Therefore the detention under Na tional Security Act is recommended to above Praveen.
" At this stage, it may be mentioned that the detenu has since been granted bail, but in view of the order of deten tion, he is not released.
Mr. Lalit, learned Counsel appear ing on behalf of the petitioner, has strongly urged that as the grounds of detention does not disclose any past history of commission of any crime by the detenu and the incident that has been referred to in the grounds being the solitary incident and there having been no materials on record to show that such an incident would be repeated in future, the order of detention is illegal and should be quashed.
Counsel submits that the only ground on which the detaining authori ty had placed.reliance for making the order of detention was that there 'was a chance of the detenu being released on bail by the criminal court and, in that event, it was appre hended that he would act prejudicially to the interest of public order.
It is submitted that such apprehension is not supported by any material on record and, accordingly, the detention order should be quashed.
In support of the above contention, learned Counsel has placed much reliance upon a decision of this Court in Smt.
Shashi Aggarwal vs State of U.P. and others; , In that case, this Court observed as follows: 245 "Every citizen in this country has the right to have recourse to law.
He has the right to move the court for bail when he is arrested under the ordinary law of the land.
If the State thinks that he does not deserve bail the State could oppose the grant of bail.
He cannot, however, be interdicted from moving the court for bail by clamping an order of detention.
The possibility of the court grant ing bail may not be sufficient.
Nor a bald statement that the person would repeat his criminal activities would be enough.
There must also be credible information or cogent reasons apparent on the record that the dete nu, if enlarged on bail, would act prejudi cially to the interest of public order.
" In laying down the above proposition of law, this Court has placed reliance upon its two earlier decisions in Alijan Mian vs District Magistrate, Dhanbad, ; and in Ramesh Yadav vs District Magistrate, Etah, It is true that the incident on April 13, 1989 was a solitary one so far as the detenu was concerned, but the question is whether the incident had prejudicially affected the public order.
In other words, whether it had affected the even tempo of life of the community.
As observed in Alijan Mian 's case (supra), it is for the detaining authori ty to have the subjective satisfaction about the apprehen sion of the breach of the public order and that even one incident may be sufficient to satisfy the detaining authori ty in that regard depending upon the nature of the incident.
It is not disputed by Mr. Lalit that a single incident may disturb the tranquility and the even tempo of life of the community.
In the grounds of detention, it has been stated "By your above misdeed, fear and terror was spread in the hearts of public in the markets, Mela Manchandi and in the city of Meerut.
Thus you have committed an act which is prejudicial to the maintenance of public order.
" This is not a mere bald statement of the detaining authority without any material in support of the same.
We have already extracted above the report of the Inspector in Charge, P.S. Delhi Gate, Meerut, which has been taken into account by the detaining authority at the time he passed the order of detention.
It has been already noticed that a copy of the said report was served on the detenu along with the grounds of detention.
A situation that emerged as a result of the incident, as stated in the said report, was grave and serious and prejudicially affect ed public order.
It may be a solitary incident, but it gave 256 rise to communal tension and there was apprehension of a communal riot as alleged in the report.
The report, in our opinion, is a sufficient material for the subjective satis faction of the detaining authority that there was disturb ance of ,tranquility and harmony of public life.
It is not correct to say that there is no material for the apprehension that if released on bail, the detenu will indulge in such criminal acts affecting public order.
Real ly, the detaining authority had taken into consideration all the circumstances including the! grave and serious situation that emerged as a result of the incident.
In our opinion, when an incident was such that it created communal tension and the authorities were apprehensive of the breaking of a communal riot, such incident in itself may be sufficient and may afford justification for the satisfaction of the detain ing authority for the detention of the detenu in order to prevent him from indulging in such activity prejudicial to public order even though, as submitted by the learned Coun sel, there is no antecedent acts of similar nature or past history of commission of crime by the detenu.
In this con nection, we may refer to a recent decision of this Court in Ayya vs State of U.P. and Another, ; In that case, this Court observed as follows: "Even a single instance of activity tending to harm "public order" might, in the circum stances of its commission, reasonably supply justification for the satisfaction as to a legislative apprehension of a future repeti tion of similar activity to the detriment of "public order".
" The above observation fully supports the view we have taken.
In our opinion, there were cogent reasons apparent on the face of the record justifying the order of detention.
In the circumstances, we are of the view that the deten tion of the petitioner was justified.
The rule nisi is dis charged and the writ petition is dismissed.
N.P.V. Petition dis missed.
| A detention order under sub section (2) read with sub section (3) of Section 3 of the was passed against the detenu on the ground that the detenu, who was in jail in a case registered under Section 307 IPC was trying for release on bail, and there was every possi bility of his being released, and that he was likely to indulge in activities prejudicial to public order and public life.
The order was confirmed by the State Government on the report of the Advisory Board.
In a Writ Petition filed in this Court it was contended that as the grounds of detention did not disclose any past history of any crime by the detenu, nor was there any mate rial on record to show that the incident referred to in the grounds would be repeated in future, the detention order based on a solitary incident and on an apprehension that the detenu was likely to act prejudicially to the interest of public order, in the event of his being released on bail, was illegal.
Dismissing the writ Petition, the Court, HELD: When an incident was such that it created communal tension and the authorities were apprehensive of the break ing of a communal riot, such incident in itself may be sufficient, and may afford justification for the satisfac tion of the detaining authority for the detention of the detenu in order to prevent him from indulging in such activ ity prejudicial to public order even though there is no antecedent act of similar nature or past history of commis sion of crime by the detenu.
[246C D] In the instant case, the situation that emerged as a result of the incident was grave and serious and prejudi cially affected public order.
242 It may be a solitary incident but it gave rise to communal tension and there was apprehension of a communal riot.
The police report on the incident is a sufficient material for the subjective satisfaction of the detaining authority that there was disturbance of tranquility and harmony of public life.
The detaining authority had taken into consideration all the circumstances including the grave and serious situa tion that emerged as a result of the incident.
There were cogent reasons apparent on the face of the record for justi fying the order of detention.
[245H; 246A B] Alijan Mian vs District Magistrate, Dhanbad, ; and Ayya vs State of U.P. and another; , , relied on.
Ramesh Yadav vs District Magistrate, Etah, and Smt.
Shashi Aggarwal vs State of U.P. and others; , , referred to.
|
Civil Appeal No. 1250 of 1968.
(From the Judgment and Order dated 17 4 1967 of the Calcutta High Court in Appeal from Original Decree No. 255/69).
D.V. Patel, H.K. Puri, S.K. Gupta, P. Dayal and M.C. Dhingra for the Appellant.
P.K. Chatterjee, and G.S. Chatterjee, for the Respondent.
JASWANT SINGH, J.
This appeal by certificate granted under Article 133(1)(a) and (c) of the Constitution which is directed against the judgment and decree dated March 25, 1968 of the High Court of Calcutta in Appeal No. 255 of 1963 raises important questions relating to the interpretation of certain provisions of the Bihar Land Reforms Act, 1950 (Act XXX of 1950) (hereinafter referred to as 'the B.L.R. Act ') as also of the Mining Leases (Modification of Terms) Rules, 1956 providing for the modification and alteration of terms and conditions of the mining leases granted prior to the commencement of the Mines and Minerals (Regulation and Development) Act, 1948 (Act 53 of 1948) (hereinafter re ferred to as 'the 1948 Act ') and of the (Act 67 of 1957) (hereinafter referred to as 'the 1957 Act ') which replaced the 1948 Act on June 1, 1958.
The facts and circumstances leading to this appeal are: By an indenture of.
lease dated July 31, 1927 (hereinafter referred to as the 'head lease '), Raja Bishambharnath Sahi (hereinafter referred to as the 'Raja ') who was the sole proprietor of large tracts of land known as the Sonepura estate in Paragana Rohtas in the district of Shahbad in Bihar demised certain blocks of land situate in villages Jaintipur, Nimhath Deodand and Dhanwanti, District Shahbad together with quarries of lime stone (known as Chunhatta Lime Stone Quarries) lying thereunder for a period of 40 years commencing from 1st day of August, 1927, and ending on 31st day of July, 1967, with an option to continue for a further period of 25 years, in consideration of a 'salami and fine ' of Rs. 8,200/ unto Karunaranjan Dutt and Jugal chandra Dutt (hereinafter referred to as 'Dutts ').
By the said indenture, the head lessees inter alia undertook to pay to the Raja during the first 15 years of the said period of 40 years of the lease i.e., from the 1st day of August, 1927, to 31st day of July, 1942, royalty at the rate of annas /10/ (ten) 62 paise for every 100 cubic feet i.e., roughly at 15 1/2 paise per ton of solid lime stone, quarried, raised, got, used or taken out from the demised premises and for the remaining 25 years of the lease i.e. from the 1st day of August, 1942, to 31st day of July, 1967, royalty at the rate of annas /15/ (fifteen) 94 paise instead of annas /10/ (ten) for every 100 cubic feet i.e. roughly at 24 paise per ton of solid lime stone, quarried, raised, got, used or taken out from the demised premises.
The aforesaid royalty was made payable quarterly i.e. after every three months on the fixed dates specified in the indenture of lease.
The head lessees also undertook to pay yearly rent of annas /6/ (sux) per acre subject to the maximum of Rs. 100/ for so much of the surface land as was to be entered upon, used or occupied by them for the purpose of placing, stocking and beeping stones or waste materials and rubbish etc.
The lease deed further provided as follows . "That the 'LESSEES ' shall be at liberty ,red competent without obtaining any further consent of the "LESSOR" to 362 assign and transfer this lease or sublet or part with the possession of the demised premises or any part thereof to any person, firm or company whether incorporated or otherwise and no mutation fee or Nazarana or premium shall be charged by the 'LES SOR ' in case of such transfer or subletting for the first time, but in case of subsequent transfer or sub letting a fee of Rupees five hundred (500/ ) shall be payable to the 'LESSOR ' for each such occasion.
If the rents and royalties hereby reserved or any part thereof or any other moneys hereunder payable by the 'LESSEES ' to the 'LESSOR ' shall remain unpaid for three months after the same shall become due and payable the 'LESSEES ' shall pay interest thereon at the rate of twelve (12) per cent per annum calculated from the due date until payment.
If the same shall remain unpaid for three years consecutively or if there be any breach of any of the conveyants and agreements herein con tained and on the part of the 'LESSEE ' to be per formed and observed then this lease shall be liable to be forfeited under an order of a competent court besides any other relief hereunder and under the law then prevailing.
" On October 12, 1928, the head lessees i.e. Dutts execut ed a sublease of the aforesaid blocks of land and quarries of lime stone for the residue of the period of the aforesaid indenture of lease dated July, 1927 except the last day thereof for a consideration of Rs. 5,000/in favour of the appellant.
The appellant undertook to pay to Dutts the same royalty and rent as were payable by Dutts to the Raja during the period of the aforesaid head lease in respect of lime stone quarried (except for ballast or building pur poses).
In addition, the appellant undertook to pay to the head lessees during residue of the first 15 years of the said period of 40 years royalty of annas /16/ (sixteen) for every 100 cubic feet of solid lime stone quarried, raised, got or used or taken out from the demised premises and for the remaining 25 years thereafter of the said period for each such quantity, royalty .of annas /11/ (eleven).
The sub lease gave option to the appellant to make payment to the head lessor directly of royalties in terms of the aforesaid head lease whether the head lessees were to make default or not in making payment of the same.
On February 15, 1929, Dutts transferred by a deed of assignment all their rights, title and interest under and by virtue of the aforesaid indenture of head lease and the sub lease dated October 12, 1928 to the respondent.
The appellant had due notice of the said assignment and accepted the respondent as its lessor in place of Dutts.
On September 8, 1948, the Central Legislature passed the 1948 Act under Entry 36 of List I of Seventh Schedule to the Government of India Act, 1935.
Section 5 of the Act empow ered the Central Government to make rules for regulating the grant of mining leases or for prohibiting the grant of such leases in respect of any mineral or in any area.
Section 7 of the Act empowered the Central Government to make rules for the purpose of modifying or altering the terms and conditions of any existing mining lease granted prior to the commencement of the Act, so as to bring such lease into conformity with the 363 rules made under section 5.
In exercise of the powers conferred on it by section 5 of the Act, the Central Govern ment made the Mineral Concession Rules, 1949.
Both the 1948 Act and the Mineral Concession Rules, 1949, came into force on October 25, ' 1949.
The provisions of the Mineral Conces sion Rules, 1949, did not apply to leases or sub leases granted prior to October 25, 1949.
On September 25, 1950, the B.L.R. Act came into force.
This Act as apparent from its preamble was enacted for the purpose transference to the State of the interests of the proprietors and tenure holders ' in land and of mortgagees and lessees of such interests in, eluding interest in mines and mineral etc.
Sections 3 and 3A of the B.L.R. Act which dealt with vesting of estates or tenures in the State provided as follows : "3.(1) The State Government may from time to time, by notification declare that the estates or tenures of a proprietor or tenure holder, speci fied in the notification have passed to and become vested in the State . 3.A.(1) Without prejudice to the provision in the last preceding section, the State Government may, at any time, by notification, declare that the intermediary interests of all intermediaries in the whole of the State have passed to and become vested in the State.
(2) It shall be lawful for the State Govern ment, if it so thinks fit, to issue, from time to time, a notification of the nature mentioned in sub section (1) in respect of the intermediary interests situate in a part of the State specified in the notification and, on the publication of such notification, all intermediary interests situate in such part of the State shall have passed to and become vested in the State . . " On November 14, 1951, the estate of Sonepura belonging to the Raja passed to and became vested in the State of Bihar by virtue of notification No. 83 IR/ZAN dated November 6, 1951 issued by the Governor of Bihar in exercise of the power con ferred on him by sub section (1) of the above quoted section 3 of the B.L.R. Act.
On January 1, 1956, the Governor of Bihar issued notification No. EVII 102/56 ILR reading as under : "No. EVII IO2 56 ILR.
: Whereas a proclama tion announcing 'the .intention of the State Government to take over all the intermediary interest in the district of Shahbad Patna, Saran, Muzafferpur, Bhagal Sonthal Paraganas, Ranchi, Singhbhum Manbhum and excluding Manbhum Sadar Sub Division was published under notifica tion No. 4381 LR dated the 18th August, 1955, as required by sub section (1) of section 3(B) of Bihar Land Reforms Act, 1950 (Bihar Act XXX of 1950).
Now, therefore, in exercise of the powers conferred by sub section (2) of section 3A of the said Act, the Government of Bihar is pleased to "declare that all such intermediary interests in the said districts (excluding Manbhum Sadar 364 sub Division) have passed to and become vested in the State with effect from the date of this Notifi cation.
" On September 4, 1956, the Government of India made rules under section 7 of the 1948 Act for modifying or altering the terms and conditions of the existing leases, being Mining Leases (Modifica tion of Terms) Rules, 1956.
Clause (c) of rule 2 of the Rules defined "existing mining lease" as meaning a mining lease granted before October 25, 1949 and subsisting at the commencement of the 1956 Rules but not including any such lease in respect of (i) natural gas, (ii) petroleum; (iii) coal, or (iv) any minor mineral within the meaning of clause (c) of section 3 of the Act.
The 1948 Act was replaced by the 1957 Act which came into force on June 1, 1958.
Section 9 of the 1957 Act provided as follows : "9.
Royalties in respect of mining leases : (1 ) The holder of a mining lease granted before the commencement of this Act shall, notwith standing anything contained in the instrument of lease or in any law in force at such commencement, pay royalty in respect of any mineral removed by him from the leased area after such commencement, at the rate for the time being specified in the Second Schedule in respect of that mineral.
(2) The holder of a mining lease granted on or after the commencement of this Act shall pay royalty in respect of any mineral removed by him from the leased area at the rate for the time being specified in the Second Schedule in respect of that mineral.
(3) The Central Government may, by notifica tion in the official gazette, amend the Second Schedule so as to enhance or reduce the rate at which royalty shall be payable in respect of any mineral with effect from such date as may be speci fied in the notification: Provided that the Central Government shall not (a) fix the rate of royalty in respect of any mineral so as to exceed twenty per cent of the sale price of ,the mineral at the pit 's head, or (b) enhance the rate of royalty in respect of any mineral more than once during any period of four years.
" This section was amended in 1972 by Act 'No. 56 of 1972.
The amended section in so far as it is relevant for our purpose runs as follows : "9.(1 ) The holder of a mining lease granted before the commencement of this Act shall, notwith standing anything contained in the instrument of lease or in any law in force at such commencement, pay royalty in respect of any mineral removed or consumed by him or by his agent, manager, employee, contractor or sub lessee from the leased area after 365 such commencement, at the rate for the time being specified in the Second Schedule in respect of that mineral.
(2) The holder of a mining lease granted on or after the commencement of this Act shall pay royalty in respect of any mineral removed or con sumed by him or by his agent, manager employee, contractor or sub lessee from the leased area at the rate for the time being specified in the, Second Schedule in respect of that mineral.
(2A) . . (3) The Central Government may, by notifica tion in the official Gazette, amend the Second Schedule so as to enhance or reduce the rate at which royalty shall be payable in respect of any mineral with effect from such date as may be speci fied in the notification: Provided that the Central Government shall not enhance the rate of royalty in respect of any mineral more than once during any period of four years.
" Section 29 of the Act provided for the effec tive continuance of the rules made or purporting to have been made under the 1948 Act in so far as they.
related to matters provided for in the former Act and were not inconsistent therewith.
By the Bihar Amendment Ordinance No. 3 of 1964 which was subsequently replaced by the Bihar Land Reforms (Amendment) Act (Bihar Act 4 of 1965), the B.L.R. Act was amended by introduction of section 10 A which runs as follows : "10 A. Vesting of interest of lessee of mines or minerals which is Subject to a sub lease. (1) The interest of every lessee of mines or minerals which is subject to a sub lease shall, with effect from such date as may be notified in this behalf by the State Government in the Official Gazette, vest in the State and thereafter the sub lessee whose lease is not subject to any further sub lease shall hold his lease directly under the State Government and the provisions of subsections (2) and (4) of section 10 shall, 'mutatis mutandis ' apply to his lease.
(2) No .sub lessee of mines or minerals holding under a lessee whose interest vests in the State Government under sub section (1 ) shah be entitled to claim any damages from his lessor on the ground that the terms of the lease in respect of the mines or minerals have become incapable of fulfilment by the operation of this section.
" Purporting to act under the Mining Leases (Modification of Terns) Rules, 1956, the Controller of Mining Leases, an officer appointed by the Central Government for the purpose of implementing the rules, by his order dated August 8, 1959 enhanced the royalties payable under the aforesaid lease dated July 31, 1927 to 37 Naya Paise per ton.
366 In exercise of its option under the sub lease dated October 12,.
1928, the appellant paid rent and royalty payable by the head lessee in respect of the aforesaid Chunhatta quarries under the aforesaid indenture of lease dated July 31, 1927, directly to the.
Raja upto the date immediately preceding the date of the aforesaid vesting of the interest of the Raja in the State of Bihar under the B.L.R. Act.
After the date of the vesting of the interest of the Raja in the State of Bihar the appellant started paying directly to the State the said royalty at the rate of 24 paise per ton.
The appellant also continued paying additional royalty at the rate of 17 paise per ton to the respondent in terms of the sub lease dated October 12, 1928 but stopped doing so from July 1, 1958.
The respondent thereupon brought a suit on JUly 10, 1961 being suit No. 1104 of 1961 on the original side of the High Court at Calcutta claiming a decree for (1) Rs. 25,181.27 as arrears of royalty from July 1, 1958, to August 7, 1959 the date immediately preceding the date on which the Controller enhanced the royalty payable to the State to 37 paise; (2) Rs. 32,223.64 as arrears of royalty at the rate of annas /11/ (eleven) from August 8, 1959 to March 31, 1961; (3) Rs. 1,444.00 on account of deficit payment for the overdue period in respect of royalty for the quarters ending June 30, 1957, September 30, 1957, December 31, 1957 and June 30, 1958.
It also claimed interest on the aforesaid amounts at the rate of 12 per cent per annum.
The respondent based his claim on the ground that notwithstanding the issues of the aforesaid notification under section 3 of the B.L.R. Act, its interest as a lessee under the lease which continued to subsist did not vest in the State of Bihar and it became and still continued to be a lessee under that State fro.m the date of the aforesaid notification under section 3 of the B.L.R. Act.
The appellant contested the suit averring inter alia that while the position of Dutts in respect of the. mines under the aforesaid blocks of land was that of the tenure holders under the Raja, its own position was that of the lessee in possession and that from November 14, 1951the date of vesting of the Sonepura estate in the State of Bihar the proprietary right of the Raja in the aforesaid mine ceased to exist and the respondent became an intermediary in re spect thereof directly Under the State of Bihar from the said date and the appellant continued to be a lessee in possession under the respondent.
The appellant denied that the interest of the respondent in the mine was that of the lessee or that from the date of the aforesaid notification under section 3 of ' the B.L.R. Act, the respondent became a lessee of the said mine directly under the State and averred that it continued to be the lessee in possession of the said mine under the respondent as before.
The appellant further averred that in any event the respondent 's right to receive additional royalty from the former in terms of the aforesaid sub lease dated October 12, 1928 ceased to exist from January 1, 1956, when the interest of the latter as tenure holder in the Chunhatta Lime Stone Quarries came to vest in the State.
The appellant Further averred that due to ignorance of the publication of the notification dated January 1, 1956 and bonafide mistake arising therefrom,.
it continued paying additional royalty to the respondent in terms of the sub lease dated October 12, 1928 for the period beginning from.
January 1, 1956, to the end of June, 1958, which the latter had no 367 right to receive and was refundable to it with interest thereon at the rate of six per cent.
The appellant alterna tively pleaded that assuming without admitting that the interest of the respondent in the Chunhatta quarries did not vest in the State of Bihar either by notification dated November 14, 1951, or under notification dated January 1, 1956, and that the respondent continued to be a lessee under the lease dated July 31, 1927, even then the appellant was, under the sub lease dated October 12, 1928, liable to pay royalty only at the rate of annas /15/ (fifteen) per 100 cubic feet as provided in the lease dated July 31, 1927, and an additional royalty of annas '/11/(eleven) per 100 cubic feet aggregating Rs. 1/10/ per 100 cubic feet equal to 24 Naya Paise plus 17 Naya Paise per ton (calculating 100 cubic feet as equivalent to 4 tons) for the period commencing from August 1, 1942 to May 31, 1958 that the respondent being a holder of the mining lease within the meaning of section 9 of the 1957 Act was liable to pay royalty at the rate of 37 Naya Paise per ton in respect of the minerals removed from the said quarries from June 1, 1958, and since payment to the tune of Rs. 61,684.40 on that account upto March 31, 1961 had been made by the appellant as an agent of the respondent to safeguard its position and enjoyment of the leasehold property, the former was entitled to be reim bursed to that extent.
In conclusion, the appellant aimed to set off the aforesaid sum of Rs. 61,684.40 and subse quent payments of royalty against the royalty that might be payable to the respondent under the sub lease dated October 12, 1928, in respect of the minerals removed from the leased quarries from June 1, 1958 upto March 31, 1961 and thereafter.
The appellant, however, admitted that it had paid the additional royalty to the respondent as stipu lated in the sublease dated October 12, 1928, upto June 30, 1958 only.
By his judgment dated July 23, 1963, Sankar Prasad Mitra, J. of the High Court of Calcutta to whom the suit had been assigned passed a decree in favour of the respondent to the extent of Rs. 47,944.10 as the princi pal sum, and Rs. 8,887.90 on account of interest, holding inter alfa that the respondent was not an intermediary or tenure holder in respect of the estate in suit under B.L.R. Act ' and its interest did not vest in ,the State of Bihar as a result of the aforesaid notification dated November 6, :1951 or the notification dated January 1, 1956; that the holder .of a mining.
lease as envisaged by the B.L.R. Act could be a lessee or a sub lessee; that it was the lessee or the sub lessee who removed the minerals from the mine that had to pay royalty at the rate specified in the Second Schedule to the 1957 Act and as it was the appellant and not the respondent that removed the minerals from the quarries during the relevant period, the provisions of section 9 of the 1957 Act could not be invoked for realization of royal ties from the latter; and that if the appellant had paid any sum in excess of the sum stipulated in the indenture of lease dated July 31, 1927, it did so entirely at its own choice and risk.
The learned Single Judge further held that section 69 of the Contract Act had no application to the facts of the present case.
The learned Judge, however, disallowed the claim of the respondent so far as the item of Rs. 1144/ was concerned.
Aggrieved 368 by this judgment and decree, the appellant preferred an ,appeal before a Division Bench of the High Court which proved abortive.
While affirming the findings of the Single Judge, the Division Bench held that the interest of the respondent did not vest in the State Government at the material time and the appellant continued to be sublessee under the respondent bound by the terms of the sub lease and that the liability to pay royalty to the State at 37 paise per ton from the date of coming into force of the 1957 Act fell on the appellant.
Dissatisfied with the judgment and decree of the Division Bench of the High Court, the appel lant has, as already stated, come up in appeal to this Court.
Appearing in support of the appeal, Mr. Patel has ad vanced two contentions.
He has in the first instance invit ed our attention to the definitions of 'intermediary ', 'intermediary interest ' 'lease ', 'tenure ' and 'tenure holder ' contained in clauses (jj), (jjj), (1), (q) and (r) respectively of section 2, as also sections 3, 3A, 4 and 9 of the B.L.R. Act and stressed that as the respondent was merely a 'tenure holder ' and all his rights, title and interest as such extinguished alongwith the interest of the erstwhile proprietor of the suit land i.e. the Raja with the coming into force of Notification No. 83 IR/ZAN (supra) on November 14, 1951, and it was the appellant who being a sub lessee stepped in as a direct lessee of the mine in question under the State, the respondent was not entitled to claim with effect from November 14, 1951, the additional royalty stipulated in the sub lease dated October 12, 1928.
He has further urged that assuming that the respondent enjoyed the status of a head lessee even then, its right, title and interest as such having become extinct and vested absolutely in the State without the encumbrance of the lease at least from January 1, 1956 the date of Notification No. EVII 102/56 ILR (supra), it could not claim the said addi tional royalty after December 31, 1955.
These contentions which appear to be based upon a misconception of the true legal position cannot be accepted.
The respondent could not be said to be a tenure holder as contemplated by the afore said section 2(r) of the B.L.R. Act as he had neither ac quired from the Raja by virtue of the lease dated July 31, 1927 a right to hold the land mentioned therein for the purpose of collecting rent nor a right to hold the land for bringing it under cultivation by establishing .tenants on it.
The right of the respondent as a head lessee of the mines and minerals also did not cease and the appellant did not acquire the status of the lessee as contended by Mr. Patel.
The consequences of vesting of an estate or tenure in the State are set out in section 4(a) of the B.L.R. Act.
According to this provision, on the publication of the notification under sub section (1) of section 3 or sub section (1) or (2) of section 3A of the B.L.R. Act, the estate or tenure mentioned in the notification including the interests of the proprietor or the tenure holder com prised in such estate or tenure and his interest in all sub soil including any right in mines and minerals inclusive of such right of a lessee of mines and minerals comprised in such estate or tenure vests absolutely in the State free from all encumbrances and such proprietor or tenure holder has to cease to have any interests in such estate or tenure, other than 369 the interests expressly saved by or under the provisions ,of the Act.
The last words of section 4(a) of the B.L.R. Act viz. "other than the interests expressly saved by or under the provisions of the Act" are pregnant with the meaning.
They unequivocally show that those interests which are expressly saved by or under the provisions of the Act are not affected or impaired by the aforesaid notifications.
Now according to section 10 of the B.L.R. Act which itself is in the nature of a non obstante provision overriding other provisions of the Act, every lease of mines and miner als comprised in the notified estate or tenure or any part thereof 'which may be subsisting immediately before the date of vesting has to be treated with effect from the date of 'vesting ' as a lease from the State Government to the holder of the said subsisting lease for the residue of the term of that lease and such holder acquires the right to retain .possession of the leasehold property for that peri od.
In other words, in place of every contractual lease which might have been subsisting immediately before the date of vesting of the estate or tenure, a statutory lease on practically identical terms and conditions comes into being.
Thus the combined reading of section 4(a) and section 10 of the B.L.R. Act leaves no room for doubt that the interests of the head lessee were left unaffected by the aforesaid notifications to the extent indicated above.
This view receives support from a catena of decisions of this Court where this position has been fully recognised and affirmed.
(See Bihar Mines Ltd. vs Union of India(1) Chhatu Ram Horil Ram Private Ltd. vs State of Bihar & Anr.(2); M/s. Hindu stan Steel Limited Rourkela vs Smt.
Kalyani Banerjee & Ors.(a) and State Of Bihar & Anr.
vs Khas Karanpura Collieries Ltd.(4).
The insertion of section 10 A in the B.L.R. Act by the Bihar Amendment Ordinance No. 3 of 1964 which was subse quently replaced by the Bihar Land Reforms (Amendment) Act (Bihar Act 4 of 1965) also indicates that the law as it obtained prior to the aforesaid amendment was not intended to have the effect of divesting a lessee of his interests in a lease of mines or minerals comprised in the estate or tenure or part thereof which subsisted immediately before the vesting of a notified estate or tenure.
We must here deal with what has been tried to be im pressed upon us by Mr. Patel in regard to this aspect of the matter by reading out to us a passage from Craies on Statute Law. 'The counsel has strongly urged that since it is not strictly permissible to interpret a statute by reference to what has been said in subsequent statutes, resort cannot be had to the provisions of section 10 A which was intro duced in the B.L.R. Act in 1964 while interpreting section 10 of before the introduction of the said section.
We also find ourselves unable to accept this contention and to disregard the well settled canon (1) ; (2) ; (3) ; .
(4) ; 370 that sometimes light may be thrown upon the meaning 'of an Act by taking into consideration 'parliamentary expositions ' as revealed by the later Act which amends the earlier one to clear up any doubt or ambiguity.
This principle has to be followed where, as in the instant case, a particular construction of the earlier Act will render the later incor porated Act ineffectual, or otiose or inept.
(See Krikness vs John Hudson & Co.(1).
This view also receives support from the decision of this Court in Yogendra Nath Naskar vs
C.I.T. Calcutta(") where approving the authoritative pronouncement in Cape Brandy Syndicate vs I.R.C.(3) that the subsequent legislation may be looked at in order to see the proper construction to be put upon an earlier Act where that earlier Act is ambiguous, it was held that the language employed in Income Tax Act, 1961 may be relied on as a Parliamentary exposition of the earlier Act (I.T. Act, 1922) even on the assumption that the language employed in Sec tion 3 of the earlier Act is ambiguous.
It follows from the above discussion that the estate comprised in the head lease in the instant case which was assigned to the respondent notionally stood leased by the State from the date of vesting to the holder of the subsist ing lease for the remainder of the term of the lease and the respondent became entitled to retain possession of the leasehold property.
The first contention of Mr. Patel is, therefore, repelled.
Mr. Patel has next contended that as the royalty payable to the lessor was enhanced under the provisions of the 1957 Act read with the Mining Leases (Modification of Terms) Rules, 1956, which continued in force by virtue of section 29 of the 1957 Act and the enhanced royalty was payable by the respondent who was the holder of the mining lease as envisaged by section 9 of the 1957 Act, the appellant was entitled to be reimbursed to the extent of Rs. 61,684.40 which was paid by him as an agent of the respondent.
This contention has to be examined with reference to two periods viz. (i) from July 1, 1958 to August 7, 1959, and (ii) August 8, 1959 to March 31, 1961.
It is admitted by the appellant that during the period intervening between the date when the 1957 Act came into force and August 8, 1959 when the Controller passed the aforesaid order enhancing .the royalty.
payable to the State, ,it continued to pay the said royalty at the old rate of 24 paise per ton and was never required to pay the same at the enhanced rate of 37 paise.
No question of reimbursement for this period can, therefore, arise.
The position, however, with regard to the second period from August 8, 1959, to March 31, 1961,.is not free from difficulty and has to be examined with reference to the provisions of section 9 of the 1957 Act and of the Mining Leases (Modification of Terms) Rules, 1956 as also of the provisions of section 9 of the B.L.R. Act.
Whereas according to counsel for the appellant, it is the respondent which being the holder of lease as contemplated by section 9 of the 1957 Act that has to bear the burden of royalty payable to the State in accordance with the requirements of Second Schedule to the 1957 (1) [19551 A.C. 696 (H.L.) (2) ; (3) 371 Act, according to counsel for the respondent, as the expres sion "mining lease" used in section 9 of the 1957 Act has been defined in section 3(c) of the Act as including a 'sub lease ' and the mineral has actually been removed by the appellant, the liability for payment of enhanced royalty squarely falls on the appellant.
There is yet another aspect of the matter which may reasonably be urged in accordance with the ratio of the decisions of this Court in Bihar Mines Ltd. vs Union of India (supra) and M/s Hindustan Steel Limited Rourkela vs Smt.
Kalyani Banerjee & Ors.
(supra) where it was unequivocally laid down that a statuto ry lease held by a head lessee from the State Government being a new lease granted after October 25, 1949, and not being an existing lease, it could not be modified and when the head lease not being an existing mining lease could not be modified, the sub lease could also not be modified as it too would be deemed to be a new lease granted by the new lessee from the State Government.
In view, however, of the fact that neither the Union of India nor the Controller of Mining Leases is a party to the case before us and the aforesaid order dated August 8, 1958 appears to have been passed by tile Controller of Mining Leases with the agree ment of the parties here.to, we do not consider ourselves called upon to resolve the conflicting contentions advanced before us by counsel for the parties.
For the purpose of this appeal, it would suffice to observe that in view of Exhibit 'L ' (reproduced at pages 280 to 282 of the Paper Book), the burden of payment of the royalty for the second period also is to be borne by the appellant and the question of his being re imbursed by the respondent cannot be counte nanced.
The second contention raised by Mr. Patel also, therefore, fails.
In the result the appeal fails and is dismissed.
In the peculiar circumstances of the case, the parties are left to pay and bear their own costs of the appeal.
P.B.R. Appeal dismissed.
| Chapter 11 of the Indian Railway Establishment Manual deals with "Rules governing the provision of subordinate staff and Section A thereof deals with "promotion to class II posts.
" The Railway Board by virtue of its power vested by para 157 of the Indian Railway Establishment Code, introduced w.e.f.
March 11, 1973, an "Advance Correction Slip No. 70" substituting a new rule 301 and introducing new rules 324 to 328.
Chapter III deals with the rules regulat ing seniority of non gazetted Railway servants and the new rule 328(2) provided that selections and promotions made in the Diesel Locomotive Works from August 1, 1961 to March 11, 1973 shall not be valid.
The appellant, a member of the class III service serving with the Western Railway as a chargeman was transferred to the Diesel Locomotive Works in 1963 and was given .the benefits of deemed dates of transfer as provided for in Rule 326(2).
The appellant filed a writ petition in the Allahabad High Court praying for a writ of mandamus ,on the strength of the "Advance Correction Slip No. 70" praying for a direction to the respondent to hold selections to class 1I service.
The application was rejected holding that the rules contained in Slip No. 70 did not govern the promo tion of class III employees to class Dismissing the appeal by ' special leave the court, HELD: 'Though the Railway Board has the power to make rules governing both gazetted and non gazetted Railway servants, the rules expressed to be made under paragraph 157 cannot, in the.
very nature of .things, be intended to apply to gazetted Railway servants or to govern the promotion of non gazetted Railway servants to gazetted posts.
If the Railway Board has the power to make rules in regard to both gazetted and non gazetted Railway servants, the significa tion of a limited source of power cannot whitle down the effective exercise of that power if the rules can reasonably be construed to cover both the gazetted and non gazetted categories.
[787 H, 788 A B] (2) None of the rules introduced by Slip No. 70 govern the promotion of a class III employee to a class II post.
The amendments were made to.
Chapter III dealing with rules regulating seniority of non gazetted Railway servants.
It is in regard to that class of Railway servants that the Railway 786 Board made new provisions.
The provisions contained in Chapter III including provisions newly introduced by Slip No. 70, are very clearly designed to govern the seniority and promotions of non gazetted servants within the non gazetted categories of posts.
Chapter 11 Section A of the Manual in terms prescribes rules governing the promotion of subordinate staff to class II post.
In view of the fact that the Railway Board has framed seven specific rules in Chapter II for the promotion of class III staff to class ii post, the contention that the rules introduced by Slip No. 70 would also govern the same subject mater cannot be ac cepted.
In the instant case, since the appellant is working as a non gazetted employee in class III, his promotion 10 a gazetted post in class 1I would be governed by Chapter II, Section A and not by Chapter III of the Railway Establish ment Manual.
[788 F H, 789 A] (3) The words "promotions made in the Diesel Locomo tive Works" which occur in Rule 328(2) must be construed as meaning 'promotions made in the Diesel Locomotive Works from one category of non gazetted post to another category of non gazetted post.
" The words "promotion to the higher grades" occurring in para 328(4) mean promotion to a class II post.
The words promotion to the higher grades must, in the context mean promotion to any of the higher grades in the non gazetted category.
The contention that Rule 328(1) casts an obligation on the Railway Board to recall all promotions made from amongst class III servants to class II posts from August 1, 1961 to March 11.
1973 is misplaced.
[789 B C]
|
Civil Appeal No. 1746 of 1980.
Appeal by Special leave from the Judgment and Order dated the 4th September, 1979 of the Punjab and Haryana High Court in Civil Writ Petition No. 2780 of 1979.
N.D. Garg, S.K. Bisaria and T.L. Garg for the appellant.
Girish Chandra for Respondent No. 3.
The Judgment of the Court was delivered by CHANDRACHUD, C. J.
In April 1962, the appellant was appointed as a clerk in the Hoshiarpur Central Co operative Bank Ltd., which is respondent 3 to this appeal.
On August 10, 1976 he was transferred as 'Branch Manager ' of the Dholbaha branch of the Bank.
On October 22, 1977 one Labh Singh s/o Harnam Singh opened an account in the Dholbaha Branch under an introduction given by one Bahram Singh.
Two days later, Labh Singh deposited in that account a draft in the sum of Rs. 5,000 issued by the Royal Bank of Canada on the Chartered Bank, New Delhi.
The amount due on the draft was credited by the Bank in Labh Singh 's account on November 14.
On that very day, Labh Singh withdrew a sum of Rs. 2,500 from his account.
Three days later, he withdrew the remaining amount of Rs. 2,500.
Soon thereafter a person claiming to be the real Labh Singh in whose favour the draft was issued by the Royal Bank of Canada, complained to the Chartered Bank, New Delhi, that the draft was stolen and that the money due thereon was fraudulently collected by the person in whose name an account was opened in the Dholbaha branch.
On November 10, 1978, the Executive Committee of respondent 3 Bank resolved that an enquiry be held for fixing responsibility in the matter of the fraudulent encashment of the draft.
The enquiry was held by the Chief Executive officer, Satish Chander Dutt, who was of the rank of the Assistant Registrar in the Co operative department.
As a result of the report submitted by him, the appellant was dismissed from service on December 30, 1978.
The demand raised by the appellant in regard to his dismissal was referred by the Government of Punjab to the Conciliation 319 officer, who recommended that the appellant 's case should be forwarded for adjudication on the question whether his dismissal from service was justified.
The Labour Commissioner of Punjab, exercising the powers of the State Government, declined to refer the dispute for adjudication on the ground that the appellant was not a workman.
The appellant filed a Writ Petition in the High Court of Punjab and Haryana, challenging the decision of the Labour Commissioner, but that Writ Petition was dismissed summarily.
The appellant has filed this appeal by special leave, challenging the decision of the High Court and of the Labour Commissioner.
The State of Punjab and the Labour Commissioner are respondents 1 and 2 to this appeal.
The grievance made by Shri N. D. Garg, who appears on behalf of the appellant, that the Labour Commissioner ought to have given reasons in support of his decision, is justified.
All that the Labour Commissioner has stated in the order is that the post held by the appellant did not fall "within the category of workman".
This, really, is the conclusion to which the Labour Commissioner came but no reasons are given to justify that conclusion.
We are of the opinion that the Labour Commissioner ought to have given reasons why he came to the conclusion that the appellant is not a "workman" within the meaning of section 2 (s) of the .
We could have remanded the matter to the Labour Commissioner asking him to state his reasons why the appellant is not a workman but, that will entail delay.
Instead, it is advisable from the point of view of not only the appellant but the Bank also that a deference is made either to the Labour Court or to the Industrial Tribunal under section 12 (5) of the , for adjudication of the question as to whether the dismissal of the appellant from the services of the Bank is legal and justified.
Accordingly, we direct that the 2nd respondent, the Laboure Commissioner, Chandigarh, to whom the State Government has delegated its powers under section 12 of the Act shall make a reference to either of the two authorities as he considers proper.
At one stage, we wanted to decide for ourselves the question as to whether the appellant is workman within the meaning of section 2(s) of the .
Considering the time that has gone by, we wish that we could have decided that question but, on the material before us, we find it difficult to do so.
The case of the appellant is that he is a mere matriculate who now possesses a some 320 what exalted and misleading designation of a 'Branch Manager. ' According to him, there are 58 Branches of the Bank in the District of Hoshiarpur, in 29 out of which there are only two officers, one of whom is called the Branch Manager and the other the Cashier.
He contends that the Branch Manager has no administrative or discretionary powers to exercise and is not employed in a supervisory capacity.
His case is that he is a clerk mis called the Branch Manager.
The contention of respondent 3 Bank, on the other hand, is that not only was the appellant 's remuneration in excess of Rs. 500 per mensem but, being employed in a supervisory capacity, he exercised functions mainly of a managerial nature.
It is alleged that he was vested with the power of superintending the working of the office, maintaining registers, sanctioning loans, receiving deposits, borrowing within the limits sanctioned by the Registrar, incurring contingent expenditure, attending meetings of the Board of Directors, the Executive Committee and other Committees constituted under the bye laws and certifying copies of entries in the banker 's books.
The grievance of the appellant is that the Bank did not raise any contention before the Labour Commissioner that he was not a workman within the meaning of the Act with the result that, he had no opportunity to meet that case.
The parties have included in the paper book before us some material bearing on that question but it will be unsatisfactory to decide that question without proper evidence.
After all, the question as to whether the appellant is a 'workman ' is basically a question of fact.
That is why, on the basis of the stray material before us, we do not consider it advisable to decide that question.
When this appeal was argued before us, a prosecution was pending in the Court of the learned Judicial Magistrate, Hoshiarpur, in which three persons were charged for impersonation and cheating in connection with the fraudulent encashment of the draft which led to the dismissal of the appellant.
The appellant was not only not included in the array of the accused in that prosecution but the judgment of the learned Magistrate dated August 19, 1981 shows that during the course of investigation, it was found that the appellant was not responsible for the fraud.
In fact, the appellant was examined as prosecution witness No. 4 in that case.
Two out of the three accused were discharged by the learned Magistrate while accused No. 1, Sham Lal, was convicted under sections 419 and 420 of the 321 Penal Code and was sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs. 500.
At the instance of the Bank, a reference was made to an Arbitrator under section 55 of the Punjab Co operative Societies Act, 1961, for deciding the question whether the appellant is liable to repay the amount of Rs. 5,000 to the Bank, which was fraudulently withdrawn by Labh Singh.
By an Award dated November 23, 1982 the Arbitrator dismissed the reference, holding that the appellant was not responsible for the fraudulent encashment of the draft.
The Arbitrator observed that the Bank could recover the amount from Sham Lal, who was convicted in the criminal proceedings, but not from the appellant.
We have referred to these two matters, the prosecution and the arbitration proceedings, in order that the Bank may examine whether it is not possible to drop the proceedings against the appellant and take him back in employment.
If the Bank finds that the appellant was merely negligent in the discharge of his duties as a Branch Manager, it may consider whether the appellant could be taken back in employment without the payment of full back wages.
For these reasons, we allow the appeal and direct respondent No. 2, the Labour Commissioner, Chandigarh, to make a Reference under section 12 of the , as directed by us.
The reference shall be make forthwith and it shall be disposed of within two months after its receipt.
There will be no order as to costs.
M.L.A. Appeal allowed.
| In the year 1958 59 the State Government framed the Khandsari Licensing Scheme to regulate the supply of sugarcane to sugar factories.
Posts of Khandsari Inspectors initially designated as Licensing Inspectors were created in the pay scale of Rs. 120 250.
Petitioners in the writ petitions were appointed as Khandsari Inspectors between March and May, 1960.
Thereafter some of the respondents were recruited as Khandsari Inspectors and along with some others who were recruited departmentally were approved by Public Service Commission.
On March, 22, 1971 the third respondent the Sugar Commissioner circulated a provisional seniority list of Khandsari Inspectors.
71 The petitioners represented against the seniority list contending that they were assigned lower place in the seniority list even though they were recruited earlier and have been continuously in service.
The representations having been rejected, writ petitions were filed in this Court.
In their writ petitions to this Court, the petitioners contended that when recruitment was made in the year 1960, the post of Khandsari Inspector was not within the purview of the Public Service Commission and that they were regularly recruited to posts which were temporarily sanctioned but indefinitely continued and therefore, in reckoning their seniority, they must be given the benefit of the length of continuous officiation, and that once approval is granted by the Public Service Commission it would relate back to the date of their appointment and that the previous length of service cannot be ignored or denied in computing seniority in the absence of any statutory rule or administrative instruction.
It was further pointed out that petitioner Nos. 4 to 8, who were recruits of 1961 had been assigned places Nos.
34, 42, 35 and 31 respectively in the seniority list while recruits of 1963 had scored a march over them in the provisional seniority list.
The respondents contested the writ petitions contending that by a Government order temporary post of Licensing Inspectors were re designated as Khandsari Inspectors and that the post right from inception was within the purview of the Public Service Commission, that on the framing of the Khandsari Licensing Scheme, it became necessary to urgently appoint Inspectors to implement the scheme, and therefore the third respondent the Sugar Commissioner who was the appointing authority pending regular selection through open competition through Public Service Commission proceeded to make the appointments of the petitioners as stop gap or ad hoc nature and that their appointment created no right to the post.
The drawing up of the tentative seniority list was justified as being based on the recommendations of the Public Service Commission, and it was submitted that the service which can be taken into consideration for determining the length of continuous officiation must commence from the date of substantive appointment and that the provisional seniority list had been drawn up keeping in view the date of approval by the Public Service Commission in respect of each candidate and that there was no error in drawing up the seniority list.
It was further contended that promotions which were granted on the basis of the provisional seniority list were not questioned by the petitioners and they have acquiesced in it, and that the petitioners had moved the Court after a long unexplained delay and that the Court should not grant any relief.
Allowing the Writ Petitions, 72 ^ HELD: (1) The impugned seniority list dated March 21, 1971 in respect of Khandsari Inspectors is quashed.
Respondents 1 to 3 are directed to draw up a fresh seniority list based on the principle of length of continuous officiation reckoned from the date of first appointment if the appointment is followed by confirmation i.e. selection approval by the State Public Service Commission.
[87 F] (2) (i) The Memorandum of 1940 merely prescribed guidelines for the departments of the Secretariat either to frame statutory rules or executive instructions governing conditions of service in respect of existing services if there are no rules, or they may be modified or amended so as to bring them generally in conformity with the 1940 Order, and whenever a new post or a new cadre in a service is set up to frame rules in conformity with guidelines prescribed in the 1940 Order.
The 1940 Order does not purport to lay down conditions of service governing any cadre either specifically or generally.
It provides a model and unless the model is adopted it is not binding.
[82 D F] (ii) Assuming that the model principle set out in the 1940 order has a binding effect the impugned seniority list does not conform to the prescribed guidelines and is invalid.
[85 F] (3) (i) A fair rule of seniority should ordinarily take into account the past service if the stop gap arrangement is followed by confirmation.
[86 E] (ii) If a stop gap appointment is made and the appointee appears before the Public Service Commission when the latter proceeds to select the candidates and is selected, there is no justification for ignoring past service.
There is also no justification for two persons selected in the same manner being differently treated.
If once a person in a stop gap arrangement is confirmed in his post by proper selection, his past service has to be given credit and he has to be assigned seniority accordingly unless a rule to the contrary is made.
In the instant case, that has not been done to all the petitioners.
The error is apparent in the case of petitioner No. 1 and respondent No. 7.
[86 B D] (iii) When a seniority list is challenged as being violative of the guarantee of equality enshrined in Articles 14 and 16 and prima facie it appears that those who came into the cadre later on scored a march over those who were already in the cadre, it would be for the authority justifying the seniority list to plead and point out the rule for determining seniority on the basis of which the list is drawn up.
If any such rule is pleaded it would be for those impugning the seniority list to aver and establish that 73 the alleged seniority rule is violative of the fundamental rights guaranteed by Articles 14 and 16.
[78 G H; 79A] (4) (i) It is open to the Government to lay down general conditions of service governing all services in the State either by rules framed under Section 241 of the Government of India Act 1935, or on the advent of the Constitution under the proviso to Article 309 of the Constitution.
In the absence of statutory rules, conditions of service in a particular cadre may be governed by executive instructions issued by the Government in exercise of its executive power.
[81 C E] (ii) In the absence of any other rule valid for determining seniority under Article 16, seniority being determined by the length of continuous officiation has been accepted as valid by the courts.
[82 H; 83 A] P.S. Mahal and Ors.
vs Union of India and Ors.
and Bishan Sarup Gupta vs Union of India, ; , referred to.
(5) Model Rule 11 suggests as guidelines two independent principles for determining seniority; namely (1) seniority should be reckoned from the date of substantive appointment, and (2) from the date of the order of first appointment if such appointment is followed by confirmation.
[84 A] In the instant case, recitals in the appointment order do not spell out that the appointees were to hold stop gap arrangement till a candidate selected by the Public Service Commission is made available.
On the contrary, the recitals clearly indicate that those appointees will have to face the approval test by the Public Service Commission.
If petitioner Nos. 1 and 2 came to be appointed in 1960 and respondent Nos. 4, 5 and 6 came to be appointed in 1961 and the appointment of each of them had to be approved by the Public Service Commission, once the approval is granted the same will relate back to the date of first appointment.
That is the meaning of the expression in Model No. 11; 'or from the date of the order of the first appointment if such appointment is followed by confirmation. ' [85 A C] (6) Where officiating appointment is followed by confirmation unless a contrary rule is shown, the service rendered as officiating appointment cannot be ignored for reckoning length of continuous officiation for determining the place in the seniority list.
[86 G] Baleshwar Dass and Ors. etc.
vs State of U.P. and Ors.
,[1981] 1 SCR 449, referred to.
74 In the instant case, respondents 1 to 3 have not finalised the seniority list for a period of more than 12 years and are operating the same for further promotion to the utter disadvantage of the petitioners.
Petitioners went on making representations after representation which did not yield any response, reply or relief.
Further, the petitioners belong to the lower echelons of service and it is not difficult to visualise that they may find it extremely difficult to rush to the court.
The contention that the writ petitions should be thrown out on the ground of delay, latches an acquiescence must therefore be rejected.
[87 C D]
|
iminal Appeal No. 40 of 1965.
Appeal by special leave from the judgment and order dated August 4, 1964 of the Andhra Pradesh High Court in Criminal Revision Case No 479 of 1964.
P. Ram Reddy and B. Parthasarathy, for the appellant.
A.S.R. Chari, K. Rajendra Chaudhuri and K.R. Chaudhuri, for the respondents.
The Judgment of the Court was delivered by Hidayatullah, J.
The State of Andhra Pradesh appeals by special leave against the judgment of the High Court of Andhra Pradesh in which, accepting a reference by the Sessions Judge, the conviction of the respondents under sections 4 and 5 of the Hyderabad Gambling Act (2 of 1305F) ordered by the 5th City Magistrate at Secunderabad has been set aside.
The short question in this case is whether the premises of a Club known as the "Crescent Recreation Club" situated in Secunderabad were being used as a common gambling house and whether the several respondents who were present at the time of the raid by the police could be said to be gambling therein.
The facts of the case are as follows : On May 4, 1963, the police headed by Circle Inspector Krishnaswami raided the premises of the club.
They found respondents 1 5 playing a card game known as "Rummy" for stakes.
At the time of the raid, there were some counters on the table as also money and of course the playing cards with the players.
Respondent No. 6, the Treasurer of the Club, was also present and was holding the stake money which is popularly known as "kitty".
The 7th respondent is the Secretary of the Club and he has been joined as an accused, because he was in charge of the management of the club.
The kitty which the sixth respondent held was Rs. 74.62nP and a further sum of Rs. 218/ was recovered from the table of the 6th respondent.
66 counters were on the table and some more money was found with the persons who were indulging in the game.
The evidence of the Circle Inspector is that he had received credible information that the premises of the club were being used as a common gambling house and he raided it and found evidence, because instruments of gambling were found and the persons present were actually gambling.
The Magistrate convicted all the seven respondents and sentenced them to various fines, with imprisonment in default.
The respondents 389 then filed an.
application for revision before the Sessions Judge, Secunderabad who made a reference to the High Court under section 438 of the Code of Criminal Procedure, recommending the quashing of the conviction and the setting aside of the sentences.
This recommendation was accepted by the learned single Judge in the High Court and the present appeal is brought against his judgment by special leave granted by this Court.
The Hyderabad Act follows in outline the provisions of the Public Gambling Act, 1867 in force in India.
Section 3 of the Act defines a "common gambling house".
The translation of the Urdu text placed before us was found to be inaccurate but we have compared the Urdu definition with the definition of "common gaming house" in the Public Gambling Act, and we are of opinion that represents a truer translation than the one included in the official publication.
We accordingly quote.
the definition from the Indian Act, adding thereto the explanation which is not to be found in the Indian Act. "Common gambling house" according to the definition means: "any house, walled enclosure, room or place in which cards, dice, tables or other instruments of gaming are kept or used for the profit or gain of the person owning, occupying, using or keeping such house, enclosure; room or place, whether by way of charge for the use of the instruments of gaming, or of the house enclosure, room or place, or otherwise howsoever? ' Explanation :"The word 'house ' includes a tent and all enclosed space." The contention in regard to this definition is that the evidence clearly disclosed that the club was being used as a common gambling house and therefore the penal provisions of the Act were clearly attracted.
We are concerned additionally with several sections from the Gambling Act which need to be seen.
Section 4, which follows in outline the corresponding section in the Public Gambling Act, provides for penalty for an owner, occupier or person using common gambling house and includes within the reach of the section persons who have the care or the management of or in any manner assist in conducting, the business of.
any such house, enclosure or open space.
The members of the club which is a ("Members ' Club") would prima facie be liable but as they are not before us, we need not consider the question whether they should also have been arraigned in the case or not.
The Secretary and the Treasurer, who were respectively accused Nos. 7 and 6 were so arraigned as it was thought they came within the reach of section 4 because they were in the care and management of the club itself.
Then there is section 6 which again is similar 390 but not entirely similar to section 5 of the Public Gambling Act.
This provides for entry for search and entry by police.
It lays down as follows : "If the District Magistrate or the Magistrate of the First Class or the District Superintendent of Police or the Inspector of Police in the city and the suburbs of Hyderabad, on credible information and after such enquiries as he may deem necessary, has reason to believe that any house or premises or enclosure or an open space is used as a common gambling house he shall be empowered to enter or authorise any police officer, not below the rank of a Sub Inspector to enter with such assistance as may be found necessary, by night or by day, and by force, if necessary, any such house or premises or enclosure or open space, and it shall be proper to arrest all persons whom the said Magistrate or the Superintendent or Inspector of Police finds therein or to allow the Police Officer so authorised to arrest such persons whether or not they are actually gambling.
and Seize or authorise the said Officer to seize all instruments of gambling and all moneys and securities for money and valuable articles, reasonably suspected to have been used or intended to be used for the purpose of gambling and which are found therein, and search or authorise such Police Officers to search all parts of the house or premises or enclosure or open space, which he or such officer shall have so entered when he or such officer has reason to believe that any instruments of gambling are concealed therein and also the persons whom he or such officer had so arrested and seize and keep in his possession all such instruments of gambling as are found in the search.
Explanation: . ." Here the Circle Inspector was an officer authorised to enter upon and search the premises of the club and therefore his action was fully covered by the section.
He effected the arrest of all the persons who were present(respondents 1 6) and added to the number the Secretary who although not present on the premises at the time was, according to him, responsible for the offence under section 4 of the Oct. Session 7 of the Act then provides for a presumption which the law allows to be drawn from the finding of cards, etc.
in a house in which a search according to the terms of section 6 of the Act as taken place.
That section reads as follows : 391 "When any cards or dice or table or other instruments or means of gambling have been found in any house or premises or enclosure or open space entered or searched, in accordance with the provision of section 6 or have been found with any of the persons therein, it shall be evidence, until the country is proved, that such house, premises or enclosure or open space is used as a common gambling house and the persons found therein were present for the purpose of gambling although no play was actually witnessed by the Magistrate or the police officer or an3 ' of his assistants.
" This section gives rise to a presumption from the fact of a search under section 6 after credible information that persons present in the house are there for the purpose of gambling even though no play may be actually witnessed by the raiding party.
In the present case on the appearance of the police, it is admitted, the players stopped their play and the arrests were promptly made of all the persons present round the table who had cards, counters and the money with them.
The learned Magistrate who tried the case was of the opinion that the offence was proved, 'because of the presumption since it was not successfully repelled on behalf of the present respondents.
In the order making the reference the learned Sessions Judge made two points: He first referred to section 14 of the Act which provides that nothing done under the Act shall apply to any game of mere skill wherever played and he was of opinion on the authority of two cases decided by the Madras High Court and one of the Andhra High Court that the, game of Rummy was a name of skill and therefore the Act did not apply to the case.
He also held that there was no profit made by the members of the club from the charge for the use of cards and the, furniture and the room in the club by the players and therefore the definition of common gambling house ' did not apply to the case.
In accepting the reference, the learned single Judge in the High Court did not express any opinion upon the question whether the game of Rummy can be described as a game of skill.
_ He relied upon 'the second part of the proposition which the Sessions Judge had suggested as the ground for acquitting the accused.
namely, that the club was not making a profit but was only charging something as a service charge and to this we shall now refer.
Mr. Ram Reddy relies, firstly, upon the definition of 'common gambling house ' in the Hyderabad Act and contends that in this case there is ample evidence to prove that the club was making a profit or gain from the persons who play Rummy on its premises, pointing out at the same time that the charge was But upon strangers to 'the club as well as members.
He also submits 392 that the presumption which arises under section 7 of the Gambling Act has not been successfully repelled and on the other hand it has been confirmed by the making of this charge by the club.
In support of his case that the club was making a profit or gain from the game of Rummy he draws attention to four matters which in his opinion bring this club within the said definition.
The first was a charge of 5 points per game which according to him was being levied on each game of Rummy.
He next points out that playing cards were supplied to the players by the club at an extra charge of Rs. 3/ and there was a sitting fee of Re. 1/ per person from those who joined the game.
He points out further that if the game continued beyond a certain time in the night, a late fee was also levied.
In addition, he says, that non members were also required to pay and, therefore, this club must fall within the definition of a common gambling house.
In support he relies upon a decision of the Madras High Court 1n re Somasundaratn Chettiar(1) In our opinion the points made by Mr. Ram Reddy do not prove this club to be a common gambling house.
The presumption under section 7, even if it arises in this case, is successfully repelled by the evidence which has been led, even on the side of the prosecution.
To begin with, there is nothing to show that a fee of 5 points per game was being charged.
Only the Sub Inspector (P.W. 6) deposes to it but there is nothing to show what his source of information was.
At the time the game was going on, he was not present and when he arrived on the scene, the game had stopped.
The account books of the club do not show any such levy from the persons and in the absence of any entry, we cannot hold this fact to be sufficiently proved.
As regards the extra.charge for playing cards we may say that clubs usually make an extra charge for anything they Supply to their members because it is with the extra payments that the management of the club is carried on and other amenities are provided.
It is commonly known that accounts have to be kept, stocks have to be purchased and maintained for the use of the members and service is given.
Money is thus collected and there is expenditure for running of each section of the establishment.
Just as some fee is charged for the games of billiards, ping pong, tennis, etc, an extra charge for playing cards (unless it is extravagant) would not show that the club was making a profit or gain so as to render the club into a common gambling house.
Similarly, a late fee is generally charged from members who use the club premises beyond the scheduled time.
This is necessary, because the servants of the (1) A I R. 393 club who attend on the members have to be paid extra remuneration by way of overtime and expenditure on light and other amenities has to be incurred beyond the club hours.
Such a charge is usual in most of the clubs and we can take judicial notice of the fact.
This leaves over for consideration only the sitting fee as it is called.
In this connection, the account books of the club have been produced before us and they show that a fee of 50 paise is charged per person playing in the card room.
This to our opinion is not such a heavy charge in a Members ' Club as to be described as an attempt to make a profit or gain for the club.
Of course, if it had been proved that 5 points per game were charged, that might have been considered as an illegal charge sufficient to bring the club within the definition.
As we have already pointed out, the levy of that charge has not been proved.
The other charges which the club made do not establish that this was a common gambling house within the definition.
It is submitted by Mr. Ram Reddy that non members also play and further that the club provides no other amenities besides making it possible for members and non members to play the game of Rummy on the premises.
We think that the evidence on this part is not quite satisfactory.
No doubt one witness has stated that chess is also played, but that does not prove that amenities other than card games are catered for by the club.
But on the other side also there is no definite evidence that there is no other amenity in this club but the playing of card games.
In these circumstances, to hold that the club does not provide other amenities is tantamount to making a conjecture which is not permissible in a criminal case.
We are also not satisfied that the protection of section 14 is not available in this case.
The game of Rummy is not a game entirely of chance like the 'three card ' game mentioned in the Madras case to which we were referred.
The 'three card ' game which goes under different names such as 'flush ', 'brag ' etc.
is a game of pure chance.
Rummy, on the other hand, requires certain amount of skill because the fall of the cards has to be memorised and the building up of Rummy requires considerable skill in holding and discarding cards.
We cannot, therefore, say that the game of Rummy is a game of entire chance.
It is mainly and preponderantly a game of skill.
The chance in Rummy is of the same character as the chance in a deal at a game of bridge.
In fact in all games in which cards are shuffled and dealt out, there is an element of chance, because the distribution of the I cards is not according to any set pattern but is dependent upon how the cards find their place in the shuffled pack.
From this alone it cannot be said that Rummy is a game of chance and there 394 is, no skill involved in it.
Of course, if there is evidence of gambling in some other way or that the owner of the house or the club is making a profit or gain from the game of Rummy or any other game played for stakes, the offence may be brought home.
In this case, these elements are missing and therefore we think that the High Court was right in accepting the reference it did.
The appeal fails and is dismissed.
Y.P. Appeal dismissed.
| By notifications issued under the Bombay District Municipal Act 1901, the State of Bombay set up.
the respondent Municipality comprising portions of certain villages.
The Municipality framed House Tax Rules under section 46 of the Act and served notice to the appellant company that it proposed to assess its buildings at a certain amount.
On, the appellants ' objections, it was asked to furnish the cost.
of constructions, which it failed to furnish.
The appellant was served a house tax bill.
Thereupon the.
appellant unsuccessfully filed petitions in the High Court under articles 226 and 227 of the Constitution for quashing the notifications, assessment.
and bills.
In appeal to this Court, the appellant, inter alia, contended: (i) that ' the notifications were invalid as sections 4 and 7 of the Act do not permit the Government to constitute a local area by including in it not villages but only portions thereof; (ii) that the House Tax Rules were not in conformity with sections 59 to 63 of the Act.
as they failed to prescribe the basis of valuation of each class of property on which it imposed the house tax; what these Rules provided was merely to impose the house tax at the rate of 15% or Rs. 12/ whichever was more on the valuation arrived at after deducting 10% from the annual letting value without specifying the method by which such annual letting value was to be arrived at: and (iii) that the bill served on the appellant was not in conformity with the Rules, as (a) the buildings could be assessed on their annual letting value and not at a flat rate on the carpet area.
and (b) in assessing the rate it could not include the rate on open lands.
Held: (i) The notifications were not in any way contrary to or ultra vires sections 4 or 7 of the Act.
There is nothing either in sections 4 or 7 to limit the power of the Government in constituting a municipal district to include therein the whole of the village or suburb.
The Act, on the other hand.
permits the Government to include "land adjoining thereto" which shows that a part of land adjoining an existing village or a suburb can, also be added if it is thought expedient so to do.
Likewise, while altering the limits of an existing municipal district it can exclude from or include in it part of the land where it becomes necessary or expedient so to do.
[216G, H] (ii) The word "rate" in section 59(1) means a tax for local purposes imposed by local authorities, the basis of which is the annual value of the lands or buildings arrived at in one of the three ways, viz. (1) the actual rent fetched by such land or building where it is actually let; (2) where it is not let rent based on hypothetical tenancy particularly in the case of buildings and (3) where either of these two modes is not available, by valuation based on capital value from which annual value has to be found 212 by applying a suitable percentage which may not be the same for lands and buildings.
It is legitimate to.
infer that the legislature intended this meaning of the word "rate" in section 59(1) by using the word "rate" as distinct from other imposts specified in that very sub section and designated as toll, cess, tax etc.
[218 C E] In case of buildings or lands or both the municipality cloud impose a "rate" and not a "tax" The rate is as understood in such statutes.
viz., on the basis not of capital but on the annual letting value ascertained by any of the said recognised methods.
Section 60 leaves it to the option of the municipality for arriving at the annual value for assessment of the rate to choose any one of the aforesaid recognised methods, the only restriction being that it must specify in the rules which basis of valuation.
capital or annual letting value or any other basis, it proposes to adopt.[218H; 219B] The Municipality had complied with the procedure required by the Act before a tax was imposed by selecting the tax, by laying down the class of property which it desired to make liable, the amount of the rate at which such property would be liable and lastly the basis of valuation for purposes of the rate on buildings and houses.
[220F G] (iii) (a) Schedule 1 to the Rules expressly provides that the house tax is to be assessed on the basis of the annual letting value.
The annual letting value can be arrived at by any one of the recognised methods.
Neither the Rules nor Sch.
1 constrict the Municipality to adopt any one particular method of arriving at the annual letting value.
It may well be that a flat rate on the carpet area may correspond to the annual letting value of a building in which case it would be the annual letting value as provided by Sch. 1 which would be the basis of assessment.
if it is not, the owner or occupier of the building can legitimately challenge the assessment on the ground that such assessment on the basis of a 11at rate on the carpet area does not reflect the annual value so calculated.
[221E G] Patel Goverdhandas Hargovindas vs Municipal Commissioner, Ahmedabad, and Lokmanya Mills vs Barsi Borough Municipality.v, ; referred to.
(b) The open lands could not be included while rating the factory buildings of the appellant companies as such inclusion was ultra vires the Rules and therefore invalid.
Rule 3(7) expressly excludes the definition of a building or a house in sec.
The word "building" or "house" must therefore bear the meaning given to it by the Rule and not the meaning given to it by the Act.
By virtue of r. 1 (ii) these rules extend to buildings or houses or shops or huts (jhupras) only and a building or a house under r. 3(7) means a building, house, shop, hut (jhupras) etc.
with a roof thereon constructed for human habitation or otherwise.
Open lands obviously are not only not included in the term "building" or "house" but the Rules do not extend to such open lands.
[222H 223B]
|
Appeals Nos. 746 and 747 of 1957.
Appeals by special leave from the judgments and orders dated June 3, 1955, and May 21, 1956, of the Labour Appellate Tribunal of India, Calcutta, in Appeal No. Cal. 366/52 and Misc.
Case No. 145 of 1955 respectively, arising out of an Award dated September 22, 1952, of the Industrial Tribunal, Bihar, and published in the Bihar State Government Gazette on October 21, 1952.
M. C. Setalvad, Attorney General for India and R. C. Prasad, for the appellant.
The respondent did not appear.
April 29.
The Judgment of the Court was delivered by WANCHOO, J.
These are two appeals by the management by special leave in an industrial matter arising out of two applications under section 33 of the Industrial Disputes Act (hereinafter called the Act).
The facts of the case are briefly these : The appellant, Messrs. Sasa Musa Sugar Works (Private) Ltd. is a sugar factory in District Saran (Bihar).
The factory was established in 1932.
In June 1942, a trade union was formed in this factory.
In July 1943, trouble arose between the workmen and the management resulting in the discharge of three office bearers of the union, including one Shams ud din, who was then the 838 joint secretary.
That matter ",as referred to adjudication and the discharged workmen were ordered to be reinstated in the beginning of 1944.
In December 1944, there was trouble again and a large number of workmen were dismissed, including Shams ud din, who had by now become the president of the union.
This dispute was again referred to an Industrial Tribunal, which again ordered reinstatement of the dismissed workmen in August 1947.
There was peace for some time after this.
But in June 1951, the management again discharged seventeen workmen, including Shams ud din, who was at that time secretary of the union.
The trouble continued up to December 1951, when an agreement was arrived at between the union and the management, as a result of which twelve of the workmen were reinstated but five, including Shams ud din, were not and their cases were to be referred to adjudication.
It appears, however, that another reference between the management and its workmen was already pending since September 8, 1951, before an Industrial Tribunal, when this agreement was arrived at.
Thereafter the work in the factory proceeded smoothly for some time.
But on January 1, 1952, a notice was issued by the union to the management enlisting as many as 40 demands and it was threatened that if the demands were not met within seven days, the union would have to advise the work men to adopt go slow and call upon them to offer passive resistance with effect from January 9, 1952, and take all legitimate means to see that the decision of go slow was carried out till the demands of the union were fulfilled.
This notice was received by the management on January 4, which immediately contacted the officers of the Labour Department as well as the Sub Divisional Magistrate at Gopalganj.
On January 8, the Deputy Labour Commissioner wrote to the union that as the conciliation officer was busy in the general elections, the status quo should be maintained till the elections were over, so that the matter might be looked into by the conciliation officer.
The union, however, gave no heed to this advice and go slow began from January 9 and 839 was continued till January 12, 1952.
Then the Labour Commissioner himself came to the factory on January 12 and advised Shams ud din who was the s moving spirit behind all this to call off the go slow, as it was proposed to start conciliation proceedings at Patna on January 17, 1952.
Conciliation proceedings then began on January 17 and an agreement was arrived at as to some of the demands on January 23, and it was decided that further conciliation proceedings would be held in February.
But in spite of this agreement go slow was again resorted to from January 24 to January 31.
In the meantime, the Labour Officer had arrived at the factory on January 28, 1952, and further talks took place.
The workmen, however, did not pay heed to the advice of the Labour Officer.
He, therefore, reported on January 31 to the Labour Commissioner that go slow was still continuing.
The Labour Commissioner then ordered the Labour Officer to tell the workmen that no further conciliation proceedings would take place until the goslow was called of.
The Labour Officer then informed the management that it could take disciplinary action against the workmen concerned with the permission of the Industrial Tribunal.
Consequently, the management suspended thirty three workmen by a notice given on the night of January 31 as from February 1.
It was said in the notice that these thirty three workmen had been found taking a leading part in the unjustified go slow which was in contravention of the Act and they were therefore suspended from service until further orders.
This notice had some good effect and work improved for four days; but from February 5 goslow was started again.
Consequently, the management suspended seven more workmen from February 6 and eight more from February 7 by giving notice to them in the same terms in which the notice had been given to the thirty three workmen, on January 31.
As adjudication proceedings were pending since September 1951 between the management and its workmen, the former applied on February 6, 1952, under section 33 of the Act for permission to dismiss the thirty three workmen and on February 11, 1952, for permission to 840 dismiss the remaining fifteen workmen who had been suspended later.
The forty eight workmen in their turn applied on March 29, 1952, under section 33 A of the Act to the Industrial Tribunal and their case was that they had been suspended as a measure of punishment and that as this was done without the sanction of the Industrial Tribunal, the management had committed a breach of section 33.
The three applications were tried together by the Industrial Tribunal and the contentions raised before it were these : (1) The management 's applications under section 33 had not been preceded by any enquiry into the misconduct of the workmen and were, therefore, liable to be rejected ; (2) The order of suspension in this case amounted to punishment and therefore section 33 had been contraven ed; and (3) There was an unjustified go slow by the workmen in January and February 1952.
On the first point, the Industrial Tribunal found that Do enquiry had been held by the management before the two applications, under section 33 were made; but it held that all the evidence which could have been taken in the enquiry by the management had been led before it and it was in full possession of the facts, and no question of any prejudice to the workmen arose, as it would be open to it on a review of the entire evidence before it to decide whether the applica tions for permission to dismiss should be granted or not.
On the second point, it held that the order of suspension was not as a measure of punisment in the circumstances of this case and that it was an order pending enquiry by the management and proceedings under section 33 before the tribunal and that, as there were no Standing Orders as to suspension in this factory, the management 's liability to pay the workmen their wages during the period of suspension remained.
On the third point, the Industrial Tribunal, after an elaborate discussion of the evidence, came to the ' conclusion that there was a deliberate go slow resorted to by the workmen in January and February 1952 and 841 that it was unjustified as it took place while conciliation proceedings were pending.
Having given these findings, the Industrial Tribunal had then to decide what orders it should pass on the applications under section 33 and section 33 A.
It held that there was no evidence to show that of the forty eight workmen concerned, sixteen workmen named by it had taken part in the go slow or instigated it.
It therefore refused the application under section 33 with respect to these sixteen workmen.
As to the remaining thirtytwo workmen it held that as some Standing Orders which were under contemplation at the time provided either dismissal or suspension for seven days in case of misconduct, it was proper to grant leave to the management to suspend the workmen for seven days, in view of some opinion expressed by a Go Slow Committee appointed some time before by the Bihar Central (Standing) Labour Advisory Board.
In effect, therefore, it rejected the prayer of the management for dismissal with respect to these thirty two workmen also.
Finally, it rejected the application under section 33 A.
This award led to two appeals before the Labour Appellate Tribunal; one was by the management against the entire award so far as it related to its applications under section 33, and the other by the workmen against the dismissal of their application under section 33 A and against the award relating to the applications of the management under section 33.
When the matter came up for hearing before the Appellate Tribunal, the workmen withdrew their appeal with respect to their application under section 33 A and it was consequently dismissed.
The result of the dismissal of the appeal of the workmen was that the finding of the Industrial Tribunal that the suspension was not a punishment and was only pending enquiry by the management and the proceedings before the tribunal, stood confirmed.
As to the *appeal by the management with respect to the applications under section 33, it was contended on its behalf before the Appellate Tribunal that the Industrial Tribunal had gone wrong on two substantial questions of law, namely (1) the Industrial Tribunal could either grant or 106 842 refuse permission to dismiss on an application for such permission under section 33 and it could not substitute its own judgment about the quantum of punishment; and (2) it was wrong in rejecting the applications against sixteen workmen on the ground that there was no evidence.
The Appellate Tribunal was of the opinion that the contention of the management on both these points was correct and that the appeal involved substantial questions of law.
It also found that the Industrial Tribunal 's finding that the workmen had resorted to go slow was not perverse and could be the only finding on the evidence.
It then went on to say that go slow was insidious in nature and could not be countenanced, and that it was serious misconduct normal punishment for which was dismissal.
It also held that the Industrial Tribunal was not right in relying upon the recommendations of the Go Slow Committee and the contemplated Standing Orders which were not till then in force.
Having said all this, we should have expect ed that the Appellate Tribunal would set aside the order of the Industrial Tribunal and grant permission to the management to dismiss the workmen for what was serious misconduct of an insidious nature which could not be countenanced.
But it went on to say that it was well settled that where an employer could not punish a workman without obtaining permission from the tribunal under section 33, an application for permission would be mala fide if it was made after any punishment had already been meted out to the workman.
It held that in the present case, the suspension of the workmen by the management was substantive punishment, because the notice did not in so many words state that it was pending enquiry and therefore the applications for permission having been made after punishment had been meted out were mala fide.
In coming to this conclusion, the Appellate Tribunal seems to have forgotten that it had already dismissed the appeal of the workmen from the order of the Industrial Tribunal on their application under section 33 A, which in effect amounted to confirming the order of the Industrial Tribunal that the suspension was not a punishment but was rightly made pending enquiry by 843 the management and proceedings before the tribunal.
The Appellate Tribunal supported its decision on this question of punishment by stating that the mala fides of the management were clear from the fact that though the suspensions had been made between January 31 and February 7, 1952, the application was filed by the management on March 29, 1952, after the application by the workmen under section 33 A had been filed.
This observation was clearly wrong, for the applications under section 33 were filed on February 6 and 11 by the management, and it was the application of the workmen under section 33 A which was filed on March 29.
Having thus inverted the order in which the applications were made to the Industrial Tribunal, the Appel.
late Tribunal held that the applications of the management under section 33 were Dot bona fide.
It then dismissed the appeal of the management, thus upholding the order of the Industrial Tribunal so far as the suspension of thirty two workmen for seven days was con cerned on the ground that the workmen had withdrawn their appeal, though in the earlier part of the judgment all that was said was that the workmen had withdrawn their appeal against the order under section 33 A.
As the Appellate Tribunal had obviously made a mistake and inverted the order in which the applications under sections 33 and 33 A had been made, a review application was filed by the management.
It, however, held that though the dates had been wrongly mentioned by accident, it saw no reason to review its order.
That is how the management filed two special leave petitions in this Court.
We are of opinion that on the findings of the Industrial Tribunal on the three points formulated by it which have not been upset by the Appellate Tribunal, the only order possible on the applications of the management under section 33 was to permit it to dismiss the forty eight workmen, provided there was evidence against them all.
It was not open to the Industrial Tribunal when it was asked to give permission to dismiss to substitute some other kind of punishment and give permission for that.
The Industrial Tribunal was satisfied that there was misconduct and that finding has been upheld by the Appellate Tribunal.
As such 844 if there was evidence that these forty eight workmen were guilty of misconduct, the Industrial Tribunal was bound to accord permission asked for.
We cannot agree with the Appellate Tribunal that the suspension in this case was substantive punishment and was not an interim order pending enquiry and proceedings before the Industrial Tribunal under section 33.
We have already pointed out that the Labour Officer told the management on January 31, 1952, that it was free to take disciplinary action with the permission of the Industrial Tribunal.
It was thereafter that thirtythree workmen were suspended on January 31 and the notice clearly said that the suspension was pending further orders, thus intimating to the workmen that the order of suspension was an interim measure.
This notice of January 31 was followed by an application on February 6 to the Industrial Tribunal for permission to dismiss the thirty three workmen involved in it, and this also clearly shows that the suspension was pending enquiry (if any) by the management and proceedings before the Industrial Tribunal.
Similarly, the suspension notices of February 5 and 6 relating to fifteen workmen said that they were suspended till further orders and were followed on February II by an application under section 33 to the Industrial Tribunal for permission to dismiss them.
In the circumstances it is quite clear that suspension in this case was not a punishment but was an interim measure pending enquiry and proceedings before the tribunal.
We have already pointed out that this was the finding of the Industrial Tribunal on the basis of which the application under section 33 A was dismissed and this finding stood confirmed when the workmen withdrew their appeal with respect to their application under section 33 A.
The Appellate Tribunal therefore was clearly in error in holding .
that the suspension was punishment.
The only question that remains is about the sixteen workmen about whom the Industrial Tribunal held that there was no evidence to connect them with the go slow.
The Appellate Tribunal 's view in this matter was that the contention of the management that the Industrial Tribunal was wrong in holding that there was no evidence against these sixteen workmen was 845 correct.
It has been shown to us that evidence against these sixteen workmen is of exactly the same witnesses and of the same kind as the evidence against the remaining thirty two.
The finding, therefore, of the Industrial Tribunal that there was no evidence against the sixteen workmen is patently perverse, for there was the same evidence against them as against the remaining thirty two.
It follows, therefore, that all the forty eight workmen (two of whom are since said to have died) are exactly in the same position.
As held by the.
Appellate Tribunal, go slow is serious misconduct which is insidious in its nature and cannot be countenanced.
In these circumstances as these fortyeight workmen were taking part in the go slow and were thus guilty of serious misconduct, the management was entitled to get permission to dismiss them.
But as the management held no enquiry after suspending the workmen and proceedings under section 33 were practically converted into the enquiry which normally the management should have held before applying to the Industrial Tribunal, the management is bound to pay the wages of the workmen till a case for dismissal was made out in the proceedings under section 33; (see the decision of this Court in the Management of Ranipur Col liery vs Bhuban Singh (1) ).
As already pointed out, this is the view taken by the Industrial Tribunal while dealing with the application under section 33 A which stood confirmed by the dismissal of the appeal by the workmen in that behalf.
The management will therefore have to pay the wages during the period of suspension till the award of the Industrial Tribunal.
We therefore allow the appeals and set aside the orders of the two Tribunals so far as the applications under section 33 are concerned and grant the appellant the permission sought for by it in these applications subject to the workmen being paid all their wages during the period of suspension up to the date of the award of the Industrial Tribunal, i. e., 22 9 1952.
As the workmen did not appear to contest these appeals, we pass no order as to costs.
Appeals allowed.
(1) [1959] Suppl.
2 S.C.R. 719.
| The workmen were originally employed by M/s. M.M. Ispahani Ltd., which shortly before the partition of India transferred its registered office from Calcutta to Chittagong.
The appellant company was incorporated on September 5, 1947 and took over the good will and trading rights of M/s. M. M. Ispahani Ltd. and, also purchased its stock in trade, properties and assets.
Most of the shares of the appellant were held by M/s. M. M. Ispahani Ltd. and the business of the appellant was of the same nature carried on in the same premises with the same workmen on the same remuneration.
On the transfer of M/s. M. M. Ispahani Ltd. to Chittagong the question arose of retrenching those workmen who were not willing to go to Chittagong and when the appellant company came into existence it agreed to employ those workmen.
The workmen apparently agreed to the termination of their services with M/s. M. M. Ispahani Ltd., and after receiving their provident funds and arrears of salaries they were appointed by the appellant.
M/s. M. M. Ispahani Ltd. used to pay puja bonus to the workmen at the rate of one month 's wages and the appellant also paid the same from 1948 up to 1952, even in the years in which the appellant suffered losses.
As the appellant did not pay puja bonus for 1953, a dispute arose and was referred for 25 adjudication.
The workmen also claimed benefits from the appellant for the period of service rendered by them under M/s. M. M. Ispahani Ltd. Held, that the workmen were entitled to the puja bonus equal to one month 's wages as it was an implied term of the employment of the workmen.
Puja was a special festival in Bengal and it had become usual with many firms there to give bonus before Puja to their workmen.
A claim for puja bonus was based either on implied agreement or on customary payment.
An implied agreement could be inferred if the following circumstances were established: (i) that the payment was unbroken (ii) that the payment had been made for a sufficiently long period; and (iii) that it was not paid out of bounty.
The payment: need not necessarily be at a uniform rate throughout, and it was for the Tribunal to decide the quantum in a particular year taking into account the various payments made in previous years.
In the present case the payment was unbroken and was not made out of bounty as it was made even in years of loss.
The sufficiency of the length of the period depended on the circumstances of each case and in the present case the appellant had paid the bonus since its birth.
Mahalaxmi Cotton Mills Ltd., Calcutta vs Mahalaxmi Cotton Mills Workers Union, approved.
Held further, that the workmen were not entitled to any benefits arising out of their employment with M/s. M. M. Ispahani Ltd. The workmen had agreed to the termination of their service with that company, and there was no express or implied undertaking given by the appellant regarding continuity of service when employing the workmen.
|
: Criminal Appeal Nos.
423 425 of 1986.
From the Judgment and Order dated 4.4.1986 of the Patna High Court in Death Reference No. 3 of 1984 and in Crl.
Appeal No. 676, 647 and 627 of 1984.
R.L. Kohli and S.P. Singh for the Appellants.
Jaya Narayan and D. Goburdhan for the Respondents.
The Judgment of the Court was delivered by RANGANATH MISRA, J.
These appeals by special leave are directed against a common judgment of the Patna High Court rendered in Death Reference 3 of 1984 and Criminal Appeal No. 627,647 and 676 of 1984.
Each of the appellants in the two appeals has been sentenced to death under section 302 read with section 120 B of the Indian Penal Code.
Appellant Yadav has independently been convicted under section 302 of the Code and has been sentenced to death.
He has also been convicted under section 3 of the Explosive Substance Act and has been sentenced to ten years ' rigorous imprisonment.
Two other accused persons who had been put on trial along with the appellants were 408 acquitted by the trial court and their acquittal has become final.
Mahesh Narain Prasad Sharma, the victim, was a Member of the Indian Administrative Service and was posted as Collec tor and District Magistrate of Gopalganj District in the State of Bihar on the 11th of April, 1983 Mahesh Narain went to his court to work in the morning and after he finished his work, both he and his brother, P.W.62, who was waiting in the chamber of the victim started going down from the first floor of the Collectorate to reach the portico where the Collector 's car was parked.
Mahesh Prasad was followed by his Orderly Peon, P.W. 19, and his brother one after the other.
When the deceased came on the landing, Yadav who was following them suddenly took out a bomb from the bag which he held and threw it at the Collector.
The bomb exploded with a loud noise and as a result of the burst Mahesh Prasad fell rolling on the ground and part of his body was blown off.
Yadav jumped off from the stairs through the side railing but was chased by P.W.62 and others and was appre hended near a fruit stall.
He readily confessed to his guilt but gave out that he had committed the ghastly murder at the behest of appellant Tripathi.
According to Yadav, Tripathi had prevailed upon him to kill the Collector by way of retaliation for demolishing the Ashram after getting Tripa thi detained in jail.
Yadav further maintained that Sadiq, one of the accused persons, had supplied the bomb to him.
P.W.14, the Inspector of Police, who was attracted to the scene by the sound of the bomb burst recorded the first information given by P.W.62, arrested Yadav and sent him to Gopalganj Police Station.
At the trial, 75 witnesses were examined for the prose cution.
Out of them, the evidence of 14 had been tendered.
So far as Yadav is concerned, there was direct evidence of his involvement and he had also confessed to his guilt.
Special leave, so far as he is concerned, is limited to the question of sentence.
We have, therefore, heard learned counsel for Yadav on the question of sentence and see no justification to take a view different from what has been said about him by the High Court.
His appeal, therefore, is dismissed and his conviction as also sentence as awarded by the trial court and confirmed by the High Court shall stand.
We shall now deal with the appeal filed by Sadanand Tripathi.
Sadanand came from a poor family and started his career as a Bus Conductor.
While in employment, he obtained the Degree in Law and started practice as a lawyer in Uttar Pradesh for some time.
Thereafter, he started giving reli gious discourses and styled himself as Sant 409 Gyaneshwar Maharaj.
He tried to make his followers believe that he had seen God and if they followed him and his preachings, they too could see God.
Soon he picked up con siderable following.
He used to tell his followers that they should surrender their body, wealth and mind so that the prospect of seeing God would be bright.
He encroached upon a plot of Government land and built his Ashram thereon.
As he had easy access to resources, the Ashram got fitted with all modern amenities.
Soon his followers, however, started realizing that they had been duped and tricked and began to withdraw from him.
Sadanand had employed a band of muscle men to carry out his nefarious designs.
His followers often became apprehensive of their own security and approached the local authorities for protection.
The Ashram, as the prose cution has tried to show, turned into a den of criminals.
Ultimately the authorities raided the Ashram, recovered bombs and several other objectionable articles therefrom.
Sadanand and many others were taken into custody on 10.7.1982.
The deceased, Mahesh Prasad, who was Collector of Gopalganj made an order under the Crime Control Act detain ing Sadanand in jail.
Eviction proceedings from the en croached land had already been undertaken.
On 14.7.1982 the Commissioner dismissed the appeal filed on behalf of the Ashram and on 15th July, 1982, the entire structure of the Ashram was demolished under the direct supervision of the Collector.
It is not disputed that from th July, 1982 Sadanand had continuously been detained in jail till the Collector 's murder on 11.4.1983.
In view of this fact, the prosecution has relied upon the allegation of conspiracy, confession and other features to establish the complicity of Sadanand in the murder of the Collector.
There are two confessions a judicial confession before a Magistrate, being Exhibit 44 and the other is extra judi cial confession.
Dealing with Exhibit 44, the High Court has observed: "So far as the confession before the Magis trate, Exhibit 44, is concerned, the trial court has itself, hesitatingly, accepted the same.
From the confession I find that it was in the nature of the cross examination which is not permissible under the law and has been depricated by the Supreme Court and different courts of the country.
Mr. Pandey, learned counsel appearing on behalf of the State, has fairly submitted that Exhibit 44 cannot be used in this case.
Therefore, it has to be excluded from consideration.
" 410 Before us Mr. Jai Narain for the State initially placed reliance on the confession but later conceded that apart from what the High Court has observed with regard to the confession, it appeared to be exculpatory in nature and, therefore, would not be admissible against the co accused.
In these circumstances, the judicial confession has to be kept out of considerations.
Coming to the extra judicial confession it has to be remembered that the same related to the point of time con temporaneous to the incident.
There is evidence that Yadav was beaten up badly after being apprehended by the mob soon after the bomb burst.
Several prosecution witnesses have spoken about Yadav confession before them.
There is clear material that Yadav was man handled.
P.W.3 has stated: "He was held by me and other persons chasing him.
We began to assault him and make en quiries from him.
Then the said person himself said, 'why you people are assaulting me.
I have killed the Collector by bomb at the orders of Guru Sant Gyaneshwar and one bomb has been left in the Jhola".
P.W. 10 stated: "The people who caught of him began to assault him and began to ask him why has he killed the Collector.
On being asked, he replied that he had killed the Collector under the orders of Baba . . . " P.W. 11 stated: "On being caught hold of, he was assaulted with slaps, fists and asked as to why he did so.
On being asked, the said person replied that he had hit the Collector by bomb at the orders of Guru.
" Several other witnesses have also spoken in the same trend about Yadav being assaulted by the angry mob soon after his apprehension.
It is a fact that a set of witnesses who, according to the prosecution, were present when Yadav was taken into custody following the incident, have not spoken about any confession.
They are P.Ws. 5, 12, 15, 40 and 57.
In his own statement recorded under section 164 of the Code on 13.4.1983, Yadav denied to have made any statement fol low 411 ing his apprehension.
Even accepting the prosecution story that Yadav made this statement, he appears to have made the statement following assault on him.
Even if it is accepted that Yadav has made the statements as alleged, can the same be utilised against Sadanand is the next aspect for consid eration.
Obviously, when Yadav was beaten up, he must have been anxious to ensure that the assault stopped.
His plea in such a situation would neither be voluntary nor natural.
It would not be proper to rely upon the same for any purpose.
It is well settled that the confession of a co accused is not substantive evidence against other co accused persons in the same trial.
As this Court pointed out in Kashmira Singh vs State of Madhya Pradesh, ; the confes sion of a co accused is not substantive evidence against the other accused persons at the trial but could only be used for lending reassurance if there by any other substantive evidence to be utilised or acted upon.
In Hari Charan Kurmi & Anr.
vs State of Bihar, ; this Court observed: "Thus, the confession may be regarded as evidence in that generic sense because of the provisions of section 30, the fact remains that it is not evidence as defined by section 3 of the Act.
The result, therefore, is that in dealing with a case against an accused person, the Court cannot start with the con fession of a co accused person; it must begin with other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of the said evidence, then it is permissible to turn to the confession in order to receive assurance to the conclusion of guilt which the judicial mind is about to reach on the said other evidence." ". . . that the confession of a co accused person cannot be treated as substantive evidence and can be pressed into service only when the court is inclined to accept other evidence and feels the necessity of seeking for an assurance in support of its conclusion deducible from the said evidence .
" It is now to be found out if apart from the confession there is any substantive evidence from which the prosecution can have support for its case.
According to the prosecution, Yadav was staying with 412 Sadanand in the Ashram.
Learned counsel for Sadanand has argued that the prosecution evidence on this score should be rejected as when on 10th July, 1982 Sadanand was taken into custody following the raid on the Ashram, Yadav was not found there.
Again on the 15th when the Ashram was demol ished and most of the inmates were taken into custody, Yadav was not arrested.
Several other witnesses were examined to show that Yadav was very close to Sadanand.
But as has been rightly pointed out the source of their knowledge appeared to be statement of Yadav and independently they had no personal knowledge of the fact.
Prosecution sought to place reliance upon motive.
Un doubtedly, Sadanand must have had grudge against the Collec tor for his detention as also for the demolition of the Ashram.
As a matter of fact, that must have been the common reaction of all the ashramites including Yadav and Sadiq.
Thus, this could not be a feature to supply the link for establishing conspiracy.
Prosecution also relied upon a feature, which if accept ed, could provide some link between the two for the commis sion of the offence.
According to the prosecution, Yadav was regularly visiting Sadanand at the jail.
The jail records do not support such visits.
According to the prosecution case, Yadav was bribing the jail officials for meeting Sadanand.
The prosecution has further led evidence to show that after the arrival of Sadanand at the jail, enforcement of rules became slack and there was a regular flow of food from outside.
Jail officials were also entertained by Sadanand.
This type of evidence, even if accepted, does not establish conspiracy because Yadav, being a follower, was likely in the usual course to meet Sadanand and the fact that they were meeting at regular intervals by itself would not estab lish conspiracy.
Prosecution relied on an event of 11th April, 1983 by examining P.W.4.
This witness who was a convict staying in the same jail stated that his wife had an interview with him in the jail by paying bribe of Rs.2 or Rs.3 on 11.4.1983.
While he was talking to his wife, he saw accused Yadav talking to Sadanand.
He over heard Yadav telling Tripathi that his work would be done within an hour or so.
Sadanand appeared to be happy on being told so.
P.W.4 has admitted that he has been convicted in three cases of murder and several dacoities.
It appears that by then he had some pending cases against him where final reports were later given by the police.
His wife who was a material witness has not been examined in the case.
413 Obviously, as the jail records did not show that P.W.4 had an interview with his wife that day, the story of brib ing the jail officials has been introduced.
We are prepared to accept the criticism of counsel for the appellant that if the wife had been called she would not have supported the version that she met her husband P.W.4 on that day.
Adverse inference for not examining the wife has to be drawn against the prosecution.
This would thus be the net position.
It is true as argued by Mr. Jai Narain for the State that it is difficult to support the charge of conspiracy with direct evidence in every case but if the prosecution relies upon circumstantial evidence, a clear link has to be established and the chain has to be completed, otherwise it would indeed be hazardous to accept a part of the link as a complete one and on the basis of such incomplete evidence, the allegation of conspiracy cannot be accepted.
Keeping the nature of the offence in view and the conclusions drawn by the High Court, we have not been able to agree with the High Court that the prosecution has established by circumstantial evidence the complicity of Sadanand in the conspiracy to kill the Collector through Yadav.
In these circumstances, Sadanand has become entitled to the benefit of our doubts and his conviction is not sustainable.
His appeal has to be allowed.
He is acquitted and is directed to be set at liber ty forthwith.
Before we part with the case, we must point out that in a case involving the killing of the District Magistrate in his office, better investigation was expected and the State should have taken great care to ensure that every loophole in the investigation was plugged at the fight time in ac cordance with law.
It is unfortunate that lapses have oc curred.
P.S.S. Appeals dis posed of.
| The appellants were alleged to have conspired to kill the Collector cure District Magistrate.
The latter died in a bomb attack by the first accused appellant.
He was caught red handed and when given a beating by eye witnesses he readily confessed to his guilt, but gave out that he had committed the ghastly murder at the behest of the second appellant, who was at that material time detained in jail.
He made a similar confession before the Magistrate.
They were both convicted under s.302 read with section 120B of the Indian Penal Code and sentenced to death.
Their sentence was confirmed by the High Court.
Disposing of the appeals, this Court, HELD: 1.
There was direct evidence of first appellant 's involvement in the crime and he had also confessed to his guilt.
There was, therefore, no justification to take a view different from what has been said about him by the High Court.
His conviction as also sentence shall stand.
[408F G] 2.1 The prosecution has failed to establish by circum stantial evidence the complicity of the second appellant in the conspiracy to kill the Collector through the first accused.
He was, therefore, entitled to the benefit of doubt and his conviction was not sustainable.
[413D] 406 2.2 Where the prosecution relies upon circumstantial evidence to support the charge of conspiracy, a clear link has to be established and the chain has to be complete, otherwise it would indeed be hazardous to accept a part of the link as the complete one.
On the basis of such incom plete circumstantial evidence, the allegation of conspiracy cannot be accepted.
[413C] 3.1 The confession of a co accused is not substantive evidence against other co accused persons in the same trial but could only be used for lending reassurance if there be any other substantive evidence to be utilised or acted upon.
[411C] Kashmira Singh vs State of Madhya Pradesh, ; and Hari Chand Kurmi & Anr.
vs State of Bihar, ; , referred to. 3.2 The judicial confession of the main accused in the instant case was exculpatory in nature and, therefore, would not be admissible against the co accused.
It has, to be kept out of consideration.
[410A B] 3.3 The extra judicial confession of the main accused relates to the point of time contemporaneous to the inci dent.
There was evidence that he was beaten up badly after being apprehended by the mob soon after the bomb burst.
Several prosecution witnesses have spoken about his confes sion before them.
There was clear material that he was manhandled.
[410B C] 3.4 In his statement recorded under s.164 of the Code on 13.4.1983, the main accused denied to have made any state ment following his apprehension.
Even accepting the prosecu tion story that he made this statement, he appears to have made the statement following assault on him.
Even if it is accepted that he has made the statements as alleged, the same cannot be utilised against the co accused.
Obviously when the accused was beaten up, he must have been anxious to ensure that the assault stopped.
His plea in such a situa tion would neither be voluntary nor natural.
It would not be proper to rely upon the same for any purpose.
[410H; 411A B] 4.
The 2nd appellant might have had grudge against the Collector for his detention as also for the demolition of his Ashram.
That must have been the common reaction of all the ashramites, including the co accused.
This could not, therefore, be a feature to supply motive for establishing conspiracy.
[412C D] 407 5.1 Several witnesses were examined to show that the main accused was very close to the co accused.
But the source of their knowledge appeared to be statement of the main accused and independently they had no personal knowl edge of the fact.
[412B C] 5.2 P.W.4, who testified that during his interview with his wife in the same jail, he had overheard the alleged conversation between the accused and the 2nd appellant, was himself a convict in three cases of murder.
His wife, who was a material witness has not been examined in the case.
Adverse inference, has to be drawn against the prosecution for not doing so.
[413A B] 5.3 This type of evidence, even if accepted, does not establish conspiracy because the accused being a follower of the 2nd appellant, a religious preacher, he was likely in the usual course to meet the latter and the fact that they were meeting at regular intervals by itself would not estab lish conspiracy.
[412F]
|
: Civil Miscellaneous Petition No. 265 19 of 1988.
IN Civil Appeal No. 2632 of 1987.
From the Judgment and Order dated 10.6.1985 of the Kerala High Court in W.P. No. 210 of 1985 in O.P. No. 897 of 1984.
Mrs. Baby Krishnan for the Appellant.
A.K. Srivastava and C.V.S. Rao for the Respondent.
The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J.
This is an application for making the award dated 17th February, 1988 passed by Mr V. Khalid, a former Judge of this Court, in a dispute referred to him by this Court 's order dated 6th October, 1987, final and to give consequential directions thereupon. 117 On 7th April, 1979 there was a contract for construction of the building in question.
The contract consisted of two phases.
The date of commencement of both the phases was 10th March, 1979: the date of completion of phase l was 9th June, 1980 and for phase Il 9th November, 1980.
The dispute arose about the handing over of the site.
According to the appel lant, the site was not handed over to him as agreed upon and therefore, the work could not either be commenced or com pleted as stipulated.
He, therefore, accused the respondent of obstructionist tactics also.
According to the respondent, however, the claims put forward by the appellant were imagi nary excuses to gain time and that he put forward various demands for extension of time and for payment of compensa tion to which he was not entitled.
Clause 70 of the general conditions of the contract provided for settlement of disputes by arbitration.
The appellant resorted to this clause and addressed a letter dated 13th September, 1980 to the Chief Engineer, South West Zone, Cochin, informing him that if the said disputes were not settled to his satisfaction within 15 days from the date of receipt of the notice, he would be taking appropriate steps to refer the disputes to arbitration in accordance with the said clause.
This request of the appellant was turned down by the Chief Engineer, as according to him, work was in progress and the question of granting reasonable extension of time was under examination.
Dissatisfied with this, the appellant took the matter to the Engineer in Chief by his letter dated 14th October, 1980 calling upon him to appoint an Engineer Officer as the sole arbitrator to adju dicate upon the disputes between the parties.
This request was not acceded to.
The relationship between the parties became strained.
The respondent asserted that the appellant had abandoned the work and committed breach of contract.
Thereafter, the appellant vide a notice dated 4th October, 1982 called upon the Engineer in Chief to appoint an Engineer Officer as the sole arbitrator.
After further correspondence, the Engineer in Chief by his letter dated 9.6.1983 appointed one Mr. K.C.S. Rao, Chief Engineer, Poona Zone, as the arbitra tor in respect of the disputes.
Mr Rao, it is asserted, entered into reference.
The appellant asserted that Mr Rao was incompetent to function as arbitrator for it was he who had terminated the contract when he was officiating as the Chief Engineer of Sought West Zone.
Aggrieved by this appointment, he filed a suit in the Court of Subordinate Judge, Cochin, seeking leave to revoke the authority of the appointed arbitrator under section 5 of the . 118 (hereinafter referred to as 'the Act '), and for appointment of another person as arbitrator under section 12 of the Act.
It is not necessary to set out the various stages of litiga tion thereafter.
Ultimately, the matter came to this Court and by an order passed by this Court on 25th August, 1987 in Civil Appeal No. 2632/87, it was observed as follows : "Having regard to the facts and circumstances of the case, we are of the opinion that all the disputes mentioned in the Paper Book be arbitrated by a former retired Judge of this Court.
We accordingly appoint Mr. Justice vs Khalid (Retd.) a former Judge of this Court, as the Arbitrator.
The Arbitrator will decide his remuneration as he thinks fit and the parties will pay the same in equal shares.
The parties will also bear the costs and charges of holding the proceedings including the remuneration and other assistance of Stenogra phers etc.
Councel for both the parties have no objection to the aforesaid order.
The learned Arbitrator will enter into reference within a fortnight from the receipt of the copy of the order and will make the award within four months thereafter.
Costs of the parties in the Arbitration proceedings will abide by the decision of the Arbitrator".
The arbitrator entered upon the reference, examined the documents, heard the parties and considered the evidence.
He made his award after inspecting the sites on 20th December, 1987 and 21st January, 1988.
The claims of the appellants contractor were as follows: "1.
On account of losses caused due to increase in prices of materials and cost of labour and transport during the extended period of contract from 9.6.80 work for under phase I and from 9.11.80 for work under phase II.
5,47,612.15 2.
On Account of work done under the contract including fully executed and partly executed items at the origi nally agreed rates and for the cost of materials lying at site and taken over by the Department as well as for the value of machinery, tools and plants lying over the site and taken over by Department.
7,27,095.01 3.
On account of losses caused due to added and infructuous expenditure on overheads, establishments, and 119 supervision during the extended period of contract upto 3.12.81, the date of termination.
1,28,864.00 4.
On account of losses caused by way of gains prevented due to unlawful repudiation of the contract by the Depart ment and the consequent termination of the contract by the contractor.
1,04,424.58 5.
(a) Release of Bank Guarantee for Rs. 1,25.000 (Bank Guarantee No. G/19/80 dated 28.4.80 issued by the State Bank of India, Willingdon Island, Conchin 3).
(b) Refund of the retention amounts recovered by the Department from the Running Account Bills.
Amount not indicated 6.Interest on all the amounts due and payable.
@18% PA from 9.12.81 till actual date of payment or realisation".
The claims on behalf of the respondent, were as under: "1. Excess cost which had to be borne by the Department 19,16,198.82 on account of the defaults of the contractor and subsequent cancellation of the contract after adjusting other amounts due from the contractor under this contract.
Cost of reference to Arbitration 7,000.00" The arbitrator by his award asked the respondent to pay the following: "(a) On claim No. I, a sum of Rs.2,00,216.18 with interest at 10% from 9.12.1981 till the date of this Award.
(b) On claim No. 11, a sum of Rs.2,47,269.69 with interest at 10% from 9.12.1981 till the date of this Award.
(c) Claim No. III Disallowed.
(d) Claim No. IV Disallowed.
(e) On claim No. V(a), the respondent is directed to 120 refund the Bank Guarantee sum of Rs. 1,25,000 to the Cliamant with interest at 10% from the date of the encashment till the date of this Award.
The remuneration of the Arbitrator is Rs.75,000.
Rs.50,000 has already been deposit ed.
The claimant and the Respondent are di rected to.
remit the balance equally (Rs. 12,5000 each) to the Arbitrator to his Madras address by Account payee Draft within two weeks of receipt of the notice under Section 14 of the .
11I. The respondent is directed to pay to the Claimant by way of cost Rs. 17,500 to wards Arbitrator 's remuneration and Rs. 10,000 towards Advocates ' fees and cost.
The respondent is directed to suffer their cost.
The counter claims preferred by the Re spondent against the Claimant are disallowed.
" A petition was filed on behalf of the respondent, where in it was stated as follows: "Regarding petitioner 's claim No. 1, in the absence of any escalation clause, it is not permissible to the Arbitrator to grant any escalation price as sought by the petitioner.
On the other hand, if the work is not complet ed within the specified time, he has got right to ask for extension of time.
Failure to grant extension of time, the contractor can claim difference of prices.
That is not the case here.
Extension of time was granted and the Arbitrator after considering the contentions put forth before him has granted 20% of the escalation price which is not in accordance with the terms of the contract.
Though the term of the contract envisages that the entire site should be handed over in time for comple tion of the work entrusted to him as referred to above in civil works before starting of the work, the contractor is required to put up some preliminary work like construction of temporary store sheds, temporary office which requires sometime and within that time if the other area or the site is not handed over the contractor has got grievances to complain against the Department.
Further, by not hand ing over the site how much damage or loss is sustained has not been 121 apprised off.
Therefore, it is submitted that Claim No. 1 of the Contractor should have been considered as outside the scope of the con tract and hence the arbitrator has exceeded his jurisdiction." Mr Ashok Srivastava, counsel appearing for the Union of India, submitted before us that this is a reasoned award and the learned arbitrator had granted a sum of Rs.2 lakhs as escalation charges and costs.
Mr Srivastava tried to urge that the right to get escalation charges and costs in the absence of escalation clause was not a matter referred to the arbitrator.
In other words, it was urged that the arbi trator had travelled beyond his jurisdiction in awarding the escalation cost and charges.
It is difficult to accept this objection for reason more than one.
It is well settled that an award can only be set aside under section 30 of the Act, which enjoins that an award of an arbitrator/umpire can be set aside, inter alia, if he has misconducted himself or the proceeding.
Adjudicating upon a matter which is not the subject matter of adjudication, is a legal misconduct for the arbitrator.
The dispute that was referred to the arbitrator was, as to who is responsible for the delay, what are the repercussions of the delay in com pletion of the building and how to apportion the conse quences of the responsibility.
In the objections filed on behalf of the respondent, it has been stated that if the work was not completed within the stipulated time the party has got a right for extention of time.
On failure to grant extension of time, it has been asserted, the contractor can claim difference in prices.
In the instant case, it is asserted that the extension of time was granted and the arbitrator has granted 20% of the escalation cost.
Escalation is a normal incident arising out of gap of time in this inflationary age in performing any contract.
The arbitrator has held that there was delay, and he has further referred to this aspect in his award.
The arbitrator has noted that Claim I related to the losses caused due to increase in prices of materials and cost of labour and transport during the extended period of contract from 9.5. 1980 for the work under phase I, and from 9.11.80 for the work under phase II.
The total amount shown was Rs.5,47,618.50.
After discussing the evidence and the sub missions the arbitrator found that it was evident that there was escalation and, therefore, he came to the conclusion that it was reasonable to allow 20% of the compensation under Claim I, he has accordingly allowed the same.
This was a matter which was within the jurisdiction of the arbitrator and, hence, the arbitrator had not mis 122 conducted himself in awarding the amount as he has done.
It was submitted that if the contract work was not completed within the stipulated time which it appears, was not done then the contractor has got a right to ask for extension of time, and he could claim difference in price.
This is precisely what he has done and has obtained a por tion of the claim in the award.
It was submitted on behalf of the Union of India that failure to complete the contract was not the case.
Hence, there was no substance in the objections raised.
Furthermore, in the objections raised, it must be within the time provided for the application under section 30 i.e., 30 days during which the objection was not specifically taken, we are of the opinion that there is no substance in this objection sought to be raised in opposi tion to the award.
Once it was found that the arbitrator had jurisdiction to find that there was delay in execution of the contract due to the conduct of the respondent, the respondent was liable for the consequences of the delay, namely, increase in prices.
Therefore, the arbitrator had jurisdiction to go into this question.
He has gone into that question and has awarded as he did.
Claim I is not outside the purview of the contract.
It arises as an incident of the contract and the arbitrator had jurisdiction.
In that view of the matter the objections raised against the award, cannot be sustained.
No other objection was urged before us.
The award, therefore, must be made the rule of the Court and there will be a decree in terms of the award, and the respondent is directed to pay Rs. 17,500 as the arbitrator 's remuneration and Rs. 10,000 as advocates ' fees and costs.
The Civil Miscellaneous Petition is disposed of accordingly.
N.V.K. Petition disposed of.
| The four appellants along with seven other accused were tried under Sections 147, 148 and 302 read with 149 of the Indian Penal Code.
The trial Court convicted the eight accused, including the four appellants, under section 302/149 I.P.C. and awarded life imprisonment.
Appellants Nos. 1, 2 & 4 were also convicted under Section 147 I.P.C. and each awarded one years R.I.
Appellant No. 3 was also convicted under Section 148 I.P.C. and awarded two years R.I.
The remaining three accused were acquitted by the Trial Court for want of corroboration.
On appeal by the eight convicted persons the High Court upheld the conviction of only four appellants on all the counts and allowed the appeal of the other four co accused for want of corrobora tion.
In this appeal by special leave it was contended that appellants No. 3 and 4 should also be acquitted for want of corroboration as the Trial Court has acquitted three accused and the High Court, on appeal, has further acquitted four accused for want of corroboration.
The appeal was contested on behalf of the State contend ing that in case of conviction under section 302 read with section 149 of the I.P.C. corroboration in case of individu al accused was not necessary and there 131 was enough corroboration on record to prove that the accused were members of the unlawful assembly at the time of commis sion of offence.
Dismissing the appeal, HELD: 1.
Section 149 creates a specific and distinct offence.
It imposes constructive or vicarious criminal liability of the members of the unlawful assembly for the unlawful acts committed pursuant to the common object by any other member of the assembly.
[135B] 1.1.
It is not necessary that all persons forming an unlawful assembly must do some overt acts.
The section makes a member of the unlawful assembly responsible as a principal for the acts of each, and all, merely because he is a member of an unlawful assembly.
While overt acts and active partic ipation may indicate common intention of the persons perpe trating the crime, the mere presence in the unlawful assem bly may fasten vicarious criminal liability under the sec tion.
The basis of the constructive guilt under section 149 is mere membership of the unlawful assembly, with requisite common object or knowledge.
[135E F] 1.2.
The two essentials of the section are the commis sion of an offence by any member of an unlawful assembly and that such offence must have been committed in prosecution of the common object of that assembly or must be such as the members of that assembly knew to be likely to be committed.
The common object of the assembly must be one of the five objects mentioned in section 141 of the Indian Penal Code.
[134G H] 2.
In an appeal by the persons convicted under section 302 with the aid of section 149 I.P.C. the question whether a particular person was a member of the unlawful assembly at the relevant time may be examined; and if it is found from the evidence on record that he was not a member of the unlawful assembly, he could not be convicted with the aid of section 149.
[136F G] 2.1.
But once the Court holds that certain accused persons formed an unlawful assembly and an offence is com mitted by any member of that assembly in prosecution of the common object of that assembly or such as the members of the assembly knew to be likely to be committed in prosecution of that object, every person who at the time of committing that offence was a member of the same assembly is to be held guilty of that offence.
After such a finding it is not open to the 132 Court to see as to who actually did the offensive act.
The prosecution is not obliged to prove which specific overt act was done by which of the accused.
[135G H; 136A] 2.2.
From the evidence on record it has been satisfacto rily established that appellants No. 3 and 4 were members of the unlawful assembly at the relevant time.
Both the Courts below have held them to have been members of the unlawful assembly.
The fact that they were not active participants and whether any specific injury could individually be at tributed to them or not are not at all material.
[136D E] 2.3.
In the instant case the High Court having held that the appellants formed an unlawful assembly carrying danger ous weapons with the common object of resorting to violence and committed an offence punishable with the aid of Section 149 I.P.C. erred in acquitting some of the members on the ground that they themselves did not perform any violent act or that there was no corroboration of their participation.
Doing so would amount to forgetting the very nature and essence of the offence created by Section 149.
[136B D] 2.4 The Court in undeserving cases cannot afford to be charitable in the administration of criminal justice which is so vital for peace and order in the society.
[136D]
|
Appeal No. 43 of 1964, Appeal by special leave from the award, dated August 3, 1962 of the Central Government Industrial Tribunal, Dhanbad in Reference No. 56 of 1961.
B. Sen and I.N. Shroff, for the appellants.
The respondent did not appear.
The Judgment of the Court was delivered by Hidayatullah, J.
This is an appeal by special leave against the Award dated August 3, 1962, of the Central Government Industrial Tribunal Dhanbad, under the 448 449 The appellants are the Employers in relation to Digwadih Colliery and the respondents their workmen.
The workmen did not appear in this Court.
The dispute was whether the management of the colliery was justified in terminating the services of Jaldhar Singh with back wages.
Jaldhar Singh was a 'badli ' workman which means (as defined by the Standing Orders of the colliery) a person appointed in the post of a permanent employee or probationer who is temporarily absent.
He worked as badli in the calendar years 1959 and 1960 in different capacities.
His employment was, of course, not continuous and there were six breaks of one day to a week in 1959 and eight breaks of one day to a week in 1960.
However, he worked for more than 240 days in each calendar year though with these interruptions.
In January 1961 the colliery terminated Jaldhar Singh 's service without notice to him or payment of wages in lieu of notice or compensation.
A dispute arising, conciliation was attempted but failed and the reference followed.
Before the Tribunal the workmen claimed that Jaldhar Singh was a permanent workman while the Employers contended that he was temporary.
The Employers stated that as some of the permanent staff had become surplus, there was no need of badli workmen and the termination of Jaldhar Singh 's service was justified.
The workmen attempted to prove that Jaldhar Singh was permanent from 1960 and produced some documents from which they asked that this inference be drawn but the Tribunal did not agree.
The workmen relied in the alternative upon section 25F of the Act because Jaldhar Singh had put in service of 240 days in each of the years and contended that as the Employers had failed to comply with the provisions of section 25F the termination of service was illegal and unjustified.
The Employers submitted that section 25F could apply only if Jaldhar Singh had put in 240 days ' continuous service in any of the years 1959 or 1960.
The service of Jaldhar Singh was admittedly terminated as there was no work for him and not on account of disciplinary action or voluntary retirement, superannuation or ill health.
This was thus a case of retrenchment as defined in section 2(00) of the Act.
Section 25F, which was inserted as part of Chapter VA, with effect from October 24, 1953 by the Industrial Disputes (Amendment) Act 1953 (43 of 1953) provides: "25F. Conditions precedent to retrenchment of workmen.
No workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until (a) the workman has been given one month 's notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has 450 been paid in lieu of such notice, wages for the period of the notice: Provided that no such notice shall be necessary if the retrenchment is under an agreement which specifies a date for the termination of service; (b) the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days ' average pay for every completed year of service or any part thereof in excess of six months; and, (c) notice in the prescribed manner is served on the appropriate Government," The section, if it applied, had plainly not been complied with I in respect of any of the conditions precedents Jaldhar Singh, as seen already, had not been given any notice or wages in lieu of notice or paid compensation and no notice had been served on the appropriate Government.
The termination of service would, in these circumstances, be illegal.
But the Employers pointed, out that section 25F required two conditions: (a) continuous service and (b) service for not less than one year, and contended that these conditions were not fulfilled as the service was not continuous but broken.
They relied on the definition of "continuous service" in section 2(eee) which was introduced by the same amending Act: "2(eee) continuous service means uninterrupted service, and includes service which may be interrupted merely on account of sickness or authorised leave or an accident or a strike which is not illegal, or a lock out or a cessation of work which is not due to any fault on the part of the workman;" The workmen, on the other hand, relied upon the provisions of section 25B which read: "25B. Definition of one year of continuous service.
For the purposes of sections 25C and 25F, a workman who, during a period of 12 calendar months, has actually worked in an industry for not less than two hundred and forty days shall be deemed to have completed one year of continuous service in the industry.
Explanation.
In computing the number of days on which a workman has actually worked in any industry, the days on which (a) he has been laid off under an agreement or as permitted by standing orders made under the , or under this Act or under any other law applicable to the industrial establishment, the largest number of days during 451 which he has been so laid off being taken into account for the purposes of this clause, (b) he has been on leave with full wages, earned in the, previous year, and (c) in the case of a female, she has been on maternity leave; so however that the total period of such maternity leave shall not exceed twelve weeks, shall be included.
" The definitions in section 2 of the Act do not apply if there is anything repugnant in the subject or context and the question is whether the definition of "continuous service" can at all apply in considering section 25F when what is meant by the expression "one year of continuous service" in section 25F is, by section 25B specially stated.
If section 25B had not been enacted the contention of the Employers would have been unanswerable for the words of section 25F would then have plainly meant that the service should be for a period of 12 months without interruptions other than those stated in section 2(eee) itself.
But section 25B says that for the purpose of section 25F a workman who, in a period of twelve calendar months has actually worked for not less than 240 days shall be deemed to have completed one year of continuous service.
Service for 240 days in a period of twelve calendar months is equal not only to service for a year but is to be deemed continuous service even if interrupted.
Therefore, though section 25F speaks of continuous service for not less than one year under the employer, both conditions are fulfilled if the workman has actually worked for 240 days during a period of twelve calendar months.
It is not necessary to read the definition of continuous service into section 25B because the fiction converts service of 240 days in a period of twelve calendar months into continuous service for one complete year.
Mr. B. Sen drew our attention to the Industrial Disputes (Amendment) Act 1964 which was passed last December.
By section 2(iii) of the amending Act of 1964 clause (eee) of the second section of the principal Act was omitted and by section 13, for section 25B in the principal Act the following was substituted: "25B. For the purposes of this Chapter, (1) a workman shall be said to be in continuous service for a period if he is.
for that period, in uninterrupted service, including service which may be interrupted on account of sickness or authorized leave or an accident or a strike which is not illegal, or a lock out or a cessation of work which is not due to any fault on the part of the workman; (2) where a workman is not in continuous service within the meaning of clause (1) for a period of one year 452 he shall be deemed to be in continuous service under an employer (a) for a period of one year, if the workman, during a period of twelve calendar months preceding the date with reference to which calculation is to be made, has actually worked under the employer for not less than (i) one hundred and ninety days in the case of a workman employed below ground in a mine; and (ii) two hundred and forty days, in any other case; The Explanation to section 25B is the same, mutatis mutandis as before.
Mr. Sen contended that the change in the law brought out his contention.
We do not agree.
The amended section 25B only consolidates the previous sections 25B and 2(eee) in one place, adding some other matters which are not relevant to the present purpose, but the purport of the new provisions is not different.
In fact the amendment of section 25F of the principal Act by substituting in cl.
(b) the words "for every completed year of continuous service" for the words "for every completed year of service" now removes a discordance between the unamended section 25B and the unamended cl.
(b) of section 25B.
Neither before these several changes nor after is uninterrupted service necessary if the total service is 240 days in a period of twelve calendar months.
The only change in the new Act is that this service must be during a period of twelve calendar months preceding the date with reference to which calculation is to be made.
The last amendment now removes a vagueness which existed in the unamended section 25B.
We accordingly hold that the decision under appeal is correct.
The appeal fails and is dismissed.
Appeal dismissed.
| The respondents hired lockers in the safe deposit vaults from the appellant bank at Jullundur through its manager under different agreements on various dates during 1950.
In April 1951, the lockers were tampered with and the valuables of the respondents kept in them were removed by the Manager.
In due course the Manager was prosecuted and convicted for theft.
The respondents filed three suits against the bank for the recovery of different sums being the value of the contents of the lockers which had been removed.
The bank denied its liability on various grounds and also contended that the suits were, barred by limitation.
The trial court held that the Bank was liable to bear the loss incurred by the respondents and that the suits were not barred by limitation.
On appeal, the High Court accepted the findings of the trial court on both the questions and dismissed the appeals.
In the appeal before the Supreme Court, only the question of limitation was raised.
It was contended of behalf of the appellants on the facts found that the suit was barred by limitation as the theft of the valuables by the Manager was a tort committed by him dehors the contracts entered into by the appellant with the respondents and, therefore, Article 36 of the Limitation Act which required that a suit must be instituted within two years applied, and not article 115, which provided for a period of limitation of three years; that the suits were, not based on a breach of contract committed by the bank but only the theft committed by its agent dehors the terms of the contract.
HELD: The suit claims, being ex contractu, were clearly governed by Article 115 of the First Schedule to the Limitation Act and by Article 36.
[298F] There were clear allegations in the plaint that the appellant committed breach of contract in not complying with some of the contitions thereof and that the appellant understood those allegations in that light and traversed them.
[298 E] Even ii the respondents ' claim was solely based on the fraud committed by the manager during the course of his employment, such a claim could not fall under article 36.
To attract article 36, the misfeasance must be independent of contract.
The fraud of the manager committed in the course of his employment must be deemed to be a fraud of the principal, i.e. the Bank must be deemed to have permitted manager to commit theft in violation of the terms of the contracts.
While under the contracts the bank was under an obligation to provide good lockers and not to permit access to the safe except to persons mentioned in the contracts, in violation of these terms the bank gave defective lockers and gave access to the manager, thus facilitating the theft.
In either case the wrong committed was not independent of the contract but directly arose out of the breach of contract.
[298 G, H]
|
No. 5222 of 1985.
(Under Article 32 of the Constitution of India) (With Writ Petition Nos. 443 and 754 of 1988) R.K. Garg, S.K. Verma, P. Anshu Mishra and R.S. Singh for the Petitioners in Writ Petition No. 5222 of 1985.
G.B. Pai and S.K. Sinha for the Petitioners in Writ Petition No.754 of 1988.
K. Parasaran, Attorney General, G. Ramaswamy, Additional Solicitor General, Ms. A. Subhashini, Probir Mitra and K. Swamy for the Respondents.
The following Order of the Court was delivered: Workmen of Rohtas Industries Limited situated at Dalmi anagar in District Rohtas within the State of Bihar sent a letter addressed to Hon 'ble the Chief Justice of this Court on 8th of July, 1985, alleging that the Company had four units, namely, paper and boards, cement, asbestos and vege table ghee plant; the management closed down the industries with effect from 9th of September, 1984, and have denied employment to about 10,000 employees.
It was prayed that there should be immediate restoration of electricity to the colony, payment 618 of salary and wages for the period since closure should be directed and compensation as per the amendment to the Indus trial Disputes Act in 1984 and dues under the provident fund account, gratuity etc.
should also be directed to be paid.
This letter was registered as a writ petition and notice was issued.
In the meantime by order dated 22.5.
1986, the Patna High Court appointed a Provisional Liquidator under the Companies Act.
In the writ proceedings before this Court the employers, the Provisional Liquidator, the State of Bihar and the Union of India have, in due course, appeared.
On 27.4.1987, the Court made an interim order in the matter of payment of arrear wages by sale of assets.
On 22.7.1987, the Court took note of the fact that the proposal for restructuring of the Company was afoot in terms of its suggestion and stated that claims of the financial institu tions would be considered later.
On October 28, 1987, the Court stated: "This Court had issued notice to the Union of India and learned Attorney General to ascer tain if it is possible to revive the company which has suddenly gone sick.
Learned Attorney General states that in the meantime which received assent of the President on 8th January, 1986 has come into force and a Board in terms of section 4 thereof has now been constituted.
He suggests that a reference may be made to that Board and the Board may be called upon to frame the Scheme as contemplat ed under section 18 of the Act for revival of the company and instead of allowing the Scheme to be dealt with further under the Act, the Board may be called upon to submit its Report along with the Scheme for consideration of this Court.
He also submits that in the spe cial facts of the case there is no necessity to subject the Scheme to a statutory appeal.
Counsel for the petitioners agrees that an effort may be made as per the suggestion of the learned Attorney General.
" The Central Government made a reference to the Board within one week as directed by the Court and the Board was given four months ' time to frame the Scheme.
On 7.9.1988, this Court took note of the fact that the State of Bihar was inclined for nationalisation of the Company.
The Union of India filed an affidavit that if any proposal is mooted for nationalisation, it would be supported.
This Court stated in this order of 7.9.1988: 619 "On examining the matter in this background we are of the view that it is in the interest of everyone that the industrial establishment should be revived and sooner it is the better.
In these circumstances, we direct that a Committee with the Industries Secretary of the Union of India as its Chairman be immediately constituted to work out the modalities of nationalisation.
The Committee should consist of the Secretary, Industries, Government of Bihar, senior representatives of the creditor financial institutions, Finance Secretary of Government of India or his representative and representative of Reserve Bank of India.
The Committee should examine the matter and submit its report within six weeks . . . " On 9.8.1989, the Court took note of the report by saying: "The report submitted to this Court indicates that three units excepting paper unit are viable and can be revived.
On the 13th of December, 1988, this Court considered the report and adjourned the matter to give an opportunity to the parties to explore the modalities of revival of the three viable units.
No substantial progress has been made as we find.
By the adjourned date the modali ties should be discussed and finalised and reported to the Court so that an order can be made to revive the three units.
The report indicated that in regard to paper unit, the Committee was not of the opinion that it was viable.
Learned Attorney General and Mr. Pal had been requested by the Court to explore the possibilities of revival of the paper unit.
Ms. Subhashini on behalf of the learned Attorney General states that given two weeks ' time further discussions shall be held and a complete decision may be reached as regards the paper unit . . " A joint memorandum was filed by the Union of India and the State of Bihar on 12.9.1989 which the Court rejected on account of the fact that there was no clear and definite indication in the memorandum as to revival.
Thereafter, the State of Bihar and the Union of India have filed their statements separately and a copy of the memorandum prepared by the learned Attorney General and circulated has also been filed before us.
We have also heard learned counsel for the parties in the matter.
620 It is not disputed that there is a huge amount of wages outstanding to the workmen.
Several financial institutions have large dues to recover from the Company.
The Trustees of the Debenture Trust Deeds have also sought to intervene in this Court to maintain their claim.
Apart from these, the owners of the Company have also pleaded that they are enti tled to compensation in the event of the properties of the Company being taken away by way of nationalisation.
As already noted, the Company has been closed down for more than five years now.
A lot of assets are fast becoming useless and will soon become junk.
Several attempts were made to dispose of some of the stocks held by the Official Liquidator but for one reason or the other it has not been possible to complete the sale and though this Court had directed that the sale proceeds would be utilised for pay ment of arrears wages, that has not been feasible.
Claims have been laid against the Company and are perhaps awaiting adjudication.
If the Company is not revived and gets liqui dated, the liabilities would turn out to be far in excess of the assets and notwithstanding first or second charge on the assets, the creditors may not appreciably benefit.
This Court cannot lose sight of the fact that living to about 10,000 families had been denied for over five years and apart from national loss, the workmen have been put to serious jeopardy.
In these circumstances, we are satisfied that it is of paramount importance that the Company in respect of the viable units should be revived and allowed to come into production.
Unless there be a moratorium in regard to the liabilities of the Company for a reasonable time, the attempt to revive the Company in respect of the three units is bound to be frustrated upon the intervention of the creditors, whereas once the company is revived and big commercial activities are carried on, profit is bound to be earned and a conscientious and prudent administration would certainly, in due course, provide adequate funds for satis faction of the debts.
At present the question is one of priorities.
It has to be prudently decided as to which ones should be allowed to go ahead and which should be made to wait.
In this background and on the basis of the memoranda filed by the State of Bihar and the Union of India and the note prepared by learned Attorney General and made available to us by Mr. Pal for the other side with the Attorney Gener al 's consent, we give the following directions: 1.
The State of Bihar shall appoint an authorised officer from the Senior IAS cadre with appropriate commercial back ground 621 to be the Rehabilitation Administrator.
The Provisional Liquidator appointed by the High Court of Patna shall hand over to the Administrator all the assets of the Company which he has taken over under orders of the Court.
Such assets of the Company which have not yet been taken over by the Provisional Liquidator shall upon the appropriate officer being designated vest in him forthwith and he is clothed with the necessary power under our present orders to take such steps as are necessary to take over possession of such assets of the Company.
In the event of a dispute arising out of the decision of the Administrator that the asset is of the company and is to be taken over by the Administrator, an appeal shall be maintainable before a Division Bench of the Patna High Court and the Judges to constitute such Bench shall be nominated by the learned Chief Justice.
For convenience the same Judges shall contin ue on the nominated Bench for a reasonable period.
The assets of the Company encumbered with financial and other institutions shall not be available to be proceeded against for a period of one year from today and there shall be a moratorium for a period of one year in regard to pro ceedings taken and pending or to be taken against the Compa ny hereafter and limitation shall remain suspended for the period under our orders of today.
It would be open to the Court on being moved to extend the moratorium.
The costs of the entire assets to be taken over by the State Government of Bihar as per the book value and the dues against the company are estimated to be within the limit of Rs. 15 crores.
The State Government of Bihar has undertaken before us to deposit the amount of Rs. 15 crores with the Administrator within eight weeks from today.
A similar amount of Rs. 15 crores shall be advanced by the Union of India to the State of Bihar from out of plan assistance for the State.
The sum of Rs. 15 crores paid by the State Gov ernment shall be utilised, in due course, for payment of arrears of wages to the workers and for disbursement of secured loans of financial institutions and other parties for which security of the Company 's assets had been fur nished.
The Administrator shall open an account with the lead nationalised Bank for the State of Bihar operating at Dalmianagar into which the two sums of money being Rs. 15 crores each shall be credited.
622 5.
The Administrator shall set up one Committee with a retired High Court Judge, a retired District Judge and an Accounts Officer with at least five years ' experience as Financial Advisor to the State Government to examine the claims of the owners of the Company and other parties in cluding financial institutions.
This should be done within six months from now.
Once the list of creditors is settled with all reasonable particulars, the matter should be re ported to this Court for directions and it shall be open to this Court to finally indicate the figure at which each such claim shall be settled.
An inventory of all the articles shall be made within four weeks from now.
Steps shall be taken to form a new company within four weeks from now.
Appointment of technical consultants and other competent officers shall be undertaken within two months hence.
The asbestos, cement and vanaspati plants shall be commissioned after effecting such repairs as may be neces sary.
The retrenched employees shall come back to work in phases.
The first phase shall admit a thousand workers, the second phase shall admit an equal number and in the third phase, such number of further workers as may be necessary to run the industries in a viable way shall be finalised.
All expeditious steps as may be possible shall be taken to provide employment.
Steps shall be taken to explore the viability of the paper unit within three months after the Company is re commissioned in respect of the three units.
Liberty is given to the parties to apply in the event of necessity but it is made clear that no extension in regard to payment of the fifteen crores of rupees by the State Government and the Union Government shall be granted.
Every attempt should be made by all concerned to give effect to the order keeping its true purport and spirit in view.
We do not intend to leave doubts in any one 's mind that the purpose of our order is to revive the Company and make it work viably.
Everyone charged with the responsibility of implementing the order of the Court shall, therefore, be expected to work in such a way as would fulfil that purpose.
We direct that the case shall remain pending in this Court and shall not be taken to have been disposed of by this order.
Call the case on 1st of March, 1990.
| The respondent company obtained sanction of a building plan from the New Delhi Municipal Committee for the con struction of a building on a plot held by it on lease.
After incorporating certain changes, the respondent company sub mitted a revised plan for sanction of the New Delhi Munici pal Committee, but the same was rejected by an order Dated 18.12.1987.
A rectified plan was thereafter submitted by the re spondent to the New Delhi Municipal Committee, for necessary sanction, but as no orders were received, the respondent filed a writ petition in High Court seeking a direction to the New Delhi Municipal Committee to deal with the same for grant of necessary sanction.
During the pendency of the aforesaid writ proceedings the Delhi Urban Art Commission approved the plans as re quired under Section 12 of the Delhi Urban Art Commission Act, 1973.
The Chief Fire Officer also gave clearance to the building plans in relation to the Fire Safety Precautions.
The High Court allowed the Writ Petition by an Order dated 28.4.1989 holding that inspite of the clearance grant ed by the Urban Art Commission and the Chief Fire Officer, New Delhi Municipal Committee 's disinclination to accord the sanction was unjustified, and directed the New Delhi Munici pal Committee to convey the formal sanction in respect of the building plans.
In appeal to this Court, it was contended on behalf of the New Delhi Municipal Committee, that (i) in the matter of fire safety requirements, the building plans were not in accordance with Building Bye Laws for the Union Territory of Delhi, 1983; (ii) The clearance given by the Chief Fire Officer is not binding on the New Delhi Municipal Committee which can examine the question independently of such clear ance and (iii) the proposed building plan does not provide for a 'Podium"/"Pedestrian Walk way" as required under the approved Zonal Development Plan under Sec.
9(2) of the Delhi Development Act, 1957.
Setting aside the High Court Order dated April 28, 1989, this Court, HELD: 1.
The requirements of Bye Laws 16.4.8 arc not inflexible and in appropriate cases where the plans and designs incorporate fire safety measures which, in judgment of the Corporation are 593 considered to provide for the safety in a measure better than those envisaged by the bye laws 16.4.8 the Corporation would not be precluded from accepting them i.e. if a build ing design incorporate fire safety measures in a measure promoting fire safety precautions far better than those suggested by the Bye laws they should not fetter the hands of the licencing authority to accept them.
[609H; 610A, 609C] 1.1 Whether the plans submitted by Respondent distribut ing Refuge Area in each floor provide such a better and more reliable fire safety measures is a matter for the decision of the Corporation.
[610A] 1.2 It is, of course, wise in the interests of uniformi ty of administration of these Bye laws and of elimination of possible complaints of ' partisanship, that the Corporation should insist upon adherence to the requirements of the Bye law 16.4.8 on its own strict terms.
That should not, however, denude the power of the Corporation to accept designs which, in its judgment offer and incorporate fire safety precautions of higher measure.
[608H: 609A] 1.3 When fast and sweeping changes are overtaking the fundamental ideas of building design and construction and new concepts of building material emerging, it would be unrealistic to impute rigidity to provisions essentially intended to promote safety in building designs.
[609A] 2.
The clearance from the Chief Fire Officer envisaged by Bye law 17.1 is an additional condition and not a limita tion on the power of the Corporation to satisfy itself that the building plans provide for adequate fire safety precau tion in accordance with its bye laws or in a better measure.
The clearance by the Chief Fire Officer, which is expected to involve and follow a technical assessment and evaluation, obliges the Corporation to give due weight to it but, having regard to the scheme and language of the bye laws the deci sion of the Chief Fire Officer is not binding on the Corpo ration.
[609E] 2.1 The clearance of the plans by the Chief Fire Offi cer would not render it obligatory on the part of the Corpo ration ipso facto to treat the plans as necessarily comply ing with the requirements of relevant bye laws.
While the clearance by the Chief Fire Officer is an indispensable condition for eligibility for sanction, however, such clear ance, by itself, is not conclusive of the matter nor binding on the Corporation which is entitled to examine the question independently of such clearance from the Chief Fire Officer.
[609G; 610B] 594 3.
Bye law 16.4.8.1 requires that Refuge Areas shall be provided on the "external Walls" by means of cantilever projections or "in any other manner".
The words "in any other manner" in Bye law 16.4.8.1 are not intended to envis age a totally different idea of the location of Refuge Areas, but, prima facie, intended to suggest some feasible alternative to the technical design of the construction of the Refuge Area whether it should be a cantilever projec tion or designed in some other way.
The purpose of Refuge Areas include that in the event of an out break of fire in the building, persons exposed to the hazard should be able to have immediate access to a place of safety which by its access to fresh air insulates them from heat and smoke and further that those persons could conveniently be extricated and rescued to safety by rescue operations.
Therefore, "Refuge Areas" must be located on walls which open into vacant space from which rescue operations are possible.
[610C, 611B, 610D G] 3.1 The word "external wall" in bye law 16.4.8.1 which is a provision intended to promote public safety, health and well being must receive a purposive construction which promotes those objects and purposes.
Having regard to the very purpose of providing for Refuge Areas the expression "external wall" must be held to be one which abuts a vacant space to which fighting and rescue equipment can have access and from which rescue operations are feasible.
[610D; 610F] 3.2 In the instant case, the Refuge Areas are provided on the wails that open into an inner vacant space.
Refuge Area located on a wail though abutting an inner vacant space would not, by itself, promote the object if the vacant space is such that no rescue operations are possible to be con ducted therefrom.
If the fire fighting and rescue equipment cannot have access to such inner vacant space, then, in the context of the specific objectives of bye law 16.4.8.1 the wail abutting such inner vacant space would not be an "external wall" for the purpose of the said bye law.
The Corporation should decide this question and examine whether such rescue operations are feasible from the inner circular vacant space.
This is an exercise individual to each case and to be judged on case to case basis.
[610C; E, H; 611A] 4.
Though the Zonal Development Plans envisaged a raised pedestrian walk way on either side of Barakhamba Road and the provision for podia connecting the building with the walk way were accepted and an appropriate notification issued way back in 1966, no steps appear to have been taken to give effect to them in a uniform manner.
In fact several authorities including a Committee constituted by the Lt. Gover 595 nor of Delhi in 1983, and the Chief Fire Officer, have advised against the implementation of the proposal.
In such circumstances insistence to have such a pedestrian walk way for the building, if such walk ways do not already obtain in other buildings on the Road, requires reconsideration.
Moreover, the insistence for provision of such a walk way in an individual case without the integration and continuation of the walk way along the whole of the road, would indeed, be purposeless.
[611G H; 612A B] [Respondent to effect such rectifications to 'the plans in regard to the Refuge Area as may be necessary, the New Delhi Municipal Committee to consider and decide the ques tion of according sanction to the plans without insisting upon any fresh clearance from Delhi Urban Arts Commission or the Chief Fire Officer.
Appeal to be kept pending and be taken for final disposal after the submission of the report from New Delhi Municipal Committee]
|
ition (Criminal) No. 981 of 1984.
(Under article 32 of the Constitution) Navin Malhotra and Harjinder Singh for the Petitioners.
K. Parasaram, Attorney General and A. V. Rangam for the Respondent.
The Judgment of the Court was delivered by G VENKATARAMIAH, J.
We have heard Shri Navin Malhotra, amicus curiae and the learned Attorney General for the State of Tamil Nadu.
In State of Andhra Pradesh vs Vallabhapuram Ravi 1058 (Criminal Appeal No. 254 of 1984) in which judgment was delivered on September 14, 1984 this Court has held that adolescent offenders kept in a Borstal School by virtue of orders made by the State Government under section 10 A of the Andhra Borstal Schools Act, 1925 cannot be detained in the Borstal School or in any other place after they have attained 23 years of age and that they should be released.
The provisions of the Tamil Nadu Borstal Schools Act, 1925 are identical with the provisions of the Andhra Borstal Schools Act, 1925.
In the judgment referred to above the decision of the Madras High Court in In re.
Ganapati which had taken the view that after section 433A of the Code of Criminal Procedure, 1973 came into force a person who was convicted of an offence punish able under section 302 of Indian Penal Code but sentenced to imprisonment for life and who was by virtue of an order passed under section 10 A of the Tamil Nadu Borstal Schools Act, 1925 detained in a Borstal School could not be released before he completed 14 years of detention has also been overruled.
In the circumstances it has to be held that the State Government of Tamil Nadu cannot keep any adolescent offender who is convicted of a capital offence but sentenced to imprisonment of life in respect of whom an order is made under section 10 A of the Tamil Nadu Borstal Schools Act in a Borstal School or in any other kind of detention after he has attained 23 years of age.
We, therefore, direct the Government of the State of Tamil Nadu to release all such inmates of the Borstal Schools in Tamil Nadu who have attained 23 years of age forthwith.
If the petitioner C. Elumalai satisfies the above condition he is also entitled to be released and if he is not in detention he shall not be taken back into custody.
The writ petition is accordingly allowed.
N.V.K. Petition allowed.
| The respondent landlord sought eviction of the appellants tenants under section 12 (1) of the Madhya Pradesh Accommodation Control Act, 1961 on the main ground that the landlord bonafide required the premises for locating his gold and silver ornaments factory after demolishing and reconstructing the building.
The courts below found that the requirement of the landlord was bonafide and ordered eviction of the tenants under section 12 (l) (f) and (h) of the Act.
In these appeals the tenants contended that since the eviction ordered was under section 12 (l) (h), section 18 of the Act was attracted and it was obligatory on the part of the landlord to provide accommodation of equal extent to the tenants in the new building to be constructed by him.
Dismissing the appeals, ^ HELD: In Ramnilal P. Mehta vs Indradaman Amritlal this Court observed that once the landlord establishes that he bonafide requires the premises for his occupation, he is entitled to recover possession of it from the tenant under the provisions of sub clause (g) of section 13 (1) of the Bombay Rents, Hotel and Lodging House.
Rates Control Act, 1947 irrespective of the fact whether he would occupy the premises without making any alterations or after making tho necessary alterations.
[948B C] Ramnilal P. Mehta vs Indradaman Amritlal Sheth, ; , referred to.
Section 13 (1) (g) of the Bombay Rents, Hotel and Lodging House, Rates Control Act, 1947 corresponds to section 12 (1) (f) of tho Madhya Pradesh Accommodation Control Act.
[948A] Applying the above principle to the facts of the instant case, though the Courts below have passed the order of eviction under section 12 (1) (f) and (h) the Court is of the opinion that the order of eviction is based really and substan 946 tially only under section 12 (1) (f) of the Act.
The fact that section 12 (1) (h) is also mentioned in the order of the Court below does not make the order of eviction purely one under that section, for the main ground of requirement of the landlord is bonafide personal requirement for locating his proposed factory for the manufacture of gold or silver ornaments.
Therefore there is no case for the application of section 18 to the facts of the present case.
[947F G]
|
Appeal No. 1554 of 1970.
Appeal.
by Special Leave from the Judgment & Order dated the 19th August, 1968 of the Madras High Court in Tax Case No. 18 of 1 965.
G. B. Pai, A. G. Manessea, D. C. Mathur and K. K. John, for appellant.
B. B. Ahuja and section P. Nayar, for the respondent.
807 The Judgment of the Court was delivered by GUPTA, J.
This is an appeal by special leave from a judgment of the Madras High Court in a reference under section 66(1) of the Income Tax Act, 1922.
The appellant, Nonsuch Estate Limited, is a public limited company incorporated in the 'year 1924 under the Companies Act, 1913.
The appellant, referred to hereinafter as the Company, derives its income from tea grown in its estate for which it is assessed to income tax.
M/s. Harrisons and Crosfield Limited have been the managing agents of the Company from the beginning.
The following question relating to the assessment year 1959 60 was referred to the High Court : "Whether on the facts and in the circumstances of the case, the sum of Rs. 97,188/ representing the Managing Agency remuneration for the period 1 4 1956 to 30 6 1957 was deductible in the computation of the income of previous year ending on 30th June 1958, relevant for the assessment year 1959 60.
" The relevant facts leading to the reference are these.
The managing agents of the Company were entitled to commission at the rate of 11 per cent on all sales of tea and other produces of the Company and a further sum of Rs. 12,000/ per annum for secratarial work.
There was, however, no written.
agreement embodying the terms.
After the came into force on April 1, 1956 it was decided that there should be a fresh managing agency agreement between the Company and its managing agents in conformity with the provisions of the said Act.
A fresh agreement drawn up and submitted by the managing agents was approved by the Company.
The new agreement proposed the reappointment of M/s. Harrisons & Crosfield Limited as the managing agents of the Company for a period of 10 years on a remuneration of 5 per cent commission on the net profits of the Company computed in the manner laid down in sections 349 to 351 of the subject to a minimum remuneration of Rs. 12,000/ per annum.
The revised terms were to take effect from April 1, 1956.
As required by sec.
326 of the , the new agreement was sent to the Central Government for approval by a communication dated august 3, 1957 enclosing a formal application for the purpose in Form 25, On September 2, 1957 by a letter addressed to the Company the Government conveyed its approval to "the appointment of M/s. Harrisons & Crosfields Ltd. as the Managing agents. . for a period of 10 years with effect from 1st April 1956, on a remuneration of 5 per cent commission on the net profits of the Company computed in the manner as laid down in Sections 349 to 351 of the subject to a minimum remuneration of Rs. 12,000/ (Rupees twelve thousand only) per annum payable to the Managing Agents, in the event of absence or inadequacy of profits in any financial year.
" On receipt of the approval, the Company by a resolution adopted at an extraordinary general meeting of its shareholders held on October 4, 1957 reappointed M/s. Harrisons & Crosfield Limited on the terms stated above.
In terms of the new agreement the existing agency agreement between the parties stood cancelled with the expiry of March 31, 1956.
808 The Company follows the mercantile system of accounting.
For the period April 1, 1956 to June 30, 1956, the Company credited a sum of Rs. 9320/ to the account of the managing agents as their remuneration in accordance with the terms of the proposed new agreement.
This was disclosed in the published accounts of the Company for the year July 1, 1955 to June 30, 1956 relevant to the assessment year 1957 58.
For the purpose of assessment of income tax, however, the Company added back the said sum of Rs. 9,320/ to its taxable income.
In the next accounting year ending on June 30, 1957 relevant to the assessment year 1958 59 the same process was followed with regard to the remuneration payable to the managing agents.
For the assessment year 1959 60 for which the previous year was July 1, 1957 to June 30, 1958, a total sum of Rs. 97,188/ was shown as managing agents ' remuneration payable during that year.
This amount was made up as under Amount .lm15 " Proportionate remuneration for 3 months at 5 per cent on the net profits for the period ending on 30 6 1956 paid during the year ending on 30 6 1958 9,320 Remuneration at 5 per cent on the net profit of the year ending on 30th June 1957 paid during the year ending on 30 6 1958 71,368 Managing Agents expenses for the year ending 30th June 1957 recouped during the year ending on 30th June 1958.13,200 Proportionate Managing Agent 's expenses for the year ending on 30th June 1956 recouped during the year ending on 30 6 19583,300 97,188.
Though this sum did not pertain to the previous year relevant to the assessment year 1959 60, the Company claimed it as deductible expenditure for that year on the ground that the sum became payable only during that year when the Government accorded its approval to the new 'agreement.
The Income tax Officer rejected this claim on the view that the approval of the Central Government was necessary only for actual payment and "the assessee should have ascertained the liability for each year and claimed it on the mercantile basis which was the system adopted by the assessee company.
" The Appellate Assistant Commissioner and the Tribunal also took the same view.
The High Court answered the question referred to it against the assessee on the following reasoning : ". .
There was undoubtedly an understanding between the managing agency and the assessee as to the new terms of remuneration which actually were given effect to by making debit entries in the remuneration account then and there.
It is true that at the time the debit entries were made, approval of the Central Government had not come.
But when it came actually later, it gave legal effect to the debit 809 entries, not from the date of the approval but from April 1, 1956.
That being the case, the refusal of the deduction, in our opinion was right.
" In our judgment the High Court was in error in answering the question referred to it against the assessee.
It appears that the Income tax authorities, the Tribunal and the.
High Court all laid special emphasis on the fact that the Company followed the mercantile system of accounting.
The distinction between the two methods of accounting, one on the cash basis and the other on the mercantile basis is well known.
In Commissioner of Income tax, Madras vs A. Gajapathy Naidu(1), this Court explained the difference between the two methods quoting with approval an extract from a Judgment of the, Allahabad High Court in Commissioner of Income tax vs Singari Bai(2).
In Gajapathy Naidu 's(1) case this Court said: " It is commonplace that there are two principal methods of accounting for the income, profits and gains of a business one is the cash basis and the other, the mercantile basis.
The latter system of accountancy "brings into credit what is due immediately it becomes legally due and before it is actually received; and it brings into debit expenditure the amount for which a legal liability has been incurred before it is actually disbursed"." However, even an assessee following the mercantile system of accounting is not entitled to claim a deduction until liability for the sum for which deduction is claimed has accrued.
The reasons given by the High Court overlook the plain terms of sec.
326 of the .
326 so far it is material for the question involved in this case, is in these terms : "Sec.
326.)1) In respect of any company. . (a). . (b) unless the approval of the Central Government has been obtained for such appointment or re appointment.
(2) The Central Government shall not accord its approval under sub section (1) in any case, unless it is satisfied (a) that it is not against the public interest to allow the company to have a managing agent; (b) that the managing agent proposed is, in the opinion, a fit and proper person to be appoi nted or re appointed as such, and that the conditions of the managing agency agreement proposed are fair and reasonable; and (c) that the managing agent proposed has fulfilled any conditions which the Central Government requires him to fulfil.
" (1) (2) 810 Section 326 prohibits the appointment or re appointment of a managing agent unless the Central Government approved such appointment or re appointment.
The Central Government would not accord its approval unless the requirements specified in clauses (a), (b) and (c) of sub section (2) of the section have been fulfilled.
Therefore, it cannot be assumed that the Central Government will approve every proposed appointment or reappointment of a managing agent.
Thus in the instant case it is only when the Central Government conveyed its approval to the appointment of M/s. Harrisons and Crosfield Limited as managing agents by its letter dated September 2, 1957 that the appointment became effective and the Company 's liability to pay the remuneration of the managing agents accrued.
The position here is not that the liability had arisen earlier and its quantification only depended on the approval of the Central Government.
It is true that the liability became effective from April 1, 1956, a date anterior to the relevant previous year, but 'that is because the Central Government chose to give its approval retrospective operation.
The liability in these circumstances cannot be said to have arisen from any date prior to September, 2, 1957 when the approval was given as sec.
326 contains an absolute prohibition against the appointment or re appointment of a managing agent before the approval of the Central Government was obtained.
In our opinion, the position is quite clear from the terms of sec.
326 and we do not consider it necessary to refer to the authorities cited by the learned counsel for either side.
The appeal is accordingly allowed, the answer given by the High Court to the question referred to it is discharged and the question is answered in the affirmative and in favour of the assessee.
The appellantwill be entitled to its costs in this Court and in the High Court.
P.E.R. Appeal allowed.
| The assessee who followed the mercantile system of accounting debited in its account books certain sums of money as remuneration of the managing agents for the assessment years 1957 58 to 1959 60.
For the purpose of income tax the company added back the sum to its taxable income and claimed the whole sum as a deductible expenditure in the assessment year 1959 60 on the ground that the sum became payable only during that year when the Government accorded its approval to the new managing agency agreement.
The income tax Officer rejected the claim holding that the approval of the Central Government was necessary only for actual payment and the assessee should have ascertained the liability for each year and claimed it since he followed the mercantile system of accounting.
This view was upheld by the Appellate Assistant Commissioner and the Income tax Appellate Tribunal.
The High Court held that although at the time the debit entries were made in the account books of the assessee, approval of the Central Government had not been received, when it came later, it gave legal effect to the debit entries with retrospective effect from April 1. 1956 and that the refusal of deduction by the Income tax Officer was right.
Allowing the appeal to this Court, HELD : The High Court was in error in answering the question against the assessee.
Even an assessee following the mercantile system of accounting is not entitled to claim a deduction until liability for the sum for which deduction is claimed has accrued.
The High Court overlooked the plain terms of s.326 of the under which it could not be assumed that the Central Government would approve every proposed appointment or re appointment of managing agent.
[809A; D; 810A] In the instant case it is only when the Central Government conveyed its approval to the appointment of managing agents by its letter dated September 2, 1957 that the appointment became effective and the Company 's liability to pay the remuneration of the managing agents accrued.
The liability became effective from April 1, 1956 because the Central Government chose to give its approval retrospective operation.
The liability could not be said to had &risen from any date prior to September 2, 1957 when the approval was given.
Section 326 of the contains an absolute prohibition against the appointment or re appointment of a managing agent before the approval of Central Government was obtained.
[810B C]
|
N: Criminal Appeal No. 286 of 1973.
Appeal by Special Leave from the Judgment and Order dated 16 5 1973 of the Orissa High Court in Crl.
Revision No. 645 of 1972.
AND CIVIL APPEAL No. 2036 of 1973 Appeal by Special Leave from the Judgment and Order dated 6 3 1973 of the orissa High Court in O.J.C. No. 491/72.
J. L. Jain and Mrs. section Gopalakrishnan for or the Appellants.
G. Dass, Mrs. section Bhandare and A. N. Karkhanis for the Respondent.
The Judgment of the Court was delivered by KOSHAL, J.
By this judgment we shall dispose of Civil Appeal No. 2036 of 1973 and Criminal Appeal No. 286 of 1973, both of which have arisen from a dispute over a single piece of land and the facts leading to which may be briefly stated.
Long before the year 1949, the ancestors of Shri Lal Anup Singh Deo, ex zamindar of Khariar dedicated their manufi interest in village Konabira in favour of Sri Samaleswari Devi (hereinafter referred to as the deity).
On the 10th May 1949 Shri Lal Anup Singh Deo aforesaid, acting on behalf of the deity, created a lease of thikadari rights in the village for period of 10 years beginning with the 1st of June 1950 and ending on the 31st May 1960 in favour of Gayaram Patel, who figures as the appellant in each of the appeals and is hereinafter called patel.
The deed of lease appears at pages 5 and 6 of the paper book in Civil Appeal No. 2036 of 1973 and describes Patel thus: "Gayaram Patel son of Bisram Patel, the legal guardian of gaontia thikadari patta" The terms on which the lease was granted to Patel are reproduced below : (i) That the yearly rent payable shall be Rs. 109/ to be paid before January of every year.
322 (ii) That in case of non payment the lease is liable to be cancelled.
(iii)That all the repairs, upkeep and development works should be executed and for such works no compensation can be claimed.
All the repairs, maintenance of tanks, garden, buildings, etc., shall be carried out at your responsibility.
(iv) That no injustice should be done to the community in maintaining the abovementioned works.
(v) That no transfer is permissible in respect of the property.
(vi) That the property is to be maintained for the exclusive welfare of the community with the help, directions, orders and co operation of the Estate Officer.
(vii)That the rules and regulations for forest lands are to be obeyed.
(viii)That the cultivable lands cannot be utilised for any other purpose, nor can they be transferred or sold or otherwise dealt with to the hardship of the villagers or the tenants.
If any land is abandoned and (?) takes a new land for cultivation he will be liable under the law and be subjected to the payment of the usual rent.
The lease was acted upon and while it was in force, the orissa Estates Abolition Act, 1951 (hereinafter called the Abolition Act) was promulgated.
The object of that Act was to abolish all intermediaries and rent receivers, to vest their interest in the State, and to establish a direct relationship between the State and the tillers of the soil.
Section 3A of the Abolition Act authorised the State Government to declare by notification that such interests have passed to and become vested in the State free from all encumbrances.
A notification of that type was issued by the State Government and became effective from the 1st of June 1959.
In the meantime a Board of Trustees had been appointed under the Orissa Hindu Religious Endowments Act, 1951 (for short Endowments Act) with Shri Kailash Chandra Panigrahi as the Managing Trustee to look after the affairs of the deity on whose behalf an application under section 7 read with section 8 A(1) of the Abolition Act was made by the Managing Trustee after the said 323 notification had come into force.
It was claimed in the application that the deity was in "Khas possession" of certain lands in village Konabira and prayed that the same, be settled on it as an occupancy tenant.
The application was resisted by Patel who claimed that it was he and not the deity who enjoyed the "Khas possession" of the said land.
The application was decided by the Tehsildar Khariar, Tehsil Nawapara, acting as Collector under the Abolition Act.
He held that Patel was in "Khas possession" of only one plot of land which was designated by No. 5 and had an area of 20.14 acres but that such possession was held by him on behalf of the deity and not on his own account.
In this view of the matter he passed the order dated 13th June 1962, the operative part of which runs thus: "Sir lands in village Konabira bearing plot No. 5 with an area of 20.14 acres are settled on occupancy rights with Gayaram Patel s/o Bisram Patel, ' of Konabira, P. section Komna Distt.
Kalahandi for and on behalf of Samaleswari Devi of Kemna, the Maufidar, u/s 7(1) (b) of the Orissa Estates Abolition Act, 1951.
A fair and equitable annual rent of Rs. 6.75 np.
is determined from the date of vesting release rent from 1959 60 onwards.
" On the 21st of October 1963, the Managing Trustee of the deity made an application to the Assistant Commissioner of Endowments under section 68 of the Endowments Act complaining that he had been resisted by Patel in obtaining possession of the land of the deity and praying for recovery of possession thereof from Patel.
In his order dated the 12th of January 1970, the Assistant Commissioner of Endowments allowed the application holding that it was the deity and not Patel who had been declared to be the occupancy tenant in the order dated 13th June 1962 abovementioned.
Patel went up in revision to the Commissioner of Endowments but without success and thereafter knocked at the door of the orissa High Court with a petition under Articles 226 and 227 of the Constitution of India seeking to have the orders of the Assistant Commissioner of Endowments and the Commissioner of Endowments set aside.
The High Court however took the same view of the matter as was expressed by authority appointed under the Endowments Act and negatived the contentions raised on behalf of Patel, in its order dated 6th March 1973.
It is that order which is challenged before us in Civil Appeal No. 2036 of 1973 instituted by special leave.
In the meantime litigation had started between the deity and Patel on the criminal side also.
Claiming that the deity had recovered 324 possession of plot No. 5 abovementioned (which had by then come to be designated by No. 15 and to have an area of 22.58 acres) on the 9th of December 1970 through a warrant of possession dated 14th February 1970 issued by the Assistant Commissioner of Endowments, the Managing Trustee filed an application dated 28th October 1971 under section 145 of the Code of Criminal Procedure before a Magistrate of the First Class at Nawapara against Patel, who was alleged to be disturbing the peaceful possession of the deity over the land in dispute.
A Preliminary order attaching the property was passed by the Magistrate on the same day, i.e., 28th October 1971.
That order was however cancelled and the proceedings were dropped on the 15th November 1971 in pursuance of a report dated 6th November 1971 made by the officer incharge of the Police Station, Komna (within the territorial limits of which lay the land in dispute) to the effect that there was no apprehension of a breach of peace by the parties.
Nevertheless, on the 20th November 1971, another report was received by the Magistrate from the same officer revealing "an emergency" whereupon the Magistrate made a direction that the preliminary order dated 28th October 1971 be given effect to and that the land be attached along with the crops standing thereon.
Ultimately, the proceedings were finalised through an order dated 21st September 1972 passed by the Magistrate who held that it was Patel who was in possession of the land in dispute on the 20th November 1971, and directing that the land be restored to him.
Aggrieved by the order of the Magistrate the Managing Trustee or the deity went up in revision to the High Court, a learned Single Judge of which set aside the same and directed delivery of possession of the land to the deity on the basis of the findings given below: (1) The proceedings had terminated on the 15th November 1971 and the Magistrate has no jurisdiction to revive them five days later and to give effect to the order of attachment which already stood vacated.
(2) There had been a civil suit and a writ application in respect of the land which has terminated in favour of the deity.
(3) The matter had been taken up by the Endowments Department which had delivered all properties to the deity before the 29th April 1970.
It is this order of the High Court which is impugned in Criminal Appeal No. 286 of 1973 by special leave of this Court.
325 2.
In order to appreciate the rival contentions of learned counsel for the parties it is necessary to make a reference to the relevant provisions of the Abolition Act and to determine the party in whom the occupancy tenancy vests under section 7 thereof.
As already pointed out the object of the Abolition Act was to do away with all intermediaries and rent receivers and to establish a direct relationship between the State and the actual tillers of the soil.
The preamble of the Act states: "Whereas in pursuance of the Directive Principles of State Policy laid down by the Constitution of India it is incumbent on the State to secure economic justice for all and to that end to secure the ownership and control of all material resources of the community so that they may best subserve the common good, and to prevent the concentration of wealth and means of production to the common detriment; "AND WHEREAS in order to enable the state to discharge the above obligation it is expedient to provide for the abolition of all the rights, title and interest in land of Intermediaries by whatever name known, including the mortgagees and lessees such interest, between the raiyat and the State of Orissa for vesting in the said State of the said rights, title and interest and to make provision for other matters connected with;. " Section 2 contains definitions.
Clauses (f), (g), (h), (hh) and (j) thereof are relevant to the dispute and are extracted below: (f) "date of vesting" means in relation to an estate vested in the State the date of publication in the Gazette of the notification under sub section (1) of section 3 or sub section (1) of section 3 A in respect of such estate and in the case of surrender by an intermediary under section 4 the date of the execution of the agreement; (g) `estate ' includes a part of an estate and means any land held by or vested in an Intermediary and included under one entry in any revenue roll or any of the general registers of revenue paying lands and avenue free lands, prepared and maintained under the law relating to land revenue for the time being in force or under any rule, order, custom or usage having the force of law, and includes revenue free 326 lands not entered in any register or revenue roll and all classes of tenures or under tenures and any Jagir, inam or maufi or other similar grant; (h) `Intermediary ' with reference to any estate means a proprietor, sub proprietor, landlord, landholder, malguzar, thikadar, gaontia, tenure holder, under tenure holder, and includes an inamdar, a jagirdar, Zamindar, IIaquadar, Khorposhdar, Parganadar, Sarbarakar and Maufidar including the Ruler of an Indian State merged with the State of Orissa and all other holders or owners of interest in land between the raiyat and the State; (hh) `Intermediary interest ' means an estate or any rights or interest therein held or owned by or vested in an Intermediary and any reference to `state ' in this Act shall be construed as including a reference to `intermediary interest ' also; (j) "Khas possession" used with reference to the possession of an Intermediary of any land used for agricultural or horticultural purposes, means the possession of such intermediary by cultivating such land or carrying on horticultural operations thereon himself with his own stock or by his own servants or by hired labour or with hired stock; The provisions of section 3A have already been noted.
Then comes section 7 which is all important for the purpose of resolving the present dispute.
It states: "7.
(1) on and from the date of vesting (a) all lands used for agricultural or horticultural purposes which were in Khas possession of an Intermediary on the date of such vesting, (b) lands used for agricultural or horticultural purposes and held by a temporary lessee or lessees of an Intermediary who owns either as Intermediary or in any other capacity less than thirty three acres of land in total extent situated within the State, (c) lands used for agricultural or horticultural purposes and in possession of a mortgagee, which immediately before the execution of the mortgage bond were in Khas possession of such intermediary, 327 . . . . . . . . . . . . . . . shall, notwithstanding anything contained in this Act, be deemed to be settled by the State Government with such Intermediary and with all the share holders owning the estate and such Intermediary with all the share holders shall be entitled to retain possession thereof and hold them as raiyats under the State Government having occupancy rights in respect of such lands subject to the payment of such fair and equitable rent as may be determined by the Collector in the prescribed manner: . . . . . . . . . . . . . " Sub section (1) of section 8A requires Intermediaries to file their claims in the prescribed manner for settlement of fair and equitable rent in respect of land and buildings, which are deemed to be settled with them under section 6 or section 7, before the Collector within the specified period.
It would be seen that clauses (a), (b) and (c) of sub section (1) of section 7 protect certain Intermediaries and thus form exceptions.
to the scheme of the Act which, generally speaking, conforms to the object detailed in the preamble.
In the present case we are not concerned with clause (c).
According to learned counsel for Patel his case falls within the ambit of clause (a).
It is claimed on his behalf that he was not merely a lessee or a temporary lessee under the deity but was a thikadar and, therefore, himself an Intermediary within the meaning of the definition of that word occurring in clause (h) of section 2 and that he being in "Khas possession" of the land in dispute on the date of vesting was an Intermediary described in clause (a).
On the other hand, for the deity it is argued that Patel was granted only a temporary lease in 1949, that he did not have any status better than that of a lessee, temporary or otherwise, and that therefore his case was covered by clause (b) and not clause (a) so that it was he deity who was entitled to be regarded as the occupancy tenant on and from the date of vesting.
The whole controversy thus turns round the position which Patel came to hold in respect of the land in dispute under the lease deed of 1949 and in order to assess that position it is necessary to refer to the lease deed dated 10th May 1949.
As noted earlier that deed itself describes Patel as "gaontia thikadari patta".
Learned counsel for the deity has contended that 328 this description is really not correct and that the conditions of the lease clearly make out a case of Patel being inducted into the land as an ordinary lessee who was to till the land against payment of rent.
The contention does not appear to us to have any force.
Apart from the description of Patel as "gaontia thikadari patta" the deed contains a sure indication of the nature of the tenure granted in condition (8) which states specifically: "That the cultivable lands cannot be utilised for any other purpose, nor can they be transferred or sold or otherwise dealt with to the hardship of the villagers or the tenants.
. . . . . . . . . . . . . . " The reference to tenants is of considerable significance and points to land being under the cultivation of persons other than Patel at the moment the lease was granted.
This state of affairs is incompatible with the grant of an ordinary lease to Patel.
The tenure granted in his favour was on the other hand one conferring on him a right to collect the rents from the tenants of the deity and in lieu thereof pay a fixed sum of Rs. 109/ per annum to it so that he was correctly described in the lease deed as a gaontia or thikadar, both of which expressions describe an Intermediary as distinguished from a raiyat or an actual tiller of the soil.
Once Patel is found to be an Intermediary his case must fall within clause (b) of sub section (1) of section 7 as it was he who had the "Khas possession" of the land now in controversy, according to the findings contained in the order dated 13th January 1962 passed by the Collector and mentioned above, which have not been shown to us to suffer from any infirmity.
And if that be so, the land must be held to have vested in him, and not in the deity, as an occupancy tenant under the provisions of that section.
In the result both the appeals succeed and are accepted, the order of the High Court impugned in each being set aside and it being directed that the possession of the land in dispute attached by the order of the Magistrate in the proceedings under section 145 of the Code of Criminal Procedure be delivered to Patel as an occupancy tenant under the State.
The parties are however left to bear their own costs throughout.
N.V.K. Appeal allowed.
| The ancestors of a former Zamindar dedicated their maufi interest in a village in favour of a deity.
Acting on behalf of the deity the ex zamindar created a lease of thikadari rights in the village in favour of the appellant for ten years.
The lease deed termed the appellant as "legal guardian of gaontia thikadari patta".
While the lease was in force the Orissa Estates Abolition Act, 1951 which sought to abolish all intermediaries in land and vest their interest in the State came into force.
The Act however protected certain intermediaries thereby carving out an exception to the scheme of the Act.
Meanwhile the Managing Trustee of the Board of Trustees appointed under the Orissa Hindu Religious Endowments Act, 1951 to look after the affairs of the deity filed a petition under section 7 of the Abolition Act claiming that the deity was in Khas possession of certain lands including the land lease to the appellant and prayed that the same be settled on the Board of Trustees as an occupancy tenant.
The question was eventually settled in favour of the Trustees and against the appellant.
In the Managing Trustee 's application under section 145 Cr.
P.C. asserting that the appellant was disturbing peaceful possession of the deity over the land, the Magistrate held that it was the appellant who was in possession of the land and directed that the land should be restored to him.
The High Court in revision set aside the order of the Magistrate.
In appeals to this Court the appellant contended that it was he and not the deity, who was the thikadar and therefore an intermediary within the meaning of the definition of that term in the Abolition Act and was in Khas possession of the land in dispute and so the land should be restored to him.
Allowing the appeals, ^ HELD: 1.
It was the appellant who had the Khas possession of the land, and therefore, the land must be deemed to have been vested in him, and not in the deity, as an occupancy tenant under the provisions of section 7 of the Abolition Act.
[328 F] 2.
Apart from the description of the appellant as gaontia thikadari patta, condition 8 contains a sure indication of the nature of the tenancy agreement.
It states "that the cultivable lands cannot be utilised for any other purpose nor can they be transferred or sold or otherwise dealt with to the hardship of the villagers or the tenants." [328 B C] 321 3.
The reference to tenants in this condition points to the land being under the cultivation of persons other than the appellant at the moment the lease was granted.
This position was incompatible with the grant of an ordinary lease to him.
The tenure granted in his favour was on the other hand one conferring on hint a right to collect the rents from the tenants of the deity and in lieu thereof pay a fixed sum to it.
He was, therefore, correctly described as gaontia or thinkdar, both of which expressions describe an intermediary as distinguished from a raiyat or an actual tiller of the soil.
[328 D E]
|
Civil Appeal No. 342 of 1959.
Appeal by special leave from the judgment and decree dated April 29, 1959, of the Calcutta High Court, in appeal from Original Order No. 188 of 1958.
H. N. Sanyal, Additional Solicitor General of India.
T. section Venkatarama, K. R. Sarma and K. R. Chaudhry, for the appellants.
section N. Mukherjee, for respondent No 1.
N. C. Chatterjee, section K. Acharyya and R. section Narula, for respondent No. 2. 1959.
November 10.
The Judgment of the Court was delivered by GAJENDRAGADKAR J.
The principal question which Gajendragadhar J. which this appeal by special leave raises for our decision is: Whether the provisions of section 21, r. 89 of the Code of Civil Procedure apply to a sale held by a receiver appointed by the court and authorized to sell the property in question.
The learned Single Judge on the Original Side of the Calcutta High Court as well as the Division Bench of the, said High Court have answered this question in the negative.
The appellants contend that the view taken by the Calcutta High Court is erroneous.
This question arises in this way.
In Suit No. 1024 of 1953 on the Original Side of the Calcutta High Court a decree for the payment of Rs. 18,497 15 0 was 200 passed by consent in favour of the New Bheerbhum Coal Co. Ltd., (hereinafter called respondent 1) and against ' the Benares Ice Factory, Ltd., (hereinafter called appellant 2) on December 5, 1955.
The decree provided for the payment of the decretal amount by six equal instalments and it directed that in case of default of any one of the instalments the balance of the decretal dues would at once become payable.
A first charge was created by the decree on the plant and machinery of appellant 2 for securing the payment of ,the decretal amount.
A default having occurred in the payment of instalments respondent I applied for the execution of the decree on April 10, 1956.
On this application an interim order was made on May 17, 1956, appointing Mr. A. K. Sen, as Receiver of the properties charged.
The said application was finally decided by an order passed on May 30, 1956, by which the appointment of the receiver was confirmed and he was given liberty to sell the said properties either by private treaty or by public auction.
It is common ground that the receiver took possession of the said property in December 1956.
Subsequently, on March 10, 1958, the receiver entered into an agreement with Sukhlal Amarchand Vadnagra (hereinafter called respondent 2) for the sale of the said property for Rs. 30,000.
The terms and conditions embodied in the said agreement provided inter alia that within one month from the date of the receipt by the purchaser of intimation from the receiver that the sale bad been confirmed by the High Court the purchaser shall deposit with the said receiver the full price of Rs. 30,000.
On March 31, 1958, respondent I applied to the court for confirmation of the said agreement and on May 9, 1958, G.K. Mittter, J., allowed the application.
He ordered that the appellants should deposit the sum of Rs. 3,000 with the attorneys of the decree bolder towards its claim under the said decree and further directed that if the said amount was paid within the time aforesaid and the balance of the decretal amount was paid within ten weeks thereafter the agreement of sale shall not be confirmed.
The order further provided that in default 201 of the appellants paying the amounts as directed within the respective due dates the sale of the charged property by the receiver to the second respondent as get out in the agreement shall be confirmed.
Pursuant to this order the appellants deposited with the attorneys of the decreeholder Rs. 3,000 on May 30, 1958.
They had also paid to the receiver Rs. 3,500 in August, 1957, towards the decretal dues.
It appears that when the appellants were unable to pay the balance as directed by the court appellant 2 applied to the court praying that the agreement of sale should be cancelled and the time within which he was directed to pay the balance of the decretal amount should be extended.
The application also sought for certain other directions.
G.K. Mitter, J., who heard this application dismissed it on July 29, 1958, and confirmed the agreement of sale.
On August 20, 1958, appellant 2 took out a notice of motion of an application made by him on the same day praying that leave may be granted to him to deposit the whole of the balance of the decretal amount and that the receiver should be restrained from receiving any money from the intending purchaser in terms of the agreement of sale.
It appears that on August 22, 1958, respondent 2 tendered a cheque for Rs. 30,000 to the receiver towards the payment of the purchase money under the agreement of sale.
Soon thereafter, however, respondent 2 took back the cheque and paid Rs. 30,000 in cash on September 1, 1958.
The application made by appellant 2 for leave to pay the balance of the decretal amount was dismissed by G. K. Mitter, J., on September 4, 1958.
The learned judge, however, stayed the delivery of possession of the property to respondent 2 for a week from the date of his order.
The appellants then filed an appeal against the order of the learned judge before a Division Bench of the High Court and obtained an order for stay of delivery pending the decision of the appeal.
On April 29, 1959, the Division Bench dismissed the appeal and refused to grant certificate to the appellants to file an appeal in this Court.
The appellants 26 202 then applied for and obtained special leave from this Court on May 20, 1959.
That is how this appeal has come before us; and the main point which Mr. Sanyal, for the appellants, has raised for our decision is that the courts below were in error in refusing to give relief to the appellants under 0. 21, r. 89 on the ground that the said rule was inapplicable to the sale held by the receiver.
It is common ground that the receiver was appointed with "power to him to get in and collect the outstanding debts and claims due in respect of the charged property and with all powers provided for in 0. 40, r. 1, cl.
(d) of the Code of Civil Procedure ".
The order appointing the receiver also expressly directed that the receiver shall be at liberty to sell the said property charged in favour of respondent 1 either by private treaty or by private auction to 'the best purchaser or purchasers that can be got for the sale but he shall not hold such sale before the 13th day of August, 1956.
In other words, the receiver was appointed in execution proceedings under section 51 and was given all the powers under 0. 40, r. 1(d) of the )Code.
It is by virtue, of those powers that he entered into the agreement of sale with respondent 2 and sold the property to him and gave him its possession.
Section 51 which deals with the powers of the court to enforce execution provides for the execution of the decree by five alternative modes specified in cls.
(a) to (e).
One of the modes of execution is the appointment of a receiver which means that a decree for the payment of money can be executed by the appointment of a receiver.
He may either collect the income of the property belonging to the judgment debtor and thereby satisfy the decree, or if so authorised he may sell the property of the judgment debtor and thereby arrange for the satisfaction of the decree.
Thus, in dealing with the question as to whether the ,ale held by the receiver is a sale ordered by the court to which 0. 21, r. 89 applies it is necessary to remember that the appointment of the receiver itself is a mode of execution of the decree.
203 When the receiver so appointed is given all the powers under 0. 40, r. 1(d) it is these powers which he seeks to exercise when selling the judgment debtor 's property in execution of the decree.
The sale held by the receiver under such conditions would no doubt be governed by the provisions of 0. 40, and the court may supervise or issue directions in respect of such a sale under the provisions of the said order.
Prima facie the sale held by the receiver appointed in execution proceedings in pursuance of the powers conferred on him under 0. 40, r. 1(d) would be governed by the powers conferred on him and the terms and conditions on which the said powers may have been conferred and by other relevant provisions of 0. 40.
It does not seem, to attract the provisions of 0. 21.
Courts have had occasion to consider questions about the applicability of several provisions of 0. 21 to sales held by receivers and opinions expressed on such questions have differed more particularly in the Calcutta High Court as we will presently indicate.
In the present appeal we do not propose to consider or decide the general question about the character of the sale held by the receiver nor do we propose to attempt to specify which provisions of 0.
21 will apply to such sales and which will not.
We are dealing with the narrow question as to whether 0. 21, r. 89 applies to such a sale; and it is to the decision of this narrow question that we will address ourselves in the present appeal.
Order 21 , r. 89 enables the persons specified in subr.
(1) to apply to have the sale held in execution proceedings set aside on two conditions, (a) the applicant must deposit for payment to the purchaser a sum equal to 5% of the purchase money, and (b) for payment to the decreeholder the amount specified in the proclamation of sale as that for the recovery of which the sale was ordered less any amount which may since the date of such proclamation of sale have been received by the decreeholder.
The second requirement immediately raises the question as to whether it is necessary for the receiver in selling immoveable property in execution proceedings to issue 204 a proclamation as required by 0. 21, r. 66 of the Code.
In our opinion there can be no doubt that the provisions of the said rule do not apply to sales held by receivers.
No decision has been cited before us where a contrary view has been expressed.
The provisions of the said rule apply where property is ordered to be sold by public auction in execution by the court, and the order for the sale of such property must be made by any court other than the Court of Small Causes as provided by r. 82.
Where the court appoints a receiver and gives him liberty to sell the property the receiver may either sell the property and thereby realise the money for the satisfaction of the decree, or he may, even without selling the property, seek to satisfy the decree by the collection of rents due from the property or other ways open to him under the law.
In such a case it is difficult to hold that by the very appointment of the receiver clothing him with the power to sell the property if he thought it necessary to do so the court had ordered the sale of the said property within the meaning of 0. 21, r. 82.
If the provisions of r. 66 of 0. 21 are inapplicable to sales held by receivers it is obvious that the second condition prescribed by r. 89(1)(b) is equally inapplicable and it is undoubtedly one of the two essential conditions for the successful prosecution of an application under the said rule.
In our opinion this fact clearly emphasises the inapplicability of the whole rule to sales held by receivers.
We are, therefore, satisfied that the High Court was right is refusing to entertain the appellants ' application under 0.
21, r. 89.
It is then argued that the High Court should have considered the appellants ' prayer under section 151 of the Code.
It is no doubt a hard case where the appellants have to lose their property though presumbly at the time when they made the present application in the High Court they were able to produce for the payment to the decreeholder the whole of the balance of the decretal amount.
As the judgment of the Division Bench shows the learned judges themselves have observed that it was difficult not to feel sympathy for the appellants; but, on the other hand, it is clear 205 from the record that the appellants were given enough opportunity to pay the decretal amount.
The decree was passed by consent and included a default clause.
The appellants committed default and incurred the liability to pay the whole of the decretal amount.
When the agreement of sale executed by the receiver came before the court another opportunity was given to the appellants to pay the decretal amount on the specified conditions.
The appellants again committed a default.
It is only later when it was too late that they rushed to the court with a prayer that they should be allowed to pay the decretal amount themselves and their property should be saved.
Under such circumstances, if the learned judge who heard their application as well as the appellate court came to the conclusion that the court 's jurisdiction under section 151 cannot be invoked by the appellants, we do not see how we can interfere with the said decision.
It is true that section 151 is not specifically mentioned in the judgment of either of the courts below, but that must be obviously because no specific plea under section 151 was raised.
Even so the Division Bench has observed that it could not interfere with the order of the learned judge when in his discretion he refused to make an order as asked for by the appellants.
This must inevitably refer to the discretion under section 151, because if 0. 21, r. 89 had applied and the appellants had satisfied the conditions prescribed by it there would be no discretion in the court to refuse such an application.
It would then have been a right of the appellants to claim that the sale should be set aside.
We are, therefore, unable to accede to the plea raised before us by Mr. Sanyal under section 151 of the Code.
There is another point which Mr. Sanyal attempted to raise.
He contended that the sale had not been properly confirmed before he moved the court for leave to pay the decretal amount, and so the courts below were in error in not allowing his application.
This argument is based on a decision of the Calcutta High Court in S.M. Sudevi Devi vs Sovaram Agarwallah(1).
In that case Woodroffe, J., was dealing with a (1) 206 conditional decree which entitled the decreeholder, on the default of the defendant, to apply to the court which passed the decree to direct the ejectment of the defend ant.
It appears that when disputes arose between the decreeholder and the judgment debtor in regard to the performance of the conditions imposed by the decree the decreeholder obtained an order for ejectment of the defendant without notice to the judgment debtor.
The judgment debtor then applied for setting aside, modifying or reviewing the said order.
Woodroffe, J., held that a court had inherent power to deal with an application to set aside an order made ex parte, on a proper case being substantiated.
Mr. Sanyal contends that the sale in the present case being conditional in the sense that it was subject to the confirmation by the court it was open to the court to refuse to confirm it when the appellants applied for leave to pay the balance of the decretal amount.
This argument necessarily assumes that the order passed by Mitter, J., on May 9, 1958, was a conditional order.
In our opinion this assumption is not well founded.
The said order no doubt gave an opportunity to the appellants to pay the decretal a mount in the manner prescribed by it but it clearly provided that in default of the appellants complying with the said conditions within the respective due dates the sale of the property by the receiver to respondent 2 be confirmed and that the said receiver do make over possession of the said property to the said purchaser.
It is clear that this order is not a conditional order at all.
It is a composite order.
It provided for the payment of the decretal amount by the appellants and in that sense gave an opportunity to the appellants to avoid the sale of their property but, on the other hand, it also provided that on their default to comply with the order the sale do stand confirmed and the receiver do make over the possession of the property to the purchaser.
Therefore, in our opinion, there is no scope for applying the principle laid down by Woodroffe, J., in the 'ease of section M. Sudevi Devi (1).
(1) 207 Before we part with this appeal we may very briefly indicate the nature of the divergence of views expressed in the Calcutta High Court on the question about the character of sales held by receivers appointed by courts to which our attention has been invited.
In Minatoonnessa Bibee & Ors.
vs Khatoonnessa Bibee & Ors.
(1), Mr. Justice Sale, held that the purchaser at a receiver 's sale is entitled to obtain the assistance of the court in obtaining the possession under the provisions of the Code relating to sales in suits.
In coming to this conclusion the learned judge referred to a precedent in the Calcutta High Court in that behalf, and made an order for possession of the property in favour of the receiver.
It may be pointed out that the learned judge, in dealing with the question, has referred to the important fact that in that particular case the sale had been already treated as a sale by the court inasmuch, as the registrar had been directed under the provisions of the Code to execute the conveyance on behalf of some of the parties to the suit.
Thus the question was in a sense res judicata.
However, in dealing with the general question the learned judge has no doubt observed that sales by receivers " are in all essential particulars similar to sales by the registrar, and that if they are sales by a civil court in a suit the procedure prescribed by the Code for sales in a suit would be applicable.
" We do not think that these observations should be divorced from the facts of the particular case with which the learned judge was dealing, and read as laying down a general proposition that sales held by receivers attract the application of all the provisions in the Code in regard to sales held by the court.
If such a proposition was really intended to be laid down we would hold that it is not correct at least in regard to the provisions of 0. 21, r. 89.
In Gulam Hossein Cassim Ariff vs Fatima Begum (2) Mr. Justice Fletcher, has taken a contrary view.
He has held that " a sale by a receiver under the direction of court is not a sale by court and in such a sale the court does not grant a sale certificate nor does it confirm the sale.
" The learned judge referred to the (1) Cal. 479.
(2) 208 earlier decision of Sale, J., and dissented from him.
It is unnecessary for us to consider the correctness or otherwise of this decision.
Fletcher, J., adhered to the same view in Jogemaya Dasee vs Akhoy Coomar Das (1).
In that case the learned judge was dealing with the sale of properties by the Commissioner of Partition, and he held that such a sale is not one by the court but is one made by the Commissioner of Partition under the authority of the court.
Chaudhuri, J., considered the same question in Basir Ali vs Hafiz Nazir Ali (2 ) and held that in all sales whether by the court or under the court or by direction of the court out of court the purchaser is bound to satisfy himself of the value, quality and title of the thing sold just as much as if he were purchasing the same under a private contract.
According to this decision the sales certificate does not transfer the title.
It is evidence of the transfer.
Accordingly, he directed.
the receiver to execute a conveyance in favour of the purchaser.
This decision is not quite consistent with the view taken by Mr. Justice Fletcher.
In Rani Bala Bose vs Hirendra Chandra Ghose Chakravarti, J., as he then was, has incidentally referred to this conflict of judicial opinion in the Calcutta High Court, and has indicated his preference for the view taken by Sale, J., though he has been careful enough to add that he was not deciding the point and that the case with which he was concerned was not covered by the actual decision of Fletcher, J.
These decisions show that there has been a divergence of opinion as to the character of the sale held by a receiver as to whether it is a sale by the court, or under the court, or under the directions of the court.
It is because our attention has been invited to these decisions that we have thought it necessary to make it clear that our present decision is confined to the narrow question as to whether the sale held by a receiver attracts the provisions of 0. 21, r. 89.
We (1) Cal.
(2) Cal.
(3) 209 hold that r. 89 of 0.
21 does not apply to such a sale and that the High Court was right in rejecting the appellants ' claim based on the said rule.
The result is the appeal fails and is dismissed with costs.
Appeal dismissed.
| The stage carriage permits of the petitioners, who were also the petitioners in Writ Petition NO.
75 of 1959, previously, reported, were expiring on 31st March, 1958, and were renewed up to March 31, 959.
A fresh scheme of nationalisation having 131 been approved and published under section 68C of the Motor Vehicles Act, the Regional Transport Authority, in order to avoid inconvenience to the public, granted temporary permits to the petitioners till the State Transport Department obtained their permits.
The Department applied for permits under section 68F(1) of the Act in accordance with the scheme admittedly less than six weeks before the date when they were to take effect, contrary to the provision of section 57(2) of the Act.
The petitioners had also applied for renewal of their permits.
The Regional Transport Authority issued permits to the Department and rejected the renewal applications of the petitioners.
The petitioners moved the High Court under article 226 of the Constitution for quashing ,that order.
The High Court held that the issue of permits to the Department was invalid as the provision of section 57(2) had not been complied with, and the refusal of renewal of the petitioners ' permits was incorrect, but it dismissed the Writ Petition on the ground that the relief that could be granted to the petitioners could only be short lived.
The petitioners applied for a certificate to enable them to appeal to this Court and while that application lay pending, applied to this Court under article 32 of the Constitution.
It was contended on their behalf that before the renewal application could be rejected and permits granted to the Department under section 68F(1) of the Act, the Department must apply for permits in respect of all the routes covered by the scheme so that there could be no possibility of any discrimination between an operator and an operator in infringement of article 14 of the Constitution as also their rights to carry on their business under article 19(1)(g) of the Constitution.
It was further contended that non compliance with the provision of section 57(2) of the Act disentitled the Department to any permits at all.
It was contended on behalf of the Department that it was open to it to implement the scheme by stage and it was denied that there could be any discrimination in doing so or that section 57(2) applied to an application under section 68F(1) of the Act.
Held (per Sinha, C.J., Imam, Wanchoo and Das Gupta, JJ.), that it was clear from the language of s 68F of the , that an application by a State Transport Undertaking for a permit thereunder must be made in the manner prescribed by Ch.
IV of the Act and, therefore, there could be no doubt that such an application must fall within the purview of section 57(2) of the Act.
Consequently, the orders granting the application for permits made by the State Transport Department in the instant case, admittedly in breach of section 57(2) of the Act, were on that ground alone liable to be quashed.
Section 68C of the Act contemplates that where there is no intention to operate an entire route but a portion of it, that portion alone should be specified as the route and not the whole of it or any portion thereof as in the instant case.
The scheme, however, clearly intended that all the routes in their entirety 132 were to be taken over and so the qualifying words were mere surplusage.
Per Kapur, J. On a proper construction of sections 68C and 68F of the Act, it would not be correct to say that the Legislature intended that the scheme as approved must be implemented all at once or not at all.
It would be impractical to suggest that the whole scheme should be implemented in a rigid manner.
Some flexibility in implementing it must necessarily be implied for otherwise nationalisation of transport services, the accepted State policy in India, was likely to be indefinitely held up, if not thwarted.
The language used by section 68F lends no support to such a contention nor do the words " in pursuance of " occurring, therein mean that the whole of the scheme has to be put into operation and not a portion of it.
Bradford Corporation vs Myers, , referred to, If the State cannot take over routes for which application can be immediately made, the taking over must become not only difficult but extremely expensive as other interests may supervene in the meantime.
Where, therefore, it intends to run a scheme within a reasonable time, there can be no reason why it should not apply for different routes within a reasonable time so long as it acts honestly, fairly and without any oblique motives.
Since the State Undertaking in the present case had imple mented a part of the scheme and made fresh applications for permits in the manner provided by section 57(2) and their relevant provisions of Act, it is not necessary to pass a formal order quashing the permits granted in its favour.
K. N. Guruswamy vs The, State of Mysore, [1955] 1 section C.R. 305 referred to.
|
iminal Appeals Nos. 67, 136 and 172 of 1959 and 82 and 83 of 1962.
Appeals by special leave from the judgment and order dated November 3, 1958 in Criminal Appeals Nos. 196, 256 and 363 of 1958.
B. B. Tawakley and section C. Mazumdar, for the appellant (in Cr. A. No. 67159).
section C. Mazumdar, for the appellant (in Cr. A. No. 136/59).
T. section Venakataraman, for the appellant (in Cr. A. No. 172/59).
381 N. N. Keshwani, for the appellant (in Cr. A. No. 82/62).
C. B. Agarwala, K. L. Misra, Advocate General, U. P. Mangala Prasad Baghari, Shanti Sarup Khanduja, Malik Arjun Das and Ganpat Rai, for the appellant (in Cr. A. No. 83/62).
N. section Bindra, D. R. Prem and R. H. Dhebar, for the respondent in all the Appeals.
March 18.
The judgment of the Court was delivered by SUBBA RAO J.
These appeals by special leave arise out of two judgments of the High Court of Bombay, one that of Vyas and Kotval JJ., dated March 31, 1958, and the other that of Shah and Shelat JJ., dated November 3, 1958, in what, for convenience of reference,, may be described as the Empire Conspiracy Case.
At the outset it would be convenient to state briefly the case of the prosecution.
One Lala Shankarlal, a political leader and Vice President of the Forward Bloc and a highly competent commercial magnate, and his nominees held the controlling block of shares of the Tropical Insurance Company Limited, hereinafter called the "Tropical", and he was the Chairman and Managing Director of the said company.
He had also controlling voice in another company called the Delhi Swadeshi Cooperative Stores Ltd. The said Delhi Stores held a large number of shares of the Tropical.
In or about the middle of 1948, Sardar Sardul Singh Caveeshar, who was controlling the People 's Insurance Co. Ltd. and other concerns in Lahore, and Kaul, a practising barrister, came to Delhi.
During that year the former was the President of the Forward Bloc and Shankarlal was its Vice President.
Shankerlal, 382 Caveeshar and Kaul conceived the idea of purchasing the controlling block of 63,000 shares of the Jupiter Insurance Company Ltd., hereinafter referred to as the " 'Jupiter", a prosperous company, in the name of the Tropical from the Khaitan Group which was holding the said Jupiter shares.
But the financial position of the Tropical did not permit the said purchase and so they thought of a fraudulent device of purchasing the said Jupiter shares out of the funds of the Jupiter itself.
Under an agreement entered into with the Khaitan Group, the out of the 63,000 shares of the Jupiter was fixed at Rs. 33,39,000/ , and the purchasers agreed to pay Rs. 5,00,000/ in advance as " 'black money" and the balance of Rs. 28,39,000/ , representing the actual price on paper, within January 20, 1949, i. e., after the purchasers got control of the Jupiter.
After the purchase, Shankarlal Group took charge of the Jupiter as its Directors after following the necessary formalities, sold the securities of the Jupiter for the required amount,and paid the balance of the purchase money to the Khaitan Group within the prescribed time.
In order to cover up this fraud various manipulations were made in the relevant account books of the Jupiter.
There would be an audit before the end of the year and there was every likelihood of detection of their fraud.
It, therefore, became necessary for them to evolve a scheme which would bring in money to cover the said fraud perpetuated by the Directors of the.
Jupiter in the acquisition of its 63,000 controlling shares.
For that purpose, Shankarlal and his group conceived the idea of purchasing the controlling interest in another insurance company so that the funds of that company might be utilized to cover up the Jupiter fraud.
With that object, in or about September 1949, Shankarlal and 9 of his friends entered into a conspiracy to lift the funds of the Empire of India Life Assurance Company Ltd., hereinafter referred to as the "Empire", to cover up the Jupiter 383 fraud.
This they intended to do by purchasing the controlling shares of the Empire, by some of them becoming its Directors and Secretary, and by utilizing the funds of the Empire to cover up the defalcations made in the Jupiter.
The following were the members of the conspiracy : (1) Shankarlal, (2) Kaul, (3) Metha, (4) Jhaveri and (5) Doshi all Directors of the Jupiter and (6) Guha, the Secretary of the Jupiter, (7) Ramsharan, the Secretary of the Tropical, (8) Caveeshar, the Managing Director of the People 's Insurance Co., (9) Damodar Swarup, a political worker who was later on appointed as the Managing Director of the Empire.
(10) Subhedar, another political worker, (11) Sayana, a businessman of Bombay, and (12) Bhagwan Swarup, the nephew of Shankarlal and a retired Assistant Commissioner of Income tax of the Patiala State.
After forming the conspiracy, the controlling shares of the Empire were purchased in the name of Damodar Swarup for an approximate sum of Rs. 43,00,000/ .
For that purpose securities of the Jupiter of the value of Rs. 48,75,000/ were withdrawn by the Directors of the Jupiter without a re solution of the Board of Directors to that effect and endorsed in the name of Damodar Swarup again without any resolution of the Board of Directors to that effect.
Damodar Swarup deposited the said securities in the Punjab National Bank Ltd., and opened a Cash credit account in the said Bank in his own name.
He also executed two promissory notes to the said Bank for a sum of Rs. 10,00,000/ and Rs. 43,00,000/ respectively.
Having opened the said account, Damodar Swarup drew from the said account by means of cheques a sum of Rs. 43,00,000/ and paid the same towards the purchase of the said Empire shares.
Out of the said shares of the Empire, qualifying shares of twenty were transferred in each of the names of Damodar Swarup, Subhedar and Sayana, and by necessary resolutions Damodar Swarup became the Managing 384 Director and Chairman of the Empire and the other two, its Directors, and Bhagwan Swarup was appointed its Secretary.
The conspirators having thus taken control of the Empire through some of them, lifted large amounts of the Empire to the tune of Rs. 62,49,700/ by bogus sale and loans, and with the said amount they not only recouped the amounts paid out of the Jupiter for the purchase of its controlling shares and also the large amounts paid for the purchase of the controlling shares of the Empire.
After the conspiracy was discovered, in due course the following ten of the said conspirators, i. e., all the conspirators excluding Shankarlal and another, who died pending the investigation, were brought to trial before the Court of the Sessions judge for Greater Bombay under section 120 B of the Indian Penal Code and also each one of them separately under section 409, read with section 109, of the said Code : (1) Kaul,(2) Metha, (3) Jhaveri, (4) Guha, (5) Ramsbaran,(6) Caveeshar, (7) Damodar Swarup, (8) Subhedar, (9) Sayana, and (10) Bhagwan Swarup.
The gravemen of the charge against them was that they, along with Shankarlal and Doshi, both of them deceased, entered into a criminal conspiracy at Bombay and elsewhere between or about the period from September 20, 1950 to December 31, 1950 to commit or cause to be committed criminal breach of trust in respect of Government securities or proceeds thereof or the funds of the Empire of India Life Assurance Co. Ltd., Bombay, by acquiring its management and control and dominion over the said property in the way of business as Directors, Agents or Attorneys of the said Company.
The details of the other charges need not be given as the accused were acquitted in respect thereof.
Learned Sessions judge made an elaborate enquiry, considered the innumerable documents filed and the oral evidence adduced in the case and came to the conclusion that Accused 1, 2, 4, 5, 6 and 10 385 were guilty of the offence under section 120 B, read with section 409 of the Indian Penal Code and sentenced them to various term of imprisonment.
Accused 6, i. e., Caveeshar, was sentenced to suffer rigorous imprisonment for 5 years, and accused 10, i. e., Bhagwan Swarup, to rigorous imprisonment for a period of 5 ears and also to pay a fine of Rs. 2,000/ and in default to suffer rigorous imprisonment for a further period of six months.
He acquitted accused 3, 7, 8 and 9.
The State preferred an appeal to the High Court against that part of the '. judgment of the learned Sessions judge acquitting some of the accused; and the convicted accused filed appeals against their convictions.
The appeal filed by Caveeshar, Accused 6, was dismissed in limine by the High Court.
The appeals filed by 'the other convicted accused against their convictions were dismissed and the appeal by the State against the acquittal of some of the accused was allowed by the High Court.
Accused 7 was sentenced to 5 years ' rigorous imprisonment, accused 8 to 3 years ' rigorous imprisonment and accused 9 to 3 years rigorous imprisonment.
Accused 6, 7, 8, 9 and 10 have, by special leave, preferred these appeals against their convictions and sentences.
We are not concerned with the other accused as some of them died and others did not choose to file appeals.
At the outset it may be stated that none of the learned counsel appearing for the accused questioned the factum of conspiracy; nor did they canvass the correctness of the findings of the Courts below that the funds of the Empire were utilized to cover up the fraud committed in the Jupiter, but on behalf of each of the appellants a serious attempt was made to exculpate him from the offence.
But, as the defalcations made in the finances of the Jupiter and the 386 mode adopted to lift the funds of the Empire and transfer them to the coffers of the Jupiter will have some impact on the question of the culpability of the appellants, we shall briefly notice the modus operandi of the scheme of conspiracy and the financial adjustments made pursuant thereto.
We have already referred to the fact that Shankarlal Group purchased the controlling shares of the Jupiter from Khaitan Group and that as a consideration for the said purchase the former agreed to pay the latter Rs. 5,00,000/ as "black money" and pay the balance of about Rs. 28,39,000/ on or before January ' IO, 1949.
After Shankarlal Group became the Directors of the Jupiter, they paid the said amount from and out of the funds of the Jupiter.
To cover up that fraud, on January 11, 1949, the Directors passed a resolution granting a loan of Rs. 25,15,000/ to Accused 6, on the basis of an application made by him, on equitable mortgage of his properties in Delhi : (see exhibit Z 22).
They passed another resolution sanctioning the purchase of plots of the Delhi Stores, a concern of Shankarlal, for a sum of Rs. 2,60,000/ .
It is in evidence that Accused 6 had no property in Delhi and that the said plots were not owned by the Delhi Stores.
The said loan and the sale price of the plots covered by the said resolutions were really intended for drawing the money of the Jupiter for paying the Khaitan Group before January 20,194 9.
But some shareholders got scent of the alleged fraud and issued notices; and the Directors were also afraid of detection of their fraud by the auditors during their inspection at the close of the year 1949.
It, therefore, became necessary to show in the accounts of the Jupiter that the loan alleged to have been advanced to Accused 6 was paid off.
For this purpose the Directors brought into existence the following four transanctions : (1) a loan of Rs. 5,00,000/ advanced to Raghavji on November 5, 1949; (2) a loan of 387 Rs. 5,30,000/ to Misri Devi on December 12, 1949; (3) a fresh loan of Rs. 5,30,000/ to Caveeshar, Accused 6 on November 5, 1949; and (4) a transactions of purchase of 54,000 shares of the Tropical for Rs. 14,00,000/ on May 25, 1949 and December 20, 1949.
These four ficticious transa ction were brought about to show the discharge of the loan advanced to Caveeshar, Accused 6.
Further manipulations were made in the accounts showing that parts of the loans due from Raghavji, Misri Devi and Caveeshar and also the price of the Tropical shares were paid by Caveeshar.
These paper entries did not satisfy the auditors and they insisted upon further scrutiny.
It is the case of the prosecution that Shankarlal and his co conspirators following their usual pattern conceived the idea of getting the controlling interest of the Empire, which had a reserve of Rs. 9 crores.
Jupiter securities worth about Rs. 45,00,000/ were endorsed in favour of Accused 7, who in his turn endorsed them in favour of the Punjab National Bank Ltd., for the purpose of opening a cash credit account therein.
On October 5, 1950, under exhibit Z 9, the controlling shares of the Empire were purchased from Ramsharan Group and the consideration therefor was paid from and out of the money raised on the Jupiter securities.
The Directors of the Jupiter had to make good to the Company not only the amounts paid out of the jupiter funds to purchase the controlling shares of the Jupiter, in regard to which various manipulations were made in the Jupiter accounts, but also about Rs. 45,00,000/worth of securities transferred in the name of Damodar Swarup.
Having purchased the controlling shares of the Empire, Shankarlal and his colleagues got their nominees.
, namely, Accused 7, 8 and 9 as Directors and Accused 10 as the Secre tary of the Empire.
On November 27, 1950, a resolution of the Directors of the Empire sanctioned the purchase of Rs. 20,00,000/ worth of Government 388 Securities alleged to belong to the Jupiter.
Though the securities were not delivered, two bearer cheques dated October 26, 1950 and October 27, 1950 for Rs. 15,00,000/ and Rs. 5,00,000/ respectively were made out and cashed and the said moneys were utilized to cancel the loan alleged to have been advanced to Raghavji and for the purchase of the Tropical shares for Rs. 1,4,00,000/ .
But the conspirators had still to make good the securities transferred in favour of Accused 7 and other amounts.
The Directors again sanctioned 12 loans, the first six on November 27, 1950 totalling Rs. 28,20,000/ and the other six on December 18, 1950 totalling Rs. 42,80,000/ admittedly to fictitious loanees.
12 bearer cheques for an aggregate of Rs. 71,00,000/ were issued by Accused 10 between December 19 and 23, 1950.
This amount was utilized for getting 5 drafts for different amounts in favour of Accused 1 and 2, the Directors of the Jupiter, Accused 4, its Secretary, and Accused 5, the Secretary of the Tropical (see exhibit Z 230).
The said drafts were sent to Bombay and one of the said drafts was utilized for paying off the loan of Misri Devi and the other Drafts for Rs. 57,00,000/ were paid into the Jupiter account in the Punjab National Bank Ltd., Bombay.
This amount was utilized to cover up the loss incurred by the Jupiter by reason of its securities worth about Rs. 45,00,000/ assigned in favour of Accused 7 and also by reason of the securities worth Rs. 20,00,000/ alleged to have been sold to the Empire on November 27, 1950.
It is, therefore, manifest, and indeed it is not disputed before us now, that Shankarlal and his co conspirators, whoever they may be, had conspired together and lifted large amounts of the Empire and put them into the Jupiter coffers to cover up the loss caused to it by their fraud.
Therefore in these appeals we proceed on the basis that there was a conspiracy as aforesaid and the only question for consideration is whether all or some of the appellants were parties to it.
389 Before dealing with the individual cases, as some argument was made in regard to the nature of the evidence that should be adduced to sustain the case of conspiracy, it will be convenient to make at this stage some observations thereon.
Section 120 A of the Indian Penal Code defines the offence of criminal conspiracy thus "When two or more persons agree to do, or cause to be done an illegal act, or an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy.
" The essence of conspiracy is, therefore, that there should be an agreement between persons to do one or other of the acts described in the section.
The said agreement may be proved by direct evidence or may be inferred from acts and conduct of the parties.
There is no difference between the mode of proof of the offence of conspiracy and that of any other offence : it can be established by direct evidence or by circumstantial evidence.
But section 10 of the Evidence Act introduces the doctrine of agency and if the conditions laid down therein are satisfied, the acts done by one are admissible against the co conspirators.
The said section reads : "Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to be so conspiring as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it." This section, as the opening words indicate, will come into play only when the Court is satisfied that 390 there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, that is to say, there should be a prima facie evidence that a person was a party to the conspiracy before his acts can be used against his co conspirators.
Once such a reasonable ground exists, anything said, done or written by one of the conspirators in reference to the common intention, after the said intention was entertained, is relevant against the others, not only for the purpose of proving the existence of the conspiracy but also for proving that the other person was a party to it.
The evidentiary value of the said acts is limited by two circumstances, namely, that the acts shall be in reference to their common intention and in respect of a period after such intention was entertained by any one of them.
The expression " 'in reference to their common intention" is very comprehensive and it appears to have been designedly used to give it a wider scope than the words "in furtherance of" in the English law ; with the result, anything said, done or written by a coconspirator, after the conspiracy was formed, will be evidence against the other before he entered the field of conspiracy or after he left it.
Another important limitation implicit in the language is indicated by the expressed scope of its relevancy.
Anything so said, done or written is a relevant fact only "as against each of the persons believed to be so conspiring as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it.
It can only be used for the purpose of proving the existence of the conspiracy or that the other person was a party to it.
It cannot be used in favour of the other party or for the purpose of showing that such a person was not a party to the conspiracy.
In short, the section can be analysed as follows : (1) There shall be a prima facie evidence affording a reasonable ground for a Court to believe that two or more persons are 391 members of a conspiracy ; (2) if the said condition is fulfilled, anything said, done or written by any one of them in reference to their common intention will be evidence against the other; (3) anything said, done or written by him should have been said, done or written by him after the intention was formed by any one of them ; (4) it would also be relevant for the said purpose against another who entered the conspiracy whether it was said, done or written before he entered the conspiracy or after he left it ; and (5) it can only be used against a co conspirator and not in his favour; With this background let us now take the evidence against each of the appellants and the contentions raised for or against him.
But it must be stated that it is not possible to separate each of the accused in the matter of consideration of the evidence, for in a case of conspiracy necessarily there will be common evidence covering the acts of all the accused.
We may, therefore, in dealing with some of the accused, consider also the evidence that will be germane against the other accused.
We shall first take the case of Accused 6, Caveeshar, who is the appellant in Criminal Appeal No. 82 of 1962.
So far as this appellant is concerned the learned Sessions judge found that he was a member of the conspiracy and the High Court confirmed that finding.
It is the Practice,, of this Court not to interfere with concurrent findings of fact even in regular appeals and particularly so in appeals under article 136 of the Constitution.
We would, therefore, approach the appeal of this accused from that perspective.
Learned counsel for this appellant argued before us that the said accused was convicted by the Sessions judge for being a member of the conspiracy in the Jupiter case in respect of his acts pertaining 392 to that conspiracy and therefore he could not be convicted over again in the present case on the basis of the facts on which the earlier conviction was founded; in other words, it is said that he was convicted in the present trial for the same offence in respect of which he had already been convicted in the Jupiter case and such a conviction would infringe his fundamental right under article 20 (2) of the Constitution, and in support of this contention reference was made to certain decisions of the Supreme Court of the United States of America.
The said Article reads : "No person shall be prosecuted and punished for the same offence more than once." The previous case in which this accused was convicted was in regard to a conspiracy to commit criminal breach of trust in respect of the funds of the Jupiter and that case was finally disposed of by this Court in Sardul Singh Caveeshar vs State of Bombay (1).
Therein it was found that Caveeshar was a party to the conspiracy and also a party to the fraudulent transactions entered into by the Jupiter in his favour.
The present case relates to a different conspiracy altogether.
The conspiracy in question was to lift the funds of the Empire, though its object was to cover up the fraud committed in respect of the Jupiter.
Therefore.
, it may be that the defalcations made in Jupiter may afford a motive for the new conspiracy, but the two offences are distinct ones.
Some accused may be common to both of them some of the facts proved to establish the Jupiter conspiracy may also have to be proved to support the motive for the second conspiracy.
The question is whether that in itself would be sufficient to make the two conspiracies the one and the same offence.
Learned counsel suggests that the question raised involves the interpretation of a provision of the Constitution and therefore the appeal of this accused (1) [1958] section C. R. 161.
393 will have to be referred to a Bench consisting of not less than 5 judges.
Under article 145 (3) of the Constitution only a case involving a substantial question of law as to the interpretation of the Constitution shall be heard by a Bench comprising not less than 5 Judges.
This Court held in State of Jammu & Kashmir vs Thakur Ganga Singh (1), that a substantial question of interpretation of a provision of the Constitution cannot arise when the law on the subject has been finally and effectively decided by this Court.
Two decisions of this Court have construed the provisions of article 20 (2) of the Constitution in the context of the expression "same offence." In Leo Roy Frey vs The Superintendent, District Jail, Amritsar (2), proceedings were taken against certain persons in the first instance before the customs authorities under section 167 (8) of the Sea Customs Act and heavy personal penalties were imposed on them.
thereafter, they were charged for an offence under section 120 B of the Indian Penal Code.
This Court held that an offence under section 120 B is not the same offence as that under the Sea Customs Act.
Das C. J., speaking for the Court, observed : "The offence of a conspiracy to commit a crime is a different offence from the crime that is the object of the conspiracy because the conspiracy precedes the commission of the crime and is complete before the crime is attempted or completed, equally the crime attempted or completed does not require the element of conspiracy as one of its ingredients.
They are,therefore, quite separate offences." This Court again considered the scope of the words " 'same offence" in The State of Bombay vs ,section L. Apte (3).
There the respondents were both convicted and sentenced by the Magistrate under section 409 of the Indian Penal Code and section 105 of the Insurance Act.
Dealing with the argument that the (1) [1960] 2 S.C.R.346.
(2) ; , 827, (3)[1961] 3.S.C.R.,107,114.
394 allegations of fact were the same, Rajagopala Ayyangar J., rejecting the contention, observed on behalf of the Court : "To operate as a bar the second prosecution and the consequential punishment thereunder, must be for `the e same offence '.
The crucial requirement, therefore, for attracting the Article is that the offences arc the same i. e., they should be identical.
If, however, the two offences are distinct, then notwithstanding that the allegations of fact in the two complaints might be substantially similar, the benefit of the ban cannot be invoked.
It is, therefore, necessary to analyse and compare not the allegations in the two complaints but the ingredients of the two offences and see whether their identity is made out." This decision lays down that the test to ascertain whether two offences are the same is not the identity of the allegations but the identity of the ingredients of the offences.
In view of the said decisions of this Court, the American decisions cited at the Bar do not call for consideration.
As the question raised has already been decided by this Court, what remains is only the application of the principle laid down to the facts of the present case.
cannot, therefore, hold that the question raised involves a substantial question of law as to the interpretation of the Constitution within the meaning of article 145 (3) of the Constitution.
In the present case, applying the test laid down by this Court, the two conspiracies are not the same offence : the Jupiter conspiracy came to an ' end when its funds were misappropriated.
The Empire conspiracy was hatched subsequently, though its 'Object had an intimate connection with the Jupiter in that the fraud of the Empire was concei.
ved and executed to cover up the fraud of the 395 Jupiter.
The two conspiracies are distinct offences.
It cannot even be said that some of the ingredients of both the conspiracies are the same.
The facts constituting the Jupiter conspiracy are not the ingredients of the offence of the Empire conspiracy,, but only afford a motive for the latter offence.
Motive is not an ingredient of an offence.
The proof of motive helps a Court in coming to a correct conclusion when there is no direct evidence.
Where there is direct evidence for implicating an accused in an offence, the absence of proof of motive is not material.
The ingredients of both the offences are totally different and they do not form the same offence within the meaning of article 20 (2) of the Constitution and, therefore, that Article has no relevance to the present case.
The next question is whether this appellant was a party to the Empire conspiracy.
He was a close associate of Shankarlal in the political field, he being the President of the Forward Bloc and Shankarlal being its Vice President.
That is how they were drawn together.
There is also evidence that out of the 63,000 shares of the Jupiter that were purchased in August, 1949 by Shankarlal Group, 4475 shares were allotted to this appellant.
It is, therefore, clear that Accused 6 though ex facie he was neither a Director nor an office bearer in the Jupiter, had heavy stakes in it.
We have already noticed that after the purchase of the said shares from and out of the Jupiter funds, a bogus loan in the name of Accused 6 for a sum of Rs. 25,15,000/ was shown in the Jupiter accounts and later on it was substituted by other manipulations.
[His Lordship then proceeded to consider the evidence.] x x x x x x x x Both the Courts on the basis of the aforesaid evidence came to the conclusion that Accused 6 was 396 a member of the conspiracy and we cannot say that there is no evidence on which the Courts could have come to the conclusion to which they did.
there are no permissible grounds for upsetting this finding under article 136 of the Constitution.
As regards the sentence passed against this accused, the Sessions Judge sentenced him to undergo rigorous imprisonment for a period of 5 years, whereas he sentenced Accused 7, 8 and 9 to undergo rigorous imprisonment for a period of 3 years only.
We do not see any justification for this distinction between the said accused in the matter of punishment.
Accused6 had already been convicted and sentenced in the Jupiter case; and on the evidence it does not appear that he had taken a major part in the Empire conspiracy, though he was certainly in it.
In the circumstances, we think that a sentence of 3 years ' rigorous imprisonment would equally suffice in his case.
We, therefore, modify the sentence passed on him and sentence him to undergo rigorous imprisonment for 3 years.
Subject to the aforesaid modification, the appeal preferred by Caveeshar, Accused 6, is dismissed.
We shall now proceed to consider the appeal preferred by Damodar Swarup, Accused 7 i. e., Criminal Appeal No. 83 of 1962.
Accused 7 was the Managing Director and Chairman of the Empire during the period of the conspiracy.
On October 17, 1950 he was elected the Chairman of the Board of Directors of the Empire and appointed as Managing Director on a salary of Rs. 2,000/per month for a period of one year.
He was removed from the post of Managing Director at the meeting of the Board of Directors held on March 12, 1951.
The misappropriation of the funds of the Empire, which is the subject matter of the conspiracy, were committed during the period of his Managing Directorship i. e., between 397 September 20 and December 31, 1950.
The prosecution case is that Accused 7 was a party to the conspiracy, whereas the defence version is that he was a benamidar for Shankarlal, that he took part in the proceedings of the Board of Directors bona fide, believing that there was nothing wrong, that the resolutions were implemented by Accused 10 under the directions of Shankarlal and that the moment he had a suspicion that there was some fraud, he took immediate and effective steps not only to prevent the rot but also to investigate and find out the real culprits.
The question is which version is true.
It would be useful to have a correct appreciation of the evidence to know the antecedents of Accused 7.
[His Lordship then proceeded to consider the evidence.] x x x x x x Learned counsel for Accused 7 contends that the following two important circumstances in this case established that Accused 7 was a victim of circumstances and that he was innocent : (1) Two prominent publicmen of this country with whom the accused worked gave evidence that he was a man of integrity; and (2) the accused took active steps to unravel the fraud and to bring to book every guilty person; if he was a conspirator, the argument proceeds, it was incon ceivable that he would have taken such steps, for it would have certainly recoiled on him.
We shall consider these two aspects now.
[His Lordship then proceeded to consider the evidence.] x x x x The question is what is the evidentiary value of good character of an accused in a criminal case.
The relevant provisions are section 53 and the Explanation to section 55 of the evidence Act.
They read : Section 53.
In criminal proceedings the fact 398 that the person accused is of a good character is relevant.
Explaination to 8.
In sections 52, 53, 54 and 55, the word "character" includes both reputation and disposition; but except as provided in section 54, evidence may be given only of general reputation and general disposition, and not of particular acts by which reputation, or disposition were shown.
It is clear from the said provisions that the evidence of general reputation and general disposition is relevant in a criminal proceeding.
Under the Indian Evidence Act, unlike in England, evidence can be given both of general character and general disposition.
Disposition means the inherent qualities of a person; reputation means the general credit of the person amongst the public.
There is a real distinc tion between reputation and disposition.
A man may be reputed to be a good man, but in reality he may have a bad disposition.
The value of evidence as regards disposition of a person depends not only upon the witness 's perspicacity but also on his opportunities to observe the person as well as the said person 's cleverness to hide his real traits.
But a disposition of a man may be made up of many traits, some good and some bad, and only evidence in regard to a particular trait with which the witness is familiar would be of some use.
Wigmore puts the proposition in the following manner : "Whether, when admitted, it should be given weight except in a doubtful case, or whether it may suffice of itself to create a doubt, is a mere question of the weight of evidence, with which the rules of admissibility have no concerned But, in any case, the character evidence is a very weak evidence : it cannot outweigh the positive 399 evidence in regard to the guilt of a person.
It may be useful in doubtful cases to tilt the balance in favour of the accused or it may also afford a background for appreciating his reactions in a given situation.
It must give place to acceptable positive evidence.
The opinion expressed by the witnesses does credit to the accused, but, in our view, in the face of the positive evidence we have already considered, it cannot turn the scale in his favour.
Learned counsel strongly relied upon the subsequent conduct of Accused 7 in support of his innocence.
[His Lordship then proceeded to consider the evidence relating to subsequent Conduct and Considered as follows] x x x x x x x x We, therefore, hold that Accuscd 7 was a party to the conspiracy and that the High Court has rightly convicted him under section 120 B of the Indian Penal Code.
As regards the sentence passed on Accused 7, having regard to the evidence in this case, we think that this accused must be given a comparatively less punishment than his co conspirators, for, though he took part in the conspiracy, at any rate from the end of December, 1950, for one reason or other, he took necessary proceedings to bring to light the fraud.
We, therefore, think that it would meet the ends of justice if the accused was sentenced to rigorous imprisonment for a period of two years.
We accordingly modify the sentence passed on him by the High Court and, subject to the aforesaid modification, we dismiss the appeal preferred by him.
Next we come to Criminal Appeal No. 136 of 1959 preferred by Subhedar, Accused 8.
The defence of this accused is that he acted throughout in good faith and under the guidance of Accused 7, the Managing Director of the Empire, and that he did not know that any fraud was perpetrated in the Empire.
Before joining the Empire he was an 400 insurance agent and, therefore, it cannot be said that he was a stranger to the insurance business and he may be assumed to know how it would be conducted.
On October 16, 1950 twenty qualifying shares of the Empire from among the shares purchased in the name of Accused 7 were transferred in his favour and thereafter at the meeting held on that day he was co opted as a Director.
He is also, therefore, one of the persons brought in by Shankarlal and made a Director for his own purpose.
[His Lordship then proceeded to consider the evidence] x x x x x x We have no doubt that the aforesaid circumstances lead to only one reasonable conclusion that this accused became a Director of the Empire as a member of the conspiracy and helped to put through all the transactions necessary to transfer funds from one Company to the other.
He was rightly convicted by the High Court.
We do not see any reason to interfere with the sentence passed against him.
In the result Criminal Appeal No. 136 of 1959 is dismissed.
Criminal Appeal No. 172 of 1959 is preferred by Sayana, Accused 9.
He was a building contractor before he was appointed a Director of the Empire.
His defence is also that he bona fide acted without knowledge of the conspiracy or the fraud.
He was also one of the Directors inducted into the Company by the transfer of qualifying shares from and out of the shares purchased in the name of Accused 7.
He was co opted as a Director on October 17, 1950 under exhibit Z 206C.
Though he was not present at the meeting of November 27, 1950, he was present at the meeting of December 18, 1950 and, therefore, with the knowledge that six loans amounting to Rs. 28,80,000/ were advanced without scrutiny of the securities, he was a party in sanctioning another six loans totalling to Rs. 42,80,000/ .
He as also a party to the resolution of January 30, 1951 401 sanctioning a bogus loan to the chief of Bagarian.
He was a party to the resolution dated February 9, 1951 when the said loan was confirmed and to the resolution authorizing Accused 9 to operate singly the accounts of the Company.
Evidence considered [omitted] x x x x It is, therefore, clear that he was a creature of Shankarlal, that he was a party to the diversion of the funds of the Empire to the Jupiter and that when Accused 7, for his own reasons, was taking steps to stop the rot, he, along with Accused 8, obstructed him from doing so and wholly supported Accused 10.
The only reasonable hypothesis on the evidence is that he was a party to the conspiracy.
It is said by learned counsel appearing for this accused that his subsequent conduct would not indicate any obstructive attitude on his part but would indicate only his desire to maintain the status quo till the matters improved.
This is a lame explanation, for he, along with the other Directors, opposed every attempt of the scrutiny of the Company 's affairs and this can only be because they were conscious of their part in the fraud.
In this context another argument of learned counsel for Accused 8 and 9 may be noticed.
It is said that the High Court treated the Directors as trustees and proceeded to approach the case from that standpoint inferring criminality from their inaction.
Even assuming that they were not trustees in the technical sense of the term, they certainly stood in a fiduciary relationship with the shareholders.
The High Court 's finding is not based upon any technical relationship between the parties, but on the facts found.
On the facts, including those relating to the conduct of the accused, the High Court drew a reasonable inference of guilt of the accused.
There is sufficient evidence on which the High Court 402 could have reasonably convicted Accused 8 and 9 and in the circumstances, we do not see any case had been made out in an appeal under article 136 of the Constitution to merit our interference.
In the result Criminal Appeal No. 172 of 1959 is dismissed.
Finally we come to Criminal Appeal No. 67 of 1959 preferred by Bhagwan Swarup, Accused 10.
The defence of this accused is that he acted throughout on the directions of Accused 7, 8 and 9, and that as Secretary of the Company, he was bound to follow their directions.
This accused is the nephew of Shankarlal.
He is an M. A., LL.
B. He held the office of Assistant Commissioner of Income tax in Patiala State.
He is the person who carried out the resolutions of the Board of Directors of the Empire through intricate channels to enable the large amounts misappropriated to reach the Jupiter Company.
It is suggested that he was not well disposed of towards Shankarlal and therefore he could not have any knowledge of Shankarlal 's fraudulent motives behind the purchase of the controlling shares of the Empire.
If Shankarlal did not like him lie would not have put him in the key position in the Empire.
Indeed, the will of Shankarlal shows that this accused got the best legacy under it.
He was the connecting thread passing through the web of conspiracy from beginning to end.
Evidence Considered [omitted] x x x x x x x x Learned counsel appearing for this accused Could only argue that the accused was a subordinate of the Directors and that he had followed only loyally the directions given by the Managing Director without any knowledge of the conspiracy.
This argument is an oversimplification of the part taken by Accused 10 in this huge fraud.
Both the Courts below have 403 held, on the aforesaid circumstances and other evidence; that Accused 10 was an active participant in the conspiracy.
In our view, there is ample material to justify it.
In the result Criminal Appeal No. 67 of 1959 is dismissed.
Cr. A. No. 82 of 1962 dismissed.
Sentence modified.
A. No. 83 of 1962 dismissed.
Sentence modified.
A. No. 136 of 1959 dismissed.
Cr. A. No. 172 of 1959 dismissed.
Cr. A. No. 67 of 1959 dismissed.
| The respondent was appointed a Naib Tehsildar under the appellant, in the year 1937.
On August 4, 1952, he was suspended on complaints received against him and his case was referred for investigation to the Administrative Tribunal appointed under the Rules.
While the proceedings were pending, additional complaints were received by the appellant against his conduct and they were communicated to the Tribunal with an intimation that the appellant proposed to send those further charges against the respondent for enquiry.
The Tribunal did not wait for receipt of the said additional charges and on enquiry exonerated him from the charges framed against him, in August, 1952.
On October 28, 1956, the respondent was again suspended and the charges framed on the additional complaints were delivered to him.
The respondent submitted his explanation and pleaded that the enquiry might be entrusted to the Administrative Tribunal in accordance with the Rules; but his request was rejected and the case was entrusted to the Commissioner with directions to take disciplinary proceeding , against him.
The High Court allowed the writ petition of the respondent and the order directing the enquiry to be held by the appointed authority under r. 55 of the said Civil Services Rules was quashed.
The question for decision in this Court was, whether like the word "may" in r. 4 (1) which confers the discretion on the Governor, the word "may" in sub r.
(2) confers discretion on him, or does the word "may" in sub r.(2) really mean "shall" or "must".
Held, that the whole purpose of r. 4 (2) would be frustrated if the word ,may" in the said rule receives the same construction as in sub r.
The plain and unambiguous object of enacting rule 4 (2) is to provide an option to the 198 .
Gazetted Government servants to request the Governor that their cases should be tried by a Tribunal and not otherwise.
Thus r. 4 (2) imposes an obligation on the Governor to grant a request made by the Gazetted Government Servant and such a request not having been granted in the present case, the appeal must fail.
|
vil Appeal No. 2176 of 1968.
Appeal from the Judgment and Decree dated the 18 8 1965 of the Mysore High Court in M.F.A. No. 341 of 1964.
S.T. Desai, K.N. Bhat and R.B. Datar for the Appellants.
Narayan Nettar for Respondent.
The Judgment of the Court was delivered by GUPTA, J.
The only question disputed in this appeal is whether a temple, known as Varadaraj Venkataramana Temple at Gutput in Mangalore Taluk, in Karnataka, is a public temple or a temple belonging to Goud Saraswat Brahmin Community of Gurpur.
This is an ancient temple founded about 400 years ago.
In a proceeding under section 57 of the Madras Hindu Reli gious and Charitable Endowments Act, 1951 (hereinafter referred to as the Act), the Deputy Commissioner by his order dated January 17, 1961 held that the temple was a public temple and the Commissioner on appeal affirmed the order of the Deputy Commissioner on June 12, 1961.
Thereaf ter the appellants who are the trustees of the temple insti tuted a suit, O.S. No. 106 of 1961, in the court of the Subordinate Judge, South Kanara, for a declaration that the temple was a private temple and not a temple as defined in section 6(17) of the Act or, in the alternative, for a declaration that it was a denominational or sectional temple belonging to the Goud Saraswat Brahmin community of Gurpur.
There was also a prayer for cancellation or modification of the order of Commissioner dated June 12, 1961 affirming that of the Deputy Commissioner that this was a public temple.
The Subordinate Judge held on the evidence that this was a denominational or sectional temple belonging to the Goud Saraswat Brahmin community of Gurpur and not a private temple.
He further held that there was no evidence before the Deputy Commissioner justifying his order which was affirmed by the Commissioner that it was a public temple.
He observed that "it is incorrect to draw an inference of dedication to the public merely from the fact of user by the public".
Accordingly, he allowed the alternative declaration asked for by the plaintiffs and modified the order of June 12, 1961 made by the Commissioner affirming the order of the Deputy Commissioner dated January 17, 1961.
From the deci sion of the trial court, the respondents preferred an appeal to the High Court.
The appellants before us also filed a cross objection contending that the Subordinate Judge should have held that the temple was a private temple and not a denominational or sectional temple.
The High Court found that this was a temple as defined in section 6(17) of the Act.
On the evidence also the High Court took a different view from the trial court and held that the temple was a place of religious worship dedicated to and used as of right by the general Hindu community and was thus a public temple.
On this 634 view the High Court allowed the appeal and dismissed the cross objection.
The appeal before us is by the plaintiffs on certificate granted by the Karnataka High Court.
The Subordinate Judge held on the evidence that the temple was founded by 37 Goud Saraswat Brahmin families of Gurpur, that the trustees managing the temple belonged always to the members of the said community, that the landed properties owned by the temple had all been endowed by members of this community, and that there was no reliable evidence of endowment of any immovable property by any person outside the community.
The Subordinate Judge on considering the evidence of defendants ' witness Nos. 2 to 4, on whom the defendants relied to prove that the temple was dedicated to the general Hindu community, found that none of them claimed a right of worship in the temple and the 'sevas ' offered by them were voluntary and the income from such sevas was also small.
He further found that it was only the members of the Goud Saraswat Brahmin community who were allowed to participate in the more important ceremo nies.
It was observed that the fact that Hindus other than those belonging to the Goud Saraswat Brahmin community were not prevented from worshipping in the temple did not "de prive the temple of its sectional character", that it was "incorrect to draw an inference of dedication to the public merely from the fact of the user by the public".
Thus the decision of the Subordinate Judge was that the temple was not a public temple because it was not dedicated to the general Hindu community but for the benefit of Goud Saraswat Brahmin community of Gurpur.
The High Court held that the definition of temple in section 6(17) of the Act covers the temple in question.
The definition is as follows: ""temple" means a place by whatever designation known, used as a place of public religious worship, and dedicated to, or for the benefit of or used as of right by, the Hindu community or any section thereof, as a place of public religious worship;" Even on the findings recorded by the Subordinate Judge, this would be a temple dedicated to or for the benefit of a section of the Hindu community and as such covered by the definition.
The High Court reversed the decision of the Subordinate Judge and held that "facts of the present case lend support to the conclusion that the temple must have been dedicated for the benefit of and used by the Hindu community and is being used by them, as of right, as a place of public religious worship".
The facts that weighed with the High Court were that Hindus generally came to worship in the temple and were not turned away and that when the deity is taken out in procession, members o.f the Hindu community other than Goud Saraswat Brahmins also offer "araties".
The claim made by some of the witnesses for the defendants that they used to consult the oracle in the temple also seemed to the High Court a significant circumstance.
But the High Court appears to have overlooked that these witnesses admit ted that "before consulting the oracle, 635 the manager must be told of it and it is he, who could consult on their behalf".
The High Court has recorded a finding that "numerous endowments" have been made by Hindus not belonging to Goud Saraswat Brahmin community.
This is not however supported by the evidence in the case.
Another circumstance which impressed the High Court was the recital in an award (Ext.
A 13) which was made part of the decree (Ext.
A 3) in a previous proceeding between the members of Goud Saraswat Brahmin community themselves, that the trus tees of the temple should place the accounts of income and expenditure before the "general body".
This "general body" according to the High Court implied, the Hindu community generally.
In the context of the award (Ext.
A 13) it is however clear that the 'general body ' mentioned therein could only refer to the members of the Goud Saras wat Brahmin community because the proceeding concluded by the decree was confined to the members of the community.
The law is now well settled that "the mere fact of the public having been freely admitted to the temple cannot mean that courts should readily infer therefrom dedication to the public.
The value of such public user as evidence of dedi cation depends on the circumstances which give strength to the inference that the user was as of right".
(see Bihar State Board.
Religious Trust, Patna vs Mahant Sri Biseshwar Das(1).
We find that the circumstances disclosed in evi dence in this case do not support the inference that Hindus generally used the temple as a place of worship as of right.
The appeal is accordingly allowed.
The Judgment of the High Court is set aside and that of the trial court re stored.
In the circumstances of the case we make no order as to costs.
S.R. Appeal allowed.
(1) (689).
502SCI/77 2500 23 11 77 GIPF.
| The appellants were charged under section 420 read with section 120B of the Indian Penal Code on the ground that there was a conspiracy between them as a result of which hundreds of applications were filed for the issue of pass ports.
The applications were made by suppressing the real facts about the .nationality and addresses of the applicants and by making false representations in several other re spects.
The prosecution alleged that hundreds of passports were issued and delivered to persons who were not entitled to have them under the law.
Special Leave was granted limited to the question whether the passports were property within the meaning of section 420 of the Indian Penal code.
Dismissing the appeal, HELD: 1.
A passport is a document which by its nature and purpose is a political document for the benefit Of its holder.
It recognises him as a citizen of the country granting it and is in the nature of a request to the other country for his free passage there.
[522 C] Satwant Singh Sawhney vs
D. Ramarathnam refered to; Ahayanand Mishra vs The State of Bihar ; followed; Queen Empress vs Appasami Mad.
151 and Queen Empress vs Sashi Bhushan All.
210 approved; Ishwarlal Girdharilal Parekh vs State of Maharashtra and Other followed.
In re Packianathan A.I.R. 1920 Mad. 131(1) and Local Government vs Ganga Ram A.I.R. 1922 Nagpur 229 approved.
The word 'property ' is defined as the right to the use or enjoyment or the beneficial right of disposal of anything that can be the subject of ownership, specially ownership of tangible things.
Passport is a tangible thing and is capa ble of ownership.
It is the property of the State so long as it is with the passport issuing authority and has not been issued to the person concerned, and after issue it becomes the property of the person to whom it has been granted.
Passport can be the subject of ownership or exclu sive possession and is therefore property within the meaning of sections 415 and 420 I.P.C. [523 A C, 524 G]
|
ivil Appeal No. 2057 of 1987.
From the Judgment and Order dated 13.7.1987 of the Delhi High Court in Civil Writ No. 1604 of 1981.
G.D. Gupta and Ashok K. Mahajan for the Appellant.
G.S. Shah, Hemant Sharma and C.V. Subba Rao for the Respondents.
The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J.
Special leave granted.
In 1980 the appellant was working as an Accountant in the Photo Division of the Ministry of Information and Broad casting, New Delhi.
By that time the appellant had rendered more than 20 years ' service.
By the letter dated 24th of December, 1980 the appellant sought voluntary retirement from the service after having completed more than 20 years ' service.
The said letter dated 24th of December, 1980 which was addressed to the Director, Photo Division, Ministry of Information and Broadcasting stated, inter alia, as follows: "I beg to seek voluntary retirement on 31.3.
I had joined government service on 4th August, 1958, thus I have completed more than 20 years service.
My notice period may please be treated w.e.f. 1.1.
The appellant states that three months notice was re quired by the rules of service to which the appellant be longed.
The said voluntary retirement was sought under Rule 48 A of the Central Civil Services (Pension) Rules, 1972 (hereinafter referred to as 'the Pension Rules ').
The Rule 48 A provides as follows: "48 A. Retirement on completion of 20 years ' qualifying service: 1177 (1) At any time after a Government servant has completed twenty years ' qualifying service, he may, by giving notice of not less than three months in writing to the appointing authority, retire from service.
(2) The notice of voluntary retire ment given under sub rule (1) shall require acceptance by the appointing authority.
Provided that where the appointing authority does not refuse to grant the permis sion for retirement before the expiry of the period specified in the said notice, the retirement shall become effective from the date of expiry of the said period.
" Sub rule (4) of Rule 48 A prevents with drawal of resignation letter except with the approval of the authority.
The said sub rule (4 ) provides as follows: "(4) A Government servant, who has elected to retire under this rule and has given the necessary notice to that effect to the appointing authority, shall be precluded from withdrawing his notice except with the specific approval of such authority.
" Acting on the basis of the letter of retirement, by an order dated 20th of January, 198 1 the appellant was allowed to retire voluntarily from service prospectively with effect from the afternoon of 31st March, 198 1.
The said order dated 20th January, 198 1 read as follows: "Shri Bal Ram Gupta, permanent Upper Division Clerk and officiating Accountant in the Photo Division is allowed to retire volun tarily with effect from the afternoon of 31st March, 1981, in accordance with the provisions contained in the Ministry of Home Affairs, Department of Personnel and Administrative Reforms O .M.
No. 250 13 7 77 Estt.
(A) dated 26th August, 1977.
" In the meantime, however, the appellant states that on account of persistent and personal requests from the staff members, the appellant had changed his mind and consequently had by his letter dated 31st January, 1981 withdrawn his notice of voluntary retirement.
He stated in his letter that he had dropped the idea of seeking voluntary 1178 retirement and he, therefore, requested the authorities that his request for resignation might be treated as cancelled and the notice given by him treated as withdrawn.
The appel lant, however, was not allowed to do so.
The appellant was relieved by an order dated 31st March, 1981.
It was stated in the said order that his request contained in the letter dated 31st January, 1981 for withdrawal of his application for voluntary retirement "has also been considered and found not acceptable".
The appellant contended before the authorities and the High Court that in view of his letter dated 31st January, 1981 seeking withdrawal of his letter of resignation, the impugned order dated 31st March, 198 1 retiring the appel lant was illegal and invalid.
The appellant, however, was asked to leave the office immediately.
The appellant was thereafter sent the gratuity form for claiming his retiring benefits.
The appellant met respondent No. 2 and requested him that his case may be considered on merits and the de partment should not "hush up" the matters like this but the same was to no avail.
The respondent No. 2, the Director, Photo Division, Ministry of Information and Broadcasting clearly informed the appellant that in view of the activi ties of the appellant in his capacity as the Secretary of the Photo Division Employees Association (Registered), it had been found appropriate to "ease him out" from the serv ice.
In spite of the several representations nothing hap pened, the appellant moved the High Court by a writ peti tion.
The Delhi High Court dismissed the appellant 's writ petition on the ground that the rule enabled the government servant to withdraw his application for voluntary retirement only with the approval of the Government.
The approval had not been given by the Government.
According to the High Court the rule had been complied with.
The Government had considered afresh the application of the appellant and Government found no reasons to interfere with the refusal to permit the appellant to withdraw his resignation.
The appel lant thereafter has come up in appeal to this Court.
The facts, therefore, are that the appellant offered to resign from his service by the letter dated 24th December, 1980 with effect from 31st March, 1981 and according to the appellant his resignation would have been effective, if accepted, only from 31st March, 1981.
Before the resignation could have become effective the appellant withdrew the application by the letter dated 31st of January, 1981, long before, according to the appellant, the date the resignation could have been effective.
In the meantime, however, prior thereto on the 20th of January, 1981 the respondent has purported to accept the resignation with effect from 31st March, 1981.
The appropriate rule sub rule (4) of 1179 Rule 48 A of the Pension Rules as set out hereinbefore enjoins that a government servant shall be precluded from withdrawing his notice except with the specific approval of such authority.
The proviso stipulates that the request for withdrawal shall be made before the intended date of his retirement.
That had been done.
The approval of the authori ty was, however, not given.
Therefore, the normal rule which prevails in certain cases that a person can withdraw his resignation before it is effective would not apply in full force to a case of this nature because here the Government servant cannot withdraw except with the approval of such authority.
Learned counsel appearing for the appellant contended before us that this rule was bad as violative of the Funda mental Rights of citizens.
Challenge to the rule was however not made before the High Court on this ground.
He, however, contended that if the rule be read as consistent with the constitutional requirements of reasonableness which is well .accepted rule of construction, then the Government could not withhold approval to the withdrawal of resignation without any rhyme or reason.
The counter affidavit filed in this proceeding by Shri Majgaonkar, who is the respondent No. 2 in this appeal reveals very little as to why the sanction was withheld.
It is stated in paragraph 5 of the said affidavit that it was not in the knowledge of the respondent as to what prompted the appellant to request the withdrawal.
What is important in this connection to be borne in mind is not what prompted the desire for withdrawal but what is important is what prompted the government from withholding the withdrawal.
In this respect the government affidavit certainly lacks candour.
In appropriate cases where the Government desires that public servant who seeks voluntarily to resign should not be allowed to continue, it is open to the Government to state those reasons.
There may be hundred and one situations where a situation or opportu nity like this may be used by the Government to ease out a disgruntled or reluctant or troublesome employee.
It was further stated that there were guidelines which were laid down by the O.M. No. 24(57) E V 32 dated 24.12.1952 for considering and deciding in the matter of accepting or refusing the withdrawals of notices of voluntary retirement.
What part of the guidelines was violated by the appellant was not indicated or spelled out in the said affidavit.
We would advert to certain guidelines and examine if these were violated later.
It is only stated that the application for withdrawal was considered in the light of the said guide lines and the request was turned down appropriately.
It was further stated that the notice of termination of service or of retirement is a unilateral act whereby the officer commu nicates his intention to dissolve the 1180 contract of service and unlike resignation it operates without the consent of the other party.
It is, therefore, submitted that once notice was given it became operative immediately, if it was received by the Government and auto matically brought about the dissolution of contract after the expiry of the notice period.
We are unable to accept this submission and this position.
The dissolution would be brought about only on the date indicated i.e., 31st of March, 1981, upto that the appellant was and is a Govern ment employee.
There is no unilateral termination of the same prior thereto.
He is at liberty, and entitled independ ently without sub rule (4) of Rule 48 A of the Pension Rules, as a Government servant, to withdraw his notice of voluntary retirement.
In this respect it stands at par with letter of resignation.
This question arose in the case of one Shri Satish Chandra, then a Judge in the High Court of Allahabad in Union of India vs Shri Gopal Chandra Misra and others; , There the second respondent Shri Satish Chandra wrote to the President of India, on May 7, 1977, intimating his resignation from the office of Judge of the Allahabad High Court, with effect from 1st of August, 1977.
On July 15, 1977, he again wrote to the President, revoking his earlier communication, and commenced deciding matters in Court from July 16, 1977.
On 1st of August, 1977 the first respondent Shri Misra, an advocate of the said High Court filed a writ petition under Article 226 of the Constitution contending that the resignation of Shri Satish Chandra having been duly communicated to the President of India in accordance with Article 217(1) Proviso (a) of the Constitu tion was final and irrevocable, and that the continuance of said Shri Satish Chandra as a Judge of the High Court there after, was an usurpation of public office.
The High Court allowed the petition holding that Shri Satish Chandra was not competent to revoke his resignation letter.
On appeal this Court held that the resigning office necessarily in volved relinquishment of the office which implied cessation or termination of, or cutting as under from the office.
A complete and effective act of resigning office is one which severs the link of the resigner with his office and termi nates its tenure.
In the context of Article 217(1) this assumes the character of a decisive test, because the ex pression "resign his office" occurs in a proviso which excepts or qualifies the substantive clause fixing the office tenure of a judge upto the age of 62 years.
It was further reiterated that in the absence of a legal, contrac tual or constitutional bar, an intimation in writing sent to the appropriate authority by an incumbent, of his intention or proposal to resign his office/post from a future speci fied date, can be withdrawn by him at any time before it becomes effective i.e., before it effects termination of the tenure of the office/post, or employment.
This general 1181 rule equally applies to Government servants and constitu tional functionaries, this Court reiterated.
The other peculiar essence of Article 2 17 which was discussed need not detain us in the facts of this case.
On the principle of general law the offer to relinquishment could have been withdrawn by the appellant before the date it became effec tive if sub rule (4) of Rule 48 A was not there.
In Air India etc.
vs Nergesh Meerza & Ors.
; , , there the Court struck down certain provisions of Air India Employees Service Regula tions.
We are not concerned with the actual controversy.
But the Court reiterated that there should not be arbitrariness and hostile discrimination in Government 's approach to its employees.
On behalf of the respondent it was submitted that a Government servant was not entitled to demand as of right, permission to withdraw the letter of voluntary retirement, it could only be given as a matter of grace.
Our attention was also drawn to the observations of this Court in Raj Kumar vs Union of India, There the Court reiterated that till the resignation was accepted by the appropriate authority in consonance with the rules governing the acceptance, the public servant concerned has locus poenitentiae but not thereafter.
Undue delay in inti mating to the public servant concerned the action taken on the letter of resignation may justify an inference that resignation had not been accepted.
But in the facts of the instant case the resignation from the Government servant was to take effect at a subsequent date prospectively and the withdrawal was long before that date.
Therefore, the appel lant, in our opinion, had locus.
As mentioned hereinbefore the main question was whether the sub rule (4) of Rule 48 A was valid and if so whether the power exercised under the sub rule (4) of Rule 48 A was proper.
In the view we have taken it is not necessary, in our opinion, to decide whether subrule (4) of Rule 48 A was valid or not.
It may be a salutary requirement that a Government servant cannot with draw a letter of resignation or of voluntary retirement at his sweet will and put the Government into difficulties by writing letters of resignation or retirement and withdrawing the same immediately without rhyme or reasons.
Therefore, for the purpose of appeal we do not propose to consider the question whether sub rule (4) of Rule 48 A of the Pension Rules is valid or not.
If properly exercised the power of the government may be a salutary rule.
Approval, however, is not ipse dixit of the approving authority.
The approving authority who has the statutory authority must act reasona bly and rationally.
The only reason put forward here is that the appellant had not indicated his reasons for withdrawal.
This, in our opinion, was sufficiently indicated that he was prevailed upon by his friends and the appellant had a second look at the matter.
This is 1182 not an unreasonable reason.
The guidelines indicated are as follows: "(2) A question has been raised whether a Government servant who has given to the appropriate authority notice of retirement under the para 2(2) above has any right subse quently (but during the currency of the no tice) to withdraw the same and return to duty.
The question has been considered carefully and the conclusion reached is that the Government servant has no such right.
There would, howev er, be no objection to permission being given to such a Government servant, on consideration of the circumstances of his case to withdraw the notice given by him, but ordinarily such permission should not be granted unless he is in a position to show that there has been a material change in the circumstances in con sideration of which the notice was originally given.
Where the notice of retirement has been served by Government on the Government servant, it may be withdrawn if so desired for adequate reasons, provided the Government servant con cerned is agreeable.
" In this case the guidelines are that ordinarily permis sion should not be granted unless the Officer concerned is in a position to show that there has been a material change in the circumstances in consideration of which the notice was originally given.
In the facts of the instant case such indication has been given.
The appellant has stated that on the persistent and personal requests of the staff members he had dropped the idea of seeking voluntary retirement.
We do not see how this could not be a good and valid reason.
It is true that he was resigning and in the notice for resignation he had not given any reason except to state that he sought voluntary retirement.
We see nothing wrong in this.
In the modern age we should not put embargo upon people 's choice or freedom.
If, however, the administration had made arrange ments acting on his resignation or letter of retirement to make other employee available for his job, that would be another matter but the appellant 's offer to retire and withdrawal of the same happened in so quick succession that it cannot be said that any administrative set up or manage ment was affected.
The administration has now taken a long time by its own attitude to communicate the matter.
For this purpose the respondent is to blame and not the appellant.
We hold, therefore, that there was no valid reason for withhold 1183 ing the permission,by the respondent.
We hold further that there has been compliance with the guidelines because the appellant has indicated that there was a change in the circumstances, namely, the persistent and personal requests from the staff members and relations which changed his attitude towards continuing in Government service and in duced the appellant to withdraw the notice.
In the modern and uncertain age it is very difficult to arrange one 's future with any amount of certainty, a certain amount of flexibility is required, and if such flexibility does not jeopardize Government or administration, administration should be graceful enough to respond and acknowledge the flexibility of human mind and attitude and allow the appel lant to withdraw his letter of retirement in the facts and circumstances of this case.
Much complications which had arisen could have been thus avoided by such graceful atti tude.
The court cannot but condemn circuitous ways "to ease out" uncomfortable employees.
As a model employer the gov ernment must conduct itself with high probity and candour with its employees.
In the aforesaid view of the matter, we are unable to sustain the judgment and order of the High Court of Delhi dated 13th of July, 198 1 and the same are, therefore, set aside.
The appeal is accordingly allowed with costs and the appellant is entitled to be put back to his job with all the consequential benefits being treated as in the job from 31st of March, 1981.
P.S.S. Appeal allowed.
| The workmen demanded bonus for the year 1950 5, on the allegation that the employers had made profits during the relevant year.
The employers resisted the demand on the ground that 879 there was a trading loss in the year and as such no bonus was payable.
To determine the available surplus out of which bonus was to be paid, the employers deducted out of their gross profits an amount for depreciation admissible under the Income tax Act.
The industrial tribunal disallowed a portion of the depreciation and found that there were profits in the relevant year and awarded three months bonus to the workmen.
The employers preferred appeals to the Labour Appellate Tribunal but they were dismissed.
The employers then applied to the Appellate Tribunal for a review and the Tribunal dismissed the application holding that it had no power to review its own decision and that even if it had the power it would not grant the review as no case for review had been made out.
Held, that the whole of the depreciation admissible under the Income tax Act is not allowable in determining the available surplus.
The initial depreciation and the additional depreciation are abnormal additions to the income tax depreciation and it would not be fair to the workmen if these depreciations are rated as prior charges before the available surplus is ascertained.
Considerations on which the grant of additional depreciation may be justified under the Income tax Act are different from considerations of social justice and fair apportionment on which the original Full Bench formila in regard to the payment of bonus to the workmen is based.
That is why only normal depreciation including multiple shift depreciation should rank as prior charges.
U.P. Electric Supply Co. Ltd. vs Their Workmen, , approved.
The Labour Appellate Tribunal had the power to review its own orders.
M/s. Martin Burn Ltd. vs R. N. Banerjee, [1958] S.C.R .5I4, followed.
The method adopted by the industrial tribunals in deter mining the trading profits of the employer is an industrial dispute, does not conform to the requirements and provisions of the Income tax Act, and it would, therefore, be fallacious to assume that gross profits determined by the industrial tribunal can be taken to be gross profits that would necessarily be taxable under the Income tax Act.
In determining the available surplus for payment of bonus provision for a higher amount of incometax cannot be made merely because the claim to initial and additional depreciation has been disallowed which increase the amount of gross profits.
|
Criminal Appeal No. 300 of 1985.
From the Judgment and Order dated 4.2.85 of the Bombay High Court in Crl.
Writ Petition No. 487 of 1984.
Govind Mukhoty, P.H. Parekh and Ms. L. Krishnamurthy for the Appellant.
A.B. Rohatgi, S.B. Bhasme, R. Karanjawala, Mrs. Karanja wala and M.N. Shroff for the Respondents.
The following Judgments were delivered: BHAGWATI, CJ.
In this appeal by special leave the appel lant who is a freelance journalist by profession and a Member of the Maharashtra State Legal Aid and Advice Commit tee, seeks to challenge the judgment of the Bombay High Court delivered on 4th February, 1985 on a writ petition filed by her.
In the writ petition she made grievance about the work ing of the New Observation Home located at Mankhurd which is maintained and managed by the Children 's Aid Society, Bom bay.
According to her, the Children 's Aid Society, is regis tered under the , and has also been treated as a Public Trust under the Bombay Public Trusts Act of 1950.
The Society was rounded on 1st May, 1926.
The Chief Minister of Maharashtra State is the ex officio President and the Minister for Social Welfare is the Vice President of the Governing Council of the Society.
The said Society receives grants from the State.
It has set up a Remand Home at Umerkhadi within Bombay area and it is now run as an Observation Home under the provisions of the Bombay Children 's Act, 1948 (hereinafter referred to as 'the Act ').
The Society runs three observation homes one at Umerkhadi established in 1927, the second at Mankhurd estab lished in 1960 and the third, the New Observation Home also at Mankhurd.
873 The appellant 's letter of 22nd August, 1984 was treated as a writ petition by the High Court wherein the grievances made by the petitioner were of four types as set out by the High Court in paragraph 23 of its judgment: (1) Delay in repatriation or restoration of children to their parents in respect of whom orders for repatriation were made by the Juvenile Court; (2) Non application of mind in the matter of taking children into custody and directing production before the Juvenile Court; (3) Absence of proper follow up action after admission of the children in the Observation Homes, in particular, grievance was made that the Child Welfare Officers were not performing their duties and such failure led to continued detention of children without any justification; and (4) Detention in such circumstances was illegal and the condition very often resulted in harassment to the children so detained.
The Society appeared before the High Court and filed counter affidavits denying allegations of facts raised in the writ petition and both parties produced documents.
The High Court went into the matter at considerable length, found some of the allegations to be without any justifica tion and yet others were accepted.
In paragraphs 44 and 45 of the impugned judgment, the High Court colated its direc tions and recommended thus: "(A) (i)A copy of the repatriation order passed by the Juvenile Court should always be sent to the Juvenile Aid Police Unit as it is now sent to the Observation Home.
The order should specify that the police should implement that order within a week.
What should be done by the police and the Observation Home in case the order is not implemented is mentioned in paragraph 27 of this judgment; (ii) The possibility of detailing sufficient number of personnel in the police department for the work con 874 nected with the Bombay Children Act should be speedily considered (Paragraph 28); (iii) The Government should immediately review the resolu tion dated 2nd September, 1965 issued by the Education and Social Welfare Department, which fixes the allowances for escort duties done by voluntary organisations (paragraph 29); (iv) It is also recommended that the Government should consider the constitution of an Escort Service which can consist of police personnel, youth volunteers and Government servants (latter part of paragraph 29); (v) The observation homes and the JAPU should not wait for a sufficient number of children being ready for being escorted before implementing the orders passed by the Juvenile Court (Paragraph 30).
(B) (i)The Magistrate presiding over the Juvenile Court should insist, in the case of local children, that the police must trace the parents of the children within a maximum period of 48 hours and take steps to restore them to their parents (paragraphs 32 and 33) (ii) Any tendency, if there is one, on the part of the personnel of JAPU of fulfilling the quota for a month should be firmly put down; (paragraph 32); In this Court, the appellant has maintained that the High Court failed to, consider several of the contentions advanced by her at the hearing of the writ petition, namely, (1) children while staying in the Observation Homes are forced to work without remuneration and are engaged in hazardous employment.
There were instances where Observation Homes assigned the work to private entrepreneurs with a view to making financial gains for the Society.
In support of this circumstance, reliance was placed upon an affidavit on behalf of the respondent filed in the High Court.
The appel lant next contended, relying on the balance sheet of the Society forming part of the annual report, it has been contended before the High Court that the Society was making a profit of about Rupees four lakhs a year by engaging children into it to discharge various types of labour with out making any payment to 875 them.
According to the appellant, the shortfall in follow up action has not been properly considered by the High Court and the directions given by it are inadequate.
In giving the directions, the High Court lost sight of mandatory provi sions of the Children 's Act as also the provisions in Arti cles 21 and 24 of the Constitution and the provisions con tained in the Directive Principles of the State Policy.
It is the submission of the appellant that Respondent No. 1 Society should have been treated as a State and not as a voluntary organisation.
In view of the materials placed on the record about the constitution and manning of the Society as also funding thereof, according to the appellant, the Court should have appreciated the position that it was the protector of the helpless children living within its juris diction and such care and attention and provisions of ameni ties as were necessary for their proper upkeep and bringing up should have been ensured by the judgment of the High Court.
She also contended that the directions of the High Court in the matter of illegal detention of children was not adequate.
Children are the citizens of the future era.
On the proper bringing up of children and giving them the proper training to turn out to be good citizens depends the future of the country.
In recent years, this position has been well realised.
In 1959, the Declaration of all the rights of the child adopted by the General Assembly of the United Nations and in Article 24 of the International Covenant on Civil and Political Rights 1966.
The importance of the child has been, appropriately recognised.
India as a party to these Interna tional Charters having rectified the Declarations, it is an obligation of the Government of India as also the State machinery to implement the same in the proper way.
The Children 's Act, 1948 has made elaborate provisions to cover this and if these provisions are properly translated into action and the authorities created under the Act become cognizant of their role, duties and obligation in the per formance of the statutory mechanism created under the Act and they are properly motivated to meet the situations that arise in handling the problems, the situation would certain ly be very much eased.
The problem is such that it does not brooke delay.
There is no unanimity of the problem also though there may be a pattern, every individual case is likely to pose a situation very often peculiar to itself.
A set pattern would not meet the situation, and yield the desired results.
What is, therefore, necessary is to appropriately train all the functionaries under the statute, create in them the neces sary bias and motivate them adequately to arise to the demand of every situation.
876 We appreciate that this is a difficult job but an intricate situation requiring delicate handling with full understand ing of the problem would definitely require appropriate manning of the machinery.
More than a mite of the grievances made by the appellant could not have been there if there had been competent handling of the situation.
It is very much necessary, therefore, that officers at the different level called upon to perform statutory duties by exercising powers conferred under the Statute have to be given the proper training and only when they had the requisite capacity in them should they be called upon to handle the situation.
Gerontocracy in silence manner indicated that like a young plant a child takes roots in the environment where it is placed.
Howsoever good the breed be if the sapling is placed on a wrong setting or an unwarranted place, there would not be the desired growth.
Same is the situation with the humane child.
The Child Welfare Officer (Probation) as also the Superintendent of the Observation Home must be duly motivated.
They must have the working knowledge in psycholo gy and have a sense of keen observation on their good func tioning would depend the efficacy of the scheme.
We are not inclined to agree with the contention ad vanced by the appellant that for employment in children 's home, the children would be given remuneration.
Children in Observation Homes should not be made to stay long and as long as they are there, they should be kept occupied and the occupation should be congenial and intended to bring about adaptability in life aimed at bringing about a selfconfi dence and picking of humane virtues.
We are not inclined to agree with the supervision over the Homes.
Indeed, without this aspect being assured, the conditions of these Homes could not improve.
Dedicated workers have to be found out, proper training to them has to be imparted and such people alone should be introduced into the children homes.
The Juvenile Court has to be manned by a Judicial Offi cer with some special training.
Creation of a Court with usual Judicial Officer and labelling it as Juvenile Court does not serve the requirement of the statute.
If that were so, the statute have no necessity of providing a Juvenile Court.
The statutory scheme contemplates a judicial officer of a different type with a more sensitive approach oriented outlook.
Without these any Judicial Officer would, indeed, not be competent to handle the special problem of children.
877 In recent years, children and their problems have been receiving attention both of the Government as also of the society but we must say that the problems are of such enor mous magnitude that all that has been done till now is not sufficient.
If there be no proper growth of children of today, the future of the country will be dark.
It is the obligation of every generation to bring up children who will be citizens of tomorrow in a proper way.
Today 's children will be the leaders of tomorrow who will hold the country 's banner high and maintain the prestige of the Nation.
If a child goes wrong for want of proper attention, training and guidance, it will indeed be a deficiency of the society and of the Government of the day.
A problem child is indeed a negative factor.
Every society must, therefore, devote full attention to ensure that children are properly cared for and brought up in a proper atmosphere where they could receive adequate training, education and guidance in order that they may be able to have their rightful place in the society when they grow up.
We agree with the appellant that the respondent Society should have been treated as a State within the meaning of Article 12 as it is undoubtedly an instrumentality of the State on the basis of the test laid down by this Court.
The respondent Society has, therefore, to regulate its activi ties not only in accordance with the statutory requirements but also act in a manner satisfying the requirements of the Constitutional provisions in Articles 21 and 24 as also the Directive Principles of the State Policy.
We would direct the State of Maharashtra to take prompt action to strictly enforce the law, act up to the require ments of the constitutional obligations and proceed to implement the directions given by the High Court as also by us in this judgment.
We direct that the State of Maharashtra shall pay to the appellant costs fixed at Rs.5000.
Before we part with this case, we may refer to a griev ance made by the appellant in regard to some of the observa tions made by the High Court relating to her stand in the writ petition.
The appellant pointed out that these observa tions were disparaging and the High Court ought not to have made the same.
We may point out even at the cost of reitera tion that the appellant is a social worker and a freelance journalist and she brought the matter before the High Court being genuinely aggrieved on account of non implementation of the statute and being moved by the condition of the children in the New Observation Home.
The appellant brought the writ petition before the High Court in larger public interest and for the purpose of securing im 878 plementation of the law.
We do not think that the observa tion made by the High Court against her were justified.
In fact, the High Court accepted most of the complaints made by her and proceeded to give relief by way of directions and recommendations.
The High Court should have borne in mind that the appellant was not a lawyer and was not acquainted with the procedure followed in the Court.
There was, there fore, no need to make those observations.
We would, there fore, direct that the observations criticising the appellant may be deleted.
PATHAK, J.
On the basis of the earlier authorities of this Court by which this Bench of two Judges must be bound, it appears that we must treat the Children 's Aid Society as falling within the expression "the State" within the meaning of Article 12 of the Constitution.
Having said that, I agree with the order proposed by the learned Chief Justice.
| In order that the lands belonging to a Trust for an institution for public religious worship should be entitled to exemption from the operation of Sections 32 to 32R of the Tenancy Act, 1948, two conditions namely (i) that the Trust must be registered or deemed to be registered under the Bombay Public Trust Act, 1950; and (ii) that the entire income of the lands belonging to a Trust for an institution for public religious worship must be appropriated for the purposes of such a Trust who added under the proviso to section 36B(1)(b) of the Act.
The challenge to the constitu tional validity of the same was negatived by the Bombay High Court.
Hence the appeals by special leave.
Dismissing the appeals, the Court, HELD: Sub section 1(b) of section 88B of the Bombay Tenancy and Agricultural Lands Act, 1948 does not offend against Article 26 of the Constitution by reason of the introduction of conditions (1) and (ii) in the proviso to that sub section.
[869G H] Both conditions (i) and (ii) do not in any way detract from the exemption granted under sub section i(b) of section 88B of the Act.
Condition (i) merely introduces a require ment that the Trust must be registered or deemed to be registered under the Bombay Public Trust Act, 1950 and this requirement is introduced in order to ensure that the Trust is really and truly a trust which falls within the language of subsection 1(b) of section 88B, namely, that it is genu inely a trust for an institution for public religious wor ship.
If the Trust is registered or deemed to be registered under the Bombay Public Trust Act, 1950, that would afford incontrovertible proof of the fact that it is a trust for a charitable 868 or religious purpose.
Condition (ii) requires that the entire income of the lands belonging to a Trust for an institution for public religious worship must be appropriat ed for the purposes of such Trust.
If lands belonging to a trust for an institution for public religious worship are to be eligible for exemption under sub section t(b) of section 88B, it would be quite legitimate for the legislature to insist that the entire income of such lands must be appro priated for the purposes of such Trust.
That would ensure that the trust is a genuine Trust for public religious worship and is not merely a facade for carrying out some other purposes.
[869C F]
|
Appeals Nos. 244 and 245 of 1958.
Appeal by special leave from the judgment and decree dated February 19, 1953, of the Madras High Court in Second Appeals Nos.
2120 and 2121 of 1947.
A. V. Viswanatha Sastri and M. section K. Iyengar, for the appellants.
K. N. Rajagopala Sastri and M. section K. Sastri, for respondent No. 1A. section V. Venugopalachari and R. Gopalakrishnan, for respondent No. 8A in Appeal No. 244 and respondent No. 7A in Appeal No. 245.
April 27.
The Judgment of the Court was delivered by SUBBA RAO, J.
These two appeals are directed against the judgment of the High Court of Madras dated February 19, 1953, setting aside that of the District Judge, Tirunelveli, and restoring that of the Subordinate Judge, Tuticorin, in O. section Nos. 45 and 46 511 of 1945 on his file, and they raise the question of maintainability of a suit in regard to honors and perquisites in the temple of Athinathalwar in Alwar Tirunagari.
At Alwar Tirunagari in Tirunelveli District there is a famous temple called Athinathalwar temple.
The presiding deity in the temple is Lord Vishnu.
Its origin is lost in antiquity.
In 'the 10th and 11th centuries Vaishnavite saints, called Alwars and Acharyas, who were ardent devotees of Lord Vishnu, worshiped at the temple and sang in praise of the Lord.
As time passed by, 20 smaller temples were erected to commemorate the lives of Alwar8 and Acharya8.
Within the compound of the main shrine, there are three minor shrines of Nachiar, Nammalwar, and Garuda; the rest of the smaller shrines are outside the premises of the main temple.
Each of the said temples has its own manager, archakas and separate endowments; but, presumably because of the fact that the Alwar8 and Acharyas, whose idols are installed in the smaller temples, were originally devotees of Sri Athinathalwar, an interesting and novel practice of mutual and regular exchange of visits between the idols in the smaller shrines and the idol of Athinathalwar has grown over the years.
During certain specified occasions in the year, the idols in the minor temples are brought to the main temple for worship; so too, on specific occasions the idol of Athinathalwar is also taken to the minor shrines; such visits being reminiscent of the days when the Alwars and Acharya8 worshiped in the temple of Athinathalwar.
Sri Ramanujacharya was one of the greatest of the devotees of Lord Vishnu and is well known throughout this vast country as the progenitor of an important school of Indian philosophy.
He died in the year 1127 A. D.
In the 13th century a shrine was built in his honour and his idol was installed therein.
Sri Ramanujacharya is also known as Udayavar or Emberumanar and the shrine built in his dedication is known as Emberumanar temple.
The manager and archaka of the said temple is known as Emberumanar 512 Jeer.
Emberumanar temple also is outside the precincts of the temple of Athinathalwar.
There are also mutual visits between the idol of Emberumanar and the idol of Athinathalwar to each other 's temple.
The present Emberumanar Jeer is the plaintiff in the suits out of which the appeals have arisen.
There is a mutt called the Vanamamalai Mutt in the said District and the head of the mutt is known as Vanamamalai Jeer.
He is a sanyasi held in reverence by Vaishnavites of South India.
He is the first defendant.
The heads of the Ahobilam Mutt and the Tirukkurungudi Mutt are the second and third defendants respectively.
The fourth defendant is the Executive Officer of the temple of Sri Athinathalwar and he was appointed by the Hindu Religious Endowments Board, Madras.
The records disclose that, at any rate from the middle of the last century, there have been disputes between the various Jeers and others as regards the order of priority in which certain honours have to be distributed among the said Jeers when they attend the temple of Sri Athinathalwar for worship.
In the ghoshties (group of worshipers in front of the deity) both on ordinary and special days the said Jeers are shown honours befitting their rank.
The honours consist of distribution of theertham, thulasi, satari and viniyogam, and a few more similar items.
Each of the said Jeers is allotted a particular place in the ghoshti and a certain order of precedence is observed inter se between them.
This order of precedence in the matter of receiving honours has become an unending source of bickering between the religious heads; with the result, the Madras Hindu Religious Endow ments Board, constituted under Act 1 of 1923, with jurisdiction to administer the endowments in the Madras State, had to interfere and settle the disputes inter se between the various Jeers.
On May 12, 1927, the said Board fixed the order of precedence for honours between the various Jeers to be observed both on ordinary and special days.
By the said order the Board recognized the Emberumanar Jeer 's right 513 to the honours and perquisites in precedence over the other Jeers on all the days other than Vaikasi festival days, except the 7th day, and as regards the other days of the festival, namely, 1st to 6th and 8th to 10th days, the Board directed that the other Jeers should be shown on the respective days both the ordinary and special honours in precedence over the rest of the Jeers, including the Emberumanar Jeer.
Not satisfied with the said order, the Emberumanar Jeer filed O. section No. 320 of 1933 in the Court of the District Munsif, Tirunelveli, which was later transferred to the Court of the Subordinate Judge, Tuticorin, as O. section No. 45 of 1945, against the other Jeers and the Hindu Religious Endowments Board, for the declara tion of his right to the first theertham and other per quisites in precedence over all the others in the ghoshties of Sri Athinathalwar temple on the ground that he was entitled to them as the office holder of the, temple of Emberumanar.
Subsequent to the filing of the suit, the Board, by its order dated May 15, 1935, altered the order of precedence giving the Vanamamalai Jeer precedence over the Emberumanar Jeer; and this led to the Emberumanar Jeer filing another suit O. section No. 201 of 1941 in the Court of the District Munsif, Srivaikuntam, for a declaration of his right to the first theertham, etc., in precedence over all the others.
This suit was later transferred to the Court of the Subordinate Judge, Tuticorin as O. section No. 46 of 1945, to be tried along with O. section No. 45 of 1945.
To the suits the Emberumanar Jeer, the Vanamamalai Jeer, the Ahobilam Jeer and the Tirukkurungudi Jeer, and the Executive Officer of the Hindu Religious Endowments Board were made parties.
These suits have had a chequered career.
But we shall briefly refer only to those stages of the long drawn litigation which have some bearing on the questions raised in the present appeals.
O. section No. 320 of 1933 was finally numbered as O. section No. 66 of 1936 and was disposed of on March 25, 1941, by the District Munsif, Tirunelveli.
The learned District Munsif dismissed the suit on the ground that it was not maintainable as the plaintiff had no legal right in respect 514 of which he could seek relief in a civil court.
On appeal, the learned Subordinate Judge, Tirunelveli, came to the conclusion that, as the plaintiff had come to court to establish his right of precedence to receive the theertham, etc., as forming part of the emoluments of his office of aradanaikar in the suit temple, the suit could not be dismissed on the preliminary ground that it was barked under section 9 of the Code of Civil Procedure; on that basis, he set aside the decree of the District Munsif and remanded the case for trial on other issues arising in the case.
Both the parties preferred appeals to the High Court of Madras and they were numbered as C. M. As.
Nos. 1 and 155 of 1943; on January 31,1945, Chandrasekara Aiyar, J., dismissed both the appeals.
The learned Judge propounded alternative theories, and he expressed himself thus: "Of course, before he (plaintiff) can succeed in the suit, the plaintiff has to make out that he being the Aradanaikar and trustee of the Emberumanar temple amounts to his holding an office in the suit temple." The learned Judge agreed with the Subordinate Judge that the suit could not be dismissed in limine without deciding the said question of fact.
On remand, the learned Subordinate Judge, Tuticorin, to whom the said suit and the connected suit, being renumbered O. section Nos. 45 and 46 of 1945, were remanded came to the conclusion that the Emberumanar temple was a sub shrine attached to the main temple of Sri Athina thalwar, and that the plaintiff, who was the aradanaikar of the sub shrine, would be virtually an office holder in the main temple.
He further hold that the privilege of first theertham was attached to the said office as part of its remuneration and, therefore, the suit was one of civil nature falling under section 9 of the Code of Civil Procedure; in that view, having held on the merits that the plaintiff had established his right of precedence, he decreed both the suits.
As many as six appeals were preferred against the decrees in the two suits by the aggrieved parties to the District Court; and the learned District Judge in a common judgment disposed of them on January 23, 1947.
515 The learned District Judge, on a review of the evidence in the case, held that the institutions were not interdependent or intimately connected in such a way that an office holder of the Emberumanar temple was necessarily an office holder of the Athiiiathalwar temple.
On that finding, he held that the plaintiff was not an office holder of the Athinathalwar temple and, therefore, he was not entitled to file a suit with regard to his rights of precedence in being given the theertham, etc.
In the result he allowed the appeals and dismissed both the suits with costs throughout.
Against the said judgment, the plaintiff preferred second appeals to the High Court of Judicature at Madras, being Second Appeals Nos. 2120 and 2121 of 1947.
They were heard by Krishnaswami Nayudu, J., who on a reconsideration of the evidence disagreed with the finding arrived at by the learned District Judge and accepted the finding given by the learned Subordinate Judge.
Not only the learned Judge accepted the finding of the learned Subordinate Judge that the plaintiff as the aradanaikar or the archaka of the sub shrine was virtually an office holder in the main temple, he also went further and held that, as one of the theerthakars, the plaintiff could be considered to be the holder of the office of arulipad in the main temple.
In the result the learned Judge set aside the decree of the District Judge and restored the decrees of the learned Subordinate Judge.
As leave to appeal to a division bench was not given by the learned Judge, the first defendant, i.e., the Vanamamalai Jeer, in the suits, by special leave, has preferred these appeals against the judgment of the High Court.
Mr. A. V. Viswanatha Sastri, learned counsel for the appellant, raised before us the following points: (1) A suit for a declaration that the plaintiff is entitled to honours in a temple would not lie unless he establishes that he holds an office in the said temple and that the said honours form part of the perquisites attached to the said office, and that, as in the present case the plaintiff claimed that he was an aradanaikar and trustee of only the Emberumanar temple and as such entitled to honours in Athinathalwar temple, 516 the suits should have been dismissed in limine on the ground that the plaints did not disclose any claim of civil nature falling under section 9 of the Code of Civil Procedure.
(2) The Courts were not justified in allowing the plaintiff to make out a now case not disclosed in the plaints, namely that the Emberumanar temple was a subordinate shrine of the Athi nathalwar temple and, therefore, the plaintiff was the office holder of the latter temple; assuming that there was justification for the courts in allowing the plaintiff to develop a new case at a very late stage of the proceedings, there was a clear finding of the District Court based on the evidence adduced in the case that the Emberumanar temple was not a sub shrine of the Athinathalwar temple, and the High Court had no jurisdiction to set aside that finding in second appeals.
Mr. Rajagopala Sastri, learned counsel for the respondents, contended that the plaintiff 's alternative case was not really a new one, but all the relevant facts in support of that case were disclosed in the plaints, and that the finding of the District Judge was not a finding of fact but was either a legal inference from proved facts or a mixed question of fact and law.
He argued that the contention of learned counsel for the appellant ignores the religious background and ideas of the class of persons with which we are now concerned, and that, if the matter is approached from a correct perspective, as the High Court did, it would be realized that there was such an association between the two temples as it could be said that one is subordinate to the other leading to the only irresistible inference that the plaintiff, the office holder of the sub shrine, could claim honours in the main temple of which the sub shrine is only a part in the larger sense.
At the outset it would be convenient and necessary to notice briefly the law pertaining to the maintainability of suits in civil courts in respect of honours in temples.
Section 9 of the Code of Civil Procedure describes the nature of suits which a court has jurisdiction to entertain.
It can entertain every suit of a civil nature excepting suits of which its cognizance is 517 either expressly or impliedly barred.
As a corollary to this, it follows that a court cannot entertain a suit which is not of a civil nature.
Prima facie suits raising questions of religious rites and ceremonies only are not maintainable in a civil court, for they do not deal with legal rights of parties.
But the explanation to the section accepting the said undoubted position says that a suit in which the right to property or to an office is contested is a suit of civil nature notwithstanding that such right may depend entirely on the decision of a question as to religious rites or ceremonies.
It implies two things, namely, (i) a suit for an office is a suit of a civil nature; and (ii) it does not cease to be one even if the said right depends entirely upon a decision of a question as to the religious rites or ceremonies.
It implies further that questions as to religious rites or ceremonies cannot independently of such a right form the subject matter of a civil suit.
Honours shown or precedence given to religious dignitaries when they attend religious ceremonies in a tem ple cannot be placed on a higher footing than the religious rights or ceremonies, for they are integral part of the said rites or ceremonies in the sense that the said honours are shown to persons partaking in the ceremonies.
Prima facie honours, such as who is to stand in the ghoshti, in what place, who is to get the tulasi, etc., in which order, and similar others, cannot be considered to be part of the remuneration or perquisites attached to an office, for they are only tokens of welcome of an honoured guest within the precincts of a temple.
One would have thought that it would even be a sacrilege to claim a right of precedence in the presence of the Almighty God, for all go before him as humble devotees to earn his blessings and not to assert their self importance or claim their right to preferential treatment.
But a century of case law in that part of the country has recognized certain rights of different grades of devotees and they and their innumerable followers began to cherish them or even to fight for them in criminal and civil courts.
This Court, therefore, does not propose to reconsider the 66 518 question of honours on first principles but only will resurvey the law on the subject with a view to ascertain, and if possible to clarify, the legal position.
The earliest decision is that in Striman Sadagopa vs Kristna Tatachariyar (1).
There, the plaintiff was the gurukkal of Sri Ahobilam Mutt and he sued the trustees of Sri Devarajaswami temple at Conjeevaram for damages for injuries done to him by withholding from him certain honours and emoluments and also sought to have his right to such honours and emoluments established for the future.
Two Schedules were attached to that plaint and they showed inter alia that what was claimed as honours were such as garlands, cocoanuts, prasadams and other paraphernalia attending the ceremonial recitation when the gurukkal visited the temple.
Scotland, C.J., formulated the legal position thus: ". . . these clearly show that every one of the matters in respect of which the suit is brought is purely a matter of religious and sacred observance in connection with the worship and ceremonials at the pagoda, and is claimed by the plaintiff as a matter of devotional respect and display due to his priestly rank or as a votive offering made to him whilst passing in procession through the temples, and when brought to the presence of the principal idol.
" Then the learned Chief Justice proceeded to state: "He (the plaintiff) is not officially connected in any way with the management or control of the pagoda, or its property or funds; and the alleged dues of his office have no doubt been owing to the great reverence at one time entertained for his sacredotal rank in the Hindu religion, and the importance from a religious point of view of his mere presence at the pagoda." He concluded thus: "Such honours and emoluments cannot in any respect be considered as remuneration for duties or ministrations performed by the plaintiff in the secular affairs or religious services of the pagoda." (1) ,3o6.
519 This decision, which has stood the test of time, clearly lays down that a suit to enforce the rights of persons holding offices connected with the management and regulation of temples and for honours and emoluments connected therewith would lie in a civil court; but a suit by a plaintiff, who does not hold an office in the temple, claiming honours customarily shown to him as a matter of devotional respect and display due to his rank is not of a civil nature.
The principle laid down in this case and restated in subsequent cases has been applied by a division bench of the Madras High Court to a claim for first theertham, etc., in Sri Rungachariar vs Rungasami Buttachar (1).
That decision was given in an appeal arising out of a suit for a declaration that the plaintiffs had a hereditary miras right to the offices of Sthalathar, Kutumba First Theertham, Muntrapushpam, Vedaparayanam and Adyapakam from times immemorial in the temple of Sri Parimala Ranga nathaswami at Tiruvilandur, and, by virtue of such right, were entitled to a fourth share of the honours and emoluments due to their offices as detailed in schedule A of the plaint.
The learned Judges, on the evidence, came to the following conclusion: ". . the plaintiffs as hereditary Sthalathars are bound to perform, besides the duties of superintendence attached to their office of Sthalathar, the ceremonial duties of vedaparayanam, etc., and are entitled to receive remuneration for the performance of those duties.
Included in this remuneration is the privilege of first theertham ' from which the plaintiffs are called 'theerthakars".
Then the learned Judges proceeded to observe: "Taking the findings to be, as we do, that the privilege of the first theertham is attached to the hereditary office of the plaintiffs as a part of the remuneration of the office, the Court must, to protect the plaintiffs in the enjoyment of the office, declare what is the honour to which they are entitled.
" This decision recognizes that a suit for a declaration of a plaintiff 's right to an office and for the honours, (1) Mad.291, 208.520 such as first theertham, etc., as part of the remuneration will lie in a civil court.
Athan Sadagopachariar Swamigal vs Elayavalli Sri nivasachariar (1) is a decision relating to honours in Athinathalwar temple itself.
The plaintiff in that case was a trustee of a temple called Pillalokacharyar 's temple.
The principal object of the suit was to prevent the first defendant from claiming to be one of the Adhyapaka Mirasidars in the temple of Nammalwar and Adinathar in Alwar Tirunagari.
It was contended that the first defendant was one of the seven Adhyapaka Mirasidars in the temple and his rank in the ghoshti was just above the plaintiffs.
Sadasiva Aiyar, J., posed the question raised and gave his answer thereto thus: "The legal question I wish to say something about is whether a suit for the honours mentioned in the second item of the 2nd Schedule to the plaint is maintainable in a Civil Court.
It is clear that if those honours are not attached to any office in the temple, no such suit could lie.
The first branch of the question, therefore, is a question of fact, viz., whether these honours are attached to the Adhyapaka Miras office in the temple."
After considering the evidence and other relevant decisions, the learned Judge came to the following conclusion: "I see no difficulty whatever in holding on the evidence in this case that the plaintiffs and the 1st defendant and the 5 other Adhyapaka Mirasidars get their rank in the Goshti and their rank in the distributions of prasadams not because those honours are part of the Adhyapaka Miras office to which they are entitled but because of their being Acharya Purushas or of their families having been very respectable religious families for long or because the mere respect due to their offices has been considered as making them fit in a social, and religious point of view to obtain such honours.
" That would be enough to dispose of that appeal, but the learned Judge proceeded to make certain observations even on the assumption that the said honours (1) , 299, 300, 301. 521 had been attached to emoluments so far as the 7 Adhyapaka Mirasidars were concerned.
The observations of the learned Judge, though obiter, deserve to be quoted not only because of his vast experience in matters of Hindu religion but also because of his well known reformative zeal to remove the cobwebs that shroded the Hindu religion by superstitious ignorance and perverted imposition.
The learned Judge says: ". . the next question of law is whether such honours to be shown in the presence of God can be legally attached to the office as emoluments, in other words, can honours be legally claimed by anybody as receivable by him in a temple? When a trustee chooses to parade the temple elephants and dancing girls before a high official or any other person and gives him prasadams, etc., he does it in order to show 'honours ' to that person and when he does it without prejudice to the conduct of the rituals and ceremonies in the temple, he always says that the God of the temple Himself condescends to treat the official or other persons as God 's guest and shows him these 'honours '.
Such persons to whom respect is shown cannot in my opinion claim such 'honours ' as a legal right, but as a favour shown by the temple Deity.
Such honours in the strict eye of the Shastras cannot be called honours at all but as doles condescendingly given by the temple Deity as a 'favour '.
One of the honours, as is well known, shown to a, Hindu in a Vaishnava temple is to place the impression of the feet of the Deity upon the head or shoulders of the devotee.
Another is the distribution of the 'leavings ' of the food offered to the Deity to the distinguished devotee.
The sandal paste of the feet of the Deity and the leaving of his food and the garland worn by the God are given as marks of pure grace and not as rights and hoilours claimable by the devotee. .
This clearly shows that while we ought to humbly accept the Deity 's leavings given through the trustee or an archaka, a claim for 'honour ' to be shown in the presence of God is a sinful claim and is illegal and unshastraic.
I would therefore respectfully confine the decision in Sri Bungachariar vs Bungaswami Buttachar(1) to cases in which the receiving of the first theertham by an office holder has become indissoluble part of the ritual to b e performed by the recipient as an office holder and the extension of the principle should be carefully guarded against.
These are weighty observations and if they were appropriate in the year 1913 they should be much more so in the year 1961."
We respectfully accept these observations as laying down the correct proposition, namely, that a party claiming an honour like first theertham, etc., has to prove not only that he is an office holder of the temple and that he has been receiving the first theertham in the Ghoshti but also that the receipt of the first theertham, has become an integral part of the ritual to be performed by him as an officeholder; for, the receipt of the first theertham would be consistent with its being shown as a grace from the Lord and also as its being a part of the remuneration to the office.
Another division bench of the Madras High Court in Vathiar Venkatachariar vs P. Ponappa Ayyengar (2) had to consider the question of a claim to a religious honour which consisted of receiving theerthams and prasadams in the temple in certain order of precedence.
This case also relates to Athinathalwar temple and to the question of precedence among the theerthakars.
The first question raised was whether there was such an office as theertham office in the temple.
Krishnan, J., delivering the leading judgment, in rejecting that there was such an office observed: "It may be mentioned that among the Theer thakars there are some 5 or 7 in number, who are called Adhyapakamdars, whose special duty it is to recite these Prabandams and they are remunerated by Inam lands given to them.
They are what may be called the official reciters in this temple."
Adverting to the question raised, the learned Judge proceeded to observe: "It is clear that, to constitute an office one, if not (1) Mad, 291, 298.
(2) 961, 962.the essential, thing is the existence of a duty or duties attached to the office which the office holder is under a legal obligation to perform and the nonperformance of which may be visited by penalties ,such as a suspension, dismissal, etc."
Applying the test in the case of Theerthakars and other Adhyapakamdars, the learned Judge said: "The only difference between the outsiders and the Theerthakars, as shown by the evidence, is that the Theerthakars have special places allotted to them in the temple to stand and recite and they are given the honour of Theertham and Prasadam, before the outsiders get them; and they have what is called an 'Arulapad ', that is, their names are called out by the Archaka in a certain order, when, if present, they have to respond by saying 'Nayinde ', meaning 'I am here '.
This does not seem to show that they are anything more than a recognized and privileged class of worshipers who are shown special consideration by having places allotted to them in the temple and by being given the honours before the ordinary worshipers in an order of precedence fixed by the usage of the temple."
On a consideration of the evidence in that case, the learned Judge stated: "On the evidence as set out it must be held that the plaintiffs have not made out the existence of any obligatory duty on the part of the Theerthakars or Of any office called the Theertham office."
This judgment, therefore, establishes that there is no office called the theertham office in the temple, as there is no obligatory duty on the part of the said theerthakars in the temple.
As the claim to the said honour was not established to have been attached as emoluments to the religious office the suit was dismissed.
Sri Emberumanar Jeer Swamigal vs The Board of Commissioners for Hindu Religious Endowments, Madras (1) is a decision of a single Judge of the Madras High Court in a writ petition filed by Emberumanar Jeer questioning the order of the Religious Endowments Board which is the subject matter of (1) , 591. 524 the present appeals.
That writ petition was dismissed on the ground that the Board 's order related to administrative matter and, therefore, a writ of certiorari would not lie to quash the same; but in the course, of the judgment, Pandurang Row, J., made certain relevant observations and they are: "What was determined by the Board was the order of distribution of theertham and honours connected with theertham.
This matter cannot in my opinion be regarded as a determination of any rights of subjects.
The rights of subjects referred to in the rule are rights which can be legally enforced and not mere honours or precedence claimed or recognized as a matter of courtesy or usage.
It is not seriously disputed that the right to obtain the theertham or honours in a particular order of precedence is not a civil right which can be enforced or declared in a Civil Court."
After citing the observations in Sriman Sadagopa vs Kristna Tatachariyar (1), the learned Judge observed: "Indeed the rule that Civil Courts cannot take cognizance of claims to mere honours or privileges of the nature referred to above has been unquestioned for many years and every attempt to evade that rule has met with failure." The observations of the learned Judge are rather wide, for, as the earlier decisions show, though a suit for privileges or honours per se may not lie in a Civil Court, if they are annexed to an office, they can be agitated therein.
This judgment was taken in appeal to a division bench of the High Court, consisting of Leach, C. J., and Somayya, J., who confirmed the same.
They observed: "It is acknowledged that a question relating to the distribution of theertham or other temple honours cannot be made the subject matter of a suit as it is not a question which affects a legal right." The remarks we made in regard to the observations of Pandurang Row, J., would equally apply to these observations.
They do not represent the entire law on the subject, but only a part of it.
(1) 525 It is not necessary to refer to further citations, for the decisions already cited lay down the relevant principles of law clearly.
For convenience of reference we may summarize the law on the subject thus: (1) A suit for a declaration of religious honours and privileges simpliciter will not lie in a civil court.
(2) But a suit to establish one 's right to an office in a temple, and to honours and privileges attached to the said office as its remuneration or perquisites, is maintainable in a civil court.
(3) The essential condition for the existence of an office is that the holder of the alleged office shall be under a legal obligation to discharge the duties attached to the said office and for the non observance of which he may be visited with penalties.
(4) So judged, there cannot be an independent office of theerthakar, for a theerthakar has no obligatory duties to perform; nor can there be an office of arulipad; the said word only connotes that the names of the theerthakars are called out by the archaka in a certain order.
(5) Even if theertham is given or other honours are shown in a particular order to a person holding an office, it does not necessarily follow that the said honours are part of the remuneration attached to the office; but it is a question of fact to be ascertained on the evidence whether the said honours are attached to the office as part of its per quisites in the sense that they have become an integral part of the ritual to be performed by the recipient as the office holder or are only shown to him as a mark of respect on the occasion of his visit to the temple.
Having regard to the said principles, lot us now look at the contentions raised in this case.
The first submission of learned counsel for the appellant is that, in view of the said principles, the suit should have been dismissed in limine on the basis of the allegations in the plaint.
In paragraph 4 of the plaint in O. section No. 45 of 1945, the claim of the plaintiff to the office is stated thus: "The plaintiff is the present Emberumanar Jeer and as such the aradhanaikar and trustee of the said 67 526 Emberuraanar temple having been appointed and nominated by his predecessor Sri Sadagopa Ramanuja Jeer who died in 1930.
" In paragraph 7 of the plaint, his claim to the honours is stated thus: "In his capacity as holder of the office of aradhanaikar and trustee of the Emberumanar temple and as emoluments attached to the said office, the Emberumanar Jeer is by immemorial usage and custom entitled to receive, in the ghoshties that are formed before all the sannidhies in the Adhinathalwar temple on all occasions of each day on all the days of the year without exception, the first theertham and other honours described in Schedule 1 below and the perquisites described in Schedule 11 below." In paragraph 9 it is further stated: "In his capacity as holder of the office of Aradhanalkar and trustee of Emberumanar temple and as emoluments attached to the said office the Emberumanar Jeer is entitled to receive on the 7th day of Vaikasi festival in the Athinathalwar temple, in addition to and along with the honours and perquisites described in Schedules 1 and 11, certain other honours such as the tying of the silk gear, etc., more particularly described in Schedule III hereto.
These are known as special honours while the honours described in Schedules I and II are known as ordinary honours."
It is clear from the said allegations that the claim of the plaintiff to the ordinary and special honours in the Athinathalwar temple is based upon his capacity as office holder as Aradhanaikar and trustee of Emberu manar temple.
There is no allegation that he is an officeholder in Athinathalwar temple.
In the written statements filed by the defendants the claim of the plaintiff to the said honours is denied.
In O.S. No. 46 of 1945 also the claim of the plaintiff to the honours is based upon the same allegations that are made in the plaint in O. section No. 45 of 1945.
In the written statement filed by the defendants the said claim is denied.
Indeed, the original issues reflected 527 only the allegations found in the pleadings.
If the courts had directed their minds to the pleadings, as they should have done, instead of traveling beyond them in search of some plausible basis to sustain the plaintiff 's claim the suits would have been dismissed for the simple reason that on the allegations in the plaint the plaintiff was not an office holder in the temple of Athinathalwar and, therefore, he ' could not claim the honours shown to him in the said temple as perquisites attached to his office; but unfortunately this was not done, and we think that it is too late to dismiss the suit on that ground when all the parties adduced voluminous evidence on the alternative ground and took the decision of the courts.
We shall, therefore, pro ceed to consider the case on the alternative basis on which the claim has been put forward on behalf of the plaintiff in the courts below.
To appreciate the said basis, it is necessary to re capitulate the relevant facts.
Originally, the District Munsif dismissed the suit O. section No. 320 of 1933 (0. section No. 45 of 1945 on the file of the Court of the Subordinate Judge, Tuticorin) on the ground that the plaintiff has no legal right in respect of which he could seek relief in a civil court.
But on appeal the learned Subordinate Judge set aside the decree and remanded the suit for trial.
In paragraph 18 of his judgment, the learned Subordinate Judge stated: "In view of the above authorities I am of opinion that when the present plaintiff has come to Court with a specific case set out in paragraphs 7 and 9 of his plaint that his right of precedence to receive theertham, thulasi, satari, prasadam and other per quisites forms part of the emoluments of his office of aradanaikar in the suit temple, the suit cannot be dismissed on the preliminary ground that it is barred under Section 9, Civil Procedure Code.
There is an obvious mistake in this statement, for in the paragraphs mentioned therein it is not alleged that the plaintiff has an office in the Athinathalwar temple."
Presumably this mistake lead the learned Judge to come to the conclusion which he did.
On appeal, in the High Court it was pointed out to the court that 528 temple.
But Chandrasekara Aiyar, J., for the first time, allowed the plaintiff to make out a new case.
The learned Judge stated the said case in the following words: "One view to take up in this case is what was adopted by the District Munsif, namely, that as the plaintiff admittedly holds no office in the Athinathalwar temple he cannot claim these honours.
The other view which found favour with the Subordinate Judge is that owing to the alleged associations of the two temples, their interlinking and their interdependence, the Aradanaikar and trustee of the Emberumanar temple might claim to be regarded as an office holder in the Athinathalwar temple."
The learned Judge did not decide the point, but he observed: "But the idea of two temples or Mutts, of equal rank and co ordinate and independent authority or where one is the primary institution and the other its subsidiary or adjunct being linked together for certain purposes of worship and observance of rituals cannot be said to be entirely foreign to Hindu notions."
He concluded thus: "Of course, before he can succeed in the suit, the plaintiff has to make out that he being the Aradanaikar and trustee of the Emberumanar temple amounts to his holding an office in the suit temple." The question whether the origin of this new case is found in the judgment of the Subordinate Judge or that of Chandrasekara Aiyar, J., need not detain us.
This is a new case not disclosed in the plaint; but after remand both the parties directed their attention to this question and adduced all the relevant evidence pertaining thereto.
On remand, the learned Subordinate Judge in an elaborate judgment considered the said aspect of the case.
He considered the evidence under three heads, namely, (i) historical, (ii) administrative, and (iii) financial.
On the first head after considering the origin of the two temples, the learned Judge came to the 529 conclusion that the idea that the Emberumanar temple was historically connected with Athinathalwar temple could not be "poopoohed".
Under the administrative head, he found that till 1926 Emberumanar temple was merely a sub shrine attached to the bigger Athinathalwar temple, and the trustees of the latter temple were exercising administrative control over it as such.
Coming then to the financial side, he found that there was sufficient evidence to justify the inference that the two were intimately connected even financially.
Passing on to the question of ceremonial and religious association between these two temples, the learned Judge found that there was similarity in the mode of routine and day to day worship in the two temples; but there was no interlinking or interdependence between them in that matter.
Then the learned Subordinate Judge pointed out that notwithstanding that there was no interlinking and interdependence in that matter, they were so intimately associated with each other in other religious rites and ceremonies as to lead to the inference that the Emberumanar temple was after all only a sub shrine attached to the main temple of Athinathalwar.
Then he pointed out that the question in the said form was not before Chandrasekara Aiyar, J., but thought that it was open to him to go into the said question.
After going into the evidence, he finally came to the conclusion that apart from historical and secular association, there had been also ceremonial and religious association between the two temples and, therefore, the Emberumanar temple was nothing but a sub shrine attached to the main temple of Athinathalwar.
On that finding he further held that the plaintiff who was admittedly the aradhanaikar of the said temple was virtually an office holder in the main temple.
In the appeals filed by the various parties against the decrees of the learned Subordinate Judge, the learned District Judge of Tirunelveli reviewed the evidence once again under the said three heads and came to a contrary conclusion.
On the administrative side he found that the Emberumanar temple was not subordinate to the 530 temple of Athinathalwar, in the sense that the authorities of the latter temple could give orders to the authorities of the Emberumanar temple, that is, the former was not subordinate to the latter temple administratively.
On the financial side, he was equally emphatic that the two institutions were not interdependent.
On the religious or ritual aspect, the learned District Judge held that, as both the institutions were constructed in the same place, there must have been some connection between the two and in that sense in a general way the Emberumanar temple might be described as a sub shrine.
On the said facts, the learned Judge posed the following question for his consideration: "What is the inference to be derived? On the evidence, he answered the question thus: "I hold on the evidence that these institutions are not interdependent or intimately connected in such a way that an office holder of Emberumanar temple is necessarily an office holder of the Athi nathalwar temple.
I hold therefore that the plaintiff is not an office holder of the Athinathalwar temple and therefore he is not entitled to file a suit with regard to his rights of precedence in being given theertham."
This finding is certainly a finding of fact based upon the entire evidence in the case.
In the second appeal, the learned Judge of the High Court, on a review of the evidence, disagreed with the learned District Judge and accepted the finding of the learned Subordinate Judge, and held, for similar reasons, that the plaintiff was virtually an office holder in the main temple; he further held that the plaintiff could also be considered to be the holder of the office of arulipad and, in that capacity also he was entitled to the first theertham and other honours.
The first question is one of fact.
The learned District Judge, though he differed from the Subordinate Judge, held, on a consideration of the entire evidence that the plaintiff was not an office holder in the Athinathalwar temple.
It has now been well settled that the High Court has no jurisdiction to entertain a second appeal on the ground of erroneous finding of 531 fact however gross the error may seem to be.
The judgment of the learned Judge does not disclose that there are any permissible grounds for interference with the finding of the District Judge.
The second ground of decision of the High Court is based upon a case that was raised for the first time before it.
Nowhere in the plaints or before the two subordinate courts the plaintiff attempted to sustain his claim on his being the holder of the office of arulipad.
The High Court, therefore, was not justified in allowing the plaintiff to set out any such claim for the first time in the second appeal.
That apart, it does not appear that there is an office called arulipad.
A division bench of the Madras High Court in Vathiar Venkatachariar vs P. Ponnappa Ayyengar (1) had an occasion to define the word "arulipad".
There, a claim was made to the office of Theerthakar.
On the evidence it was held that the plaintiffs had not made out the existence of any obligatory duty on the part of Theerthakar in the temple.
In that context Krishnan, J., observed thus: ". . . the Theerthakars have special places allotted to them in the temple, to stand and recite and they are given the honour of Thertham and Prasadam, before the outsiders get them; and they have what is called an "Arulipad", that is, their names are called out by the Archaka in a certain order, when, if present, they have to respond by saying 'Nayinde ', meaning 'I am here '."
It is, therefore, clear that there is no office designated as " arulipad", but that word only describes the duty of the archaka to call their names to ascertain whether the theerthakars are present in the ghoshti.
There is no evidence in this case that the plaintiff, as a theerthakar, has any obligatory duty in the Athinathalwar temple to perform and, therefore, it is not possible to treat him as an office holder in that capacity in the said temple.
This leads us to the argument of the counsel for the respondent that, though it cannot be said that the Emberumanar temple is a part or a subordinate of the Athinathalwar temple in the sense that all the (1) 532 office holders of the former are the office holders of the latter, there is sufficient ritual connection between the two which in the consciousness of the religious public is treated as sufficiently intimate to make the one subordinate to the other.
This intimate religious connection, the argument proceeds, flows from the historical, administrative and financial ties, however loose they may be, that have existed for over a century between the said two temples.
This argument may have some validity in a theological discussion or an ecclesiastical court, but cannot obviously be accepted in a civil court.
Krishnaswami Nayudu, J., sum marizes the facts in his judgment which, in his view, support the conclusion that the Emberumanar Jeer was virtually an office holder in the Athinathalwar temple.
As the correctness of the said facts is not questioned before us, it will be convenient to extract them in the words of the learned Judge: "In all Vaishnavite temples, the Alwars and the Acharyas take a prominent place in the religious ceremonies and observances of the temple.
An attempt was made to show that there has been an interlinking and interdependence of the ritual and ceremonies between these two temples, but, as rightly found by the learned Subordinate Judge, in the matter of routine and day to day worship and rituals such interlinking and interdependence have not been satisfactorily made out.
The rituals or the manner of performing divine service are uniform in every Vaishnavite temple.
But, as found by the learned Subordinate Judge, though a ritual in the main temple is not dependent upon the ritual in the sub shrine, the Emberumanar deity being an Acharya is intimately associated with the deity in the main temple in all the important festivals, the most important of which are the Margali and Vaikasi festivals and other religious ceremonies.
There are several Mandagapadis for the Athinatha Alwar in the Emberumanar temple.
There is Sethu Thirumanjam for the Athinatha Alwar and Embe rumanar deities on three occasions, two of them in the Emberumanar temple and one in the main 533 temple.
Then there is what is called Alwar Sayanam which has to take place on the 10th day of the Margali festival and which is performed in the main temple.
There are several other similar religious observances, where the two deities meet and certain rituals and religious ceremonies are gone through.
The daily ritual in a Vaishnavite temple is a routine matter and on occasions, for instance, in the months of Margali and Vaikasi and on other festival days, there is necessity for the Alwars and the Acharyas to meet the main deity and ceremonies suitable to the occasions are performed.
It is not possible to imagine a temple where God Vishnu is installed without the presence of the Alwars and Acharyas.
Alwars and Acharyas are devotees of God Vishnu who have received divine recognition in their lives and the festivals in relation to them depict incidents of such manifestation of divine grace to his devotees.
It may also be mentioned that the installation of each Emberumanar Jeer,, who it may be stated is a Sanyasi, is in the Athinatha Alwar temple under its Dwajasthamba, the flag staff, and the declaration of the status of the succeeding Jeer is made only ill the presence of the deity of the main temple.
" We may also add to the said facts that at one time the share of tasdik allowance to the Emberumanar temple was paid through the trustee of Athinathalwar temple and there was also an occasion when a trustee of the Emberumanar temple was dismissed by the trustee of the Athinathalwar temple.
On the other hand, both the temples are under different managements, they have their separate officeholders, distinct rituals, different budgets, and separate endowments; and in the year 1926 on an application filed by the Emberumanar Jeer, the Religious Endowments Board declared the temple as an excepted temple indicating thereby that the Emberumanar temple was a separate legal entity and that the said Jeer was its hereditary trustee.
only question, therefore, is whether the said facts enable a court to 68 534 hold that one temple is subordinate or part of the other temple, so that the office holders of one temple would become the office holders of the other.
The facts clearly establish that in fact and in law the two institutions are different legal entities.
In the past, the trustees of Athinathalwar temple might have disbursed tasdik allowances contributed by the Government to the various temples, including the Emberumanar temple, but it is well known that for convenience of administration the services of the trustees of a larger temple were very often utilized by the Government in that regard; it might have been that sometimes the amounts payable to the smaller temples were allowed to lapse, but there is nothing on the record to show that it was not out of negligence of the trustees of the minor shrines in not making any pressing demands on the trustees of Athinathalwar temple; it might also have been that the trustee of the bigger temple, in his supervisory capacity, dismissed once in a way the trustee of a smaller shrine in the locality, but that could be explained by the paramount position of the trustee of the bigger temple in the locality compared to that of the minor temples.
These and such acts may show that the trustee of the Athinathalwar temple had exercised similar supervisory control in the past over the minor temples; but that in itself does not make the trustee of the temple of Emberumanar an office holder in the bigger temple.
It is well known that in the past the temples were under the supervision of the Revenue Board and later on under various temple committees.
It cannot be suggested that on that account.
the trustees of the minor temples were officers in the Revenue Board or the temple committees, as the case may be.
We cannot also appreciate how the mutual visits of the idols to the other 's temple and the honours shown to the idols on such visits could have any bearing on the question to be decided, though they reflect the intimate relationship that exists between the Lord and his ardent devotee Ramanuja in the public consciousness.
But such cordial relationship existing between two independent temples cannot in the eye of law make the 535 one a part of the other.
Two independent institutions legally cannot, except in the manner known to law, be amalgamated into one institution by developing merely sentimental attachment between them.
This argument was rightly rejected by the learned District Judge, and the High Court went wrong in accepting it.
Before we close we must make it clear that by this judgment we have not in any way intended to express our view in the matter of honours that are customarily shown to one or other of the parties in these appeals in the temple of Athinathalwar.
In the result we hold, agreeing with the District Judge, that the suits were not maintainable in the civil court.
The appeals are, therefore, allowed with costs throughout.
Appeals allowed.
| The respondent as the aradanaikar and trustee of the Emberumanar temple, dedicated to Sri Ramanujacharya, which was one of the group of temples built around the main temple of Athinathalwar in the Tirunelveli District, brought the two suits, out of which present appeals arose, for declaration of his right to the first theertham and other honours and perquisites in precedence over all other worshippers in the temple of Athinathalwar and his case was that he was entitled to them by virtue of his office in the Emberumanar temple.
The matters came up to the High Court.
There was a remand order and the Subordinate Judge who tried the suits thereafter held that the Emberumanar temple was a sub shrine attached to the main temple and as such the plaintiff was virtually an office holder in the main temple and the precedence claimed by him was attached to that office as part of the remuneration and decreed the suits.
On appeal the District judge, on a review of the entire evidence, set aside the findings arrived at by the trial court and dismissed the suits as not maintainable.
The appeals to the High Court were heard by a single judge who, on a reconsideration of the evidence, reversed the findings of the District judge and affirmed those of the Subordinate judge and decreed the suits.
It was, further, held by the High Court that, as one of the theerthakars, the appellant could be considered to be the holder of the office of arulipad in the main temple.
Held, that although it was not permissible under section 9 of the Code of Civil Procedure for a civil Court to entertain a suit for a declaration of religious honours and privileges simpliciter, it could entertain a suit to establish one 's right to an office in a temple and to the honours and privileges attached to such office as its remuneration or perquisites.
But the essential condition for the existence of an office was that its holder must be under a legal obligation to discharge the duties attached to it and be liable to penalty on failure to do so.
So judged, there could neither be an independent office of theerthakar, for he had no obligatory duties to perform, nor that of an arulipad, since that word only connoted that the names of theerthakays were called out by the archaka in a particular order.
65 510 The question whether first theertham or any other honours shown to a person were merely as a mark of respect on the occasion of his visit to the temple, or were part of the remunera tion attached to his office, must in every case be decided on evidence and in the latter case such honours must be shown to have formed an integral part of the ritual to be performed by the recipient as the holder of the office.
Athan Sadagopachariar Swamigal vs Elayavalli Srinivasa chariar, , approved.
Striman Sadagopa vs Krishna Tatachariyar, (1863) 1 M.H.C.R. 301, Sri Rungachariar vs Rungasami Buttachar, (1909) I.L.R. and Vathiar Venkatachariar vs P. Ponappa Ayyangar, , referred to.
Sri Emberumanar jeer Swamigal vs The Board of Commissioners for Hindu Religious Endowments, Madras, (1936) 71 M.L.J. 588, considered.
Held, further, that it was well settled that the High Court bad no jurisdiction to entertain a second appeal on the ground of erroneous finding of fact, however gross the error might seem to be.
In the instant case, the High Court was clearly in error in reversing the finding of the District judge, which was one of fact, that the Emberumanar temple was neither subordinate to, nore part of the Athinathalwar temple and no office holder of the former could, therefore, become an office holder of the latter.
|
Special Leave Petition (Civil) No. 2047 of 1985.
From the Judgment and Order dated 29.2.1984 of the Delhi High Court in F.A.O. (O.S.) No. 28 of 1982.
Mohinder Narian, S.S. Jauhar and Ms. Zubeda Begum for the Petitioner.
The Order of the Court was delivered by CHINNAPPA REDDY, J.
It was just the other day that a Constitution Bench of this Court had to emphasise the urgency of infusing life into article 44 of the Constitution which provides that "The State shall endeavour to secure for the citizens a uniform civil code through out the territory of India.
" The present case is yet another which focuses attention on the immediate and compulsive need for a uniform civil code.
The totally unsatisfactory state of affairs consequent on the lack of a uniform civil code is exposed by the facts of the present case.
Before mentioning the facts of the case, we might as well refer to the observations of Chandrachud, C.J., in the recent case decided by the Constitution Bench (Mohd Ahmed Khan vs Shah Bano Begum & Ors.) 706 "There is no evidence of any official activity for framing a common civil code for the country .
A common Civil Code will help the case of national integration by removing disparate loyalties to laws which have conflicting ideologies.
No community is likely to bell the cat by making gratuitous concessions on this issue.
It is the State which is charged with the duty of securing a uniform civil code for the citizens of the country and, unquestionably, it has the legislative competence to do so.
A counsel in the case whispered, somewhat audibly, that legislative competence is one thing, the political courage to use that competence is quite another.
We understand the difficulties involved in bringing persons of different faiths and persuasions on a common platform.
But, a beginning has to be made if the Constitution is to have any meaning.
Inevitably, the role of the reformer has to be assumed by the courts because, it is beyond the endurance of sensitive minds to allow injustice to be suffered when it is so palpable.
But piecemeal attempts of courts to bridge the gap between personal laws cannot take the place of a common civil code.
Justice to all is a far more satisfactory way of dispensing justice from case to case.
" The facts of the case are somewhat novel and peculiar.
The wife, who is the petitioner before us claims to belong to the 'Khasi Tribe ' of Meghalaya, who was born and brought up as a Presbytarian Christian at Shilong.
She is now a member of the Indian Foreign Service.
The husband is a Sikh.
They were married under the Indian Christen Marriage Act, 1872.
The marriage was performed on October 14, 1975.
The present petition for declaration of nullity of marriage or judicial separation was filed in 1980 under sections 18, 19 and 20 of the .
The prayer for declaration no nullity of marriage was rejected by a learned single judge of the High Court, but a decree for judicial separation was granted on the ground of cruelty.
On appeal, a Division Bench of the High Court affirmed the judgment of the learned single judge.
The wife has filed this petition for special leave to appeal against the judgment of the High Court.
She seeks a declaration of nullity of marriage.
The ground on which the declaration was sought in the courts below and the ground on which it is now sought is the impotence of the husband in that though the husband is of achieving 707 erection and penetration, he ejaculates prematurely before the wife has an orgasm, leaving the wife totally unsatisfied and frustrated.
At this stage, we are not concerned with the question how far the wife has been able to establish her case.
The real problem now is that the marriage appears to have broken down irretrievably.
Yet if the findings of the High Court stand, there is no way out for the couple, they will continue to be tied to each other since neither mutual consent nor irretrievable break down of marriage is a ground for divorce, under the .
Section 10 the prescribes the grounds on which a husband or wife may petition for dissolution of marriage.
The ground on which a husband may obtain a decree for dissolution of marriage is the adultery of the wife.
The grounds on which a wife may obtain a decree for dissolution of marriage are change of religion from Christianity to another religion and marriage with another woman, incestuous adultery, bigamy with adultery, marriage with another woman with adultery, rape, sodomy or bestiality, adultery coupled with cruelty, adultery coupled with desertion for more than two years.
It must be noted that the applies only to cases where the petitioner or respondent professes the Christian religion.
Section 19 provides that a marriage may be declared null and void on the ground "(1) that the respondent was impotent at the time of the institution of the suit; (2) that the parties are within the prohibited degrees of consanguinity (whether natural or legal) or affinity; (3) that either party was a lunatic or idiot at the time of the marriage; (4) that the former husband or wife of either party was living at the time of the marriage and the marriage with such former husband or wife was then in fore.
" Section 22 provides for judicial aspersion at the instance of either husband or wife on the ground of adultery, cruelty or desertions for two years or upwards.
The provisions of the Divorce Act may now be compared with the provisions of other enactments and laws which provide for 708 decrees of nullity of marriage, divorce and judicial separation.
Under the , sec. 10 provides for judicial separation.
It enables either party to a marriage to seek judicial separation on any of the grounds specified in sec.
13(1) and in the case of a wife also on any of the grounds specified in sub sec.
2 of sec.
Section 11 provides for a declaration that a marriage is a nullity if it contravene as any one of the conditions specified in clauses (i), (iv) and (v) of sec.
(i) requires that neither party has a spouse living at the time of the marriage.
5 (iv) requires that the parties are not within the degrees of prohibited relationship, unless the custom or usage governing each of them permits of a marriage between the two.
5(v) requires that the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two.
Section 12 further provides that a marriage is voidable and may be annulled if (a) a marriage has not been consummated owing to the impotence of the respondent; or (b) a marriage is in contravention of the conditions specified in sec.
5(ii) (marriage without valid consent); or (c) the consent of the guardian, where required, under sec.
5 was obtained by force or fraud; or (d) the respondent was, at the time of the marriage was pregnant by some person other than the petitioner.
Section 13(1) enumerates the grounds for the dissolution of a marriage on the petition of a husband or wife.
It provides that a marriage may be dissolved by a decree of divorce if the other party "(i) has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse, or (i a)has, after the solemnization of the marriage, treated the petitioner with cruelty, or (i b)has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition, or (ii) has ceased to be Hindu by conversion to another religion, or (iii)has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that 709 the petitioner cannot reasonably be expected to live with the respondent.
(EXPLANATION) omitted for the present purpose) (iv) has, been suffering from a virulent end incurable form of leprosy, or (v) has been suffering from venereal disease in a communicable form, or (vi) has renounced the world by entering any religious order, or (vii)has not been heard of as being alive for a period of seven years or more by these persons who would naturally have heard of it, had that party been alive." (EXPLANATION omitted for the present purpose) Section 13 (1 A) provides "(i) that there has been no resumption of cohabitation as between the parties to the marriage for a period of one year or upwards after passing of a decree for judicial separation in a proceeding to which they were parties, or (ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of one year or upwards after the passing of the decree for restitution of conjugal rights in a proceeding to which they were parties.
" Section 13 (2) provides "(2) A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground 710 (i) in the case of any marriage solemnized before the commencement of this Act, that the husband had married again before such commencement or that any other wife of the husband married before such commencement was alive at the time of the solemnization of the marriage of the petitioner, or Provided that in either case the other wife is alive at the time of presentation of the petition, or (ii) that the husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality, or (iii)that in a suit under section 18 of the , or in a proceeding under section 125 of the Code of Criminal Procedure, 1973 (or under the corresponding section 488 of the Code of Criminal Procedure, 1898), a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards, or (iv) that her marriage (whether consummated or not) was solemnized before she attained the age of fifteen years and she has repudiated the marriage after attaining that age but before attaining the age of eighteen years.
" Section 13 A provides that on a petition for dissolution of marriage by a decree of divorce, except in so far as the petition is founded on the grounds mentioned in sec.
13 (i) (ii) (vi) and (vii), the court may, if it considers it just so to do, having regard to the circumstances of the case, pass a decree for judicial separation.
Section 13 B further provides that a petition for dissolution of marriage by a decree of divorce may be presented to the court by both the parties to the marriage together on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage 711 should be dissolved.
If the provisions of the are compared with the provisions of the , it will be seen that apart from the total lack of uniformity of grounds on which decrees of nullity of marriage, divorce or judicial separation may be obtained under the two Acts, the contains a special provision for a joint application by the husband and wife for the grant of a decree of divorce by mutual consent whereas the contains no similar provision.
Another very important difference between the two Acts is that under the , a decree for judicial separation may be followed by a decree for the dissolution of marriage on the lapse of one year or upwards from the date of the passing of a decree for judicial if meanwhile there has been no resumption of cohabitation.
There is no corresponding provision under the and a person obtaining a decree for judicial separation will have to remain content with that decree and cannot seek to follow it up with a decree of divorce, after the lapse of any period of time.
We may also notice that irretrievable break down of marriage is yet no ground for dissolution of marriage under the also, though the principle appears to have been recognised in sec.
13 (1 A) and sec.
13(B).
We may now have a look at the provisions of the which applies only to marriages solemnized under that Act.
23 of the Act enables the husband or the wife to present a petition for judicial separation (a) on any of the grounds specified in sub section (1) and sub section (1 A) of section 27 on which a petition for divorce might have been presented; or (b) on the ground of failure to comply with a decree for restitution of conjugal rights.
Section 24 declares that a marriage may be declared nullity if (i) any of the conditions specified in clauses (a), (b), (c) and (d) of section 4 has not been fulfilled; or (ii) the respondent was impotent at the time of the marriage and at the time of the institution of the suit.
We may notice here that sec.
4 clauses (a), (b), (c), (d) and (e) provide that neither party has been subject to recurrent attacks of insanity or epilepsy, that the male has completed 21 years of age and the female 18 years of age and that the parties are not within the degrees of prohibited marriage.
Section 25 declares that a marriage shall voidable and may be annulled by a decree of nullity if, "(i) the marriage has not been consummated owing to the 712 wilful refusal of the respondent to consummate the marriage; or (ii) the respondent was at the time of the marriage pregnant by some person other than the petitioner; or (iii)the consent of either party to the marriage was obtained by coercion or fraud, as defined in the ." (The provisos have been omitted as they are not necessary for the purposes of this case) Section 27 enables either the husband or the wife to seek a decree of divorce on the ground that the respondent "(a) has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or (b) has since the solemnization of the marriage treated the petitioner with two years immediately preceding the presentation of the petition; or (c) is undergoing a sentence of imprisonment for seven years or more for an offence as defined in the Indian Penal Code; (d) has since the solemnization of the marriage treated the petitioner with cruelty; or (e) has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.
(Explanation omitted as it is not necessary.) (f) has been suffering from venereal disease in a communicable form; or 713 (g) has been suffering from leprosy, the disease not having been contracted from the petitioner; or (h) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of the respondent if the respondent has been alive." (Explanation omitted as it is not necessary) Section 27 (1A) enables a wife to present a petition for divorce on the ground that her husband has since the marriage been guilty of rape, sodomy or bestiality, or that an order for maintenance has been made against the husband and that cohabitation has not been resumed for one year or upwards after the making of the order.
27 (2) further provides that a decree for divorce may be presented on the ground that there has been no resumption of cohabitation as between the parties to the marriage for a period of one year or upwards after the passing of a decree for judicial separation.
28 provides for the passing of a decree of divorce on the presentation of a petition by both the parties together on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have actually agreed that the marriage should be dissolved.
It will be seen that the like the contains provisions for a decree for judicial separation being followed up by a decree of divorce if there has been no resumption of cohabitation for a year or more and also for a decree of divorce by mutual consent.
Here again, it will be seen that the principle of irretrievable break down of marriage seems to be accepted on principle, but is not specifically made a ground of divorce.
Under the , section 30 provides that a marriage may be declared to be null and void if consummation of a marriage is from natural causes impossible.
31 provides for the dissolation of a marriage if a husband or wife has continuously been absent for a period of seven years and has not been heard of as being alive within that time.
Sec.32 provides grounds for divorce: "(a) that the marriage has not been consummated within one year after its solemnization owing to the wilful refusal of the defendant to consummate it; 714 (b) that the defendant at the time of the marriage was of unsound mind and has been habitually so up to the date of the suit; (Proviso has been omitted) (c) that the defendant was at the time of marriage pregnant by some person other than the plaintiff; (Proviso has been omitted) (d) that the defendant has since the marriage committed adultery or fornication or bigamy or rape or an unnatural offence; (Proviso has been omitted) (e) that the defendant has since the marriage voluntarily caused grievous hurt to the plaintiff or has infected the plaintiff with venereal disease, or, where the defendant is the husband, has compelled the wife to submit herself to prostitution; (The proviso has been omitted) (f) that the defendant is undergoing a sentence of imprisonment for seven years or more for an offence as defined in the Indian Penal Code; (The proviso has been omitted) (g) that the defendant the deserted the plaintiff for at least three years; (h) that a decree or order for judicial separation has been passed against the defendant, or an order has been passed against the defendant by a Magistrate awarding separate maintenance to the plaintiff, and the parties have not had marital intercourse for three years or more since such decree or order; (i) that the defendant has failed to comply with a decree for restitution of conjugal rights for a year or more; and 715 (j) that the defendant has ceased to be a Parsi." (Proviso has been omitted) Section 34 provides for judicial separation on any of the grounds on which divorce could be sought; or on the ground that the defendant has been guilty of such cruelty to him or her or to her children or has used such personal violence, or has behaved in such a way as to render it in the judgment of the court improper to compel him or her to live with the defendant.
It will be noticed here that under the also, mutual consent and irretrievable break down of marriage are not grounds of divorce though a decree for judicial separation may be followed by a decree of divorce if the parties have not had marital intercourse for three years or more since such decree or order.
Under the Mohammedan Law, a Muslim husband may divorce his wife by the pronouncement of talaq.
A Muslim wife may after the passing of the dissolution of Muslim Marriages Act, 1939, obtain a decree for a dissolution of a marriage on one of the following grounds: "(i) that the whereabouts of the husband have not been known for a period of four years; (ii) that the husband has neglected or has failed to provide for her maintenance for a period of two years; (iii)that the husband has been sentenced to imprisonment for a period of seven years or upwards; (iv) that the husband has failed to perform, without reasonable cause, his martial obligations for a period of three years; (v) that the husband was impotent at the time of the marriage and continues to be so; (vi) that the husband has been insane for a period of two years or is suffering from leprosy or a virulent venereal disease; (vii)that she, having been given in marriage by her father 716 or other guardian before she attained the age of fifteen years, repudiated the marriage before attaining the age of eighteen years (Proviso has been omitted as it is not necessary) (viii)that the husband treats her with cruelty that is to say (a) habitually assaults her or makes her life miserable by cruelty of conduct even if such conduct does not amount to physical ill treatment, or (b) associates with women of evil repute or leads an infamous life, or (c) attempts to force her to lead an immoral life, or (d) disposes of her property or prevents her exercising her legal rights over it, or (e) obstructs her in the observance of her religious profession or practice, or (f) if he has more wives than one, does not treat her equitably in accordance with the injunctions of the Qoran; (ix) on any other ground which is recognised as valid for the dissolution of marriages under Muslim Law." (The proviso has been omitted as it is not necessary in the present case).
We may add that under strict Hanafi Law, there was no provision enabling a Muslim women to obtain a decree dissolving her marriage on the failure of the husband to maintain her or on his deserting her or maltreating her and it was the absence of such a provision entailing 'inspeakable misery in innumerable Muslim women ' that was responsible for the dissolution of the Muslims Marriages Act, 1939.
(See Statements of Objects and Reasons of that Act).
If the legislature could so alter the Hanafi Law, we fail to understand the hallabalcoo about the recent judgment of this court in the case of 717 Mohd. Ahmed Khan vs Shah Bano Begum & Ors.
interpreting the provisions of sec.
125 of the Criminal Procedure Code and the Muslim Law.
it is also necessary to add that Mohammedan Law provides for a decree for divorce known as Khula and mubara ' at by agreement of parties.
It is thus seen that the law relating to judicial separation, divorce and nullity of marriage is far, far from uniform.
Surely the time has now come for a complete reform of the law of marriage and make a uniform law applicable to all people irrespective of religion or caste.
It appears to be necessary to introduce irretrievable break down of marriage and mutual consent as grounds of divorce in all cases.
The case before us is an illustration of a case where the parties are bound together by a marital tie which is better untied.
There is no point or purpose to be served by the continuance of a marriage which has so completely and signally broken down.
We suggest that the time has come for the intervention of the legislature in these matters to provide for a uniform code of marriage and divorce and to provide by law for a way out of the unhappy situations in which couples like the present have find themselves in.
We direct that a copy of this order may be forwarded to the Ministry of Law and Justice for such action as they may deem fit to take.
In the meanwhile, let notice go to the respondents.
| The petitioner belonged to the 'Khasi Tribe ' of Maghalaya and was born and brought up as a Presbytarian Christian.
She is now a member of the Indian Foreign Service.
The respondent husband is a Sikh.
They were married under the .
The petitioner filed a petition in 1980, for declaration of nullity of marriage or judicial separation under sections 18, 19 and 22 of the , on the ground of the impotence of her husband.
A Single Judge of the High Court rejected the prayer for declaration of nullity of marriage, but granted a decree for judicial separation on the ground of cruelty.
Division Bench affirmed the decision of the Single Judge on appeal.
In the special leave petition filed by wife, ^ HELD: (1) A comparison of the relevant provisions of the Christian Marriage Act 1872, , , , Dissolution of Muslim Marriage Act, 1939, show that the law relating to judicial separation, divorce and nullity of marriage is far, far from uniform.
[717 B] (2) Under the , a decree for the judicial separation may be followed by a decree for the dissolution of marriage on the lapse of 705 one year or upwards from date of the passing of a decree for judicial separation, if meanwhile there has been no resumption of cohabitation.
There is no corresponding provision under the and a person obtaining a decree for judicial separation will have to remain content with that decree and cannot seek to follow it up with a decree of divorce, after the lapse of any period of time.
[711 B C] (3) In the instant case, the marriage appears to have broken down irretrievably.
If the findings of the High Court stand, there is no way out for the couple.
They will continue to be tied to each other since neither mutual consent nor irretrievably break down of marriage is a ground for divorce, under the .
There is no point or purpose to be served by the continuance of a marriage which has so completely and signally broken down.
The parties are bound together by a marital tie which is better untied.
[717 B C] (4) Time has now come for the intervention of the legislature to provide for a uniform code of marriage and divorce as envisaged by Article 44 and to provide by law for a way out of the unhappy situations in which couples find themselves in.
It is necessary to introduce irretrievably break down of marriage, and mutual consent as grounds of divorce in all cases.
[717 C D]
|
ON: Criminal Appeal No. 169 of 1957.
771 Appeal by special leave from the judgment and order dated the April 9, 1956, of the Patna High Court in Cr. A. No. 445 of 1955.
WITH Criminal Appeals Nos. 124 to 126 of 1958.
Appeals from the judgment and order dated May 16, 1958, of the Allahabad High Court in Criminal Appeals Nos. 76 and 108 of 1955 and Cr. M. Writ No. 2371 of 1955.
Janardan Sharma for appellant in Criminal Appeal No. 169 of 1957: The appellant has been convicted under sections 124A and 505 Indian Penal Code.
Both these sections are ultra vires as they contravene the provisions of article 19(1)(a) of the Constitution.
A speech may disturb public order or it may not, but both are made punishable under Section 124A.
The section hits speeches of both varieties permissible speeches and impermissible speeches.
The explanation to section 124A do not affect the interpretation of the main section.
In a democratic set up a citizen is entitled to criticise the Government with a view to change it.
Two questions arises in the cases, namely (i) does section 124A enact a law which is in the interest of public order and (ii) does this section impose reasonable restrictions in the interest of public order.
The decision in I. L. R. (1958) 2 All.
84 which has declared s.124A to be ultra vires takes the correct law.
R. C. Prasad, for respondent in Criminal Appeal No. 169 of 1957: Referred to the decision in Ramji Lal Modi vs State of U. P. [1957] S.C.R.860.
Stated that he would adopt the submissions to be made by Shri C. B. Agarwala.
C. B. Agarwala for the appellant in Criminal Appeals Nos.
124 to 126 of 1958: The correct meaning of the provisions of section 124A in the context 772 of the present set up and the Constitution is that given by the Federal Court in Niharendu Dutt 's case, and not the meaning given to them by the Privy Council in Bhalerao 's case 74 I. A. 89.
Intepretation by Courts of words of statutes to a particular set of facts has been changing with the change in the social and political structure of society and the opinion of its reasonable members.
Section 124A is in a chapter which deals with offencss against the State.
Therefore, it is not a case of libel against any offioer but of an offence against the State.
Words in the English law relating to sedition are the same as in section 124A vide Stephen 's Commentary on the law of England, Vol. 4, page 141, Halsbury 's Law of England 3rd Edition, Vol. 10, page 169 Jowitt 's Dictionary of English law, page 1605, Stephen 's History of Criminal Law, Vol. 2, page 298 and 301 Chapter 24.
Under English Law a tendency to create tumult or disorder is an essential element of sedition.
Russel on Crimes, Vol. 1, p. 229, R. vs Collins, ; R. vs Sullivan, 11 Cox.
Section 124A has been taken from the English Law (see Section 124A must, therefore, be interpreted in the same manner as sedition is interpreted in England and it must be held that a tendency to disturb public order is an essential element of the offence under section 124A. Articles 133 and 133A of the Canadian Criminal Code which deal with sedition have been given the same interpretation, 1951, canadian section C. R. 265.
The view taken in Tilak 's case , in Bhalerao 's case 74 I.A. 89 and in Wallice Johnsons case[1940] A. C. 231 that incitement to violence or a tendency to disturb public order was not a necessary ingredient of section 124A, is not the correct view.
takes the correct view and lays down that the tendency to disturb public order is a necessary ingredient of the offence under section 124A. Devi Saran 's case 32 Pat.
1124 also takes the same view.
773 There are two interpretations of section 124A before the Court, one taken by the Federal Court and the other taken by the Privy Council.
This Court should accept the interpretation given by the section Court, as that interpretation would make the section Constitutional.
Even if the interpretation put by the Privy Council be accepted as correct one, section 124A will still be valid.
The section certainly contemplates cases where the speech is likely to disturb public order and as such the section in the interest of public order as contemplated in article 19(2) and the mere fact that some cases in which the public order is not likely to be disturbed are also included therein, cannot invalidate the section.
This court took a similar view in Ramjilal Modi 's case ; and in Virendra 's case [1958] section C. R. 308, the decision Lohia 's case [1960] 2 section C. R. 821 does not affect this case, as in that case it was found that that provisions curtailing freedom of speech were not in the interest of public order as the connection between the provisions and disturbance of public order as too remove.
Even if the section be held according to the Privy Council view to include which threaten public order and those which the section can be held valid with respect s where public order is threatened as the two of case are severable.
, [1951] section C. R. 682, [1953] 1059 and ; P. Verma for the Attorney General of Article 374(2) of the Constitution perversion of the Federal Court shall have the rect as the decision of the Supreme Court.
Decision of the Federal Court in be deemed to be a decision of this Court and should be held binding.
A tendency to disturb public order is inherent in section 124A itself.
Gopal Behari for respondent in Criminal Appeal No. 124 of 1958: The interpretataion of section 124A by 774 the Privy Council has been accepted by the High Court.
Even in English Law sedition does not necessarily include an intention to disturb public order; , Explanations (2) and (3) would be redundant if section 124A is interpreted to incorporate the English view of sedition.
The Allahabad High Court as well as other High Courts have given the same interpretation of section 124A as the Privy Council has.
See 1941 All. 156, 1930 Lah.
309, and 10 Luck.
The decision in Lohia 's case also ; governs the present case also section 124A punishes such speeches also as have no tendency to disturb public order and contravenes article 19(1)(a).
It is not saved by article 19(2) as placing of restriction on such speeches is not in the interest of public order.
It is not open to the Court to rewrite the section by removing from its purview such speeches as have no tendency to disturb public order and to confine it to such speeches as have a tendency to disturb public order.
The whole section must fail; it cannot be dissected.
C. B. Agarwala in reply: In English law is a necessary ingredient of seditious intention it must have a tendency to cause tumult or di R. vs Alred, , R. vs Burdott, 101, 803; R. vs O 'Brien, The Council has only said that actual incite violence was not a necessary ingredient of It has not gone further and has not laid tendency to disturb public order was not a ingredient of section 124A. Even though public is not an ingredient of the offeence under there is a tendency to disturb public speeches or writings which bring or atte bring into hatered or contempt or excite or at to excite dissatisfaction towards the Government established by law.
January 20.
The Judgment of the court was delivered by 775 SINHA, C. J.
In these appeals the main question in controversy is whether sections 124A and 505 of the Indian Penal Code have become void in view of the provisions of article 19(1)(a) of the Constitution.
The constitutionality of the provisions of section 124A, which was mainly canvassed before us, is common to all the appeals, the facts of which may shortly be stated separately.
In Criminal Appeal 169 of 1957, the appellant is one Kedar nath Singh, who was prosecuted before a Magistrate, 1st Class, at Begusarai, in the district of Monghyr, in Bihar.
He framed the following charges against the accused person, which are set out in extenso in order to bring out the gravamen of the charge against him. "First.
That you on 26th day of May, 1953 at village Barauni, P. section Taghra (Monghyr) by speaking the words, to wit, (a) To day the dogs of the C. I. D are loitering round Barauni.
Many official dogs are sitting even in this meeting.
The people of India drove out the Britishers from this country and elected these Congress goondas to the gaddi and seated them on it.
To day these Congress goondas are sitting on the gaddi due to mistake of the people.
When we drove out the Britishers, we shall strike and turn out these Congress goondas as well.
These official dogs will also be liquidated along with these Congress goondas.
These Congress goondas are banking upon the American dollars and imposing various kinds of taxes on the people to day.
The blood of our brothers mazdoors and Kishanas is being sucked.
The capitalists and the zamindars of this country help these Congress goondas.
These zamindars and capitalists will also have to be brought before the peoples court along with these Congress goondas.
776 (b) On the strength of the organisation and unity of Kisans and mazdoors the Forward Communists Party will expose the black deeds of the Congress goondas, who are just like the Britishers.
Only the colour of the body has changed.
They have to day established a rule of lathis and bullets in the country.
The Britishers had to go away from this land.
They had aeroplanes, guns, bombs and other weapons with them.
(c) The Forward Communist Party does not believe in the doctrine of vote itself.
The party had always been believing in revolution and does so even at present.
We believe in that revolution, which will come and in the flames of which the capitalists, zamindars and the Congress leaders of India, who have made it their profession to loot the country, will be reduced to ashes and on their ashes will be established a Government of the poor and the downtrodden people of India.
(d) It will be a mistake to expect anything from the Congress relers.
They (Congress rulers) have set up V. Bhave in the midst of the people by causing him wear a langoti in order to divert the people 's attention from their mistakes.
To day Vinova is playing a drama on the stage of Indian politics.
Confusion is being created among the people.
I want to tell Vinova and advice his agents, "you should understand it the people cannot be deceived by this illusion and fraud of Vinova".
I shall vinova not to become a puppet in the of the Congress men.
These persons, understand the Yojna of Vinova, realise that Vinova is an agent to the Congress Government.
(e) I tell you that this Congress Government will do no good to you.
777 (f) I want to tell the last word even to the Congress Tyrants, "you play with the people and ruin them by entangling them in the mesh of bribery, black marketing and corruption.
To day the children of the poor are hankering for food and you Congress men are assuming the attitude of Nawabs sitting on the chairs. " Brought or attempted to bring into hatred or contempt or excited or attempted to excite disaffection towards the Government established by law in the Indian Union and thereby committed an offence punishable under section 124A of the Indian Penal Code and within my cognizance.
Secondly.
That you on the 26th day of May, 1953 at village Barauni, P. section Tegra (Monghyr) made the statement, to wit, (a) To day the dogs of the C. I. D. are loitering round Barauni.
Many official dogs are sitting even in this meeting.
The people of India drove out the Britishers from this country, And elected these Congress Goondas to the gaddi and seated them on it.
To day these Congress Goondas are sitting on the gaddi due to the mistake of the people.
When we have driven out the Britishers, we shall strike and turn out these Congress Goondas.
These Congress Goondas are banking upon the American dollars and imposing various kinds of taxes on the people to day.
The blood of our brothers Mazdoors and Kisans is being sucked.
The capitalists and the zamindars of this country help these Congress Goondas.
These zamindars and capitalists will also have to be brought before the people 's Court along with these Congress Goondas.
778 (b) On the strength of organisation and unity of kisans and mazdoors the Forward Communist Party will expose the black deeds of the Congress Goondas, who are just like the Britishers.
Only the colour of the body has changed.
They have, to day, established a rule of lathis and bullets in the country.
The Britishers had to go away from this land.
They had aeroplanes, guns, bombs, and other reasons with them.
(c) The Forward Communist party does not believe in the doctrine of votes itself.
The party had always been believing in revolution and does so even at present.
We believe in that revolution, which will come and in the flames of which the capitalists, zamindars and the Congress leaders of India, who have made it their profession to loot the country, will be reduced to ashes, and on their ashes will be established a Government of the poor and the downtrodden people of India.
(d) It will be a mistake to expect anything from the Congress rulers.
They (Congress rulers) have set up V. Bhave in the midst of the people by causing him wear a langoti in order to divert the attention of the people from their mistakes.
To day Vinoba is playing a drama on the stage of Indian politics.
Confusion is being created among the people.
I want to tell Vinova and advise his agents, "You should understand it that the people cannot be deceived by this Yojna, illusion and fraud of Vinova.
I shall advice Vinova not to become a puppet in the hands of the Congress men.
Those persons who understand the Yojna of Vinova, realise that Vinova is an agent of Congress Government.
779 (e) I tell you that no good will be done to you by this Congress Government.
(f) I want to tell the last word even to Congress tyrants "you play with the people and ruin them by entangling them in the mesh of bribery, black marketing and corruption.
To day the children of the poor are hankering for food and you (Congress men) are assuming the attitude of Nawabs sitting on the chairs". .
With intent to cause or which was likely to cause fear or alarm to the public whereby any persons might be induce to commit an offence against the State of Bihar and against the public tranquility, and thereby committed an offence punishable under section 505(b) of the Indian Penal Code and within my cognizance.
After recording a substantial volume of oral evidence, the learned Trial Magistrate convicted the accused person both under sections 124A and 505(b) of the Indian Penal Code, and sentenced him to under go rigorous imprisonment for one year.
No separate sentence was passed in respect of the conviction under the latter section.
The convicted persons preferred an appeal to the High Court of Judicature at Patna, which was heard by the late Mr. Justice Naqui Imam, sitting singly.
By this judgment and order dated April 9, 1956, he upheld the convictions and the sentence and dismissed the appeal.
In the course of his judgment, the learned Judge observed that the Judge observed of the charge against the appellant was nothing but a vilification of the Government; that it was full of incitements to revolution and that the speech taken as a whole was certainly seditionus.
It is not a speech critising any of is measures.
He held that the offences both under sections 124A 505(b) of the Indian Penal Code had been made out.
780 The convicted person moved this Court and obtained special leave to appeal.
It will be noticed that the constitutionality of the provisions of the sections under which the appellant was convicted had not been convassed before the High Court.
But in the petition for special leave, to this Court, the ground was taken that sections 124A and 505 of the Indian Penal Code "are inconsistent with article 19(1) (a) of the Constitution".
The appeal was heard in this Court, in the first instance, by a Division Bench on May 5, 1959.
The Bench, finding that the learned counsel vco the appellant had raised the constitutional issue as to the validity of sections 124A and 505 of the Indian Penal Code, directed that the appeal be placed for hearing by a Constitution Bench.
The case was then placed before a Constitution Bench, on November 4, 1960, when that Bench directed notice to issue to the Attorney General of India under r. 1, O.41 of the Supreme Court Rules.
The matter was once again placed before a constitution Bench on February 9, 1961, when it was adjourned for two months in order to enable the State Governments concerned with this appeal, as also with the connected Criminal Appeals Nos. 124 126 of 1958 (in which the Government of Uttar Pradesh is the appellant) to make up their minds in respect of the proseocuions, as also in view of the report that the Law Commission was considering the question of amending the law of sedition in view of the new set up.
As the States concerned have instructed their counsel to press the appeals, the matter has finally come before us.
In Criminal Appeals 124 126 of 1958 the State of Uttar Pradesh is the appellant, though the respondents are different.
In Criminal appeal 124 of 1958, the accused person is one Mohd, Ishaq Ihahi.
He was prosecuted for having delivered a speech at Aligarh as Chairman of the Reception Committee of the All India Muslim Convention on October 30, 781 1953.
His speech on that occasion, was thought to be seditious.
After the necessary sanction, the Magistrate held an enquiry, and finding a prima facie case made out against the accused, committed him to the Court of Session.
The learned Sessions Judge, by his Judgment dated January 8, 1955, acquitted him of the charge under section 153A, but convicted him of the other charge under section 124A, of the Indian Penal Code, and sentenced him to rigorous imprisonment for one year.
The convicted person preferred an appeal to the High Court.
In the High Court the constitutionality of section 124A of the Indian Penal Code was challenged.
In Criminal Appeal No. 125 of 1958, the facts are that on May 29, 1954, a meeting of the Bolshovik Party was organised in village Hanumanganj, in the District of Basti, in Uttar Pradesh.
On that occasion, the respondent Rama Nand was found to have delivered an objectionable speech in so far as he advocated the use of violence for overthrowing the Government established by law.
After the sanction of the Government to the prosecution had been obtained, the learned Magistrate held an enquiry and ultimately committed him to take his trial before the Court of Sessions.
In due course, the learned Sessions Judge convicted the accused person under section 124A of the Indian Penal Code and sentenced him to rigorous imprisonment for three years.
He held that the accused person had committed the offence by inciting the audience to an open violent rebellion against the Government established by law, by the use of arms.
Against the aforesaid order of conviction and sentence, the accused person preferred an appeal to the High Court of Allahabad.
In Criminal Appeal 126 of 1958, the respondent is one Parasnath Tripathi.
He is alleged to have delivered a speech in village Mansapur, P.S. Akbarpur, in the district of Faizabad, on September 26, 1955, in which he is said to have 782 exhorted the audience to organise a volunteer army and resist the Government and its servants by violent means.
He is also said to have excited the audience with intent to create feelings of hatred and enmity against the Government.
When he was placed on trial for an offence under section 124A of the Indian Penal Code, the accused person applied for a writ of Habeas Corpus in the High Court of Judicature at.
Allahabad on the ground that his detention was illegal inasmuch as the provisions section 124A of the Indian Penal Code were void as being in contravention of his fundamental rights of free speech and expression under article 19(1)(a) of the Constitution.
This matter, along with the appeals which have given rise to appeals Nos. 124 and 125, as aforesaid, were ultimately placed before a Full Bench, consisting of Desai, Gurtu and Beg, JJ.
The learned judges, in separate but concurring judgments, took the view that section 124A of the Indian Penal Code was ultra vires article 19(1)(a) of the Constitution.
In that view of the matter, they acquitted the accussed persons, convicted at aforesaid in the two appeals Nos. 124 and 125, and granted the writ petition of the accused in criminal Appeal No. 126.
In all these cases the High Court granted the necessary certificate that the case involved important questions of law relating to the interpretation of the Constitution.
That is how these appeals are before by on a certificate of fitness granted by the High Court.
Shri C. B. Agarwala, who appeared on behalf of the State of Uttar Pradesh in support of the appeals against the orders of acquittal passed by the High Court, contended that the judgment of the High Court (bow reported in Ram Nandan vs State (1) in which it was laid down by the Full Bench that section 124A of the Indian Penal Code was ultra article 19(1)(a) of the Constitution and, 783 therefore, void for the reason that it was not in the interest of public order and that the restrictions imposed there by were not reasonable restrictions on the freedom of speech and expression, was erroneous.
He further contended that the section impugned came within the saving cl.
(2) of article 19, and that the reasons given by the High Court to the contrary were erroneous.
He relied upon the observations of the Federal Court in Niharendu Dutt Majumdar vs The King Emperor (1).
He also relied on Stephen 's Commentaries on the Laws of England, Volume IV, 21st Edition, page 141, and the Statement of the Law in Halsbury 's Laws of England, 3rd Edition, volume 10, page 569, and the cases referred to in those volumes.
Mr. Gopal Behari, appearing on behalf of the respondents in the Allahabad cases has entirely relied upon the full Bench decision of the Allahabad High Court in his favour.
Shri Sharma appearing on behalf of the appellant in the appeal from the Patna High Court has similarly relied upon the decision aforesaid of the Allahabad High Court.
Before dealing with the contentions raised on behalf of the parties, it is convenient to set out the history of the law, the amendments it has undergone and the interpretations placed upon the provisions of section 124A by the Courts in India, and by their Lordships of the judicial Committee of the Privy Council.
The section corresponding to section 124A was originally section 113 of Macaulay 's Draft Penal Code of 1837 39, but the section was omitted from the Indian Penal Code as it was enacted in 1860.
The reason for the omission from the Code is enacted is not clear, but perhaps the legislative body did not feel sure above its authority to enact such a provision in the Code.
Be that as it may, section 124A was not placed on the Statute Book until 1870, by Act XXVII of 1870.
There 784 was a considerable amount of discussion at the time the amendment was introduced by Sir James, Stephen, but what he said while introducing the bill in the legislature may not be relevant for our present purposes.
The section as then enacted ran as follows: "124A. Exciting Disaffection Whoever by words, either spoken or intended to be read, or by signs, or by visible representation, or otherwise, excites, or attempts to excite, feelings of disaffection to the Government established by law in British India, shall be punished with transportation for life or for any term, to which, fine may be added, or with imprisonment for a term which may extend to three years, to which fine may be added, or with fine.
Explanation Such a disapprobation of the measures of the Government as is compatible with a disposition to render obedience to the lawful authority of the Government and to support the lawful authority of the Government against unlawful attempts to subvert or resist that authority, is not disaffection.
Therefore, the making of comments on the measures of the Government, with the intention of exciting only this species of disapprobation, is not an offence within this clause.
" The first case in Indian that arose under the section is what is known as the Bangobasi case (Queen Empress vs Jagendra Chunder Bose (1)) which was tried by a Jury before Sir Comer Petheram, C J. while charging the jury, the learned Chief Justice explained the law to the jury in these terms: 785 "Disaffection means a feeling contrary to affection, in other words, dislike or hatred.
Disapprobation means simply disapproval.
It is quite possible to disapprove of a men 's sentiments or action and yet to like him.
The meaning of the two words is so distinct that I feel it hardly necessary to tell you that the contention of Mr. Jackson cannot be sustained.
If a person uses either spoken or written words calculated to create in the minds of the persons to whom they are addressed a disposition not to obey the lawful authority of the Government, or to subvert or resist that authority, if and when occasion should arise, and if he does so with the intention of creating such a disposition in his bearers or readers, he will be guilty of the offence of attempting to excite disaffection within the meaning of the section though no disturbance is brought about by his words or any feeling of disaffection, in fact, produced by them.
It is sufficient for the purposes of the section that the words used are calculated to excite feelings of ill will against the Government and to hold it up to the hatred and contempt of the people, and that they were used with the intention to create such feeling.
" The next case is the celebrated case of Queen Empress vs Balqanqaddhar Tilak (1) which came before the Bobay High Court.
The case was tried by a jury before Strachey, J. The learned judge, in the course of his charge to the jury, explain the law to them in these terms: "The offence as defined by the first clause is exciting or attempting to excite feelings of disaffection to the Government.
What are "feelings of disaffection" ? I agree with Sir Comer Petheram in the Bangobasi case that disaffection means simply the 786 absence of affection.
It means hatred, enmity dislike, hostility, contempt and every from of ill will to the Government.
"Disloyalty" is perhaps the best general term, comprehending every possible form of bad feeling to the Government.
That is what the law means by the disaffection which a man must not excite or attempt to excite; he must not make or try to make others feel enmity of any kind towards the Government.
You will observe that the amount or intensity of the disaffection is absolutely immaterial except perhaps in dealing with the question of punishment: if a man excites or attempts to excite feelings of disaffection, great or small, he is guilty under the section.
In the next place, it is absolutely immaterial whether any feelings of disaffection have been excited or not by the publication in question.
It is true that there is before you a charge against each prisoner that he has actually excited feelings of disaffection to the Government.
If you are satisfied that he has done so, you will, of course, find him guilty.
But if you should hold that charge is not made out, and that no one is proved to have been excited to entertain feelings of disaffection to the Government by reading these articles, still that alone would not justify you in acquitting the prisoners.
For each of them is charged not only with exciting feelings of disaffection, but also with attempting to excite such feelings.
You will observe that section places on absolutely the same footing the successful exciting of feelings of disaffection and the unsuccessful attempt to excite them, so that, if you find that either of the prisoners has tried to excite such feeling in others, you must convict him even if there is nothing to show that he succeeded.
Again, it is 787 important that you should fully realise another point.
The offence consists in exciting or attempting to excite in others certain bad feeling towards the Government.
It is not the exciting or attempting to excite mutiny or rebellion, or any sort of actual disturbance, great or small.
Whether any disturbance or outbreak was caused by there articles, is absolutely immaterial.
If the accused intended by the articles to excite rebellion or disturbance, his act would doubtless fall within section 124A, and would probably fall within other sections of the Penal Code.
But even if he neither excited nor intended to excite any rebellion or outbreak or forcible resistance to the authority of the Government, still if he tried to excite feelings of enmity to the Government, that is sufficient to make him guilty under the section.
I am aware that some distinguished persons have thought that there can be no offence against the section unless the accused either counsels or suggests rebellion or forcible resistance to the Government.
In my opinion, that view is absolutely opposed to the express words of the section itself, which as plainly as possible makes the exciting or attempting to excite certain feelings, and not the inducing or attempting to induce to any course of action such as rebellion or forcible resistance, the test of guilt.
I can only account for such a view by attributing it to a complete misreading of the explanation attached to the section, and to a misapplication of the explanation beyond its true scope.
" The long quotation has become necessary in view of what followed later, namely, that this statement of the law by the learned judge came in for a great deal of comment and judicial notice.
We have omitted the charge to the jury relating 788 to the explanation to section 124A because that explanation has now yielded place to three separate explanations in view of judicial opinions expressed later.
The jury, by a majority of six to three, found Shri Balgangadhar Tilak guilty.
Subsequently, he, on conviction, applied under cl. 41 of the Letters Patent for leave to appeal to the Privy Council.
The application was heard by a Full Bench consisting of Farran, C. J., Candy and Strachey, JJ.
It was contended before the High Court at the leave stage, inter alia, that the sanction given by the Government was not sufficient in law in that it had not set out the particulars of the offending articles, and, secondly, that the judge misdirected the jury as to the meaning of the word "disaffection" insofar as he said that it might be equivalent to "absence of affection".
With regard to the second point, which is only relevant point before us; the Full Bench expressed itself to the following effect: "The other ground upon which Mr. Russell has asked as to certify that this is a fit case to be sent to Her Majesty in Council, is that there has been a misdirection, and he based his argument on one major and two minor grounds.
The major ground was that the section cannot be said to have been contravened unless there is a direct incitement to stir up disorder or rebellion.
That appears to us to be going much beyond the words of the section, and we need not say more upon that ground.
The first of the minor points is that Mr. Justice Strachey in summing up the case to the jury stated that disaffection meant the absence of affection".
But although if that phrase had stood alone it might have misled the jury, yet taken in connection with the context we think it is impossible that the jury could have been misled by it.
That expression was used in connection with the 789 law as led down by Sir Comer Petheram, in Calcutta in the Bangobashi case.
There the Chief Justice instead of using the words "absence of affection" used the words "contrary to affection".
If the words "contrary to affection" had been used instead of "absence of affection" in this case there can be no doubt that the summing up would have been absolutely correct in this particular.
But taken in connection with the context it is clear that by the words "absence of affection" the learned Judge did not mean the negation of affection but some active sentiment on the other side.
Therefore on that point we consider that we cannot certify that this is a fit case for appeal.
" In this connection it must be remembered that it is not alleged that there has been a miscarriage of Justice.
" After making those observations, the Full Bench refused the application for leave.
the case was then taken to Her Majesty in council, by way of application for special leave to appeal to the Judicial Committee.
Before their Lordships of the Privy Council, Asquith, Q. C., assisted by counsel of great experience and eminence like Mayne, W. C. Bonnerjee and others, contended that there was a misdirection as to the meaning of section 124A of the Penal Code in that the offence had been defined in terms to wide to the effect that "disaffection" meant simply "absence of affection" and that it comprehended every possible form of bad feeling to the Government.
In this connection reference was made to the observations of Petheram, C.J. in Queen Empress vs Jogender Bose(1).
It was also contended that the appellant 's comments 790 had not exceeded what in England would be considered within the functions of a Public journalist, and that the misdirection complained of was of the greatest importance not merely to the affected person but to the whole of the Indian Press and also to all her Majesty 's subjects; and that it injuriously affected the liberty of the press and the right to free speech in public meetings.
But in spite of the strong appeal made on behalf of the petitioner for special leave, the Lord Chancellor, delivering the opinion of the Judicial Committee, while dismissing the application, observed that taking a view of the whole of the summing up they did not see any reason to dissent from it, and that keeping in view the rules which Their Lordships observed in the matter of granting leave to appeal in criminal cases, they did not think that the case raised questions which deserve further consideration by the Privy Council.
(vide Gangadhar Tilak vs Queen Empress) (1).
Before noticing the further changes in the Statute, it is necessary to refer to the Full Bench decision of the Allahabad High Court in Queen Empress vs Amba Prasad (2).
In that case, Edge, C.J., who delivered the judgment of the Court, made copious quotations from the judgments of the Calcutta and the Bombay High Courts in the cases above referred to.
While generally adopting the reasons for the decisions in the aforesaid two cases, the learned Chief Justice observed that a man may be guilty of the offence defined in section 124A of attempting to excite feelings of disaffection against the Government established by law in British India, although in a particular article or speech he may insist upon the desirability or expediency of obeying and supporting the Government.
He also made reference to the decision of the Bombay High Court in the Satara (3) case.
In that case a Full Bench, consisting of Farran, C.J., and Parsons and Ranade, JJ, 791 had laid it down that the word "disaffection" in the section is used in a special sense as meaning political alienation or discontent or disloyalty to the Government or existing authority.
They also held that the meaning of word "disaffection" in the main portion of the section was not varied by the explanation.
Persons, J., held that the word "disaffection" could not be construed as meaning 'absence of or contrary of affection or love '.
Ranade J., interpreted the word "disaffection" not as meaning mere absence or negation of love or good will but a positive feeling of aversion, which is akin to ill will, a definite insubordination of authority or seeking to alienate the people and weaken the bond of allegiance, a feeling which tends to bring the Government into hatred and discontent, by imputing base and corrupt motives to it.
The learned Chief Justice of the Allahabad High Court observed that if those remarks were meant to be in any sense different from the construction placed upon the section by Strachey, J., which was approved, as aforesaid, by the Judicial Committee of the Privy Council, the later observations of the Bombay High Court could not be treated as authoritative.
As the accused in the Allahabad case had pleaded guilty and the appeal was more or less on the question of sentence, it was not necessary for their Lordships to examine in detail the implications of the section, though they expressed their general agreement with the view of the Calcutta and the Bombay High Courts in the first two cases, referred to above.
The section was amended by the Indian Penal Code Amendment Act (IV of 1898).
As a result of the amendment, the single explanation to the section was replaced by three separate explanations as they stand now.
The section, as it now stands in its present form, is the result of the several A.O.S. of 1937, 1948 and 1950, as a result of the constitutional changes, by the Government of India Act, 1935, by the Independence Act of 1947 and by the Indian 792 Constitution of 1950.
Section 124A, as it has emerged after successive amendments by way of adaptations as aforesaid, reads as follows: "Whoever by words, either spoken or written, or by signs or by visible representation, or otherwise, brings or attempts to bring into hatred to contempt, or excites or attempts to excite disaffection towards the Government established by law in India shall be punished with transportation for life or any shorter term to which fine may be added or with imprisonment which may extend to three years, to which fine may be added, or with fine.
Explanation 1.
The expression "disaffection" includes disloyalty and all feelings of enmity.
Explanation 2.
Comments expressing disapprobation of the measures of the Government with a view to obtain their alteration by lawful means, without exiting or attempting to excite hatred, contempt or disaffection do not constitute an offence under this section.
Explanation 3.
Comments expressing disapprobation of the administrative of other action of the Government without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.
" This offence, which is generally known as the offence of Sedition, occurs in chapter IV of the Indian Penal Code, headed 'Of offences against the State '.
This species of offence against the State was not an invention of the British.
Government in India, but has been known in England for centuries.
Every State, whatever its form of Government, has to be armed with the power to punish those who, by 793 their conduct, jeopardise the safety and stability of the State, or disseminate such feelings of disloyalty as have the tendency to lead to the disruption of the State or to public disorder.
In England, the crime has thus been described by Stephen in his Commentaries on the Laws of England, 21st Edition, volume IV, at pages 141 142, in these words. "Section IX.
Sedition and Inciting to Disaffection We are now concerned with conduct which, on the one hand, fall short of treason, and on the other does not involve the use of force or violence.
The law has here to reconcile the right of private criticism with the necessity of securing the safety and stability of the State.
Sedition may be defined as conduct which has, either as its object or as its natural consequence, the unlawful display of dissatisfaction with the Government or with the existing order of society.
The seditious conduct may be by words, by deed, or by writing.
Five specific heads of sedition may be enumerated according to the object of the accused.
This may be either 1.
to excite disaffection against the King, Government, or Constitution, or against Parliament or the administration of justice; 2. to promote, by unlawful means, any alteration in Church or State; 3. to incite a disturbance of the peace; 4. to raise discontent among the King 's subjects; 5.
to excite class hatred.
It must be observed that criticism on political matters is not of itself seditious.
The test is the manner in which it is made.
Candid and honest discussion is permitted.
The law 794 only interferes when the discussion passes the bounds of fair criticism.
More especially will this be the case when the natural consequence of the prisoner 's conduct is to promote public disorder.
" This statement of the law is derived mainly from the address to the Jury by Fitzerald, J., in the case of Reg vs Alexander Martin Sullivan (1).
In the course of his address to the Jury the learned Judge observed as follows: "Sedition is a crime against society, nearly allied to that of treason, and it frequently precedes treason by short interval.
Sedition in itself is a comprehensive term, and it embraces all those practices, whether by word, deed or writing, which are calculated to disturb the tranquility of the State, and lead ignorant persons to endeavour to subvert the Government and the laws of the empire.
The objects of sedition generally are to induce discontent and insurrection and stir up opposition to the Government, and bring the administration of justice into contempt; and the very tendency of sedition is to incite the people to insurrection and rebellion.
Sedition has been described, as disloyalty in action and the law considers as sedition all those practices which have for their object to excite discontent or dissatisfaction, to create public disturbance, or to lead to civil war; to bring into hatred or contempt the Sovereign or the Government, the laws or constitution of the realm, and generally all endeavours to promote public disorder.
" That the law has not changed during the course of the centuries is also apparent from the following statement of the law by Coleridge, J., in the course of his summing up to the Jury in the case of Rex.
vs Aldred (2): 795 "Nothing is clearer than the law on this head namely, that whoever by language, either written or spoken incites or encourages other to use physical force or violence in some public matter connected with the State, is guilty of publishing a seditious libel.
The word "sedition" in its ordinary natural signification denotes a tumult, an insurrection, a popular commotion, or an uproar; it implies violence or lawlessness in some form. " In that case, the learned Judge was charging the Jury in respect of the indictment which contained the charge of seditious libel by a publication by the defendant.
While dealing with a case arising under Rule 34(6) (e) of the Defence of India Rules under the Defence of India Act (XXXV of 1939) Sir Maurice Gwyer, C.J., speaking for the Federal Court, made the following observations in the case of Niharendu Dutt Majumdar vs The King Emperor (1); and has pointed out that the language of section 124A of the Indian Penal Code, which was in pari materia with that of the Rule in question, had been adopted from the English Law, and referred with approval to the observations of Fitzerald, J., in the case quoted above; and made the following observations which are quite apposite: ". generally speaking, we think that the passage accurately states the law as it is to be gathered from an examination of a great number of judicial pronouncements.
The first and most fundamental duty of every Government is the preservation of order, since order is the condition precedent to all civilisation and the advance of human happiness.
This duty has no doubt been sometimes performed in such 796 a way as to make the remedy worse than the disease; but it does not cease to be a matter of obligation because some on whom the duty rests have performed it ill.
It is to this aspect of the functions of government that in our opinion the offence of sedition stands related.
It is the answer of the State to those who, for the purpose of attacking or subverting it, seek (to borrow from the passage cited above) to disturb its tranquillity, to create public disturbance and to promote disorder, or who incite others to do so.
Words, deeds or writings constitute sedition, if they have this intention or this tendency; and it is easy to see why they may also constitute sedition, if they seek, as the phrase is, to bring Government into contempt.
This is not made an offence in order to minister to the wounded vanity of Government, but because where Government and the law cease to be obeyed because no respect is felt any longer for them, only anarchy can follow.
Public disorder, or the reasonable anticipation or likelihood of public disorder, is thus the gist of the offence.
The acts or words complained of must either incite to disorder or must be such as to satisfy reasonable men that is their intention or tendency.
" This statement of the law was not approved by their Lordships of the Judicial Committee of the Privy Council in the case of King Emperor vs Sadashiv Narayan Bhalerao (1).
The Privy Council, after quoting the observations of the learned chief Justice in Niharendu 's case (2), while disapproving of the decision of the Federal Court, observed that there was no statutory definition of "Sedition" in England, and the meaning and content of the crime had to be gathered from any decisions.
797 But those were not relevant considerations when one had to construe the statutory definition of 'Sedition ' as in the Code.
The Privy Council held that the language of section 124A, or of the Rule aforesaid, under the Government of India Act, did not justify the statement of the law as made by the learned Chief Justice in Niharendu 's case(1) they also held that the expression "excite disaffection" did not include "excite disorder", and that, therefore, the decision of the Federal Court in Niharendu 's case(1) proceeded on a wrong construction of section 124A of the Penal Code, and of sub para (e), sub rule (6) of Rule 34 of the Defence of India Rules; Their Lordships approved of the dicta in the case of Bal Gangadhar Tilak (2), and in the case of Annie Basant vs Advocate General of Madras (3), which was a case under section 4 of the Indian Press Act.
(I of 1910), which was closely similar in language to section 124A of the Penal Code.
The Privy Council also referred to their previous decision in Wallace Johnson vs The Kinq(4) which was a case under sub section 8 of section 326 of the Criminal Code of the Gold Coast, which defined "seditious intention" in terms similar to the words of s.124A of the Penal Code.
In that case, their Lordships had laid down that incitement to violence was not necessary ingredient of the Crime of sedition as defined in that law.
Thus, there is a direct conflict between the decision of the Federal Court in Niharendu 's case (1) and of the Privy Counsil in a number of cases from Indian and the Gold Coast, referred to above.
It is also clear that either view can be taken and can be supported on good reasons.
The Federal Court decision takes into consideration, as indicated above, the pre exiting Common Law of England in respect of sedition.
It does not appear from the report of 798 the Federal Court decision that the rulings aforesaid of the Privy Council had been brought to the notice of their Lordships of the Federal Court.
So far as this Court is concerned, the question directly arising for determination in this batch of cases has not formed the subject matter of decision previously.
But certain observations made by this Court in some cases, to be presently noticed, with reference to the interrelation between freedom of speech and seditious writing or speaking have been made in the very first year of the coming into force of the Constitution.
Two cases involving consideration of the fundamental right of freedom of speech and expression and certain laws enacted by some of the States imposing restrictions on that right came up for consideration before this Court.
Those cases, reported in Romesh Thappar vs The State of Madras(1) and Brij Bhushan vs The State of Delhi(2) were heard by Kania C.J., Pazl Ali, Patanjali Shastri, Mehr Chand Mahajan, Mukherjea and Das, JJ, and judgments were delivered on the same day (May 26, 1950).
In Romesh Thappar 's case (1), the majority of the Court declared section 9(1 A) of the Madras Maintenance of Public Order Act (Mad. XXXIII of 1949), which had authorised imposition of restrictions on the fundamental right of freedom of speech, to be in excess of cl.
(2) of article 19 of the Constitution authorising such restrictions, and, therefore, void and unconstitutional.
In Brij Bhushan 's case (2), the same majority struck down section 7(1)(c) of the East Punjab Public Safety Act, 1949, as extended to the Province of Delhi, authorising the imposition of restrictions on the freedom of speech and expression for preventing or combating any activity prejudicial to the public safety or 799 the maintenance of public order.
The Court held those provisions to be in excess of the powers conferred on the Legislature by cl.
(2) of article 19 of the Constitution.
Mr. Justice Patanjali Sastri, speaking for the majority of the Court in Romesh Thappar 's case (1) made the following observations with reference to the decisions of the Federal Court and the Judicial Committee of the Privy Council as to what the law of Sedition in India was: "It is also worthy of note that the word "sedition" which occurred in article 13(2) of the Draft Constitution prepared by the Drafting Committee was deleted before the article was finally passed as article 19(2).
In this connection it may be recalled that the Federal Court had, in defining sedition in Niharendu Dutt Majumdar vs The King Emperor (2) held that "the acts or words complained of must either incite to disorder or must be such as to satisfy reasonable men that that is their intention or tendency", but the Privy Council overruled that decision and emphatically reaffirmed the view expressed in Tilak 's case to the effect that "the offence consisted in exciting or attempting to excite in others certain bad feelings towards the Government and not in exciting or attempting to excite mutiny or rebellion, or any sort of actual disturbance, great or small" King Emperor vs Sadashiv Narayan Bhalerao.
Deletion of the word "sedition" from the draft article 13(2), therefore, shows that criticism of Government exciting disaffection or bad feelings toward it is not to be regarded as a justifying ground for restricting the freedom of expression and of the press, unless it is such as to undermine the security of or tend to overthrow the State.
It is also significant that the corresponding 800 Irish formula of "undermining the public order or the authority of the State" (article 40(6)(i) of the Constitution of Fire, 1937) did not apparently find favour with the framers of the Indian Constitution.
Thus, very narrow and stringent limits have been set to permissible legislative abridgement of the right of free speech and expression, and this was doubtless due to the realisation that freedom of speech and of the press lay at the foundation of all domocratic organisations, for without free political discussion no public education, so essential for the proper functioning of the processes of popular government, is possible, freedom of such amplitude might involve risks of abuse.
But the framers of the Constitution may well have reflected, with Madison who was "the leading spirit in the preparation of the First Amendment of the Federal Constitution" that "it is better to leave a few of its naxious branches to their luxuriant growth, than, by prunning, them away to injure the vigour of those yielding the proper fruits" : (quoted in Near vs Minnesotta).
Those observations were made to bring out the difference between the "security of the State" and "public order".
As the latter expression did not find a place in article 19(2) of the Constitution, as it stood originally, the section was struck down as unconstitutional.
Fazl Ali, J., dissented from the views thus expressed by the majority and reiterated his observations in Brij Bhushan 's case (1) In the course of his dissenting judgment, he observed as follows: "It appears to me that in the ultimate analysis the real question to be decided in this case is whether "disorders involving menace to the 801 peace and tranquillity of the Province" and affecting "Public safety" will be a matter which undermines the security of the State or not.
I have borrowed the words quoted within inverted commas from the preamble of the Act which shows its scope and necessity and the question raised before us attacking the validity of the Act must be formulated in the manner I have suggested.
If the answer to the question is in the affirmative, as I think it must be, then the impugned law which prohibits entry into the State of Madras of "any document or class of documents" for securing public safety and maintenance of public order should satisfy the requirements laid down in article 19(2) of the Constitution.
From the trend of the arguments addressed to us, it would appear that if a document is seditious, its entry could be validly prohibited, because sedition is a matter which undermines the Security of the State; but if on the other hand, the document is calculated to disturb public tranquillity and affect public safety, its entry cannot be prohibited, because public disorder and disturbance of public tranquillity are not matters which undermine the security of the State.
Speaking for myself, I cannot understand this argument.
In Brij Bhushan vs The State.
I have quoted good authority to show that sedition owes its gravity to its tendency to create disorders and authority on Criminal Law like Sir James Stephen has classed sedition as an offence against public tranquillity.
" In Brij Bhushan case (1), Fazl Ali, J., who was again the dissenting judge, gave his reasons to greater detail.
He referred to the judgment of the Federal Court in Niharendu Dutt Majumdar 's case (2) 802 and to the judgment of the Privy Council to the contrary in King Emperor vs Sada Shiv Narayan (1).
After having pointed out the divergency of opinion between the Federal Court of India and the Judicial Committee of the Privy Council, the learned Judge made the following observations in order to explaim why the term "sedition" was not specifically mentioned in article 19(2) of the Constitution: "The framers of the Constitution must have therefore found themselves face to face with the dilemma as to whether the word "sedition" should be used in article 19(2) and if it was to be used in what sense it was to be used.
On the one hand, they must have had before their mind the very widely accepted view supported by numerous authorities that sedition was essentially an offence against public tranquillity and was connected in some way or other with public disorder; and, on the other hand, there was the pronouncement of the Judicial Committee that sedition as defined in the Indian Penal Code did not necessarily imply any intention or tendency to incite disorder.
In these circumstances, it is not surprising that they decided not to use the word "sedition" in clause (2) but used the more general words which cover sedition and everything else which makes sedition such a serious offence.
That sedition does undermine the security of the State is a matter which cannot admit of much doubt.
That it undermines the security of the state usually through the medium of public disorder is also a matter on which eminent Judges and jurists are agreed.
Therefore, it is difficult to hold that public disorder or disturbance of public tranquillity are not matters which undermine the security of the State.
" 803 As a result of their differences in the interpretation of Art.19(2) of the Constitution, the Parliament amended cl.(2) of article 19, in the form in which it stands at present, by the Constitution (First Amendment) Act, 1951, by section 3 of the Act, which substituted the original cl.
(2) by the new cl.
This amendment was made with retrospective effect, thus indicating that it accepted the statement of the law as contained in the dissenting judgment of Fazl Ali, J., in so far as he had pointed out that the concept of "security of the state" was very much allied to the concept of "public order" and that restrictions on freedom of speech and expression could validly be imposed in the interest of public order.
Again the question of the limits of legislative powers with reference to the provisions of articles 19 (1)(a) and 19(2) of the Constitution came up for decision by a Constitution Bench of this Court in Ramji Lal Modi vs The State of U.P. (1).
In that case, the validity of section 295A of the Indian Penal Code was challenged on the ground that it imposed restrictions on the fundamental right of freedom of speech and expression beyond the limits prescribed by cl.(2) of article 19 of the Constitution.
In this connection, the Court observed as follows: "the question for our consideration is whether the impugned section can be properly said to be a law imposing reasonable restrictions on the exercise of the fundamental rights to freedom of speech and expression in the interests of public order.
It will be noticed that language employed in the amended clause is "in the interests of" and not "for the maintenance of".
As one of us pointed out in Debi Saron vs The State of Bihar, the expression "in the interests of" makes the ambit of the protection very wide.
A law may not have 804 been designed to directly maintain public order and yet it may have been enacted in the interests of public order.
" Though the observations quoted above do not directly bear upon the present controversy, they throw a good deal of light upon the ambit of the power of the legislature to impose reasonable restrictions on the exercise of the fundamental right of freedom of speech and expression.
In this case, we are directly concerned with the question how for the offence, as defined in section 124A of the Indian Penal Code, is consistent with the fundamental right guaranteed by article 19 (1) (a) of the Constitution, which is in these terms: "19.
(1) All citizens shall have the right.
(a) to freedom of speech and expression. " This guaranteed right is subject to the right of the legislature to impose reasonable restrictions, the ambit of which is indicated by cl.
(2), which, in its amended form, reads as follows: "(2) Nothing in sub clause (a) of clause (1) shall affect the operation of any existing law or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub clause in the interests of the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence.
" It has not been questioned before us that the fundamental right guaranteed by article 19(1)(a) of the freedom of speech and expression is not an absolute right.
It is common ground that the right is subject to such reasonable restrictions as would come within the purview of cl.
(2), which comprises (a) security of the State, (b) friendly relations with foreign States, (c) public order, (d) decency or morality, etc.
With reference to the constitutionality 805 of section 124A or section 505 of the Indian Penal Code, as to how far they are consistent with the requirements of cl.
(2) of article 19 with particular reference to security of the State and public order, the section, it must be noted, penalises any spoken or written words or signs or visible representations, etc., which have the effect of bringing, or which attempt to bring into hatred or contempt or excites or attempts to excite disaffection towards the Government established by law" has to be distinguished from the person 's for the time being engaged in carrying on the administration.
"Government established by law" is the visible symbol of the State.
The very existence of the State will be in jeopardy if the Government established by law is subverted.
Hence the continued existence of the Government established by law is an essential condition of the stability of the State.
That is why 'sedition ', as the offence in section 124A has been characterised, comes under Chapter VI relating to offences against the State.
Hence any acts within the meaning of section 124A which have the effect of subverting the Government by bringing that Government into contempt or hatred, or creating disaffection against it, would be within the penal statute because the feeling of disloyalty to the Government established by law or enmity to it imports the idea of tendency to public disorder by the use of actual violence or incitement to violence.
In other words, any written or spoken words, etc., which have implicit in them the idea of subverting Government by violent means, which are compendiously included in the term 'revolution ', have been made penal by the section in question.
But the section has taken care to indicate clearly that strong words used to express disapprobation of the measures of Government with a view to their improvement or alteration by lawful means would not come within the section.
Similarly, comments, 806 however strongly worded, expressing disapprobation of actions of the Government, without exciting those feelings which generate the inclination to cause public disorder by acts of violence, would not be penal.
In other words, disloyalty to Government established by law is not the same thing as commenting in strong terms upon the measures or acts of Government, or its agencies, so as to ameliorate the condition of the people or to secure the cancellation or alteration of those acts or measures by lawful means, that is to say, without exciting those feelings of enmity and disloyalty which imply excitement to public disorder or the use of violence.
It has not been contended before us that if a speech or a writing excites people to violence or have the tendency to create public disorder, it would not come within the definition of 'sedition '.
What has been contended is that a person who makes a very strong speech or uses very vigorous words in a writing directed to a very strong criticism of measures of Government or acts of public officials, might also come within the ambit of the penal section.
But, in our opinion, such words written or spoken would be outside the scope of the section.
In this connection, it is pertinent to observe that the security of the State, which depends upon the maintenance of law and order is the very basic consideration upon which legislation, with a view to punishing offences against the State, is undertaken.
Such a legislation has, on the one hand, fully to protect and guarantee the freedom of speech and expression, which is the sine quo non of a democratic form of Government that our Constitution has established.
This Court, as the custodian and guarantor of the fundamental rights of the citizens, has the duty cast upon it of striking down any law which unduly restricts the freedom of speech and expression with which we are concerned in this case.
But the freedom has to be guarded again 807 becoming a licence for vilification and condemnation of the Government established by law, in words which incite violence or have the tendency to create public disorder.
A citizen has a right to say or write whatever he likes about the Government, or its measures, by way of criticism or comment, so long as he does not incite people to violence against the Government established by law or with the intention of creating public disorder.
The Court, has, therefore, the duty cast upon it of drawing a clear line of demarcation between the ambit of a citizen 's fundamental right guaranteed under article 19(1)(a) of the Constitution and the power of the legislature to impose reasonable restrictions on that guaranteed right in the interest of, inter alia, security of the State and public order.
We have, therefore, to determine how far the sections 124A and 505 of the Indian Penal Code could be said to be within the justifiable limits of legislation.
If it is held, in consonance with the views expressed by the Federal Court in the case of Niharendu Dutt majumdar vs The King Emperor(1) that the gist of the offence of 'sedition ' is incitement to violence or the tendency or the intention to create public disorder by words spoken or written, which have the tendency or the effect of bringing the Government established by law into hatred or contempt or creating disaffection in the sense of disloyalty to the State in other words bringing the law into line with the law of sedition in England, as was the intention of the legislators when they introduced section 124A into the Indian Penal Code in 1870 as aforesaid, the law will be within the permissible limits laid down in cl.
(2) of article 19 of the Constitution, if on the other hand we give a literal meaning to the words of the section, divorced from all the antecedent background in which the law of sedition has grown, as laid down in the several decisions of the Judicial Committee of the Privy Council, it will be true to 808 say that the section is not only within but also very much beyond the limits laid down in cl.
(2) aforesaid.
In view of the conflicting decisions of the Federal Court and of the Privy Council, referred to above, we have to determine whether and how far the provisions of sections 124A and 505 of the Indian Penal Code have to be struck down as unconstitutional.
If we accept the interpretation of the Federal Court as to the gist of criminality in an alleged crime of sedition, namely, incitement to disorder or tendency or likelihood of public disorder or reasonable apprehension thereof, the section may lie within the ambit of permissible legislative restrictions on the fundamental right of freedom of speech and expression.
There can be no doubt that apart from the provisions of (2) of article 19, sections 124A and 505 are clearly violative of article 19(1)(a) of the Constitution.
But then we have to see how far the saving clause, namely, cl.(2) of article 19 protects the sections aforesaid.
Now, as already pointed out, in terms of the amended cl.
(2), quoted above, the expression "in the interest of. public order" are words of great amplitude and are much more comprehensive than the expression "for the maintenance of", as observed by this Court in the case of Virendra vs The State of Punjab (1).
Any law which is enacted in the interest of public order may be saved from the vice of constitutional invalidity.
If, on the other hand, we were to hold that even without any tendency to disorder or intention to create disturbance of law and order, by the use of words written or spoken which merely create disaffection or feelings of enmity against the Government, the offence of sedition is complete, then such an interpretation of the sections would make them unconstitutional in view of article 19(1)(a) read with cl.
It is well settled that if certain provisions of law construed in one way would make 809 them consistent with the Constitution, and another interpretation would render them unconstitutional, the Court would lean in favour of the former construction.
The provisions of the sections read as a whole, along with the explanations, make it reasonably clear that the sections aim at rendering penal only such activities as would be intended, or have a tendency, to create disorder or disturbance of public peace by resort to violence.
As already pointed out, the explanations appended to the main body of the section make it clear that criticism of public measures or comment on Government action, however strongly worded, would be within reasonable limits and would be consistent with the fundamental right of freedom of speech and expression.
It is only when the words, written or spoken, etc.
which have the pernicious tendency or intention of creating public disorder or disturbance of law and order that the law steps in to prevent such activities in the interest of public order.
So construed, the section, in our opinion, strikes the correct balance between individual fundamental rights and the interest of public order.
It is also well settled that in interpreting an enactment the Court should have regard not merely to the literal meaning of the words used, but also take into consideration the antecedent history of the legislation, its purpose and the mischief it seeks to suppress (vide (1)).
The Bengal Immunity Company Limited vs The State of Bihar (1) and (2) R.M.D. Chamarbaugwalla vs The Union of India (2).
Viewed in that light, we have no hesitation in so construing the provisions of the sections impugned in these cases as to limit their application to acts involving intention or tendency to create disorder, or disturbance of law and order, or incitement to violence.
We may also consider the legal position, as it should emerge, assuming that the main section 124A is 810 capable of being construed in the literal sense in which the Judicial Committee of the Privy Council has construed it in the cases referred to above.
On that assumption, it is not open to this Court to construe the section is such a way as to avoid the alleged unconstitutionality by limiting the application of the section in the way in which the Federal Court intended to apply it ? In our opinion, there are decisions of this Court which amply justify our taking that view of the legal position.
This Court, in the case of R.M.D. Chamarbaugwalla vs The Union of India (1) has examined in detail the several decisions of this Court, as also of the Courts in America and Australia.
After examining those decisions, this Court came to the conclusion that if the impugned provisions of a law come within the constitutional powers of the legislature by adopting one view of the words of the impugned section or Act, the Court will take that view of the matter and limit its application accordingly, in preference to the view which would make it unconstitutional on another view of the interpretation of the words in question.
In that case, the Court had to choose between a definition of the expression 'Prize Competitions" as limited to those competitions which were of a gambling character and those which were not.
The Court chose the former interpretation which made the rest of the provisions of the Act, Prize Competitions Act (XLII of 1955), with particular reference to sections 4 and 5 of the Act and Rules 11 and 12 framed thereunder, valid.
The Court held that the penalty attached only to those competitions which involved the element of gambling and those competitions in which success depended to a substantial degree on skill were held to be out of the purview of the Act.
The ratio decidendi in that case, in our opinion, applied to the case in hand in so far as we propose to limit its operation only to such activities as come within the ambit of 811 the observations of the Federal Court, that is to say, activities involving incitement to violence or intention or tendency to create public disorder or cause disturbance of public peace.
We do not think it necessary to discuss or to refer in detail to the authorities cited and discussed in the reported case R.M.D. Chamarbaugwalla vs The Union of India (1) at pages 940 to 952.
We may add that the provisions of the impugned sections, impose restrictions on the fundamental freedom of speech and expression, but those restrictions cannot but be said to be in the interest of public order and within the ambit of permissible legislative interference with that fundamental right.
It is only necessary to add a few observations with respect to the constitutionality of section 505 of the Indian Penal Code.
With reference to each of the three clauses of the section, it will be found that the gravamen of the offence is making, publishing or circulating any statement, rumour or report (a) with intent to cause or which is likely to cause any member of the Army, Navy or Air Force to mutiny or otherwise disregard or fail in his duty as such; or (b) to cause fear or alarm to the public or a section of the public which may induce the commission of an offence against the State or against public tranquillity; or (c) to incite or which is likely to incite one class or community of persons to commit an offence against any other class or community.
It is manifest that each one of the constituent elements of the offence under section 505 has reference to, and a direct effect on, the security of the State or public order.
Hence, these provisions would not exceed the bounds of reasonable restrictions on the right of freedom of speech and expression.
It is clear, 812 therefore, that cl.
(2) of article 19 clearly save the section from the vice of unconstitutionality.
It has not been contended before us on behalf of the appellant in C.A. 169 of 1957 or on behalf of the respondents in the other appeals (No. 124 126 of 1958) that the words used by them did not come within the purview of the definition of sedition as interpreted by us.
No arguments were advanced before us to show that even on the interpretation given by us their cases did not come within the mischief of the one or the other section, as the case may be.
It follows, therefore, that the Criminal Appeal 169 of 1957 has to be dismissed.
Criminal Appeals 124 126 of 1958 will be remanded to the High Court to pass such order as it thinks fit and proper in the light of the interpretation given by us.
Appeal No. 169 of 1957 dismissed.
Appeals Nos.
124 to 126 of 1958 allowed.
| Under the C. P. and Berar Local Self Government Act 1920, the District Council of Bhandara.
in 1925, imposed a terminal tax on the export of bidis and bidi leaves by rail out of Bhandara district.
By the Government of India Act, 1935, terminal tax was included in the Federal Legislative List but section 143 (2) of the Act provided that such a tax which was being lawfully levied under a law in force on January 1, 1935, may continue to be levied until provision to the contrary was made by the Federal Legislature.
The District Council continued to leavy and collect the tax.
In 1948 the C P. and Berar Local Government Act, 1948, came into force which repealed the 1920 Act.
It replaced the District Council, Bhandara, with three janapada Sabhas.
Clause (c) ;of the proviso to the saving section section 192 provided that 'all rates, taxes and cesses due to the District Council shall be deemed to be due to the Sabha to whose area they pertained, 71 By an amending Act of 1949 the Provincial Legislature replaced cl.
(b) of the proviso to section 192 by a new cl.
(b) which, inter alia, continued in force all taxes which were in force immediately before the commencement of the 1948 Act, this amendment was given retrospective effect from the commencement of 1948 Act.
The appellant contended that the 1948 Act which repealed the 1926 Act did not save the terminal tax, and once the tax was discontinued the Provincial Legislature had no power left to impose it afresh and that the amendment was accordingly beyond its legislative competence_.
The respondent contended that section 143 (2) of the Government of India Act, 1935.
vested in the Provincial Legislature plenary power to legislate in respect of every tax which was being lawfully levied in the province, that cl.
(c) of the proviso to section 192 of the 1948 Act saved the tax and that the amendment was validly made and it saved the tax with retrospective effect from the date of the repeal of the 1920 Act.
Held, that the terminal tax was validly continued by the retrospective amendment of cl.
(b) to the proviso of section 192 of 1948 Act.
Section 143 (2) of the Government of India Act, 1935, did not confer upon the Provincial Legislature any plenary power of legislation in respect of taxes which were being validly imposed.
But it did confer upon the Provincial Legislature a limited legislative power to enact a law with reference to the tax levy so as to continue it.
The power of the Provincial Legislature to repeal the 1920 Act which imposed the tax was co extensive with its power to enact such a law.
In exercise of this limited legislative power the Provincial Legislature was competent to enact the Amending Act of 1949.
Attorney General for Ontario vs Attorney General for the Dominion, , referred to.
Clause (c) of the proviso to section 192 of the 1948 Act did not save the future imposition of the tax; it merely provided for the collection of taxes already accrued in favour of the District Councils by the successor Sabhas.
The words in this clause "due to the District Council" referred only to taxes which had accrued on the date of the repeal of the 1920 Act and did not include taxes which accrued later and became payable subsequent to that date.
The subsequent amendment of 1949 could not be take a into account in construing cl.
(c) and for determining the intention of the legislature.
|
ivil Appeal No. 167 of 1954.
Appeal from the Judgment and decree dated September 14, 1953, of the Bombay High Court in Misc.
Application No. 267 of 1953.
R. J. Kolah, B. Narayanaswamy and J. B. Dadachanji, for the appellants.
H. M. Seervai, Advocate General for the State of Bombay and R. H. Dhebar, for the respondents.
December 20.
The following Judgment of the Court was delivered by VENKATARAMA AIYAR J.
The appellant is a limited Company incorporated under the Indian Companies Act, 1879.
It is carrying on business in the manufacture of textiles, and owns three factories called Spring Mills,, Textile Mills and Bombay Dye Works, all of, which are situate in Bombay.
In its balance sheet for the year 1951, it has shown as one of its liabilities a sum of Rs. 1,65,731 1 0 under the heading "Unclaimed wages ".
This amount is made up of wages earned by the workmen in the factories but remaining undrawn by them, and represents accumulations from year to year ever since the formation of the Company which, it is stated, was about the year 1880. ' The dispute in this appeal mainly relates to this amount.
In 1953, the Legislature of the State of Bombay enacted the Bombay Labour Welfare Fund Act (Bum.
XL of 1953) (hereinafter referred to as the Act), and it came into force on June 4, 1953.
We may, at this 1125 stage, refer to the relevant provisions of the Act, as it is their validity that is the main point for our determination in this appeal.
The preamble to the Act recites that " It is expedient to constitute a Fund for the financing of activities to promote welfare of labour in the State of Bombay and for conducting such activities ".
Section 2 is the definition section; sub section
(2) defines an " employee " as meaning " any person who, is employed for hire or reward to do any work, skilled or unskilled, manual or clerical, in an establishment".
Employer " is defined in sub section
(3) as meaning " any person who employs either directly or through another person either on behalf of himself or any other person, one or more employees in an establishment and includes in a factory any person named under section 7(i)(f) of the , as the manager ".
Sub section (10) defines " Unpaid accumulations " as meaning " all payments due to the employees but not made to them within a period of three years from the date on which they became due whether before or after the commencement of this Act including the wages and gratuity legally payable".
"Wages "is defined in sub section
(11) as meaning " all remuneration capable of being expressed in terms of money which would) if the terms of the contract of employment, express or implied were fulfilled, be payable to a person employed in respect of his employment or of work done in such employment. .
Then, there is section 3, which runs as follows: (1).
"There shall be constituted a fund called the Bombay Labour Welfare fund and, notwithstanding anything contained in any other law for the time being in force, the sums specified in sub section (2) ,shall be paid into the Fund.
The Fund shall consist of (a) all fines realised from the employees; (b) all unpaid accumulations; (c) any voluntary donations; (d) any fund transferred under sub section (5) of section 7; and (e) any sum borrowed under section 1126 (3).
The sums specified in sub section (2) shall be collected by such agencies and in such manner and the accounts of the Fund shall be maintained and audited in such manner as may be prescribed." Section 7(1) provides that "the Fund shall vest in and ,be held and applied by the Board as Trustees subject 'to the provisions and for the purposes of this Act.
" Sub section (2) of section 7 is very material, and is as follows: "Without prejudice to the generality of sub section (1) the moneys in the Fund may be utilized by the Board to defray expenditure on the following: (a) community and social education centres including reading rooms and libraries; (b) community necessities; (c) games and sports; (d) excursions, tours and holiday homes; (e) entertainment and other forms of recreations; (f) home industries and subsidiary occupations for women and unemployed persons; (g) corporate activities of a social nature; (h) cost of administering the Act including the salaries and allowances of the staff appointed for the purposes of the Act; and (i) such other objects as would in the opinion of the State Government improve the standard of living and ameliorate the social conditions of labour: Provided that the Fund shall not be utilized in financing any measure which the employer is required under any law for the time being in force to carry out; Provided further that unpaid accumulations and ,fines shall be paid to the Board and be expended by it under this Act notwithstanding anything contained in the (IV of 1936), or any other law for the time being in force ".
Section 11 provides for the appointment of an officer called the Welfare Commissioner, and defines his ,powers and duties.
Section.17 enacts that, " Any sum payable into the Fund under this Act shall without prejudice to any other mode of recovery, 1127 be recoverable on behalf of the Board as an arrear of land revenue.
" Section 19 authorises the State Government to make rules to carry out the purposes of this Act.
Section 23 provides that, "In section 8 of the (IV of 1936), to sub section (8) the following shall be added, before the Explanation namely: " but in the case of any factory or establishment to which the Bombay Labour Welfare Fund Act, 1953 (Bom.
XL of 1953), applies all such realisations shall be paid into the Fund constituted under the said Act.
" Rules were framed by the State of Bombay in exercise of the powers conferred by section 19, and they were published on June 30, 1953.
The material rules are Nos. 3 and 4, which are as follows: 3.
" Payment of fines and of unpaid accumulations by employer (I) Within fifteen days from the date on which the Act shall come into force in any area, every employer in such area shall pay by cheque, money order or cash to the Welfare Commissioner (a)all fines realised from the employees before the said date and remaining unutilized on that date; ,and (b)all unpaid accumulations held by the employer on the aforesaid date.
(2)The employer shall along with such payment submit a statement to the Welfare Commissioner giving full particulars of the amounts so paid.
(3) Thereafter, all fines realised from the employees and all unpaid accumulations during the quarters ending 31st March, 30th June, 30th September and 31st December shall be paid by the employer in the manner aforesaid to the Welfare Commissioner on or before the 15th of April, 15th of July , 15th of October and 15th of January succeeding such quarter and a statement giving particulars of the amounts so paid shall be submitted by him along with such payment to the Welfare Commissioner, 1128 4.
Notice for payment of fines and unpaid accumu lations by Welfare Commissioner: The Welfare Commissioner may, after making such enquiries as he may deem fit, and after calling for a report from the Inspector, if necessary, serve a notice on any employer to pay any portion of fines realised from the employees or unpaid accumulations held by him which the employer has not paid in accordance with rule 3.
The employer shall comply with the notice within 14 days of the receipt thereof." On July 7, 1953, the Welfare Commissioner, Bombay appointed under section 1 1 of the impugned Act, sent a notice to the appellant and other companies similarly situate, inviting their attention to the relevant provisions of the Act and of the rules and calling upon them to remit the fines and unpaid accumulations remaining with, them, in accordance with the directions contained therein.
To this, the appellant sent a reply on the same date impugning the validity of the Act as being in violation of the provisions of article 31 (2), and followed it up by filing the writ petition out of which the present appeal arises, it being treated by consent of parties as a test case.
The application was heard by Chagla C. J. and Tendolkar J. who held that the impugned Act was intra vires but on different grounds.
The learned Chief Justice was of the opinion that, on its true construction, the Act merely substituted the Board as a creditor in the place of the employees, that there was no taking of property, and that, in consequence, there was no contravention of article 31 (2).
Tendolkar J. hold that " unpaid wages " were unquestionably moneys which belonged to the employer and that he was being deprived of them, but there was no taking of possession or acquisition of property within .Art.
31 (2) of the Constitution but a deprivation of moneys, and as it was done under the authority of law, it fell within the protection of article 31 (1).
In the result, the petition was dismissed.
The learned Judges,however, granted a certificate under article 132, and that is how the appeal comes before us, 1129 The sole point for determination in this appeal is whether section 3 (1) and sub cls.
(a) and (b) of section 3(2) of the Act are void as contravening the provisions of the Constitution; but to decide it, we have to consider quite a number of questions which have been raised and discussed in the arguments before us.
It will be convenient to deal with the two items, fines realised ' from the employees, section 3 (2) (a) and unpaid accumulations, section 3 (2) (b) separately, as the issues involved in the determination of their validity are different.
Taking first unpaid accumulations, section 3 (2) (b), the contention of Mr. Kolah for the appellant is that s 3 (1) is repugnant to article 31 (2) inasmuch as it deprives the employers of moneys belonging to them without payment of any compensation merely on the ground that they represent wages due to the employees.
Now, money is undoubtedly property, and it cannot be disputed that a person who has money does not cease to be its owner merely by reason of the fact that he owes debts in satisfaction of which it may have to be applied.
Until the creditor takes appropriate proceedings under the law for the realisation of his debt and the title of the debtor is extinguished in those proceedings, the title to the property continues in the debtor.
Mr. Kolah is therefore clearly right in his contention that the liability of the appellant to pay wages to the employees does not ipso facto extinguish its title to the moneys belonging to it even pro tanto, and that the effect, therefore, of section 3 (1) is to take away money belonging to it.
Then, the question is whether such a provision is hit by article 31 (2) on the ground that it is acquisition or taking possession of property for a public purpose without payment of compensation.
It is common ground that the taking is for a public purpose.
The point in dispute is whether what is sought to be done under section 3 is acquisition or taking possession of property within article 31 (2).
Tendolkar, J., answered this question against the appellant, because, in his view, article 31 (2) would apply only if there was a transfer of title to or beneficial interest in the amounts to the State, that section 3 (1) effected neither, that it did deprive the employers of 1130 oheir moneys, but that fell under article 31 (1) and not article 31 (2), and that as that was done under the authority of law, it could not be questioned.
Subsequent to this decision, this Court had occasion to consider the true scope of article 31 (2) in relation to article 31 (1) in The State of West Bengal vs Subodh Gopal Bose (1) and in Dwarkadas Shrinivas of Bombay vs The Sholapur Spinning and Weaving Co. Ltd (2).
In The State Of West Bengal vs Subodh Gopal Bose(1), the majority of the learned Judges took the view that.
articles 31 (1) and 31 (2) were not mutually exclusive, that it was not an essential requisite of acquisition under article 31 (2) that there should be a transfer of title to the State, that deprivation of property and substantial abridgement of the rights of the owner were also within article 31 (2), and that a law which produced those results must, in order to be valid, satisfy the conditions laid down in that Article.
Das, J., (as he then was) differed from this view, and held that the contents of the two provisions were distinct, that while article 31 (1) had reference to the " police power" of the State, article 31 (2) dealt with the power of " eminent domain ".
In Dwarkadas Shrinivas of Bombay vs The Sholapur Spinning and Weaving Co.(2) the majority of the Judges again reiterated the view expressed in The State of West Bengal vs Subodh Gopal Bose(1) that articles 31 (1) and 31 (2) covered the same ground, and that substantial interference with rights to property would be within the operation of Art ' 31 (2).
On these decisions, it should follow that section 3 of the impugned Act is bad as infringing article 31 (2), in that it deprives the appellant of its moneys without giving any compensation.
Mr. Seervai, however, resists this contention on the strength of article 31 (2A), which was introduced by the Constitution (Fourth Amendment) Act, 1955.
It is as follows: " Where a law does not provide for the transfer of the ownership or right to possession of any property to the State or to a corporation owned or controlled by the State, it shall not be deemed to provide for the (1) ; (2) ; 1131 compulsory acquisition or requisitioning of property,: notwithstanding that it deprives any person of his property.
" The argument is that the theory that acquisition in article 31 (2) is not confined to cases of transfer of ownership to the State, and that even deprivation of property would fall within it, which is the basis of ' the decisions in The State of West Bengal vs Subodh Gopal Bose (1) and in Dwarkadas Shrinivas of Bombay vs The Sholapur Spinning and Weaving Co. Ltd. (2) can, in view of the above amendment, no longer be accepted as correct, and that those decisions therefore require to be reconsidered in the light of the new article 31 (2A).
But it is not disputed that this provision has no retrospective operation, and that the rights of the parties must be decided in accordance with the law as on the date of the writ application, and that on the provisions of the Constitution as they stood on that date and as interpreted in The State of West Bengal vs Subodh Gopal Bose (1) and Dwarkadas Shrinivas of Bombay vs The Sholapur Spinning and Weaving Co. Ltd. (2), section 3 (1) of the impugned Act would be obnoxious to article 31 (2).
This should be sufficient to conclude this, question in favour of the appellant, but the respondents contend that section 3 (1) is not within the prohibi tion of article 31 (2), because it operates only on money, and money is not property for purposes of that Article.
There is considerable authority in America that the power of eminent domain does not extend to the taking of money, the reason being that compensation which is to be paid in respect of money can only be money, and that, therefore, in substance it is a forced loan.
In The State of Bihar vs Maharajadhiraja Sir Kameshwar Singh of Darbhanga(3 ), this view was adopted by Mahajan J. at pages 943 944, by Mukherjea J. at page 961 and by Chandrasekhara Aiyar J. at pages 1015 to 1018.
It is argued for the respondents that the position under article 31(2) is the same as in America, as the provision therein that either the (1) ; (2) ; (3) 144 1132 amount of the compensation should be fixed or the principles on which and the manner in which compensation is to be determined should be specified, involves that what is taken is not money.
It is argued, on the other hand, for the appellant that the latest trends in American law show, as was observed by Das J. (as he then was), at pages 984 985 in The State of Bihar vs Maharajadhiraja Sir Kameshwar Singh of Darbhanga (1), a departure from the view held in earlier authorities that moneys and choses inaction could not be the subject of " eminent domain "; and that, in any case, the principles of American law should not be applied in the interpretation of the provisions of our Constitution.
If the contention of the respondents is to be accepted, the question naturally arises what protection a person has in respect of moneys belonging to him if he can be deprived of them by process of legislation.
The answer of Mr. Seervai is that that protection is to be sought in article 19(1)(f), that the word " property" therein has a wider connotation than what it bears in article 31(2) and includes money, and that the citizens have the right to hold money subject only to law such as is saved by article 19(5).
In support of this position, he relied on the decision in Bijay Cotton Mills Ltd. vs
The State of Ajmer (2) in which this Court applied article 19(6) in pronouncing on the validity of the Minimum Wages Act (XI of 1948) requiring the employers to pay wages at a rate not less than that to be fixed by the Government.
Assuming that the correct position is what the res pondents contend it is, the question that has still to be determined is whether the impugned Act could be supported under article 19(5).
There was some discussion before us as to the scope of this provision, the point of the debate being whether the words "imposing reasonable restriction" would cover a legislation, which not merely regulated the exercise of the rights guaranteed by article 19(1)(f) but totally extinguished them, and whether a law like the present one which deprived the owner of his properties could be held to fall within that provision.
It was argued that a law authorising (1) (2) ; 1133 the State to seize and destroy diseased cattle, noxious drugs and the like, could not be brought within article 19(5) if the word 'restriction ' was to be narrowly construed, and that accordingly the power to restrict must be held to include, in appropriate cases, the power to prohibit the exercise of the right.
That view does find support in the observations of Lord Porter in Commonwealth of Australia vs Bank of New South Wales (1); but the present legislation cannot be sustained even on the above interpretation of the word 'restriction ', as section 3(1) of the Act deals with moneys and money cannot be likened to diseased cattle or noxious drugs so as to attract the exercise of police power under article 19(5).
It appears to us that whether we apply article 31(2) or article 19(5), the impugned Act cannot be upheld, and it must be struck down, unless we accept the other contentions which have been urged for the respondents in support of its validity.
Those contentions are firstly, that the Act merely substitutes the Board as the creditor in the place of the employees, and that sections 3 and 17 merely prescribe the mode in which the obligation is to be enforced and that was the ground on which Chagla C. J. based his judgment; and secondly, that the impugned legislation is one in respect of abandoned property, and it is not open to attack as contravening either article 19 (1)(f) or article 31(2).
It is those contentions that now fall to be considered.
As regards the first contention, the question is whether on a fair construction of the provisions of the impugned Act, it is possible to spell out a substitution of creditors.
When an employee has done his work, the amount of wages earned by him becomes a debt due to him from the employer, and it is property which could be assigned under the law.
If the employee had assigned the debt to the Board constituted under the Act, the latter would be entitled to recover it from the employer.
And what could be done by act of parties can also be done by legislation.
What we have to see, therefore, is whether on the provisions of the statute it could be held that there is a statutory (1) [1950] A C. 235, 311.
1134 transfer of the wages earned by the workman to the Board.
Section 5 of the Act vests the amounts mentioned in section 3(2) in the Board, and section 3(1) directs that those amounts should be paid by the employer to the Board.
Counsel for the appellant contends that there are in the Act no words of transfer of the debts to the ;Board, and that there is only a provision for payment of the amounts.
But this is taking too narrow a view of the true scope of those provisions.
Looking at the substance of the matter, we are of opinion that section 3(1) and section 5(1) do operate to transfer the debts due to the employees, to the Board.
It will be observed that the definition of "unpaid accumulations " takes in only payments due to the employees remaining unpaid within a period of three years after they become due.
The intention of the Legislature obviously was that claims of the employees which are within time should be left to be enforced by them in the ordinary course of law, and that it is only when they become time barred and useless to them that the State should step in and take them over.
On this, the question arises for consideration whether a debt which is time barred can be the subject of transfer, and if it can be, how it can benefit the Board to take it over if it cannot be realised by process of law.
Now, it is the settled law of this country that the statute of Limitation only bars the remedy but does not extinguish the debt.
Section 28 of the Limitation Act provides that when the period limited to a person for instituting a suit for possession of any property has expired, his right to such property is extinguished.
And the authorities have held and rightly, that when the property is incapable of possession, as for example, a debt, the section has no application, and lapse of time does not extinguish the right of a person thereto.
Under section 25(3) of the Contract Act, a barred debt is good consideration for a fresh promise to pay the amount.
When a debtor makes a payment without any direction as to how it is to be appropriated, the creditor has the right to appropriate it towards a barred debt.
(Vide section 60 of the Contract Act).
It has also been held that a creditor is entitled 1135 to recover the debt from the surety, even though a suit on it is barred against the principal debtor.
Vide Mahant Singh vs U Ba Yi (1), Subramania Aiyar vs Gopala Aiyar (2), and Dil Muhammad vs Sain Das (3).
And when a creditor has a lien over goods by way of security for a loan, he can enforce the lien for obtaining satisfaction of the debt, even though an action ' thereon would be time barred.
Vide Narendra Lal Khan vs Tarubala Dasi (4).
That is also the law in England.
Vide Halsbury 's Laws of England (Hailsham 's Edition), Vol. 20, page 602, para.
756 and the observations of Lindley L. J. in Carter vs White (5) and of Cotton L. J. in Curwen vs Milburn (6).
In American Jurisprudence, Vol.
34, page 314, the law is thus stated : " A majority of the courts adhere to the view that a statute of limitations, as distinguished from a statute which prescribes conditions precedent to a right of action, does not go to the substance of a right, but only to the remedy.
It does not extinguish the debt or preclude its enforcement, unless the debtor chooses to avail himself of the defence and specially pleads it.
An indebtedness does not lose its character as such merely because it is barred; it still affords sufficient consideration to support a promise to pay, and gives a creditor an insurable interest." In Corpus Juris Secundum, Vol.
53, page 922, we have the following statement of the law : " The general rule, at least with respect to debts or money demands, is that a statute of limitation bars, or runs "against, the remedy and does not discharge the debt or extinguish or impair the right, obligation, or cause of action.
" The position then is that under the law a debt subsists notwithstanding that its recovery is barred by limitation, and no argument has been addressed to us by the appellant that the transfer of such a debt is invalid; and indeed it could not be, in view of the provisions in the impugned Act, which release the debts (1) (1939) L. R. 66 1.
A. 198.
(2) Mad.
(3) A.I.R. 1927 Lah.
(4) Cal. 817, 823.
(5) , 672.
(6) 24, 434.
1136 due to the employees from the bar of limitation.
Section 3(1) provides that payment shall be made of the amounts specified in sub cl.
(2) "notwithstanding anything contained in any other law for the time being in force.
" A similar provision is again enacted in the second proviso to sub section
(2) of section 5 that "unpaid accumulations " and fines shall be paid to the Board "notwithstanding anything contained in the , or any other law for the time being in force.
" One of those laws is the law of limitation, and the effect of these provisions is to suspend limitation in respect of the claims to which section 3(2) relates.
To dispel any doubt as to whether it was competent to the Legislature of the Bombay State to modify the provisions of the Limitation Act, it should be stated that limitation is a topic enumerated in the Concurrent List, being Entry 13 in List III in Seventh Schedule to the Constitution, and under article 254(2), the State Legislature can enact a law modifying the Central Act, provided it is reserved for consideration by the President and assented to by him, and that has been done in the present case.
Coming to the impugned Act, there is one other provision therein to which reference must be made.
Section 17 provides that without prejudice to other modes of recovery, the sums payable to the fund under section 3 may be recovered as arrears of land revenue.
This is a provision which is generally made when amounts are due and payable to the State, and Mr. Kolah concedes, that if the impugned law is otherwise valid, it cannot be said to be bad by reason of this section.
On the above analysis, there cannot be any doubt that the effect of the relevant provisions of the Act is to transfer to the Board the debts due by the appellant to its employees free from the bar of limitation.
The question still remains whether there has been a substitution of creditors, and that can only be, if the debt due to the employee is discharged and in its place there is substituted the debt in favour of the Board.
If, however, the employer is not released from his liability to the employee, then the effect of section 3(1) is only to create in the Board a statutory creditor in 1137 addition to the creditor under the contract of employment, and there can be no question of substitution.
Mr. Seervai agrees that if the Act does not operate to ' discharge the employer from his obligations to the employees in respect of the wages due to them, then it must be held to be unconstitutional as infringing article 19(1)(f), because his contention that the effect of ' the Act was only to take the property of the employer in discharge of its obligations could not then be maintained.
The real point for determination, therefore, is whether on payment of the amounts in accordance with section 3(1) of the Act, the appellant gets a discharge of his obligations to the employees in respect of wages due to them.
The Act does not contain any provision to that effect, and the absence thereof has been strongly relied on by the appellant as showing that no substitution of creditors was intended.
In answer to this contention, Mr. Seervai urges firstly that though the Act does not, in terms, provide for the discharge of the appellant on payment of the amount under section 3(1), that is the result of the provisions of the (Act IV of 1936), hereinafter referred to as the Wages Act, and secondly, that the effect of section 3(1) of the Act is to render the contract of employment void under section 56 of the Contract Act, and the appellant is thereby discharged from his obligations thereunder.
We shall now examine both these contentions.
To appreciate the first contention, it is necessary to refer to the relevant provisions of the Wages Act.
Section 2(vi) defines "wages" in terms which comprehend whatever falls within the definition of that word in section 2(11) of the impugned Act.
Section 3 casts on the employer the responsibility for payment of wages to persons employed by him.
Section 4 provides for the fixing of wage periods, which, however, are not to exceed one month.
Under section 5, the wages have to be paid before the expiry of ten days after the last day of the wage period in case of employees who continue in service and in the case of those whose employment has been terminated, within the second 1138 working day of such termination.
Section 15 provides that where an unauthorised deduction has been made from the wages of an employed person or payment of wages has been delayed, such person may apply to the authority appointed under the Act for a direction for payment of the amount deducted or the delayed ;wages, as the case may be, together with payment of compensation.
Such application has to be made within six months from the date on which the deductions were made or the date on which the payment of wages became due, and by Act No. 62 of 1953 of the Bombay Legislature, the period of six months has been enlarged to one year.
There is a proviso to this section that an application thereunder can be made after the period prescribed therein "when the applicant satisfies the authority that he had sufficient cause for not making the application within such period.
" Section 22(d) of the Act provides that, "No Court shall entertain any suit for the recovery of wage or of any deduction from wages in so far as the sum so claimed could have been recovered by an application under section 15. .
Now, the argument of the respondents is that under the provisions aforesaid, an employee has to prosecute his claim for unpaid wages before the authority within the time limited by section 15 of the Wages Act, which is one year in the State of Bombay, that if he fails to do so it becomes unenforceable, and a suit with respect thereto under the general law is also barred.
The result is, it is contended, that having regard to the definition of "unpaid accumulations" as meaning all payments due to the employees but not made to them within a period of three years, the employer runs no risk of being called upon to pay to the employee what has been paid by him to the Board under section 3(1), and that therefore a payment under the impugned Act gives him what is, for all practical purposes, a good discharge.
This argument rests on the supposition that so far as unpaid wages are concerned, the operation of the Wages Act is co extensive with that of the impugned Act.
But that clearly is erroneous.
It is true that wages as defined in the Wages Act 1139 would include whatever are wages under the impugned Act.
But section 1(6) limits the application of the Wages Act to wages which are below Rs. 200 for a wage period.
In respect of wages of Rs. 200 or more, it is the general law that would apply, and the period of limitation is not one year under section 15 of the Wages Act but three years under article 102 of the Limitation ' Act, which period is capable of extension under the provisions of the Limitation Act beyond the three years mentioned in section 2(10) of the impugned Act.
Then, it is to be noted that under the proviso to section 15(1), the authority has the power to admit a petition even beyond the period mentioned there, if sufficient cause is shown therefor.
To this, the reply of the respondents is that as on the terms of section 3(1) and the second proviso to section 5(2) they are to take effect notwithstanding anything contained in the Wages Act or any other law, they override the power conferred by the proviso to section 15(1) of the Wages Act or the provisions of the Limitation Act.
Even as regards section 22 of the Wages Act, there is divergence of judicial opinion as to its true scope.
In Simpalax Manufacturing Co. Ltd. vs Alla Ud Din (1), it was held that if there was any bona fide dispute as to the amount payable, the jurisdiction of the Civil Court was not barred by section 22.
On the other hand, it was held in Bhagwat Rai vs Union of India (2) that the jurisdiction of the Civil Court would be barred, even if there was a bona fide dispute, and that the bar under section 22(d) was absolute, and certain observations in Modern Mills Ltd. vs Mangalvedhekar (3) and A. B. Sarin vs B. C. Patil (4) were relied on, as supporting this contention.
Even if Mr. Seervai is right in his contention that the law is correctly laid down in Bhagwat Rai vs Union of India (2) and that the decision in Simpalax Manufacturing Co. Ltd. vs Alla Ud Din(1) is wrong, the fact remains that claims in respect of unpaid wages to which the impugned Act applies must, in view of section 1(6) of the Wages Act, fall at least (1) A.I.R. 1945 Lah.
(2) I.L.R. (4) A.I.R. 1951 BOM.
(3) A.I.R. 1950 Bom.
145 1140 in part outside the purview of that Act, and the protection afforded by section 15 of that Act will not be available with reference thereto.
It is next contended that even if the impugned Act does not protect the employer in respect of unpaid wages which fall outside the Wages Act, it should be upheld in so far as it relates to those claims which fall within the purview of that Act, as the bar of limitation under section 15 of that Act is sufficient safeguard to the employer against being made liable at the instance of the employees for wages which had been paid to the Board.
And it is also contended that even with reference to claims for unpaid wages which fall outside the Wages Act, the impugned Act should be held to be valid if such claims are barred under the provisions of the Limitation Act.
In other words, the contention is that the impugned Act should be upheld in respect of that portion of the unpaid wages the recovery of which by the employees is barred by limitation whether under section 15 of the Wages Act or the Limitation Act.
The impugned Act, it should be noted, merely enacts that all unpaid accumulations should be paid to the Board.
It makes no distinction between claims for unpaid wages which are barred by limitation and those which are not so barred.
It is contended for the respondents that when the subject matter of a law comprehends distinct matters as to some of which it is unconstitutional and bad, it should nevertheless be upheld as regards the others, if those others form a distinct category, and that this principle applies not only when a classification into distinct categories appears on the face of the law but also when it exists in fact.
Now, the doctrine of severability in application is well established in our law (vide The State of Bombay vs F. N. Balsara (1), The State of Bombay vs
The United Motors (India) Ltd.and R. M. D. Chamarbaugwalla vs Union of Indiaand the principles applicable have been stated fullyin Chamarbaugwalla 's Case (3).
But assuming on the basis of the above autho (1) ; (2) [1953] S.C.R.1069.
(3)[1957] S.C.R. 930.
1141 rities that we can confine the operation of the impugned Act to those claims of unpaid wages which are barred by limitation, the question still is whether the impugned Act gives a discharge to the employer even in respect of those claims; for, as already stated, the operation of article 19(1)(f) can be avoided only if it is established that there has been a substitution of creditors, which can only be if and when the employer gets a discharge from those obligations to the employees.
The point to be decided therefore is whether the effect of the bar of limitation is to discharge the employer from liability to the employees.
It has been already mentioned that when a debt becomes time barred, it does not become extinguished but only unenforceable in a court of law.
Indeed, it is on that footing that there can be a statutory transfer of the debts due to the employees, and that is how the Board gets title to them.
If then a debt subsists even after it is barred by limitation, the employer does not get, in law, a discharge therefrom.
The modes in which an obligation under a contract becomes discharged are well defined, and the bar of limitation is not one of them.
The following passages in Anson 's Law of Contract, 19th Edition, page 383, are directly in point: " At Common Law lapse of time does not affect contractual rights.
Such a right is of a permanent and indestructible character, unless either from the nature of the contract, or from its terms, it be limited in point of duration.
"But though the right possesses this permanent character, the remedies arising from its violation are withdrawn after a certain lapse of time; interest reipub licae ut sit finis litium.
The remedies are barred, though the right is not extinguished." And if the law requires that a debtor should get a dis charge before he can be compelled to pay, that requirement is not satisfied if he is merely told that in the normal course he is not likely to be exposed to action by the creditor.
That this distinction is not purely academical but.
1142 is of practical importance will be seen, when regard is had to the provisions of the Industrial Disputes Act.
Under that Act, there is no period of limitation prescribed for referring a dispute for adjudication by a tribunal.
Even when a claim for wages falls within the purview of the Wages Act and an application under section 15 of that Act would be barred, it can nevertheless give rise to an industrial dispute in respect of which action can be taken under the provisions of the Industrial Disputes Act.
It was held by the Federal Court in Shamnagore Jute Factory Co. Ld.
vs section M. Modak (1) that section 22(d) of the Wages Act did not take away the power of the authorities to refer to a tribunal set up under the Industrial Disputes Act a claim which could be made under the Wages Act, as that section had application only to suits and did not exclude other proceedings permitted by law for the enforcement of payment.
If a tribunal appointed under that Act can direct an employer to make payment of wages, it follows that the bar under section 15 of the Wages Act does not give an absolute protection to the employer, and the same consequence must follow when the bar of limitation arises under the Limitation Act.
The result therefore is that when an employer makes a payment under section 3(1) of the Act he gets no discharge from his obligation to the employees, even when the enforcement thereof is barred by limitation.
The contention based on the provisions of the Wages Act failing, Mr. Seervai falls back on section 56 of the Contract Act as furnishing a ground for holding that the employer is discharged.
(2) of section 56 provides that, " a contract to do an act which, after the contract is made, becomes impossible, or by reason of some event which the promisor could not prevent, unlawful, becomes void when the act becomes impossible or unlawful.
" It is argued that by operation of section 3 of the impugned Act, the performance of the contract by the employer has become impossible, and the contract has thereby (1) 1143 become void.
Section 56 of the Contract Act embodies the law relating to frustration of contracts, and the true scope of that section was considered by this Court in Satyabrata Ghose vs Mugneeram Bangur and Co. The position was thus stated by Mukherjea J.: " In the large majority of cases however the doctrine of frustration is applied not on the ground that the parties themselves agreed to an implied term which operated to release them from the performance of the contract.
The relief is given by the court on the ground of subsequent impossibility when it finds that the whole purpose or basis of a contract was frustrated by the intrusion or occurrence of an unexpected event or change of circumstances which was beyond what was contemplated by the parties at the time when they entered into the agreement.
Here there is no question of finding out an implied term agreed to by the parties embodying a provision for discharge, because the parties did not think about the matter at all nor could possibly have any intention regarding it.
When such an event or change of circumstances occurs which is so fundamental as to be regarded by law as striking at the root of the contract as a whole, it is the court which can pronounce the contract to be frustrated and at an end.
The court undoubtedly has to examine the contract and the circumstances under which it was made.
The belief, knowledge and intention of the parties are evidence, but evidence only on which the court has to form its own conclusion whether the changed circumstances destroyed altogether the basis of the adventure and its underlying object.
This may be called a rule of construction by English Judges but it is certainly not a principle of giving effect to the intention of the parties which underlies all rules of construction.
This is really a rule of positive law and as such comes within the purview of section 56 of the Indian Contract Act.
" Counsel for the respondents relies on these obser vations, and contends that when the contract of service was entered into between the employer and the employees, they could not have contemplated (I) ; ,323. 1144 that the Legislature would have intervened and required the employer to pay the arrears of wages to the Board, and that that is a supervening impossibility which brings section 56 into play and renders the contract void.
We are not satisfied that the performance of the contract of service has been rendered impossible by reason of section 3(1) of the impugned Act.
But assuming that that is the position, what follows ? The matter would then be governed by section 65 of the Contract Act, which provides that when a contract becomes void, any person who has received any advantage under such agreement or contract is bound to restore it or to make compensation for it to the person from whom he received it.
Under this section, the employer is liable to make compensation to the employee for the work done by him, and that liability can be enforced against him in spite of the fact that he has paid the unclaimed wages to the Board under section 3 (1) of the Act.
We are therefore of opinion that even if the matter is governed by section 56 of the Contract Act, the employer is no more discharged than by the operation of the bar of limitation under section 15 of the Wages Act, or the provisions of the Limitation Act.
In this view, it must be held that the provisions of the impugned Act are unconstitutional, in that they take away the property of the appellant in violation of either article 19 (1) (f) or article 31 (2) of the Constitution.
A contention was also raised on behalf of the appellant that even if the impugned Act did not encroach on any of the Constitutional rights of the appellant, it clearly violated the rights of the employees in that it deprives them of their right to wages earned by them , that it was therefore void as against them as being in contravention of article 31 (2), and being void against them, it was void against the appellant as well.
For the respondents, it is contended that the Act cannot be held to infringe article 31 (2) even as regards the employees, as choses in action equally with money are outside the operation of that Article, and reliance is placed on the observations already referred to in The State of Bihar vs Maharajadhiraja 1145 Sir Kameshwar Singh of Darbhanga (supra) at pages 942, 960 961 and 1015 to 1018.
Now, as the Act takes over the rights of the employees in respect of wages due to them even when they are not barred without making any provision for compensation of the same to them, it must at least to that extent be held to be unconstitutional, whether as contravening article 19 (1) (f) or article 31 (2) it is unnecessary to decide.
It is then argued that this is an objection open only to the employees, and that the appellant can make no grievance of it.
It is no doubt true that a question as to the constitutionality of a statute can be raised only by a person who is aggrieved by it; but here, the statute deals with rights arising out of contract, and that presupposes the existence of at least two parties with mutual rights and obligations, and it is difficult to see how when the rights of one party to it are interfered with, those of the other can remain unaffected by it.
Let us assume that the appellant makes a payment to the Board under section 3 (1) of the impugned Act on the footing that the law is not unconstitutional as against him.
What is there to prevent the employee from suing to recover the same amount from the appellant on the ground that the Act is unconstitutional ? It will be no answer to that claim to plead that the appellant has already paid the amount to the Board.
The fact is that a statute which operates on a contract must affect the rights of all the parties to the contract, and if it is bad as regards one of them, it should be held to be bad as regards the others as well.
It is unnecessary to pursue this question further, as we have held that the Act is unconstitutional even as regards the appellant.
It remains to deal with the contention of the res pondents that the impugned legislation is, in substance, one in respect of abandoned property, and that, by its very nature, it cannot be held to violate the rights of any person either under article 19 (1) (f) or article 31 (2).
That would be the correct position if the character of the legislation is what the respondents claim it to be, for it is only a person who has some interest in property that can complain that the 1146 impugned legislation invades that right whether it be under article 19 (1) (f) or article 31 (2), and if it is abandoned property, ex hypothesi there is no one who has any interest in it.
But can the impugned Act be held to be legislation with respect to abandoned property ? To answer this question, it is necessary to examine the basic principles underlying such a legislation, and ascertain whether those are the principles oil which the Act is framed.
The expression " abandoned property " or to use the more familiar term "bona vacantia " comprises properties of two different kinds, those which come in by escheat and those over which no one has a claim.
In Halsbury 's Laws of England, Third Edition, Vol. 7, page 536, para.
1152, it is stated that " the term bona vacantia is applied to things in which no one can claim a property and includes the residuary estate of persons dying intestate ".
There is, however, this distinction between the two classes of property that while the State becomes the owner of the properties of a person who dies intestate as his ultimate heir, it merely takes possession of property which is abandoned.
At common law, abandoned personal property could not be the subject of escheat.
It could only be appropriated by the Sovereign as bona vacantia.
Vide Holdsworth 's History of English Law, Second Edition, Vol. 7, pages 495 496.
In Connecticut Mutual Life Insurance Company vs Moore(1), the principle behind the law was stated to be that " the State may, more properly, be custodian and beneficiary of abandoned property than any other person." Consistently with the principle stated above, a law relating to abandoned property enacts firstly provisions for the State conserving and safeguarding for the benefit of the true owners property in respect of which no claim is made for a specified and reasonable period, and secondly, for those properties vesting in the State absolutely when no claim is made with reference thereto by the true owners within a time limited.
There has been quite a number of laws on abandoned property in the American States, and their validity (I) ; , 546; ; , 869.
1147 has been the subject of numerous decisions in the Supreme Court of United States.
In Anderson National Bank vs Luckett (1), the law related to Bank deposits.
It provided that if moneys in deposit had not been demanded or operated on, for a period of 10 years in the case of demand deposits and 25 years in the case of non demand deposits, they might be presumed to have been abandoned and the Banks were to transfer them to the State.
Claims to the deposits might be made to the Commissioner of Revenue, who was to determine on their validity, his decision being open to review by the Courts.
The validity of this law was questioned on the ground that sufficient opportunity had not been given to the depositors to claim the deposits, and that as they could attack the law as unconstitutional, the Bank got no protection by payment to the State.
In repelling this contention, the Supreme Court observed that the Act did not deprive the depositors of any of their rights, they being given ample opportunity to establish their rights, and that it merely substituted the State in the place of the Bank as their debtor.
The Court also held that it was " within the Constitutional power of the State to protect the interests of depositors from the risks which attend long neglected accounts, by taking them into custody when they have been inactive so long as to be presumptively abandoned ".
In Connecticut Mutual Life Insurance Co. vs Moore (supra), the law was with reference to moneys payable on life insurance policies, which had matured.
It provided that if those amounts had remained unclaimed for a period of seven years, then it had to be advertised by the companies in the manner provided therein, and if no claims were preferred thereafter, the amounts were to be paid to the State Comptroller for care and custody.
In holding that the law was valid, the Court observed : " There is ample provision for notice to beneficiaries and for administrative and judicial hearing of their claims and payment of same.
There is no possible injury to any beneficiary." (1) ; , 241; ; , 701 146 1148 In Standard Oil Company vs New Jersey (1), the law related to shares and unpaid dividends, and provided for the State taking them over, if they remained unclaimed for a period of 14 years.
There was a provision for notice to the unknown owners by advertisement.
It was held following Connecticut Mutual Life Insurance Company vs Moore (supra) that the law was valid.
In the light of the above discussion, there cannot be any reasonable doubt that the impugned Act cannot be regarded as one relating to abandoned property.
The period of three years mentioned in section 2 (10) of the Act is merely the period of limitation mentioned in article 102 of the Limitation Act, and even taking into account the class of persons whose claims are dealt with in the Act, as counsel for respondents would have us do, the period cannot be regarded as adequate for raising a presumption as to abandoment.
A more serious objection to viewing the legislation as one relating to abandoned claims is that there is no provision made in the Act for investigating the claims of the employees or for payment of the amounts due to them, if they established their claims.
The purpose of a legislation with respect to abandoned property being, in the first instance, to safeguard the property for the benefit of the true owner and the State taking it over only in the absence of such claims, a law which vests the property absolutely in the State without regard to the claims of the true owners cannot be considered as one relating to abandoned property.
This contention of the respondents must also be rejected.
In the result, we are of opinion that section 3(1) in so far as it relates to unpaid accumulations in section 3(2)(b) is unconstitutional and void.
We have now to deal with the question as to the validity of section 3(1) and section 3(2)(a) of the Act, which require the employers to hand over to the Board the fines realised from the employees.
So far as this item is concerned, the position of the employers is wholly (1) ; ; , 1149 different from what it is as regards unpaid accumulations.
Section 8 of the Wages Act deals with the question of fines which could be imposed by the employer, and it provides that they should be entered in a separate register, and applied for the benefit of his employees.
It is not denied by the appellant that under this provision the fines are constituted a trust ' fund, and that the employers are bare trustees in respect of such fund.
Now, the grievance of the appellant is that the Act deprives it of its rights as trustees, and vests them in the Board, and that, further, while the beneficiaries under section 8 of the Wages Act are its own employees, under section 5(2) of the impugned Act they include otherpersons as well.
There might have been substance in the complaint that the appellant had been deprived of its rights as trustee if it bad any beneficial interest in the fund.
But admittedly, it has none, and it is therefore difficult to hold that there has been such substantial deprivation of property, as will offend article 31(2) according to the decisions in The State of West Bengal vs Subodh Gopal Bose and Dwarkadas Shrinivas of Bombay vs The Sholapur Spinning and Weaving Co. Ltd. (supra) or such unreasonable interference with rights to property, as will infringe article 19(1)(f).
It is argued with some emphasis that in enlarging the circle of beneficiaries, the Act has encroached on the rights of the employees of the appellant.
But then, the trust is the creation not of the appellant but of the Legislature, which gave the employees certain rights which they did not have before, and what it can give, it can also take away or modify, and we do not see how the employers are aggrieved by it.
We are of opinion that no valid grounds exist on which section 3(1) and section 3(2)(a) of the impugned Act could be attacked as unconstitutional, and they must accordingly be held to be valid.
In the result, we hold, in modification of the order of the Court below, that the provisions of the impugned Act are unconstitutional and void in so far as they relate to " unpaid accumulations", but that they are valid as regards " fines "; and an appropriate writ will 1150 issue against the respondents in the terms stated above.
The appeal succeeds in part, but as it is stated that " unpaid accumulations " form by far the most substantial portion of the claim, we direct the respondents to pay half the costs of the appellant here and in the Court below.
Appeal allowed in part.
| The Bombay Labour Welfare Fund Act (Bom.
XL of 1953) was enacted by the State Legislature with the object of constituting a fund for the financing of activities for the welfare of labour and section 3(1) of the Act provided as follows: "There shall be constituted a fund called the Bombay Labour Welfare Fund and, notwithstanding anything contained in any other law for the time being in force, the sums specified in subsection (2) shall be paid into the Fund.
" Section 3(2) provided, inter alia, as follows "The Fund shall consist of : (a) all fines realised from the employees; (b) all unpaid accumulation;" Notices were served on the appellant 's company as also on other companies similarly situated, by the Welfare Commissioner, appointed under the Act, calling upon them to remit to him the fines and unpaid accumulations in their custody.
The appellant in reply questioned the validity of the Act on the ground that it contravened article 31(2) Of the Constitution and, thereafter, filed a Writ petition, out of which the present appeal arises, which was treated by consent of parties as a test case.
The Judges of the Division Bench who heard the matter field that the impugned Act was intra vires, though on different grounds, and dismissed the petition.
The sole point for determination in the appeal was whether section 3(I) and sub cls.
(a) and (b) Of section 3(2) Of the Act were void as being violative of article 31(2) Of the Constitution: Held, that the unpaid accumulation of wages remaining with the appellant company was its own property and section 3(1) of the impugned Act in so far as it directs the payment of it tinder 3(2)(b) of the Act contravenes article 31(2) Of the Constitution and must be invalid.
Article 31(2A) of the Constitution has no retrospective effect and cannot apply and the matter must be decided on the law as it stood at the date of the Writ petition.
1123 The State of West Bengal vs Subodh Gopal Bose, ; and Dwarkadas Shrinivas of, Bombay vs Sholapur Spinning and Weaving Co. Ltd., ; , applied.
Assuming that money was not property within the meaning of article 31(2) and article 19(1)(f) applied that Article also would be of no help to the respondent as the Act could not be supported under article 19(5) Of the Constitution.
Commonwealth of Australia vs Bank of New South Wales, , held inapplicable.
The State of Bihar vs Mahayajadhiraja Sir Kameshwar Singh of Darbhanga, , considered.
The impugned Act had not the effect of substituting the Board as the creditor in place of the employee nor could it be said to be a legislation in respect of abandoned property.
Although by defining 'unpaid accumulation ' in the way it did the Legislature obviously intended that only such wages of the employees as were time barred should be taken by the State, it being well settled that the law of limitation only bars the remedy but does not extinguish the debt, sections 3(I), 5(2) and 17 of the Act must be held to have the effect of transferring to the Board the debts due by the appellant to its employees free from the bar of limitation.
Such a transfer can be valid only if it gives a complete discharge to the employer from the debts.
If it does not, the Act must be held to infringe article 19(1)(f) of the Constitution.
The Act contains no provision granting a discharge to the debtor.
The bar of limitation prescribed either by section 15 Of the Payment of Wages Act (Act IV Of 1936) or article 102 of the Limitation Act or the provisions of section 56 of the Contract Act, assuming they applied, could not give such a discharge.
Where the Statute deals with rights arising out of a contract and interferes with the rights of one of the parties to it, it must affect those of the other parties to it as well.
Consequently, the impugned Act which takes over the rights of the employees in respect of wages due to them without compensation and is, therefore unconstitutional, as contravening article 19(1)(f) or Art 31(2) of the Constitution, would be unconstitutional as regards the appellant as well.
The purpose of a legislation relating to abandoned property must be, in the first instance, to safeguard the property in the interest of the true owner and thereafter, in absence of any claim, the taking over of it by the State.
The impugned Act which vests the property absolutely in the State without any regard for the claims of the true owner cannot be said to be a law relating to abandoned property.
I43 1124 Connecticut Mutul Life Insurance Company vs Moore, ; , Anderson National Bank vs Luckett, ; and Standard oil Company vs New Jersey, ; , referred to.
As regards the fines mentioned in section 3(2)(a) of the Act the appellant must be held to be a bare trustee under section 8 of the Wages Act having no beneficial interest in fund created by that Act, and, consequently, sections 3(I) and 3(2)(a) of the Act cannot contravene article 31(2) Or article 19(1)(f) of the Constitution.
Nor could it be said that the Act by extending the circle of beneficiaries had encroached on the rights of the employees of the appellant.
These sections must, therefore, be held to be constitutionally valid.
|
Civil Appeal No. 150 of 1963.
Appeal by special leave from the judgment and decree dated January 9, 1962 of the Calcutta High Court in Appeal from Original Decree No. 48 of 1961.
N.C. Chatterlee, R.K. Garg, S.C. Agarwal, M.K. Rarnatnurthi and D.P. Singh, for the appellant.
M.C. Setalvad and B.P. Maheshwari, for the respondent.
October 10, 1963.
The Judgment of the Court was delivered by RAGHUBAR DAYAL J.
Raj Kishore Tewari, appellant in this appeal by special leave, was occupying certain premises as sub tenant of Susil Chandra Banerjee, under a registered lease dated April 10, 1954.
His tenancy commenced from April 1, 1954.
The rent fixed was Rs. 220 per mensem.
Subsequent 123 ly it was reduced to Rs. 205 by an agreement dated June 9, 1954.
The tenancy was monthly.
Susil Chandra Banerjee was the tenant of Govindaram Bhansali from September 15, 1943, at a monthly rental of Rs. 153 plus certain other charges.
On June 16, 1955, the landlord obtained a decree of ejectment against Susil Chandra Banerjee.
In view of sub section
(2) of section 13 of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950 (Act XVII of 1950), hereinafter called the Act, the appellant became the tenant of the landlord after the determination of the tenancy of Susil Chandra Banerjee.
On March 19, 1957, the land lord respondent gave a notice to the appellant asking him to deliver possession of the premises on the expiry of the last day of April 1957, on the ground that he, being the statutory tenant, had not paid rents to him since June 16, 1955, and, as such, was not entitled to any protection under the West Bengal Premises Tenancy Act, 1956 (Act XII of 1956).
Subsequently, on June 10, 1957, the respondent instituted the suit for ejectment of the appellant from the premises.
The suit was resisted by the appellant on various grounds.
His defence was however struck off due to certain default.
Ultimately, the suit was decreed on December 15, 1959.
An appeal to the High Court was unsuccessful.
The High Court refused to give leave to appeal to this Court.
Thereafter, the appellant obtained special leave from this Court and filed the appeal.
The only point urged for the appellant is that the notice of ejectment dated March 19, 1957, was invalid in view of the fact that under the law the notice must be to require the appellant to deliver possession on the expiry of the month of tenancy, that the tenancy was from the 16th of a month as the decree for ejectment against the tenant of the first degree was passed on June 16, 1955, and that this notice required the delivery of possession on the expiry of the last day of April.
We may say that this point was not raised in the written statement.
It was however allowed to be raised in the appellate Court but was repelled.
124 The only point to determine in this appeal is the date from which the tenancy of the appellant vis a vis the respondent commenced.
The relevant portion of sub s.(2) of section 13 of the Act is: "(2) Where any premises or any part thereof have been or has been sub let by 'a tenant of the first degree ' or by a tenant inferior to a tenant of the first degree ', as defined in explanation to sub section (1), and the sub lease is binding on the landlord of such last mentioned tenant, if the tenancy of such tenant in either case is lawfully determined otherwise than by virtue of a decree in a suit obtained by the landlord by reason of any of the grounds specified in clause (h) of the proviso to sub section (1) of section 12, the sub lessee shall be deemed to be a tenant in respect of such premises or part, as the case may be, holding directly under the landlord of the tenant whose tenancy has been determined, on terms and conditions on which the sub lessee would have held under the tenant if the tenancy of the latter had not been so determined.
" There is nothing in these provisions which should persuade us to hold, as urged for the appellant, that the sub tenant becomes a tenant of the landlord from the date on which the tenancy of the tenant against whom a decree for ejectment is passed is determined.
The provisions only lay down that the sub tenant would become the tenant of the landlord if the tenancy in chief is determined lawfully.
On the other hand, this sub section lays down that the subtenant would be tenant on the terms and conditions on which the sub lessee would have held under the tenant if the tenancy of the tenant had not been determined.
This means that the terms and conditions of the tenancy between the erstwhile sub tenant and the landlord continue to be the same which were the terms and conditions of the sub tenancy.
Such terms and conditions of the tenancy in the case of the appellant were that he was to be a monthly tenant on the payment of a certain rent and that his tenancy was to 125 commence from the first day of April 1954.
It is clear therefore that his tenancy was by the calendar month.
It commenced on the first day of the month and expired on the last day of the month.
This period of monthly tenancy was in no way affected by the provisions of sub section
(2) of section 13 whose effect was simply this that the sub tenant instead of being sub tenant of the tenant who had been ejected, got a direct connection with the landlord and became his tenant in chief or, as the Act describes, tenant in the first degree.
The statutory provision just brought about a change in the landlord of the sub tenant.
The proprietor landlord took the place of the tenantin chief from whom the sub tenant had secured the tenancy.
We are therefore of opinion that the High Court was right in rejecting the contention of the appellant with respect to the invalidity of the notice for ejectment dated March 19, 1957.
The result is that the appeal fails and is dismissed with costs.
Appeal dismissed.
| The appellant was a sub tenant of S on a monthly basis commencing from April 1, 1954.
S was the tenant of the Respondent from September 15, 1943 on a monthly rental.
On June 16, 1955, the respondent obtained a decree of ejectment against section In view of sub s(2) of section 13 of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950, the appellant became the tenant of the respondent after the determination of the tenancy of section The respondant gave a notice to the appellant asking him to deliver possession of the premises on the expiry of the last day of April 122 1957, since he being a statutory tenant had not paid rent since June 16, 1955.
The respondant instituted a suit for ejectment, which was decreed, and an appeal to the High Court by the appellant was unsuccessful.
On appeal by special leave, it was contended that the notice was invalid for under the law the notice must be to require the appellant to deliver possession on the expiry of the month of tenancy, that the tenancy was from the 16th of a month as the decree for ejectment against S was passed on June 16, 1955 and that this notice required the delivery of possession on the expiry of the last day of April.
Held: The contention was untenable and rightly rejected by the High Court.
The provisions of Sub section
(2) of section 13 of the West Bengal Rent Control (Temporary Provisions) Act, 1950 only lay down that the sub tenant would become the tenant of the landlord if the tenancy in chief is determined, on the same terms and conditions on which the sub lessee would have held under the tenant if the tenancy of the tenant had not been determined.
This means that the terms and conditions of the tenancy between the erstwhile sub tenant and the landlord continue to be the same which were the terms and conditions of the sub tenancy.
The period of monthly tenancy commencing from the first of the month and expiring on the last day of the month, was in no way affected by the provisions of Sub section
(2) of section (13) whose effect was simply that the sub tenant instead of being sub tenant of the tenant who had been ejected, got a direct connection with the landlord and became his tenant in chief.
|
vil Appeal Nos. 1668 and 1669 of 1988.
From the Judgment and Order dated 29.4.1988 of the Madras High Court in W.R. Nos. 469 and 488 of 1988.
Soli J. Sorabjee, V.C. Mahajan, C.A. Sundaram, U.A. Rana, M. Mudgal, Ms. Indu Malhotra, C.V. Subba Rao, A. Mariar Autham, Aruna Matbur, N.N. Sharma, Jose Varghese, Bhagwan Das, R. Mohan, R.A. Perumal and A.V. Rangam for the appearing parties.
The Judgment of the Court was delivered by K. JAGANNATHA SHETTY, J.
These appeals by leave are from the judgment of the Division Bench of the Madras High Court revoking the 'U Certificate ' issued to a Tamil film called "Ore Oru Gramathile" (In one Village) for public exhibition.
Civil Appeal Nos.1668 and 1669 of 1988 are by the producer of the film and the Civil Appeal nos.13667 and 133668 of 1988 are by the Union of India.
He apprehends that she would not be able to get admission to college because she belongs to a Brahmin community.
He seeks advice from his close friend Devashayam, a Tehsildar.
The Tehsildar who otherwise belongs to a very poor family and whose father was working in a local Church responds with gratitude.
He divises a method to help Gayathri because it was through Sastry 's father that he got proper education and rose to become a Tahsildar.
He prepares a false certificate showing Gayathri as Karuppayee belonging to an Adi Dravida Community and as an orphan.
He issues the certificate under the reservation policy of the Government for the benefit of 'backward commu nities ' identified on caste consideration.
On the basis of the false certificate, Karuppayee gets admitted to college and enters I.A.S. witness to this arrangement is the brother in law of Tahsildar called Anthony who later turns out to be a villain of the piece.
"Years later, Karuppayee, who was working in Delhi is sent to a rural village called Annavayil as a Special Offi cer for flood relief operations.
Her father, Shankara Sastry happens to work in the same village as Block Development Officer.
However, both of them pretend not to recognise each other.
Karuppayee takes her work seriously and improves the living conditions of people to such an extent that she is held by them in high esteem.
By a coincidence, after the death of the Tahsildar, Anthony comes to live in the same village and recognises Karuppayee.
He starts blackmailing her and threatens to reveal the fraudulent means by which she got the caste certificate.
His attempt is to extract money from her frequently.
One evening when he visits Karup payee 's house, he is confronted by Shankara Sastry who puts a halt to his blackmailing.
Later Anthony dies of sudden heart attack but not before he informs the Government about the facts relating to Karuppayee.
Upon preliminary enquiry, the Government suspends both Karuppayee and her father and eventually they are put on trial in the Court.
The people of the village resentful of the action taken against Karuppayee rise as one man and demonstrate before the Court in a peace ful manner for her release.
They also send petitions to the Government."
"Karuppayee and her father admit in the Court the fact of their having obtained the false caste certificate but they attribute it to circumstances resulting by Government reservation policy on caste basis.
They say that they are prepared to undergo any punishment.
They contend hat some politicians are exploiting the caste consideration and that would be detrimental to national integration.
They also argue that the reservation policy should not be based on caste, but could be on economic backwardness.
Just about the time when the judgment is to be pronounced the Court re ceives intimation from Government that in the light of petitions received from the public, the case against Karup payee and her father stands withdrawn.
Karuppayee goes back to her Government job with jubilent people all round.
" 210 This is the theme of the picture presented.
As usual, it contains some songs, dance and side attractions to make the film more delectable.
On August 7, 1987, the producer applied for certificate for exhibition of the film.
The examining committee upon seeing the film unanimously refused to grant certificate.
The appellant then sought for review by a Revising Committee which consisted of nine members.
This Committee reviewed the film.
Eight members were in favour of grant of certificate and one was opposed to it.
The Chairman of the Censor Board however, referred the film to Second Revising Committee for review and recommendation.
The 'U ' certificate means for unrestricted public exhibition as against 'A ' certificate restricted to adults only.
The minority expressed the view that the film is treated in an irresponsible manner.
The reservation policy of the Govern ment is projected in a highly biased and distorted fashion.
They have also stated that the so called appeal in the film "India is One" is a hollow appeal, which in effect touches caste sensitivity of the Brahmin forward caste.
One of the members felt that the impact of the film will create law and order problem.
Another member said that the film will hurt the feelings and sentiments of certain sections of the public.
But the majority opined that the theme of the film is on the reservation policy of the Government suggesting that the reservation could be made on the basis of economic backwardness.
Such a view could be expressed in a free country like India, and it did not violate any guideline.
On December 7, 1987, 'U ' certificate was granted for the exhibition of the film which was challenged before the High Court by way of writ petitions.
The writ petitions were dismissed by the Single judge, but the Division Bench upon appeal allowed the writ petitions and revoked the certifi cate.
The producer of the film and the Government of India by obtaining leave have appealed to this Court.
The film has since been given National Award by the Directorate of Film Festival of the Government of India.
In these appeals, the fundamental point made by Mr. Soli Sorabjee, learned counsel for the producer is about the freedom of free expression guaranteed under our Constitution even for the medium of 211 movies.
The counsel argued that the opinion on the effect of the film should not be rested on isolated passages disre garding the main theme and its message.
The Film should be judged in its entirety from the point of its overall impact on the public.
The writings of the film must be considered in a free, fair and liberal spirit in the light of the freedom of expression guaranteed under our Constitution.
The counsel said that the Court is not concerned with the cor rectness or legality of the views expressed in the film and the Court cannot limit the expression on any general issue even if it is controversial.
Mr. Mahajan for the Union of India supported these submissions.
Mr. Varghese learned counsel for the contesting respondents did not dispute most of the proposition advanced for the appellants.
He was, however, critical about the manner in which the reservation policy of the Government has been condemned and the events and characters shown in the film.
He contended that they are depicted in a biased manner and reaction to the film in Tamil Nadu is bound to be volatile.
Before examining these rival contentions, a few general observations may be made as to the utility of movies and the object of the film Censors Board.
The motion pictures were originally considered as a form of amusement to be allowed to titillate but not to arouse.
They were treated as mere entertainment and not an art or a means of expression.
This theory was based on the concept that motion picture was a business "pure and simpe originated and conducted for prof it, like other spectacles.
" It was considered strictly as an "amusement industry".
It was not without significance since there were no talking pictures then.
The talking pictures were first produced in 1926, eleven years after the Mutual decision (Encyclopedia Britinnica) (1965 Vol.
15 p. 902).
The later decisions of the American Supreme Court have therefore declared that expression by means of motion pictures is included within the free speech and free press guaranty of the First Amend ment.
(See Burstyn vs Wilso, ; The First Amend ment to the U.S. Constitution provides: "Congress shall make no law . abridging the freedom of speech, or of the press." This Amendment is absolute in terms and it contains no exception for the exercise of the fight.
Heavy burden lies on the State to justify the interference.
The judicial decisions, however, limited the scope of restriction which the State could impose in any given circumstances.
The danger rule was born in Schenek vs United States, 249 U.S. 47 (1919).
Justice Holmes for a unanimous court, evolved the test of "clear and present danger".
He used the danger test to 212 determine where discussion ends and incitement or attempt begins.
The core of his position was that the First Amend ment protects only utterances that seeks acceptance via the democratic process of discussion and agreement.
But "Words that may have all the effect of force" calculated to achieve its goal by circumventing the democratic process are however, not so protected.
The framework of our Constitution differs from the First Amendment to the U.S. Constitution.
Article 19(1)(a) of our Constitution guarantees to all citizens the right to freedom of speech and expression.
The freedom of expression means the right to express one 's opinion by words of mouth, writing, printing, picture or in any other manner.
It would thus include the freedom of communication and the right to propagate or publish opinion.
The communication of ideas could be made through any medium, newspaper, magazine or movie.
But this right is subject to reasonable restrictions on grounds set out under Article 13(2) of the Constitution.
The reason able limitations can be put in the interest of sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, deceny or morality or in relation to contempt of court, defamation or incitement to an offence.
The Framers deemed it essential to permit imposition of reasonable restrictions on the larger interests of the community and country.
They intended to strike a proper balance between the liberty guaranteed and the social interest specified under Article 19(2).
(See Santokh Singh vs Delhi Administration, ; This is the difference between the First Amendment to the U.S. Constitution and Article 19(1)(a) of our Constitu tion.
The decisions bearing on the First Amendment are, therefore, not useful to us except the broad principles and the purpose of the guaranty.
Movie doubtless enjoys the guaranty under Article 19(1)(a) but there is one significant difference between the movie and other modes of communication.
The movie cannot function in a free market place like the newspaper, magazine or advertisement.
Movie motivates thought and action and assures a high degree of attention and retention.
It makes its impact simultaneously arousing the visual and aural senses.
The focusing of an intense light on a screen with the dramatizing of facts and opinion makes the ideas more effective.
The combination of act and speech, sight and sound in semi darkness of the theatre with elimination of all distracting ideas will have an impact in the minds of spectators.
In some cases, it will have a complete and im 213 mediate influence on, and appeal for every one who sees it.
In view of the scientific improvements in photography and production the present movie is a powerful means of communi cation.
It is said: "as an instrument of education it has unusual power to impart information, to influence specific attitudes towards objects of social value, to affect emo tions either in gross or in microscopic proportions, to affect health in a minor degree through sleep disturbance, and to affect profoundly the patterns of conduct of chil dren." (See Reader in Public Opinion and Communication Second Edition by Bernard Betelson and Morris Janowitz p. 390).
The authors of this Book have demonstrated (at 391 to 401) by scientific tests the potential of the motion pic tures in formation of opinion by spectators and also on their attitudes.
These tests have also shown that the effect of motion pictures is cumulative.
It is proved that even though one movie relating to a social issue may not signifi cantly affect the attitude of an individual or group, con tinual exposure to films of a similar character will produce a change.
It can, therefore, be said that the movie has unique capacity to disturb and arouse feelings.
It has as much potential for evil as it has for good.
It has an equal potential to instil or cultivate violent or good behaviour.
With these qualities and since it caters for mass audience who are generally not selective about what they watch, the movie cannot be equated with other modes of communication.
It cannot be allowed to function in a free market place just as does the newspapers or magazines.
Censorship by prior restraint is, therefore, not only desirable but also neces sary.
Here again we find the difference between the First Amendment to the U.S. Constitution and Article 19(1)(a) of our Constitution.
The First Amendment does not permit any prior restraint, since the guaranty of free speech is in unqualified terms.
This essential difference was recognised by Douglas, J., with whom Black, J., concurred in Kingsley Corporation vs Regents of the University of New York, at 1522.
In holding that censorship by "prior restraint" on movies was unconstitutional, the learned Judge said: "If we had a provision in our Consti tution for "reasonable" regulation of the press such India has included in hers, there would be room for argument that censorship in the interests of morality would be permissi ble.
But its language, in terms that are absolute is utterly at war with censorship.
214 Different questions may arise as to censorship of some news when the nation is actually at war.
But any possible exceptions are extremely limited.
" The ("The Act") which permits censorship on movies is a comprehensive enactment.
Section 3 of the Act provides for constitution of Board of Film Cen sors.
Section 4 speaks of examination of films.
A film is examined in the first instance by an Examining Committee.
If it is not approved, it is further reviewed by a Revising Committee under Section 5.
Section 5A states that if after examining a film or having it examined in the prescribed manner, the Board considers that the film is suitable for unrestricted public exhibition, such a certificate is given which is called 'U ' certificate.
Section 5(a) provides principles for guidance in certi fying films.
It is significant to note that Article 19(2) has been practically read into Section 5(B)(1).
Section 5(C) confers right of appeal to Tribunal against refusal of certificate.
Under Section 6, the Central Government has revisional power to call for the record of any proceeding in relation to any film at any stage, where it is not made the subject matter of appeal to the Appellate Tribunal.
Under Section 8 of the Act, the Rules called the Cine matograph (Certification) Rules 1983 have been framed.
Under Section 5(B)(2) the Central Government has prescribed cer tain guidelines for the Censors Board.
Guideline (1) relates to the objectives of film censorship.
The Board shall ensure that: (a) the medium of film remains responsible and sensi tive to the values and standards of society; (b) artistic expression and creative freedom are not unduly curbed and (c) censorship is responsive to social change
Guideline (2) requires the Board to ensure that: (i) anti social activities such as violence not glorified or justified; (ii) the modus operandi of criminal or other visuals or words likely to incite the commission of any offence are not depicted; (iii) pointless or avoidable scenes of violence, cruelty and horror are not shown; (iv) human sensibilities are not offended by vulgarity, obscenity and depravity; (vi) the sovereignty and integrity of India is not called in question; (vii) the security of the State is not jeopardised or endangered; (viii) friendly relations with foreign states are not strained; and (ix) Public Order is not endangered.
Guideline (3) also requires the Board to ensure that the film: (i) 215 is judged in its entirety from the point of view of its overall impact and; (ii) is examined in the light of contem porary standards of the country and the people to whom the film relates.
It will be thus seen that censorship is permitted mainly on social interest specified under Article 19(2) of the Constitution with emphasis on maintenance of values and standards of society.
Therefore, the censorship by prior restraint must necessarily be reasonable that could be saved by the well accepted principles of judicial review.
In K.A. Abbas vs Union of India, ; a Constitution Bench of this court considered important ques tions relating to pre censorship of cinematograph films in relation to the fundamental right of freedom of speech and expression.
K.A. Abbas, a noted Indian journalist and film producer produced a short documentary film called "A tale of Four Cities".
In that film he sought to contrast the self indulgent life of the rich in Metropolitan cities with the squalor and destitution of labouring masses who helped to construct the imposing buildings and complexes utilised by the rich.
The film also goes on to explore the theme of exploitation of women by men, dealing in particular prosti tution.
Abbas applied to the Board of Film Censors for a 'U ' certificate, permitting unrestricted exhibition of the film.
He was informed by the regional officer that the Examining Committee had provisionally concluded that the film should be restricted to adults.
The Revising Committee concurred in this result, whereupon Abbas, after exchanging correspond ence with the Board, appealed to the Central Government.
The Government decided to grant 'U ' certificate provided that the scenes in the red light district were deleted from the film.
Abbas challenged the action of the Board mainly on four issues out of which two did not survive when the Solic itor General stated before the Court that the Government would set on foot legislation to effectuate the policies at the earliest possible date.
The two issues which survived thereupon were: (a) that pre censorship itself cannot be tolerated under the freedom of speech and expression; (b) that even if it were a legitimate restraint on the freedom, it must be exercised on very definite principles which leave no room for arbitrary action
The standards that we set out for our censors must make a 216 substantial allowance in favour of freedom thus leaving a vast area for creative art to interpret life and society with some of its foibles along with what is good.
We must not look upon such human relationships as banned in toto and for ever from human thought and must give scope for talent to put them before society.
The requirements of art and litera ture include within themselves a comprehen sive, view of social life and not only in its ideal form and the line is to be drawn where the average man moral man begins to feel embarassed or disgusted at a naked portrayal of life without the redeeming touch of art or genius of social value.
If the depraved begins to see in these things more than what an average person would, in much the same way as it is wrongly said, a Frenchman sees a woman 's legs in everything, it cannot be helped.
In our scheme of things ideas having redeeming social or artistic value must also have impor tance and protection for their growth." Recently, Sabyasachi Mukharji, J., in Ramesh vs Union of India, which is popularly called "TAMAS" case laid down the standard of judging the effect of the words or expression used in the movie.
The learned Judge quoting with approval of the observation of Vivian Bose, J., as he then was, in the Nagpur High Court in the case of Bhagwati Charun Shukla vs Provincial Govern ment, AIR 1947 Nag 1 (at 676): "That the effect of the words must be judged from the standards of reasonable, strong minded, firm and courageous men, and not those of weak and vacillating.
This in our opinion is the correct approach in judging the effect of exhibition of a film or of reading a Book.
It is the standard of ordinary reasona ble man or as they say in English law, "the man on the top of a Clampham omnibus.
" We affirm and reiterate this principle.
The standard to be applied by the Board or courts for judging the film should be that of an ordinary man of common sense and pru dence and not .that of an out of the ordinary or hypersensi tive man.
We, however, wish to add a word more.
The Censors Board should exercise considerable circumspection on movies affecting the morality or decency of our people and cultural heritage of the country.
The moral values in particular, should not be allowed to be sacrificed in the guise of social change or cultural assimilation.
Our country has had the distinction of giving birth to a galaxy of great sages and thinkers.
The great thinkers and sages through their life and conduct provided principles for people to follow the path of fight conduct.
There have been continuous efforts at rediscovery and reiteration of those principles.
Adi guru Shankaracharya, Ramanujacharya, Madhwacharya, Chaitanya Maha Prabhu, Swami Ram Krishan Paramhansa, Guru Nanak Sant Kabir and Mahatma Gandhi, have all enlightened our path.
If one prefers to go yet further back, he will find "TIRUKKURAL" the ethical code from Tiruv alluvar teaching which is "a general human morality and wisdom.
" Besides, we have the concept of "Dharam" (right eousness in every respect) a unique contribution of Indian civilization to humanity of the world.
These are the bedrock of our civilization and should not be allowed to be shaken by unethical standards.
We do not, however, mean that the Censors should have an orthodox or conservative outlook.
Far from it, they must be responsive to social change and they must go with the current climate.
All we wish to state is that the Censors may display more sensitivity to movies which will have a markedly deleterious effect to lower the moral standards of those who see it.
Krishna Iyer, J., in Rajkapoor vs Laxman, ; in words meaningful expressed similar thought.
The learned Judge said (at 5 17): "The ultimate censorious power over the Censors belongs to the people and by indifference, laxity or abetment, pictures which pollute public morals are liberally certified, the legislation, meant by Parlia ment to protect people 's good morals, may be sabotaged by statutory enemies within." With these prefactory remarks, let us now turn to the reasons which weighed with the High Court to revoke the 'U ' certificate and rule out the film altogether.
The High Court has found fault with the Constitution of the First Revising Committee.
It has held that the Revising Committee was constituted hurriedly and its constitution by "delegate Board Member" was illegal and without authority of law.
The Committee also showed unusual favour to the producer by reviewing the film with hot haste.
In the absence of a First Revising Committee having come into existence as known to law; the High Court said that the constitution of the Second Revising Committee was invalid and inoperative.
We do not think that the High Court was justified in reaching this conclusion.
Under the rules, the Regional Officer shall appoint an 218 Examining Committee to examine the film.
The Rule 22 inter alia, states that after screening the film, the Examining Officer shall within three working days send the recommendations of all the members of the Examining Committee to the Chairman.
Rule 24(1) provides for constitu tion of a Revising Committee.
It states that on receipt of the record referred to in rule 22, the Chairman may, of his own motion or on the request of the applicant, refer the movie to a Revising Committee.
In the instant case, the Chairman did not constitute the first Revising Committee but a member of the Board did.
The question is whether the member of the Board was competent to constitute the Revising Committee.
Our attention was drawn to the Government order dated January 21, 1987 made under sec.
7(B) of the Cinemato graph Act.
The order reads; "No. 803/1/86 F(C) Government of India Ministry of Human Resource Development Department of Culture.
New Delhi, the 21st January, 1987 ORDER In exercise of the powers conferred by Sec.
7B of the Cinamatograph Act, 1952 (37 of 1952) (hereinafter referred to as the said Act), the Central Government hereby directs that any power, authority or jurisdiction exercisable by the Board of film, Certifica tion (hereinafter referred to as the Board) in relation to matters specified in sec.4, sub secs (3) and (4) of sec.5, sec.5 A and sec.7C of the said Act shall also be exercisable subject to the condition given below by the following members of the Board at the Regional Office indicated against each, with immediate effect and until further orders: 1.
Shri Samik Banerjee Calcutta 2.
Ms. Maithreyi Ramadhurai Madras 3.
Dr. B.K. Chandrashekar Bangalore XXX XXXX XXX XXXX" This order clearly states that the power of the Board shall also be exercisable by the specified members within their regional office.
For 219 Madras region Ms. Maithrayi Ramadhurai has been constituted to exercise such powers.
It cannot be contended that the Central Government has no power to delegate the powers or to issue the said order.
7(B) empowers the Central Government to issue general or special order directing that any power, authority or jurisdiction exercisable by the Board under the Act shall be exercisable also by the Chairman or any other member of the Board.
The section further provides that anything done or action taken by the Chairman or other member specified in the order shall be deemed to be a thing done or action taken by the Board.
From the provisions of sec.7B read with the Government order dated January 21, 1987, it becomes clear that the constitution of the First Revising Committee by the member at the Madras Regional Office is not vulnerable to any attack.
It is legally justified and unassailable.
The conclusion to the contrary reached by the High Court is apparently unwarranted.
We also do not find any justification for the observa tion of the High Court that there was unusual favour shown to the producer by the First Revising Committee in reviewing the film.
It is true that the film was reviewed within 2 3 hours of the presentation of the application.
But there is no reason to attribute motives either to members of the Committee or to the producer.
In matters of certification of films, it is necessary to take prompt action by the respec tive authorities.
The producer who has invested a large capital should not be made to wait needlessly.
He has a statutory right to have the validity of ,the film determined in accordance with law.
It would be, therefore, proper and indeed appreciative if the film is reviewed as soon as it is submitted.
There are two other side issues which may be disposed of at this stage.
The scene with song No. 2 in reel No. 3 and the comments by the heroine of looking at the photo of Dr. Ambedkar, have come under serious criticism.
It is said that the song has the effect of spreading 'Kulachar ' which is 'Poisonous message ' to the depressed classes not to educate their children.
The complaint, if true, is serious.
We, therefore, gave our anxious consideration to the grievance.
We, as did the High Court, viewed the movie.
The cobbler sings the song in question with his grandson who is eager to go to school.
The song contains references to Kamaraj, Anna and MGR who without even college education became Chief Ministers.
The cobbler asks the grandson: "What are you going to achieve by education? and don 't forsake the profes sion you know and you can educate yourself as a cobbler.
" 220 While these and other exchanges are going on between the cobbler and grandson, the heroine comes and insists that the boy should go to school.
They agree to her suggestion with "Vanakkam, Vanakkam".
The song thus ends with a happy note and the cobbler agrees to send his grandson to school.
It is true as pointed out by counsel for the respondents that one or two references in the song are not palatable, but we should not read too much into that writing.
It is not proper to form an opinion by dwelling upon stray sentences or isolated passages disgregarding the main theme.
What is significant to note is that the cobbler ultimately does not insist that his grandson should continue the family pursuits.
He accepts the suggestion made by the heroine.
It is, therefore, wrong to conclude that the song was intended to convey poisonous message against the inter ests of depressed classes.
The criticism on the alleged comments on Dr. Ambedkar is equally unsustainable.
The confusion perhaps is due to the pronounced accent of an English word in the course of Tamil conversation.
The matter arises in this way: Sastry shows the photograph of Dr. Ambedkar to heroine and enquires whether she likes it.
Then she makes certain comments.
According to the High Court, she states, "Dr. Ambedkar worked for the poor.
Not for 'par '.
If she states like that, it is certainly objectionable since Dr. Ambedkar did everything to have an egalitarian society.
But while viewing the film, we could not hear any such word used by the heroine.
On the other hand, we distinctly noted her saying, "Dr. Ambedkar worked for the poor, Not for power. "
This being the remark there is no basis for the criticism of the High Court.
The last complaint and really the nub of the case for the respondent is about the reel No. 14 covering the court scene where Karuppayee and Sastry are prosecuted for offence of obtaining a false caste certificate.
The reel No. 14 contains almost a dialogue between the prosecution lawyer and Karuppayee.
She criticises the reservation policy of the Government.
She states that during the British regime, the people enjoyed educational freedom, and job opportunities which were based on merit criteria and not vote caste in a particular constituency.
Then the prosecution lawyer puts a question "why do you regret this Madam? Was not 'Bharat Matha ' under shackles then?" She replies: "You are right.
Now "Bharat Matha" is under animals ' hands.
" On a further question from the prosecutor she explains that her reference to 'animals ' hands is only to those who incite caste, language and communal fanaticism, thus confusing people and making it their profession.
She also states that it is the Government and its laws that have made her and her father to tell a lie.
The presiding Judge interrupts with a question: "What is wrong in the Government approach? Can you elaborate?" She replies: "That it is wrong not to give credence to her merit and evaluate the same on the basis of her caste and such evaluation would put a bar on the progress." She goes on to explain "Your laws are the barri ers Sir.
You have made propaganda in nook and corner stating "Be an Indian, Be an Indian".
And if I proudly say I am an Indian then the Government divides saying 'no, no, no, . .
You are a Brahmin, you are Christian, you are a Muslim.
It is the Government that divides.
" Then she puts a question to herself: "What is the meaning of "Be an Indian?" She explains that it must be without caste, creed and commu nal considerations, from Kashmir to Kanyakumari, the country must be one.
She then blames the Government with these words: "The Government in dealing with all has no one face.
Take any application form they want to know your caste and religion.
When all are Indians where is the necessity for this question.
You have divided the people according to caste.
Then if you reel off on "National integration" will not the public laugh.
" As to the reservation policy to those who are backward she says: "On Gods name, I have no objection in providing all concessions to those who are backward.
The list of those belonging to forward sections and backward sections could be prepared on the basis of economic considerations.
And those below a specified limit of income be included in the back ward list.
" How did the High Court look at it? On the remark of heroine as to the situations that existed during British administration, the High Court observed thus: "It is preposterous and offensive to claim that education was independent when India was under British rule and that, after independ ence it is not there.
" The High Court also said: "That any denigration of Rule of law would never 222 bring orderly society.
To preach that it is only law that prompted them to utter falsehood and in its absence they would not have done it is a wrong way presenting a view point.
" As to the allegations that 'Bharat Matha ' is now in the hands of politicians, who are instigating the masses on the basis of caste and language, etc., the High Court remarked: "If this sort of decrying India for being an independent nation is to be projected in films repeatedly, then in course of time, citizens will loose faith in the integrity and sovereignty of India.
With this sort of glori fication made, how could it be claimed that the film stands for national integration.
That was why one Member rightly said that it is a hollow claim.
Hence Guideline 2(vi) and (vii) are contravened.
" On the total impact of the film, the High Court observed: "That certain peculiar factors will have to be taken into account because of guidelines 3(i) and 3(ii).
This film is in Tamil.
It deals with reservations now extended to large sections of people on a particular basis, and who have suffered for Centuries, and at a time when they have not attained equality and when their valuable rights which are secured under the Constitution is attempt ed to be taken away, they get agitated.
This film taken in Tamil for Tamil population on being screened in Tamil Nadu, will certainly be viewed in the background of what had hap pened in Tamil Nadu during the preceding four decades, and the reactions are bound to be volatile.
" We find it difficult to appreciate the observations of the High Court.
We fail to understand how the expression in the film with criticism of reservation policy or praising the colonial rule will affect the security of the State of sovereignty and integrity of India.
There is no utterance in the film threatening to overthrow the Government by unlawful or unconstitutional means.
There is no talk for secession either.
Nor there is any suggestion for impairing the inte gration of the country.
All that the film seems to suggest is that the existing method of reservation on the basis of caste is bad and reservation on the basis of economic back wardness is better.
The film also deprecates exploitation of people on caste considerations.
This is the range and rigor of the film.
The High Court, however, was of opinion that public reaction to the film, which seeks to change the system of reservation is bound to be volatile.
The HIgh Court has also stated that people of Tamil Nadu who have suffered for centuries will not allow themselves to be deprived of the benefits extended to them on a particular basis.
It seems to us that the reasoning of the High Court runs a foul of the democratic principles to which we have pledged ourselves in the Constitution.
In democracy it is not necessary that every one should sing the same song.
Freedom of expression is the rule and it is generally taken for granted.
Every one has a fundamental right to form his own opinion on any issue of general concern.
He can form and inform by any legitimate means.
The democracy is a Government by the people via open discussion.
The democratic form of government itself demands its citizens an active and intelligent participation in the affairs of the community.
The public discussion with people participation is a basic feature and a rational process of democracy which distinguishes it from all other forms of government.
The democracy can neither work nor prosper unless people go out to share their views.
The truth is that public discussion on issues relating to administration has positive value.
When they ignore it, they go inside themselves and find out what is there.
They elaborate their prejudice instead of increasing their knowledge.
In Maneka Gandhi vs Union of India, [1978] 2 SCR 621 Bhagwati J., observed at 696: "Democracy is based essentially on free debate and open discussion, for that is the only corrective of Government action in a democratic set up.
If democracy means government of the people by the people.
it is obvious that every citizen must be entitled to participate in the democratic process and in order to enable him to intelligently exercise his right of making a choice, free and general discussion of public matters is absolutely essential." 224 The learned judge in Naraindas vs State of Madhya Pradesh,[1974] 3 SCR 624 while dealing with the power of the State to select text books for obligatory use by students said at 650: "It is our firm belief, nay, a con viction which constitutes one of the basic values of a free society to which we are wedded under our Constitution, that there must be freedom not only for the thought that we cherish, but also for the thought that we hate.
As pointed out by Mr. Justice Holmes in Abramson vs United States, ; "The ultimate good desired is better reached by free trade in ideas the best test of truth is the power of the thought to get itself accept ed in the competition of the market.
" There must be freedom of thought and the mind must be ready to receive new ideas, to critically analyse and examine them and to accept those which are found to stand the test of scrutiny and to reject the rest.
" In Sakal vs Union of India, ; at 866, Mudholkar, J. said: "This Court must be ever vigilent in guarding perhaps the most precious of all the freedoms guaranteed by our Constitution.
The reason for this is obvious.
The freedom of speech and expression of opinion is of para mount importance under a democratic Constitu tion which envisages changes in the composi tion of legislatures and governments and must be preserved."
Movie is the legitimate and the most important medium in which issues of general concern can be treated.
The producer may project his own messages which the others may not ap prove of.
But he has a right to "think out" and put the counter appeals to reason.
It is a part of a democratic give and take to which no one could complain.
The State cannot prevent open discussion and open expression, however, hateful to its policies.
As Professor Fraund puts it: "The State may not punish open talk, however, hateful, not for hypocritical reason that Hyde Parks are a safety valve, but because a bit of sense may be salvaged from the odious by minds striving to be rational, and this precious bit will enter into the amalgam which we forge." (Paul A. Freund On Understanding the Supreme Court 26 (1950).
"When men differ in opinion, both sides ought equally to have 225 the advantage of being heard by the public." (Benjamin Franklin).
If one is allowed to say that policy of the government is good, another is with equal freedom entitled to say that it is bad.
If one is allowed to support the governmental scheme, the other could as well say, that he will not support it.
The different views are allowed to be expressed by proponents and opponents not because they are correct, or valid but because there is freedom in this country for expressing even differing views on any issue.
Alexander Meiklejohn perhaps the foremost American philosopher of freedom of expression, in his wise little study neatly explains: "When men govern themselves, it is they and no one else who must pass judgment upon unwisdom and unfairness and danger.
And that means that unwise ideas must have a hearing as well as wise ones, unfair as well as fair, dangerous as well as safe, an Ameri can as well . American . .
If then, on any occasion in the United States it is allowable, in that situation, to say that the Constitution is a good document it is equally allowable, in that situation, to say that the Constitution is a bad document.
If a public building may be used in which to say, in time of war, that the war is justified, then the same building may be used in which to say that it is not justified.
If it be publicly argued that conscription for armed service is moral and necessary, it may likewise be publicly argued that it is immoral and unnecessary.
If it may be said that American political insti tutions are superior to those of England or Russia or German, it may with equal freedom, be said that those of England or Russia or Germany are superiors to ours.
These conflict ing views may be expressed, must be expressed, not because they are valid, but because they are relevant . .
To be afraid of ideas, any idea, is to be unfit for self government." (Political Freedom (1960) at 27).
He argued, if we may say so correctly, that the guaran tees of freedom of speech and of the press are measures adopted by the people as the ultimate rulers in order to retain control over the Government, the people 's legislative and executive agents.
Brandies, J., in Whitney vs California, ; ,375 8 (1927) propounded probably the most attractive free speech theory: 226 " . . that the greatest menace to freedom is an inert people; that public dis cussion is a political duty; . .It is hazardous to discourage thought, hope and imagination; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones.
" What Archibald Cox said in his article though on "First Amendment" is equally rele vant here: "Some propositions seem true or false beyond rational debate.
Some false and harm ful, political and religious doctrine gain wide public acceptance.
Adolf Hitler 's brutal theory of a 'master race ' is sufficient exam ple.
The liberty cannot be denied to some ideas and saved for others.
The reason is plain enough: no man, no committee, and surely no government, has the infinite wisdom and disinterestedness accurately and unselfishly to separate what is true from what is debata ble, and both from what is false.
To license one to impose his truth upon dessenters is to give the same licence to all others who have, but fear to lose, power.
The judgment that the risks of suppression are greater than the harm done by bad ideas rests upon faith in the ultimate good sense and decency of free peo ple." (Society Vol.
24 p. 8 No. 1 November/December 1986).
The problem of defining the area of freedom of expres sion when it appears to conflict with the various social interests enumerated under Article 19(2) may briefly be touched upon here.
There does indeed have to be a compromise between the interest of freedom of expression and social interests.
But we cannot simply balance the two interests as if they are of equal weight.
Our commitment to freedom of expression demands that it cannot be suppressed unless the situations created by allowing the freedom are pressing and the community interest is endangered.
The anticipated danger should not be remote, conjectural or far fetched.
It should have proximate and direct nexus with the expression.
The expression of thought should be intrinsically dangerous to the public interest.
227 Our remarkable faith in the freedom of speech and ex pression could be seen even from decisions earlier to our Constitution.
There the accused was convicted under sec.124(A) of Penal Code for making a speech recommending 'Bolshevik ' form of Government to re place the then existing form of Government in Calcutta.
While setting aside the conviction and acquitting the ac cused, Lord Williams, J., who delivered the judgment ob served (at 637): "All that the speakers did was to encourage the youngmen, whom he was addressng, to join the Bengal Youth League and to carry on a propaganda for the purpose of inducing as large a number of people in India as possible to become supporters of the idea of communism as represented by the present Bolshevik system in Russia.
It is really absurb to say that speeches of this kind amount to sedition.
If such were the case, then every argument against the present form of Government and in favour of some other form of Government might be allowed to lead to hatred of the Government, and it might be suggested that such ideas brought the Govern ment into contempt.
To suggest some other form of Government is not necessarily to bring the present Government into hatred or contempt.
" To the same effect is the observation by the Bombay High Court in Manohar vs Government of Bombay, AIR 1950 BOM 210.
There the writer of an article in a newspaper was convicted for an offence under the Press (Emergency Powers) Act, 1931, for incitement to violence.
The writer had suggested the people to follow the example of China by rising against Anglo American Imperialism and their agents.
He had also suggested his readers to pursue the path of violence, as the Chinese people did, in order that Anglo American Imperialism should be driven out of this country.
Chagla C.J., while quashing the conviction said (at 2 13): "It is true that the article does state that the working class and the coiling masses can get hold of power through the path of revolution alone.
The revolution preached is not necessarily a violent revolution.
228 XXX XXX XXX XXX As the writer has not stated in this article that the toiling masses should take up arms and fight for their rights and thus achieve a revolution we refuse to read this expression as inciting the masses to violent methods.
" In Niharendu Dutt Majumdar vs Emperor, AIR 1942 FC 23, the Federal Court examined the effects of a vulgar and abusive outburst against the Government made by the accused for which he was convicted under Rule 34 of the Defence of India Rules.
Gwyer, C.J., while acquitting the person commented more boldly (at 27): "There is an English saying that hard words break no bones; and the wisdom of the common law has long refused to regard an actionable any words which, though strictly and liberally defamatory, would be regarded by all reasonable men as no more than mere vulgar abuse.
XXX XXX XXX XXX XXX The speech now before us is full of them.
But we cannot regard the speech, taken as a whole as inciting those who heard it, even though they cried "shame shame" at intervals, to attempt by violence or by public disorder to subvert the Government for the time being established by law in Bengal or elsewhere in India.
That the appellant expressed his opin ion about that system of Government is true, but he was entitled to do so,; and his reference to it were, we might almost say, both common place and in common form, and un likely to cause any Government in India a moments uneasyness.
His more violent outburst were directed against the then Ministry in Bengal and against the Governor in Bengal in his political capacity but we do not feel able to say that his speech whatever may be thought of the form in which it was expressed, exceed ed the legal limits of comment or criticism."
" Even the European Court 's approach in protecting the freedom of expression is not different although they have the extensive list of circumstances for limiting the free dom.
Article 10 of the European Convention of Human Rights and Fundamental Freedom provides: 229 "(1) Every one has the right to freedom of expression.
(2) The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, condi tions, restrictions or penalties as are pre scribed by law and are necessary in a demo cratic society in the interests of national security, territorial integrity or public safety, for the prevention of health or mor als, for the protection of the reputation or rights of others, for preventing the disclo sure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
However, the European Court in Handyside vs United Kingdom, [1976] EHRR/737 observed at 754; "The court 's supervisory functions oblige it to pay the utmost attention to the principles characterising a 'democratic socie ty '.
Freedom of expression constitutes one of the essential foundations of such a society, one of the basic conditions for its progress and for the development of every man.
Subject to Article 10(2), it is applicable not only to 'information ' or 'ideas ' that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend shock or disturb the State or any sector of the population.
Such are the demands of that pluralism, tolerance and broadminded ness without which there is no 'democratic society '.
This means, amongst other things, that every 'formality ', 'condition ', 'restric tion ' or 'penalty ' imposed in this sphere must be proportionate to the legitimate aim pur sued.
" This takes us to the validity of the plea put forward by the Tamil Nadu Government.
In the affidavit filed on behalf of the State Government, it is alleged that some organisa tions like the Tamil Nadu Scheduled Castes/Scheduled Tribes People 's Protection Committee, Dr. Ambedkar People 's Move ment, the Republican Party of India have been agitating that the film should be banned as it hurt the sentiments of people belonging to Scheduled Caste/Scheduled Tribes.
It is stated that the General Secretary of the Republican Party of India has warned that his party would not hesitate to damage the cinema 230 theatres which screen the film.
It is further alleged that there were some group meetings by Republican .Party members and Dr. Ambedkar People 's Movement with their demand for banning the film.
With these averments it was contended for the State that the exhibition of the film.
will create very serious law and order problem in the State.
We are amused yet troubled by the stand taken by the State Government with regard to the film which has received the National Award.
We want to put the anguished question, what good is the protection of freedom of expression if the State does not take care to protect it? If the film is unobjectionable and cannot constitutionally be restricted under Article 19(2), freedom of expression cannot be sup pressed on account of threat of demonstration and proces sions or threats of violence.
That would tentamount to negation of the rule of law and a surrender to black mail and intimidation.
It is the duty of the State to protect the freedom of expression since it is a liberty guaranteed against the State.
The State cannot plead its inability to handle the hostile audience problem.
It is its obligatory duty to prevent it and protect the freedom of expression.
In this case, two Revesing Committees have approved the film.
The members thereof come from different walks of life with variegated experiences.
They represent the cross sec tion of the community.
They have judged the film in the light of the objectives of the Act and the guidelines pro vided for the purpose.
We do not think that there is any thing wrong or contrary to the Constitution in approving the film for public exhibition.
The producer or as a matter of fact any other person has a right to draw attention of the Government and people that the existing method of reserva tion in education institutions overlooks merits.
He has a right to state that reservation could be made on the basis of economic backwardness to the benefit of all sections of community.
Whether this view is right or wrong is another matter altogether and at any rate we are not concerned with its correctness or usefulness to the people.
We are only concerned whether such a view could be advocated in a film.
To say that one should not be permitted to advocate that view goes against the first principle of our democracy.
We end here as we began on this topic.
Freedom of ex pression which is legitimate and constitutionally protected, cannot be held to ransom, by an intolerant group of people.
The fundamental freedom 231 under Article 19(1)(a) can be reasonably restricted only for the purposes mentioned in Articles 19(2) and the restriction must be justified on the anvil of necessity and not the quicks and of convenience or expediency.
Open criticism of Government policies and operations is not a ground for restricting expression.
We must practice tolerance to the views of others.
Intolerance is as much dangerous to democracy as to the person himself.
In the result, we allow these appeals, reverse the judgment of the High Court and dismiss the writ petitions of the respondents.
In the circumstances of the case, however, we make no order as to costs.
Y.L. Appeals allowed.
| The petitioner companies viz., Veilore Electric Corpora tion Ltd., Kumbakonam Electric Supply Corporation Ltd. and Nagapatam Electric Supply Corporation Ltd. were grantee of licences under the by the Government of the then Presidency of Madras for supply of electrical energy in their respective areas.
In exercise of its power under Section 4(1) of the Madras Electricity Supply Undertakings (Acquisition) Act, 1954, the State Government issued orders dated 12.1.1968 taking over the undertakings of the Petitioner Companies viz., Kumbakonam Electricity Supply Company and Nagapatam Electric Supply Company declaring that their undertakings shall vest in the Government with effect from the dates specified in their respective orders.
These two petitioner companies filed writ petitions in the High Court of Madras challenging the constitutional validity of the 1954 Act, which were dismissed.
The Writ Appeals filed by them were also dismissed by a Division Bench of the High Court.
Thereafter appeals were filed in this Court, which were however, later withdrawn.
Though proceedings for the acquisition of the undertak ings of these two companies had been initiated under the 1954 Act but full effectuation thereof had been interrupted by the interlocutory orders made by the courts staying delivery of possession of the undertaking.
Subsequently the Tamil Nadu Private Electricity Supply Undertakings (Acquisition) Act, 1973 came into force which, inter alia, nul 477 lifted the effect of the action taken under the the State Government issued fresh orders under Section 4(1) of 1973 Act declaring that the undertakings of these two petitioner companies shah vest in Government with effect from 1.12.1973.
A similar order was passed b.v the State Government under Section 4(1) of 1973 Act in respect of the third petitioner company viz. Vellore Electric Corporation Ltd., declaring that the undertaking of this company shall vest in the Government with effect from 7.1.1974.
By an order dated 2.2.1978 the State Government also rejected the application of the petitioner Vellore Electric Corporation seeking a change in the basis for determination of amount from basis A to basis B under the 1974 Act.
Writ Petitions were filed in this Court under Article 32 of the Constitution by the three affected companies chal lenging the constitutional validity of the Tamil Nadu Pri vate Electricity Supply Undertakings (Acquisition) Act, 1973, as well as the orders made under Section 4(1) on the ground that the 'Act ', which envisages the acquisition of the Electric Supply Undertakings of petitioners as violative of Articles 14, 19(1)(f), 19(1)(g) and 31 of the Constitu tion.
Dismissing the Writ Petitions, HELD: 1.
The electricity generated and distributed by the undertakings of the petitioner companies constitute "material resources of the community." for the purpose and within the meaning of Article 39(b).
1.1 The idea of distribution of the material resources of the community in Article 39(b) is not necessarily limited to the idea of what is taken over for distribution amongst the intended beneficiaries.
That is one of the modes of "distribution".
Nationalisation is other mode.
1.2 On an examination of the scheme of the impugned law the conclusion becomes inescapable that the legislative measure is one of nationalisation of the undertakings and the law is eligible for and entitled to the protection of Article 31 C. 1.3 The economic cost of social and economic reform is, perhaps, amongst the most vexed problems of social and economic change and constitute the core element in National isation.
The need for constitutional immunities for such legislative efforts at social and economic 478 change recognise the otherwise unaffordable economic burden of reforms.
It is, therefore, not possible to divorce the economic consideration or components from the scheme of the nationalisation with which the former are inextricably integrated.
The financial cost of a scheme of nationalisa tion lies at its very heart and cannot be isolated.
Both the provisions relating to the vestitute of the undertakings in the State and those pertaining to the quantification of the 'Amount ' are integral and inseparable parts of the integral scheme of nationalisation and do not admit of being consid ered as distinct provisions independent of each other.
Tinsukia Electric Supply Co. Ltd. vs
State of Assam, [1989](3) S.C.C. 709; applied. 1.4 In view Of the fact that what was acquired in the instant case were not merely "choses in action" but the undertakings themselves, it is not necessary to go into the question whether a "choses in action" can at all be ac quired.
State of Madhya Pradesh vs Ranojirao Shinde & Anr., ; and Madan Mohan Pathak vs Union of India & Ors., ; ; referred to.
The subject matter of the grant in relation to dis tribution in the community of such material resources be it electricity, water, gas or other essential amenities of life has a special nature.
New Orleans Gaslight Co. vs Louisiane Light & Heat Producing & Mfg. Co., ; ; The Okara Electricity Supply Co. Ltd. vs The State of Punjab, A.I.R. 1960 S.C. 284; referred to.
2.1 The impugned law is within the legislative compe tence of the State Legislature and such State law, with the Presidential assent, prevails and is not over borne by the Central law.
The impugned State law, by its 22nd section, expressly excludes the operation of any provisions of the Electricity Act, 1910, in so far as such provision is incon sistent with the provisions of the Stare Law.
The Constitu tional immunity afforded to the State law prevents any challenge to it on grounds based on Article 14 or 19. 3.
There is nothing unreasonable about the provision which merely recognises the obligation of a licensee to account for its acts in relation to a property which has already vested in Government.
There 479 fore Section 4 which pertains to the liability of the licen see to account to Government in respect of possession of and any benefit derived from the undertaking after the date of the vesting is not arbitrary and unconstitutional.
The deduction envisaged by Section 10(d) from the amount payable towards and on account of arrears of elec tricity charges payable by the licensee to the Government or the Electricity Board as the case may be for the supply of Electricity made by them to the licensee is a legitimate item of deduction.
It cannot be held to be arbitrary on the apprehension that even a disputed and untenable claim in that behalf becomes entitled to deduction.
Section 13(1)(e) makes such a dispute as one of the arbitrable disputes and no deduction of a disputed claim can be justified by the Government if the arbitrator who is or has been a District Judge or a retired High Court Judge holds that the deduction is unjustified.
If a debt is deducted from the "amount", the debt is satisfied and is extinguished and no further debt remains outstanding to get itself attached to and becomes an encum brance upon the substituted security viz., the 'amount '.
Section 6(2) and Section 10(e) must be construed harmonious ly and in a reasonable manner.
There is no scope for any apprehension of a possible double recovery of the same debt.
Therefore the Act cannot be challenged on the ground of possible double recovery of the same debt under Section 6(2) and Section 10(e).
The measure of the reimbursement for an asset with held by the licensee is the corresponding expenditure to be incurred by Government for replacement which, in eminently conceivable cases, could be the market value of the asset which is so withheld by the licensee and which has to be replaced to keep the undertaking functioning.
Therefore Section 10(f) cannot be held to be arbitrary on the ground that it is an instance of application of double standards because while recovery of "market value" is sought to be made for non delivery of the item whereas in computing the "amount" only the "book value" of such "property" or "right" is taken.
It cannot be said that the accredited representative is, under Section 8(1), given only a month 's time from the date of his appointment to signify the choice under Section 5 as to the basis of determination of the amount.
Section 8(1) also provides 'or such further time as may be granted by the Government '.
If the exercise of this power is arbi trary or capricious the licensee has remedies in Administra tive 480 Law.
But the provision itself cannot be held to be bad or invalid on the ground that time granted under the Section to signify choice under Section 5 is unreasonably short.
The order of the Government dated 2.2.1978 rejecting the application of the Petitioner, Vellore Electric Corpora tion and refusing a change in the basis for determination of amount from basis A to basis B is set aside and the Govern ment is directed to consider the matter afresh.
|
Civil Appeal No. 862 of 1968.
Appeal by special leave from the Judgment and order dated the 6th December, 1964 of the Punjab & Haryana High Court in Civil Writ No.587 of 1964.
G. L. Sanghi and Girish Chandra for the Appellants.
section N. Anand for the Respondents.
79 The Judgment of the Court was delivered by GUPTA, J.
This appeal by special leave arises out of a proceeding under the (hereinafter referred to as the Act).
The only question for determination in the appeal is whether the deletion of rule 30 of the Displaced Persons (Compensation and Rehabilitation) Rules, 1955 (hereinafter referred to as the Rules) with effect from August .
13, 1963 made any difference to the rights of the parties concerned in this case.
The question arises on the following facts.
Shop No. 2 in Tripri township in Patiala which is a government built property was allotted in 1950 to the first respondent Khillu Ram jointly with one Tara Chand and his son by the Custodian of Evacuee Property.
In 1951 both Tara Chand and his son Left Tripri to settle elsewhere and the second respondent Teju Mal applied for allotment of their share in the shop to him.
By his order dated November 11, 1959 the Managing officer, Tripri and Rajpura, held that Teju Mal and Khillu Ram were in possession of the shop as allottees respectively of 2/3 and 1/3 shares therein.
Aggrieved by the order of the Managing officer, the first respondent Khillu Ram preferred an appeal to the Settlement officer, Jullundur, who by his order dated February 12, 1962 set aside the order of the Managing officer and remanded the case for a fresh decision under rule 30 of the Rules.
Rule 30 is in these terms: " Payment of compensation where an acquired evacuee property which is an allotable property is in occupation of more than one person.
If more persons than one holding verified claims are in occupation of any acquired evacuee property which is an allotable property, the property shall be offered to the person whose gross compensation is the biggest and the other persons may be allotted such other acquired evacuee property which is allotable as may be available :" This rule has a proviso and an explanation none of which is relevant for the present purpose.
After remand the case was transferred to the Assistant Settlement officer who found that the gross compensation payable to the first respondent was higher than that of the rival claimant, Teju Mal and in terms of rule 30 allotted the entire shop to the first respondent by his order dated November 27, 1962.
A revision petition against this order made by Teju Mal was dismissed by the Deputy Chief Settlement Officer on September 5, 1963.
In the meantime, as stated already, rule 30 had been abrogated with effect from August 13, 1963.
Teju Mal then moved the Central Government under sec.
33 of the Act.
Teju Mal 's application under sec.
33 was heard on February 25, 1964.
The effect of deletion of rule 30 was that the properties which were in the occupation of more than one person were to be put to sale.
The Joint Secretary to the Government of India who heard the application under sec.
33 held that the case should be governed by the Rules as amended in 1963 excluding rule 30, and accordingly by his order dated February 80 26, 1964 he set aside the order allotting the shop to the first respondent Khillu Ram and directed the property in question to be put to sale.
The first respondent filed a writ petition in the Punjab High Court for quashing the order passed under sec.
The Punjab High Court held that the subsequent deletion of rule 30 did not affect the existing rights of the first respondent and quashed the order of the Central Government made under sec.
The correctness of this ` order is challenged in the appeal before us which has been preferred by the Union of India and several other authorities concerned with the administration of the .
The only submission made by Mr. Sanghi appearing for the appellants is that rule 30 was a rule of procedure and its deletion in 1963 affected only the mode of proceeding by which the rival claims of Khillu Ram and Teju Mal was to be decided.
It was argued that amendment of the Rules in 1963 deleting rule 30 being procedural in character would affect the proceeding between the two respondents then pending, and their rights, it was submitted, should therefore be decided on the footing as if Rule 30 had never been in force.
We are unable to accept this submission.
The Act provides for the payment of compensation and rehabilitation grants to displaced persons and matters connected therewith.
Under the Act a displaced person has a right to get compensation in the form and manner prescribed by the Act and the Rules framed thereunder.
Rule 30 is in Chapter V of the Rules which deals with payment of compensation by transfer of acquired Evacuee Properties.
Though the shop in question is a government built property and not an acquired evacuee property, rule 43 in Chapter VI of the Rules which provides for payment of compensation by transfer of government built property says that the "pro visions of rules 25 to 34 shall, so far as may be, apply to the transfer of any Government built property or Government plot under this Chapter".
Rule 30 prescribes that where the property is in the occupation of more persons than one, it shall be offered to the person whose gross compensation is the highest.
Clearly rule 30 deals not with the form of procedure but with a substantive right conferred by the Act on displaced persons.
Mr. Sanghi described this rule as only a mode or manner of payment of compensation.
This may be so, but the form and manner in which compensation is payable is also part of the right to get compensation.
Rule 30 is not an instrument or machinery for asserting the right conferred by the Act; it does not regulate the procedure for settlement of disputes concerning that right.
Therefore, the deletion of the rule in 1963 cannot affect pending actions.
The rights of Khillu Ram and Teju Mal must be governed by rule 30 which was in force in 1959 when the dispute arose and was decided by the Managing officer.
A full Bench of the Punjab and Haryana High Court in Pt.
Dev Raj vs Union of India & ors.(1) considering the same question which arises for determination in this appeal, held that "a displaced person has a right to the determination of his claim for compensation and its satisfaction in the 1) A. I. R. 81 prescribed manner and this is a substantive right", that so far as rule 30 is concerned "the right which a displaced person claims under this rule . cannot be adversely affected or taken away unless it is expressly stated in the amending provision, or the language of the Act This, in our opinion, is a correct statement of the law.
Neither by express words nor by implication the amendment of the Rules in 1963 deleting rule 30 has been made retrospective in operation.
For these reasons the appeal fails and is dismissed but without any order as to costs.
V.P.S. Appeal dismissed.
| Rule 30 of the Displaced Persons (Compensation and Rehabilitation) Rules, 1955, prescribes that where property is in the occupation of more persons than one, it shall be offered to the person whose gross compensation is the highest.
A particular property was allotted under this rule to the first respondent.
A revision petition by the rival claimant, was dismissed ill September, 1963.
But on August 13, 1963, the rule had been abrogated.
The effect of the deletion was that a property in the occupation of more than one person was to be put to sale.
In an application under section 33 of the , by the rival claimant, the appellant held that the case should be governed by the rules as amended, that is, excluding r. 30, and set aside the order allotting the premises to the first respondent.
A writ petition filed by the first respondent in the High Court was allowed.
In appeal to this court, the appellant contended that the rule was one of procedure and its deletion affected only the mode of proceeding by which the rival claim was to be decided.
Dismissing the appeal, ^ HELD: The rights of the two rival claimants must be governed by r. 30 which was in force when the dispute arose and was decided by the authorities under the Act.
[80 G H].
(a) Rule 30 deals, not with form of procedure, but with the substantive right conferred by the Act on displaced persons.
The Act provides for the payment of compensation and rehabilitation grants to displaced persons and matters connected therewith.
Rule 30 is in Chapter V of the Rules which deals with payment of compensation by transfer of acquired evacuee properties.
Assuming that the rule is only a mode or manner of payment of compensation, the form and manner in which compensation is payable is also a part of the right to get compensation.
The rule is not an instrument of machinery for asserting a right conferred by the A t. it does not regulate the procedure for settlement of disputes concerning that right.
Therefore, the deletion of the rule in 1963 cannot affect pending actions, [80 D G].
(b) Neither by express words nor by implication the amendment of the rules in 1963 deleting r. 30 has been made retrospective in operation.
[81 A B].
Dev Raj vs Union of India & ors.
, A.I.R. 1974 Pun 65, approved.
|
iminal Appeal No. 142 & 205 of 1973.
Appeals from the Judgment and Order dated the 12th April 1973 of the Allahabad High Court in Govt.
Appeal No. 2847/72 and by Special Leave from the Judgment and order dated the 12th April, 1973 in Crl.
A. No. 1954 of 1972 and Ref.
No. 87 respectively.
D. B. Mukherjee, K. C. Agarwal, M. M. L. Srivastava and E. C., Agarwala, for the appellant.
D. P. Uniyal and O. P. Rana, for the respondent.
The Judgment of the Court was delivered by CHANDRACHUD, J.
These two appeals by special leave arise out of the judgment of the High Court of Allahabad dated April 12, 1975.
Three brothers by the name of Sia Ram, Shri Ram and Ram Chandra; a woman by the name of Violet; and her son Ramesh were tried by.
9 L319Sup.
CI/75 624 the learned Sessions Judge Farrukhabad, in connection with the murder of one Kunwar Singh.
The learned Judge convicted Sia Ram under section 302, Penal Code and sentenced him to death.
Violet was convicted, under section 302 read with section 109 and was sentenced to imprisonment for life.
The remaining three accused were acquitted by the Sessions Court.
Sia Ram and Violet challenged their conviction by filing an appeal in the High Court while the State of U.P. filed an appeal against the acquittal of Shri Ram, Ram Chandra and Ramesh.
The High Court confirmed the conviction and sentence of Sia Ram and Violet.
It dismissed the appeal filed by the State Government except in regard to Shri Ram whom it convicted under section 302 read with section 109.
He was sentenced to imprisonment for life.
The incident in question took place at about 5 p.m. on October 20, 1970.
The deceased Kunwar Singh was a practising lawyer and after finishing his work for the day he left the Fatehgarh court along with the brother lawyers, Brijendra Singh Yadav and Om Prakash Dubey.
They were proceeding on their bicycles and as they reached a spot near Barhpur Block, Violet is alleged to have shouted : "The Vakil has come".
Sia Ram and his companions who were hiding behind a Shisham tree came out and confronted Kunwar Singh and his companions.
Sia Ram, Ram Chandra and Shri Ram are alleged to have been armed with guns while Ramesh and an unknown person were carrying hockey sticks.
Sia Ram fired a shot from a point blank range as a result of which Kunwar Singh fell down.
All the accused thereafter ran away.
Brijendra Singh removed Kunwar Singh to a nursing home but the latter succumbed to his injury at 5 25 p.m.
The other lawyer, Om Prakash Dubey, contacted the District Magistrate and the Superintendent of Police vainly attempting to have the dying declaration of Kunwar Singh recorded.
A person called Soney Lal, also alleged to be an eye witness, lodged the First Information Report at the police station at about 5 45 p.m.
The Superintendent of Police K. N. Daruwala reached the spot of occurrence shortly before 6 p.m. R. N. Singh, the Sub Inspector, held an inquest on the dead body of Kunwar Singh and sent it for postmortem examination.
Dr. Rizvi who performed the postmortem examination found.
a firearm wound on the left upper chest of the deceased.
There were tattooing, and scorching marks around the injury.
The evidence of Brijendra Singh Yadav (P.W. 4) is clear on the part played by the appellant Sia Ram.
That evidence shows that Sia Ram fired a shot from his gun as a result of which Kunwar Singh fell down and died within half an hour, Brijendra Singh 's evidence has been accepted by both the courts and we are unable to see any valid reason for rejecting it.
Brijendra Singh is a natural witness for he, like the deceased Kunwar Singh, had left the court after the court hours.
Apart from the fact that he was a colleague of the deceased he was not in any manner concerned with the deep seated enmity between the appellant Sia Ram and the deceased.
The order of conviction and,sentence in regard to Sia Ram must therefore be confirmed.
625 Different considerations, however, arise in regard to Violet.
The only part attributed to her is that on seeing Kunwar Singh she shouted: "The Vakil has come".
It is difficult to believe that Violet was assigned the particular role, especially when Sia Ram and his companions could themselves have detected the presence of Kunwar Singh more easily and with lesser ado.
Violet 's brother Ramesh, a lad of 16, could have with greater ease and effectiveness played the swift role of alerting the assailants of Kunwar Singh.
But the Sessions Court and the High Court have accepted the evidence that Violet did give the particular shout and in accordance with our usual practice we would not like to take a different view of these simple facts.
The question which then arises for consideration, a question to which the Sessions Court and the High Court have not paid enough attention, is whether the only inference which arises from the fact that violet gave the particular shout is that by so doing, she intended to facilitate the murder of Kunwar Singh,, Section 107 of the Penal Code which defines abetment provides to the extent material that a person abets the doing of a thing who "Intentionally aides, by any act or illegal omission, the doing of that thing.
" Explanation 2 to the section says that "Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitates the commission thereof, is said to and the doing of that act.
" Thus, in order to constitute abetment, the abettor must be shown to have "intentionally" aided the commission of the crime.
Mere proof that the crime charged could not have been committed without the interposition of the alleged abettor is not enough compliance with the requirements of section 107.
A person may, for example, invite another casually or for a friendly purpose and that may facilitate the murder of the invite.
But unless the invitation was extended with intent to facilitate the commission of the murder, the person inviting cannot be said to have abetted the murder.
It is not enough that an act on the part of the alleged abettor happens to facilitate the commission of the crime.
Intentional aiding and therefore active complicity is the gist of the offence of abetment under the, third paragraph of section 107.
Apart from the words attributed to Violet, there is nothing at all to show that she was aware of the nefarious design of Sia Ram and his associates.
Violet who was working as a Nurse with a doctor was friendly with Sia Ram who was his compounder but that may rather explain why, if at all, she agreed to do as directed.
Learned counsel for the State contended that Sia Ram and his companions were carrying guns and hockey sticks and therefore she would know that they had all gathered to commit the murder of Kunwar Singh.
That is a far not a fair inference to draw.
We cannot heap one assumption on another to give, to Violet 's conduct a meaning which it does not naturally bear.
The words of Violet are at best in the nature, of a circumstance and they do not, without more, necessarily justify the inference that she was a party to the murderous design.
6 26 The High Court concluded on the complicity of Violet by a process of reasoning which does not commend to us.
It says "In case Smt.
Violet had not given intimation of the arrival of the advocate, the persons concealing themselves behind the SHISHAM tree may not have noticed the arrival of kunwar Singh in time to assault him.
In case the, accused were not assisted by Smt.
Violet, they would have to sit in such a manner that they could watch persons moving about on the road.
They could not have concealed their identity completely.
They could realise that if they were not assisted by Smt.
Violet and they had to act on their own, the deceased may notice their presence and may not proceed further.
In case the accused persons concealed themselves thoroughly, they may not notice the arrival of the deceased in time to successfully aim at him.
Assistance asked for and rendered by Smt.
Violet was real and valuable." This chain of reasoning contains a multiplicity of inferences hardly justified by the solitary circumstance that Violet informed Sia Ram and his colleagues of the presence of Kunwar Singh.
The High Court found fault with Violet for not having offered any explanation during the trial as to why she uttered the particular words.
This approach is impermeable.
The burden was on the prosecution to establish its case and no adverse inference could be raised against Violet for her failure to explain her utterance.
Besides, an accused cannot while being examined under section 342 of the Code of Criminal Procedure be subjected.
to cross examination and a bald assertion to explain a piece of conduct almost always fails to convince.
We are, accordingly, unable to agree with the High Court that Violet would not have announced the arrival of Kunwar Singh " unless she was aware that the accused persons were lying in wait on the other side of the road and it was necessary to inform them so that they might accomplish their aim".
In regard to Shri Ram, yet different considerations prevail because the High Court was dealing with an appeal against an order of acquittal in his favour.
There are certain important considerations which lend weight to the view of the trial court that it was unsafe to convict Shri Ram.
Shri Ram, along with Ram Chandra, had moved an application before the Additional District Magistrate (Judicial) who was conducting the committal proceedings that he was not known to the witnesses and therefore he should be put up for being identified in an identification parade.
The Public Prosecutor objected to that request.
The learned Magistrate upheld the objection and refused to direct that a parade be held.
The circumstance that Shri Ram had voluntarily accepted the risk of being identified, in a parade but was denied that opportunity was an important point in his favour.
The High 627 Court rejected it was inconsequential by observing that the oral testimony of witnesses even if not tested by holding an identification parade, can be made the basis of conviction if the request made by the accused is groundless and the witnesses knew the accused prior to the occurrence.
It is correct to say that no rule of law requires that the oral testimony of a witness should be corroborated by evidence of identification.
In fact, evidence of identification is itself a weak type of evidence.
But the point of the matter is that the court which acquitted Shri Ram was justifiably influenced by the consideration that though at the earliest stage he had asked that an identification parade be held, the demand was, opposed by the prosecution and the parade was there fore not held, That is not the only point in favour of Shri Ram.
Brijendra Singh Yadav who was riding on the Bicycle in the company of the deceased, Kunwar Singh did not implicate Shri Ram.
It is the other lawyer, Om Prakash Dubey, who stated in his evidence that Shri Ram was armed with a gun and he emerged from behind the Shisham trees after Violet gave the call.
Dubey is a practising lawyer and we will spare hard words.
But his evidence leaves much to be desired and, at the least, it shows that it would be unsafe to reply on his capacity or ability to identify Shri Ram.
In paragraph 4 of his evidence, repeated attempts were made by counsel for Shri tam to test the claim of Om Prakash Dubey that he knew Shri Ram and was therefore able to identify him.
Question after question put in cross examination was answered by the witness by saying either that he did not remember or that he did not know.
Dubey claimed that he had appeared for the complainant in a prosecution arising out of the murder of one Hari Singh in which Shri Ram figured as an accused.
There were two other accused in that case called.
Manphool ' and 'Balister.
Dubey admitted that he, could not say if.
he would be able to recognise Balister and that it was possible that he may not be able 'to recognise Manphool.
It is doubtful whether Dubey appeared in the case at all, which explains why he made the guarded statement that he.
had appeared on behalf of the complainant in so far as he could remember.
He was unable to say who had engaged him or who appeared the case along with him or who was examined as a witness in the case or who used to instruct him in the case.
Enveloped in this atmosphere of doubt, Dubey thought the better of it to say : "I think I had filed my Vakalatnama in that case".
The young Dubey had a standing of but 2 years in the District when he is supposed to have appeared for the complainant in the particular case.
It is unrealistic to assume that he was so flooded with work that he could remember no details of an important murder trial.
628 Soney Lal who gave the First Information Report.at the police station, also implicated.
Shri Ram but, apparently, the High Court was not impressed by his evidence.
has relied on the evidence of Om Prakash Dubey in order to hold that Shri Ram had played an important role in the murder of Kunwar Singh.
Considering the serious infirmities from which the evidence of Dubey suffers we are of the opinion that the High Court ought not to have interfered with the order of acquittal passed, by the trial.
court, in favour of Shri Ram.
Soney Lal 's evidence seems to us insufficient to sustain the conviction of Shri Ram.
In the result we dismiss the appeal of Sia Ram and confirm his conviction and sentence.
We allow the appeals of Violet and Shri Ram and acquit them.
These two shall be set at liberty forthwith.
V.M.K. Appeals partly allowed.
| The Regional Transport Authority granted a stage carriage permit to the respondent as against the appellant on the ground that the former was a single bus operator while the appellant was an operator having four stage carriage permits, including a stage carriage permit which was recently granted to him.
The State Transport Appellate Tribunal, on the other hand, took the view that the respondent did not have a pucca fire proof building for workshop,.
that it was immaterial whether the sector experience of the appellant was derived under a temporary permit or a permanent permit; that the appellant was entitled to two marks even though the experience gained by him was by operation of temporary permits, that the history sheet of the appellant was clean without any adverse remark and that since a portion of the route fell within the interior roads it was desirable in public interest to prefer "an experienced operator instead of single bus operator".
The Appellate Tribunal,.
therefore, found that the appellant had superior qualifications and was entitled to be preferred to others.
On a revision application under section 64B of the a single Judge of the High Court took the view that public interest required that in the socialist pattern of society monopoly should as far as possible be avoided and a smaller operator with one stage carriage permit should be preferred to a bigger operator having three or more stage carriage permits, that the appellant was a recent grantee of stage carriage permit; that a proper standard of comparison of the history sheets of the appellant and the respondent had not been made; and that the respondent was entitled to two marks on account of sector experience.
The order of the Regional Transport Authority granting permit to the respondent was, therefore, restored.
Allowing the appeal, HELD : (1) The High Court was not right in refusing two marks to the appellant.
Clause 3(c) of rule 155A provides that two marks shall be awarded to the applicant, who.
on the date of the consideration of the application by the Regional Transport Authority, has been plying a stage carriage permit on the entire route.
It does not contain any restriction that in order to be entitled ' to these two marks the applicant should have been plying on the route on the basis of a permanent permit.
What is material is that the applicant should have experience of plying on the route and this experience would be there whether plying is done on a temporary permit or a permanent permit.
[94G H] (2) The paramount consideration to be taken into account in determining as to which of the applicants should be selected for grant of permit always is public interest.
[95 B C] (3) The mere fact that an applicant has more than one permit or he is a recent grantee cannot by itself be regarded as a factor against him in the comparative scale.
Possession of more than one permit also cannot, by itself, divorced from other circumstances, be regarded as a disqualification.
[96 F; H] Ajantha Transports (P) Ltd. vs T. Y. K. Transports, ; , followed.
The High Court was in error in rejecting the claim of the appellant to the grant of permit by mechanically relying on the circumstance that the 92 appellant was a multi bus operator having four Stage carriage permits including a recent grant without considering how in the light of the other facts and circumstances, it was correlated to the question of public interest. ' The four stage carriage permits which the appellant had were not on the same route and there was no question of any monopoly being created in his favour if the permit applied for by him was granted.
The possession of more than one permit by the appellant was a circumstance in his.
favour because according to cl.
3(F) of rule 155A an applicant operating more than four stage carriages would be entitled to one mark.
[97B D] (4) The High Court was in error in holding that the same standard was not applied by the State Transport Appellate Tribunal in comparing the history sheets of the appellant and the respondents.
[97H] (5) In the instant case the, High Court overstepped the limits of the revisional jurisdiction and treated the revision application as if it were an appeal.
The jurisdiction of the High Court under section 64B is as severely restricted as that under section 115 of the Code of Civil Procedure and it is only where there is a jurisdictional error or illegality or material irregularity in the exercise of jurisdiction that the High Court can interfere under section 64B with an order made by the State Transport Appellate Tribunal.
[98D E]
|
Civil Appeal No. 303 of 1976.
Appeal by special leave from the Judgment and order dated the 30th October, 1974 of the Rajasthan High Court in D.B. Civil Special Appeal No. 247 of 1974.
Y.S. Chitale, Mrs. Sadhana Ramachandran & Parveen Kumar for the Appellant.
Badri Das Sharma for the Respondents Nos. 1 & 2.
The Judgment of the Court was delivered by BALAKRISHNA ERADI, J.
This appeal by special leave arises out of a writ petition filed by the appellant herein in the High Court of Rajasthan, challenging the legality of the action of the Rajasthan Public Service Commission in issuing of the appellant the Communication Annexure IV dated July 21, 1973, stating that the 446 appellant was not eligible for being considered for recruitment to the post of Lecturer in Forensic Medicine in the Government Medical Colleges in the state since he lacked the necessary academic qualifications specified in the advertisement and that consequently, the application of the appellant stood rejected.
There were also other incidental prayers in the writ petition for the issuance of an appropriate writ or direction to the Public Service Commission to refrain from finalising the selection without considering the case of the appellant, and for a direction being issued to the State Government of Rajasthan not to accept the recommendations of the Public Service Commission in making appointments to the post of Lecturer in Forensic Medicine to Medical Colleges in Rajasthan in case the appellant was not called for interview along with the other candidates.
A learned Single Judge of the High Court allowed the Writ petition holding that the Public Service Commission had acted illegally in treating the appellant as not possessing the requisite academic qualifications and in rejecting his candidature for the post of Lecturer in Forensic Medicine on the said ground.
The State of Rajasthan and the Rajasthan Public Service Commission carried the matter in appeal before a Division Bench of the High Court.
That appeal was allowed by a Division Bench by its judgment dated October 30, 1974, whereby the order passed by the learned Single Judge was set aside and the writ petition filed by the appellant was dismissed.
Aggrieved by the said decision, the appellant has preferred this appeal after obtaining special leave from this Court.
The appellant secured the M.B.B.S. Degree from the University of Rajasthan in the year 1954 and after undergoing houseman ship for one year, he was substantively appointed as Civil Assistant Surgeon in the Rajasthan State Medical Service with effect from May 26, 1956.
In 1962, the Rajasthan Medical Service was bifurcated into two branches, namely, (1) The Rajasthan Medical Service and (2) The Rajasthan Medical Service (Collegiate Branch).
Separate service rules known as the Rajasthan Medical Service (Collegiate Branch) Rules, 1962 (hereinafter called the Rules) were framed for the Collegiate branch and all appointments of teaching staff in the Government Medical Colleges in Rajasthan were thereafter governed by the said Rules.
Under the provisions of the Rules, the post of Lecturer is to be filled up only by direct recruitment.
It is laid down in Chapter IV of the Rules which prescribes the procedure for direct recruitment that the appointments are to be 447 made on the basis of selection by the State Public Service Commission.
Rule 12 lays down that "the candidate for direct recruitment to the post specified in Parts A, B and C of the Schedule shall possess such academic and technical qualifications and experience as is laid down, from time to time, by the Rajasthan University for the teaching staff in Medical Colleges".
The post of Lecturers is included in Part C of the schedule to the Rules.
Hence, for ascertaining the qualifications required for the post of Lecturer under the Rules one has to refer to the Rules relating to technical qualifications and experience laid down by the Rajasthan University for the teaching staff in Medical Colleges.
Clause (vii) of Ordinance No. 65 occurring in Chapter XX of the Handbook of the University of Rajasthan, Part II, Vol.
I, is the relevant provision wherein the University of Rajasthan has prescribed the academic and technical qualifications and experience required for eligibility for appointment as teachers in Medical Colleges.
That clause is in the following terms: "1.
All teachers must possess a basic University or equivalent qualification entered in Schedules to the , except in the non clinical departments of Antomy, Physiology, Biochemistry, Pharmacology, Microbiology where non medical teachers, to the extent of 30% of the total posts of the department may be appointed to posts other than that of the Director or Head of the Department, who must necessarily hold a recognised medical qualification.
Medical men must be registered under the State Central Medical Registration Act and non medical persons must be recognised as teachers with the University before appointments are made permanent.
All the teachers in Medical Colleges except Registrars and Demonstrators must possess the requisite post graduate qualification in their respective subjects.
50% of the time spent in recognised research under the Indian Council of Medical Research or a University or a Medical College, after obtaining the requisite Post graduate qualification be counted towards teaching experience for the post of Lecturer in the same or in allied subject 448 provided that 50% of the teaching experience shall be the regular teaching experience.
Equivalent qualification referred to above and in the recommendations below shall be determined by the University of Rajasthan.
In case of specialities under Medicine and Surgery the qualifications and experience should also be as scheduled below but in case the post has been advertised and suitable candidates are not available the qualifications can be reladed.
" This is followed by a tabular statement headed 'Requirements of Special Academic Qualifications and Teaching Experience '.
Column 1 of this table deals with the posts, Column 2 lays down the academic qualifications and Column 3 is about Teaching Experience.
The table has a number of sub headings according to the various specialities.
The speciality of Forensic Medicine is given at page 168 of the Handbook (1971 Edition).
The relevant provision regarding "Lecturer in Forensic Medicine" is as follows: "(d) Assistant M.D. (Path.), Two years Professor/ M.D. (Forensic of Medico Lecturer Medicine), Legal work.
Speciality Board of Pathology (USA), M.D./M.R.C.P./ F.R.C.P. (with Diploma D.F.M.), M.R.C.P. (with Forensic Medicine as Special Subject) or equivalent qualification or Post graduate degree or equivalent qualification in Medicine or Surgery.
" On March 3, 1972, the Rajasthan Public Service Commission (for short, the Commission) issued advertisements inviting appli 449 cations for the recruitment of two Lecturers in Forensic Medicine for Medical Colleges, Medical & Public Health Department in accordance with the Rules.
The appellant had, by then, obtained the M.D. Degree in Forensic Medicine from the University of Bihar, Muzaffarpur in 1970 and had been functioning as Lecturer in Forensic Medicine in one of the Government Medical Colleges in Rajasthan on a temporary and ad hoc basis from December 31, 1970 on wards.
In response to the aforesaid advertisement published by the Commission, the appellant applied for appointment to one of the two posts.
However, by the impugned letter (Annexure IV) dated July 21, 1973, issued by the Secretary of the Commission, the appellant was informed that his application for the post of Lecturer in Forensic Medicine was rejected since he did not possess the necessary academic qualification.
A representation made by the appellant to the Public Service Commission for reconsideration of the matter did not meet with any favourable response and hence the appellant approached the High Court by filing the writ petition under Article 226 of the Constitution out of which this appeal has arisen.
During the pendency of the writ petition, the Commission conducted the interview of the remaining candidates and selected respondents Nos. 3 and 4 for appointment to the two posts and on the basis of the said selection the State Government appointed respondents 3 and 4 as lecturers.
The appellant thereupon amended the writ petition by incorporating a further prayer that the High Court should issue an appropriate writ or direction cancelling the interview and selection conducted by the Commission as well as the consequential appointments given by the State Government to respondents 3 and 4 as Lecturers in Forensic Medicine.
The short point to be considered is whether the Commission was right in law in excluding the appellant from consideration on the ground that he did not possess the academic qualification prescribed by clause (vii) of Ordinance No. 65 of the Rajasthan University Ordinances for the post of Lecturer in Forensic Medicine.
The qualifications prescribed for the said post by clause (vii) of Ordinance No. 65 are: (1) A basic University (Degree ?) or equivalent qualification entered in Schedules to the .
450 (2) Registration under the State/Central Medical Registration Act.
(3) Post graduate qualification in the concerned subject.
(4) Two Years ' experience of Medico legal work.
The appellant is admittedly the holder of the basic Degree of M.B.B.S. from the Rajasthan University, which is a qualification entered in the First Schedule to the .
It is also not in dispute that he is duly registered under the Medical Registration Act.
The sole ground on which the appellant was treated by the Commission as ineligible for consideration was that the Post graduate degree in Forensic Medicine possessed by the appellant is not one awarded by the University of Rajasthan and the said Degree has also not been recognised by the University of Rajasthan as an equivalent qualification.
The University of Bihar at Muzaffarpur is one duly established by statute and it is fully competent to conduct examinations and award degrees.
The Degree of Doctor of Medicine (Forensic Medicine) M.D. (Forensic Medicine) of the University of Bihar is included in the Schedule to the as a degree fully recognised by the Indian Medical Council which is the paramount professional body set up by statute with authority to recognise the medical qualifications granted by any University or Medical Institution in India.
A Post graduate Medical Degree granted by a University duly established by statute in this country and which has also been recognised by the Indian Medical Council by inclusion to the Schedule of the Medical Council Act has ipso facto to be regarded, accepted and treated as valid throughout our country.
In the absence of any express provision to the contrary, such a degree does not require to be specifically recognised by other Universities in any State in India before it can be accepted as a valid qualification for the purpose of appointment to any post in such a State.
The Division Bench of the High Court was, in our opinion, manifestly in error in thinking that since the Post graduate degree possessed by the appellant was not one obtained from the University of Rajasthan, it could not be treated as a valid qualification for the purpose of recruitment in question in the absence of any specific order by the University of Rajasthan recognising the said degree or declaring it as an equivalent qualification.
It is common ground before us that the University of Rajasthan does not 451 conduct Post graduate examinations in the subject of Forensic Medicine and it does not award the degree of M.L. (Forensic Medicine).
In order that there should be scope for declaration of 'equivalence ' of a qualification obtained from another body, there should be a corresponding qualification that can be earned by virtue of passing an examination or test conducted by the concerned University.
There can be declaration of equivalence only as between a degree etc.
awarded by the concerned University and one obtained from a body different from the concerned University.
When the University of Rajasthan does not conduct any examination for the award of the degree of M.L. (Forensic Medicine), there cannot be any question of declaration of 'equivalence ' in respect of such a degree awarded by any University.
Unfortunately, the State Public Service Commission as well as the Division Bench of the High Court failed to notice this crucial aspect.
We may also point out that the declaration of 'equivalence ' referred to in Section 23A of the Rajasthan University Act as well as in clause (vii) of Ordinance No. 65 of the Rajasthan University Ordinances can only be in respect of qualifications other than basic or Post graduate degrees awarded by other statutory Indian Universities in the concerned subjects.
In the case of a Post graduate degree in the concerned subject awarded by a statutory Indian University, no recognition or declaration of equivalence by any other University is called for.
This is all the more so in the case of a medical degree basic as well as Post graduate that is awarded by a statutory Indian University and which has been specifically recognised by the Indian Medical Council.
Though a contention was taken by the respondents in the High Court as well as before us that the appellant did not also satisfy the requirement regarding "two years of Medico legal work", we don 't find any force in the said plea.
The certificates from the Principal and Heads of Departments of Forensic Medicine in the concerned Medical Colleges produced by the appellant in the High Court as annexures in his affidavit dated July 27, 1973 which are at pages 31 and 33 of the printed Paper Book, establish beyond doubt that the appellant had put in more than two years of Medico legal work in Dr. section N. Medical College and in the Dharbhanga Medical College, prior to the last date fixed by the Commission for receipt of the applications.
The conclusion that emerges from the aforesaid discussion is that the appellant was fully qualified for being considered for 452 appointment to the two posts of Lecturers in Forensic Medicine advertised by the Commission on November 16, 1972, and that the Commission acted illegally in treating the appellant as not being possessed of the requisite academic qualification and excluding him from consideration on the said ground.
Accordingly, we allow this appeal, set aside the judgment of the Division Bench of the High Court and restore the judgment of the learned Single Judge, subject to the modification that in carrying out the directions contained in the judgment of the learned Single Judge, the Commission should treat the appellant as a fully qualified candidate in the light of the finding recorded by us that at the relevant time the appellant possessed not merely the prescribed academic qualification but also the requisite experience of two years ' Medico legal work.
The appellant will get his costs throughout from respondents 1 and 2 in equal shares.
P.B.R. Appeal allowed.
| The qualifications prescribed for the post of lecturer in Forensic Medicine under the Rajasthan Medical Service were (i) a basic university degree or equivalent qualification entered in the schedules to the ; (ii) Registration under the State Central Medical Registration Act; (iii) Post Graduate qualification in the concerned subject and (iv) two years experience of medico legal work.
The appellant was the holder of a M.B.B.S. degree from the Rajasthan University which was a qualification entered the first schedule to the .
He was registered under the Medical Registration Act.
He possessed a post graduate degree in Forensic Medicine from the University of Bihar.
The respondent 's application for the post of lecturer in Forensic Medicine was rejected by the State Public Service Commission on the ground that the post graduate degree in Forensic Medicine possessed by him was not one awarded by the University of Rajasthan and that the degree which he possessed had also not been recognised by the University of Rajasthan.
A single Judge of the High Court allowed the appellant 's writ petition impugning the order of the State Public Service Commission.
On appeal by the State a Division Bench of the High Court held that the post graduate degree in Forensic Medicine which the appellant possessed could not be treated as a valid qualification for recruitment to the post of lecturer because, firstly, it was not a degree from the University of Rajasthan and secondly, neither had the University of Rajasthan recognised it nor had the University declared it as a qualification equivalent to the post graduate degree in Forensic Medicine.
Allowing the appeal, 445 ^ HELD: 1.
A post graduate medical degree granted by a university duly established by statute in this country and which had been recognised by the Indian Medical Council by inclusion in the schedule of the Medical Council Act has ipso facto to be regarded, accepted and treated as valid throughout the country.
In the absence of any express provision to the contrary, such a degree does not require to be specifically recognised by other universities in India before it can be accepted as a valid qualification for appointment in any post in a State.
[450 F G] In the instant case the University of Bihar was duly established by statute.
It is fully competent to conduct examination and award degrees the degree of Doctor of Medicine (Forensic Medicine) of the University of Bihar is included in the schedule to the as a degree recognised by the Medical Indian Council, the peramount professional body set up by statute with authority to recognise medical qualifications granted by any university or medical institution in India.
[450 D E] 2.
There can be declaration of equivalence only as between a degree etc.
awarded by the concerned university and a qualification obtained from a body different from the concerned university.
When the University of Rajasthan does not conduct any examination for the award of the degree of Doctor of Medicine (Forensic Medicine) there cannot be any question of declaration of 'equivalence ' in respect of such a degree awarded by any university.
[451 B C] 3.
In the case of a post graduate degree in the concerned subject awarded by a statutory Indian University no recognition or declaration of equivalence by any other university is called for.
This is all the more so in the case of a medical degree awarded by a statutory Indian University and which has been specifically recognised by the Indian Medical Council.
[451 D E]
|
Appeal No. 650 of 1957.
Appeal from the judgment dated July 13, 1956, of the Patna High Court in Miscellaneous Judicial Case No. 665 of 1954.
R. Ganapathy Iyer and R. H. Dhebar, for the appellant.
A. V. Viswanatha Sastri and R. C. Prasad, for the respondent.
November 29.
The Judgment of the Court was delivered by HIDAYATULLAH, J.
This is an appeal by the Commissioner of Income tax with a certificate against the judgment and order of the High Court at Patna answering two questions of law referred to it under section 66(1) of the Income tax Act by the Tribunal, in the negative.
Those questions were: "(1) Whether in the circumstances of the case assessment proceedings were validly initiated under section 34 of the Indian Income tax Act? (2) If so, whether in the circumstances of the case the amount received from interest on arrears of agricultural rent was rightly included in the income of the assessee ?" The assessee, the Maharaja Pratapsingh Bahadur of Gidhaur, had agricultural income from his zamindari for the four assessment years 1944 45 to 1947 48.
In assessing his income to income tax, the authorities did not include in his assessable income interest received by him on arrears of rent.
This was presumably so in view of the decision of the Patna High Court.
When the Privy Council reversed the view of law taken by the Patna High Court in Commissioner of Income tax vs Kamakhya Narayan Singh (1), the Income tax Officer issued notices under section 34 of the (1) 762 Indian Income tax Act for assessing the escaped income.
These notices were issued on August 8, 1948.
The assessments after the returns were filed, were completed on August 26, 1948.
Before the notices were issued, the Income tax Officer had not put the matter before the Commissioner for his approval, as the section then did not require it, and the assessments were completed on those notices.
Section 34 was amended by the Income tax and Business Profits Tax (Amendment) Act, 1948 (No. 48 of 1948), which received the assent of the Governor General on Sep tember 8, 1948.
The appeals filed by the assessee were disposed of on September 14 and 15, 1951, by the Appellate Assistant Commissioner, before whom no question as regards the validity of the notices under section 34 was raised.
The question of the validity of the notices without the approval of the Commissioner appears to have been raised before the Tribunal for the first time.
In that appeal, the Accountant Member and the Judicial Member differed, one holding that the notices were invalid and the other, to the contrary.
The President agreed with the Accountant 'Member that the notices were invalid, and the assessments were ordered to be set aside.
The Tribunal then stated a case and raised and referred the two questions, which have been quoted above.
The High Court agreed with the conclusions of the majority, and the present appeal has been filed on a certificate granted by the High Court.
Section 34, as it stood prior to the amendment Act No. 48 of 1948, did not lay any duty upon the Income tax Officer to seek the approval of the Commissioner before issuing a notice under section 34.
The amending Act by its first section made sections 3 to 12 of the amending Act retrospective by providing "sections 3 to 12 shall be deemed to have come into force on the 30th day of March, 1948. .
Section 8 of the amending Act substituted a new section in place of section 34, and in addition to textual changes with which we are not concerned, also added a proviso to the following effect : "Provided that 763 (1) the Income tax Officer shall not issue a notice under this sub section unless he has recorded his reasons for doing so and the Commissioner is satisfied on such reasons that it is a fit case for the issue of such notice.
" The question is whether the notices which were issued were rendered void by the operation of this proviso. ' The Commissioner contends that section 6 of the , particularly cls.
(b) and (c) saved the assessments as well as the notices.
He relies upon a decision of the Privy Council in Lemm vs Mitchell (1), Eyre vs Wynn Mackenzie (2) and Butcher vs Henderson (3) in support of his proposition.
The last two cases have no bearing upon this matter; but strong reliance is placed upon the Privy Council case.
In that case, the earlier, action which had been commenced when the Ordinance had abrogated the right of action for criminal conversation, had already ended in favour of the defendant and no appeal therefrom was pending, and it was held that the revival of the right of action for criminal conversation did not invest the plaintiff with a right to begin an action again and thus expose the defendant to a double jeopardy for the same act, unless the statute expressly and by definite words gave him that right.
The Privy Council case is thus entirely different.
No doubt, under section 6 of the it is provided that where any Act repeals any enactment, then unless a different intention appears, the repeal shall not affect the previous operation of any enactment so repealed or anything duly done thereunder or affect any right, obligation or liability acquired, accrued or incurred under any enactment so repealed.
It further provides that any legal proceedings may be continued or enforced as if the repealing Act had not been passed.
Now, if the amending Act had repealed the original section 34, and merely enacted a new section in its place, the repeal might not have affected the operation of the original section by virtue of section 6.
But the amending Act goes further than this.
It (1) ; (2) (3) 764 repeals the original section 34, not from the day on which the Act received the assent of the Governor General but from a stated day, viz., March 30, 1948, and substitutes in its place another section containing the proviso above mentioned.
The amending Act provides that the amending section shall be deemed to have come into force on March 30, 1948, and thus by this retrospectivity, indicates a different intention which excludes the application of section 6.
It is to be noticed that the notices were all issued on August 8, 1948, when on the statute book must be deemed to be existing an enactment enjoining a duty upon the Income tax Officer to obtain prior approval of the Commissioner, and unless that approval was obstained, the notices could not be issued The notice were thus invalid.
, The principle which was applied by this Court in Venkatachalam vs Bombay Dyeing & Mfg. Co. Ltd. (1) is equally applicable here.
No question of law was raised before us, as it could not be in view of the decision of this Court in Narayana Chetty vs Income tax Officer (2), that the proviso was not mandatory in character.
Indeed, there was time enough for fresh notices to have been issued, and we fail to see why the old notices were not recalled and fresh ones issued.
For these reasons, we are in agreement with the High, Court in the answers given, and dismiss this appeal with costs.
A appeal dismissed.
| The appellant who had agricultural income from his Zamindari was assessed to income tax for the four assessment years, 1944 45, to 1947 48.
The income tax authorities did not include in his assessable income, interest received by him on arrears of rent, in view of a decision of the Patna High Court, but subsequently this view of law was reversed by the Privy Council.
On August 8, 1948, the Income tax Officer issued notices under section 34of the Indian Income tax Act, 1922, for assessing the escaped income.
Before the notices were issued the Income tax Officer had not put the matter before the Commissioner for his approval as the section then did not require it and the assessments were completed on those notices.
In the meantime, certain amendments were made to the Indian Income tax Act by Act 48 of 1948, which received the assent of the Governor General on September 8, 1948.
The Amending Act substituted a new section in place of section 34, which among other changes, added a proviso to the effect that "the Income tax Officer shall not issue a notice. unless he has recorded his reasons for doing so and the Commissioner is satisfied on such reasons that it is a fit case for the issue of such notice", and also made it retrospective by providing that the new section "shall be deemed to have come into force on the 30th day of March, 1948".
The question was whether the notices issued by the Income tax Officer on August 8, 1948, without the approval of the Commissioner, were rendered void by reason of the operation of the amended section 34.
The Commissioner claimed that section 6 of the , saved the assessments as well as the notices.
Held, that section 6 of the , was in applicable as the Amending Act of 1948 indicated a different intention within the meaning of that section, inasmuch as the amended section 34 of the Indian Income tax Act, 1922, provided that it shall be deemed to have come into force on March 30, 1948.
Lemm vs Mitchell, ; , distinguished, 761 Held, further, that the notices issued by the Income tax Officer on August 8, 1948, and the assessments based on them were invalid.
Venkatachalam vs Bombay Dyeing & Mfg. Co., Ltd., ; , applied.
|
Civil Appeal No. 1381 of 1980 Appeal by Special leave from the Judgment and order dated the 7th July, 1980 of the Punjab and Haryana High Court in Civil Writ Petition No . 1917 of 1980.
And Civil Appeal No. 2667 of 1983.
Appeal by Special leave from the Judgment and order dated the 8th July, 1980 of the Punjab and Haryana High Court in Civil Writ No. 2349 of 1980.
Jawahar Lal Gupta, Janendralal and B.R. Agarwal for the Appellant.
Randhir Jain for the Respondents.
The Judgment of the Court was delivered by VARADARAJAN, J.
These appeals by special leave are by the Punjab University and directed against two Division Bench judgments of the Punjab and, Haryana High Court in writ Petitions 1917 of 1980 and 2349 of 1980, allowing those Writ Petitions without any order as to costs W P. 2319 of 1980 was allowed at the motion stage on 18.7.1980 as being covered by the decision in W P. 1917 of 1980 which was disposed of on 7.7.1980.
Kulwant Singh Tiwana, J. is a party to both the judgments and he sat with Harbans Lal, J for hearing W.P. 1917 of 1980 and with M.M. Punchi, J. for hearing W.P. 2349 of 1980.
In these circumstances, it is necessary to state only the facts relating to W.P. 1917 of 1980 alone briefly.
The system known as "10 plus 2 plus 3 system" was introduced in the educational institutions in the country some years ago.
The Association of Indian Universities decided the equivalence of this 10+2+3 system with the old 11+3 years degree course system which was prevalent in some States and it suggested that in all States where the pattern of education is such as to require 14 years for the first degree, i e. 11+3 years, the new plus 2 stage of the Central Board of Secondary Education be treated as equivalent to a pass in the first year of the three years degree course or for admission to the first year of the two years degree course.
This suggestion was 818 conveyed by the Association of the Indian Universities to the Chairman of the Central Board of Secondary Education by a letter dated 18.4.1978.
The appellant, Punjab University, decided on 10.2.1977 that the 12th standard examination conducted by the Boards/Universities under the new 10+2+3 system by recognised as equivalent to the Pre Medical/Pre Enginerering/B.A. Part I/B.Sc.
Part I/B.Com Part I examination according to the combination of the subjects.
Subsequently, on 4.6.1978 the Punjab University decided to treat the 11th standard of the new 10+2+3 system as equivalent to the pre University examination of the university.
Copies of those decisions dated 10.2.1977 AND 4.6.1978 were Annexures P. 2 and P. 3 respectively in W.P. 1917 of 1980.
These recognitions of the equivalence of those two examinations continued till the beginning of the year 1980.
But on 18.4.1980 the Punjab University decided that the first year student of the plus 2 course in the 10+2+3 system of the Central Board 's schools who does not take a public examination at the end of the first year should not be considered as equivalent to the student who has passed the pre University examination of the Punjab University for joining the Pre Medical/Pre Engineering/B.A. Part I/B. Sc.
Part I/B.Com.
Part I of the University.
On 7.5.1980, the Punjab University decided that the 12th Standard Examination in the new 10+2+3 system conducted by any recognized Board/Council/University shall be treated as equivalent to the pre University Examination of the University.
These decisions dated 18.4.1980 and 7.5.1980 are Annexures R 2 and R 3 respectively in W.P. 1917 of 1980.
Petitioners 1 to 37 in W.P. 1917 of 1980 had passed the 12th standard examination in the 10+2+3 system of the Central Board of Education and petitioners 38 to 92 in the Writ Petition had been promoted from the 11th standard to the 12th standard in that system.
These 92 petitioners filed W.P. 1917 of 1980 challenging the Punjab University 's decisions (Annexures R 2 and R 3) dated 18.4.1980 and 7.5.1980 contending that in view of the earlier decisions of the University, namely, Annexures P. 2 and P. 3 dated 10.2.1977 and 4.6.1978 respectively they had joined the classes in the plus 2 course with object of joining in the colleges affiliated to the University in the next class of equivalence as also Engineering and Medical Colleges and that the University cannot, therefore, change those decisions by the subsequent decisions, Annexures R 2 and R 3 to their deteriment.
They invoked the doctrine of promissory estoppel in regard to that ground of attack on those two decisions.
The second ground of attack by the petitioners 819 in W.P. 1917 of 1980 was that the decisions Annexures R 2 and R 3 are retrospective in operation and they have taken away their vested right and that the University has no power, either under the Punjab University Act or under any statute, regulation or rule to make any regulation, rule or ordinance adversely affecting their vested rights retrospectively.
The defence of the appellant University was that the decisions, Annexures R 2 and R 3 were taken in the place of the earlier decisions, Annexures P. 2 and P. 3 in the interest of eduction on the ground that the 11th standard examination in the new 10+2+3 system was not a public examination and the standard of education in the schools where that system was in vague was low and even the marking system in the examination was lenient.
The University further contended that even the syllabi in the equivalent examination in the schools and colleges were not the same.
The University stated that the Committee of Experts which was constituted by the Vice Chancellor of the University when the students in the engineering colleges started an agitation, went into the question and submitted a report suggesting the change in regard to equivalence in view of the difference in the syllabi and the deficiency in the teaching imparted in some subjects in the schools.
The University, therefore contended that the new decisions Annexures R. 2 and R. 3 were taken bonafide and are only prospective in operation and that the doctrine of promissory estoppel pleaded by the petitioners in the Writ Petitions does not apply to the University.
The decisions Annexures P. , R. 2 and R. 3 are of the Syndicate which has power to make rules etc under section 20 (5) of the Punjab University Act in the same manner as the Senate has similar power under section 31 of that Act.
The learned Judges of the Division Bench rejected the contention of the petitioners before them that the Syndicate has no power which the Senate has under section 31 of the Act and held that the Syndicate has similar powers under section 20 (5) of the Act They rejected the further contention that there is any bar of promissory estoppel against the University in regard to the.
matter and, however, held that petitioners 1 to 37 had joined the 10+2 course in the Central Schools lying within the territorial jurisdiction of the Punjab University in 1978 and passed the 12th Standard Examination and had planned their education in a particular manner to join the colleges affiliated to the Punjab University in the second year of the 3 year degree course and other courses after passing the 12th standard examination in the plus 2 820 system.
They found that similar is the case of petitioners 38 to 92 in W.P. 1917 of 1980 who had been promoted from the 11th to the 12th standard in the plus 2 system.
They held that Annexure R. 3 will deprive petitioners 1 to 37 and Annexure R. 2 will deprive petitioners 38 to 92 of the right to seek admission in Engineering and Medical Colleges after passing the 12th Standard in the 10+2 system, and Annexures R. 2 and R. 3 take away that right and are retrospective in nature.
In coming to this conclusion the learned Judges of the Division Bench relied very strongly upon the decision of a full Bench of the Punjab and Haryana High Court in Punjab University vs Subhash Chander.
The learned Judges accordingly allowed W.P. 1917 of 1980 on the sole ground, namely, that Annexures R. 2 and R. 3 are bad as being retrospective in operation without an order as to costs and held that Annexures R. 3 and R. 2 will not stand in the way of petitioners 1 to 7 and 38 to 92 respectively before them from seeking admission to higher classes or in Engineering and Medical Colleges on the basis of the old decisions, Annexures P. 2 and P. 3.
The Other Division Bench which heard W.P. 2349 of 1980 allowed that petition without any order as to costs as being covered by the decision in W P. 1917 of 1980.
We are of the opinion that these appeals have to be allowed.
The learned Judges of the High Court allowed the Writ Petitions only on the ground that the new decisions Annexures R. 2 and R. 3 are retrospective in operation and that they cannot affect the writ petitioners before them from seeking admission to higher classes or in Engineering or Medical Colleges on the basis of tile earlier decisions Annexures P. 2 and P. 3, relying mainly upon the decision of the Full Bench in Punjab University vs Subhash Chander (supra).
We have, in our separate judgment delivered today in C.A. 2828 of 1977, which arose out of that Full Bench decision, reversed that decision and held that there is nothing retrospective in the order challenged in that case.
In that case one Subhash Chander was admitted to the integrated M.B.B.S course in the Daya Nand Medical College, Ludhiana in the year 1965.
At the time of his admission, under Regulation 25 read with r. 7.1, a student who fails in one subject/paper was entitled to grace marks at 1 per cent of the total aggregate marks of all the subjects for which he appeared.
But in 1970 the rule was amended to the effect that the grace marks will be 1 per cent of the total aggregate marks for any particular subject of the examination in which he has failed Subhash Chander appeared for the Final M.B.B.S. examination in 1974 and secured 821 106 out of 200 marks in the practical examination and 95 out 200 marks in the theory examination in Midwifery, which was one of the four subjects for which he appeared.
at that time.
He had passed the examinations in the other three subjects for which the total aggregate was 1200 marks.
Under the old rule he would have been entitled to 16 grace marks at 1 per cent of the total aggregate of all the four subjects, namely, 1600 marks.
But he was allowed only 4 grace marks under the new rule being 1 per cent of, the aggregate for the subject in which he had failed namely, Midwifery.
The High Court accepted his contention that amendment of the rule made in 1970 was retrospective in operation though it was made applicable to Subhash Chander only in 1974 merely because he had joined the integrated course in 1965 when the rule regarding the award of grace marks was more liberal.
In allowing the appeal against the judgment of the Full Bench we have held that (there was no question of the rule having any retrospective operative as it was framed in 1970 and it did not say that it was operative from any earlier date and it was applied to Subhash Chander only in 1974.
It could not be stated to be retrospective ill operation merely because it was applied to Subhash Chander who had joined the course in 1965 before the amendment was made in 1970.
In the present case also the new decisions are prima facie prospective in operation and they did not become.
retrospective merely because they subsequently appl ed to students who had already started their educational careers.
We, therefore, allow these appeals but without any order as to costs and set aside the judgments of the High Court and dismiss the Writ Petitions.
However, this decision will not effect the right which might have been granted to the petitioners in the writ petitions on the basis of the judgments of the High Court which have been reversed in these appeals.
S.R. Appeals allowed.
| With the introduction of the system known as "10 plus 2 plus 3" in the educational institutions in the country, the Association of the Indian Universities decided the equivalence of this 10+2+3 system with the old 11+3 years degree course system still prevalent is some.
States and it suggested that in all States where the pattern of education is such as to require 14 years for the first degree i.e. 11+3 years the new plus 2 stage of the Central Board of Secondary Education be treated as equivalent to a pass in the first year of the three years degree course or for admission to the first year of the two years degree Course.
The appellant Punjab University, decided on 10.2.1971 that the 12th standard examination conducted by the Boards/Universities under the new 10+2+3 system be recognised as equivalent to the Pre Medical/Pre Engineering/B.A. Part I/B.Sc.
Part I/B. Com.
Part I examination according to the combination of the subjects.
Subsequently, on 4.6.1978 the Punjab University decided to treat the 11th standard of the new 10+2+3 system as equivalent to the Pre University examination of the University.
These recognitions of the equivalence of these two examinations continued till the beginning of the year 1980.
But on 18.4.1980 the Punjab University decided that the first year student of the plus 2 course in the 10+2+3 system of the Central Board 's schools who does not take a public examination at the end of the first year.
should not be considered as equivalent to the student who has passed the pre University examination of the Punjab University for joining the Pre Medical/Pre Engineering/B.A. Part I/B. Sc.
Part II B. Com.
Part I of the University.
On 7.5.1980, the Punjab University decided that the 12th Standard Examination in the new 10+2+3 system conducted by any recognised Board/Council/University shall be treated as equivalent to the pre University Examination of the University.
The respondents in CA 1977/80, namely 1 to 37 who had passed the 12th Standard Examination in the 10+2+3 system of the Central Board of Education and respondents 38 to 92 who had been promoted from the 11th Standard to the 12th Standard in that system challenged the two decisions 816 of the Punjab University dated 18.4.1980, and 7.5.1980 by filing W.P. 1917 of 1980 contending that in view of the earlier decisions of the University namely, Annexures P. 2 and P. 3 dated 10.12.1977 and 4.6.1978 respectively they had joined the classes in the plus 2 course with the object of joining the colleges affiliated to the University in the next class of equivalence as also Engineering and Medical Colleges and that the University cannot, therefore, change those decisions by the subsequent decisions, (Annexures R. 2 and R. 3) to their detriment.
They invoked the doctrine of promissory estoppel in regard to that ground of attack on those two decisions.
The second ground of attack by the petitioners in W.P. 1917 of 1980 was that the decisions Annexures R. 2 & R. 3 are retrospective in operation and they have taken away their vested right and that the University has no power, either under the Punjab University Act or under any statute, regulation or rule to make any regulation rule or ordinance adversely affecting their vested rights retrospectively.
The learned Judges of the Division Bench rejected the contention of the petitioners before them that the Syndicate has no power which the Senate has under section 31 of the Act and held that the Syndicate has similar powers under section 20 (5) of the Act.
They rejected the further contention that there is any bar of promissory estoppel against the University in regard to the matter and, however, held that petitioners 1 to 37 had joined tho 10+2 course in the Central School lying within the territorial jurisdiction of the Punjab University in 1978 and had passed the 12th Standard Examination and had planned their education in a particular manner to join the colleges affiliated to the Punjab University in the second year of the 3 year degree course and other courses after passing the 12th standard examination in the plus 2 system.
They held that Annexure R. 3 will deprive petitioners I to 31 and Annexure R. 2 will deprive petitioners 38 to 92 of right to seek admission in Engineering and Medical Colleges after passing the 12th Standard in the 10+2 system.
and Annexures R. 2 and R. 3 take away that right and are retrospective in nature.
In coming to this conclusion the learned Judges of the Division Bench relied very strongly upon the decision of the Full Bench of the Punjab & Haryana High Court in Punjab University vs Subhash Chander, In view of their decision in W.P. 1911 of 1980, another Bench allowed another W P. 2349 of 1980 filed by the respondents in C.A. 2667/83.
Hence the appeals by the University.
Allowing the appeal, the Court.
^ HELD: 1.
The decisions dated 10.12.1977, 4.6.1978, 18.4.1980 and 7.5.1980 respectively are intra vires the powers of the Syndicate to make rules etc.
under section 20(5) of the Punjab University Act in the same manner as the Senate can do under section 31 of that Act.
[819F] 2.
In view of the decision of the Supreme Court dated 17.5 1984 rendered in Subhash Chander vs Punjab University (Civil Appeal No. 2828/ 1977 arising out of and reversing the said decision of the Punjab High Court relying on which the two Judgments now under 817 appeal, were passed, in the present case also the two impugned decisions are prima facie prospective in operation and they did not become retrospective merely because they subsequently applied to students who had already started their educational careers.
However, this decision will not effect the right which might have been granted to the petitioners in the writ petitions on the basis of the Judgments of the High Court which have been reversed in these appeals [820F; 821E F]
|
Petitions Nos. 512, 513, 574 & 575, 578 & 579, 581 & 582, 583 & 584, 587 & 588, 605 & 606, 609 & 610 and 1466 and 1467 of 1969.
Applications by defendant No. 1 for rejection of plaints and for stay of the hearing of the suits.
Original suits Nos. 3 of 1967, 1 and 3 to 9 of 1968.
Petitions under article 131 of the Constitution of India.
Niren De, Attorney General, V.A. Seyid Muhammad and B.D. Sharma, for respondent No. 1 (in all the suits).
D.N. Gupta, for defendant No. 2 fin suits 968 ).Nos.
3 to 8 of D.N. Mukherjee, for defendant No. 2 (in suits Nos. 3 of 1967, 1 and 9 of 1968).
D.P. Singh, for the plaintiff (in suits Nos. 3 of 1967, 1, 3, 5 and 6 of 1968).
D. Goburdhun, for the plaintiff (in suits Nos. 4 and 7 of 1968).
U.P. Singh, for the plaintiff (in suit No. 8 of 1968).
R.C. Prasad, for the plaintiff (in suit No. 9 of 1968).
The Judgment of the Court was delivered by Mitter, J.
This group of applications can be divided into two parts.
The object of one group is to get the plaints in nine suits filed in this Court rejected while that of the other group is to stay the hearing of the suits.
The suits are all of the same pattern in each of which the State of Bihar figures as the plaintiff.
The Union of India is the first defendant in all of them while the second defendant in six is Hindustan Steel Ltd. and in three others the Indian Iron and Steel Company Ltd. The cause of action in all the suits is of the same nature.
Briefly stated the plaintiffs case in all the suits is that "due to the negligence or deliberate action of the servants of both defendants there was a short delivery of iron and steel material ordered by the plaintiff to various sites in the State of Bihar in connection with the 524 construction work of the Gandak Project".
As the goods were in all cases booked by rail for despatch to the project site, both defendants are sought to be made liable for short delivery, the first defendant as the owner of the railways and the second defendant as the consignor of the goods under contract with the State of Bihar for supply of the material.
In each case there is a prayer for a decree for a specific sum of money to be passed either against the first defendant "or alternatively against the second defendant".
Normally all suits of this kind are instituted all over India in different courts beginning from the courts of the lowest jurisdiction to the High Courts exercising original jurisdiction.
The only distinguishing feature of this series of suits from others of everyday occurrence in different courts is that a State is the plaintiff in each case.
In all suits of a similar nature which are filed in courts other than this Court, a notice under section 80 of the Code of Civil Procedure is an essential prerequisite.
No such notice has been served in any of these cases.
The applications were set down for trial of three issues sought to be raised by way of preliminary issues.
They are as follows : 1.
Whether the alleged cause or causes of action in this suit are within the scope of article 131 of the Constitution ? 2.
Whether this suit is within the scope of article 131 of the Constitution in view of a non State, viz, defendant No. 2, having been made a party to the suit ? 3.
Whether the suit is barred by the provisions of section 80 C.P.C. for want of notice to defendant No. 1 ? The question before this Court is, whether the dispute in these cases is within the purview of that article (quoted in the foot note.
It must be noted that the article confers jurisdiction on this Court to the exclusion of all other courts in any dispute between the parties mentioned therein.
There is however an over riding provision that such jurisdiction is subject to the provisions of the Constitution and our attention was drawn to a few of these provisions where the disputes specified are to be adjudicated upon in entirely different *article 131.
Subject to the provisions of this Constitution, the Supreme Court shall, to the exclusion of any other court, have original jurisdiction in any dispute (a) between the Government and one or more States; or (b) between the Government of India and any State or States on one side and one or more other States on the other; or (c) between two or more States, 525 manner.
The most important feature of article 131 is that it makes no mention of any party other than the Government of India or any one or more of the States who can be arrayed as a disputant.
The other distinguishing feature is that the Court is not required to adjudicate upon the disputes in exactly the same way as ordinary courts of law are normally called upon to do for upholding the rights of the parties and enforcement of its orders and decisions.
The words in the article "if and in sO far as the dispute involves any question (whether of law or fact) on which the existence or extent of a legal right depends" are words of limitation on the exercise of that jurisdiction.
These words indicate that the disputes should be in respect of legal rights and not disputes of a political character.
Moreover this Court is only concerned to give its decision on questions of law or of fact on which the existence or extent of a legal right claimed depends.
Once the Court comes to its conclusion on the cases presented by any disputants and gives its adjudication on the facts or the points of law raised, the function of this Court under article 131 is over.
article 131 does not prescribe that a suit must be filed in the Supreme Court for the complete adjudication of the dispute envisaged therein or the passing of a decree capable of execution in the ordinary way as decrees of other courts are.
It is open to an aggrieved party to present a petition to this Court containing a full statement of the relevant facts and praying for the declaration of its ' rights as against the other disputants.
Once that is done, the function of this Court under article 131 is at an end.
The framers of the Constitution do not appear to have contemplated the contingency of a party to an adjudication by this Court under article 31 not complying with the declaration made.
Our law is not without instances where a court may be called upon to make an adjudication of the rights of the parties to an agreement or an award simpliciter on the basis of such rights without passing a decree.
A case in point is section 33 of the Indian Arbitration Act.
Further, all adjudications by a court of law even under a decree in a suit need not necessarily be capable of enforcement by way of execution.
Section 42 of the now replaced by section 34 of the new Act enables a person entitled to any legal character or to any right as to any property to institute a suit against any person denying or interested to deny his title to such character or right without asking for any further relief subject to the limitations prescribed by the section.
We If and in so far as the dispute involves any question (whether of law or fact) on which the existence or extent of a legal right depends: Provided that the said jurisdiction shall not extend to a dispute arising out of any treaty, agreement, covenant, engagement, sanad or other similar instrument which having been entered into or execucated before the commencement of the construction, continues in operation after such commencement, or which provides that the said jurisdication shall not extend to such a dispute.
526 need not however lay much stress on this aspect of the case as we are only concerned to find out whether the suits can be entertained by this Court.
Clauses (a), (b) and (c) of the article specify the parties who can appear as disputants before this Court.
Under cl.
(a) it is the Government of India and one or more States under cl.
(b) it is the Government of India and one or more States on one side and one or more other States on the other, while under cl.
(c) the parties can be two or more States without the Government of India being involved in the dispute.
The specification of the parties is not of an inclusive kind.
The express words of cls.
(a), (b) and (c) exclude the idea of a private citizen, a firm or a corporation figuring as a disputant either alone or even along with a State or with the Government of India in the category of a party to the dispute.
There is no scope for suggesting that a private citizen, a firm or a corporation can be arrayed as a party by itself on one side and one or more States including the Government of India on the other.
Nor is there anything in the article which suggests a claim being made by or preferred against a private party jointly or in the alternative with a State or the Government of India.
The framers of the Constitution appear not to have contemplated the case of a dispute in which a private citizen a firm or a corporation is in any way involved as a fit subject for adjudication by this Court under its exclusive original jurisdiction conferred by article 131.
Like many of the provisions of our Constitution this article had a fore runner in the Government of India Act, 1935.
Section 204 of that Act provided for conferment of original jurisdiction on the Federal Court of India.
That section ran as follows : "(1) Subject to the provisions of this Act, the Federal Court shall, to the exclusion of any other court, have an original jurisdiction in any dispute between any two or more of the following parties, that is to say, the Federation, any of the Provinces or any of the Federal States, if and in so far as the dispute involves any question (whether of law or fact) on which the existence or extent of a legal right depends: Provided that the said jurisdiction shall not extend to (a) a dispute to which a State is a party, unless the dispute (i) concerns the interpretation of this Act or of an Order in Council made thereunder, or the extent of the 527 legislative or executive authority vested in the Federation by virtue of the Instrument of Accession of that State; or (ii) arises under an agreement made under Part VI of this Act in relation to the administration in that State of a law of the Federal Legislature, or otherwise concerns some matter with respect to which the Federal Legislature has power to make laws for that State; or (iii) arises under an agreement made after the establishment of the Federation, with the approval of His Majesty 's Representative for the exercise of the functions of the Crown in its relations with Indian States, between that State and the Federation or a Province, being an agreement which expressly provides that the said jurisdiction shall extend to such a dispute; (b) a dispute arising under any agreement which expressly provides that the said jurisdiction shall not extend 'to such a dispute.
(2) The Federal Court in the exercise of its original jurisdiction shall not pronounce any judgment other than a declaratory judgment.
" Clause (a) of the proviso.
to the section defined the categories of disputes which might be raised before the Federal Court while clause (b) permitted the parties to provide for the exclusion of such jurisdiction in the agreement in respect whereof the dispute arose.
It will be noted that the scope of the dispute under subcl.
(i) of cl.
(a) was limited to the interpretation of the Government of India Act or Order in Council or to the extent of legislative or executive authority vested in the Federation while under sub cl.
(ii) the dispute had to relate to the administration in a State of a law of the Federal Legislature or otherwise concerned with some matter relating to the legislative competency of the said legislature.
Under sub cl.
(iii) the dispute could only be one under an agreement made after the establishment of the Federation between the State and the Federation or a Province subject to the condition therein specified.
A dispute of the nature which is raised in this scries of a case was outside the ken of section 204 of the Government of India Act.
It may not be out of place to trace the origin of section 204.
The proceedings of the Joint Committee on Indian Constitutional Re 528 form, Session 1933 34, Vol. 1, Part II, paragraph 309 read as follows: "A Federal Court is an essential element in a Federal Constitution.
It is at once the interpreter and guardian of the Constitution and a tribunal for the determination of disputes between the constituent units of the Federation.
The establishment of a Federal Court is part of the White Paper scheme, and we approve generally the proposals with regard to it.
We have, however, certain comments to make upon them, which we set out below.
" The report of the Joint Committee on Indian Constitutional Reform, Session 1933 34, Vol. 1, Part 1 contained two paragraphs bearing on this matter.
Paragraph 322 was a reproduction of paragraph 309 quoted above.
Paragraph 324 ran as follows: "324.
It is proposed that the Federal Court shall have an original jurisdiction in (i) any matter involving the interpretation of the Constitution Act or the determination of any rights or obligations arising thereunder, where the parties to the dispute are (a) the Federation and either a Province or a State, or (b) two Provinces or two States, or a Province and a State; (ii) any matter involving the interpretation of, or arising under, any agreement entered into after the commencement of the Constitution Act between the Federation and a Federal Unit or between Federal Units, unless the agreement otherwise provides.
This jurisdiction is to be an exclusive one, and in our opinion rightly so, since it would be altogether inappropriate if proceedings could be taken by one Unit of the Federation against another in the Courts of either of them.
For that reason we think that, where the parties are Units of the Federation or the Federation itself, the jurisdiction ought to include not only the interpretation of the Constitution Act, but also the interpretation of Federal laws, by which we meant any laws enacted by the Federal Legislature.
" It is clear from the above that the framers of the Government of India Act, 1935 thought that the Federal Court should 529 be the tribunal for the determination of disputes between the constituent units of the Federation and it sought to lay down the exact nature of the dispute which that Court could be called upon to examine and decide.
The Constitutional Proposals of the Sapru Committee show that they had the said report 'and the said proceedings of the Committee in their mind when they advocated the strengthening of the position of the Federal Court in India and widening its jurisdiction both on the original side and the appellate side but maintaining at the same time that it should "act as an interpreter and guardian of the Constitution, and as a tribunal for the determination of disputes between the constituent units of the Federation.
" It is also to be noted that under section 204 of the Government of India Act, 1935 the Federal Court 's jurisdiction was limited to the pronouncement of a declaratory judgment.
article 109 of the Draft Constitution of India prepared by the Constituent Assembly was in the same terms as article 131 of the Constitution as it came into force in 1950.
The proviso to the original article was substituted by the new proviso in the year 1956.
as a result of the Seventh Amendment by reason of the abolition of the Part B States and the changes necessitated thereby.
Reference was made at the Bar in this connection to the Debates in the Constituent Assembly, Vol.
IV, 13th July 1947 to 21st July, 1947.
They however do not throw any additional light.
So far as the proceedings of the Joint Committee on Indian Constitutional Reform and the report of the Committee on the same are concerned, they make it clear that the object of conferring exclusive original jurisdiction on the Federal Court was that the disputes of the kinds specified between the Federation and the Provinces as the constituent units of the Federation, should not be left to be decided by courts of law of a particular unit but be adjudicated upon only by the highest tribunal in the land which would be beyond the influence of any one constituent unit.
Although article 131 does not define the scope of the disputes which this Court may be called upon to determine in the same way as section 204 of the Government of India Act, and we do not find it necessary to do so, this much is certain that the legal right which is the subject of dispute must arise in the context of the Constitution and the Federalism it sets up.
However, there can 530 be no doubt that so far as the parties to the dispute are concerned, the framers of the Constitution did intend that they could only be the constituent units of the Union of India and the Government of India itself arrayed on one side or the other either singly or jointly with another unit or the Government of India.
There is no decision either of the Federal Court of India or of this Court which throws much light on the question before us.
Reference was made at the Bar to the case of The United Provinces vs The Governor General in Council(1) where the United Provinces filed a suit against the Governor General in Council for a declaration that certain provisions of the , were ultra vires the then Indian Legislature.
A claim was also made that all fines imposed and realised by criminal courts for offences committed within the cantonment areas in the United Provinces ought to be credited to the provincial revenues and that the plaintiffs were entitled to recover and adjust all such sums wrongly credited to Cantonment Funds since 1924.
The Governor General in Council contended inter alia that the dispute was not one which was justifiable before the Federal Court.
On the question of jurisdiction.
Gwyer, C.J. was not inclined to think "that the plaintiffs would in any event have been entitled to the declarations for which they originally asked, in proceedings against the Governor General in Council".
According to the learned Chief Justice "their proper course would have been to take proceedings against a name ' Contouring Board, though . such proceedings could not have been brought to this Court.
" He was of the view that it was competent for the court to entertain a suit for a declaration "that section 106 of the Act of 1924 was ultra vires," and said that as the dispute between the parties depended upon the validity of the assertion of the Province to have the fines under discussion credited to provincial revenues and not to the Cantonment funds the dispute involved a question of the existence of a legal right.
According to him the question might have been raised in proceedings to which a Cantonment Board was a party but "it was convenient to all concerned that it should be disposed of in the proceedings before the court.
" The only other Indian case cited at the Bar in this connection was that of the State of Seraikella and others vs Union of India and another(2) where Mahajan, J. expressed the view that section 80 of the Code of Civil Procedure would not affect suits instituted in the Federal Court under section 204 of the Government of India Act.
(1) (2) ; 531 Our attention was drawn to some provisions of the American Constitution and of the Constitution Act of Australia and several decisions bearing on the interpretation of provision which are somewhat similar to article 131.
But as the similarity is only limited, we do not propose to examine either the provisions referred to or the decisions to which our attention was drawn.
In interpreting our Constitution we must not be guided by decisions which do not bear upon provisions identical with those in our Constitution .
The Constitution makes special provisions for settlement of certain disputes in a manner different from that laid down in article 131.
For instance, article 143 gives an over riding power to the President of India to consult the Supreme Court when he is of the view that the question is of such a nature and of such public importance that it is expedient to do so.
Under el.
(1) of that Article the President is empowered to obtain the opinion of the Supreme Court upon any question of law or fact which has arisen or is.
likely to arise and is of such a nature and of such public importance that the President considers it expedient to obtain such opinion.
In such a case the Court after giving such hearing as it thinks fit has to report to the President its opinion thereon.
Clause (2) of the article shows that this power of the President over rides the proviso to article 131.
article 257 provides for control of the Union over the States in certain cases.
Under clause (2) thereof the executive power of the Union also extends to the giving of directions to a State as to the construction and maintenance of means of communication declared in the direction to be of national or military importance.
Under cl (4) where such directions are given and "costs have been incurred in excess of those which would have been incurred in the discharge of the normal duties of the State if such direction had not been given," the Government of India must pay to the State such sum as may be agreed, or, in default of agreement, as may be determined by an arbitrator appointed by the Chief Justice of India, in respect of the extra costs so incurred by the State, Again, when there is a dispute or complaint with regard to the use, distribution or control of the waters of, or in, any interState river or river valley cl.
(2) of article 262 gives Parliament the power by law to provide that neither the Supreme Court nor any other court shall exercise jurisdiction in respect of such dispute or complaint as is referred to in clause (1 ).
Such a law ousts the jurisdiction of the court which would normally be attracted by 532 article 131.
article 290 contains a provision somewhat similar to article 257(4) with regard to certain expenses and pensions and makes the same determinable by an arbitrator to be appointed by the Chief Justice of India.
Apart from these special provisions a dispute which falls within the ambit of article 131 can only be determined in the forum mentioned therein, namely, the Supreme Court of India, provided there has not been impleaded in any said dispute any private party, be it a citizen or a firm or a corporation along with a State either jointly or in the alternative.
A dispute in which such a private party is involved must be brought before a court, other than this Court, having jurisdiction over the matter.
It was argued by counsel on behalf of the State of Bihar that so far as the Hindustan Steel Ltd., is concerned it is 'State ' and the suits in which the Government of India along with Hindustan Steel Ltd. have been impleaded are properly filed within article 131 of the Constitution triable by this Court in its original jurisdiction.
Reference was made to the case of Rajasthan State Electricity Board vs Mohan Lal(1).
There the question arose between certain persons who were permanent employees of the Government of the State of Rajasthan and later placed at the disposal of the State Electricity Board and one of the questions was whether the appellant Board could be held to be 'State ' as defined in article 12.
This Court by a majority held that the Board was "other authority" within the meaning of article 12 and therefore was a 'State ' to which appropriate directions could be given under articles 226 and 227 of the Constitution.
It will be noted that under article 12 all local or other authorities within the territory of India or under the control of the Government of India are 'States ' for purposes of Part III which defines and deals with the Fundamental Rights enshrined in the Constitution.
The expression "the State" has the same meaning in Part IV of the Constitution under article 36.
No reason was shown as to why the enlarged definition of 'State ' given in Parts III and IV of the Constitution would be attracted to article 131 of the Constitution and in our opinion a body like the Hindustan Steel Ltd. cannot be considered to be "a State" for the purpose of article 131 of the Constitution.
In the result we hold that the suits do not lie in this Court under article 131 of the Constitution and issue No. 2 must be answered in the negative.
It is not necessary to give any answer to issue No. 1 nor to issue No. 3.
On the view we take the ; 533 plaints must be returned for the purpose of presentation to courts having jurisdiction over the disputes.
Let the plaints be returned for presentation to the proper court after endorsing on them the date of presentation of the plaints in this Court and the date on which they were returned.
We make no order as to costs of these applications.
| The plaintiff as original owner of the suit properties sold the same to the 1st defendant who.
was husband of the 2nd defendant.
According to the plaintiff apart 'from the written sale deed there was an oral agreement between him and the 1st defendant whereunder the latter agrees to reconvey the properties sold at the same price whenever the plaintiff called upon him to do so.
The suit was filed for specific performance of the said oral agreement.
The 1st defendant died even before he filed his written statement.
Before his death he had gifted the suit properties to his wife, the 2nd defendant.
In her 'written statement the 2nd defendant denied the agreement pleaded in the point but stated that just before his death her husband had agreed to sell t6 plaintiff item No. 1 of the suit property less one acre of paddy field for a sum of Rs. 11,500 but due to his illness the sale could not be effected.
She reiterated the said offer in her written statement but the plaintiff did not accept it and the suit proceeded on the basis of the agreement pleaded in the plaint.
The trial court decreed the suit as prayed for.
In appeal the High Court did not accept the agreement pleaded by the plaintiff but still granted a decree directing the defendant to execute a sale deed in favour of the plaintiff in respect of item No. 1 of the plaint schedule properties less one acre of paddy field for a sum of Rs. 11,500.
Both the parties appealed to this HELD.
: (i) The burden of proving the oral agreement was on the plaintiff.
The sale deed on the face of it evidenced an outright sale.
The stipulation ha it that the purchaser would not mortgage or assign the properties to anyone else during the vendor 's lifetime went against the plaintiff 's case inasmuch as it only gave the vendor a right to preempt. ] 'here was no satisfactory explanation why such an important thing as the agreement to re convey was made orally and not reduced to writing.
[923 G,924B] It appeared likely in the present case that neither side had come forward with the true version.
But before a court can grant a decree for specific performance, the contract pleaded must be a specific one and the same must be: established by convincing evidence.
Rarely a decree for specific performance is granted on the basis of an agreement supported solely by oral evidence.
[925 D E] On the evidence adduced by him the plaintiff had failed to prove the agreement pleaded in the plaint.
[925 F] (ii) The High Court was wrong in passing the decree in respect of plaint item No. 1 on the basis of the admission of the 2nd defendant in her written statement.
The plaintiff did not at any stage accept the 922 agreement pleaded by the defendant as true.
The agreement pleaded by the plaintiff in his plaint and that pleaded by the defendant in her written statement were two totally different agreements.
The plaintiff did not plead at any stage that he was ready and willing to.
perform the agreement pleaded in the written statement of defendant.
A suit for specific performance has to conform to the requirements prescribed in Forms 47 and 48 of the 1st Schedule in the Civil Procedure Code.
Before a decree for specific performance can be given the plaintiff has to.
plead and satisfy the court about his willingness to perform his part of the contract.
[925 G926 B] Pt.
Prem Raj vs The D.L.F. Housing and Construction (P) Ltd. & Anr., ; , applied.
Srinivas Ram Kumar vs Mahabir Prasad & Ors., ; , distinguished.
(iii) Since the parties had not laid the true version before the court and the defendant had refiled from the offer made by her in her written statement it was a case in which it was appropriate to direct the parties to bear their own costs throughout.
[926 H]
|
Appeals Nos. 37 40 of 1963.
Appeals from the judgment and decree dated August 13, 11, 1959 of the Allahabad High Court in Civil Misc.
Writ Petitions Nos. 870 to 873 and 349 of 1956 respectively.
WITH Petitions Nos. 335 to 345 of 1960.
Petition under article 32 of the Constitution of India for the enforcement of Fundamental Rights.
G. section Pathak, section N. Andley, Rameshwar Nath and P. L. Vohra, for the appellants (in C.As.
37 40 of 1963).
M. C. Setalvad, Rameshwar Nath,S. N. Andley and P. L. Vehra, for the appellant (in C.A. No. 589/63).
C. K. Daphtary, Attorney General, K. N. Rajagopal Sastri and R. N. Sachthey, for the respondents (in all the appeals and petitions).
828 February 19, 1964.
The Judgment of the Court was, delivered by GAJENDRAGADKAR, C.J.
These civil appeals and writ petitions have been placed before us for hearing in a group,.
because all of them raise a common question of law about the validity of section 34(1A) of the Income tax Act (No. XI of 1922) (hereinafter called 'the Act ').
M/s. K. section Rashid & Son, and its partner, Rashid Ahmad, are the appellants in Civil Appeals Nos. 37 to 40/1963, and petitioners in W.Ps.
335 345/1960.
The appeals arise out of the four writ petitions (Nos. 870 873 of 1956) filed by the firm and its partner in the High Court of Allahabad challenging the validity of the notices served upon them under section 34(1A) of the Act in respect of their income for the years 1941 42 to 1946 47.
These writ petitions have been dismissed by the said High Court and it is with the certificate issued by it that the firm and its partner have come to this Court in appeal.
The writ petitions Nos.
335 345/1960 have been filed by the same parties in this Court under article 32 of the Constitution in respect of the notices served on them on the 19th March.
1956 and the order of excess profit tax levied on them.
In these petitions, the same point is urged by the parties; and that is that the notices are invalid, because section 34(1A) is itself ultra vires.
The respondents to the appeals are : the Commissioner of Income tax, U.P., Lucknow, and the Income tax Officer, Central Circle IV, Delhi.
The respondents to the writ petitions are : the Income tax Officer, Central Circle IV, New Delhi, the Income tax Officer, 'A ' Ward, Meerut, the Commissioner of Income tax, U.P., Lucknow, and the Central Board of Revenue, New Delhi.
Civil Appeal No. 589 of 1963 has been brought to this Court in similar circumstances by the appellant, M/s. Bhawani Prasad Girdharlal.
The appellant had challenged the validity of the notices issued to it on the 16th August, 1955 under section 3 4 (1A) of the Act.
The writ petition filed by the appellant has been dismissed by the Allahabad High Court and it is with the certificate issued by the said High Court that the present appeal has been brought to 829 this Court.
That is how the only question which arises for our decision in this group of matters relates to the validity of section 34(1A) of the Act.
The argument urged in support of the challenge to the validity of the impugned section is that it suffers from the vice of contravening article 14 of the Constitution.
It is urged that whereas under section 34(1) which deals with similar cases of assessees, the remedy by way of appeals and revisions under the relevant provisions of the Act is available to the assessees, that remedy is denied to the assessees against whom proceedings are taken under the impugned section.
Section 34(1) thus gives a preferential treatment to the assessees who are similarly placed with the assessees dealt with under section 34(1A); and that amounts to unconstitutional discrimination.
It is also urged that in regard to cases falling under section 34(1) (a) as it stood at the relevant time, a period of limitation of 8 years had been prescribed beyond which the assessing authority could not act, and this protection of the prescribed period of limitation is not available to the assessees against whom action is taken under the impugned section.
It is on these two grounds that the validity of section 34(1A) is challenged before us.
Section 34 deals with income which has escaped assessment.
Section 34(1) (a) deals with cases where income has, inter alia, escaped assessment, owing to the omission or failure on the part of the assessee to make a return of his income under section 22 for any year, or to disclose fully and truly all material facts necessary for his assessment for that year, whereas section 34(1) (b) refers to cases where income has escaped assessment notwithstanding that there has been no omission of failure as mentioned in clause (a) on the part of the assessee.
In respect of the first category of cases, section 34(1) had provided at the relevant time that the Income tax Officer may, in cases falling under cl.
(a) at any time within eight years, and in cases falling under clause (b) at any time within four years of the end of that year, serve on the assessee "a notice containing all or any of the requirements which may be included in the notice under sub section (2) of section 22, and may proceed to assess or re assess such income, profits or gains, or recompute the loss or 830 depreciation allowance; and the provisions of this Act shall, so far as may be, apply accordingly as if the notice were a notice issued under that sub section".
Let us now read the relevant portion of section 34(1A).
This provision lays down, inter alia, that if, in any case of an assessee.
the Income tax Officer has reason to believe: (i) that income has escaped assessment for any year in respect of which the relevant previous year falls wholly or partly within the period beginning on the 1st day of September, 1939, and ending on the 31st day of March, 1946; and (ii) that the said income amounts, or is likely to amount, to Rs. 1 lakh or more, he may, notwithstanding that the period of eight years or, as the case may be, four years specified in subsection (1) has expired, in respect thereof, serve on the assessee, or, if the assessee is a company, on the principal officer thereof, a notice containing all or any of the requirements which may be included in a notice under sub section (2) of section 22, and may proceed to assess or reassess the income, profits or gains of the assessee for all or any of the years referred to in clause (i), and thereupon the provisions of this Act excepting those contained in clauses (i) and (iii) of the proviso to sub section (1) and in sub sections (2) and (3) of this section shall, so far as may be, apply accordingly : Provided that the Income tax Officer shall not issue a notice under this sub section unless he has recorded his reasons for doing so, and the Central Board of Revenue is satisfied on such reasons recorded that it is a fit case for the issue of such notice: Provided further that no such notice shall be issued after the 31st day of March, 1956.
831 It is urged that whereas in cases falling under section 34(1), the Income tax Officer has to deal with the matter on the footing that the notice issued against the assessee is a notice under section 22(2), that obligation is not imposed on the Income tax Officer while he deals with cases falling under section 34(1A), because the words "as if the notice were a notice issued under that sub section" which are found in section 34(1) are omitted in section 34(1A).
It is not seriously disputed that if the notice issued under section 34(1A) is not deemed to be a notice under section 22 (2), the remedies by way of appeals and revisions which are prescribed by sections 30, 31, 32, 33, 33A and 33B of the Act would not be available to the assessee, and so, the main basis for the attack against the validity of section 34(1A) rests on the hypothesis that the omission of the relevant words in section 34(1A) in substance deprives the assessee of the said remedies prescribed by the relevant provisions of the Act.
If the assumption on which this challenge proceeds is well founded.
section 34(1A) may suffer from the infirmity that it contravenes article 14.
Though, as we will later point out, there is a rational classification between the assessees falling under section 34(1), and those falling under section 34(1A), that rational classification would not justify the denial of the right of appeal to the persons included in section 34(1A).
The question thus presented is one of construction.
Before dealing with the construction of section 34(1A), it would be necessary to refer very briefly to the background of the enactment of the said section.
This section was introduced by an amendment in the Act on the 17th July, 1954, and that was because section 5 (4) of the Taxation on Income (Investigation Commission) Act (No. 30 of 1947) was struck down by this Court as unconstitutional on May 28, 1954, in Suraj Mall Mohta and Another vs A. V. Viswanatha Sastri and Another(1).
In that case, while examining the validity of section 5(4) of the Investigation Commission Act, this Court held that the persons brought within the mischief of the said section belong to the same class of persons who fall within the ambit of section 34 of the Act and are dealt with by section 34(1), and in view of the (1) ; 832 fact that the procedure prescribed by section 5(4) of the Investigation Commission Act was very much less favourable to the assessees than the one available to them if action was taken against them under section 34(1), the conclusion reached was that the impugned section 5(4) was unconstitutional.
It is unnecessary to refer to the several grounds mentioned by Mahajan C.J. who spoke for the Court in striking down the impugned section.
After this judgment was pronounced, the legislature intervened and enacted section 34(1A).
That, however, was not the end of the matter.
When section 34(1) was introduced in the Act, there remained two statutory provisions dealing with substantially the same subject matter, section 5(1) of the Investigation Commission Act and section 34(1) of the Act.
In Shree Meenakshi Mills Ltd., Madurai vs Sri A. V. Viswanatha Sastri and Another(1), a point was raised before this Court as to whether it was open to the Income tax Department to invoke section 5(1) of the Investigation Commission Act after section 34(1A) of the Act was enacted, and, this Court held that it was not, because on comparing the two relevant provisions, section 5(1), according to the decision of this Court, contravened article 14 of the Constitution.
That is how, section 5(1) became a dead letter and the Investigation Commission, in consequence, ceased to function.
The cases which had been referred to that Commission and which had not been completed had, therefore, to be taken up under section 34(1A) of the Act.
Thus, it would be noticed that the present controversy has had a somewhat chequered career.
The first challenge was to section 5(4) of the Investigation Commission Act; when the challenge succeeded and the said section was struck down in the case of Suraj Mall Mohta(2) the legislature intervened and section 34(1A) was added in the Act.
Nevertheless, the cases pending before the Investigation Commission were sought to be continued before the said Commission under section 5(1) and this section was struck down in the case of Shree Meenakshi Mills Ltd.(1); and, now, that proceedings against the same class of assessees are sought to be continued under section 34(1A), it is urged that section 34(1A) of the Act itself is invalid.
It is in (1) (2) ; 833 the light of this background that the controversy between the parties in the present proceedings has to be judged.
Reverting then to the question of construction, the narrow point which needs to be examined is, what is the effect of the omission to include in section 34(1A) the clause " as if the notice were a notice issued under that sub section" which is to be found in section 34(1)? In dealing with this ,question, we think it would not be unreasonable to bear in mind that when the legislature enacted section 34(1A), it must have desired to remove the infirmities which had rendered section 5(4) of the Investigation Commission Act invalid.
In other words, the legislature must have presumably wanted to afford to the assessees in respect of whom section 34(1A) was intended to be invoked, the same remedies that were available to the assessee covered by section 34(1).
Though the importance or significance of this consideration cannot be unduly emphasised, it cannot be said that this consideration is altogether irrelevant.
We have already read the relevant portion of section 34(1A) and we have seen that it requires that a notice containing all or any of "he requirements which may be included in the notice under section 22, sub section (2) has to be issued, In other words, the notice which is required to be issued is, in terms, in a sense referable to section 22(2), because the legislature has provided that it must contain all or any of the requirements which would be included in such a notice.
Then, section 34(1A) provides that after issuing ;the notice on the assessee in the manner prescribed by it, the Income tax Officer may proceed to assess or reassess the income, profits or gains of the assessee for the relevant years.
In the context, it would, we think, be reasonable to hold that the assessment or reassessment which has to follow the issue of the notice, must be assessment or reassessment in accordance with the relevant provisions of the Act, and this is made very clear by :the clause that follows, because the said clause begins with the word "thereupon" which indicates that when the process of assessment or reassessment commences, the clause beginning with the word "thereupon" comes into operation and this clause requires that the 'Provisions of the 134 159 S.C. 53 834 Act shall, so far as may be, apply accordingly.
The word "accordingly" like the word "thereupon" seems to emphasise the applicability of the relevant provisions of the Act to the proceedings taken under section 34(1A); otherwise there is no particular reason which would have justified the further provision in the section excepting certain provisions of the Act which are held to be inapplicable to the proceedings under section 34(1A).
It is true that section 34(1) uses the clause "as if the notice.
were a notice issued under that sub section" and section 34(1A) does not; but the two provisions were not inserted in the Act at the same time; section 34(1) in the present form was enacted in 1948, whereas section 34(1A) was enacted in 1954.
It is quite likely that the draftsman who drafted section 34(1A) took the view that the last clause in question which occurred in section 34(1) was really superfluous and that may account for its omission in section 34(1A).
In our opinion, therefore, construing the relevant words in section 34(1A), it would be difficult to accede to the argument that the said omission was deliberate and significant, and its consequence is that the provisions of section 22 and all other provisions consequent upon the application of section 22 become irrelevant in dealing with cases under section 34(1A).
If section 22 is held to be inapplicable to proceedings under section 34(1A), the consequence would be entirely irrational and fantastic.
The powers conferred on the Income tax Officer under section 23 (2) to take evidence would then not be available to him, and, indeed, all the powers prescribed and the procedure laid down by section 23 would become irrelevant.
Likewise, the provisions in regard to appeals and revisions contained in sections 30, 31, 33, 33A and 33B would also be inapplicable.
As we have already seen, the inapplicability of these provisions is the main foundation of the attack against the validity of section 34(1A).
It is, however, urged that though the specific powers conferred by section 23 may not be available to the Income tax Officer, he may, nevertheless, exercise similar powers, because the authority to assess must itself include such powers as incidental to assessment.
The best judgment assessment which is authorised by section 23 (4) may, it is suggested, be made even in cases falling under 835 section 34(1A) under the inherent authority of the Income tax Officer.
In our opinion, this approach is wholly miscon ceived.
We are satisfied that it could not have been the intention of the legislature when it enacted section 34(1A) that the procedure prescribed by the.
relevant provisions of the Act beginning with section 22 should not be applicable to pro ceedings taken under section 34(1A), and that the procedure to be followed in the said proceedings and the powers to be exercised by the Income tax Officers dealing with them should be what is vaguely described as 'the inherent or incidental powers ' of such officers.
Therefore, we have no hesitation in holding that the challenge made to the validity of section 34(1A) on the ground that the remedy by way of appeals or revisions which is available to the assessees against whom proceedings are taken under section 34(1) is not available to the assessees who are covered by section 34(1A), cannot be sustained.
The other contention raised against the validity of s.34(1A) is based on the fact that at the relevant time, g. 34(1)(a) dealt with cases similar to those falling under s.34(1A), and yet, whereas in the former category of cases a period of limitation was prescribed as eight years there is no such limitation in regard to the latter, and that, it is urged, means unconstitutional discrimination.
We are not impressed by this argument.
It is true that in a broad sense both section 34(1) (a) and section 34(1A) deal with cases of income which has escaped assessment.
and in that sense, the assessees against whom steps are taken in respect of their income which has escaped assessment can be said to form a similar class; but the similarity between the two categories disappears when we remember that section 34(1A) is intended to deal with assessees whose income has escaped assessment during a specified period between 1st of September, 1939 and the 31st of March, 1946.
It is well known that that is the period in which as a result of the War, huge profits were made in business and industry.
The second point which is very important is that in regard to the cases falling under section 34(1A), action can be taken only where the income which has escaped assessment is likely to amount to Rs. 1 lakh or more.
In other words.
836 it is only in regard to cases where the escaped income is of a high magnitude that the restriction of the period of limitation has been removed.
It is difficult to accept the argument that the legislature was not justified in treating this smaller class of assessees differently on the ground that the profits made by this class were higher and the income which had escaped assessment was correspondingly of a much larger magnitude.
The object of the legislature being to catch income which had escaped assessment, it would be legitimate for the legislature to deal with the class of assessees in whose cases the income which had escaped assessment was much larger, because that would be a basis for rational classification which has an intelligible connection with the object intended to be achieved by the statute.
It was suggested that as a result of the provisions con tained in section 34(1)(a) and section 34(1A) one year would overlap; and that may be true.
But the argument of overlapping has no significance because it makes no difference whether action is taken under section 34(1), or section 34(1A) in respect of that year.
Once the notice is served under section 34(1) or section 34(1A), the rest of the procedure is just the same and all the remedies available to the assessees are also just the same.
Therefore, we see no substance in the argument that the absence of the restriction as to period of limitation under section 34(1A) introduces any infirmity in the said provision.
In the result, we must hold that section 34(1A) is valid and has not contravened article 14 of the Constitution.
That is the effect of the majority view taken by the Allahabad High Court in Jai Kishan Srivastava vs Income tax Officer, Kanpur and Another(1).
There is one minor additional point which has been argued before us by Mr. Setalvad in Civil Appeal No. 589 of 1963, and that point is based upon the requirement prescribed by the proviso to section 34(1A) that the Income tax Officer shall not issue a notice unless he has recorded his reasons for doing so, and the Central Board of Revenue is satisfied on such reasons recorded that it is a fit case for the issue of such notice.
The argument is that the require (1) I. L. R. [1959] II All.
451. 837 ment prescribed by the proviso constitutes a condition precedent for the exercise of the authority conferred on the Income tax Officer by section 34(1A) and since that requirement is not shown to have been satisfied in his case, the appellant in C.A. No. 589 of 1963 must succeed even if section 34(1A) is held to be valid.
We are not impressed by this argument.
What was urged before the High Court by the appellant was not that no reasons had been recorded by the Income tax Officer as required by the proviso; the argument was that the appellant had not been given a copy of the said reasons and it appears to have been urged that the appellant was entitled to have such a copy.
This latter part of the case has not been pressed before us by Mr. Setalvad, and rightly.
Now, when we look at the pleadings of the parties, it is clear that it was assumed by the appellant that reasons had been recorded and in fact, it was positively affirmed by the respondent that they had been so recorded; the controversy being, if the reasons are recorded, is the assessee entitled to have a copy of those reasons? Therefore, we do not see how Mr. Setalvad can suggest that no reasons had in fact been recorded, and so, the condition precedent prescribed by the proviso had not been complied with.
The result is, all the Civil Appeals and Writ Petitions in this group fail and are dismissed.
There would be no order as to costs.
Appeals and Writ Petitions dismissed.
| The appellants along with four others were tried and convicted by the Sessions Judge for the offences of dacoity and murder and sentenced to undergo imprisonment for life.
On appeal the High Court confirmed the conviction and sentence.
Pending that appeal it issued a rule for enhancement of the sentence, and finally the rule was made absolute and they were ordered to be hanged.
The appellants thereupon filed the present appeals by special leave granted by this Court, The main point raised before this Court was that the High Court misconceived the ambit and scope of the decision of this Court in Ram Prakash vs State of Punjab [1959] S.C.R. 121 and that the High Court committed an error in law in treating the confession made by the co accused as substantive evidence against the appellants.
Held: (i) Though a confession mentioned in section 30 of the Indian Evidence Act is not evidence as defined by section 3 of the _Act, it is an element which may be taken into consideration by the criminal courts and in that sense, it may be described as evidence in a non technical way.
But in dealing with a case against an accused person, the court cannot start with the confession of a co accused person, it must begin with other evidence adduced by the prosecution and after it has formed its opinion ,with regard to the quality and effect of the said evidence, then it is per missible to turn to the confession in order to lend assurance to the conclusion of guilt which the judicial mind is about to reach on the said other evidence.
Kashmira Singh vs State of Madhya Pradesh, [1952] S.C.R. 526, Emperor vs Lalit Mohan Chukerbutty, Cal.
In re: Perivsswami Moopan, Mad. 75 and Bhuboni Sahu vs The King, [1949] 76 I.A. 147, followed.
(ii) The distinction between evidence of an accomplice under section 133 and confession tinder section 33 Evidence Act is that the former is evidence under section 3 and the court may treat it as substantive evidence and seek corroboration in other evidence but the latter is not evidence under section 3, and the court should first start from other evidence and then find assurance in the confessional statement for conviction.
624 (iii) The High Court was in error in taking the view that the decision in Ram Prakash 's case was intended to strike a dissenting note from the well established principles in regard to the admissibility and the effect of confessional statement made by accused persons.
Ram Prakash vs State of Punjab , explained.
(iv) On examining the evidence in the present case on the above principles it is found that there is no sufficient evidence to prove the prosecution case.
|
Civil Appeal No. 3338 of 1979 From the Judgment and order dated 22 and 23 11 78 of Gujarat High Court in Spl.
Civil Application No. 577 of 1978.
Anil B. Divan, Ravinder Narain and Ms. Rainu Walia for the appellants.
M. M. Abdul Khader, G. section Narayan and A. Subhashini for the respondents.
The Judgment of the Court Was delivered by VENKATARAMIAH, J.
This appeal by special leave is filed against the judgment and order dated November 22/23, 1978 of the High Court of Gujarat in Special Civil Application No. 577 of 1978 filed under Article 226 of the Constitution.
Appellant No. I is a company which is engaged in the business of manufacturing different types of glass viz. figured glass wired glass, coloured figured glass, rolled glass and coolex wired glass at Vallabh Vidyanagar in the State of Gujarat from the year 1963.
Appellant No. 2 is the Managing Director of appellant No. t.
The Central Excise Department had levied and collected excise duty 183 On the said goods on the basis that they belonged to the category of sheet glass and were therefore subject to payment of excise duty under Item 23A (1) of the First Schedule to the (hereinafter referred to as 'the Act ').
On February 20, 1976, the appellants applied for the refund of excess duty paid by them from October 1, 1963 upto the date of the application on the ground that the item of glass in question were distinct commercial goods known in the market as figured glass, wired glass, coloured figured glass, rolled glass, coolex figured glass and coolex wired glass and could not be described in common parlance as 'sheet glass ' mentioned in Item 23A and that since they did not fall under any of the Items 1 to 67 in the First Schedule to the Act they could only be subjected to levy of excise duty under the residuary provision Item 68 in that Schedule after it was inserted in it.
Item 23A of the First Schedule to the Act at all material times read as. "23A. Glass and glassware (1) Sheet glass and plate Thirty per cent ad glass valorem (2) Laboratory glassware Ten per cent ad valorem (3) Glass shells, glass Fifteen per cent ad globes and chimneys valorem for lamps and lanterns (4) other glassware inclu Thirty per cent ad ding tableware valorem.
" The relevant part of tariff Item 68 which was introduced from March 1, 1975 read as: .
All other goods not one per cent ad elsewhere specified, valorem manufactured in a factory but excluding (a) alcohol, all sorts, including alcoholic liquors for human consumption.
184 (b) opium, Indian hemp and other narcotic drugs and narcotics; and (c) dutiable goods as defined in sections 2(c) of the Medici nal and Toilet Preparations (Excise Duties) Act, 1955." After holding an enquiry and hearing the appellants, the Assistant Collector of Central Excise, Anand rejected the claim for refund by his order dated September 20, 1976 because he was of the view that the items of goods in respect of which dispute had been raised fell within the purview of tariff Item 23A (1).
Against the said order of the Assistant Collector the appellants filed a writ petition in Special Civil Application No. 1365 of 1976.
On the file of the High Court on September 28, 1976.
The said petition was admitted but when it was taken up for Final hearing it was contended on behalf of the Department that since the appellants had also filed an appeal against the very same order before the Collector of Central Excise they could not pursue the remedy under Article 226 of the Constitution as it stood then.
In view of the above contention the writ petition was withdrawn without prejudice to the remedy by way of appeal.
The appeal was thereafter disposed of by the Collector on July 27, 1977 affirming the order of.
the Assistant Collector.
A revision petition filed by the appellants against the order of the Collector was dismissed by the Government of India by its order dated February 2, 1978.
The said order in revision was challenged before tile High Court by the appellants under Article 226 of the Constitution.
The High Court by its judgment under appeal reversed the decision of the departmental authorities which had, been affirmed by the Central Government and held that the items of glass manufactured by the appellants namely, figured glass, wired glass, coloured figured glass, rolled glass and coolex wired glass did not .
fall within the scope of tariff Item 23A(1) of the First Schedule to the Act as it stood at the material time but they came within tariff Item 68 and were liable to bear duty accordingly.
The High Court was, however, of the view that the appellants were only entitled to refund of excess duty paid by them after February 20, 185 1976 on which date they raised the dispute.
Accordingly the High A Court issued a writ quashing the decision of the Department in so far as the classification of the goods was concerned and declaring that they were subject to payment of duty under tariff Item 68 of the First Schedule to the Act aud not under tariff Item 23A(1) thereof.
The Department was further directed to review the relevant assessments accordingly for the period subsequent to February 20, 1976 and to refund any excess duty that might after such review be found to be refundable to the appellants.
The claim of the appellants for refund of excess duty paid during the period prior to February 20, 1976 was, however, rejected.
The appellants have filed this appeal by special leave only as regards the rejection by the High Court of their prayer for refund of excess duty paid by them prior to February 20, 1976.
The Department has not filed any appeal against the judgment of the High Court.
Hence the decision that the goods were taxable under tariff Item 68 and not under tariff Item 23A(1) of the First Schedule to the Act has become final.
Item 23A(1) is also stated to have been since amended suitably so as to bring the items of glass in dispute within its scope.
The question which arise for consideration in this appeal are therefore (I) whether the appellants are entitled to claim refund of excess excise duty which had been paid by them prior of February 20, 1976 and if so, whether they are entitled to claim refund of such duty paid between October l, ;963 and February 20,1976 or during any shorter period and (2) whether the appellants are entitled to claim such refund in respect of all the goods in question.
F Since it is convenient to dispose of the second question at this stage, we shall take it up first.
A few more facts which are relevant to this issue have to be stated here.
As mentioned earlier the goods in respect of which dispute had been raised by the appellants in their application dated February 20, 1976 were figured glass, wired glass, coloured figured glass, rolled glass and coolex wired glass.
But it is seen that in respect of wired glass, a dispute had arisen between the Department and the appellants earlier and in that case while the Department claimed that wired glass was subject to payment of duty under tariff Item 23A(4) the appellants pleaded that wired glass was liable to duty under tariff Item 23A(1).
The Government of India ultimately by its order dated August 24, 1971 (in order No. 261 of 1971 of the Government of India on 186 Central Excise Revision Application accepted the case of the appellants that wired glass was subject to duty wader tariff Item 23A (1) and the appellants paid duty on that basis till February 20, 1976.
These facts distinguish the case in respect of wired glass from the case in respect of the other goods While the said earlier order may not be a legal bar to the contention raised by the appellants on February 20, 1976 that wired glass was not taxable under tariff Item 23A(1) but under tariff Item 68 after that date, it is certainly a circumstance which disentitles the appellants to claim refund of excess duty paid by them in a petition under Article 226 of the Constitution on a ground contrary to their earlier stand.
The claim for refund of excess duty paid on wired glass during the period prior to February 20, 1976 is liable to be rejected.
The appeal of the appellants to that extent should, therefore, fall.
In regard to the relief of refund of excess duty paid in respect of the other goods, the case stands on an entirely different footing.
This is a case where the Department had assessed the duty payable by the appellants under a wrong provision.
The appellants were obliged to pay the duty so assessed.
They did not, no doubt, question the assessments by taking a specific stand as they had done earlier in the case of wired glass.
The appellants, however, questioned the validity of the levy only on February 20, 1976 on the ground that tariff Item 23A (1) of the First Schedule to the Act under which the duty has been levied was not applicable to tile goods.
While the Department refused to accept the said plea, the High Court has upheld it.
In view of the decision of the High Court, the fact that the appellant had paid duty in excess of what they were bound in P law to pay should be now taken as having been established.
It is.
not disputed that if the appellants had filed a suit within the period of limitation the excess amount would have become refundable by virtue of section 72 of the .
Section 17(1)(c) of the provides that where in the case of any suit or application for which a period of limitation is prescribed under that Act, the suit or application is for relief from the consequence of a mistake, the period of limitation shall not begin to run until the plaintiff or applicant had discovered it or could have with reasonable diligence discovered it.
In the instant case the date on which the mistake was discovered by the appellants or the date on which the appellants could with reasonable diligence have discovered it is not clear from the record before us.
No efforts also was made in the course of the arguments urged on behalf of the appellants to establish it.
We have, therefore, to assume that on the date 187 each payment of excise duty made by the appellants in excess of the proper duty payable by them, the appellants could have discovered with due diligence that the duty claimed from them was excessive.
Under Article 113 of the which is applicable to this case, a suit for recovery of such excess duty had to be filed within three years from the date of payment to the Department.
But the appellants instead of filing a suit, first filed a writ petition in Special Civil Application No. 1365 of 1976 on September 28, 1976 and that petition had to be withdrawn in view of clause (3) of Article 226 of the Constitution as it stood then because the alternative remedy by way of an appeal was available.
The appellants could, therefore, file the writ petition out of which the appeal arises only after the disposal of the revision petition by the Government of India as mentioned earlier.
lt is not disputed that the High Courts have power, for the purpose of enforcement of fundamental rights and statutory rights, to make consequential orders for repayment of money realised by the Government without the authority of law under Article 226 of the Constitution.
This is an alternative remedy provided by the Constitution in additional to but not in supersession of the ordinary remedy by way of suit in the absence of any provision which would bar such a suit either expressly or by necessary implication.
While there are different periods of limitation prescribed for the institution of different kinds of suits by the limitation Act, 1963, there is no such period prescribed by law in respect of petitions filed under Article 226 of the Constitution.
Whether relief should be granted to a .
petitioner under Article 226 of the Constitution where the cause of action had arisen in the remote past is a matter of sound judicial discretion governed by the doctrine of laches.
Where a petitioner who could have availed of the alternative remedy by way of suit approaches the High Court under Article 226 of the Constitution, i. is appropriate ordinarily to construe that any unexplained delay in the filing of the writ petition after the expiry of the period of limitation prescribed for filing a suit as unreasonable.
This rule, however, cannot be a rigid formula.
There may be cases where even a delay of a shorter period may be considered to be sufficient to refuse relief in a petition under Article 226 of the Constitution.
There may also be cases where there may be circumstances which may persuade the court to grant relief even though the petition may have been filed beyond the period of limitation prescribed for a suit.
Each case has to judged on its own facts and circumstance touching the conduct of the parties, the change in situation, the prejudice which is likely to be caused to the opposite party or to the general public etc.
In the instant case, the appellants 188 had in fact approached the High Court on September 28, 1976 itself by filing Special Civil Application No. 1365 of 1976 for directing repayment of the excess duty paid by them.
But no relief could be granted in that petition in view of the provisions of Article 226 of the Constitution as it stood then and the petition had to be withdrawn.
Hence even granting that on the date of making each payment of excise duty in excess of the proper duty payable under law, the appellants should be deemed to have discovered the mistake, all such excess payments made on and after September 28, 1973 which would fall within the period of three years prior to the date on which Special Civil Application No. 1365 of 1976 was filed should have been ordered to be refunded under Article 226 of the Constitution.
But the High Court declined to do so on grounds of estoppel and acquiescence.
While we do agree that the appellants should not be granted any relief in respect of payment made between October 1, 1963 and September 27, 1973 which would fall beyond three years from the date of the first writ petition filed in this case we do not find it proper and just to negative the claim of the appellants in respect of excess payments made after September 28, 1973.
In the instant case the appellants had made excess payments on being assessed by the Department and such payments cannot be treated as voluntary payments precluding them from recovering them.
(See Sales Tax officer, Banaras & Ors.
vs Kanhaiya Lal Mukundlal Saraf.
We do not also find that the conduct of the appellants is of such a nature as would disentitle them to claim refund of excess payments made in respect of goods other than wired glass.
We, therefore, modify the judgment and order passed by the High Court by quashing the assessments of excise duty made in respect of the goods in question other than wired glass viz. figured glass, coloured figured glass, rolled glass and coolex wired glass for the period between September 28, 1973 and February 20, 1976 also and directing the assessing authority to make a fresh assessment in accordance with law in the light of the decision of the High Court.
a The respondents are further directed to refund after such fresh determination any excess duty that may be found to have been paid by the appellants.
The fresh assessments shall be completed 189 within four months from today.
The appeal is, however, dismissed in A so far it relates to the claim for refund of excess duty paid in respect of wired glass during that period.
The appeal is accordingly allowed in part.
No costs.
N.V.K. Appeal partly allowed.
| A group of persons residing in a village and professing the Sikh religion made an application to the State Government to declare the religious and charitable institution described in the application as a Sikh Gurdwara.
This application was published in the Officer Gazette and respondent No. 1 filed objections under section 8 of the Sikh Gurdwaras Act, 1925 contending that the institution was not a Sikh Gurdwara and that he was entitled to raise the said contention because he was the holder of the hereditary office of mahant of the institution.
The application was forwarded by the State Government under section 14 to the Sikh Gurdwara Tribunal which held that the respondent was the hereditary holder of the office of mahant of the institution and that the institution was a Sikh Gurdwara and was governed by the Act.
The respondent thereupon filed an appeal in the High Court which held that the institution was set up by a mahant for commemorating the memory of his Guru and that the land on which the institution was set up with the grant of Muafi had been donated by a Muslim ruler.
After considering of the entries in the land records, the High Court further held that institution was not only serving as a Gurdwara for the worship of Granth Saheb but was also used as a Dera or lodging house or Sadhus or Faqirs of the Udasi Sect and that there was a duality of faiths in the institution.
The High Court concluded that the institution was catering to the religious views and beliefs of both the sects amongst the local population and that the Tribunal was in error in declaring that the institution was a Sikh Gudrwara which would permit one of the communities to appropriate the institution to its exclusive use and to deprive the other community or sect from the dual use to which the institution has been put ever since it was founded or established.
The High Court, consequently allowed the appeal and set aside the declaration made by the Tribunal.
Dismissing the further appeals to this Court 373 ^ HELD: 1.
The appraisal of the evidence by the High Court is correct and unexceptional.
The evidence discloses that the institution in question was not shown to have been established for use by Sikhs for the purpose of public worship and therefore one of the material conditions for attracting section 16(2)(iii) of the Sikh Gurdwara Act, 1925 was not established.
It is immaterial that at the time of presentation of the petition it was along with the followers of Udasi Sect used for worship of Granth Sahib by the Sikhs.
[382E F] 2.
In order to bring a case under section 16(2)(iii) of the Act it must not only be established that the institution was established by Sikhs for the purpose of public worship but was used for such worship by Sikhs before and at the time of the presentation of the petition.
The use of the conjunctive 'and ' clearly imports that in order to attract Section 16(2)(iii) both the conditions must be cumulatively satisfied.
[380A B] Gurmukh Singh vs Risaldar Deva Singh & Ors., AIR 1937 Lahore 577, allowed.
Udasis form an independent sect : They do venerate Sikh Scriptures.
Therefore, in an institution of Udasis sect, one can visualise reading of Granth Sahib or veneration of Sikh scriptures.
That itself is not decisive of the character of the institution.
If the succession was from Guru to Chela and those Gurus were followers of Udasi faith and the institution was known as Dera of Udasi Bhekh and they followed some of the practices of Hindu traditional religion that would be completely destructive of the character of the institution as Sikh Gurdwara.
[381E F] Mahant Daram Dass etc.
vs The State of Punjab & Ors. ; Hem Singh & Ors.
vs Basant Das and Anr.
, AIR 1936 PC 93 at 100 and Pritam Dass Mahant vs Shiromani Gurdwara Prabhandak Committee, C.A. No. 1983 of 1970 dated 16.2.84 referred to.
In the instant case, there is no evidence to show that the institution was established for use by Sikhs for the purpose of public worship.
Though the institution may be established by anyone may be a Sikh or follower of any other faith, but it must be established for use by Sikhs for the purpose of public worship.
The original grantor was a Muslim ruler but there is nothing to show that when Gulab Das Faqir of Udasi Sect established the institution, he did it for use by Sikhs for the purpose of public worship.
Later on as the majority of the population of the village were followers of Sikh religion and as Udasis also venerate Granth Sahib, reading of Granth Sahib may have commenced and therefore, generally speaking people may describe, and revenue record may show it to be Gurdwara, but that would neither be decisive of the character of the institution nor sufficient to bring the institution within Section 16(2)(iii) of the Act.
[380D F]
|
Civil Appeal No. 763 of 963.
Appeal by special leave from the judgment and order dated March 30, 1961 of the Punjab High Court in Civil Appeal Writ No. 1100 of 1959.
Bishan Narain and R. N. Sachthey, for the appellant.
section N. Andley, for the respondent.
The Judgment of the Court was delivered by Gajendragadkar, C.J.
The short question of law which arises in this appeal relates to the construction of section 5(2) of the Punjab Cinemas (Regulation) Act, 1952 (No. 11 of 1952) (hereinafter called 'the Act ').
The respondent, Hari Krishan Sharma, who claims to be the owner of a certain site in the town of Jhajjar, desired to construct a cinema hall at the said place for the purpose of exhibiting cinematography.
On December 16, 1956, he submitted an application to appellant No. 2, the Subdivisions Officer, Jhajjar, for the grant of the licence to construct and run a permanent cinema hall on his site.
On February 22, 1957, appellant No. 2 forwarded the said application to the Tehsildar for inspection of the site.
It appears that on April 24, 1957, the Government of appellant No. 1, the State of Punjab, had issued instructions in regard to the grant of licences under the relevant provisions of the Act.
These instructions required that all requests for the grant of permission for opening all new permanent cinemas should be referred to appellant No. 1 for orders.
On September 26, 1957, the Tehsildar made a report that the site was in accordance with the provisions of the Act and that the respondent was its owner.
On September 30, 1957, another memorandum was issued by appellant No. 1 addressed to all the District Magistrates and the Sub Divisional Officers conveying the decision of appellant No. 1 that when an application for grant of permission to construct a permanent cinema was referred to the Government, it should be accompanied by the particulars enumerated in the memorandum.
Amongst the items thus enumerated were the population of the town where the permanent cinema is proposed to be constructed; whether there are any permanent cinemas already in existence in the town, and if so, how many; whether the applicant/applicants has/have been taking any part in any activity undermining the security of the State; and whether the financial position of the applicant/applicants is/are sound.
These notifications were issued by appellant No.1 8Sup.
CI/66 16 984 while the application made by the respondent was pending co; sideration.
On April 24, 1958, appellant No. 2 informed the respondent that the site proposed by him for the construction of the cinema hall had been approved.
The respondent was required to submit a plan of the building within a month and he was warned not to transfer the ownership of the site without the previous sanction of the licensing authority.
On May 23, 1958, the respondent submitted the building plans.
These plans were forwarded by appellant No. 2 to the Executive Engineer, Provincial Division, Rohtak, for scrutiny.
While forwarding the plans to the Executive Engineer, appellant No. 2 had stated that the respondent had been allowed to construct a permanent cinema hall at Jhajjar and the site plans were being submitted for proper scrutiny and approval at an early date.
Meanwhile, it appears that one Mohan Lal had also applied for grant of a licence for construction of a cinema hall in June, 1958, but he was informed that permission had already been granted to one person, and there was no scope for a second cinema hall.
That is why he was told that his application could not be considered.
Yet another person, Sultan Singh by name, made a similar application on August 26, 1958.
On October 7, 1958, the Provincial Town Planner, Punjab, wrote to the Executive Engineer that the building plans submitted by the respondent had been checked and they appeared to satisfy the rules framed under the Act so far as the structural features of the building were concerned.
On October 6, 1958, however, appellant No. 2 addressed a memorandum to the respondent informing him that the site plans prepared by him for the construction of a permanent cinema hall would be referred to appellant No. 1 for approval "according to the latest instructions".
Then followed a report made by appellant No. 2 to appellant No. 1 on October 31, 1958, mentioning all the relevant facts in regard to the application of the respondent, and adding that the report was forwarded to appellant No. I for its consideration.
On December 20, 1958, appellant No. 2 submitted another report to appellant No. 1 saying, inter alia, that it had been reported by the police that the respondent had been arrested in connection with "Save Hindi Agitation" and was discharged on tendering apology and that he did not pay any income tax.
On March 4, 1959, appellant No. 2 informed the respondent that his application had been rejected by appellant No. as the same did not fulfil the conditions laid down in the memorandum, dated 985 September 3 0, 1957.
It appears that appellant No. I had decided of grant the licence to Sultan Singh, and that probably is the reason why the application of the respondent was rejected.
On receiving this communication from appellant No. 2, the respondent preferred an appeal to appellant No. 1 under section 5(3) of the Act, but his appeal was rejected on April 14, 1959; and that drove the respondent to the High Court of Punjab to seek an appropriate relief under its jurisdiction under Article 226 of the Constitution.
In his petition, the respondent alleged that the order passed by appellant No. I rejecting his application for a licence under section 5 was illegal, arbitrary, capricious, oppressive, and without jurisdiction.
In support of his plea, the respondent had also alleged that in rejecting his application, appellant No. 1 had been influenced by extraneous considerations which had no relevance to the decision of the question as to whether a licence should be granted to him or not.
The suggestion made by the respondent was that appellant No. 1 wanted to prefer Sultan Singh to him for extraneous considerations, and that rendered the impugned order invalid.
On these allegations, the respondent claimed that a writ in the nature of certiorari be issued setting aside the said order, and directing the appropriate authority under section 5 of the Act to deal with the respondent 's application in accordance with law.
The appellants disputed the allegations made by the respon dent in his writ petition.
It was urged that appellant No. I had taken into account the relevant considerations prescribed by the instructions issued by it by virtue of its authority under section 5(2) of the Act, and had come to the conclusion that the respondent 's application could not be granted.
The plea made by the respondent that appellant No. I had been influenced by extraneous considerations, was denied.
On these pleas, the High Court was called upon to consider five issues.
The important ones amongst these issues were about the jurisdiction of appellant No. 1 to pass the order rejecting the respondent 's application for a licence, and about the invalidity of the order resulting from the fact that it was based on extraneous considerations.
The High Court has upheld the respondent 's contention on the first point, and has held that appellant No. I had no jurisdiction to deal with the matter as it has purported to do.
On that view, the High Court did not think it necessary to consider the other issues, particularly because "they involved questions of fact which are more or less disputed and on which 986 it will not be possible to come to any clear conclusion on the factual side".
In the result, the High Court has allowed the writ petition filed by the respondent and has directed the appellants to treat the order made by appellant No. as void, ineffective, invalid and of no binding effect.
In consequence, a writ of mandamus has also been issued requiring the licensing authority to deal with the respondent 's application in accordance with law.
It is against this order that the appellants have come to this Court by special leave and the only question which they have raised before us for our decision is whether the High Court was right in holding that appellant No. I had no jurisdiction to deal with the respondents application in the manner it has done under section 5(2) of the Act.
That is how the question about the construction of section 5(2) falls to be decided in the present appeal.
Before dealing with this question, we may very briefly indicate the effect of the broad provisions of the Act.
The Act was passed in 1952 in order to make provisions for regulating exhibitions by means of cinematography in the Punjab.
Section 3 of the Act provides that no person shall give an exhibition, by means of a cinematography, elsewhere than in a place licensed under this Act or otherwise than in compliance with any condition and restriction imposed by such licence.
Section 4 provides that the licensing authority under the Act shall be the District Magistrate.
The proviso to this section authorises the Government, by notification, to constitute for the whole or any part of the State, such other authority as it may specify therein, to be the licensing authority for the purposes of the Act.
It is common ground that appellant No. 2 has been constituted a licensing authority for the area with which we are concerned in the present appeal.
That takes us to section 5 which must be read "5.
(1) The licensing authority shall not grant a licence under this Act unless it is satisfied that (a) the rules made under this Act have been complied with; and (b) adequate precautions have been taken in the place, in respect of which the licence is to be given, to provide for the safety of the persons attending exhibitions therein.
(2) Subject to the foregoing provisions of this section and to the control of the Government, the licensing authority may grant licences under this Act to such 987 persons as it thinks fit, on such terms and conditions as it may determine.
(3) Any person aggrieved by the decision of the licensing authority refusing to grant a licence under this Act may, within such time as may be prescribed, appeal to the Government or to such officer as the Government may specify in this behalf and the Government or the officer, as the case may be, may make such order in the case as it or he thinks fit".
Sub section
(4) of section 5 authorises the Government to issue directions to licensees generally or to any licensee in particular for the purpose specified by it.
Section 6 confers powers on Government or local authority to suspend exhibition of films in certain cases; and section 7 prescribes penalties.
Section 8 empowers the State Government or the licensing authority to suspend, cancel or revoke a licence granted under section 5, on one or more of the grounds indicated by clauses (a) to (g) of sub section
The other sub sections of section 8 prescribe the procedure which has to be followed in exercising the powers conferred by sub section
Section 9 confers on the Government the power to make rules by a notification; this power can be exercised for any of the purposes mentioned in clauses (a), (b) & (c) of the said section.
Section 10 gives power to the State Government to exempt any cinematograph exhibition or class of cinematograph exhibitions from the operation of any of the provisions of the Act; and section 1 1 provides that the (No. 11 of 1918) in so far as it relates to matters other than the sanctioning of cinematograph films for exhibition, is hereby repealed.
There is a proviso to this section with which we are not concerned in the present appeal.
That, broadly stated, is the scheme of the Act.
There are two Central Acts dealing with the same subject.
The first one is Act II of 1918 which, as we have seen, is repealed in the manner prescribed by section 1 1 of the Act so far as the Punjab is concerned.
Section 5 of this Act corresponds generally to section 5 of the Act.
The Central Act II of 1918 has been subsequently repealed by Central Act 37 of 1952.
Section 12 of this latter Act corresponds generally to section 5 of the Act.
The question which we have to decide in the present appeal lies within a very narrow compass.
What appellant No. 1 has done is to require the licensing authority to forward to it all applications received for grant of licences, and it has assumed power and authority to deal with the said applications on the merits for itself in the, first instance, Is appellant No. 1 justified in 988 assuming jurisdiction which has been conferred on the licensing authority by section 5(1) and (2) of the Act ? It is plain that section 5(1) and (2) have conferred jurisdiction on the licensing authority to deal with applications for licences, and either grant them or reject them.
In other words, the scheme of the statute is that when an application for licence is made, it has to be considered by the licensing authority and dealt with under section 5(1) and (2) of the Act.
Section 5(3) provides for an appeal to appellant No. 1 where the licensing authority has refused to grant a licence; and this provision clearly shows that appellant No. 1 is constituted into an appellate authority in cases where an application for licence is rejected by the licensing authority.
The course adopted by appellant No. 1 in requiring all applications for licences to be forwarded to it for disposal, has really converted the appellate authority into the original authority itself, because section 5(3) clearly allows an appeal to be preferred by a person who is aggrieved by the rejection of his application for a licence by the licensing authority.
It is, however, urged by Mr. Bishan Narain for the appellants that section 5(2) confers very wide powers of control on appellant No. 1 and this power can take within its sweep the direction issued by appellant No. I that all applications for licences should be forwarded to it for disposal.
It is true that section 5(2) provides that the licensing authority may grant licences subject to the provisions of section 5(1) and subject to the control of the Government; and it may be conceded that the control of the Government subject to which the licensing authority has to function while exercising its power under section 5(1) and (2), is very wide; but however wide this control may be, it cannot justify appellant No. 1 to completely oust the licensing authority and itself usurp his functions.
The Legislature contemplates a licensing authority as distinct from the Government.
It no doubt recognises that the licensing authority has to act under the control of the Government; but it is the licensing authority which has to act and not the Government itself.
The result of the instructions issued by appellant No. 1 is to change the statutory provision of section 5(2) and obliterate the licensing authority from the Statute book altogether.
That, in our opinion, is not justified by the provision as to the control of Government prescribed by section 5(2).
The control of Government contemplated by section 5(2) may justify the issue of general instructions or directions which may be legitimate for the purpose of the Act, and these instructions and directions may necessarily guide the licensing authority in dealing with applications for licences.
The said control may, therefore, take the form of the issuance of general directions and instructions 989 which are legitimate and reasonable for the purpose of the Act.
The said control may also involve the exercise of revisional power after an order has been passed by the licensing authority.
It is true that section 5(2), in terms, does not refer to the revisional power of the Government; but having regard to the scheme of the section, it may not be unreasonable to hold that if the Government is satisfied that in a given case, licence has been granted unreasonably, or contrary to the provisions of section 5(1), or contrary to the general instructions legitimately issued by it may suo moto exercise its power to correct the said order by exercising its power of control.
In other words, in the context in which the control of the Government has been provided for by section 5(2), it would be permissible to hold that the said control can be exercised generally before applications for licences are granted, or particularly by correcting individual orders if they are found to be erroneous; but in any case, Government has to function either as an appellate authority or as a revisional authority, for that is the result of section 5(2) and (3).
Government cannot assume for itself the powers of the licensing authority which have been specifically provided for by section 5(1) and (2) of the Act.
To hold that the control of the Government contemplated by section 5(2) would justify their taking away the entire jurisdiction and authority from the licensing authority, is to permit the Government by means of its executive power to change the statutory provision in a substantial manner; and that position clearly is not sustainable.
Section 5(3) provides for an appeal at the instance of the party which is aggrieved by the rejection of its application for the grant of a licence.
No appeal is provided for against an order granting the licence; but as we have just indicated, in case it appears to the Government that an application has been granted erroneously or unfairly, it can exercise its power of control specified by section 5(2) and set aside such an erroneous order, and that would make the provision as to appeal, or revision self contained and satisfactory.
The scheme of the Act clearly indicates that there are, two authorities which are expected to function under the Act the licensing authority, as well as the Government.
Section 8 is an illustration in point.
It empowers the State Government or the licensing authority to suspend, cancel or revoke a licence on the grounds specified by it; and that shows that if a licence is granted by the licensing authority, it has the power to suspend, cancel or revoke such a licence just as Government has a similar power to take action in respect of the licence already granted.
We are, therefore, satisfied that the High Court was right in coming to the conclusion that appellant No. 1 had no authority or power to 990 require all applications for licences made under the provisions of the Act to be forwarded to it, and to deal with them itself in the first instance.
Section 5 clearly requires that such applications must be dealt with by the licensing authorities in their respective areas in the first instance, and if they are granted, they may be revised by Government under section 5(2); and if they are rejected, parties aggrieved by the said orders of rejection may prefer appeals under section 5(3) of the Act.
The basic fact in the scheme of the Act is that it is the licensing authority which is solely given the power to deal with such applications in the first instance, and this basic position cannot be changed by Government by issuing any executive orders or by making rules under section 9 of the Act.
It appears that this question has been considered by the Andhra Pradesh, and the Rajasthan High Courts and they have taken the view that the Government can, by virtue of the power of control, deal with the applications for licences themselves in the first instance lvide Karnati Rangaiah vs A. Sultan Mohiddin and Brothers, Tadipatri & Ors.(1) and M/s. Vishnu Talkies vs The State & Others(1) respectively.] We are satisfied that this view does not correctly represent the true legal position under the relevant provisions of the Acts prevailing in the two respective States.
In Bharat Bhushan vs Cinama and City Magistrate & Anr.
(3 ) also, the powers of the State Government under section 5(3) of the , have been similarly construed and that again, in our opinion, cannot be said to be right.
In dealing with the question about the scope and effect of the power of control conferred on the State Government, the Allahabad High Court has taken the view that the power of control which has been conferred on the State Government by section 5 (2) is wide enough to enable the State Government to revise an order passed by a licensing authority granting a licence.
This observation, in our opinion, correctly represents the true scope and effect of the power of control conferred on the State Government.
The result is, the appeal fails and is dismissed with costs.
Appeal dismissed.
(1) Al.
R. (2) Raj.
(3) A.I.R. 1956 AU.
| The appellant, who was a permanent employee of the respondent State Transport Corporation, proceeded on 15 days ' leave on January 15, 1962 and thereafter applied for an extension of his leave on medical grounds.
This extension was refused and although the appellant was directed to report for duty immediately, he continued to be absent and wrote to the respondent on March 3, 1963, intimating him of his inability to join duty as he was still not well.
By an order of the respondent dated March 9, 1962, the appellant 's services were terminated with effect from January 16, 1962 on the ground of long absence.
After his representations and an appeal to higher authorities in the ;Corporation had been rejected, the appellant filed a petition for a writ of Certiorari to quash the dismissal order, but this petition was dismissed in limine.
It was contended on behalf of the appellant that in accordance with Clauses 4(b), 38 and 40 of Schedule A to the Regulations governing his service conditions, a charge should have been framed against him and that be was entitled to an opportunity to show cause against the proposed 'punishment.
On the other hand it was the respondents ' contention that though the order of dismissal referred to long absence as the cause of termination, the termination itself was not by way of punishment and the only right of the appellant under Regulation 61 was to two months ' notice in lieu of pay; and that an examination of the correspondence and the circumstances of the case showed that the appellant had been given to opportunity to show cause and that there was in fact and in substance compliance with the rules of natural justice.
HELD : The order of termination passed against the appellant must be quashed as it was bad in law since it contravened the provisions of cl. 4(b) of the Regulations and also the principles of natural justice.
[44 B] Clauses 38 and 40 provided that absence without leave and without reasonable cause, and failure, without sufficient cause. to report for duty when directed amount to acts of misconduct.
Under clause 4(b) it was therefore obligatory on the part of the respondent to give the appellant a reasonable opportunity to show cause, by providing him with a copy of the charge or charges as well as the statement of the allegations that had been made against him.
|
Subsets and Splits