Judgement-Summary Pairs
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<s>[INST] Summarize the following judgement: Criminal Appeal No. 214 of 1979.
From the Judgment and Order dated 22.11.1978 of the Punjab and Haryana High Court in Criminal Appeal No. 701 of 1975.
A.N. Mulla, O.P. Sharma and R.C. Gubrele for the Appellants.
Ms. Amita Gupta and R.S. Suri for the Respondents.
The Judgment of the Court was delivered by FATHIMA BEEVI, J.
Balbir Singh and Inderjit Singh, the appellants, are brothers.
Onkar Singh, brother of Brijinder Singh, the father of the appellants, died of multiple in juries on 8.7.1974.
The appellants along with Mehar Singh, were tried on the charge of murder under Section 302, I.P.C. read with Section 34, I.P.C. The Sessions Judge acquitted the accused of the charge.
The High Court, in appeal pre ferred by the State, convicted these appellants and sen tenced them to undergo imprisonment for life under Section 302, I.P.C. The appeal being one under Section 2 of the , the appellants ' learned counsel persuaded us to go through the entire evidence maintaining that the High Court has erred in interfering with the order of acquittal.
Ac cording to the learned counsel, the view taken by the trial court is reasonable and there was no justification for upsetting the judgment even if a different view could have been taken by the appellate court on reappraisal of the evidence.
It was contended that the High Court has not effectively dislodged the various reasons given by the trial Court for discarding the evidence and that the conclusion drawn by the High Court on the evidence on record is clearly wrong.
In order to appreciate these arguments, it is necessary to set out briefly the facts of the case and summarize the relevant evidence.
The deceased, Onkar Singh, at the time of his death was employed in government service and was resid ing in Chandigarh.
His brother, Darbara Singh, and his son Iswardial Singh, as well as these appellants were residing in the village.
Onkar Singh came to the village on 6th July, 1974.
On 8th July, 242 1974, at about 10.30 A.M., Darbara Singh, along with his wife, Surjit Kant, and son Ishwardial Singh had gone to the mango grove across the choe to collect mangoes for being given to Onkar Singh.
While they were returning home along the pathway, Onkar Singh was seen coming in the opposite direction.
These two appellants along with their companion emerged on the scene and attacked Onkar Singh Balbir Singh had a datar and Inderjit Singh had a sua and Mehar Singh had a lathi.
After inflicting injuries with the weapons the appellants escaped.
The deceased, Onkar Singh, was removed to the house of Darbara Singh for being rushed to the hospi tal but within a short time, he breathed his last.
The first information was lodged at the police station around 7.00 P.M., and the crime was registered and investi gated and finally chargesheeted.
The post mortem examination on the dead body revealed that Onkar Singh had sustained besides lacerated injuries three stab wounds and that he died on account of the shock and hemorrhage as a result of the injuries.
The motive alleged was that there had been some grouse on account of the transfer of agricultural land that belonged to the family, among the children of the three brothers.
The land stood in the name of the deceased 's son under cultivation of Darbara Singh at the material time.
The land was originally gifted to the appellants in 1964 but was reconveyed to the deceased.
The learned Sessions Judge found that the motive had been proved.
The two eye witnesses to the occurrence were Darbara Singh and his son Ishwardial Singh.
They narrated the incident.
Their evidence was discarded by the trial court for the reasons that there was a thick growth of reeds on either side of the pathway which was running zigzag and it was not, therefore, possible for the witnesses even if they were present in the vicinity to observe the assault and identify the assailants.
Another reason was that the medical evidence was in distinct conflict with the oral testimony and the nature of injuries were such that the same could not be attributed to the use of the weapons mentioned by the witnesses.
Yet another reason was that there had been no trace of blood either on the pathway or on the clothes worn by the deceased.
The time of death of the deceased as dis closed by the medical evidence did not agree with the ver sion of the witnesses.
There had been inordinate delay in lodging the F.I.R.
The first information report did not inspire confidence.
The witnesses had no consistent case regarding the role played by Mehar Singh and the evidence was interested and unconvincing.
The learned Judge, there fore, rejected the 243 same and recorded the order of acquittal.
The High Court had cautioned itself on the limited scope of interference while analysing and appreciating the evi dence and arriving at its own conclusion.
The High Court has given very cogent reasons to establish that the whole ap proach by the trial court was wrong and reasons for reject ing the evidence did not stand scrutiny.
Having heard the counsel on both sides, we agree with the High Court that the prosecution evidence in the case is wholly reliable and it leads to irresistible conclusion that these appellants had intentionally caused the death of Onkar Singh.
The occurrence took place in broad day light at a place close to the residence of the witnesses.
The appel lants are the near relations of the deceased and the wit nesses and it has happened in the background of the family rued.
The first information has been recorded within a few hours which in the circumstances of the case cannot be considered as unreasonably delayed.
The version given in the F.I.R, is substantially the same as the one spoken to by the witnesses before the court.
There had not been any accept able suggestion why Darbara Singh should foist a case against the appellants.
It is most unlikely that these witnesses would allow the real culprits to escape and their near relations to be implicated on the happening of such a tragedy in the family.
Both the father and the son have given consistent account of the role played by each of the appellants.
There would not have been any difficulty for the witnesses to identify the appellants from a distance and across the reeds even if they could get only a glimpse of them in the course of their action.
The evidence is also clear that there had not been thick growth of reeds to cause complete obliteration of the scene.
It could not, therefore, be assumed that the place of occurrence was out of bounds and that the witnesses have weaved a story of their own.
As rightly pointed out by the High Court, the medical evidence is not inconsistent.
The witnesses are clear that the appel lants used the datar on the wrong side and that accounts for the lacerated injuries.
Incised wounds may be produced by using the sua on that part of the body.
We do not find any material to infer that the death could not have happened at the time spoken to by the witnesses.
Since there had been internal hemorrhage and the injured person was immediately lifted from the place of occurrence the absence of blood at the scene is not strange.
The fact that the acquittal of Mehar Singh had not been interfered with by the High Court cannot advance the case of the appellants.
The High Court 244 has given him the benefit of doubt on the materials that emerged in the evidence.
That is no reason to discard the evidence of the witnesses so far as these appellants are concerned when such evidence does not suffer from any seri ous infirmity.
We find that the High Court had given weighty reasons in accepting the evidence and finding that the view taken by the trial court was clearly wrong.
We reject the contentions of the appellants.
There is no reason to interfere with the judgment of the High Court.
The appeal is accordingly V.P.R. Appeal dis missed. [/INST] The appellants along with another were tried of the charge of murder under Section 302, I.P.C., read with Sec tion 34, I.P.C. The prosecution case was that the appellants as well as the deceased 's brother and his son were residing in a vil lage.
The deceased came to the village on 6.7.1974.
On 8.7.1974 at about 10.30 a.m., the deceased 's brother along with his wife and his son had gone to the mango grove across the choe to collect mangoes to give to the deceased.
While they were returning home along the pathway, the deceased was seen coming in the opposite direction.
The two appellants along with another accused, emerged on the scene and at tacked the deceased.
Appellant No.1 had a datar and Appel lant No. 2 had a sua and their companion had a lathi.
After inflicting injuries with the weapons the appellants escaped.
The deceased was removed to the house of one Darbara Singh for being rushed to the hospital, but within a short time, he breathed his last.
The first information was lodged at the police station, around 7.00 P.M., and the crime was registered and investi gated and finally chargesheeted.
The post mortem examination of the dead body revealed that the deceased had sustained lacerated injuries and three stab wounds and that he died on account of the shock and hemorrhage as a result of the injuries.
The motive alleged was that there had been some grouse on account of the transfer of agricultural land that be longed to the family, among the 240 children of the three brothers.
The Sessions Judge acquitted the accused of the charge.
The High Court, in appeal preferred by the State convicted the appellants and sentenced them to undergo imprisonment for life, against which, this appeal under Section 2 of the Supreme Court (Enlargement of Criminal Appellate Jurisdic tion) Act, 1970 was filed.
The appellants contended that the view taken by the trial court was reasonable and there was no justification for upsetting the judgment even if a different view could have been taken by the appellate court on reappraisal of the evidence; that the High Court did not dislodge the various reasons given by the trial court for discarding the evidence and that the conclusion drawn by the High Court on the evidence on record was wrong.
Dismissing the appeal, this Court, HELD: 1.
The prosecution evidence in the case is wholly reliable and it leads to irresistible conclusion that the appellants had intentionally caused the death of the de ceased.
The occurrence took place in broad day light at a place close to the residence of the witnesses.
The appel lants are the near relations of the deceased and the wit nesses and it has happened in the background of the family rued.
The first information has been recorded within a few hours which in the circumstances of the case cannot be considered as unreasonably delayed.
The version given in the F.I.R. is substantially the same as the one spoken to by the witnesses before the Court.
[243 C D] 2.
The eye witnesses have given consistent account of the role played by each of the appellants.
There would not have been any difficulty for the witnesses to identify the appellants from a distance and across the reeds even if they could get only a glimpse of them in the course of their action, and the medical evidence is not Inconsistent.
[243 E F] 3.
The fact that the acquittal of the companion of the appellants had not been interfered with by the High Court cannot advance the case of the appellants.
The High Court has given him the benefit of doubt on the materials that emerged in the evidence.
That is no reason to discard the evidence of the witnesses so far as the appellants are concerned when such 241 evidence does not suffer from any serious infirmity; [243 H; 244 A] </s> |
<s>[INST] Summarize the following judgement: terim Application Nos.1, 2 and 3 of 1989.
IN Civil Appeal Nos. 3187 and 3188 of 1988.
From the Judgment and Order dated 4.4.1988 of the Madhya Pradesh High Court in Civil Revision No. 26 of 1988.
Soli J. Sorabjee, Attorney General, P.P. Rao, Rajinder Sachher, D.K. Kapur, Mrs. Indu Goswamy, Raju Ramachandran, Mukul Mudgal, S.R. Bhat, M.S. Ganesh, V.B. Mishra, A.M. Khanwilkar, Ms. Madhu Khatri, p. Parameswaran, Ms. A. Subha shini and C.S.Vaidyanathan for the appearing parties.
383 The following Order of the Court was delivered: By these applications the Indian Red Cross Society seeks a modification of certain directions issued by this court on 15th February, 1989, in Civil Appeals Nos. 3187 and 3188 of 1988 pursuant to the settlement of the suit instituted by the Union of India against Union Carbide Corporation and the Union Carbide Corporation (India) Limited arising out of the Bhopal Gas leak disaster.
The prayer of the Indian Red Cross Society in these applications arises in the context of the order dated 7th June, 1985, made by John F. Keenan, Presiding Judge of the Southern District Court at New York (U.S.) directing the utilisation of 5 Million dollars for relief to the victims of the gas leak disaster through Indian Red Cross Society.
In the said order Judge Keenan referred to the willingness of the Union Carbide Corporation "to pay 5 million dollars to aid the victims of the gas plant disaster which occurred in December, 1984 in Bhopal, India" and had desired and indicated that in the administration of this fund, which was intended to be at the disposal of the Union of India, should be subject to certain reporting requirements as to the utilisation of the funds.
Union of India did not agree to subject itself to those conditions.
Referring to the alter native arrangements as to the administration of the interim relief necessitated by Union of India 's disinclination to take up relief operation on the terms stipulated by the Court, Judge Keenan observed: Counsel for the Union of India has informed the Court that the Union of India considers these reporting requirements so onerous as to compel the Union of India to decline the five million dollars in interim relief offered.
Accordingly; the Court directs that Liasion Counsel and Messrs Bailey and Chesley of the Executive Committee contact the American Red Cross Society to arrange for discussions with the Indian Red Cross Society, in order to formulate a plan for distribution of the five million dollars to the victims of the gas plant disaster.
The US District Court, therefore, proposed a scheme for the utilisation of the Interim Relief Fund through the agency of the American Red Cross Society.
But what is of particular significance in the present context is as to how this interim relief fund was to be treated and accounted for at the end of the day when the litigation culminated in a final decision.
That the payment was intended to be without prejudice to the contentions of the Union Carbide Corpora tion and that, further, the amount of interim relief would form part of the quantum that may finally be adjudicated was rendered explicit in the last paragraph of the said order dated 7th June, 1985 which stipulated: 384 "Neither the promulgation, implementation nor anything contained herein shall be asserted or used in any manner against the interests of Union Carbide Corporation.
This provision of interim relief by Union Carbide Corporation shall be credited against the payment of any final judgment or settlement of the claims against Union Carbide Corporation arising out of the Bhopal gas leak of December, 1984." After the proceedings in the US District Court terminat ed upon the Union Carbide Corporation 's plea of forum non conveniens being upheld, Union of India instituted suit No. 1113 of 1986 in the District Court at Bhopal.
The claim in the suit came to be settled in this court in the said Civil Appeal Nos. 3187, 3188 of 1988 by the orders dated 14th/15th February, 1989.
In terms of the said settlement the sum of 5 million US dollars was treated as part of the settlement fund.
In the order of this Court dated 15th February, 1989 this sum of 5 million US dollars was specifically referred to in clause (a) of paragraph 2 and paragraph 5.
The relevant portions of the order are excerpted below: "(a) a sum of US 425 million (Four Hundred and Twenty five millions) shall be paid on or before 23rd March, 1989, by Union Carbide Corporation to the Union of India, less US $ 5 million already paid by the Union Carbide Corporation pursuant to the order dated 7th June, 1985 of the Judge Keenan in the court proceedings taken in the United States of America.
The amounts payable to the Union of India under these orders of the Court shall be deposited to the credit of the Registrar of this Court in a bank under directions to be taken from this Court.
This order will be sufficient authority for the Registrar of the Supreme Court to have tile amount transferred to his credit which is lying unutilised with tile Indian Red Cross Society pursuant to the directions from tile International Red Cross Society." [Emphasis supplied] The case of the applicant Indian Red Cross Society is that in the course of the negotiations the American Red Cross had with it in the matter of administration of this relief, the Red Cross Society of India had made it clear to the American Red Cross that it would not undertake the relief administration unless the fund was assigned to it unconditionally.
Red Cross Society of India would say that it was on this specific understanding that it accepted the engagement to administer the funds in India.
385 Accordingly, the Indian Red Cross Society contends that the order dated 5th February, 1989 in so far it treats the unutilised part of the interim relief fund as part of the settlement fund and authorises the Registrar of he Supreme Court to realise it as such is not consistent with the terms under which the relief fund was agreed to be entrusted to and accepted by the Indian Red Cross Society and that, therefore, those directions in the order dated 15th Febru ary, 1989 require to be deleted.
We have heard Dr. Chitaley for the Indian Red Cross Society, Shri F.S. Nariman for the Union Carbide Corporation and the learned Attorney General for the Union of India.
In view of the circumstance that at the time these applications were heard, the validity of the settlement stood assailed in certain proceedings of Review, the Union of India abstained from making any statement as to he merits of the claim of the Indian Red Cross Society.
Union of India sought to steer clear of any possible implication of any appropriation of the settlement fund which might be suscep tible of an inference of rectification it of the settlement.
The Union Carbide Corporation while disputing the claim of the Indian Red Cross Society that the said 5 million US dollars constituted subject matter of a separate and dis tinct fund outside the scope of the litigation culminating in the orders of 14/15th February, 1989, however, stated that it had no objection if the Union of India was agreeable to the Indian Red Cross Society retaining and utilising the money lying with it.
The grantability of the prayer of the Indian Red Cross Society really turns upon whether the interim relief of 5 million US dollars was a distinct award standing inde pendently and outside of the final adjudication.
It is manifestly not so.
Judge Keenan 's order dated 7.6.1985 makes that clear.
It, however, appears true that the Indian Red Cross Society sought to stipulate with its American counter part that the Indian Red Cross Society be free from any contingent obligations stemming from the final result of the litigation one way or the other.
Indeed, at some point of time the American Red Cross, presumably at the instance of the Indian Red Cross Society, desired to have the matter submitted for further consideration of the District Court at New York.
But nothing has been placed before us to indicate that the District Court for the Southern District, New York, ever changed the terms of its order dated 7th June, 1985.
On the contrary, the affidavit dated 20th November, 1989, of Mr. John Macdonald filed on behalf of the Union Carbide Corpora tion indicates that from the very inception this interim 386 relief fund was intended to be in the nature of an "advance payment" or "credit to the defence".
The following observa tions of Judge Keenan on 16th April, 1985 as to the intended nature of the proposed interim relief place the matter beyond doubt.
Judge Keenan observed: "It seems to me that some sort of emergency systematic relief should be supplied to the survivors on a prompt basis.
Any such funding supplied by the defendant would be treated in the nature of an advance payment or credit to the defence.
It would appear that the agreement between the Ameri can Red Cross and the Indian Red Cross Society came to be discussed before the District Court, New York, during hear ing on 20th November, 1985.
The portions of the transcript of what transpired at the hearing furnished in Mr. John Macdonald 's affidavit indicate that, far from approving the purported arrangement inter se between the American Red Cross and the Indian Red Cross Society, they show that the terms of the order dated June 7, 1985, as to the nature and character of the interim relief as an "advance payment" or "credit to the defence" were left undisturbed.
The tran script of the hearing furnished in the affidavit of Mr. John also reaffirms that "if there is any recovery against Union Carbide, it is a set off '.
This is not disputed nor any independent material placed before us to show that the terms as to the nature and character of the interim payment had been altered in terms of the inter se arrangements pleaded by the Indian Red Cross Society.
In the circumstances, the agreement between the American Red Cross and Indian Red Cross Society cannot prevail over the effect of the order dated 7th June, 1985 of Judge Keenan.
This Court 's directions in this behalf in the order dated 15th February, 1989, are not inconsistent there with and do not, therefore, require any modification.
Now that the terms of the settlement have been upheld in the review proceedings the unutilised part of the interim relief of 5 million US dollars will become part of the Bhopal gas relief fund, and shall have to be administered as such.
The Registrar of the Supreme Court shall be entitled to call up the funds with the Indian Red Cross Society which stood unutilised as on 15th February, 1989.
The present applications of the Indian Red Cross Society are, accordingly, dismissed.
G.N. Applications dismissed. [/INST] In the suit filed by the Union of India against Union Carbide Corporation (UCC) filed before the Southern District Court at New York, the presiding Judge directed the utilisa tion of 5 Million Dollars deposited by UCC towards Interim Relief Fund, for affording relief to the victims of the Bhopal Gas leak disaster through the Indian Red Cross Socie ty.
The said payment was intended to be without prejudice to the contentions of UCC.
Also it was to be credited against the payment of any final judgment or settlement of the claims against UCC arising out of the Bhopal Gas leak disas ter.
The Indian Red Cross Society sought to stipulate with the American Red Cross that the Indian Red Cross Society should be free from any contingent obligations stemming from the final result of the litigation one way or the other.
However, the terms of the order were not changed.
After the proceedings in the U.S. District Court termi nated upon UCC 's plea of forum non conveniens being upheld, Union of India instituted a suit In the District Court at Bhopal.
The claim in the suit came to be settled In this Court by its orders dated 14/15th February, 1989.
In terms of the settlement order, the said sum of 5 Million US Dol lars was treated as part of the settlement Fund and a direc tion was given to the Registrar to have the amount trans ferred to his credit which was lying unutilised with the Indian Red Cross Society.
The Indian Red Cross Society has filed the present applications.
It contended that the order dated 15th Febru ary, 1989 in so far as it treated the unutilised part of the interim relief fund and authorising the Registrar to realise it as such, was not consistent with the terms under which the relief fund was agreed to be entrusted to and accepted by it and 382 so the directions given in regard to the said relief fund required to be deleted.
On the question whether the interim relief of 5 Million U.S. Dollars was a distant award standing independently and outside the final adjudication, dismissing the applications, this Court, HELD: 1.
The agreement between the American Red Cross and the Indian Red Cross Society came to be discussed before the District Court, New York, during the bearing on 20th November 1985.
The portions of the transcript of what tran spired at the hearing indicate that far from approving the purported arrangement inter se between the American Red Cross and the Indian Red Cross Society, they show that the terms of the order dated June 7, 1985, as to the nature and character of the interim relief as an "advance payment" or "credit to the defence" were left undisturbed.
The tran script of the hearing also reaffirms that "if there is any recovery against Union Carbide, it is a set off '.
Also there is nothing on record to show that the terms as to the nature and character of the interim payment had been altered in terms of the inter se arrangements pleaded by the Indian Red Cross Society.
In the circumstances, the agreement between the American Red Cross and the Indian Red Cross Society cannot prevail over the effect of the order dated 7th June, 1985 of Judge Keenan.
This Court 's directions in this behalf in the order dated 15th February, 1989, are not inconsistent therewith and do not, therefore, require any modification.
[386 B F] 2.
Now that the terms of the settlement have been upheld in the review proceedings the unutilised part of the interim relief of 5 Million U.S. Dollars will become part of the Bhopal gas relief fund and shall have to be administered as such.
The Registrar of the Supreme Court shall be entitled to call up the funds with the Indian Red Cross Society which stood unutilised as on 15th February, 1989.
[386 F G] </s> |
<s>[INST] Summarize the following judgement: Appeal No. 1354 of 977.
From the Judgment and Order dated 4.5.1977 of the Guja rat High Court in Letters Patent Appeal No. 114 of 1977.
P.H. Parekh and Ms. Shalini Soni for the Appellants.
230 T.U. Mehta, H.S. Parihar, Kuldeep section Parihar, Mrs. Manik Karanawala (N.P.), Mrs. Nandini Gore and Anip Sachthey (N.P.) for the Respondents.
The Judgment of the Court was delivered by K. RAMASWAMY, J.
This appeal by special leave is against the judgment of the Division Bench in L.P.A. No. 114 of 1977 dated May 4, 1977 of the Gujarat High Court.
The one ques tion for decision in this appeal is whether the compliance of sub rules (3) and (4) of Rule 22 of Bombay Town Planning Rules 1955 for short 'the Rules ' is mandatory and whether the violation thereof invalidates the final town planning scheme.
In a suit laid by the appellants, the trial court found as a fact that the appellant, a partnership firm, was continuing in possession of the old premises bearing M.C. 2 No. 352/3 (S) No. 163 A 2 from the year 1940 as a directte nant of Ahmedabad Panjara Pole, Barartha, a registered trust, the owner of the plot of land of survey No. 163 situated in Ward No. 'C ' in front of town hall in Sher Kota outside Saraspur gate in the city of Ahmedabad.
The original plot consists of an area about 5 hundred to 6 hundred square yards in extent wherein ' certain structures were laid and leased out to the tenants or sub tenants for business pur poses.
The Town Planning Scheme was formulated by the munic ipal corporation exercise of its power under the Bombay Town Planning Act 1955 (Act 27 of 1956) for short 'the Act ' and reconstituted the final plot Nos. 82 and 83 out of the original plot No. 59 of the Town Planning scheme No. 16, Sher Kota Admn.
(Survey No. 163).
The Town Planning Officer did not issue special notice as required under sub rule (3) and opportunity provided for under sub rule (4) of Rule 21.
The appellants along with others filed civil suits challeng ing the action.
The appellants ' suit was decreed declaring that final plot Nos. 82 and 83 upon which the structures were standing with Municipal No. 352/3 and in occupation of the appellants is illegal, invalid and issued a permanent injunction restraining the respondent not to enforce the reconstituted plot Nos. 82 and 83 until due procedure is followed.
The learned Single Judge in First Appeal No. 669/76 allowed the appeal alongwith other bunch of appeals holding that the decision in Dungarlal Harichand vs State of Gujarat & Ors., Bench) ratio applies to the facts in this case and the appellants are not entitled to special notice required under sub rule (3) and opportunity under sub rule (4) of Rule 21.
The failure to comply therewith does not vitiate nor render the draft scheme or the final scheme a nullity.
Accordingly the learned single Judge allowed the appeal, set aside the decree of the trial court and dismissed the suit.
On Letter Patent Appeal, the Division Bench confirmed the same.
Thus this appeal.
231 Shri Mehta, the learned Senior Counsel for the respond ents claimed that special notice required under sub rule (3) and the opportunity under sub rule (4) of Rule 21 were not mandatory.
Hence they were not complied with.
Since sub rule (3) of Rule 21 is only an additional advantage, it is not dispensable.
At any rate it could be waived.
The framing of the town planning scheme and its final approval is for the benefit of the residents of the local authority as an amenity provided therein to the general public i.e. Instruc tion of General Post Office.
The interest of the general public outweighs the individual interest.
Therefore, sub rule (3) of Rule 21 is not mandatory.
A bird 's eye view of the statutory scheme and its effect on the right and interest of the owner or tenant would point poignantly that the contention is devoid of substance.
The Act as modified and adapted by the Gujarat Adaptation of Laws (State Amendments) Order 1963 as amended from time to time was to ensure that the town planning schemes are made in a proper manner and execution thereof is made effective.
The local authority has to prepare a development plan (Master Plan) for the entire area within its jurisdiction.
Section 2(2) defines development plan means a plan for the development and redevelopment or improvement of the entire area within the jurisdiction of a local authority prepared under section 3.
The local authority has been defined under section 2(4) to mean municipal corporation or municipality etc.
Section 2(5) defines owner in an inclusive lay saying that any person for the time being receiving or entitled to receive . . the rent or profits of the property in connection with which it is used.
Section 2(3) defines "plot" to mean "a continuous portion of land held by one ownership".
Section 2(9) defines "reconstituted plot" to mean a plot which is in any way altered by the making of a town planning scheme.
Section 2(10) defines "scheme" to include "a plan relating to a town planning scheme".
Section 3(1) empowers every local authority to prepare and publish in the prescribed manner a development plan and to submit it to the State Govt.
for sanction otherwise Government too is empowered to do so.
Under sub section (1) of section 4 the local authority is authorised to make a declaration of its inten tion to prepare a development plan and to despatch a copy thereof to the State Govt.
for publication in the Official Gazette.
The State Govt.
after inviting suggestions from the public within a period of two months is to publish in the Official Gazette the fact of making such declaration or intention as aforesaid.
Section 7 prescribes the particulars of the Master Plan.
Chapter III prescribes the making and the contents of the town planning scheme.
Section 18 provides that a local authority may make one or 232 more town planning schemes for the area within its jurisdic tion or in part thereof, regard being had 'to the proposal in the final development plan.
Sub section (2) provides that such town planning scheme 'may make provisions" for any of the following matters: (a) 'the laying out" or "relaying out of land", either vacant or "alreadybuilt upon"; (b) . . (omitted being irrelevant); (c) lay out of new streets or roads, constructions diversion, extension, alteration, improvement and stopping up of streets, roads and communications; (d) the construction, "alteration" and "removal of buildings", bridges and other structures; (e) "the allotment" or "reservation" of land for roads, open spaces, gardens, recreation grounds, school, market, green belts and dairies, transport facilities and public purposes of all kinds; (f) drainage inclusive of sewerage, surface or sub soil drainage and sewage disposal; (g) lighting; (h) Water supply; (i) Omitted.
(j) "imposes" sub section (2) 'conditions and restric tions" in regard to the "open space to be maintained about buildings", the percentage of building area for a plot, the number, size, height and character of buildings allowed in specified areas, the purposes to which buildings or speci fied areas may or not be appropriated, "the sub division of plots", the discontinuance of objectionable users of land in any area in reasonable periods, parking space and loading and unloading space for any building or the sizes of projec tions and advertisements signs.
(k) & (1) Omitted.
In Chapter IV under sub sec.
(1) ors.
22, the local authority may by a resolution declares its intention to make a town planning scheme in respect of the whole or any part of the land which is in the course of development 233 or likely to be used for building purposes or already built upon.
Within 21 days from the date of such declaration it shall publish it in the prescribed manner (the details are not relevant here) and shall despatch a copy thereof to the State Govt.
Under sub section (1) of section 23, within 12 months from the date of such declaration or extended period not exceeding six months, the draft scheme for the area in respect of which the declaration has been made by a notifi cation in the official Gazette, shall be approved.
Section 25 envisages specification of the particulars in the draft scheme.
Clause (a) "specifies the area", "ownership" and "tenure of each original plot"; (b) the land allotted or reserved under sub clause (a) of Clause (2) of section 18; (c) "the extent" to which it is "proposed to alter the bound aries of original plots" etc.
Under section 26 "the size and shape of every reconstituted plot" shall be determined, so as to render it suitable for building purposes etc.
with further particulars enumerated in sub sections (2) and (3) thereof.
Section 27 gives an opportunity to any person effected by such scheme to submit objections, if any, within six months from the date of publication of the draft scheme.
The local authority shall consider such objections; it is empowered to modify such scheme as it thinks fit in the light of the objection and then to submit it to the State Govt.
within four months from the date of its publication in the official Gazette as required under section 28(1).
The State Govt.
within six months from the date of the submis sion of the draft scheme by the local authority original or with modification shall sanction such scheme with or without any further modification and publish the same in the offi cial Gazette with such conditions as it may think fit.
Such scheme shall be open to the inspection of the public under section 28(3).
Under section 31(1), within one month from the date of the publication of the draft sanctioned town planning scheme, the State Govt.
shall appoint a Town Planning Offi cer who is to make final scheme while performing the duties imposed on him under section 32 in accordance with the procedure prescribed in section 32 and the Rules.
Under section 32 after notice given in the manner, it defines and demarcates the areas allotted to, or reserved, for a public purposes or purpose of the local authority and the reconstituted plots; indicate the person to be allotted of ownership in reconsti tuted plot in common and the shares of such persons, etc.
He has also to fix the difference between the total of the value of the original plot and the total of the plots in cluded in the final scheme etc.
He has also to calculate or to estimate the compensation payable on each plot used; the contribution to be levied on each plot used, or reserved for a public purpose; of use partly to the owner and partly to the public; to determine the amount of exemption, if any, from payment of the contribution of the lands occupied by religious and charitable purposes.
The contribution of the 234 costs in the final scheme is also enjoined to be calculated and to determine the liabilities etc.
as indicated in Clauses (vi) to (xi).
Clause (xii) provides for the total or partial transfer of any right in any original plot to a reconstituted plot or provide for the extinction of any right in an original plot in accordance with the provisions contained in section 68 and then has to draw plan as provided under clause (xiv) in the final scheme in accordance with the draft scheme.
Under the proviso it is empowered to make variation from the draft scheme the details of which are not necessary but suffice to state that under the proviso no substantial variation shall be made by the Town Planning Officer without the consent of the local authority and without hearing any objections which may be raised by the owner concerned.
Thereafter, the decision of the Town Plan ning Officer subject to an appeal if any, the State Govt.
under section 34, shall make it final and binds the parties.
The final scheme shall be published, after following the procedure in Rule 21(1) to (8), as per sub rule (9).
Section 54 provides that on and after the day on which the final scheme comes into force any person continuing to occupy any land which he is not entitled to occupy under the final scheme shall be ejected summarily as per the prescribed procedure and local authority shall also be entitled to remove, pull down or alter any building or other work in the area included in the scheme under section 55 after giving notice in the prescribed manner and in accordance with the procedure of the scheme.
Section 56 gives power to the State Govt.
to vary scheme on grounds of irregularity or infirmity in making the scheme.
Under section 60 every party to any proceeding before the Town Planning Officer shall be enti tled to appear either in person or by his recognized agent.
Though the challenge in the appeal is confined to a limited point, as will presently appear, we have given the conspectus of the statutory scheme to bring out the fact that the Town Planning Officer before making the final scheme and submitting it to the local authority is required to follow the procedure prescribed by the Act and the Rules.
He is entitled to alter the plots, make reconstitution of plots, determine the persons entitled to reallotment on reconstitution; to reserve the area for public purpose; determine the compensation; liability of the owner to con tribute the amount; to provide amenities etc.
At the rele vant stages, he is required to issue notice to the effected person.
The question is whether the tenant or a sub tenant is a person interested and is entitled to notice.
It is obvious that under section 105 of Transfer of Property Act, a lease creates right or an interest in enjoyment of the demised property and a tenant or a sub tenant is entitled to remain in 235 possession of the demised property until the lease is duly terminated and eviction takes place in accordance with law.
Therefore, a tenant or a subtenant in possession of a tene ment in the Town Planning Scheme is a person interested within the meaning of Rules 21(3) & (4) of the Rules.
But he must be in possession of the property on the crucial date i.e. when the town plan scheme is notified in the official gazette.
Every owner or tenant or a sub tenant, in posses sion on that date alone shall be entitled to a notice and opportunity.
Undoubtedly, the Town Planning Scheme was published on July 1, 1951.
There was inordinate delay in implementation of the scheme for 30 long years.
Though Shri Parekh, learned counsel for the appellants, contended that a better scheme could be formulated for construction of a post office upon the reconstituted plot No. 82 by leaving out the shops in question; we are not inclined to embark upon an enquiry in that regard.
The Act gives power to the local authority to have the matter investigated into and to formulate its town planning scheme; its approval is by the State Govt.; an expert officer, namely, Town Planning Officer, thereafter, is appointed to finalise the scheme with all local assist ance.
He, being an expert on the site, is entitled to look into all relevant aspects and to finalise the scheme for reconstitution of the plot or alteration of the boundaries etc.
Appellants are entitled to notice under sub rule (3) and a reasonable opportunity under sub rule (4) thereof.
Rule 21(1) to (8) lay down the procedure to be followed by the Town Planning Officer and it reads thus: 21.
Procedure to be followed by Town Planning Officer: The Town Planning Officer shall give notice to the date on which he will commence his duties and shall state therein the time, as provided in rule 30, within which the owner of any property or rights which is injuriously af fected by the making of the town planning scheme shall be advertised in one or more newspapers published in the regional language and circulating within the jurisdiction of the local authority and shall be posted in promi nent places at or near the area comprised in the scheme and at the office of the Town Planning Officer.
(2) The Town Planning Officer, shall, after the date fixed in the notice given under sub rule (1), continue to carry on his duties as far as possible on working days and during working hours.
(3) Special notice of at least three clear days shall be served upon the person interest ed in any plot or in any particular comprised in the scheme, before the Town Planning Offi cer, 236 proceeds to deal in detail with the portion of the scheme relating thereto.
Such special notice shall also be posted at the office of the Town planning, Officer.
Such notice shall be given in the cases mentioned in clause (i), (ii) and (iii) of sub section (1) of section 32 and in any other cases where any persons have not been sufficiently informed that any matter affecting them is to be considered.
(4) The Town Planning Officer shall give all persons affected by any particular of the scheme sufficient opportunity of stating their views and shall not give any decision till he has duly considered their representations, if any.
(5) If during the proceedings, it appears to the Town Planning Officer that there are conflicting claims or any difference of opin ion with regard to any part of the scheme, the Town Planning Officer shall record a brief minute in his own hand setting out the points at issue and the necessary particulars, and shall give a decision with the reasons there of.
All such minutes shall be appended to the scheme.
(6) The Town Planning Officer shall record and enter in the scheme every decision given by him under clauses (i), (ii), (iii), (vii), (x) and (xii) of sub section (1) of section 32.
The calculations and estimates required by clauses (iv), (v) , (vi), (vii), (ix), (x) and (xiii) of sub section (1) of section 32 shall be set out and recorded.
(7) The final scheme drawn up by the Town Planning Officer shall include the particulars specified in rule 17.
(8) The component parts of the scheme shall be so ar ranged that they may be readily referred to in connection with the map and plans.
(9) Omitted.
A reading of section 32 read with Rule 21(3) makes it abun dantly clear that the the Town Planning Officer is to give notice of at least 3 days in the prescribed manner to the effected persons to submit objections or views; are to be given adequate opportunity under rule 21(4) to respond and thereafter the Officer is to demarcate the area allotted to or reserved for public purposes or for purpose of the local authority and the reconstituted plots to be allotted to persons in ownership with the shares of such persons in common plot etc.
He is also entitled to alter the bound aries, allocate certain lands for public purposes, reduce the size of the existing plots or re distribute the plots to the owners etc.
in the 237 reconstituted plot.
The second stage is the calculation of the contribution and apportionment thereof among the persons liable to make contribution.
Thus the owner, tenant or a sub tenant, as the case may be, is entitled to a notice and an adequate opportunity to place on record, if he so choses, his objections or views and the same shall be considered and action taken thereafter.
It is settled law that before depriving a person of his property or imposing any further liability, the principles of natural justice require prior notice and reasonable opportunity to him to put forth his claim or objections.
Rule 21(3) speaks of special notice of at least three days duration.
It is in consonance with and in compliance of the principles of natural justice.
The legislature thus made a distinction between the general notice envisaged in sub rule (1) of Rule 21 and special notice under sub rule (3) of Rule 21, which was in addition to the former.
The purposes of clauses (3) and (4) of Rule 21 are obvious and the consequences that would ensue are self evident.
These sub rules subserve the principles of natural justice to avoid arbitrariness offending article 14 and to be just and fair procedures satisfying the mandate of article 21.
Nonobservance otherwise would render the scheme illegal.
No provision of a statute or Rule would be rendered surplusage or otiose.
The construction of the Rules by the Full Bench would, however, result in rendering subrules (3) & (4) surplusage and otiose.
Sub rule (4) postulates that Town Planning Officer shah give to a person effected by the scheme sufficient opportunity to state his views and shall not give any.
decision till he duly considers the represen tation, if any.
The issuance of notice under sub rule (3) and giving of sufficient opportunity under sub rule (4) are self evident to subserve the basic concept of fair and just procedure.
Accordingly we hold that issuance of special notice of at least three clear days duration and giving sufficient opportunity to the person effected to put forth his views of the scheme are mandatory and non compliance thereof vitiates the validity of the final scheme.
The use of 'shall ' in the given circumstances may be construed to be directory but not mandatory as contended by Shri Mehta.
The appearance of 'shall ' is not conclusive, nor per se connotes its mandatory contour.
Its meaning must be ascertained in the light of the legislative intent in its employment, the context in which it was couched, the conse quences it produces the result it effected and above all the purpose it seek to serve, would all be kept in view.
From the fact situation the courts are to cull out the intention whether the construction to be put up would subserve the purpose of the legislative intent or tend to defeat it.
Public interest, is always a paramount consideration.
Since the non compliance with issuance of notice and giving of sufficient opportunity contemplated under sub rules (3) and (4) of Rule 21 injuriously affects the right to 238 property of the owner or interest of the tenant or sub tenant, as the case may be, it shall be construed to be mandatory and not directory.
In this view it is redundant to burden the judgment with all the decisions cited by either counsel.
The principle of.
Waiver connotes issuance of notice and non response thereto.
Everyone has a right to waive an advantage or protection which law seeks to give him/her.
Undoubtedly, if a notice iS issued and no representation was made by either the owner, tenant or a sub tenant, it would amount to waive the opportunity and such person cannot be permitted to turn round, after the scheme reaches finality, to say that there is non compliance of sub rules (3) and (4) of Rule 21.
It would amount to putting premium on dilatory and dishonest conduct.
Accordingly, we are of the considered view that the judgments in Kaushikprasad Chandulal Mahadevia & Anr.
vs The Ahmedabad Municipal Corporation and Ors,, 1970 (11) G.L.R. 993 and Mohanlal Jesinghbhai vs P.J. Patel, Town Development Officer, Ahmedabad Municipal Corporation * Ors., , laid down the law correctly.
The finding of the Full Bench in the first part of its judgment to the effect that non compliance with the requirements of sub rules (3) and (4) of Rule 21 does not vitiate the scheme is not sound in law.
It is seen that the appellant has been in possession as tenant for well over half a century and, therefore, it is injuriously affected by the scheme which has the effect of terminating his possession and this adversely affects its business in the demised premises.
Since it is a running business over the years, the respondent is directed to provide an alternative premises by allotting a suitable shop within the city to the appellant; to put it in possession thereof and until then allow its occupation of demised shop.
In case the appellant does not vacate or creates any ob struction in any form in the matter of possession, it would be open to the respondent to have the appellant ejected summarily.
In this view we decline to interfere with the scheme.
The appeal is accordingly allowed to the above extent and in other respects the decree of the Courts below is upheld.
But in the circumstances parties are directed to bear their own costs.
T.N.A. Appeal allowed. [/INST] The appellant was in possession of a plot as a tenant.
Pursuant to Town Planning Scheme framed by the respondent Corporation under the Bombay Town Planning Act, 1955 the said plot was re constituted i.e. the plot was altered by the making of the Town Planning Scheme.
The respondent was injuriously affected by the said scheme because it has the effect of terminating his possession and adversely affected his business in the demised premises.
However, before fina lising the scheme the Town Planning Officer neither issued special notice to the respondent a required under sub rule (3) nor provided him an opportunity as provide 227 under sub rule (4) of Rule 21 of the Bombay Town Planning Rules, 1955.
The appellants filed a civil suit challenging the action and the Trial Court issued a permanent injunction restraining the respondent Corporation from reconstituting the plot until due procedure was followed.
On appeal by the Corporation a Single Judge of the High Court allowed the appeal and set aside the decree of the Trial Court and dismissed the suit.
The Single Judge fol lowed the decision of the Full Bench in Dungarlal Harichand vs State of Gujarat & Ors.
holding that the appellants were not entitled to special notice under sub rule (3) and opportunity under sub rule (4) and 2that non compliance with the said rule does not vitiate the Planning Scheme.
The decision of the Single Judge was con firmed in Letter Patent appeal by the Division Bench of the High Court.
In tenant 's appeal to this Court it was contended on behalf of the Respondent Corporation that (i) compliance with sub rule 21(3) & (4) was not mandatory; (ii) Since sub rule 21 (3) is only an additional advantage It is dis pensable and could be waived; (iii) the framing of the Town Planning Scheme is for the benefit of the residents of the Local authority as an amenity provided therein to the gener al public i.e. construction of General Post Office, the interest of the general public outweighs the individual interest.
Therefore, sub rule 21(3) is not mandatory; (iv) the use of the word 'shall ' in rule 21(3) may be construed as directory and not as mandatory.
Allowing the appeal, this Court, HELD: 1.
Under Section 105 of Transfer of Property Act, a lease creates right or an interest in enjoyment of the demised property and a tenant or a sub tenant is entitled to remain in possession of the demised property until the lease is duly terminated and eviction takes place in accordance with law.
Therefore, a tenant or a sub tenant in possession of a tenement in the Town Planning Scheme is a person inter ested within the meaning of Rules 21(3) & (4) of the Rules.
But he must be in possession of the property on the crucial date i.e. when the town plan scheme is notified in the official gazette.
Every owner or tenant or a sub tenant, in possession on that date alone shall be entitled to a notice and opportunity.
Accordingly, appellants are entitled to notice under sub rule (3) and a 228 reasonable opportunity under sub rule(4) thereof.[234H;235A B;235 E] 2.
A conspectus of the statutory scheme brings out the fact that the Town Planning Officer before making the final scheme and submitting it to the local authority is required to follow the procedure prescribed by the Act and the Rules.
At the relevant stages, he is required to issue notice to the affected person.
[234 F G] 2.1 A reading of section 32 of the Bombay Town Planning Act, 1955 read with Rule 21(3) makes it abundantly clear that the Town Planning Officer is to give notice of at least 3 days in the prescribed manner to the affected persons to submit objections or views; affected persons are to be given ade quate opportunity under rule 21(4) to respond and thereafter the Officer is to demarcate the area allotted to or reserved for public purposes or for purpose of the local authority and the reconstituted plots to be allotted to persons in ownership with the shares of such persons in common plot etc.
[236 G H] 3.
Rule 21(3) speaks of special notice of at least three days duration.
It is inconsonance with and in compli ance of the principles of natural justice.
The legislature thus made a distinction between the general notice envisaged in sub rule (1) of Rule 21 and special notice under sub rule (3) of Rule 21, which was in addition to the former.
[237 C] 3.1 The purposes of clauses (3) and (4) of Rule 21 are obvious and the consequences that would ensue are self evident.
The issuance of notice under sub rule (3) and giving of sufficient opportunity under sub rule (4) are self evident to subserve the basic concept of fair and just procedure.
These sub rules subserve the principles of natu ral Justice to avoid arbitrariness offending Article 14 and to be Just and fair procedure satisfying the mandate of Article 21.
[237 C,E] 4.
It is settled law that before depriving a person of his property or imposing any further liability, the principle of natural justice require prior notice and reasonable opportunity to him to put forth his claim or objections.
[237 B] 4.1 Since the non compliance with issuance of notice and giving of sufficient opportunity contemplated under sub rules (3) and (4) of Rule 21 229 injuriously affects the right to property of the owner or interest of the tenant or sub tenant, as the case may be, it shall be construed to be mandatory and not directory.
There fore, the issuance of special notice of at least three clear days duration and giving sufficient opportunity to the person affected to put forth his views of the scheme are mandatory and non compliance thereof vitiates the validity of the final scheme.
[237 H; 238 A; 237 E] Kaushikprasad Chandulal Mahadevia & Anr.
vs The Ahmedabad Municipal Corporation and Ors., (1970) 11 G.L.R. 993; Mohanlal Jesinghbhai vs PJ.
PateI, Town Development Officer, Ahmedabad Municipal Corporation & Ors, , approved.
Dungarlal Hanchand vs State of Gujarat & Ors., , disapproved.
The appearance of 'shall ' is not conclusive, nor per se connotes its mandatory contour.
Its meaning must be ascertained in the light of the legislative intent in its employment, the context in which it was couched, the conse quences it produces the result it effected and above all the purpose it seek to serve, would all be kept in view.
From the fact situation the courts are to cull out the intention whether the construction to be put up would subserve the purpose of the legislative intent or tend to defeat it.
Public interest, is always, a paramount consideration.
[237 F G] 6.
The principle of Waiver connotes issuance of notice and non response thereto.
Everyone has a right to waive an advantage or protection which law seeks to give him.
Un doubtedly, if a notice is issued and no representation is made by either the owner, tenant or a sub tenant, it would amount to waive the opportunity and such person cannot be permitted to turn round, after the scheme reaches finality, to say that :here is non compliance of sub rules (3) and (4) of Rule 21.
It would amount to putting premium on dilatory and dishonest conduct.
[238 B C] </s> |
<s>[INST] Summarize the following judgement: 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. [/INST] Under the provisions of Delhi Sugar Dealers Licensing Order 1963, a person was entitled to keep only upto a maxi mum of 10 quintals of sugar without licence and sugar means any form of sugar including Khandsari sugar containing more than 90% of Sucrose.
The appellant 's business premises were raided and 80 bags of sugar viz. 53 bags of Khandsari, 18 bags of Khand sari (dust) and 9 bags of Khandsari (sulphur) were seized in his presence.
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, who reported that the samples contained sucrose 93.5%, 942% and 97.16% respective ly.
The Collector passed an order confiscating the entire seized stock of sugar as the same was kept without any licence.
Against the order of the Collector, the appellant filed an appeal before the Lt. Governor, Delhi which was dismissed.
The writ petition filed against the order of Lt. Governor was dismissed in limine by the High Court.
In appeal to this Court, it was contended on behalf of the appellant that (a) only two samples each out of the three bags were taken from the entire lot of Khandsari and this could at the most show that only three quintals of Khandsari was 'sugar ' and the same being less than 10 qtls.
, there was no violation of the Licensing Order: (b) it was necessary for the prosecution to prove that the appellant was in possession of more than 10 quintals of sugar and this could only be done by taking samples from all the bags of Khand sari if it wanted to show that other bags of Khandsari also contained more than 90% of sucrose; (c) the possibility cannot be excluded that those bags from which samples were not taken, did not contain sucrose more than 90%.
Dismissing the appeal, this Court, 139 HELD: A large quantity of 80 quintals of Khandsari was found in the appellant 's premises, whereas only 10 quintals of sugar was allowed to be kept without licence.
At the time of seizure of the goods two samples each were taken sepa rately from three different varieties of Khandsari at the instance of the appellant.
It was proved by the public analyst that all the three samples contained sucrose more than 90%.
it was not disputed by the appellant at the time of taking samples or thereafter that the samples taken would not represent the correct quantity of sucrose in those bags of Khandsari from which samples were not taken.
In his written reply to the show cause notice issued by the Collec tor no such objection was raised by the appellant.
In the circumstances of the ease if the Collector was satisfied that 80 quintals of sugar was found in the appellant 's premises without licence, it cannot be held that the order of confiscation passed by the Collector was arbitrary or based on no material.
It was quite reasonable for the Col lector to hold that there was more than 10 quintals of Khandsari having more than 90% sucrose and this violated the Sugar Licensing Order.
Therefore, there was sufficient justification for him to pass the order of confiscation.
Accordingly, the order of confiscation passed by the Collec tor is maintained.
[142 C, 141 F H, 142A C, D] Suraj Bhan Sharad Kumar vs Delhi Administration Criminal Revision No. 104 of 1980 decided on 25th September, 1980 by Delhi High Court distinguished.
In the instant case more than 10 years have already elapsed to the alleged commission of the offence.
Therefore, it would be against the interests of justice to further continue any criminal proceedings in the case.
Accordingly, it is directed that the criminal proceedings launched and pending against the appellant should be dropped.
[142 E] </s> |
<s>[INST] Summarize the following judgement: Appeal No. 3698 of 1991.
From the Judgment and Order dated 1.11.1990 of the Bombay High Court in Chamber Summons No. 838 of 1990 in Execution Application No. 242 of 1989 in Suit No. 309 of 1972.
Arun Jaitley, R.F. Nariman, R. Karanjawala, Mrs. M. Karanjawala, Ms. Nandini Gore and Ms. Aditi Choudhary for the appellant.
191 V.A. Bobde, U.A. Rao and B.R. Agarwala for the respondents.
The Judgment of the Court was delivered by THOMMEN, J.
Leave granted.
The appellant who is the defendant in Suit No. 309 of 1972 challenges the judgment of the Bombay High Court in Chamber Summons No. 838 of 1990 in Execution Application No. 242 of 1989 whereby the High Court held that the decree made against the defendant in terms of a compromise in writing and signed by counsel representing the parties, but not signed by the parties in person, was valid and binding on the parties, and in the absence of any challenge against the order made under Order XXI rule 23, Civil Procedure Code allowing execution of the decree, the defendant was no longer entitled to resist execution by recourse to Chamber Summons.
The High Court found that the decree was valid and in accordance with the provisions of Order XXIII rule 3, as amended by the C.P.C. (Amendment) Act, 1976.
The only question which arises for consideration is as regards the construction of Order XXIII rule 3, C.P.C. We shall read this provision, as amended by the C.P.C. (Amend ment Act, 19%, bracketing the newly added words: 23., R. 3 Compromise of suit where it is proved to the satisfaction of the court that a suit has been ad justed wholly or in part by any lawful agreement or compro mise, (in writing and signed by the parties) or where the defendant satisfied the plaintiff in respect of the whole or any part of the subject matter of the suit, the Court shall order such agreement, compromise or satisfaction to be recorded, and shall pass a decree in accordance therewith [so far as it relates to the parties to the suit, whether or not the subject matter of the agreement, compromise or satisfaction is the same as the subject matter of the suit: [Provided that where it is alleged by one party and denied by the other that an adjustment or satisfaction had been arrived at, the court shall decide the question; but no adjournment shall be granted for the purpose of deciding the question, unless the court, for reasons to be recorded, thinks fit to grant such adjournment.] [Explanation.
An agreement or compromise which is void or voidable under the , shall not be 192 deemed to be lawful within the meaning of this rule.
Mr. Arun Jaitley, appearing for the appellant, says that the High Court was wrong in holding that, notwithstanding the amendment of 1976 inserting the words 'in writing and signed by the parties ', it was still sufficient if the terms of compromise were reduced to writing and signed by counsel representing the parties, and not necessarily by the parties in person.
Any such construction would do violence to the provision as amended in 1976.
He says that the object of the amendment was to provide that no agreement or compromise adjusting wholly or in part a pending suit was valid unless such compromise was evidenced in writing and signed by the parties in person.
The expression 'parties ', he contends, means only parties and none else.
To read 'counsel ' into that expression, as done by the High Court, is to presume that the legislature failed to say what it intended to say and to attempt to supply the omission by correcting the deficiency.
This cannot be done.
The legislature, on the other hand, made its intention explicit by providing that an agreement or compromise would form the basis of a decree only if the consensus was reduced to writing and signed by the parties.
Neither an agent nor a pleader could act as a substitute for a party to sign the agreement or compromise.
A decree based on a compromise not signed by the parties in person is a nullity and is incapable of execution.
Mr. Jaitley submits that if the legislature had intended to authorise counsel independently to sign the memorandum containing the terms of settlement, and allow a decree to be passed in terms thereof, the legislature would have said so by further adding the words 'or their counsel '.
In the absence of any such expression, it cannot be presumed that the legislature intended more than what it said and that 'party ' included counsel.
This argument, Mr. Jaitley says, is fortified by the fact that for the first time the legis lature has allowed a decree to be passed on the basis of compromise relating to matters concerning the parties, but extending beyond the subject matter of the suit.
Such a wide power to compromise was most unlikely to be left in the hands of counsel, and it is, therefore, necessary to read the provision narrowly so as to read it as it now stands by adopting a strictly literal construction.
Mr. V.A. Bobde appearing for the respondents, on the other hand, submits that it was always understood that the expression 'party ' included his pleader in matters relating to appearance in court, and his counsel in the cause, there fore, has express or implied authority, unless specifically withdrawn or limited by the party, to represent him in court and do 193 whatever is necessary in connection with the conduct of his suit including adjustment of the suit by agreement or com promise.
In the absence of any such limitation or restric tion of his authority, counsel appearing for a party is fully competent to put his signature to the terms of any compromise upon which a decree can be passed in proper compliance with the provisions of Order XXIII rule 3 as it now stands.
Any such decree, he says, is perfectly valid.
Mr. Bobde submits that in the absence of express words to the contrary, 'party ', in the context of proceedings in court, must necessarily include his recognised agent or pleader.
This construction is warranted by the provisions of Order III, C.P.C. That this has been the consistent view adopted by courts in the construction of the expression 'party ' in the context of proceedings in court is clear from the decisions of courts, and it is most unlikely that the legislature would have, by the amendment of 1976, limited the scope of 'party ' so as to exclude the traditional role of the recognised agent or counsel.
The legislative drafts men are presumed to know the law of the land as it stood then, and, if they had intended to deviate therefrom, they would have explicitly stated so rather than leave it to future judicial construction.
The Statement of Objects and Reasons for the amendment, he says, does not support the view canvassed by the appellant.
Sub clause (iii) of clause 77 of the Statement of Ob jects and Reasons concerning the C.P.C. (Amendment) Act, 1976 states: is provided that an agreement or compromise under rule 3 should be in writing and signed by the parties.
This is with a view to avoiding the setting up of oral agreements or compromises to delay the progress of the suit. . . . . . . .
In view of the words 'so far as it re lates to the suit ' in rule 3, a question arises whether a decree which refers to the terms of a compromise in respect of matters beyond the scope of the suit is executable or whether the, terms of the decree relating to the matters outside the suit can be enforced only by a separate suit.
The amendment seeks to clarify the position.
" The Statement of Objects and Reasons indicates that the amendment is intended to clarify that a compromise has to be in writing signed by the parties to avoid delay which might arise from the uncertainties of oral agreements.
The amendment has also clarified that the terms of compromise are permitted to include all matters relating to the parties to the 194 suit even if such matters fall outside the subject matter of the suit.
The legislature has thus sought to attain certainty and clari ty and widen the scope of compromise.
The fundamental question is, in the absence of any contrary indication in the Statement of Ob jects and Reasons, can it be stated that the legislature has intended to exclude a pleader or a recognised agent from the expression 'party ' when it has always been understood, as explicitly stated in Order 1II rule 1, that appearance of a party in court may be in person or by his recognised agent or pleader.
In the absence of any provision to the con trary, can it be stated that the legislature, when using the expression 'parties ' in rule 3 of Order XXIII, limited it to parties in person and excluded their duly recognised agents or counsel ? The role of counsel in Court in England is described in Halsbury 's Laws of England, 4th Ed. Vol.3, paras 1181 & 1183, as follows: "1181.
Counsel 's authority.
At the trial of an action, counsel 's authority extends, when it is not expressly limited, to the action and all matters incidental to it and to the con duct of the trial, such as withdrawing the record, challenging a juror, calling or not calling witnesses, cross examining or not cross examining witnesses, consenting to a reference to arbitration, a compromise, or a verdict, undertaking to appear, or, on the hearing of a motion for a new trial, consent ing to a reduction of damages.
The client 's consent is not needed for a matter which is within the ordinary authority of counsel: thus if, in court, in the absence of the client, a compromise or settlement is entered into by counsel whose authority has not been expressly limited, the client is bound.
If an action is settled in court in the presence of the client, his consent will be inferred, and he will not be heard to say that he did not understand what was going on . . " The implied authority of counsel in England is, howev er, confined to matters failing within the subject matter of the suit.
In the absence of express authority, counsel cannot enter into compromise on collateral matters.
"The authority of counsel to compromise is limited to the issues in the action: a compro mise by counsel affecting collateral matters will not bind the client, unless he expressly assents; and it may be that a barrister has no authority to reach a binding settlement or compromise out of court. "(Halsbury ibid) 195 A compromise is, however, not binding and is liable to be set aside in circumstances which would invalidate agree ments between the parties.
"A compromise by counsel will not bind the client, if counsel is not apprised of facts the knowledge of which is essential in refer ence to the question on which he has to exer cise his discretion, for example that the terms accepted had already been rejected by the client.
Where counsel enters into a com promise in intended pursuance of terms agreed upon between the clients, and, owing to a misunderstanding, the compromise fails to carry out the intentions of one side, the compromise does not bind the client, and the court will allow the consent to be withdrawn.
Where, acting upon instructions to compromise, counsel consents under a misunderstanding to certain terms which do not carry into effect the intentions of counsel and the terms are thought by one party to the more extensive than the other party intends them to be, there is no agreement on the subject matter of the compromise, and the court will set it aside.
But a person who has consented to a compromise will not be allowed to withdraw his consent because he subsequently discovers that he has a good ground of defence? (Halsbury, ibid, para 1183).
Counsel 's consent in certain circumstances such as duress or mistake may not bind the client.
"If counsel 's consent is given under duress, the client will not be bound, as when counsel, acting for a client alleged to be of unsound mind but believing him to be of sound mind, consented to certain terms for the withdrawal of Court of Protection proceedings against the client because of his fear of the inconven ience and iII health likely to arise to the client from confinement.
A compromise or order made by consent by counsel for a minor or other person under disability is not binding on the client, unless it is sanctioned by the court as being for the benefit of the client.
The court cannot, however, enforce a compromise on a minor against the opinion of his counsel." (Halsbury, ibid) One of the early English authorities on this point is Pa tience Swinfen 196 vs Lord Chelmsford ; at 922; S.C. 29 L. J. (E.x) 382.
Delivering the judgment of the Court, Pollock, C.B., stated: ".
We are of opinion, that although a coun sel has complete authority over the suit, the mode of conducting it, and all that is inci dent to it such as withdrawing the record, withdrawing a juror, calling no witnesses, or selecting such as,.
in his discretion, he thinks ought to be called, and other matters which properly belong to the suit and the management and conduct of the trial we think he has not, by virtue of his retainer in the suit, any power over matters that are collat eral to it . . ".
In Matthews vs Munster, at 144, Lord Esher M.R. stated: .
The instances that are given shew that one of the things that counsel may do, so long as the request of the client to him to act as advocate is in force, is to assent to a verdict for a partic ular amount and upon certain conditions and terms; and the consent of the advocate to a verdict against his client and the withdrawing of imputations is a matter within the expres sion 'conduct of the cause and all that is incidental to it. ' If the client is in Court and desires that the case should go on and counsel refuses, if after that he does not withdraw his authority to counsel to act for him, and acquaint the other side with this, he must be taken to have agreed to the course proposed.
This case is a still stronger one, for the client was not present, and it is not pretended that he ever withdrew his authority to counsel, but he now comes forward and asks that because he does not like what has been done it should be set aside as between himself and his opponent.
This the Court will not do, and this appeal must be dismissed.
" See also Rondel vs Worsley, [1965] 1 Q. B. 443, 502, Per Lord Denning M.R.
If this is the position of counsel in England, Scotland and Ireland, is his position the same in India in the con duct of cases in Court ? That the answer is affirmative, there is high judicial authority.
In (Babu) Sheonandan Prasad Singh & Ors.
vs Hakim Abdul Fateh Mohammad Reza & .Anr., AIR 1935 PC 119, 121, Lord Atkin, speaking for 197 the Board, states: ".
As was laid down by this Board in 57 IA 133 (AIR 1930 PC 158) counsel in India have the same implied authority to compromise an action as have counsel in the English Courts.
But if such authority is invoked to support an agreement of compromise the circumstances must be carefully examined.
In the first instance the authority is an actual authority implied from the employment as counsel.
It may however be withdrawn or limited by the client: in such a case the actual authority is destroyed or restricted; and the other party if in igno rance of the limitation could only rely upon ostensible authority.
In this particular class of contract however the possibility of suc cessfully alleging ostensible authority has been much restricted by the authorities such as and which make it plain that if in fact counsel has had his authority withdrawn or restricted the Courts will not feel bound to enforce a com promise made by him contrary to the restric tion even though the lack of actual authority is not known to the other party.
" Lord Atkin emphasises the need to rely on express au thority, rather than implied authority, particularly because of easier and quicker communication with the client.
He says: ".
In their Lordships ' experience both in this country and in India it constantly hap pens, indeed it may be said that it more often happens, that counsel do not take upon them selves to compromise a case without receiving express authority from their clients for the particular terms; and that this position in each particular case is mutually known between the parties.
In such cases the parties are relying not on implied but on an express authority given adhoc by the client . . ".
(ibid, page 121) However, collateral matters were understood to be beyond the scope of compromise.
Lord Atkin says: "If the facts are as their Lordships assume, the matter compromised was in their opinion collateral to the suit and not only would it not be binding on the parties, but it would in any case be a matter in respect of which the Court in pursuance of 198 O. 23, R. 3, should not make a decree." (Page 122) Referring to the role of counsel in India and comparing him with his counterpart in Britain, Lord Atkin in Sourendra Nath Mitra & Ors.
vs Tarubala Dasi, AIR 1930 PC 158, says: " . .
Their Lordships regard the power to compromise a suit as inherent in the position of an advocate in India.
The considerations which have led to this implied power being established in the advocates of England, Scotland and Ireland, apply in equal measure to India.
It is a power deemed to exist be cause its existence is necessary to effectuate the relations between advocate and client, to make possible the duties imposed upon the advocate by his acceptance of the cause of his client.
" Counsel 's power to compromise is vital to the defence of his party while engaged on his behalf in the thick of a legal battle in Court.
Lord Atkin observes: "The advocate is to conduct the cause of his client to the utmost of his skill and under standing.
He must in the interests of his client be in the position, hour by hour, almost minute by minute, to advance this argument, to withdraw that; he must make the final decision whether evidence is to be given or not on any question of fact; skill in advocacy is largely the result of discrimina tion.
These powers in themselves almost amount to powers of compromise: one point is given up that another may prevail.
But in addition to these duties, there is from time to time thrown upon the advocate, the responsible task of deciding whether in the course of a case he shall accept an offer made to him, or on his part shall make an offer on his client 's behalf to receive or pay something less than the full claim or the full possible liability.
Often the decision must be made at once . . "(ibid, page 161) Emphasising the apparent authority of counsel, and the raison d 'etre of such authority being the paramount interest of his client, and not an appandage of office, Lord Atkin states: "The apparent authority is derived from the known existence of the implied authority . . 199 First, the implied authority of counsel is not an appandage of office, a dignity added by the Courts to the status of barrister or advocate at law.
It is implied in the inter ests of the client, to give the fullest bene ficial effect to his employment of the advo cate.
Secondly, the implied authority can always be countermanded by the express direc tions of the client.
No advocate has actual authority to settle a case against the ex press instructions of his client.
If he con siders such express instructions, contrary to the interests of his client, his remedy is to return his brief.
Their Lordships are unable to see why the above considerations should not apply to an advocate in India, whose duties to his client in the conduct of a suit in no wise differ from those of advocates in England, Scotland and Ireland . . ".
(Page 161) Counsel 's role in entering into a compromise has been traditionally understood to be confined to matters within the scope of the suit.
However, a compromise decree may incorporate not only matters failing within the subject matter of the suit, but also other matters which are collat eral to it.
The position before the amendment in 1976 was that, in respect of the former, the decree was executable, but in respect of the latter, it was not executable, though admissible as judicial evidence of its contents.
Referring to section 375 of the Code of Civil Procedure (Act XIV of 1882), (similar to Order XXIII rule 3 CPC as it stood prior to the amendment of 1976), Lord Buckmaster, in Hemanta Kumari Debi vs Midnapur Zamindari Co., AIR 1919 PC 79, states: " . .
In the first place, it is plain that the agreement or compromise, in whole and not in part, is to be recorded, and the decree is then to confine its operation to so much of the subject matter of the suit as is dealt with by the agreement . . although the operative part of the decree would be properly confined to the actual subject matter of the then existing litigation the decree taken as a whole would include the agreement.
This in fact is what the decree did in the present case.
It may be that as a decree it was incapable of being executed outside the lands of the suit, but that does not prevent its being received in evidence of its con tents".
(Page 81) In Ram Juwan vs Devendra Nath Gupta, AIR 1960 Madhya Pradesh 200 280, the High Court states: "Where a consent decree contains terms that do not relate to the suit . . such terms cannot be enforced in execution of the decree but they may be enforced as a contract by a separate suit".
(Page 282) See also Vishnu Sitaram Auchat vs Ramachandra Govind Joshi, AIR 1932 Bombay 466 and Jasimuddin Biswas vs Bhuban Jelini, ILR 34 Calcutta 456.
In Ganganand Singh & Ors.
vs Rameshwar Singh Bahadur & Anr., , the High Court points out that a consent decree does not stand on a higher footing than a contract between the parties.
The Court always has the jurisdiction to set aside a consent decree upon any ground which will invalidate an agreement between the parties.
In the absence of any such ground, the consent decree is bind ing on the parties.
Courts in India have consistently recognised the tradi tional role of lawyers and the extent and nature of their implied authority to act on behalf of their clients.
Speak ing for a Full Bench of the Kerala High Court in Chengan Souri Nayakam vs A.N. Menon, AIR 1968 Kerala 213, K.K. Mathew, J. (as he then was) observed: "The construction of a document appointing an agent is different from the construction of a vakalat appointing counsel.
In the case of an agent the document would be construed strictly and the agent would have only such powers as are conferred expressly or by necessary impli cation.
In the case of counsel the rule is otherwise because there we are dealing with a profession where well known rules have crys tallised through usage.
It is on a par with a trade where the usage becomes an additional term of the contract, if not contrary to the general law or excluded by express agreement." (p.215).
About the special position of the advocate, the learned Judge stated: Counsel has a tripartite relationship; one with the pub lic, another with the court, and the third with his client.
That is a unique feature.
Other professions or callings may include one or two of these relationships but no other has the triple duty.
Counsel 's duty to the public is unique in that he has to accept all work from all clients in courts in which he holds himself out 201 as practicing, however, unattractive the case or the client." (p. 216) See also Jiwibai vs Ramkumar Shriniwas Murarka Agarwala, AIR 1947 Nagpur 17; Govindammal vs Marimuthu Maistry & Ors., AIR 1959 Mad. 7 and Laxmidas Ranchhoddas & Ors.
vs Savitabai Hargovindas Shah, AIR 1956 Born.
These principles were affirmed by this Court in Jamila bai Abdul Kadar vs Shankerlal Gulabchand & Ors.
[1975] Supp.
SCR 336.
Referring to a number of decisions on the point, V.R. Krishna Iyer, J. observes: " . .
Those who know how courts and counsel function will need no education on the jurisprudence of lawyer 's position and powers.
Of course, we hasten to enter a caveat.
It is perfectly open to a party, tike any other principal, to mark out in the vakalat or by particular instructions forbidden areas or expressly withhold the right to act in sensi tive matters, the choice being his, as the master.
If the lawyer regards these fetters as inconsistent with his position, he may refuse or return the brief.
But absent speaking instructions to the contrary, the power to act takes in its wings the right and duty to save a client by settling the suit if and only if he does so bona fide in the interests and for the advantage of his client . . "(Page 346) See also Monoharbahal Colliery Calcutta vs K.N. Mishra & Ors., AIR 1975 SC 1632.
After the amendment of 1976, a consent decree, as seen above, is executable in terms thereof even if it comprehends matters falling outside the subject matter of the suit, but concerning the parties.
The argument of the appellant 's counsel is that the legislature has intended that the agreement or compromise should be signed by the parties in person, because the responsibility for compromising the suit, including matters falling outside its subject matter, should be borne by none but the parties themselves.
I1 this contention is valid, the question arises why the legislature has, presumably being well aware of the consistently fol lowed practice of the British and Indian Courts, suddenly interfered with the time honoured role of lawyers in the conduct of cases without specifically so stating, but by implication? Can the legislature be presumed to have funda mentally altered the position of counsel or a recognised agent, as traditionally understood in the system of law and practice followed in India and other 'common law countries ' without expressly and directly so stating? There is, 202 no indication in preparatory work such as the 54th Report of the Law Commission dated 6.2.1973 or in the Statement of Objects and Reasons or in the words employed by the legisla ture that the concept of 'agents and pleaders ' of Order III, C.P.C. was in any manner altered.
There is no warrant for any such presumption.
It is a rule of legal policy that law should be altered deliberately rather than casually.
Legislature does not make radical changes in law by a sidewind, but only by measured and considered provisions '.
(Francis Bennion 's Statutory Interpretation, Butterworth, 1984, para 133).
As stated by Lord Devlin in National Assistance Board vs Wilkinson, "It is a well established principle of con struction that a statute is not to be taken as effecting a fundamental alteration in the general law unless it uses words that point unmistakably to that conclusion." Statutes relating to remedies and procedure must receive a liberal construction 'especially so as to secure a more effective, a speedier, a simpler, and a less expensive administration of law '.
See Crawford 's Statutory Construc tion, para 254.
The object of the amendment was to provide an appropriate remedy to expedite proceedings in Court.
That object must be borne in mind by adopting a purposive con struction of the amended provisions.
The legislative inten tion being the speedy disposal of cases with a view to relieving the litigants and the Courts alike of the burden of mounting arrears, the word 'parties ' must be so construed as to yield a beneficent result, so as to eliminate the mischief the legislature had in mind.
There is no reason to assume that the legislature in tended to curtail the implied authority of counsel, engaged in the thick of proceedings in court, to compromise agree on matters relating to the parties, even if such matters exceed the subject matter of the suit.
The relationship of counsel and his party or the recognised agent and his principal is a matter of contract; and with the freedom of contract gener ally, the legislature does not interfere except when war ranted by public policy, and the legislative intent is expressly made manifest There is no such declaration of policy or indication of intent in the present case.
The legislature has not evinced any intention to change the well recognised and universally acclaimed common law tradition of an ever alert, independent and active.
Bar with freedom to manoeuvre with force and drive for quick action in a battle of wits typical of the adversarial system of oral hearing which is in sharp contrast to the 203 inquisitorial traditions of the 'civil law ' of France and other European and Latin American countries where written submissions have the pride of place and oral arguments are considered relatively insignificant.
(See Rene David, English Law and French Law Tagore Law Lectures, 1980). 'The civil law ' is indeed equally efficacious and even older, but it is the product of a different tradition, culture and language and there is no indication,.
whatever, that Parliament was addressing itself to the task .of assim ilating or incorporating the rules and practices of that system into our own system of judicial administration.
The Indian legal system is the product of history.
It is rooted in our soil; nurtured and nourished by our culture, languages and traditions; fostered and sharpened by our genius and quest for social justice; reinforced by history and heritage: it is not a mere copy of the English common law; though inspired and strengthened, guided and enriched by concepts and precepts of justice, enquiry and good con science which arc indeed the hallmark of the common law.
In the words of M.C. Setalvad: " . . the common law of England with its statutory modifications and the doctrines of the English courts of equity has deeply coloured and influenced the laws and the system of judicial administration of a whole sub continent inhabited by nearly four hundred million people.
The law and jurisprudence of this vast community and its pattern of judi cial administration are in many matters dif ferent from those of England in which they had their roots and from which they were nurtured.
Yet they bear the unmistakable impress of their origin.
The massive structure of Indian law and jurisprudence resembles the height, the symmetry and the grandeur of the common and statute law of England.
In it one sees English law in the distant perspective of a new atmosphere and a strange clime.
" Speaking of the common law in the wider sense, the learned author continues: ".
But the English brought into India not only the mass of legal rules strictly known as the common law but also their traditions, outlook and techniques in estab lishing, maintaining and developing the judi cial system.
When, therefore, I speak of the common law in India I have in view comprehen sively all that is of English origin in our system of law.
In that wide meaning 204 the expression will include not only what in England is known strictly as the common law but also its traditions, some of the princi ples underlying the English statute law, the equitable principles developed in England in order to mitigate the rigours of the common law and even the attitudes and methods pervad ing the British system of the administration of justice." The Common Law in India, 1960 The Hamlyn Lectures, Twelth Series, pp.1 4.
After the attainment of independence and the adoption of the Constitution of India, judicial administration and the constitution of the law courts remained fundamentally un changed, except in matters such as the abolition of appeals to the Privy Council, the constitution of the Supreme Court of India as the apex court, the conferment of writ jurisdic tion on all the High Courts, etc.
The concept, structure and organisation of Courts, the substantive and procedural laws, the adversarial system of trial and other proceedings and the function of judges and lawyers remained basically unaltered and rooted in the common law traditions in contra distinction to those prevailing in the civil law or other systems of law.
In our own system of judicial administration, if strains have developed and cracks have appeared by the stresses and 2pressures of the time; if aberrations have become too obvious to be ignored or too deeprooted to be corrected by an internal mechanism; if the traditional role of the legal profession requires urgent legislative scrutiny with a view to remedying the defects and strengthening and safeguarding the system; it is a matter exclusively for Parliament to consider; but the amendment in question is not addressed to that purpose.
Aberrations there always have been in every system of administration; but whether they are merely peripheral or transient in character mere ripples on a placid pool or symptomatic of deeper malady requiring structural modifica tion by prompt legislative intervention is a matter of grave significance for the jurists, sociologists and political scientists to ponder over.
So long as the system of judicial administration in India continues unaltered, and so long as Parliament has not evinced an intention to change its basic character, there is no reason to assume that Parliament has, though not express ly, but impliedly reduced counsel 's role or capacity to represent his client as effectively as in the past.
On a matter of such vital importance, it is most unlikely that Parliament would have resorted 205 to implied legislative alteration of counsel 's capacity or status or effectiveness.
In this respect, the words of Lord Atkin in Sourendra (supra) comparing the Indian advocate with the advocate in England, Scotland and Ireland, are significant: There are no local conditions which make it less desirable for the client to have the full benefit of an advocate 's experience and judg ment.
One reason, indeed, for refusing to imply such a power would be a lack of confi dence in the integrity or judgment of the Indian advocate.
No such considerations have been or indeed could be advanced, and their Lordships mention them but to dismiss them . . (Page 161) Similar is the view expressed by the Rajasthan High Court in Mohan Bai vs Jai kishan, AIR ; Smt.
Mohan Bai vs Smtjai kishan & Ors., AIR and by the Gujarat High Court in Nadirsha Hirji Baria & Ors.
vs Niranjankumar alias Nireshkumar Dharamchand Shah & Ors.
, A contrary view has been ex pressed by the Andhra Pradesh High Court in Kesarla Raghu ram.
vs Dr. Narsipalle Vasundara, AIR 1983 Andhra Pradesh 32, and it does not commend itself to us.
We may, however, hasten to add that it will be prudent for counsel not to act on implied authority except when warranted by the exigency of circumstances demanding immedi ate adjustment of suit by agreement or compromise and the signature of the party cannot be obtained without undue delay.
In these days of easier and quicker communication, such contingency may seldom arise.
A wise and careful coun sel will no doubt arm himself in advance with the necessary authority expressed in writing to meet all such contingen cies in order that neither his authority nor integrity is ever doubted.
This essential precaution will safeguard the personal reputation of counsel as well as uphold the pres tige and dignity of the legal profession.
Considering the traditionally recognised role of counsel in the common law system, and the evil sought to be remedied by Parliament by the C.P.C. (Amendment) Act, 1976, namely, attainment of certainty and expeditious disposal of cases by reducing the terms of compromise to writing signed by the parties, and allowing the compromise decree to comprehend even matters falling outside the subject matter of the suit, but relating to the parties, the legislature cannot, in the absence of express words to such effect, be presumed to have disallowed the parties to enter into a compromise by counsel in their cause or by their duly authorised agents.
Any 206 such presumption would be inconsistent with the legislative object of attaining quick reduction of arrears in Court by elimination of uncertainties and enlargement of the scope of compromise.
To insist upon the party himself personally signing the agreement or compromise would often cause undue delay, loss and inconvenience, especially in the case of non resident persons.
It has always been universally understood that a party can always act by his duly authorised representative.
If a power of attorney holder can enter into an agreement or compromise on behalf of his principal, so can counsel, possessed of the requisite authorisation by vakalatnama, act on behalf of his client.
Not to recognise such capacity is not only to cause much inconvenience and loss to the parties personally, but also to delay the progress of proceedings in court.
If the legislature had intended to make such a funda mental change, even at the risk of delay, inconvenience and needless expenditure, it would have expressly so stated.
Accordingly, we are of the view that the words 'in writing and signed by the parties ', inserted by the C.P.C. (Amendment) Act, 1976, must necessarily mean, to borrow the language of Order II1 rule 1 C.P.C.: "any appearance application or act in or to any court, required or authorized by law to be made or done by a party in such court, may except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognized agent, or by a pleader, appearing, applying or acting as the case may be, on his behalf: Provided that any such appearance shall, if the court so directs, be made by the party in person".
(emphasis supplied) In the present case, the notice issued under Order XXI rule 22 was personally served on the defendant, but he did not appear or show cause why the decree should not be exe cuted.
The notice was accordingly made absolute by Order dated 23.1.1990 and leave was granted to the plaintiff to execute the decree.
The decree passed by the High Court on 18.6.1984 in terms of the compromise was a valid decree and it constituted res judicata.
As stated by this Court in Shankar Sitaram Sontakke & Anr.
vs Balkrishna Sitaram Son takke & Ors.; , ".
It is well settled that a consent decree is as binding upon the parties thereto as a decree passed by invitum.
The com 207 promise having been found not to be vitiated by fraud, misrepresentation, misunderstanding or mistake, the decree passed thereon has the binding force of 'res judicata '.
" (Page 355) S.R.
Das, C.J., in Sailendra Narayan Bhanja Deo vs The State of Orissa, ; , states: ". a judgment by consent or default is as effective an estoppel between the parties as a judgment whereby the court exercises its mind on a contested case . ".
(Page 351) A judgment by consent is intended to stop litigation between the parties just as much as a judgment resulting from a decision of the court at the end of a long drawn out fight.
A compromise decree creates an estoppel by judgment.
As stated by Spencer Bower & Turner in Res Judicata Second Edition, page 37: "Any judgment or order which in other respects answers to the description of a res judicata is nonetheless so because it was made in pursuance of the consent and agreement of the parties .
Accordingly, judgments, orders, and awards by consent have always been held no less efficacious as estoppels than other judgments, orders or decisions, though doubts have been occasionally expressed whether, strictly, the foundation of the estoppel in such cases is not representation by conduct, rather than res judicata . . . . ".
See also Mohanlal Goenka vs Benoy Kishna Mukherjee & Ors., ; The consent decree made on 18.6.1984 remained unchal lenged.
None questioned it.
The appellant never raised any doubt as to its validity or genuineness.
He had no case that the decree was vitiated by fraud or misrepresentation or his counsel lacked authority to enter into a compromise on his behalf.
Nevertheless, after six years he questioned its validity by means of chamber summons.
This was an unsuccess ful challenge by reason of delay, estoppel or res judicata, and was rightly so held by the High Court.
Accordingly, we see no merit in this appeal.
It is dismissed.
However, in the circumstances of the case, we do not make any order as to costs.
V.P.R. Appeal dismissed. [/INST] Before this Court, the appellant defendant challenged the judgment of the High Court which held that the decree made against the defendant 'in terms of a compromise in writing and signed by the counsel representing the parties was valid and binding on the parties, and that in the ab sence of any challenge against the order made under Order XXI, rule 23, Civil Procedure Code, allowing execution of the decree, the defendant was no longer entitled to resist execution by recourse to Chamber Summons.
The appellant contended that the High Court was wrong in holding that, notwithstanding the amendment of 1976 insert ing the words 'in writing and signed by the parties ', it was still sufficient if the terms of compromise were reduced to writing and signed by counsel representing the parties, and not necessarily by the parties in person, and that a decree based on a compromise not signed by the parties in person was a nullity and was incapable of execution.
The respondents submitted that it was always under stood that the expression 'party ' included his pleader in matters relating to appearance in court, and his counsel in the cause, therefore, had express or implied authority, unless specifically withdrawn or limited by the party, to represent him in court and do whatever was necessary in connection with the conduct of his suit including adjustment of the suit by agreement or compromises.
188 Dismissing the appeal, this Court, HELD:.
Counsel 's role in entering into a compromise has been traditionally understood to be confined to matters within the scope of the suit.
However, a compromise decree may incorporate not only matters failing within the subject matter of the suit, but also other matters which are collat eral to it.
The position before the amendment in 1976 was that, in respect of the former, the decree was executable, but in respect of the latter, it was not executable, though admissible as judicial evidence of its contents.
[199 C D] 2.
After the amendment of 1976, a consent decree, is executable in terms thereof, even if it comprehends matters failing outside the subject matter of the suit, but concern ing the parties.
[201 E] 3.
The object of the amendment of Order XXIII, Rule 3, C.P.C. was to provide an appropriate remedy to expedite proceedings in Court.
That object must be borne in mind by adopting a purposive construction of the amended provisions.
The legislative intention being the speedy disposal of cases with a view to relieving the litigants and the Courts alike of the burden of mounting arrears, the word 'parties ' must be so construed as to yield a beneficent result, so as to eliminate the mischief the legislature had in mind.
[202 D E] 4.
There is no reason to assume that the legislature intended to curtail the implied authority of counsel, en gaged in the thick of proceedings in court, to compromise or agree on matters relating to the parties, even if such matters exceed the subject matter of the suit.
The relation ship of counsel and his party or the recognised agent and his principal is a matter of contract; and with the freedom of contract generally, the legislature does not interfere except when warranted by public policy, and the legislative intent is expressly made manifest There is no such declara tion of policy or indication of intent in the present case.
The legislature has not evinced any intention to change the well recognised and universally acclaimed common law tradi tion of an ever alert, independent and active Bar with freedom to manoeuvre with force and drive for quick action in a battle of wits typical of the adversarial system of oral heating which is in sharp contrast to the inquisitorial traditions of the 'civil law 'of France and other European and Latin American countries where written submissions have the pride of place and oral arguments are 189 considered relatively insignificant.
[202 E H] 5.
Considering the traditionally recognised role of counsel in the common law system, and the evil sought to be remedied by Parliament by the C.P.C. (Amendment) Act, 1976, namely attainment of certainty and expeditious disposal of cases by reducing the terms of compromise to writing signed by the parties, and allowing the compromise decree to com prehend even matters falling outside the subject matter of the suit, but relating to the parties, the legislature cannot, in the absence of express words to such effect, be presumed to have disallowed the parties to enter into a compromise by counsel in their cause or by their duly autho rised agents.
Any such presumption would be inconsistent with the legislative object of attaining quick reduction of arrears in Court by elimination of uncertainties and en largement of the scope of compromise.
[205 F H] 6.
A judgment by consent is intended to stop litigation between the parties just as much as a judgment resulting from a decision of the court at the end of a long drawn out fight.
A compromise decree creates an estoppel by judgment.
[207 B] 7.
In the present case, the notice issued under Order XXI rule 22 was personally served on the defendant, but he did not appear or show cause why the decree should not be executed.
The notice was accordingly made absolute by order dated 23.1.1990 and leave was granted to the plaintiff to execute the decree.
The decree passed by the High Court on 18.6.1984 in terms of the compromise was a valid decree and it constituted res judicata.
[206 F G] 8.
The consent decree made on 18.6.1984 remained unchal lenged.
None questioned it.
The appellant never raised any doubt as to its validity or genuineness.
He had no case that the decree was vitiated by fraud or misrepresentation or his counsel lacked authority to enter into a compromise on his behalf.
Nevertheless, after six years he questioned its validity by means of chamber summons.
This was an unsuc cessful challenge by reason of delay, estoppel or res judi cata.
[207 E F] Halsbury 'section Laws of England, 4th Ed. Vol.3, Paras 1181 & 1183; Francis Bennion 's Statutory Interpretation, Butter worths, 1984, para 133; Crawford 's Statutory., Construction, Para 254; Rene David, English Law and French Law Tagore Law Lectures, 1980; Spencer Bower to Turner in Res 190 Judicata, Second Edition, Page 37; The Common Law in India 1960 The Hamlyn Lectures, Twelfth Series.
pp 1 4, referred to.
Patience Swinfen vs Lord Chelmsford, [1860]5 H & N 890 at 912; S.C.(Ex.) 382; Mathews vs Munster, [1887] 20 Q.B. 141 at 144; Rondel vs Worsley, [1965] 1 Q.B. 443,502; (Babu) Sheonandan Prasad Singh &Ors.
vs Hakim Abdul Fateh Mohammed Reza & Anr., AIR 1935 P.C. 119,121; Sourendera Nath Mitra & Ors.
vs Tarubala Dasi, AIR 1930 P.C. 158; Hemanta Kumari Debi vs Midnapur Zamindari Co., AIR 1919 PC 79; Jamilabai Abdul Kadar vs Shankerlal Gulabchand & Ors., [1975] Supp.
SCR 336; Monoharbahal Colliery, Calcutta vs K.N. Mishra & Ors., AIR 1975 SC 1632; National Assistance Board vs Wilkin son, ; Sailendra Narayan Bhania Deo vs The State of Orissa, ; ; Mohanlal Goenka vs Benoy Kishna Mukherjee & Ors., ; , Shankor Sitaram Sontakke & Anr.
vs Balkrishna Sitaram Sontakke & Ors. ; , referred to.
Ram Juwan vs Devendra Nath Gupta, AIR 1960 M P. 280; Vishnu Sitaram Auchat vs Ramchandra Govind Joshi, AIR 1932 Bombay 466; Jasimuddin Biswas vs Bhuban Jelini, ILR 34 Calcutta 456; Ganganand Singh & Ors.
vs Rameshwar Singh Bahadur & Anr, ; Chengan Soun, Nayakam vs A.N. Menon, AIR 1968 Kerala 213; Jiwibai vs Ramkumar Shrini was Murarka Agarwala, AIR 1947 Nagpur 17; Govindamreal vs Marimuthu Maistry & Ors., AIR 1959 Mad 7; Laxmidas Ranchhod das & Ors.
vs Savitabai Hargovindas Shah, AIR 1956 Bombay 54; Mohan Bat vs Jai Kishan, AIR ; Smt.
Mohan Bat vs Smt.
Jai kishan & Ors., AIR , Nadirsha Hirji Bana & Ors.
v Niranjanlkumar alias Nireshku mar Dharamchand Shah & Ors., , approved.
Kesarla Raghuram vs Dr. Narsipalle Vasundara, A.I.R. 1983 A .P. disapproved. </s> |
<s>[INST] Summarize the following judgement: Appeal No. 4075 of 1991.
From the Judgment and Order dated 3.12.1990 of the Calcutta High Court in Second Appeal No. 1063 of 1982.
D.N. Mukherjee, N.R. Choudhary and Ranjan Mukherjee for the Appellant.
Manoj Swarup, Ms. Lalita Kohli, Ms. Sarla Chandra and S.K. Mitra for the Respondent.
The Judgment of the Court was delivered by THOMMEN, J.
Leave granted.
This appeal by the plaintiff in a suit for eviction arises from the judgment of the Calcutta High Court dismiss ing his appeal against the judgment of the 1st appellate court allowing the defendant 's appeal against the decree of the trial court.
The trial court found that the plaintiff was entitled to evict the tenant on the ground of reasonable requirement specified under Section 13(1)(ff) of the West Bengal Premises Tenancy Act, 1956 (the "Act").
Reversing that finding, the 1st appellate court held that the plain tiff was not the owner of the premises and was, therefore, not entitled to seek eviction.
This finding was affirmed by the High Court by the judgment under appeal.
The only question which arises in the present appeal is whether or not the plaintiff is the owner of the suit prem ises for the purpose of instituting a suit for eviction in terms of the Act.
The dispute concerns a flat allotted to the plaintiff by the Kadamtola Housing Co operative Society, Calcutta (the "Society").
This was one of the 16 flats held by the Society under a 99 years lease granted by the Calcut ta Metropolitan Development Authority under a registered document.
The Society in turn allotted these flats to its members, among whom the appellant is one, by a sub lease for a term of 99 years.
The appellant, being an allottee, is thus a sub lessee under the Society with a heritable and transferable title.
The 248 appellant subsequently inducted the respondent into the flat on a rent of Rs. 110 per month.
On 29.10.1976, a notice of termination of the tenancy was issued by the appellant to the respondent calling upon him to vacate the premises not later than December, 1976.
Since the respondent did not vacate the premises, title suit No. 165/77 was instituted by the appellant on the ground of default of payment of rent as specified under Section 13(1)(i) of the Act and also on the ground of reasonable requirement for occupation as provided under Section 13(1)(ff).
The trial court found that the premises were reasonably required by the appellant, and the suit was accordingly decreed on the ground mentioned under Section 13(1)(ff).
It was, however, held that the tenant was not in arrears of rent.
It is important to note that the defendant in his writ ten statement did not question the plaintiff 's title or claim of ownership.
No issue regarding ownership had been framed as it was never questioned by the defendant at any stage of the proceedings in the trial court.
On appeal by the defendant, the 1st appellate court examined the plain tiffs title and held that, since he was only a lessee under a 99 years lease granted by the Society, which itself was a lessee holding a 99 years lease from the Metropolitan Devel opment Authority, he was not an 'owner ' within the meaning of Section 13(1)(ff) of the Act and was, therefore, not entitled to seek eviction under that provision.
Accordingly, the merits of the plaintiffs claim were not examined by the 1st appellate court.
This finding was affirmed by the High Court, and, like the 1st appellate court, it also did not consider the merits of the plaintiffs case for eviction.
Section 13 protects a tenant from eviction except on one or more of the grounds specified thereunder.
That Section, in so far as it is material, reads: "S.(13)(1) Notwithstanding anything to the contrary in any other law, no order or decree for the recovery of possession of any premises shall be made by any Court in favour of the landlord against a tenant except on one or more of the following grounds, namely: (fl ') Subject to the provisions of sub section (3A), where the premises are reasonably re quired by the landlord for his own occupation if he is the owner or for the occupation of any person for whose benefit the premises are held and the landlord or such person is not in possession of any reasonably suitable accommo dation.
249 On the facts of this case, the provision of sub section 3(A) of this Section are not attracted.
Clause (ff) is attracted as a ground for eviction if the landlord is in a position to prove that the premises are required by him for his own occupation, if he is the owner of the premises, or for the occupation of any person for whose benefit the premises are held, and the landlord or such other person, as the case may be, is not in possession of any reasonably suitable accommodation.
The 'landlord ' is defined by Section 2 in wide terms so as to include any person who, for the time being, is enti tled to receive or but for a special contract, would be entitled to receive the rent of any premises, whether or not on his own account: ' This definition shows that even if the rent is received by a person not on his own account but on account of any other person, such as his principal or his ward, he is for the purpose of the Act a landlord.
Any such person is, therefore, entitled to institute a suit for eviction.
But to attract clause (fl '), the requirement of the landlord must be either for his own occupation, if he is the owner, or, for the occupation of any person for whose benefit the premises are held.
This clause is, of course, available only when no reasonably suitable accommodation is available to the person for whose occupation the eviction is sought.
It is submitted on behalf of the respondent that the appellant, although a 'landlord ' within the meaning of Section 2, is not an owner so as to be able to seek eviction on the ground specified under clause (ff) of sub section (1) of Section 13.
The contention is that the appellant is only a lessee, and that too in terms of a sub lease of 99 years granted by a Society which is itself holding a lease for the same period.
Such a lessee is not an owner, for his rights are not absolute.
He cannot claim to be an owner for the purpose of seeking eviction by recourse to the provisions of an Act which is intended to protect the tenant and prevent eviction except on specified grounds.
The expression owner should be so strictly construed as to exclude any person having less than full ownership right.
Ownership denotes the relation between a person and an object forming the subject matter of his ownership.
It consists in a complex of rights, all of which are rights in rem, being good against all the world and not merely against specific persons '.
(Salmond on Jurisprudence, 12th ed., Ch. 8, p. 246 et.
seq.).
There are various rights or incidents of ownership all of which need not necessarily be present in every case.
They may include a right to possess, use and enjoy the thing owned; and a right to consume, destroy or alienate it.
Such a right may be indeterminate in duration and residuary in character.
A person has a right to possess the thing which he owns, even when he is not in possession, but only retains a rever 250 sionary interest, i.e., a right to repossess the thing on the termination of a certain period or on the happening of a certain event.
All that a plaintiff needs to prove is that he has a better title than the defendant.
He has no burden to show that he has the best of all possible titles.
His ownership is good against all the world except the true owner.
The rights of an owner are seldom absolute, and often are in many respects controlled and regulated by statute.
The question, however, is whether he has a superior right or interest vis a vis the person challenging it.
The plaintiff is an allottee in terms of the West Bengal Co operative Societies Act, 1983: (See Sections 87 and 89).
He has a right to possess the premises for a period of 99 years as a heritable and transferable property.
During that period he has a right to let out the premises and enjoy the rental income therefrom, subject to the statutory terms and conditions of allotment.
The certificate of allotment is the conclusive evidence of his title or interest.
It is true that he has to obtain the written consent of the Society before letting out the premises.
But once let out in accord ance with the terms of allotment specified in the statute, he is entitled to enjoy the income from the property.
Al though he is a lessee in relation to the Society, and his rights and interests are subject to the terms and conditions of allotment, he is the owner of the property having a superior right in relation to the defendant.
As far as the defendant is concerned, the plaintiff is his landlord and the owner of the premises for all purposes dealt with under the provisions of the Act.
In view of what we have stated above, the High Court and the 1st appellate court were wrong in setting aside the decree of the trial court solely on the question of the appellant 's title.
The appellant 's title was never an issue at any stage of the trial.
There was no plea to that effect and no issue was, therefore, framed on the question.
This being the position, the appellant 's claim has to be decided on the basis of the pleadings, i.e., on the basis that he is the owner of the premises in question.
Accordingly, we set aside the judgment of the High Court and that of the 1st appellate court and remand this case to the 1st appellate court for fresh disposal of the respond ent tenant 's appeal on the merits.
This appeal is accordingly allowed with costs of the appellant throughout.
N.P.V Appeal allowed. [/INST] The appellant plaintiff rented out to the respondent defendant the suit premises allotted to him, by sub lease, by a Housing Co operative Society, which itself held the flat under a 99 years lease granted by the Metropolitan Development Authority.
Sometime later he issued a notice of termination of the tenancy to the respondent and called upon him to vacate the premises within a stipulated time.
On respondent 's failure to vacate the premises, he/instituted a suit on grounds of default of payment of rent and reasonable requirement for occupation under Sections 13(1) (i) and 13(1)(ff) respectively.
The trial court decreed the suit on the ground of reasonable requirement but held that the respondent tenant was not in arrears of rent.
On appeal by the respondent, the first appellate court did not examine the merits of the appellant 's claim of reasonable requirement, but examined the appellant plain tiff 's title, though the respondent had not questioned the same and held that, since the appellant was only a lessee under a 99 years lease granted by the Society, which itself was a lessee holding a 99 years lease from the Metropolitan Development Authority, he was not an 'owner ' within the meaning of Section 13(I)(II) of the Act and was, therefore, not entitled to seek eviction under that provision.
The High Court also did not examine the appellant 's claim for evic tion and affirmed the first appellate Court 's finding on the question of title.
Hence the appeal by the appellant plain tiff.
On the question: whether the appellant was the owner of the suit premises for the purpose of instituting a suit for eviction in terms of the West Bengal Premises Tenancy Act, 1956.
246 Allowing the appeal, this Court, HELD: 1.1 Ownership denotes the relation between a person and an object forming the subject matter of his ownership.
It consists in a complex of rights, all of which are right 's in rem, being good against all the world and not merely against specific persons.
[249 G] Salmond on Jurisprudence, 12th ed.
Ch. 8, p. 246 et.
referred to.
1.2 There are various rights or incidents of ownership all of which need not necessarily be present in every case.
They may include a right to possess, use and enjoy the thing owned; and a right may be indeterminate in duration and residuary in character.
A person has a right to possess the thing which he owns, even when he is not in possession, but only retains a reversionary interest, i.e., a right to repossess the thing on the termination of a certain period or on the happening of a certain event.
[249 G H; 250 A] 1.3 All that a plaintiff needs to prove is that he has a better title than the defendant.
He has no burden to show that he has the best of all possible titles.
His ownership is good against all the world except the true owner.
The rights of an owner are seldom absolute, and often are in many respects controlled and regulated by statute.
The question, however, is whether he has a superior right or interest vis a vis the person challenging it.
[250 B] 1.4 In the instant case, the appellant plaintiff is an allottee in terms of the West Bengal Co operative Societies Act, 1983.
He has a right to possess the premises for a period of 99 years as a heritable and transferable property.
During that period he has a right to let out the premises and enjoy the rental income therefrom, subject to the statu tory terms and conditions of allotment.
The certificate of allotment is the conclusive evidence of his title or inter est.
No doubt he has to obtain the written consent of the Society before letting out the premises.
But once let out in accordance with the terms of allotment specified in the statute, he is entitled to enjoy the income from the proper ty.
Although he is a lessee in relation to the society, and his rights and interests are subject to the terms and condi tions of allotment, he is the owner of the property having a superior right in relation to the defendant.
As far as the respondent is concerned, the appeliant is his landlord and the owner of the premises for all purposes dealt with under the provisions of the Act.
[250 C E] 1.5 Hence.
the High Court and the first appellate court were wrong in setting aside the decree of the trial court solely on the question of 247 appellant 's title, which was never an issue at any stage of the trial.
There was no plea to that effect and no issue was, therefore, framed on the question.
This being the position, the appellant 's claim has to be decided on the basis of the pleadings, i.e. on the basis that he is the owner of the premises in question.
Accordingly, the Judg ments of the High Court and first appellate court are set aside and the matter remanded to the first appellate court for fresh disposal of respondent tenant 's appeal on merits.
[250 E G] </s> |
<s>[INST] Summarize the following judgement: iminal Appeals Nos. 81 and 82 of 1958.
Appeals by special leave from the judgment and order dated February 28, 1958, of the Allahabad High Court in Criminal Appeal No. 1809 of 1957 and Referred No. 138 of 1957 arising out of the judgment and order dated November 28, 1957, of the Court of Sessions at Farrukhabad in Sessions Trial No. 61 of 1957.
Jai Gopal Sethi and B. C. Misra, for the appellants.
G. C. Mathur, and C. P. Lal for the respondent.
942 1958.
December 18.
The Judgment of the Court was delivered by KAPUR, J.
These are two appeals which arise out of the same judgment and order of the High Court at Allahabad and involve a common question of law.
Appellants Tej Singh and Mizaji are father and son, Subedar is a nephew of Tej Singh, Machal is Tej Singh 's cousin and Maiku was a servant of Tej Singh.
They were all convicted under section 302 read with section 149 of the Indian Penal Code and except Mizaji who was sentenced to death, they were all sentenced to imprisonment for life.
They were also convicted of the offence of rioting and because Tej Singh and Mizaji were armed with a spear and a pistol respectively, they were convicted under section 148 of the Indian Penal Code and sentenced to three years ' rigorous imprisonment and the rest who were armed with lathis were convicted under section 147 of the Indian Penal Code and sentenced to two years ' rigorous imprisonment.
All the sentences were to run concurrently but Mizaji 's term of imprisonment was to come to an end after " he is hanged ".
Against this order of conviction the appellants took an appeal to the High Court and both their convictions and sentences were confirmed.
The offence for which the appellants were convicted was committed on July 27, 1957, at about sunrise and the facts leading to the occurrence were that field No. 1096 known as Sukhna field was recorded in the revenue papers in the name of Banwari who was recorded as in possession as tenant in chief Sometime in 1949 he mortgaged this plot of land to one Lakhan Singh.
In 1952 this field was shown as being under the cultivation of Rameshwar, the deceased and four others persons, Ram Sarup who was the uncle of Rameshwar, Jailal his brother, Sita Ram and Saddon.
The record does not show as to the title under which these persons were holding possession.
The mortgage was redeemed sometime in 1953.
The defence plea was that in the years 1954, 1955, 1956 possession was shown as that of Banwari.
But if there were any such entries, they were corrected in 1956 and possession was shown in the revenue papers as that of 943 Rameshwar, and four others abovenamed.
These entries showing cultivating possession of the deceased and four others were continued in 1957.
On April 18, 1957, Banwari sold the field No. 1096 to Tej Singh appellant who made an application for mutation in his favour but this was opposed by the deceased and four other persons whose names were shown as being in possession.
In the early hours of July 27, 1957, the five appellants came armed as above stated.
Mizaji 's pistol is stated to have been in the fold (phent) of his dhoti.
A plough and plank known as patela and bullocks were also brought.
The disputed field had three portions, in one sugarcane crop was growing, in the other Jowar had been sown and the rest had not been cultivated.
Maiku started ploughing the Jowar field and overturned the Jowar sown therein while Tej Singh with his spear kept watch.
Bateshwar P. W. 7 seeing what was happening gave information of this to Ram Sarup who accompanied by Rameshwar, Jailal and Israel came to the Sukhna field but unarmed.
Ram Sarup inquired of Tej Singh as to why he was damaging his field and Tej Singh replied that he had pur chased the field and therefore would do " what he was doing " which led to an altercation.
Thereupon, the four persons cutting the sugarcane crop i.e. Mizaji, Subedar, Machal and Maiku came to the place where Tej Singh was and upon the instigation of Tej Singh, Mizaji took out the pistol and fired which hit Rameshwar, who fell down and died I hour later.
The accused, after Rameshwar fell down, fled from the place.
Ram Sarup, Jailal and Israel then went to the police station Nawabgunj and Ram Sarup there made the first information report at about 7 30 a. m., in which all the five accused were named.
When the police searched for the accused they could not be found and proceedings were taken under sections 87 and 88 of the Code of Criminal Procedure, but before any process was issued Subedar, Tej Singh and Machal and Maiku appeared in court on August 3, 1957, and Mizaji on August 14, 1957, and they were taken into custody.
The prosecution relied upon the evidence of the eyewitnesses and also of Bateshwar who carried the 944 information to the party of complainant as to the coming of Tej Singh and others.
The defence of the accused was a total denial of having participated in the occurence and as a matter of fact suggested that Rameshwar was killed in a dacoity which took place at the house of Ram Sarup.
The learned Sessions Judge accepted the story of the prosecution and found Ram Sarup to be in possession of the field; he also found that the appellants formed an unlawful assembly " the common object of which was to take forcible possession of the field and to meet every eventuality even to the extent of causing death if they are interfered with in their taking possession of the field " and it was in prosecution of the common object of that assembly that Mizaji had fired the pistol and therefore all were guilty of the offence of rioting and of the offence under section 302 read with section 149, Indian Penal Code.
The High Court on appeal held that the appellants were members of an unlawful assembly and had gone to the Sukhna field with the object of taking forcible possession and " there is also no doubt that the accused had gone there fully prepared to meet any eventuality even to commit murder if it was necessary for the accomplishment of their common object of obtaining possession over the field.
There is also no doubt that considering the various weapons with which the accused had gone armed they must have known that there was likelihood of a murder being committed in prosecution of their common object ".
The High Court also found that all the appellants had gone together to take forcible possession and were armed with different weapons and taking their relationship into consideration it was unlikely that they did not know that Mizaji was armed with a pistol and even if the common object of the assembly was not to commit the murder of Rameshwar or any other member of the party of the complainants II there can be no doubt that the accused fully knew, considering 'the nature of weapons with which they were armed, namely, pistol and lathis, that murder was likely to be committed in their attempt to take forcible possession over the disputed land ".
The High Court further 945 found that the accused had gone prepared if necessary to commit the murder in prosecution of their common object of taking forcible possession.
They accepted the testimony of Matadin and Hansram who stated that all the accused had asked Ram Sarup and his companions to go away, otherwise they would finish all of them and when they resisted Mizaji accused fired the pistol at them and thus in view of the nature of the weapons with which they had gone to the disputed piece of land, " they knew that murder was likely to be committed in prosecution of their object ".
Another finding given by the High Court was that the appellants wanted to forcibly dispossess the complainants and with that object in view they went to the disputed field to take forcible possession and that the complainant 's party on coming to know of it went to the field and resisted.
Mizaji fired the pistol and thus caused the death of Rameshwar.
The High Court also held : " We are also of the opinion that the act of the accused was premeditated and well designed and that the accused considering the circumstances of the case and the weapons with which they were armed, knew that murder was likely to be committed in accomplishment of their common object.
" For the appellants it was contended that the High Court was not justified in drawing the inference that other members of the party of the appellants had knowledge of the existence of the pistol.
There is no doubt that on the evidence the father Tej Singh must have known that the son, Mizaji, had a pistol.
And in the circumstances of this case the High Court cannot be said to have erroneously inferred as to the knowledge of the rest as to the possession of pistol by Mizaji.
The question for decision is as to what was the common object of the unlawful assembly and whether the offence of murder was committed in prosecution of the common object or was such an offence as the members of the unlawful assembly knew was likely to be committed in prosecution of the common object.
It was argued on behalf of the appellants that the 119 946 common object was to take forcible possession and that murder was committed neither in prosecution of the common object of the unlawful assembly nor was it such as the members of that assembly knew to be ,.likely to be committed.
That the common object of the unlawful assembly was to take forcible possession of the Sukhana field cannot be doubted.
Can it be said in the circumstances of this case that in prosecution of the common object the members of the unlawful assembly were prepared to go to the extent of committing murder or they knew that it was likely to be committed ? One of the members of the assembly Tej Singh was armed with a spear.
His son Mizaji was armed with a pistol and others were carrying lathis.
The extent to which the members of the unlawful assembly were prepared to go is indicated by the weapons carried by the appellants and by their conduct, their collecting where Tej Singh was and also the language they used at the time towards the complainant 's party.
The High Court has found that the appellants " had gone prepared to commit murder if necessary in the prosecution of their common object of taking forcible possession of the land ", which it based on the testimony of Matadin and Hansraj who deposed that when the complainant 's party arrived and objected to what the appellants were doing they (the appellants) " collected at once " and asked Ram Sarup and his companions to go away otherwise they would finish all of them and when the latter refused to go away, the pistol was fired.
That finding would indicate the extent to which the appellants were prepared to go in the prosecution of their common object which was to take forcible possession of the Sukhana field.
The High Court also found that in any event the case fell under the second part of section 149, Indian Penal Code in view of the weapons with which the members of the unlawful assembly were armed and their conduct which showed the extent to which they were prepared to go to accomplish their common object.
Counsel for the appellants relied on Queen vs Sabid Ali (1), and argued that section 149 was inapplicable.
There (1) Cr. 947 the learned Judges constituting the full bench gave differing opinions as to the interpretation to be put on section 149, Indian Penal Code.
That was a case where the members of an unlawful assembly went to take forcible possession of a piece of land.
The view of the majority.
of the Judges was that finding unexpected opposition by one member of the party of the complainants and also finding that they were being over.
powered by him, one of the members of the unlawful assembly whose exact time of joining the unlawful assembly was not proved fired a gun killing one of the occupants of the land who were resisting forcible dis possession.
It was also held that the act had not been done with a view to accomplish the common object of driving the complainants out of the land, but it was in consequence of an unexpected counter attack.
Ainslie, J., was of the opinion that the common object of the assembly was not only to forcibly eject the occupants but to do so with show of force and that common object was compounded both of the use of the means and attainment of the end and that it extended to the committing of murder.
Phear, J., said that the offence committed must be immediately connected with that common object by virtue of the nature of the object.
The members of the unlawful assembly must be prepared and intend to accomplish that object at all costs.
The test was, did they intend to attain the common object by means of murder if necessary ? If events were of sudden origin, as the majority of the learned Judges held them to be in that case, then the responsibility was entirely personal.
In regard to the second part he was of the opinion that for its applica tion it was necessary that members of the assembly must have been aware that it was likely that one of the members of the assembly would do an act which was likely to cause death.
Couch, C. J., was of the opinion that firing was not in prosecution of the common object of the assembly and that there was not much difference between the first and the second part of section 149.
He said : " At first there does not seem to be much difference between the two parts of the section and I think the 948 cases which would be within the first, offences committed in prosecution of the common object, would be, generally, if not always, within the second, namely, offences which the parties knew to be likely to be committed in the prosecution of the common object.
But I think there may be cases which would come within the second part and not within the first.
" Jackson, J., held in the circumstances of that case that the assembly did not intend to commit nor knew it likely that murder would be committed.
Pontifex, J., interpreted the section to mean that the offence committed must directly flow from the common object or it must so probably flow from the prosecution of the common object that each member might antecedently expect it to happen.
In the second part "know" meant to know that some members of the assembly had previous knowledge that murder was likely to be committed.
This section has been the subject matter of interpretation in the various High Court of India, but every case has to be decided on its own facts.
The first part of the section means that the offence committed in prosecution of the common object must be one which is committed with a view to accomplish the common object.
It is not necessary that there should be a preconcert in the sense of a meeting of the members of the unlawful assembly as to the common object; it is enough if it is adopted by all the members and is shared by all of them.
In order that the case may fall under the first part the offence committed must be connected immediately with the common object of the unlawful assembly of which the accused were members.
Even if the offence committed is not in direct prosecution of the common object of the assembly, it may yet fall under section 149 if it can be held that the offence was such as the members knew was likely to be committed.
The expression I know ' does not mean a mere possibility, such as might or might not happen.
For instance, it is a. matter of common knowledge that when in a village a body of heavily armed men set out to take a woman by force, someone is likely to be killed and all the members of the unlawful assembly must be aware of that likelihood and would be guilty 949 under the second part 'of section 149.
Similarly, if a body of persons go armed to take forcible possession of the land, it would be equally right to say that they have the knowledge that murder is likely to be committed if the circumstances as to the weapons carried and other conduct of the members of the unlawful assembly clearly point to such knowledge on the part of them all.
There is a great deal to be said for the opinion of Couch, C. J., in Sabid Ali 's case (1) that when an offence is committed in prosecution of the common object, it would generally be an offence which the members of the unlawful assembly knew was likely to be committed in prosecution of the common object.
That, however, does not make the converse proposition true; there may be cases which would come within the second part, but not within the first.
The distinction between the two parts of section 149, Indian Penal Code cannot be ignored or obliterated.
In every case it would be an issue to be determined whether the offence committed falls within the first part of section 149 as explained above or it was an offence such as the members of the assembly know to be likely to be committed in prosecution of the common object and falls within the second part.
Counsel for the appellants also relied on Chikkarange Gowde vs State of Mysore (2).
In that case there were special circumstances which were sufficient to dispose of it.
The charge was a composite one mixing up common intention and common object under sections 34 and 149, Indian Penal Code and this Court took the view that it really was one under section 149, Indian Penal Code.
The charge did not specify that three of the members had a separate common intention of killing the deceased, different from that of the other members of the unlawful assembly.
The High Court held that the common object was merely to chastise the deceased, and it did not hold that the members of the unlawful assembly knew that the deceased was likely to be killed in prosecution of that common object.
The person who was alleged to have caused the fatal injury was acquitted.
This Court held that on the findings (1) Cr.
(2) A.I.R. 1956 S.C. 731.
950 of the High Court there was no liability under section 34 and further the charge did not give proper notice nor a reasonable opportunity to those accused to meet that charge.
On these findings it was held that conviction under section 302 read with section 149 was not justified in law nor a conviction under section 34.
It was next argued that the appellants went to take possession in the absence of the complainants who were in possession and therefore the common object was not to take forcible possession but to quietly take possession of land which the appellants believed was theirs by right.
In the first place there were proceedings in the Revenue Department going on about the land and the complainants were opposing the claim of the appellants and then when people go armed with lethal weapons to take possession of land which is in possession of others, they must have the knowledge that there would be opposition and the extent to which they were prepared to go to accomplish their common object would depend on their conduct as a whole.
The finding of the High Court as we have pointed out was that the appellants had gone with the common object of getting forcible possession of the land.
They divided themselves into three parties, Maiku appellant was in the field where jowar was sown and he was ploughing it, Mizaji, Subedar and Machal were in the sugar field and cutting the crop.
Tej Singh was keeping watch.
When the party of the complainants on being told of what the appellants were doing came, they protested to Tej Singh.
Thereupon, all the members of Tej Singh 's party gathered at the place where Tej Singh was and asked the complainants " to go away otherwise they would be finished ", but they refused to go.
Thereupon Tej Singh asked Mizaji to fire at them and Mizaji fired the pistol which he was carrying in the fold of his dhoti as a result of which Rameshwar was injured, fell down and died I hour later.
It was argued on behalf of the appellants that in these circumstances it cannot be said that the offence was committed in prosecution of the common object of the assembly which was clear from the fact 951 that the party had divided itself into three parts and only Mizaji used his pistol and the other appellants did not use any weapon and just went away.
Both the Courts below have found that the pistol was fired by Mizaji and thus he was responsible for causing the death of Rameshwar which would be murder and also there is no doubt that Tej Singh would be guilty of abetment of that offence.
But the question is whether section 149 is applicable in this case and would cover the case of all the appellants ? This has to be concluded from the weapons carried and the conduct of the appellants.
Two of them were armed one with a spear and the other with a pistol.
The rest were armed with lathis.
The evidence is that when the complainants ' party objected to what the appellants did, they all collected together and used threats towards the complainants ' party telling them to go away otherwise they would be finished and this evidence was accepted by the High Court.
From this conduct it appears that members of the unlawful assembly were prepared to take forcible possession at any cost and the murder must be held to be immediately connected with the common object and therefore the case falls under section 149, Indian Penal Code and they are all guilty of murder.
This evidence of Hansram and Matadin which relates to a point of time immediately before the firing of the pistol shows that the members of the assembly at least knew that the offence of murder was likely to be committed to accomplish the common object of forcible possession.
It was then contended that Mizaji did not want to fire the pistol and was hesitating to do so till be was asked by his father to fire and therefore penalty of death should not have been imposed on him.
Mizaji carried the pistol from his house and was a member of the party which wanted to take forcible possession of the land which was in possession of the other party and about which proceedings were going on before the Revenue Officer.
He fully shared the common object of the unlawful assembly and must be taken to have carried the pistol in order to use it in the prosecution of the common object of the assembly and he did use 952 it.
Merely because a son uses a pistol and causes the death of another at the instance of his father is no mitigating circumstance which the courts would take into consideration.
In our opinion the courts below have rightly imposed the sentence of death on Mizaji.
Other appellants being equally guilty under section 149, Indian Penal Code, have been rightly sentenced to imprisonment for life.
The appeals Must therefore be dismissed.
Appeals dismissed. [/INST] Early one morning the five appellants, Tej Singh armed with a spear, his son Mizaji armed with a pistol which he carried in the folds of his dhoti, his nephew Subedar, his cousin Machal and his servant Maiku armed with lathis went to take forcible possession of a field which was in the cultivatory possession of Rameshwar and others.
While Tej Singh stood guard, Maiku started ploughing and overturning the jowar that had been sown in one portion of the field and the others started cutting the sugarcane which stood in another portion.
When Rameshwar and others arrived they protested to Tej Singh, whereupon all the accused gathered near Tej Singh and asked the complainants to go away otherwise they would be finished.
On their refusal to go, Tej Singh asked Mizaji to fire at them and Mizaji shot Rameshwar dead.
The Courts below found that the common object of the unlawful assembly was to take forcible possession of the field and to meet every eventuality even to the extent of causing death if interfered with.
It accordingly convicted the appellants under section 302 read with section 149, Indian Penal Code, and sentenced Mizaji to death and the others to imprisonment for life.
The appellants contended that the other appellants could not have the knowledge that Mizaji carried a pistol in the folds 941 of his dhoti, that the murder was not committed in prosecution of the common object to take forcible possession nor did the other appellants know that murder was likely to be committed in furtherance of the common object.
Held, that the appellants had been rightly convicted and sentenced under section 302 read with section 149 Indian Penal Code.
The extent to which the members of the unlawful assembly were prepared to go in prosecution of the common object, is indicated by the weapons carried by them and their conduct.
The circumstances show that the appellants must have known that Mizaji was carrying a pistol.
The appellants were prepared to take forcible possession at any cost and the murder was immediately connected with the common object.
Under the first part Of section I49 the offence committed in prosecution of the common object must be one which was committed with a view to accomplish the common object and must be connected immediately with the common object of the unlawful assembly of which the accused were members.
Even if the offence committed was not in direct prosecution of the common object of the assembly, it would yet fall under section I49 if it could be shown that the offence was such as the members knew was likely to be committed.
The expression 'know ' does not mean a mere possibility, such as might or might not happen.
Queen vs Sabid Ali, Cr., Chikkarange Gowde vs State of Mysore, A.I.R. (1956) S.C. 731, referred to.
The fact that the appellants went to take possession in the absence of the complainants did not show that the common object was not to take forcible possession as proceedings were going on between the parties in the Revenue Court for possession over the field and the appellants had gone armed with lethal weapons prepared to overcome the opposition which they knew they would meet.
Mizaji was rightly given the sentence of death.
He shared the common object of the unlawful assembly and carried the pistol from his house to use it in prosecution of the object and did use it.
The fact that he used the pistol at the instance of his father was not a mitigating circumstance. </s> |
<s>[INST] Summarize the following judgement: ivil Appeal Nos.
4094 & 4095 of 1991.
418 From the Judgment and Order dated 6.3.1991 of the Rajas than High Court in D.B. Civil Special Appeal (Writ) Nos.
48 & 50 of 1990.
P.P. Rao, M.K. Ramamurthi, S.K. Singh, Sudhanshu Atreya, Sushil Kumar Jain, Ms. Bina Gupta, Manoj Swarup, Miss. Lalita Kohli, R.F. Nariman and Mrs. Binu Tamta for the appearing parties.
The Judgment of the Court was delivered by KASLIWAL, J.
Special Leaves granted.
Briefly stated the facts are that University of Rajas than invited applications for the post of Professor in the department of Botany.
The Selection Committee constituted under Sec.
5 of the Rajasthan University Teachers and Offi cers (Selection for appointment) Act of 1974 (herein after referred to as the 'Act of 1974 ') held interviews on 20th June, 1989 and selected Dr. G.S. Nathawat for the post of Professor in Botany.
The name of Dr. Urea Kant was mentioned in the reserve list by the Selection Committee.
The syndi cate of the University approved the list and appointed Dr. Nathawat on the said post.
Dr. Nathawat retired on 30th September, 1989 and Dr. Urea Kant who was already selected and kept in the reserve list was appointed as Professor in the department of Botany.
Dr. Bhikalal, Dr. Shiv Sharma, Dr. Sudhakar Mishra and Dr. T.N. Bhardwaj who were not selected filed a writ petition in the High Court initially challeng ing the appointment of Dr. Nathawat on the ground that the Selection Committee was not constituted in accordance with law and objection was also raised that once a selected person joins the post, the reserve list exhausted itself.
Dr. Bhikalal and others subsequently impleaded Dr. Uma Kant also as one of the respondents in the writ petition.
The respondents, in their reply to the writ petition, submitted that the selection committee was properly constituted.
The appointment of Dr. Uma Kant was rightly made as the life of the reserve list was initially for six months and subse quently extended to one year by a resolution of the Syndi cate dated 3.12.1983.
Learned Single Judge held that the constitution of the Selection Committee was valid but as regards the appointment of Dr. Urea Kant from the reserve list it was held that once a person selected by the Selec tion Committee had been appointed the reserve list stood exhausted and the person named in the reserve list could not be appointed against a future vacancy.
The appointment of Dr. Urea Kant was held illegal and it was directed that Dr. Uma Kant be removed from the said post of Professor of Botany.
Both Dr. Uma Kant as well as the University of Rajasthan tiled special appeal before/he Division Bench.
The Division Bench of the High Court by a common order dated March 6, 1991 upheld the order of 419 the Learned Single Judge and dismissed the appeals.
The Division Bench after considering Sections 3, 5 and 6 of the Act of 1974 held that the purpose of preparation of the reserve list seems to be that if the person selected at No. 1 does not join then the next man in the reserve list should be appointed.
But if the person selected by the Selection Committee is given appointment and he joins, then, selection made by the Committee is exhausted and the reserve list is of no avail and becomes extinct.
It was also held that once a person selected by the Selection Committee has joined, that post is filled and some vacancy is caused thereafter a fresh and de novo selection committee 'procedure has to be started because that will be a case of future vacancy aris ing after the post had been filled up on the recommendations of the Selection Committee.
Aggrieved against the order of the Division Bench of the High Court, Dr. Uma Kant as well as the University have come in appeal by grant of special leave.
In order to appreciate the controversy we would advert to certain relevant provisions of the Act of 1974.
Relevant provisions of Sections 3, 5 and 6 are as follows: .LM15 Section 3 Restrictions on appointments of teachers and officers: (1) Notwithstanding anything contained in the relevant law, as from the commencement of this Act, no teacher and no officer in any Univer sity in Rajasthan shall be appointed except on the recommendations of the Selection Committee constituted under Sec.
(2) Save as otherwise provided in sub section
(3), every appointment of a teacher or of an offi cer in any University made in contravention of sub section
(1) shall be null and void.
Section 5 Constitution of Selection Committee (1) For every selection of a teacher or of an officer in a University, there shall be con stituted a committee consisting of the follow ing: (i) Vice Chancellor of the University con cerned, who shall be the Chairman of the Committee; (ii) an eminent educationist to be nominated by the Chancellor for a period of one year; 420 (iii) an eminent educationist to be nominated by the State Government for a period of one year; (iv) One member of the Syndicate to be nomi nated by the State Government for a period of one year; and (v) such other persons as members specified in column 2 of the Schedule for the selection of the teachers and officers mentioned in column 1 thereof.
Section 6 Procedure of Selection Committee (1) The quorum required for the meeting of a selection committee constituted under Section 5 shall not be less than five, out of which at least two shall be the experts, if the selec tion to be made is for the post of a lecturer or any other post of a teacher equivalent thereto.
The quorum required for the meeting of a selection committee for the selection of non teaching posts shall be not less than one half of the number of members of the Selection Committee, out of which at least one shall be an expert.
(2) The selection committee shall make its recommendations to the Syndicate, if the Syndicate disapproves the recommendations of the selection committee, the Vice Chancellor of the University concerned shall submit such recommendations alongwith reasons for disap proval given by the syndicate to the Chancel lor for his consideration and the decision of the Chancellor thereon shall be final.
(3) Every selection committee shall be bound by the qualifications laid down in the rele vant law of the University concerned for the post of a teacher, as the case may be, of an officer.
(4) The Selection Committee while making its recommendations to the Syndicate under sub section (2) shall prepare a list of candidates selection by it in order of merit and shall further prepare a reserve list in the same order and to the extent of 50% of the vacan cies in the post of teachers or officers for which the selection committee was constituted under sub section (1) of Section 5 and shall forward the main list and the reserve list alongwith its recommendations to the Syndi cate.
421 Initially the reserve list was to remain valid upto six months from the date of approval of the Syndicate as per the resolution of the Syndicate dated 10th July, 1978 and subse quently the Syndicate by its resolution passed in its spe cial meeting on 3.12.1983 decided that the reserve list recommended by the Selection Committee for selection of employee be treated valid for one year instead of six months.
According to the University this was done in order to curtail the ad hoc appointments and also because the regular selections take a lot of time.
It may also be noted that the Syndicate in its meeting held on 10th July, 1978 had resolved as under: i. Every Selection Committee may draw a Re serve List of suitable candidates upto a number not exceeding 50% of the number of post for which vacancies exist (part vacancy be rounded or to the next whole number) and place them in order of priority.
The Reserve List of drawn be treated valid upto six months the date of approval by the Syndicate of the recommendations of the selec tion committee(s).
On the vacancies caused within the cadre during six months of the approval of the recommendations, the candidates found suitable and placed in the reserve list be appointed in the order of priority given by the Selection Committee.
As already mentioned above the period of ' six months was subsequently extended to one year by resolution dated 3.12.1983.
The University has taken a categorical stand that since 1978 not only in the University of Rajasthan but all other universities in the State of Rajasthan reserve lists are prepared and appointments are being made from the re serve list against future vacancies arising on account of resignation, retirement or promotion.
A long list of ap pointments made from reserve list in various departments of the University of Rajasthan from time to time after joining of the persons from the main list from 1978 to 1990 have been furnished by the appellants before this court by an additional affidavit.
It has also been stated that even out of the petitioners who had filed the writ petition, Dr. T.N. Bhardwaj himself was kept in the reserve list and was there after appointed on the post of reader having fallen .vacant subsequently on account of the promotion of Dr. P. Khanna as Professor.
Section 3 (1) of the Act of 1974 puts a restriction that no teacher in any university in Rajasthan shall be appointed except on the recommenda 422 tions of the Selection Committee constituted under Sec.
5 (1), and, under Sec.
3(2) any appointment made in contraven tion of sub section (1) of sec.
3 shall be null and void.
In the present case Dr. Uma Kant was recommended by the Selection Committee constituted under Section only provides for the constitution of Selection Committee.
The High Court has found that there was no violation of Section 5 in the Constitution of the Selection Committee and the said finding has not been challenged before us on behalf of the respondents.
Section 6 provides for the procedure of Selection Committee and sub section (4) of Section 6 clearly provides that the Selection Committee shall prepare a list of candidates selected by it in order of merit and shall further prepare reserve list in the same order and to the extent of 50% of the vacancies in the post of teachers or officers for which the Selection Committee was constituted.
The Syndicate in its Resolution dated 10th July, 1978 had resolved that the reserve list recommended by the Selection Committee shall be valid upto six months from the date of the approval of the Syndicate which was subsequently extend ed to one year instead of six months in a resolution passed on 3.12.1983.
In our view the High Court was wrong in taking the view that a regular vacancy of Professor having arisen on the retirement of Dr. G.S. Nathawat on 30th September, 1989 again a fresh Selection Committee should have been constituted and no appointment on such post could have been made from the reserve list prepared by the Selection Commit tee on 20th June, 1989.
Section 6(4) clearly provided for the preparation of reserve list to the extent of 50% of the vacancies in the post of teachers or officers for which the Selection Committee was constituted.
It is not in dispute that the main list and the reserve list prepared by the Selection Committee on 20th June, 1989 were approved by the Syndicate.
We agree with the contention of the university that a reserve list is always prepared to meet the contin gency of anticipated or future vacancies caused on account of resignation, retirement, promotion or otherwise.
This is done in view of the fact that it takes a long time in con stituting a fresh Selection Committee which has a cumbersome procedure and in order to avoid ad hoc appointments keeping in view the interest of the student community.
The Selection Committee in the present case was constituted for the selec tion of Professor in Botany and such Selection Committee had approved and recommended the name of the appellant Dr. Urea Kant in the reserve list finding him suitable for appoint ment on the post of Professor in Botany.
The Syndicate which is the highest executive body in the university had also approved the name of Dr. Uma Kant in the reserve list which remained valid upto one year and we cannot accept the con tention raised on behalf of the respondents that the reserve list is exhausted as soon as the person recommended in the main list joined the post.
In the present case Dr. G.S. Nathawat was selected on 423 20th June, 1989 and was going to retire on 30th September, 1989 and in these circumstances it was perfectly valid to select one more person and to keep him in the reserve list for being appointed on the regular vacancy which was shortly anticipated on account of retirement of Dr. Nathawat.
The High Court committed a clear error in restricting the scope of reserve list only against the post for which the selec tion was made and which according to the High Court could only be available to the incumbent in the reserve list if the person recommended in the main list did not join such post.
Such interpretation is not borne out from any of the provisions of Section 3(1), Section 5 or sub section
(4) of Section 6 of the Act of 1974.
The High Court took the view that the expression 'appointment ' in sub sec.
(1) of Sec.
3 shall mean appointed initially.
Then, sub sec.
(1) of Sec.
5 provides that for every selection of a teacher in universi ty, there shall be constituted a Committee consisting of persons mentioned therein.
The High Court held that the words "for every selection" are very pertinent and when read with Sec.
3(1) and 3(2), it only means that whenever there is a regular vacancy for a post, a Selection Committee has to be constituted.
When Dr. G.S. Nathawat retired on 30th September, 1989, a regular vacancy arose and therefore a Selection Committee should have been constituted afresh.
In our view the High Court was wrong in taking the aforesaid view.
5 only provides for the constitution of Selection Committee and the words "for every selection" used in sub sec.
(1) of Sec. 5 only mean that in case of every selection of a teacher or of an officer in university, a Committee would be constituted of the persons mentioned in sub clause (i) to (v) of the said Section.
So far as the present case is concerned, even the High Court has arrived to the conclusion that the Committee constituted for the selection of a professor in Botany was proper and in accord ance with the provisions of Sec. 5 of the Act of 1974.
The appellant, Dr. Uma Kant was found suitable for the post of professor in Botany and his name was recommended in the reserve list by the duly constituted Selection Committee.
6(4) of the Act of 1974 clearly provides that the Selection Committee while making its recommendations to the syndicate under sub sec.
(2) shall prepare a list of candi dates selected by it in order of merit and shall further prepare a reserve list in the same order and to the extent of 50% of the vacancies for the post of teachers or offi cers.
Thus a reading of Sec. 5 with Sec.
6(4) makes it quite clear that the Selection Committee constituted shall recom mend not only the candidates selected by it in order of merit but shall further prepare a reserve list to the extent of 50% of the vacancies and persons kept in the reserve list will be considered as having been selected for the concerned post and shall be entitled for appointment if any 424 vacancy is caused during the validity period of the reserve list.
The suitability of the persons kept in the reserve list is also adjudged by the Selection Committee which is constituted for selection of a teacher in the university.
Thus no fault can be found that the incumbent recommended in the reserve list by the Selection Committee was not selected for the concerned post of teacher.
In our view the very purpose of preparing a reserve list would be defeated if the view taken by the High Court is accepted that once a person selected by the selection committee has joined that post then selection made by the Committee is exhausted and the reserve list is of no avail and becomes extinct.
There was no meaning or purpose of keeping the reserve list alive for a long period of one year, as no person selected for the post can at all be expected not to join for such a long period of one year.
If we examine the matter from another angle, it would be clear that according to the university such a procedure is in vogue in all the universities of Rajasthan that a reserve list is used for the appointment on a vacant post caused during the validity period of the reserve list, and numerous appointments had been made in the last decade from the reserve list.
The university has also submitted that if the view taken by the High Court is held to be correct, it will create chaotic situation in the university as all appoint ments so far made from the reserve list will become assail able.
It is well settled that in matters relating to educa tional institutions, if two interpretations are possible, the courts would ordinarily be reluctant to accept that interpretation which would upset and reverse the long course of action and decision taken by such educational authorities and would accept the interpretation made by such educational authorities.
In the result, we allow these appeals, set aside the impugned Judgment of the High Court and hold the selection and appointment of the appellant, Dr. Urea Kant as valid on the post of Professor in Botany in the University of Rajas than.
T.N.A Appeals allowed. [/INST] Section 3(1) of the Rajasthan University Teachers and Officers (Selection for Appointment) Act, 1974 provides that no teacher in any University in Rajasthan shall be appointed except on the recommendations of the Selection Committee constituted under Section 5, and, under Section 3(2) any appointment made in contravention of Section 3(1) is null and void.
Section 6(4) of the Act provides that the Selec tion Committee, while making its recommendations to the Syndicate, shall prepare a list of candidates selected by it in order of merit and shall further prepare a Reserve List in the same order and to the extent of 50% of the vacancies for the post of teachers or officers.
The University of Rajasthan invited applications for the post of Professor in the Department of Botany.
The Selec tion Committee recommended the name of a candidate in its selection list which was approved by the University Syndi cate and the recommended candidate was appointed as Profes sor.
The appellant 's name was included in the Reserve List which was to remain valid for one year as per the Syndi cate 's 416 resolution.
Subsequent to the retirement of the initially appointed Professor, the appellant, who was on the reserve list, was appointed as Professor.
The non selected candi dates challenged the appointment of initially appointed Professor as well as of the appellant and a Single Judge of the High Court held the Selection Committee 's constitution valid but declared the appellant 's appointment illegal on the ground that once a person selected by the Selection Committee is appointed, the reserve list gets exhausted and the person named in the reserve list cannot be appointed against a future vacancy.
On appeal, the Division Bench of the High Court upheld the order of the Single Judge by holding that once a person selected by the Selection Committee joins the reserve list becomes extinct and if some vacancy is caused thereafter.
a fresh and de nova Selection Committee procedure is to be started.
Against the order of the Division Bench of the High Court, appeals were flied in this Court.
Allowing the appeals and setting aside the order of the High Court, this Court, HELD: 1.
A reserve list is always prepared to meet the contingency of anticipated or future vacancies caused on account of resignation, retirement, promotion or otherwise.
This is done in view of the fact that it takes a long time In constituting a fresh Selection Committee which has a cumbersome procedure and in order to avoid ad hoc appoint ments keeping in view the interest of the student community.
[422 F] 2.
The High Court committed a clear error in restricting the scope of reserve list only against the post for which the selection was made and which according to it could only be available to the incumbent in the reserve list if the person recommended in the main list did not join such post.
Thus it was wrong in taking the view that a regular vacancy of Professor having arisen on the retirement of initially appointed Professor, again a fresh Selection Committee should have been constituted and no appointment on such post could have been made from the reserve list prepared by the Selection Committee.
The interpretation given by the High Court is not borne out from any of the provisions of Section 3(1), Section 5 or sub section (4) of Section 6 of the Rajasthan University Teachers and Officers (Selection for appointment) Act, 1974.
[423 B; 422 C D] 417 3.
Section 5 of the 1974 Act only provides for the constitution of Selection Committee and the words 'for every selection ' used in sub section (1) of Section 5 only mean that in case of every selection of a teacher or of an offi cer in University, a Committee would be constituted of the persons mentioned in sub section (i) of the said Section 5.
[423 E] 3.1 A reading of Section 5 with Section 6(4) makes it quite clear that the Selection Committee constituted shall recommend not only the candidates selected by it in order of merit but shall further prepare a reserve list to the extent of 50% of the vacancies and persons kept in the reserve list will be considered as having been selected for the concerned post and shall be entitled for appointment if any vacancy is caused during the validity period of the reserve list.
The suitability of the persons kept in the reserve list is also adjudged by the Selection Committee which is constituted for selection of a teacher in the University.
Thus no fault can be found that the incumbent recommended in the reserve list by the Selection Committee was not selected for the con cerned post of teacher.
[423 G H, 424 A B] 4.
In the instant case, the initially appointed Profes sor was going to retire after sometime.
Therefore, it was perfectly valid to select one more person and to keep him in the reserve list for being appointed on the regular vacancy which was shortly anticipated on account of retirement of initially appointed Professor.
The Selection Committee approved and recommended the name of the appellant in the reserve list finding him suitable for appointment on the post of Professor.
The Syndicate which is the highest execu tive body in the University had also approved the appel lant 's name in the reserve list.
Therefore, the selection and appointment of the appellant is valid.
[422 H, 423 A, 422 G, 424 F] 5.
It is well settled that in matters relating to educa tional institutions, if two interpretations are possible, the courts would ordinarily be reluctant to accept that interpretation which would upset and reverse the long course of action and decision taken by such educational authorities and would accept the interpretation made by such educational authorities.
[424 E] </s> |
<s>[INST] Summarize the following judgement: ivil Appeal Nos. 851 & 4125 of 1991.
From the Judgment and Order dated 15.12.1982 of the Punjab & Haryana High Court in R.S.A. No. 754 of 1974.
U.R. Lalit, M.R. Sharma, A.S. Sohal, G.K. Bansal, Anil Nauriya, K.L. Hathi, Ms. Anjna Sharma, N.A. Siddiqui and Mrs. Hemantika Wahi for the appearing parties.
The Judgment of the Court was delivered by K. JAGANNATHA SHETTY, J.
These are defendants ' appeal and special leave petition arising out of a suit for posses sion brought by Balwant Singh the plaintiff.
In the Spe cial Leave Petition, we condone the delay and grant leave.
The suit was dismissed by the Court of first instance and the dismissal was affirmed by the appellate court but de creed by the High Court in the second appeal.
The issue raised in the appeal is of considerable importance and it relates to the construction of Section 15 of the ( 'the ').
One Smt.
Mahan Kaur, wife of Jaimal Singh inherited from her husband certain agricultural land measuring 110 kanals 12 marlas situate in village Hamhal, Jakhe Pal in Sangrur District.
Some of the lands were under mortgage and are in possession of defendants 2 to 6.
After coming into force of the , Mahan Kaur died intestate.
On being informed that there was no heir entitled to succeed to her property, the Revenue Assistant Collector sanctioned mutation in favour of the State.
Balwant Singh claiming to be a legal heir of Mahan Kaur brought the suit out of which the present appeal arise.
The suit was for possession of the 461 property of the deceased and also for a declaration decree that he was entitled to redeem the mortgaged property from defendants 2 to 6.
The suit was resisted by the State on the ground that the intestate has left behind no heir to succeed and the mutation effected in favour of the State was valid.
Defendants 2 to 6 contended that the right to redeem the mortgage has been extinguished and they have become the owners of the property by being in possession for more than sixty years.
The trial court held that the plaintiff was not entitled to succeed to the property of the deceased since the proper ty was inherited from her husband.
The issue relating to subsistance or otherwise of the mortgage was left open to be decided later as agreed upon by counsel for both the par ties.
The suit was accordingly dismissed by the trial court.
The plaintiffs appeal against the decree was dismissed by the District Judge, Sangrur.
The second appeal preferred by the plaintiff was, however, accepted by the High Court.
The High Court decreed the suit for possession even against de fendants 2 to 6.
That part of the decree has been challenged by defendants 2 to 6 in S.L.P. (Civil) No. 13923 of 1985.
Their grievance is that the High Court ought not to have decreed the suit against them since the plaintiff 's right to redeem the mortgage was not adjudicated by the trial court and by agreement, the question was expressly left open.
The submission of the defendants 2 to 6 appears to be correct and the decree against them made by the High Court is plain ly untenable.
There is indeed no controversy on that aspect of the matter.
L It is not in dispute that Mahan Kaur inherited the suit property from her husband.
She had no issue and she died intestate.
It is also not in dispute that there is no heir from her husband side entitled to succeed to the property.
The plaintiff is grandson of the brother of Mahan Kaur.
According to him he is entitled to get the property of the deceased.
The case of the State is that the plaintiff is not her qualified heir under the and it is a case of failure of heirs resulting in the devolution of the estate on the Government.
The issue raised in the case turns on the rules of succession to a property of a female dying intestate.
The mode of succession has been prescribed under Section 15 of the .
Section 15 has to be read alongwith Section 16.
They in turn have to be read alongwith the provisions of Section 8.
The property devolving upon the State has been provided under Section 29 of the .
Section 15 is important and it may be read in full: 462 "15.
General rules of succession in the case of female Hindus (1) The property of a female Hindu dying intestate shall devolve according to the rules set out in section 16 (a) firstly, upon the sons and daughters (including the children of any pre deceased son or daughter) and the husband; (b) secondly, upon the heirs of the husband; (c) thirdly, upon the mother and father; (d) fourthly, upon the heirs of the father; and (e) lastly upon the heirs of the mother.
(2) Notwithstanding anything contained in sub section (1) (a) any property inherited by a female Hindu from her father or mother shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre deceased son or daughter), not upon the other heirs referred to in subsection (1) in the order specified therein, but upon the heirs of the father; and (b) any property inherited by a female Hindu from her husband or from her father in law shall devolve, in the absence of any son or daughter of the deceased (including the chil dren of any pre deceased son or daughter) not upon the other heirs referred to in sub sec tion (1) in the order specified therein, but upon the heirs of the husband." Sub section (1) of Section 15 groups the heirs of a female intestate into five categories and they are specified under clauses (a) to (e).
As per Sections 16 Rule 1 those in one clause shall be preferred to those in the succeeding clauses and those included in the same clause shall take simultaneously.
Sub section (2) of Section 15 begins with a non obstante clause providing that the order of succession is not that prescribed under sub section (1) of Section 15.
It carves out two exceptions to the general order of succes sion provided under sub section (1).
The first exception relates to the property inherited by a female Hindu from her father or mother.
That property shall devolve, in the ab sence of any son or daughter of the deceased (including the children of the pre deceased son or daughter), not upon the other heirs referred to in sub section (1) in the order specified 463 therein, but upon the heirs of the father.
The second excep tion is in relation to the property inherited by a female Hindu from her husband or from her father in law.
That property shall devolve, in the absence of any son or daugh ter of the deceased (including the children of the pre deceased son or daughter) not upon the other heirs referred to under sub section (1) in the order specified thereunder but upon the heirs of the husband.
The process of identifying the heirs of the intestate under sub section (2) of Section 15 has been explained in Bhajya vs Gopikabai and anr.
; There this Court observed that the rule under which the property of the intestate would devolve is regulated by Rule 3 of Section 16 of the .
Rule 3 of Section 16 provides that "the devolu tion of the property of the intestate on the heirs referred to in clauses (b), (d) and (e) of sub section (1) and in sub section (2) of Section 15 shall be in the same order and according to the same rules as would have applied if the property had been the father 's or the mother 's or the hus band 's as the case may be, and such person had died intes tate in respect thereof immediately after the intestate 's death".
This rule creates a fiction for the purpose of ascertaining the order of devolution.
It has to be assumed that the husband had died intestate immediately after the female intestate 's death.
Bearing in mind this fiction, one has to go to the Schedule under Section 8 of the to find out the heirs of the husband who are entitled to succeed to the property of the intestate.
The High Court has stated that the property inherited by Mahan Kaur from her husband became her absolute property in view of the provisions of Section 14 and the property would devolve upon the heirs specified under Section 15(1).
It has also observed that the plaintiff would be entitled to suc ceed to the estate of Mahan Kaur even under Section 15 (2) being an heir of her father under Entry (d) of sub section (1) of Section 15 of the .
In our opinion, both these reasons are basically faulty and cannot be accepted.
Counsel for the State argued that the property of the intestate has to be dealt with only under sub section (2) of Section 15, and since there is no heir in that category the property shall devolve on the Government under Section 29.
"Section 29 provides as follows: "ESCHEAT 464 "Failure of heirs If an intestate has no heir qualified to succeed to his or her property in accordance with the provisions of this , such property shall devolve on the Government: and the Government shall take the property subject to all the obligations and liabilities to which an heir would have been subject.
" The property is escheated to the Government when an intestate has left no heir qualified to succeed to his or her property.
The property shall devolve on the Government and the Government shall take the property subject to all the obligations and liabilities of the property.
It is only in the event of the deceased leaving behind no heir to succeed, the State steps in take the property.
The State does not take the property as a rival or preferential heir of the deceased but as the Lord paramount of the whole soil of the country.
In Halsburry 's Laws of England, 4th ed.
17 para 1439 it is stated as follows: "To whom land escheated Escheat in the case of death intestate before 1926 was to the mesne lord is he could be found but, as since 1290 sub infeudation has been forbidden, in the great majority of cases there was no record of the mesne tenure, and the escheat was to the Crown as the lord paramount of the whole soil of the country.
" Section 29, in our opinion, shall not operate in favour of the State if there is any other heir of the intestate.
Indeed, Section 29 itself indicates that there must be failure of heirs. 'Failure ' of heirs means the total absence of heirs to the intestate.
It is important to remember that female Hindu being the full owner of the property becomes a fresh stock of descend.
If she leaves behind any heir either under sub section (1) or under sub section (2) of Section 15, her property cannot be escheated.
Sub section (2) of Section 15, in our opinion, was intended only to change the order of succession specified under sub section (1) and not to eliminate the other classes of heirs.
This view finds support from the recommendations of the Joint Committee of two Houses of Parliament which went into the question of the Hindu Succession Bill.
The Hindu Succession Bill 1954 as originally introduced in the Rajya Sabha did not contain any clause corresponding to sub section (2) of Section 15.
It came to be incorporated on the recommendations of the Joint Committee of the two Houses of Parliament.
The reason given by the Joint Committee is found in Clause 17 of the Bill which reads as follows: 465 "While revising the order of succession among the heirs to a Hindu female, the Joint Committee have provided that properties inher ited by her from her father reverts to the family of the father in the absence of issue and similarly property inherited from her husband or father in law reverts to the heirs of the husband in the absence of issue.
In the opinion of the Joint Committee such a provision would prevent properties passing into the hands of persons to whom justice would demand they should not pass.
" The report of the Joint Committee which was accepted by Parliament indicates that sub section (2) of section 15 was intended to revise the order of succession among the heirs to a Hindu female and to prevent the properties from passing into the hands of persons to whom justice would demand that they should not pass.
That means the property should go in the first instance to the heirs of the husband or to the source from where it came.
In support of the contrary submission, attention was drawn to a passage from Hindu Law by S.V. Gupte in which it is stated "that the heirs of the husband will take where the property was inherited from the husband or from the father in law.
The object is to eliminate the father and the moth er, the heirs of the father, and the heirs of the mother altogether from succession where the property inherited was from the husband or the father in law and the deceased has left no son or daughter or any grandchild.
The effect of the clause is not only to eliminate the three classes of the heirs, being those mentioned in clauses (c), (d) and (e) to subsection (1), but to change the order of succession." (1981 Ed.
2 p. 522).
We however, find it difficult to share this view. ' It does not get support from the terms of sub section (2) of Section 15.
Sub section (2)(b) emphasises that the property of the intestate shall not devolve upon the heirs referred to in sub section (1) in the order speci fied thereunder but upon heirs of the husband.
The, object seems to be not to eliminate the other heirs under sub section (1) and not to exclude them from inheritance alto gether.
There is no justice in such a construction of Sec tion 15.
The Parliament could not have intended that result.
In this view of the matter, we dismiss the Civil Appeal No. 851 of 1991 preferred by the State but not for the reasons stated by the High Court.
We allow the appeal aris ing out of SLP (Civil) No. 13923 of 1985 466 and set aside that portion of the decree made by the High Court as against the defendants 2 to 6.
The suit filed by the plaintiff as against defendants 2 to 6 stands dismissed.
The parties may adjudicate elsewhere the subsistence or otherwise of the mortgage in question.
In the circumstances of the case, there will be no order as to costs.
G.N. CA No. 851/91 dismissed and CA No. 4125/91 allowed. [/INST] One Smt. 'M ' inherited from her husband certain agri cultural lands.
Some of the lands were under mortgage and in the possession of defendants 2 to 6.
She died intestate after the came into force.
As there was no heir entitled to succeed to her property, mutation was sanctioned in favour of the State.
The grandson of her brother claiming to be her legal heir filed a suit for possession of the property and for a declaration that he was entitled to redeem the mortgaged property from defend ants 2 to 6. 'The suit was resisted by the First Defendant, viz. the State on the ground that the intestate had left no heir to succeed and the mutation effected in favour of the State was valid.
Defendants 2 to 6 contended that the right to redeem the mortgage had extinguished, and they have become the owners of the property as they were in possession for more than sixty years.
The Trial Court dismissed the suit holding that the plaintiff was not entitled to succeed to the property of the deceased since the property was inherited from her husband.
As regards the mortgage, it was left open to be decided later as agreed to by the parties.
Plaintiff preferred an appeal and the District Judge dismissed the same.
On a second appeal preferred by him, the High Court decreed the 459 suit for possession even against defendants 2 to 6.
The State as well as the defendants 2 to 6 have preferred the present appeals by special leave.
The appellant State contended that the plaintiff Re spondent was not a qualified heir under the and hence it was a case of failure of heirs resulting in the devolution of estate on the Government.
The other appel lants (Defendants 2 to 6) contended that the High Court ought not have decreed the suit against them since the plaintiff Respondent 's right to redeem the mortgage was not adjudged by the trial court and by agreement the question was expressly left open.
Dismissing the appeal preferred by the State and allow ing the appeal of defendants 2 to 6, this Court, HELD: 1.
The property is escheated to the Government when an intestate has left no heir qualified to succeed to his or her property.
The property shall devolve on the Government and the Government shall take the property sub ject to all the obligations and liabilities of the property.
It is only in the event of the deceased leaving behind no heir to succeed, the State steps in to take the property.
The State does not take the property as a rival or preferen tial heir of the deceased but as the Lord paramount of the whole soil of the country.
[464 B,C] 2.
Section 29 of the shall not operate in favour of the State if there is any other heir of the intestate.
Indeed, Section 29 itself indicates that there must be failure of heirs. 'Failure ' of heirs means the total absence of heirs to the intestate.
A female Hindu being the full owner of the property becomes a fresh stock of descend.
If she leaves behind any heir either under sub section (1) or under sub section (2) of Section 15, her property cannot be escheated.
[464 E,F] Halsbury 's Laws of England, 4th Edn.
17 para 1439; referred to.
Sub Section (2) of Section 15, intended only to change the order of succession specified under sub section (1) and not to eliminate the other classes of heirs.
Section 15(2) came to be incorporated on the recommendations of the Joint Committee of the two Houses of Parliament.
The report of the Joint Committee which was accepted by Parliament indicates that this sub section was intended to revise the order of succession among the heirs to a Hindu female and to prevent the properties from passing into the hands to per sons to whom justice would 460 demand that they should not pass.
That means the property should go in the first instance to the heirs of the husband or to the source from where it came.
[464 F, H, 465 C] 3.2.
Sub section (2)(b) of Section 15 emphasises that the property of the intestate shall not devolve upon the heirs referred to in sub section (1) in the order specified thereunder but upon heirs of the husband.
The object is not to eliminate the other heirs under sub sectiOn (1) and not to exclude them from inheritance altogether.
There is no justice in such a construction of Section 15.
The Parliament could not have intended that result.
[465 F G.] Bhajya vs Gopikabai and Anr, ; , referred to. </s> |
<s>[INST] Summarize the following judgement: Civil Appeal No. 2891 (NT) of 1977.
Appeal by Certificate from the Judgment and Order dated 15.10.1975 of the Gujarat High Court O.J. Appeal No. 2 of 1975.
B. Datta, P.H. Parekh and J.P. Pathak for the Appellant.
Dushyant Dave, Anip Sachthey and Ashish Verma for the Respondent.
The Judgment of the Court was delivered by PUNCHHI, J.
What is the ambit of the State 's claim to priority in relation to revenues, taxes, cesses and rates, due from a company in liquidation, is the question which stands posed in this appeal by certificate, granted by the High Court of Gujarat, in O.J. Appeal No. 2 of 1975.
The question arises on the frame of section 530(1)(a) of the , as it stood at the relevant time, which is set out below: "In winding up, there shall be paid in priority to all other debts all revenues, taxes, cesses and rates due from the company to the Central or a State Government to a local authority at the relevant date as defined in clause (c) of 530 sub section (8), and having become due and payable within the twelve months next before that date.
And sub section (8)(c) of section 530 says: "The expression 'the relevant date ' means (i) in the case of a company ordered to be wound up compulsorily, the date of appointment (or first appointment) of a provisional liquidator, or if no such appointment was made the date of the winding up order, unless in either case the company had commenced to be wound up voluntarily before that date; and (ii) in any case where sub clause (i) does not apply, the date of the passing of the resolution for the voluntary winding up of the company.
" The appellant company was ordered to be wound up by an order of Court made on June 26, 1967.
The liquidator after obtaining directions of the Court invited the creditors of the company to prove their debts or claims and simultaneously to establish any title they may have to priority under section 530.
Pursuant to this invitation the Sales Tax Officer, Petlad submitted a comprehensive claim in the sum of Rs. 70945.60 as the amount of sales tax plus penalty payable by the company and claimed priority for the whole amount.
The liquidator rejected the claim for priority in its entirety, but admitted claim to the tune of Rs.42143.63 payable as debt paripassu with other unsecured creditors of the company.
The Sales Tax Officer took the matter in appeal before the Company Judge under Rule 164 of the Companies (Court) Rules, 1959 which was heard by D. A. Desai, J. (as he was in the Gujarat High Court).
It was urged on behalf of the Sales Tax Officer that out of the admitted claim in the amount of Rs.42,143.83, the liquidator was in error in not granting priority in payment of debt of Rs.22,280.96 consisting of Rs.11,064.46 being sales tax payable by the company for the period from April 1, 1957 to December 31, 1965, under the Bombay Sales Tax Act and balance of Rs. 11,216.50 being the amount of sales tax payable under the Central Sales Tax Act for the period from July 1, 1957 to December 31, 1965, because the assessment order was made in respect of the aforementioned claim within a period of 12 months next before the relevant date and the notice of demand which made the tax payable was also issued within a period of 12 months next 531 before the relevant date.
It was urged that apart from any other consideration the petitioner is entitled to a priority in payment for the amount of Rs.22,280.96 as the claim was of sales tax which was due on the relevant date and which became due and payable within 12 months next before the relevant date.
It was conceded that balance of the admitted claim in the amount of Rs. 19,862.87 being the amount of sales tax due and payable under the Bombay Sales Tax Act for the period from January 1, 1966 to June 26, 1967, would not be entitled to priority in payment.
It was also conceded that the claim for an amount of Rs. 196.42 had been rightly rejected.
It would appeal that from the claim admitted as payable by the liquidator to the extent of Rs. 42,143.83 priority in payment was claimed for the amount of Rs.22,280.96 on the submission that the claim represented the claim for tax payable to the State Government as it was due on the relevant date and had become due and payable within 12 months next before the relevant date, and therefore, it was entitled to a priority in payment as envisaged by section 530(1)(a) of the .
The learned Judge on interpretation of section 530(1)(a) took the view that the word 'due ' implies or conveys meanings in juxtaposition in which it is used in the two parts of the same clause.
The word 'due ' in the first part of the clause must mean 'outstanding at the relevant date '.
When it occurs in the expression 'having become due ' in the later part of the clause, it means that the event which brought the debt into existence occurred and also it became payable, meaning thereby that its payment could have been enforced against the company within the twelve months before the relevant date, that is, the date of the order of winding up.
Three specific conditions are prescribed in the clause and all the three must co exist and be satisfied in respect of any particular debt for which priority is claimed.
The three conditions are: (i) Debt of the kind mentioned in the clause must be outstanding on the relevant date; (ii) The debt must have become due, in the sense that it must have been incurred at any time within the twelve months next before the relevant date; and (iii) The debt must have payable at any time within the twelve months next before the relevant date.
To conclude, the learned Judge observed that the tax becomes due 532 when taxing event occurrs and not when assessment orders passed and that the claim for priority was rightly negatived by the liquidator because even though amount for which priority was claimed was the amount of tax arrears that became payable at the time of making assessment orders after giving credit for what was paid alongwith return, yet it was due for a period much prior to 12 months next before the relevant date and even if it had become payable on the assessment order being made and demand notice being issued, as both the conditions did not co exist and were not satisfied, claim for priority had been rightly nagatived by the official liquidator requiring no interference in his order.
The appeal on that score was rejected but was allowed to the extent of a small amount of Rs.1225.36 being the amount of penalty under the Bombay Sales Tax Act and the Central Sales Tax Act upto the relevant date and the liquidator was directed to admit the said claim over and above the claim admitted by him.
The judgment of the D.R. Desai, J. is reported as Sales Tax Officer, Petlad vs Rajratha Naranbhai Mills Co. Ltd. & Another, [1974] Vol.
An intra Court Appeal was preferred by the Sales Tax Officer, Petlad in the High Court.
In the meantime in another case of Baroda Board & Paper Mills Ltd., a company in liquidation, the Income Tax Officer filed Company Application No. 2 of 1973 before the Company Judge claiming priority in respect of certain dues.
The Company Judge, B. K. Mehta, J. was engaged to determine the same question.
His attention was invited to the decision of D.A. Desai, J. in the instant case.
D.K. Mehta, J. was unable to agree with the conclusion reached by D.A. Desai, J. and hence the matter was referred to a Division Bench to have the entire question decided along with O.J. Appeal No. 2 of 1975.
The division bench of the High Court differed from the view of D.A. Desai, J. by holding that the only meaning that could be assigned to the word 'due ' occuring in the section is 'it must be presently due ' and the words 'due and payable ' mean the same thing, namely, that it must be presently payable.
On this understanding it was held that all revenues, taxes, cesses and rates due from the company to the Central or State Government or to a local authority must be presently payable, that is, that the liability could be enforced as at the relevant date and, secondly, it must have so become presently payable within twelve months immediately preceding the relevant date.
Further regarding sales tax it was held that it becomes due and payable when the tax has been assessed and a notice of demand for payment of that tax is served 533 upon the assessee or the dealer concerned and it is in this sense that the word has to be interpreted.
Taking that view the appeal of the Sales Tax Officer was allowed inasmuch as the sales tax due under the Bombay Sales Tax Act and the Central Sales Tax Act in respect of which the assessment orders were passed within the period of twelve months immediately preceding June 26, 1967 were held to have priority.
The balance amount as dues was directed to rank as ordinary debts without any priority, since the relevant orders were passed after the date of the winding up order.
The claim of the Sales Tax Officer to the recovery of penalty in liquidation proceedings was negatived because the demand was held to be without application of mind as to whether there was reasonable cause for the official liquidator for not paying the amount.
O. J. Appeal No. 2 of 1975 was allowed to this extent.
The Judgment of the High Court is reported as Baroda Board & Paper Mills Ltd. (in Liquidation) vs Income Tax Officer etc., [1976] Vol.
Clash of interpretation of section 530(1)(a) is the cause in this appeal.
We have gone through both the judgments afore referred to very carefully and minutely and have heard learned counsel on the conflicting decisions.
There are wide ranging discussions in the interpretative process relating to the word 'due ' occuring in the earlier part of the provision and the words 'due and payable ' in the later part, and whether they are different expression meant to convey differently or they mean the same thing.
With due respect to the High Court, we feel that relevant and important considerations and material though available, which could go to interpret the section purposively was over looked, and at this juncture we wish to put it to use.
Section 530 of the is the same as section 230 of the Indian Companies Act, 1913.
The old section 230(1)(a) of the Indian Companies Act, 1913 was analogous to Section 261 of the English Companies Act laying down that there shall be priority on certain debts named therein.
In Airedale Garage Co. In re: Anglo South American Bank vs The Company, [1932] Vol.
in the Court of Appeal, Lord Hanworth, Master of Rolls explained the meaning of the provision at page 574 in the following words: "Now section 264 says that in the winding up of a company 'there shall be paid in priority to all other debts ' certain debts, namely, 'parochail or other local rates . .assessed taxes . property or income tax . .wages or salary of any clerk or servant 'during four months next before the 534 relevant date . not exceeding fifty pounds, 'and others, and it is these debts which are to be marshalled and paid in accordance with the priority given to them by section 264.
With regard to local rates it is provided that priority shall be given to 'All parochial or other local rates due from the company at the relevant date ' The relevant date being the date of the appointment of the receiver, in this case, January 28, 1931 'and having become due and payable within twelve months next before that date '.
Those words are put in to restrict the amount for which priority is given.
It is not priority in respect of all the debts for local rates which maybe outstanding at that time; the priority is in respect only of such rates as became due and payable within twelve months before, in this case, January 28, 1931.
" And further at pages 577 78 as follows: "The rate was made on April 1, 1930; at that time it became due and payable.
The alteration that has been made subsequently in September of the year 1931 is to fit into the section to which I have referred, and by that section it is to be deemed to have had effect as from the commencement of the period in respect of which the rate was made.
In those circumstances it seems quite plain that the sum in contest in the present case must be appropriate to that period and that period alone, and, although ascertained at a later date, it nonetheless belongs to and is founded upon the liability to rates during that period and no other.
I find myself, therefore, unable to give a limited meaning to the words, as Eve, J., has done.
I think the words referred to in section 264 of the Companies Act, 'due and payable ', meant to refer to a liability in respect of which there had to be a solution Solvendum in futuro of that particular debt, and that particular debt is now to be deemed to have accrued within the period of the twelve months next before the relevant date." In A. Pamaiya 's the Companies Act, Eleventh Edition, 1988, it has been noticed at page 1320 that Section 530 of the has been largely recast and amended in the light of the following recommendations (exerpted) of the Company Law Committee in paragraph 218 of their Report: 535 "Section 230 of the Act of 1913 deals with the important subject of preferential payment.
The principle underlying this section is that the debts and liabilities enumerated in it should be treated as preferential debts as compared with ordinary unsecured debts.
The right of secured creditors other than debenture holders secured by a floating charge are not affected in any way.
They remain outside the scope of the winding up proceedings and their security remains unaffected by the provisions of this section.
We have set out in the Annexure to our Report the details of our recommendations, which broadly follow the provisions of the English .
Briefly, the more important of these recommendations are as follows: (i) xxxxx (ii) xxxxx (iii) xxxxx In this connection we should like to refer to a memorandum that we received from the Central Board of Revenue, on the question of a priority to be given to crown demands generally and, in particular, to arrears of income tax, super tax and corporation tax.
It was suggested that there should be no time limit for the preferential payment of these crown debts and that section 230 of the Indian should be amended accordingly.
The practical difficulty of giving effect to the suggestion is that it would place a great majority of the unsecured creditors of the company at the mercy of the income tax authorities, inasmuch as, whatever may be the nature of the security on which they may have lent money to a company at the time of the loan, the unforeseeable demands of the income tax authorities on the company without any time limit would rank over the claims of such creditors.
In these circumstances, it may be extremely difficult for the company to raise capital for its working.
In this connection, we would draw attention to the provisions of clause (a) of sub section (1) of section 319 of the English Companies Act, 1948, under which arrears of land tax, income tax, profits tax, excess profits tax or other assessed taxes rank in priority over other debts of a company only if they have been assessed on the company up to a particular date, namely, 5th 536 April or prior to the appointment of the liquidator or resolution for the winding up of the company and do not exceed in amount the whole of one year 's assessment.
It will be noticed that by comparison the provision of clause (a) of sub section (1) of section 230 of the Indian Companies Act, is much wider and gives much more latitude to the income tax authorities for under these provisions, arrears to taxes would rank in priority if they have become due and payable within twelve months next before the date on which they are payable irrespective of whether such taxes have been assessed on the company or not.
We are aware of the large arrears of income and other taxes which are due by many companies, which are in liqudation, but we would venture to think that the remedy for this unsatisfactory situation is not the conferment of preferential rights without limit to the income tax authorities under section 230 of the Indian Companies Act, but the energetic completion of assessment proceedings and vigorous measures for the collection of the assessed taxes.
" In Pennington 's Company Law, Fourth Edition, Chapter 26 titled 'Rules Common to All Liquidations; occuring under the head "Preferential Claim and Payments" at page 768 it is observed as follows: "The Inland Revenue may select the unpaid corporation or income tax for any one year as its preferential claim, and is not restricted to claiming the tax for the most recent year which ended on or before April 5 immediately preceding the relevant date.
Moreover, when there are two or more kinds of unpaid taxes, the Crown may select different years for different taxes, but since advance corporation tax is paid as an advance instalment of the company 's liability for corporation tax for the accounting period in which the advance corporation tax falls due, it would seem that the Inland Revenue may claim preference for both advance corporation tax and mainstream corporation tax only in respect of the same year.
Both benches of the High Court, with due respect, gave to the provision a very wide and varied interpretation and that too on literality and grammaticals seemingly overlooking the legal philosophy which permeats the provision, the same being that the debts due and 537 payable, so as to claim priority, must be appropriated to the period within 12 months next before the relevant date and their liability for payment must be funded during that period and no other.
To put it in simpler words, the State has a priority over debts, liability and obligation of which was born within the time frame of those twelve months and as such due and becoming due and payable within those twelve months next before the relevant date, ascertainable if necessary later, if not already ascertained.
We are in respectful agreement with the interpretation put by the Court of Appeal to section 264 of the English Companies Act in Airedale Garage 's case (supra), analogous as it is to the provision in hand, warranting the same interpretation; more so when any other interpretation would lead to the results feared by the Company Law Committee extracted above.
In such view of the matter, we need not elaborately comment, discuss or demolish, sentence by sentence, the reasoning given buy the single bench as also the division bench of the High Court towards interpreting the provision.
The words 'having become due and payable within 12 months next before the relevant date ' need be understood to mean putting a restriction or cordoning off the amount for which priority is claimable and not in respect of each and every debt on account of taxes, rates and cesses etc.
which may be outstanding at that time and payable.
And further that such priority is in respect only of debts those of which become due and payable because the liability to those is rooted, founded and belonging to that period of twelve months prior to the relevant date and none other; both the conditions existing.
For the view above taken, we allow the appeal of the Company in liquidation and direct that liquidator to re examine the claim for priority in accordance with the interpretation of the provision put by us, that is to say, he must first ascertain as to whether the liability to sales tax belongs to and is founded within the period of 12 months next before 26 June, 1967, and as such due and payable but preserving, however, the order of the division bench in relation to the view it has taken about penalties.
In the facts and circumstances of the case, we order that there should be no order as to costs.
R.P. Appeal allowed. [/INST] The appellant company was ordered to be wound up by Court 's order dated 26.6.1967.
The liquidator invited creditors to prove their debts or claims and to establish title, if any to determine priority under s.530(1)(a) of the .
The Sales Tax Officer submitted a comprehensive claim of sales tax plus penalty and claimed priority.
The liquidator rejected the claim for priority in its entirety but admitted a part of it payable as debt with other unsecured creditors.
The Revenue appealed to the High Court contending that the liquidator erred in law in not granting priority to the claim to sales tax payable by the company for the period from 1.4.1957 to 31.12.1965 under the Bombay Sales Tax Act, and for period from 1.7.1957 to 31.12.1965 under the Central Sales Tax Act inasmuch as notice of demand was issued and assessment order was made in respect thereof within a period of 12 months before the relevant date.
The Company Judge, interpreting section 530(1)(a) of the Act, held that tax becomes due when taxing event occurs and not when assessment orders passed; that even though the amount for which priority was claimed was the amount of tax arrears that became payable at the time of making assessment orders after giving credit for what was paid alongwith return, yet it was due for a period much prior to 12 months next before the relevant date, and rejected the appeal on that score, but allowed the claim to the extent of a small amount of penalty under the two Sales Tax Acts upto the relevant date.
The Revenue filed an intra court appeal, which along with another referred matter was heard by a Division Bench.
The Division Bench held that sales tax becomes due and payable when the tax has 528 been assessed and notice of demand for its payment is served.
It allowed the claim of priority to the sales tax due under the two Acts, assessment orders in respect of which were passed within the period of 12 months immediately preceding 26.6.1967.
The balance amount was directed to rank as ordinary debts since the relevant orders were passed after the date of winding up order.
The claim of recovery of penalty was negatived, because the demand was held to be without application of mind as to whether there was reasonable cause for the official liquidator for not paying the amount.
Aggrieved, the company filed the present appeal by certificate.
Allowing the appeal, this Court, HELD: 1. Section 530(1)(a) of the provides that State has a priority over debts, liability and obligation of which was born within the time frame of 12 months next before the relevant date and as such due and becoming due and payable within those twelve months, ascertainable, if necessary, later if not already ascertained.
Thus the legal philosophy which permeats the provision is that the debts due and payable, so as to claim priority must be appropriated to the period within 12 months next before the relevant date and their liability for payment must be founded during that period and no other.[536G H, 537 A B] 2.1 The words 'having become due and payable within the twelve months next before the relevant date ' occurring in clause (a) of section 530(1) of the need be understood to mean putting a restriction or cordoning off the amount for which priority is claimable and not in respect of each and every debt on account of taxes, rates and cesses, etc.
which may be outstanding at that time and payable.
And that such priority is in respect only of debts those of which became due and payable because the liability to those is rooted, founded and belonging to that period of twelve months prior to the relevant date and none other; both the conditions existing.
[537C E] Airedale Garage Co. In re:Anglo South American vs The Company, [1832] Vol. , referred to.
2.2 Both Benches of the High Court gave to the provision a very wide and varied interpretation and that too on literality and gramaticals.
The Single Judge was not right in taking the view that the word 'due ' in the first part of clause (a) of s.530(1) of the was to mean 'outstanding and payable at the relevant date ' and in the expression ' having become due ' in the later part of the clause meant that the 529 event which brought the debt into existence occurred and also it became payable so as to be enforced against the company within twelve months before the date of order of winding up.
The Division Bench erred in holding that the only meaning that could be assigned to the word 'due ' occurring in the section was 'it must be presently due ' and the words 'due and payable ' meant that it must be presently payable.
[536G, 531D E & 532F G] Sales Tax Officer, Petlad vs Rajratha Naranbhai Mills Co. Ltd. and Another, [1974] Vol.
and Baroda Board & Paper Mills Ltd. (in liquidation) vs Income Tax Officer etc, [1976] Vol.
46 Company cases 25, overruled.
The liquidator was directed to re examine the claim and to ascertain as to whether the liability to sales tax belonged to and was founded within the period of 12 months next before 26 June, 1967, and as such due and payable, but preserving the order of the Division Bench in relation to its view on penalties.
[537E G] </s> |
<s>[INST] Summarize the following judgement: grounds of detention, the manner in which the gold biscuits were concealed was mentioned and that itself suggested that the detenus must have been indulging in smuggling 439 activities.
[p. 443 B C] & ORIGINAL JURISDICTION: Writ Petition (Crl.) Nos. 105 & 106 of 1991.
(Under Article 32 of the Constitution of India.) Harjinder Singh and R.N. Joshi for the Petitioners.
A.K. Ganguli, Ms. Kitty Kumar Manglam, Ms. A. Subhashini and T.T. Kunhikannan for the Respondents.
The Judgment of the Court was delivered by K. JAYACHANDRA REDDY, J.
Common questions arise for consideration in these two writ petitions filed under Arti cle 32 of the Constitution of India seeking writ of habeas corpus for quashing the orders of detention and for immedi ate release of the detenus.
First, we shall deal with Writ Petition (Crl.) No. 105 of 1991.
Writ Petition (Crl.) No. 105 of 1991 The petitioner detenu is a foreign national being a resident of Republic of Maldives.
On 25.10.90 he landed at Trivandrum Airport from Male and was moving towards the exit gate of the Customs Import Baggage Hail.
He was intercepted by the Air Customs Officers and on examination he was found to be carrying 50 gold biscuits of foreign origin which were seized from either side of the handle inside the lock system of he red colour suit case belonging to the petitioner.
His passport and other documents were also seized.
The petition er 's statement was recorded under Section 108 of the wherein he is alleged to have confessed the guilt.
After the arrest he was produced in the Court of Chief Judicial Magistrate, Trivandrum and was remanded to judicial custody for a period of 14 days.
Thereafter he was shifted to the Court of the Additional Chief Judicial Magistrate (Economic Offences), Ernakulam.
While he was in jail he made an application for granting of bail under Section 437 Cr.
P.C. on 29.10.90 but it was rejected on 2.11.90 by the Additional Chief Judicial Magistrate (Economic Offences), Ernakulam.
While the petitioner.
was confined in jail an order of detention was passed under Section 3(1) of the Conservation of Foreign Exchange & Prevention of Smug gling Activities Act, 1974 ( 'COFEPOSA Act ') for short) by the Secretary to the Government, Government of Kerala, Home (SS A) Department on 7.11.90 and the same was served on the petitioner on 8.11.90.
The grounds of 440 detention alongwith the list of documents annexed thereto were served in time.
The petitioner made a representation and it was rejected.
It is submitted that since his bail application has been rejected and since he was in jail and his passport was also seized, there was no compelling necessity for such a deten tion.
It is also contended that no antecedents are there showing his involvement in such incidents and this was the solitary incident, therefore the provisions of the Act are not attracted.
The next main and important submission is that the copies of the bail application filed by him and the order refusing bail, which are relevant documents, were suppressed and not placed before the detaining authority nor they were supplied to the detenu and therefore there is non application of mind and the petitioner also is denied a reasonable opportunity under Article 22(5) of the Constitu tion of India.
We see no force in the first submission namely that there was no compelling necessity for passing the detention Order.
It is true that when the detention order was passed on 7.11.1990 the detenu was in jail and his bail application also was rejected and his passport also was seized.
But the detaining authority has mentioned in the grounds that "I am aware that you are under judicial custody and possibility of your release on bail in the near future cannot be ruled out.
Also nothing prevents you from moving bail application in the jurisdictional court and getting released on bail. ' Therefore it cannot be said that the detaining authority did not apply his mind to this aspect.
It is entirely within his subjective satisfaction whether there are such compelling circumstances or not.
He has noted that though the detenu was in jail there is likelihood of his being released and therefore it is clear that he has applied his mind to this aspect also.
The learned counsel appearing for the petition er relied on a judgment of this Court in Dharmendra Sugan chand Chelawat and Anr.
vs Union of India and Others [ ; wherein it is observed that an order of detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that the detaining authority was aware of the fact that the detenu was already in detention and there were compelling reasons justifying such detention and that there should be cogent material on the basis of which the detain ing authority may be satisfied that there are compelling reasons such as that the.
detenu is likely to be released from custody in the near future and the nature of the an tecedents and activities of the detenu which indicate that he is likely to indulge in such activities if released and therefore it is necessary to detain him in order to prevent him from engaging in such activities.
But we may observe that what 441 would be the compelling reasons in the context would depend on the facts of each case.
In this case the allegation is that 50 gold biscuits of foreign origin were found in either side of the handle inside the lock system of the suitcase.
This itself manifests the expertise of the carrier in smug gling.
The detaining authority was aware that the detenu was in custody but he was satisfied that there is every likeli hood of his being released on bail and he is likely to indulge in such smuggling activities.
It is mentioned in the counter affidavit that the remand period of the detenu was to expire on 10.11.90 and that was also a ground which impelled the detaining authority to think that he was likely to be released on bail.
This was the material before the detaining authority on the basis of which he was satisfied that there were compelling reasons to pass the detention order.
Having carefully considered the submission of the learned counsel we are unable to say that there were no compelling reasons.
Learned counsel also relied on the judgment of this Court in Abdul Razak Abdul Wahab Sheikh vs
S.N. Sinha, Commissioner of Police, Ahmedabad and Another ; That was a case of public order and after referring to some of the earlier decisions including the decision of the Constitution Bench in Rameshwar Shaw vs District Magistrate, Burdwan, ; , this Court considered the contention i.e. since the detenu was in custody at the time of service of the order of detention there was no material to disclose necessitating the detention.
It was held thus: "On a consideration of the aforesaid deci sions the principle that emerges is that there must be awareness in the mind of the detain ing authority that the detenu is in custody at the time of service of the order of detention on him and cogent relevant materials and fresh facts have been disclosed which necessi tate the making of an order of detention.
In this case, the detenu was in jail custody in connection with a criminal case and the order of detention was served on him in jail.
It is also evident that the application for bail filed by the detenu was rejected by the Designated Court on May 13, 1988.
It is also not disputed that no application for bail was made for release of the detenu before the order of detention was served on him on May 23, 1988.
It appears that in the grounds of detention there is a statement that at present you are in jail yet "there are full possibilities that you may be released on bail in this offence also.
" This state ment clearly shows that the detaining authori ty was completely unaware of the fact that no application for bail was made on behalf of the detenu for his release before the Desig nated Court and as such the possibility of his coming out 442 on bail was non existent.
This fact of non awareness of the detaining authority, in our opinion, clearly establishes that the subjec tive satisfaction was not arrived at by the detaining authority on consideration of rele vant materials.
There is also nothing to show from the grounds of detention nor any fresh facts have been disclosed after the detention order dated January 25, 1988 was set aside by the Advisory Board on March 13, 1988, on the basis of which the detaining authority could come to his subjective satisfaction that the detenu, ii released on bail will indulge in acts prejudicial to the maintenance of public order and as such an order of detention is imperative." Having so observed the Division Bench referred to various criminal cases pending against the detenu at the relevant time and noted that some of the cases having noth ing to do with the maintenance of public order and then held that: "These statements do not disclose any activity after March 14, 1988 or any activity of the time when the detenu was a free person.
Con sidering all these facts and circumstances we are constrained to hold that there has been no subjective satisfaction by the detaining authority on a consideration of the relevant materials on the basis of which the impugned order of detention has been clamped on the detenu.
It also appears that the detenu was in detention as well as in jail custody for about three years except released on parole for short periods." The Division Bench finally concluded thus: "It is highlighted in this connection that in the affidavit inreply filed by respondent 1, the detaining authority, he merely denied the specific averments made in para 3(111) that no act prejudicial to the maintenance of law and order on the part of the detenu is alleged to have been committed by the detenu between March 14 to April 13, 1988 etc.
without spe cifically denying those statements.
In this background, a mere bald statement that the detenu who is in jail custody is likely to be released on bail and there are full possibili ties that he may continue the above offensive activities without reference to any particular case or acts does not show on the face of the order of detention that there has been subjec tive satisfaction by the detaining authority in making the order of detention in question." (emphasis supplied) 443 From the above passages it can be seen that this Court categorically held that a person in custody can be detained.
There must be awareness in the mind of the detaining author ity that the detenu is in custody and that there should be cogent and relevant material showing that there is a compel ling necessity to detain him.
Since that was a case of public order, the learned Judges proceeded to consider the nature of the cases that were pending and ultimately on the facts and circumstances of the case held that the absence of a reference to any one of such recent cases would show that the subjective satisfaction has not been arrived at proper ly.
This reasoning cannot be applied to the facts of this case.
In the grounds, the manner in which the gold biscuits were concealed is mentioned and that itself suggests that the detenu must have been indulging in smuggling activities.
So there was relevant material on the basis of which the detaining authority was satisfied that there was compelling necessity to pass the detention order.
The next submission is that there were no antecedents and that this being the solitary incident the detention is unwarranted.
It is again a question of satisfaction of the detaining authority on the basis of the material placed before it.
Even a solitary incident which has been detected may speak volumes about the potentialities of the detenu and merely on the ground that there were no antecedents the detention order cannot be quashed.
The authorities cannot and may not in every case salvage the antecedents but as noted above even a solitary incident may manifest the poten tialities of a detenu in the activities of smuggling.
The next and main submission is that there was suppres sion of vital documents namely bail application and the order refusing bail, which are relevant documents, and had those documents been placed before the detaining authority they might have influenced the mind of the detaining author ity one way or the other.
Alternatively it is also contended that irrespective of the fact whether they were placed before the authority or not the copies thereof ought to have been supplied to the petitioner paripassu the grounds of detention and that failure to supply the same has deprived the petitioner of an opportunity of making an effective representation and therefore the detention as such is ille gal and violative of Article 22(5) of the Constitution of India.
There is no dispute that the detenu moved for bail under Section 437 Cr.
P.C. on 29.10.90 before the Additional Chief Judicial Magistrate (Economic Offences), Ernakulam and by an order dated 2.11.90 the bail application was rejected.
The first grievance of the petitioner is that these two documents were not placed before the detaining authority and they were suppressed,.
In support of this plea reliance is placed on the grounds wherein the 444 detaining authority has stated that he was aware that the petitioner was in judicial custody and possibility of his release on bail in the near future cannot be ruled out.
It is submitted that this statement itself shows that the detaining authority was not aware that a bail application in fact was made and the same has been rejected and the only inference that can be drawn is that these relevant documents were suppressed and not placed before the detaining authori ty.
In the counter affidavit filed by the second respondent, State of Kerala, it is categorically denied that the bail application and the order refusing bail were suppressed from the detaining authority and that at the time of sponsoring the petitioner 's name the copies of the bail application and the order refusing bail were not made available to the Department and therefore they were not placed before the authority.
From these averments, one of the questions that arise for consideration is whether the failure to supply these two documents to the detenu or alternatively whether the failure to place the bail application and the order refusing bail before the detaining authority does in any way affect the detention order.
The learned counsel in this context sought to place reliance on some of the judgments of this Court.
In M. Ahmedkutty vs Union of India and another; , , the contention was that the bail application and the order granting bail which were relied upon by the detaining authority were not supplied to the detenu and therefore the detention was illegal.
A Division Bench of this Court noticed that in the grounds it was clearly men tioned that the detenu was remanded to judicial custody and was subsequently released on bail.
Therefore these documents were in fact placed before the detaining authority and were relied upon by it and therefore the non supply of these relevant documents to the detenu disabled him to make an effective representation.
Therefore there was violation of Article 22(5) of the Constitution.
In arriving at this conclusion, the Division Bench relied on several other decisions and observed that all the documents relied upon by the detaining authority must be pari passu supplied to the detenu.
In the instant case, the facts are different.
In the counter affidavit it is clearly stated that the bail appli cation and the order refusing bail were not there before the sponsoring authority.
Therefore they were not placed before the detaining authority.
The grounds do not disclose that the detaining authority has relied upon any of these two documents.
On the other hand as already noted the detaining authority mentioned in the grounds that it was aware that the detenu was in custody but there is every likelihood of his being released on bail.
This itself shows that these documents were not before the authority.
Therefore it cannot be said that the docu ments referred to and relied upon in the grounds were not supplied to the detenu and the ratio in 445 Ahmedkutty 's case; , on this aspect does not apply to the facts in the instant case.
It is not necessary to refer to in detail various decisions of this Court where in it has been clearly laid down that the documents referred to or relied upon in the grounds of detention only are to be supplied.
This has been settled by a long line of decisions: Ramachandra A. Kamat vs Union of India ; , Frances Coralie Mullin vs
W.C. Khambra, [19801 2 SCC 275, Ichhu Devi Choraria vs Union of India, ; , Pritam Nath Hoon vs Union of India, ; , Tushar Thakker vs Union of India, , Lallubhai Jobibhai Patel v.union of India; , , Kirti Kumar Chatnan Lal Kundalia vs Union of India , and Ana Carolina D 'Souza v Union of India 1198x1 Supp.
SCC 53 (1) At this juncture it is also necessary to note that such of those documents which are not material and to which a casual or passing reference is made in the grounds, need not be supplied.
In Mst.
L.M.S. Ummu Saleema vs Shri B.B. Guja ral and another; , after referring to some of the earlier decisions of this Court, it was held thus: "It is, therefore, clear that every failure to furnish copy of a document to which reference is made in the grounds of detention is not an infringement of Article 22(5), fatal to the order of detention.
It is only failure to furnish copies of such documents as were relied upon by the detaining authority, making it difficult for the detenu to make an effec tive representation, that amounts to a viola tion of the fundamental rights guaranteed by Article 22(5).
In our view it is unnecessary to furnish copies of documents to which casual or passing reference may be made in the course of narration of facts and which are not relied upon by the detaining authority in making the order of detention.
It will therefore be seen that failure to supply each and every document merely referred to and not relied upon will not amount to infringement of the rights guaranteed under Article 22(5) of the Constitution.
We may of course add that whether the document is casually or passingly referred to or whether it has also formed the material for arriving at the subjective satisfaction, depends upon the facts and grounds in each case.
In the instant case we are satisfied that these two documents were not placed before the detaining authority nor they were referred to or relied upon.
The learned counsel, however, proceeded to submit that even assuming that these documents were not relied upon or referred to by the detaining authority yet the failure to place these relevant documents before the 446 detaining authority amounted to suppression and therefore there was non application of mind and that the detention order passed without looking into such relevant material is invalid.
In Ahmedkutty 's case no doubt there is an observa tion having regard to the facts therein that non considera tion of the bail application and the order of releasing would amount to non application of mind and that would affect the detention order.
The Division Bench made these observations while considering the contention that the order granting bail and the bail application, though referred to, were not relied upon.
It is not laid down clearly as a principle that in all cases non consideration of the bail application and the order refusing bail would automatically affect the detention.
The relevant observations in this context made by this Court Ahmedkutty 's case may be noted: "If in the instant case the bail order on condition of the detenu 's reporting to the customs authorities was not considered the detention order itself would have been af fected.
Therefore, it cannot be held that while passing the detention order the bail order was not relied on by the detaining authority.
In section Gurdip Singh vs Union of India, , following Ichhu Devi Choraria vs Union of India, ; and Shalini Soni vs Union of India, ; it was reiterated that if the documents which formed the basis of the order of detention were not served on the detenu along with the grounds of detention, in the eye of law there would be no service of the grounds of detention and that circumstance would vitiate his detention and make it void ab initio." (emphasis supplied).
It is further observed in this case that: "Considering the facts in the instant case, the bail application and the bail order were vital materials for consideration.
If those were not considered the satisfaction of the detaining authority itself would have been impaired, and if those had been considered, they would be documents relied on by the detaining authority though not specifically mentioned in the annexure to the order of detention and those ought to have formed part of the documents supplied to the detenu with the grounds of detention and without them the grounds themselves could not be said to have been complete.
We have, therefore, no alterna tive but to hold that it amounted to denial of the detenu 's right to make an effective repre sentation and that it resulted in violation of Article 22(5)of the Constitution of India 447 rendering the continued detention of the detenu illegal and entitling the detenu to be set at liberty in this case." (emphasis supplied) Placing considerable reliance on this passage, the learned counsel contended inter alia that in the instant case from other point of view namely (i) if the bail application and the order refusing bail were not considered or (ii) if considered the non supply of the copies of the same to the detenu would affect the detention order.
In other words, according to him, non consideration of these two documents by the detaining authority would itself affect the satisfaction of the detaining authority.
If on the other hand they are taken into consideration and relied upon the non supply of the same to the detenu would result in violation of Article 22(5) of the Constitution rendering the detention invalid.
We are unable to agree with ' the learned counsel.
We are satisfied that the above observations made by the Division Bench of this Court do not lay down such legal principle in general and a careful examination of the entire discussion would go to show that these observations were made while rejecting the contention that the bail application and the order granting bail though referred to in the grounds were not relied upon and therefore need not be supplied.
The case is distinguishable for the reason that the Division Bench has particularly taken care to mention that "Considering the facts . the bail application and the bail order were vital materials".
In that view these observations were made.
Further that was a case where the detenu was released on bail and was not in custody.
This was a vital circumstance which the authority had to consider and rely before passing the detention order and therefore they had to be supplied.
Now we shall consider the other submission regarding the non supply of the bail application and the order refusing bail to the detenu and its effect.
According to the learned counsel these two documents formed relevant material and irrespective of the fact whether they were placed before the detaining authority or not they ought to have been supplied to the detenu and failure to do so has caused prejudice in making an effective representation.
We are unable to agree.
In Abdul Sattar Abdul Kadar Shaikh vs Union of India and Others [1990] I SCC 480 it is observed thus: "In fact the bail applications were filed by the detenu himself and he was very much aware of the contents of those bail applications and the orders made thereon.
These documents were not relied upon bv the detaining authority.
When a request is made by the detenu for supply of these bail applications and 448 orders refusing thereon are made, the court inter alia has to look into the question whether the detenu is in any way handicapped in making an effective representation by such refusal.
No authority has been placed before us which goes to the extent of holding that a mere non supply of any document whatever its nature may be, to the detenu per se amounts to the denial of an opportunity under Article 22(5)." (emphasis supplied).
In Syed Farooq Mohammed vs Union of India and Another, JT [1990] 3SC 102 this Court considered precisely the same question and it was observed thus: "The third ground of challenge is that the relevant document i.e. bail application of the petitioner and order made there on which might have been considered by the detaining authori ty were not supplied to the petitioner and as such his right of making effective representa tion guaranteed under Article 22(5) of the Constitution of India has been seriously prejudiced.
This ground is without any sub stance because firstly there is nothing to show from the grounds of detention that the rejection of this bail application by the Sessions Judge, Greater Bombay on January 5, 1990 was considered by the detaining athority before passing the impugned order of detention and as such this being not referred to in the grounds of detention, the documents had not been supplied to the petitioner, and it, therefore, cannot be urged that non supply of this document prejudiced the petitioner in making effective representation against the order of detention.
Article 22(5) of the Constitution, undoubtedly, mandates that all the relevant documents referred to in the grounds of detention and which are considered by the detaining authority in coming to his subjective satisfaction for clamping an order of detention are to be supplied to the detenu.
The said document was not considered by the detaining authority in coming to his subjec tive satisfaction and in making the impugned order of detention.
The nonfurnishing to the detenu of the said document i.e. the bail application and the order passed thereon, does not affect in any manner whatsoever the dete nu 's right to make an effective representation in compliance with the provisions of Article 22(5) of the Constitution of India.
This ground, therefore, is wholly untenable." (emphasis supplied) 449 From the above discussion it emerges that even if the bail application and the order refusing bail are not placed before the detaining authority or even if placed, if the detaining authority does not refer to or rely upon or has failed to take them into consideration, that by itself does not lead to an inference .that there was suppression of relevant material or in the alternative that there was non application of mind or that subjective satisfaction was impaired.
When these documents are neither referred to nor relied upon, there is no need to supply the same to the detenu.
As already noted, in all such cases where the detenu was in custody at the time of passing an order of detention what is strictly required is whether the detaining authority was aware of the fact that the detenu was in custody and if so was there any material to show that there were compelling reasons to order detention inspire of his being in custody.
These aspects assume importance because of the fact that a person who is already in custody is disabled from indulging in any prejudicial activities and as such the detention order may not normally be necessary.
Therefore the law requires that these two tests have to be satisfied, in the case of such detention of a person in custody.
The Constitution Bench in Rameshwar Shaw 's case held thus: ". .
Whether the detention of the said person would be necessary after he is released from jail, and if the authority is bonafide satisfied that such detention is necessary, he can make a valid order of detention a few days before the person is likely to be released.
XXX XXXX XXX Therefore, we are satisfied that the question as to 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.
" Following the above principles, another Bench of three Judges of this Court in N. Meera Rani vs Government of Tamil Nadu and Another, ; after reviewing the various other decisions, it was observed that "A review of the above decisions reaffirms the position which was settled by the decision of a Constitution Bench in Rameshwar Shaw 's case and that none of the observations made in any subse quent case can be construed at variance with the principle indicated in Rameshwar Shaw 's case.
" Having so observed the Bench summarised the principle thus: "Subsisting custody of the detenu by itself does not invalidate 450 an order of his preventive detention and the decision must depend on the facts of the particular case; preventive detention being necessary to prevent the detenu from acting in any manner prejudicial to the security of the State or the maintenance of public order etc.
ordinarily it is not needed when the detenu is already in custody;, the detaining authority must show its awareness to the.
fact of sub sisting custody of the detenu and take that factor into account while making the order; but even so, if the detaining authority is reasonably satisfied on cogent material that there is likelihood of his release and in view of his antecedent activities which are proxi mate in point of time he must be detained in order to prevent him from indulging in such prejudicial activities, the detention order can be validly made even in anticipation to operate on his release.
This appears to us, to be the correct legal position." In Chelawat 's case after examining the various decisions of this Court dealing with preventive detention of a person in custody, it is held thus: "The decisions referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that (i) the detaining authority was aware of the fact that the detenu is already in detention; and (ii) there were compelling reasons justifying such detention despite the fact that the detenu is already in detention.
The expression "compel ling reasons" in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future, and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would in dulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities." In Sanjay Kumar Aggarwal vs Union of India and Others ; after reviewing all the relevant cases including Chelawat 's case, this Court observed as under: "It could thus be seen that 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.
Therefore the facts and circum stances of each case have to be 451 taken into consideration in the context of considering the order of detention passed in the case of a detenu who is already in jail.
We have already, in the instant case, referred to the grounds and the various circumstances noted by the detaining authority and we are satisfied that the detention order cannot be quashed on this ground.
" In a very recent judgment of this Court in Kamarunnissa etc. vs Union of India and Another., all the above mentioned decisions dealing with the detention of a person in custody have been reviewed and it is finally held as under: "From the catena of decisions referred to above it seems dear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing, the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in prejudi cial activity and (3) if it is felt essential to detain him to prevent him from so doing.
If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstand ing such opposition to question it before a higher Court.
" Having regard to the various above cited decisions on the points often raised we find it appropriate to set down our conclusions as under: (1) A detention order can validly be passed even in the case of a person who is already in custody.
In such a case, it must appear from the grounds that the authority was aware that the detenu was already in custody.
(2) When such awareness is there then it should further appear from the grounds that there was enough material necessitating the detention of the person in custody.
This aspect depends upon various considerations and facts and circumstances of each case.
If there is a possibility of his being released and on being so released he is likely to indulge in prejudicial activity then that would be one such compelling necessity to pass the detention order.
The order cannot be quashed on the ground that the proper course for the authority was to oppose the bail and that if bail is granted 452 notwithstanding such opposition the same can be questioned before a higher Court.
(3) If the detenu has moved for bail then the applica tion and the order thereon refusing bail even if not placed before the detaining authority it does not amount to sup pression of relevant material.
The question of non applica tion of mind and satisfaction being impaired does not arise as long as the detaining authority was aware of the fact that the detenu was in actual custody.
(4) Accordingly the non supply of the copies of bail application or the order refusing bail to the detenu cannot affect the detenu 's right of being afforded a reasonable opportunity guaranteed under Article 22(5) when it is clear that the authority has not relied or referred to the same.
(5) When the detaining authority has merely referred to them in the narration of events and has not relied upon them, failure to supply bail application and order refusing bail will not cause any prejudice to the detenu in making an effective representation.
Only when the detaining authority has not only referred to but also relied upon them in arriv ing at the necessary satisfaction then failure to supply these documents, may, in certain cases depending upon the facts and circumstances amount to violation of Article 22(5) of the Constitution of India.
Whether in a given case the detaining authority has casually or passingly referred to these documents or also relied upon them depends upon the facts and the grounds, which aspect can be examined by the Court.
(6) In a case where detenu is released on bail and is at liberty at the time of passing the order of detention, then the detaining authority has to necessarily rely upon them as that would be a vital ground for ordering detention.
In such a case the bail application and the order granting bail should necessarily be placed before the authority and the copies should also be supplied to the detenu.
Bearing in mind the principles laid down in the above mentioned case, we shall now examine the facts in the case before us.
The detaining authority in Ground Nos. 3 and 4 has stated as under: "3.
You were arrested under Section 104 of the by the Superintendent on 26.10.90.
You were produced before the Chief Judicial Magistrate, Trivandrum on the same day.
The Magistrate remanded you to judicial custody.
453 4.
I am aware that you are under judicial custody and possibility of your release on bail in the near future cannot be ruled out.
Also nothing prevents you from moving bail application in the jurisdictional court and getting release on bail.
" In the counter affidavit, it is stated that the period of remand to the judicial custody was to expire the next day after his detention.
Therefore there was every likelihood of his moving for bail and getting released On bail.
These materials Show that the detaining authority was not only aware that the detenu was in jail but also noted the circum stances on the basis of which he was satisfied that the detenu was likely to come out on bail and continue to in dulge himself in the smuggling activities.
It, therefore, cannot be said that there were no compelling reasons justi fying the detention despite the fact that the detenu is already in custody.
Likewise the failure to supply the bail application and the order refusing bail does not in any manner prejudice the detenu from making a representation particularly when he was fully aware of the contents of application made by himself and also the refusal order.
However, when they are not referred to or relied upon the non supply does not affect the detention.
These are all the submissions made by the learned coun sel for the petitioner and we do not see any merit in any of them.
Accordingly the Writ Petition is dismissed.
Writ Petition (Criminal) No. 106 of 1991 In this Writ Petition also the petitioner is a foreign national, being resident of Republic of Maldives.
On 25.10.90 he landed at Trivandrum Airport from Male.
After customs clearance the petitioner proceeded to Hotel Geeth at Trivandrum and while he was staying there, some officers of Customs came to the room and conducted a search.
Nothing was recovered.
But the officers took the petitioner by force to the Customs Import Baggage Hall and it is alleged that on examination, 30 gold biscuits of foreign origin were seized from either side of the handle inside the lock system of the blue colour suitcase which is alleged to be of petitioner.
The petitioner 's passport and other documents were also seized by the Air Customs Officer, Trivandrum.
The petition er 's statement was recorded ' under Section 108 of the Cus toms Act, 1962 wherein he is alleged to have confessed the guilt.
After the arrest he was produced in the Court of Chief Judicial Magistrate, Trivandrum and was remanded to judicial custody for a period of 14 days.
Thereafter he was shifted to the Court of the Additional Chief Judicial Magis trate (Economic Offences), Ernakulam.
While he was in jail he made an application for grant of bail under Section 473 Cr.
454 P.C. on 29.10.90 but it was rejected on 2.11.90 by the Additional Chief Judicial Magistrate (Economic Offences), Ernakulam.
While the petitioner was in jail, an order of detention was passed under Section 3(1) of the COFEPOSA Act by the Secretary to the Government, Govt.
of Kerala, Home (SSA) Department, on 7.11.90 and the same was served on the petitioner on 8.11.90.
The grounds of detention alongwith the list of documents annexed thereto were served in time.
The petitioner made a representation stating that since his bail application has been rejected and since he was in jail and his passport was also seized, there is no compelling necessity for such a detention.
He also stated that no antecedents are there showing his being involved in such incidents and this was the solitary incident, therefore the provisions of the Act are not attracted.
The same points as in Writ Petition (Criminal) No. 105 of 1991 are raised in this petition also.
We have negatived all the contentions in the above case.
One another submission of the learned counsel for the petitioner is that in the case of this petitioner the deten tion order mentions only smuggling and that when once the detenu is in jail and when his passport is seized, he can no more indulge in smuggling and therefore according to the learned counsel, there is non application of mind.
In this context he relied on the definition of "smuggling".
Section 2(e) of the COFEPOSA Act defines "smuggling* ' thus: "2.
Definitions In this Act, unless the context otherwise requires, xxxx xxxx xxxx xxx (e) "smuggling" has the same meaning as in clause (39) of Section 2 of the , and all its grammatical variations and cognate expressions shall be construed accord ingly.
" Clause (39) of Section 2 of the defines "smuggling" thus: "2. Definitions In this Act, unless the context otherwise requires, (39) "smuggling" in relation to any goods means any act or 455 omission which will render such goods liable to confiscation under section 111 or section 113? Sections 111 and 113 of the provide for confiscation of improperly imported goods and exported goods respectively.
The submission of the learned counsel is that the petitioner being in custody in India can no more indulge in smuggling and therefore the detention on the ground that he is likely to indulge in smuggling is non existent.
We see no force in this submission.
The potentialities of the detenu as gathered from his act of smuggling that form basis for detention.
It is difficult to comprehend precisely the manner in which such a detenu with such potentialities may likely to indulge in the activities of smuggling.
It is for the detaining authority to derive the necessary satisfaction on the basis of the materials placed before him.
In the result this Writ Petition is also dismissed.
RP Petitions dismissed. [/INST] The petitioners foreign nationals found to be carrying gold biscuits of foreign origin were arrested by the Customs authorities.
Their applications for grant of bail under section 437 Cr.
P.C. were rejected.
Thereafter orders of their detention were passed under section 3(1) of the Conserva tion of Foreign Exchange and Prevention of Smuggling Activi ties Act.
The grounds of detention alongwith the lists of documents annexed thereto were served in time.
The petition ers made representations which were rejected.
In the writ petitions under Article 32 of the Constitu tion, the petitioners before this Court contended that there was no compelling necessity for their detention under the as they were in jail and their bail applica tions were rejected and passports seized; that the provi sions of the Act were not attracted, as each of the inci dents in the case of the respective petitioners was solitary and there were no anticidents showing their involvement in the like incidents; that there was non application of mind by the detaining authority as copies of the bail applica tions and the orders refusing bail which were relevant documents were neither placed 436 before the detaining authority nor were supplied to them.
On behalf of one of the petitioners it was also contended that there was no application of mind by the detaining authority inasmuch as the order of detention mentioned only smuggling and once the detenu is in jail, his passport being seized he could no more indulge in smuggling.
Dismissing the writ petitions, this Court, HELD: 1.1 A detention order can validly be passed even in the case of a person who is already in custody.
In such a case, it must appear from the grounds that the authority was aware that the detenu was already in custody.
[451 F] 1.2 When such awareness is there then it should further appear from the grounds that there was enough material necessitating the detention of the person in custody.
This aspect depends upon various considerations and facts and circumstances of each case.
If there is a possibility of his being released and on being so released he is likely to indulge in prejudicial activity then that would be one such compelling necessity to pass the .detention order.
The order cannot be quashed on the ground that the proper course for the authority was to oppose the bail and that if bail is granted notwithstanding such opposition the same can be questioned before a higher Court.
[451G H, 452 A] Dharmendra Suganchand Chelawat & Anr.
vs Union of India vs
S.N. Sinha, Commissioner of Police, Ahmedabad & Anr., ; , referred to.
Rameshwar Shah vs District Magistrate, Burdwan, ; , followed.
N. Meera Rani vs Government of Tamil Nadu &Anr.
, ; ; Sanjay Kumar Aggarwal vs Union of India & Ors., ; and Kamarunnissa etc.
vs Union of India &Anr., , relied on.
2.1 If the detenu has moved for bail then the applica tion and the order thereon refusing bail even if not placed before the detaining authority it does not amount to sup pression of relevant material.
The question of non applica tion of mind and satisfaction being impaired does not arise as long as the detaining authority was aware of the fact that the detenu was in actual custody.
[452 B] 437 2.2 Accordingly the non supply of the copies of bail application or the order refusing bail to the detenu cannot affect the detenu 's right of being afforded a reasonable opportunity guaranteed under Article 22(5) of the Constitu tion, when it is clear that the authority has not relied or referred to the same.
[452 C] 2.3 When the detaining authority has merely referred to them in the narration of events and has not relied upon them, failure to supply bail application and order refusing bail will not cause any prejudice to the detenu in making an effective representation.
Only when the detaining authority has not only referred to but also relied upon them in arriv ing at the necessary satisfaction then failure to supply these documents, may, in certain cases depending upon the facts and circumstances, amount to violation of Article 22(5) of the Constitution of India.
Whether in a given case the detaining authority has casually or passingly referred to these documents or also relied upon them depends upon the facts and the grounds, which aspect can be examined by the Court.
[452 C E] 2.4 In a case where detenu is released on bail and is at liberty at the time of passing the order of detention.
then the detaining authority has to necessarily rely upon them as that would be a vital ground for ordering detention.
In such a case the bail application and the order granting bail should necessarily be placed before the authority and the copies should also be supplied to the detenu.
[452 E F] M. Ahmedkutty vs Union of India & Anr., ; ; Ramachandra A. Kamat vs Union of India. ; ; Frances Coralie Muffin
W.C. Khambra.
; ; Icchu Devi Choraria vs Union of India. ; Pritam Nath Hoon vs Union of India ; ; Lallub hai Jobibhai Patel vs Union of india; , ; Tushar Thakker vs Union of India ; Kirti Kumar Chaman Lal Kundalia vs Union of India ; Ana Carolina D 'Souza vs Union of India [1981] Supp.
SCC 53(10); Mst.
L.M.S. Ummu Saleema vs Shri B.B. Gujaral & Anr.
, ; ; Abdul Sattar Abdul Kadar Shaikh vs Union of India & Ors., and SaVed Farooq Mohammad vs Union of India & Anr., JT , referred to.
It is entirely within the subjective satisfaction of the detaining authority whether or not there were compelling circumstances to detain the person concerned.
[p. 440 E] 438 4.1 In the instant case, in the counter affidavit it was stated that the period of remand to the judicial custody was to expire the next day after the detention.
Therefore, there was every likelihood of the detenu 's moving for bail and getting released on bail.
These materials showed that the detaining authority was not only aware that the detenus were in jail but also noted the circumstances on the basis of which he was satisfied that they were likely to come out on bail 'and continue to indulge in the smuggling activities.
[453 B C] As mentioned in the grounds of detention, there was relevant material on the basis of which the detaining au thority was satisfied that there was compelling necessity to pass the detention orders.
It, therefore, cannot be said that there were no compelling reasons justifying the deten tion despite the fact that detenus were already in custody.
[443 C, 453 C] 4.2 Failure to supply the bail applications and the orders refusing bail did not in any manner prejudice the detenus from making representations particularly when they were fully aware of the contents of the applications made by them and also the refusal orders.
However, when they are not referred to or relied upon, the non supply does not affect the detention.
[453 C D] 5.1 Even a solitary incident may speak volumes about the potentialities of the detenu and merely on the ground that there were no antecedents the detention order cannot be quashed.
The authorities cannot and may not in every case salvage the antecedents but even a solitary incident may manifest the potentialities of a detenu in the activities of smuggling.
[p. 443 D E] 5.2 The potentialities of the detenu as gathered from his act of smuggling form basis for detention.
It is diffi cult to comprehend precisely the manner in which a detenu with certain potentialities may likely to indulge in the activities of smuggling.
It is for the detaining authority to derive the necessary satisfaction on the basis of the materials placed before him.
[p. 455 B C] </s> |
<s>[INST] Summarize the following judgement: Criminal Appeal No. 624 of 1979.
From the Judgment and Order dated 27.3.1979 of the Madhya Pradesh High Court in Criminal Appeal No. 498 of 1977.
Frank Anthony, Sushil Kumar Jain, Ms. Pratibha Jain and R.V. Singh for the Appellants.
U.N. Bachhavat, Uma Nath Singh and J.M. Sood for the Respon dent.
The following Order of the Court was delivered: These two appellants, namely, Mathura Prashad and Binda Prashad have preferred this appeal questioning the correct ness and legality of the judgment rendered in Criminal Appeal No. 498/77 by the High Court of Madhya Pradesh at Jabalpur Bench.
These two appellants (A4 and A5 before the Trial Court) along with three others, namely, Gulab Chand and Gulab Singh and Laxman Rao (who were arrayed as accused Nos. 1 to 3) took their trial on the accusation that on the night intervening 5/6.12.75 at about 12.30 a.m. at Sarkanda, Bilaspur within the limits of Bilaspur Police Station, Civil Lines intentionally caused the death of the deceased, Keshav Singh by Gulab Singh stabbing the deceased with a knife and the rest of the people assaulting him and that in the course of the same transaction, they also committed the offence of dacoity.
Under the above accusation, they were tried for offences punishable u/s 302 IPC in the alternative u/s 302 IPC read with 149 IPC and also for offence u/s 396 IPC.
The Trial Court found the third accused, namely, Laxman Rao not guilty of any of the charges and consequently, acquitted him but convicted these two appellants and accused Nos. 1 and 2 who are not before us u/s 302 read with 34 IPC and sentenced each of them to undergo imprisonment for life.
However, the Trial Court acquitted the appellants and the other two accused of the offence u/s 396 IPC.
On being aggrieved by the judgment of the Trial Court, the convicted accused namely, these two appellants, Gulab Chand and Gulab Singh filed 429 an appeal before the High Court which for the reasons men tioned in its judgment, dismissed the appeal confirming the conviction recorded by the Trial Court.
Challenging this judgment, these two appellants filed their SLP No. 1902/79 and the other two convicted accused, namely, Gulab Chand and Gulab Singh (A1 and A2) filed a separate petition in SLP (Crl.) No. 1435/79.
This Court by an order dated 29.10.79 granted leave so far as SLP filed by these two appellants, but dismissed the SLP filed by the first and the second accused namely, Gulab Chand and Gulab Singh.
Hence, the present appeal by these two appellants.
The facts of the case which led to the filing of this appeal are well set out in the judgments of the Trial Court and the High Court and hence we think that it is not neces sary for us to proliferate the same except to refer to certain salient features relevant for the disposal of this appeal.
The deceased Keshav Singh was a petition writer.
He was living in his house at Sarkanda in Bilaspur with his wife Smt.
Phatokan Bai (PW 19) and two daughters, namely, Anjani Bai (PW 1) and Shail Kumari (PW 2) and his son, Ram Kumar (PW 3) who was younger to PW 1 and eider to PW 2.
There were some tenants in different parts of that house.
The accused Gulab Chand occupied a portion of that house as a tenant, but vacated the same about two months before this occurrence due to frequent quarrels between the children and ladies of the families belonging to Gulab Chand and that of the deceased.
It is alleged that the wife of Gulab Chand had complained about some alleged misbehaviour of the deceased with her.
According to the prosecution, when the deceased was sleeping in a room with his wife on the iII fated night, he heard someone knocking at the door.
On this, the deceased switched on the light and opened the door.
This appellant and the other accused entered his room.
Gulab Chand and Gulab Singh whipped up their knives and gave stab wounds; one on the chest, another on the back while bending.
These two appellants slapped and fisted the deceased.
It is fur ther stated that the second appellant herein, namely, Binda Singh caught hold of the deceased and banged him against the wall repeatedly.
PW 19 tried to save her husband but she was pushed aside.
During the course of the occurrence, a gold 'PUTRI ' which PW 19 was wearing, was attempted to be snatched away from her.
PW 1 who was sleeping in a room on the first floor, on hearing the cry, got down and saw these appellants and the other accused leaving her father 's room.
It is alleged that the appellant while running away took with them a box con taining some clothes and other articles belonging to PW 1.
According to the prosecution, the appellants had chained the doors in such a way that the other inmates of the house could not reach the spot.
430 After the appellants had fled away, PW 1 opened the doors.
PW 3 who was sleeping in another room reached the spot.
PW 15 was a tenant in an adjoining room and he on hearing the distress cry of PW 19, wanted to come out of his room but he could not do so as the house was chained from outside.
Therefore, PW 15 shouted for opening the latches of the door.
He came to the spot after the door was opened.
One Ramji Dayal who seemed to have played an important role in the prosecution, also reached the spot but he has not been examined by the prosecution as a witness.
All the witnesses saw bleeding injuries on the body of Keshav Singh (the deceased herein) who was unable to speak.
PW 3, at the instance of his deceased father brought a pen and a piece of paper on which the injured Keshav Singh wrote 'Gulab Chand ' and thereafter became unconscious.
The injured Keshav Singh was then taken to the Government hospital at Bilaspur where he succumbed to his injuries.
The medical officer sent a requisition exhibit P 14 to the police station.
PW 19, by then, lodged the first information report Exh.
P 43 at about 3.00 a.m. on 6.12.75 before PW 21.
PW 21 held inquest and pre pared the inquest report Exh.
During the course of the investigation, he has seized exhibit P.50, the paper on which the deceased had written the name 'Gulab Chand ' on being produced by PW 3.
PW 9, the medical officer who conducted autopsy on the dead body of the deceased, found two stab wounds and one incised wound on the person of the deceased.
PW 8, another medical officer examined accused Gulab Singh and found on his person a small incised wound at the base of the index finger on the palmer aspect.
After completing the investigation, the charge sheet was laid against all the accused persons.
As aforementioned, the trial court convicted the four accused inclusive of these two appellants which conviction was confirmed by the High Court.
Hence, this appeal by these two appellants.
Of the witnesses examined, PWs 1, 2 and 19 speak about the participation of the appellants in the perpetration of this heinous crime.
No doubt both the Courts below have concurrently found that these two appellants and the other two accused 1 and 2 were responsible for causing the death of the deceased and consequently convicted and so, the question would be whether this Court while exercising its jurisdiction under Article 136 of the Constitution of India, will be justified in interfering with the concurrent find ings of fact.
This Court in Balam Ram vs State of U.P. 11975] 3 SCC 219 at 227 held, that the powers of the Supreme Court under Article 1.36 of the Constitution are wide but in criminal appeals, this Court does not interfere with the concurrent findings of fact save in exceptional circumstances.
The 431 scope of interference by this Court under Article 136 of the Constitution of India in a case of concurrent findings of fact arose in Arunachalam vs PSR Sadhanathan, ; wherein this Court has held that "Article 136 of the Constitution of India invests the Supreme Court with a plenitude of plenary appellate power over all Courts and Tribunals in India.
The power is plenary in the sense that there are no words under Article 136 itself qualifying that power.
But, the very nature of the power has led the Court to set limits to itself within which to exercise such power.
It is now the well established practice of this Court to permit the invocation of the power under Article 136 only in very exceptional circumstances, as when a question of law of general public importance arises or a decision shocks the conscience of the Court.
But, within the restrictions im posed by itself, this Court has the undoubted power to interfere even with findings of the fact, making no distinc tion between judgments of acquittal and conviction, if the High Court, in arriving at those findings had acted "per versely or otherwise improperly".
(See State of Madras vs
A. Vaidyanatha Iyer ; and Himachal Pradesh Admin istration vs Om Prakash, We think that it is not necessary to swell this judgment by citing all the decisions relating to this principle of law.
When the facts and circumstances of the case are scruti nised, in our considered opinion, they do compel this Court to interfere on the ground that the findings of the Courts below suffer from the vice of perversity.
I1 is the admitted case that the deceased was a petition writer and so in that capacity he was very well conversant as to how to draft a complaint.
He asked for a pen and paper, and wrote the name, 'Gulab Chand ', evidently thereby saying that Gulab Chand was the assailant.
The deceased had not written any other name except the name of Gulab Chand.
Now the explana tion given by the prosecution is that the deceased became unconscious after writing this one name Gulab Chand, thereby saying had he not become unconscious, probably he would have written the names of other assailants also.
But we have to test this evidence in the background of the evidence given by other witnesses namely PWs '1, 2 and 19.
PW 19 who is none other than the wife of the deceased, was sleeping in the same room in which the deceased was sleeping and, there fore, she must be the proper and natural witness and her evidence has to be given credence.
PW 19 admittedly did not inform either PW 1 or PW 2 the names of the assailants but she gave the names only to PW 3, her son.
It transpires from the evidence of PW 19 that after PW 1 went to fetch the rickshaw, PW 3 asked his father as to who had assailed him 'and that it was only thereafter the injured Keshav Singh wrote the name of Gulab Chand on a piece of paper.
The relevant portion of the evidence of PW 19 reads as follows: 432 Then Ram Kumar asked my husband as to who had assaulted and he asked for a pen and paper.
Ram Kumar brought a paper and pen and my husband could write on it the name of Gulab Chand.
In this connection, evidence of PW 2 may also be re ferred to which is as follows: "Then at this stage, my brother asked him as to who had assaulted him.
My father asked by a sign of hand for a pen and paper, whereupon my brother brought the pen and paper and gave that to my father.
My father wrote on it by his hand; he wrote the name of Gulab Singh and thereafter he became unconscious. ' This dearly indicates that before the deceased wrote the name of Gulab Chand on the paper given by his son, PW 3, no one including PW 19 came forward with the names of the assailants but it is only thereafter, PW 19 gave the names of the assailants.
Here also, the prosecution is not con sistent because PW 2 says that her father also gave the name of all the assailants to Ram Kumar (PW 3).
The relevant part of PW 2 's evidence reads thus: "Then my mother and father both mentioned the names of the assailants.
At that time my brother, Ram Kumar was also there.
After Ramji had enquired, my brother also enquired them.
My father asked for by a sign of hand for pen and a copy.
" The above extracted pieces of evidence of PWs 2 and 19 indicate that PW 3 was not informed of the names of the assailants before his father (the deceased herein) wrote the name of Gulab Chand.
Had PW 3 informed by his mother (PW 19) of the names of the assailants, he might not have asked his father as to who the assailants were.
In other words, till the deceased wrote the name of Gulab Chand on a piece of paper evidently PW 3 did not know as to who assailant or assailants was/were.
It seems that both the Courts below have not approached this significant aspect of this salient feature in the proper perspective.
On the other hand, it has conveniently omitted this significant factor from consideration which gives the death knell to the prosecution case so far as the alleged participation of these two appellants in this brutal crime.
In the inquest report Exh.
P 24, it is stated that all the relatives of the deceased 433 Keshav Singh were examined and the following conclusion was arrived at: ". . the conclusion was reached that the death of deceased Keshav Singh by Gulab Singh, Gulab Chand etc.
was due to knife wounds.
" This 'etc. ' in the present case has no relevance because there is a specific averment that the two assailants namely, Gulab Singh and Gulab Chand stabbed the deceased with knives which case alone fits in with the earlier statements of PWs 2 and 19 as well as the version of the deceased in Exh.
If really the names of these two appellants had been mentioned by the witnesses, those names also would have been specifically mentioned in Exh.
P :24.
At this juncture, the learned senior counsel appearing on behalf of the State referred to a decision of this Court reported in ; Pedda Narayana vs State of Andhra Pradesh wherein this Court has held that the question regarding the details as to how the deceased was assaulted or who assaulted him or under what circumstances, he was assaulted is foreign to the ambit and scope of the proceedings under Section 174.
This decision will not be of any help to the prosecution because only two names are mentioned in the inquest report as as sailants, leaving the names of these two appellants who are now rightly attempting to take advantage of this conspicuous omission in Exh.
P. 24.
Though PW 19 is said to be the author of Exh.
P 43, she before the Trial Court does not claim to be the author of the entire averments.
She states that the police who record ed the report, asked only her name and her husband 's name and nothing further was asked from her and she did state anything more than that.
PW 19 further had deposed that she did not give the names of the accused who assaulted, that she did not know whether her husband was then dead or alive, that at Thana (Police Station) she came to know about the death of her husband, that even then she did not mention the names of the assailants, and that before going to the Thana, she did not give the names of any of the assailants to any person.
It is in evidence that both these appellants were present at the scene of occurrence when the police constable came, but none pointed out to the police that these two appellants also participated in the crime.
Now the explana tion offered by the prosecution is that these two appellants took the constable aside and whispered something and there fore, PW 1 suspecting that the police constable was taking side with the appellants did not come forward with a state ment that these two appellants were also the participants in the crime.
This explanation seems to have been offered only before the Trial Court.
Both the Courts below have conven iently over 434 looked and ignored all the above glaring infirmities appear ing in the case and as such the concurrent findings recorded by both the Courts are not proper but perverse.
After meticulously and scrupulously analysing the evi dence, we are left with an impression that the prosecution has not satisfactorily established the guilt of these two appellants beyond all reasonable doubt.
Hence, we are unable to agree with the findings of the lower Courts that these two appellants also participated in the crime with the other two accused.
In the result, the conviction of these two appellants u/s 302 read with 34 IPC and the sentence of imprisonment for life imposed therefore are set aside and both of them are acquitted.
The appeal is thus allowed.
V.P.R Appeal al lowed. [/INST] According to the prosecution, when the deceased a peti tion writer, was sleeping in a room with his wife (PW.19) on the iII fated night, he heard someone knocking at the door.
The deceased switched on the light and opened the door.
The accused (A.1 and A.2) entered his room.
They whipped up their knives and gave stab wounds; one on the chest, another on the hack while bending.
They also slapped and listed the deceased.
It was further stated that the second appellant (A 5) caught hold of the deceased and banged him against the wall repeatedly.
PW19 tried to save her husband but she was pushed aside.
During the course of the occurrence, a gold 'PUTRI ' which PW 19 was wearing, was attempted to be snatched away from her.
The eldest daughter of the deceased, PW 1, who was sleeping in a room on the first floor, on hearing the cry, got down and saw the appellants and the other accused leav ing her father 's room.
The appellants while running away took with them a box containing some clothes and other articles belonging to PW 1 and chained the doors in such a way that the other inmates of the house could not reach the spot.
The deceased 's son, PW 3, who was sleeping in another room reached the spot.
PW 15, a tenant in an adjoining room on hearing the distress cry of PW 19, wanted to come out of his room but he could not do 426 so as the house was chained from outside.
He came to the spot after the door was opened.
All the witnesses saw bleeding injuries on the body of the deceased who was unable to speak.
PW 3, at the instance of his deceased father brought a pen and a piece of paper on which the injured deceased wrote 'Gulab Chand ' and thereaf ter became unconscious, and he was then taken to the Govern ment hospital where he succumbed to his injuries.
The two appellants (A4 and A5 before the Trial Court) along with three others were tried section 302 IPC or section 302/149 and section 396, for causing the death of the deceased, accused No. 2 stabbing the deceased with a knife and the rest of the accused assaulting him and for committing the offence of dacoity.
The Trial Court found the third accused not guilty of any of the charges and acquitted him but convicted others section 302 read with 34 IPC and sentenced each of them to undergo imprisonment for life, and acquitted them of the offence section 396 IPC.
The High Court confirmed the conviction.
The present two appellants (A4, A5) filed the present appeal against the judgment of the High Court through special leave.
The other two accused (A1 and A2) preferred a separate special leave petition, which was dismissed by this Court.
Allowing the appeal of the two accused (A4, A5), this Court, HELD: 1.
The powers of the Supreme Court under Article 136 of the Constitution are wide but in criminal appeals, this Court does not interfere with the concurrent findings of fact, save in exceptional circumstances.
[430 H] 2.
Within the restrictions imposed by itself, this Court has the undoubted power to interfere even with findings of the fact, making no distinction between judgments of acquit tal and conviction, if the High Court, in arriving at those findings has acted perversely or otherwise improperly.
[431 C] Arunachalam vs PSR Sadhananthan, ; ; State of 427 Madras vs
A. Vaidyanatha Iyer; , ; Himachal Pradesh Administration vs Om Prakash, [1972]1 SCC 249, referred to. 3.01 The deceased was a petition writer and so in that capacity he was very well conversant as to how to draft a complaint.
He asked for a pen and paper, and wrote the name, 'Gulab Chand ', evidently thereby saying that Gulab Chand was the assailant.
The deceased had not written any other name except the name of Gulab Chand.
Now the explanation given by the prosecution is that the deceased became unconscious after writing this one name Gulab Chand, thereby saying had he not become unconscious, probably he would have written the name of other assailants also.
[431 E F] 3.02.
PW 19 the wife of the deceased, was sleeping in the same room in which the deceased was sleeping did not inform either PW 1 or PW 2 the names of the assailants but she gave the names only to PW 3, her son.
It transpires from the evidence of PW 19 that after PW 1 went to fetch the rickshaw, PW 3 asked his father as to who had assailed him and that it was only thereafter the injured deceased wrote the name of Gulab Chand on a piece of paper.
Before the deceased wrote the name of Gulab Chand on a piece of paper given by his son, PW 3, no one including PW 19 came forward with the names of the assailants.
[431 F G] 3.03.
The evidence of PW 2 and 19 indicated that PW 3 was not informed of the names of the assailants before his father (the deceased) wrote the name of Gulab Chand.
Till the deceased wrote the name of Gulab Chand on a piece of paper evidently PW 3 did not know as to who the assailant or assailants was/were.
The Courts below have not approached this signifi cant aspect of this salient feature in the proper perspec tive.
[432 G] 3.05.
In the inquest report there is a specific averment that the two assailants namely, Gulab Singh (A.2) and Gulab Chand (A.1) stabbed the deceased with knives which case alone fits in with the earlier statements of PWs 2 and 19 as well as the version of the deceased in Exh.
P. 50.
If really the names of the two appellants had been mentioned by the witnesses, those names also would have been specifically mentioned in Exh.
P. 24, the inquest report.
[433 B C] 428 3.06.
It is in evidence that both the appellants were present at the scene of occurrence when the police constable came, but none pointed out to the police that these two appellants also participated in the crime.
The prosecution has not satisfactorily established the guilt of the two appellants beyond all reasonable doubt. </s> |
<s>[INST] Summarize the following judgement: Appeal No. 1150 of 1978.
From the Judgment and Order dated 22.9.1976 of the Bombay High Court in Special Civil Appln.
No. 1544 of 1971.
B. Datta, J.P. Pathak and P.H.Parekh for the Appellant.
A.M. Khanwilkar for the Respondents.
The Judgment of the Court was delivered by KANIA, J.
The facts found in this appeal show that the appellant, Laxmi Bai, was at the relevant time a member of a joint family with her son, the partition pleaded by the appellant not having been accepted as genuine by the author ities concerned.
She terminated the tenancy of the predeces sor in title of the respondents by a notice dated June 24, 1960.
Under the provisions of Section 32 of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter re ferred to as "the said Act"), April 1, 1957, was declared as the tillers ' day and Section 32 of the said Act provided biter alia that the tenants of the land who fell within any of categories described in sub section (1) of the said section were deemed to have purchased the land held by them as tenants from their landlords, free of all encumbrances subsisting thereon on the said day.
The case of the appel lant is that, in the present case, the tillers ' day was postponed in view of the provisions of clause (a) of sub section (1) of Section 32 F of the said Act, as she was a widow and hence, it must be held that she had terminated the tenancy of tenant, Dayanu, the predecessor in title of the respondents before he became a deemed purchaser of the land.
It is not possible to accept this contention in view of the proviso to sub section (1) of Section 32 F of the said Act which provides, inter alia that the tillers ' day would not get postponed where the widow land owner is a member of a joint family, one of the members whereof was outside the protected categories mentioned under clause (a) of sub section (1) of Section 32 F of the said Act.
In the present case, there is no dispute that the son of the appellant who was joint with her did not fall within any of the categories referred to in clause (a) of sub section (1) of Section 32 F of the said Act.
In these circumstances, Dayanu became the owner of the said land on the tillers ' day as a deemed predecessor and the appellant lost her rights in the said land.
Notice given thereafter is of no avail.
The appeal fails and is dismissed with no order as to costs.
N.P.V Appeal dismissed. [/INST] The appellant, was a member of a joint family with her son.
She terminated the tenancy of the predecessor in title of the respondents, by a notice dated June 24, 1960, giving rise to litigation culminating in the appeal before this Court by the appellant, on the question whether the tenant became deemed purchaser of the land in question, in terms of Section 32 of the Bombay Tenancy and Agricultural Lands Act, 1948, which had declared April 1, 1957 as the tillers ' day and that the tenants of the lands who fell within any of the categories described in sub section (1) were deemed to have purchased the land held by them as tenants from their land lords, free from all encumbrances subsisting thereon on that day.
It was contended that in view of the provisions of clause (a) of subsection (1) of Section 32F of the Act, the tillers ' day was postponed in respect of the land in ques tion as the appellant was a widow, and hence it must be declared that she had terminated the tenancy of the tenant before he became a deemed purchaser of the land.
Dismissing the appeal, this Court, HELD: 1.1.
The proviso to sub section (1) of Section 32F of the Bombay Tenancy and Agricultural Lands Act, 1948, provides inter alia that the tillers ' day would not get postponed where the widow land owner is a member of a joint family, one of the members whereof was outside the protected categories mentioned under clause (a) of sub section (1) of Section 32F of the Act.
[457 F] 1.2 In the instant case, admittedly, the son of the appellant who was joint with her did not fall within any of the categories referred to in clause (a) of sub section (1) of Section 32F of the Act.
Hence the predecessor intitle of the respondents became the owner of the said land on the tillers ' day as a deemed purchaser and the appellant lost her rights in the said 457 land.
Notice given thereafter is of no avail.
[457 G] </s> |
<s>[INST] Summarize the following judgement: Appeal No. 5617 of 1990.
From the Judgment and Order dated 9.8.1990 of the Karna taka Administrative Tribunal, Bangalore in Application No. 3155 of 1989.
P.P. Rao, S.R. Bhat, Alok Aggarwal and Ms. Mohini L. Bhat 1or the Appellant.
393 P. Chidambaram, M. Veerappa (N.P.) and K.H Nobin Singh for the Respondents.
The Judgment of the Court was delivered by KULDIP SINGH, J.
Even the General Law later in time, prevails over the earlier Special Law if it clearly and directly supersedes the said Special Law ' is an unexcep tionable proposition of law.
K. Jayachandra Reddy, J. has interpreted Rule 3(2) of General Rules consistently with Rules 1(3)(a), 3(1) and 4(2) of the same Rules.
Giving harmonious construction to various provisions of the General Rules the learned Judge has held that the General Rules do not supersede the Special Rules.
Yogeshwar Dayal, J. on the other hand has focused his attention on the language of Rule 3(2) of the General Rules and has concluded that there is clear indication in the said Rule to supersede the Special Rules.
I have given my thoughtful consideration to the reason ing adopted by the learned Judges in their respective judg ments.
Rule 1(3)(a) of the General Rules, which lays down the extent and applicability of the General Rules, specifi cally provides that the General Rules shall not be applica ble to the State Civil Services for which there are express provisions under any law for the time being in force.
When the General Rules were enforced the Special Rules were already holding the field.
The Special Rules being "law" the application of the General Rules is excluded to the extent the field is occupied by the Special Rules.
I do not agree that the non obstante clause in Rule 3(2) of the General Rules has an overriding effect on Rule, 1(3)(a) of the said Rules.
With utmost respect to the erudite judgment prepared by Yogeshwar Dayal, J. I prefer the reasoning and the conclusions reached by K. Jayachandra Reddy, J. and agree with the judgment proposed by him.
K.JAYACHANDRA REDDY, J.
This appeal is directed against the order of the Administrative Tribunal, Bangalore dismiss ing an application filed by the appellant.
The principal question involved is whether SubRule (2) of Rule 3 of Karna taka Civil Services (General Recruitment) Rules, 1977 ( 'General Rules ' for short) has the overriding effect over the Karnataka General Service (Motor Vehicles Branch) (Recruitment) Rules, 1976 ( 'Special Rules ' for short).
For a better appreciation of the question it becomes necessary to state few facts.
The appellant was appointed initially as Inspector of Motor ' Vehicle and was promoted as Assistant Regional Transport Officer in the 394 year 1976 in which year the Special Rules were framed.
In the year 1981 the appellant was promoted as Regional Trans port Officer.
Some of the General Rules of 1977 were amended in the year 1982 and Sub Rule 2 of Rule 3 was inserted in the said Rules.
In the year 1989 the second respondent was promoted as Deputy Commissioner of Transport on seniority cure merit basis alone as purported to have been provided in new Rule 3(2) of General Rules.
Being aggrieved by the same the appellant filed an Application No. 3155/89 before the Karnataka Administrative Tribunal questioning the promotion of second respondent on the ground that the promotion to the post of Deputy Commissioner of Transport should be by selec tion from the cadre of Regional Transport Officers and not merely on seniority cum merit basis.
His application was dismissed by the Tribunal holding that Rule 3(2) of General Rules which was introduced later overrides the earlier Special Rules.
It is this order which is questioned in this appeal.
Shri P.P. Rao, learned counsel appearing for the appel lant contended that the Special Rules are exclusively meant to govern the recruitment and promotion of officers of various cadres of the Motor Vehicle Department and the General Rules which generally regulate the recruitment of all State Civil Services broadly even though later in point of time cannot abrogate the Special Rules and that they are not meant to do so since the Special Rules also are very much in force inasmuch as they are not superseded.
Shri P. Chidambaram, learned counsel for the State of Karnataka contended that the non obstante clause in Rule 3(2) of the General Rules which was introduced later clearly indicate the intention of he Legislature to supersede the Special Rules and promotions from the cadre of Regional Transport Officer to that of Deputy Commissioner of Transport could only be on the basis of seniority cam merit and not by election.
From the rival contentions it emerges that the real question involved is one of construction of non ob stante clause in Rule 3(2) and its fleet on the Special Rules providing for promotion to the post of Deputy Commis sioner of Transport by selection from the cadre of Regional Transport Officers.
We shall now refer to the relevant Special and General Rules.
The special Rules were framed in exercise of the powers conferred by the proviso to Article 309 of the Con stitution of India in the year 1976.
The special Rules of recruitment for the category of post of Deputy Commissioner of Transport reads thus: 395 Category of Method of Minimum posts recruitment Qualification 1. 2. 3.
Deputy Transport By promotion by Must have put in not Commissioner selection from the less than five years of cadre of Regional service in cadre of Transport Officers Regional Transport Officers.
" It can be seen that this part of Special Rules clearly provides for promotion to the post of Deputy Commissioner of Transport by selection from the cadre of Regional Transport Officers who have put in not less than five years of serv ice.
The General Rules were framed in the year 1977 and Rule 3 reads as under: "Method of recruitment (1) Except as otherwise provided in these rules or any other rules specially made in this behalf, recruitment to any service or post shall be made by direct recruitment which may be either by competitive examination or by selection, or by promotion which may be either by selection or on the basis of seniority cure merit.
The methods of recruitment and qualifications shall be as specified in the rules of recruitment special ly made in that behalf, ' provided that in respect of direct recruitment to any service or post when the method of recruitment is not specified in the rules of recruitment specially made, the method of recruitment be by selection after an interview by the Commission, the Advisory of Selection Committee or the Appointing Authori ty as the case may be.
Provided further that no person shall be eligible for promotion unless he has satisfac torily completed the period of probation or officiation, as the case may be, in the post held by him.
(2) Notwithstanding anything contained in these rules or in the rules of recruitment specially made in respect of any service or (a) the promotion to the post of Head of Department or the 396 post of an Additional Head of Department, if it is in a grade equivalent to that of the Head of Department concerned, shall be by selection; Provided that for the purpose of promotion by selection, the number of persons to be consid ered shall be such number of persons eligible for promotion in the order of seniority, as is equal to five times the number of vacancies to be filled.
(b) the promotion to all other posts shall be on the basis of seniority cam merit." (Emphasis supplied) It may be noted that Sub Rule 3(2) with which we are mainly concerned was inserted in the year 1982.
Shri Chidam baram strongly relying on the non obstante clause in Rule 3(2) with which this Sub Rule begins, contended that this general rule dearly supersedes the special law and there fore, according to him, the Tribunal was right in holding that the promotion to the post of Deputy Commissioner of Transport could be only on the basis of seniority cum merit.
It is true that a simple reading of Rule 3(2) appears to lay down that notwithstanding anything contained in the General Rules or in the Special Rules, the promotion to the post of a Head or Additional Head of a Department only shall be by selection and that the promotion to all other posts shall be on the basis Of seniority cum merit.
This clause (b) of Sub Rule (2) is in general terms and as already noted the General Rules indicate that they regulate general recruit ment to all the Karnataka State Civil Services broadly.
It is not in dispute that just like the Special Rules providing for recruitment of the Transport Department there are such special rules in respect of many other departments also.
It is therefore clear that while General Rules broadly indicate that they regulate general recruitment including promotion to all the State Civil Services but at the same time each Department has its own Special Rules of recruitment and they are co existing.
Such Special Rules of recruitment for the Motor Vehicles Department are not repealed by any provision of the General Rules which are later in point of time.
As a matter of fact Rule 21 which provides for repeal does not in any manner indicate that any of the Special Rules stood repealed.
It is in this background that we have to consider the interpretation of non obstante clause in Rule 3(2) of the General Rules.
At this juncture it is necessary to note that some of the rules of the General Rules also provide for promotion by way of selection and that Special Rules providing for such promotion by selection should be adhered 397 to.
They are Rule 1(3)(a), the first part of Rule 3 and Rule 4 which are existing.
In Sub rule 1(3)(a) of the General Rules, we find the following "1(3)(a) These rules shall apply to recruit ment to all State Services and to all posts in connection with the affairs of the State of Karnataka and to members of all State Civil Services and to the holders of posts whether temporary or permanent except to the extent otherwise expressly provided (i) by or under any law for the time being in force; or XX XX (emphasis supplied) This is the opening rule of the General Rules and it abundantly makes it clear that the rest of the rules are subject to any other rules expressly providing for recruit ment.
Then in clause (1) of Rule (3) of the General Rules we find the words "Except as otherwise provided in these Rules or any other rules specially made in this behalf recruitment to any service or post shall be made by direct recruitment which may be either by competitive examination or by selec tion or by promotion which may be either by selection or on the basis of seniority cum merit.
The methods of recruit ment and qualification shall be as specified in the rule of recruitment specially made in that behalf.
" This part of General Rule 3 provides for recruitment by way of promotion either by selection or on the basis of seniority cum merit as specified in the said Rules of recruitment specially made.
Further the opening words of clause (1) "Except as otherwise provided in these Rules or any other Rules spe cially made" give a clue that the special rules would govern and regulate the method of recruitment including promotion by way of selection.
Further Rule 4 of the General Rules which lays down the procedure of appointment contains Sub Rule 2 which reads as under: "4.
Procedure of appointment subject to the provisions of these rules, appointment to any service or post shall be made xxxx xxxx xxxx (2) in the case of recruitment by promotion (a) if it is to a post to be filled by promo tion by, selection, by selection of a 398 person, on the basis of merit and suitability in all respects to discharges the duties of the post with due regard to seniority from among persons eligible for promotion.
(b) if it is to a post other than that re ferred to in sub clause (a) by selection of a person on the basis of seniority cure merit, that is, seniority subject to fitness of the candidate to discharge the duties of the post, from among persons eligible for promotion." (emphasis supplied) Though Rule 3(2) of the General Rules is inserted later, the above mentioned Rules remain undisturbed and they co exist.
They provide for recruitment and promotion by selection to certain categories of posts and for others on the basis of seniority cure merit.
From a combined reading of these provisions of General Rules it follows that re cruitment to any service by promotion as regulated by Special Rules can be by way of selection.
"Then the question is whether Rule 3(2) of the General Rules which is intro duced in 1982 particularly providing the method of promotion by selection to the post of heads and additional heads of departments has altogether dispensed with the promotion by selection to all other posts and whether, the non obstante clause in this rule, in these circumstances can be inter preted as to have the overriding effect as contended by the learned counsel for the respondents.
The non obstante clause is sometimes appended to a section or a rule in the begin ning with a view to give the enacting part of that section or rule in case of conflict, an overriding effect over the provisions or act mentioned in that clause.
Such a clause is usually used in the provision to indicate that the said provision should prevail despite anything to the contrary in the provision mentioned in such non obstante clause.
But it has to be noted at this stage that we are concerned with the enforceability of special law on the subject inspire of the general law.
In Maxwell on the Interpretation or Signites, Eleventh Edition at page 168, this principle of law is stated as under: "A general later law does not abrogate an earlier special one by mere implication.
Generalia specialibus non derogant, or, in other words," where there are general words in a later Act capable of reasonable and sensible application without extending them to subjects specially dealt with by earlier legislation, you are not to hold that earlier and special legislation indirectly repealed, altered, or derogated from merely by force of such 399 general words, without any indication of a particular intention to do so.
In such cases it is presumed to have only general cases in view, and not particular cases which have been already otherwise provided for by the special Act." In Maharaja Pratap Singh Bahadur vs Thakur Manmohan Dey and ors. ,AIR 1966 S.C. 1931, applying this principle it is held that general law does not abrogate earlier special law by mere implication.
In Eileen Louise Nicoole vs John Winter Nicolle, , Lord Phillimore observed as under: "It is a sound principle of all juris prudence that a prior particular law is not easily to be held to be abrogated by a poste rior law, expressed in general terms and by the apparent generality of its language ap plicable to and covering a number of cases, of which the particular law is but one.
This, as a matter of jurisprudence, as understood in England, has been laid down in a great number of cases, whether the prior law be an express statute, or be the underlying common or customary law of the country.
Where general words in a later Act are capable of reasonable and sensible application without extending them to subjects specially dealt with by earlier legislation, that earlier and special legislation is not to be held indi rectly repealed, altered, or derogated from merely by force of such general words, without any indication of a particular intention to do so.
" In Justiniane Augusto De Piedade Barreto vs Antonio Vicente Da Fortseca and others etc.; , , this Court observed that A law which is essentially general in nature may contain special provisions on certain matters and in respect of these matters it would be classified as a special law.
Therefore unless the special law is abrogated by express repeal or by making provisions which arc wholly inconsistent with it, the special law cannot be held to have been abrogated by mere implication.
I have already noted that even in the General Rules the promotion by selection is provided for and if there are any special rules in that regard they are not abrogated except by an express repeal.
I shall now examine whether the interpretation of non obstante clause in Rule 3(2) of the General Rules as given by the Tribunal is warranted.
The Tribunal has held that the non obstante clause which was 400 introduced in the General Rules clearly indicates the inten tion to supersede the special law.
The Tribunal has also noted even a later general law provision can override earli er special law if it clearly indicates the intention to supersede the special law.
As a proposition of law one cannot dispute this part of the finding but I am not able to agree with the finding of the Tribunal that the non obstante clause in Rule 3(2) clearly abrogates earlier special law.
This very question was considered by Karnataka High Court in Muniswamy vs Superintendent of Police, ILR 1986 Karnataka 344 (Vol. 36).
In that case also the same General Rules and particularly Rule 3(2) inserted later came up for consideration.
The Special Rules were that of Karnataka State Police State Recruitment Rules, 1967.
The Director General of Police issued a circular for the purpose of recruitment of Head Constables on purely seniority cum merit basis.
It was contended that the posts of the Head Consta bles have to be filled up by promotion by selection as provided in the Special Rules and Rule 3(2) of the General Rules cannot have an overriding effect inspire of a non obstante clause.
The Division Bench of the Karnataka High Court held that Sub rule (2) of Rule (3) which is an amend ment to the General Rules cannot be treated as an amendment to the Special Police Rules and that Rule 3(2) cannot be read as amending all other special rules of recruitment of all other department of Government in general.
It also further observed that this amendment to the General Rules must be read as subordinate to the application of Rules declared by Rule 1(3) of the Rules and cannot be read as enlarging the scope.
This judgment rendered by the High Court in the year 1986 has become final.
The fact that the State did not appeal or repeal the Special Rules suitably in spite of the decision clinchingly shows that it accepted this position.
In Aswini Kumar Ghosh and Another vs Arabinda Bose and Another, ; , it was observed as under: "It should first be ascertained what the enacting part of the section provides on a fair construction of the words used according to their natural and ordinary meaning, and the non obstante clause is to be understood as operating to set aside as no longer valid anything contained in relevant existing laws which is inconsistent with the new enactment.
" It was further held that: 401 "Nor can we read the non obstante clause as specifically repealing only the particular provisions which the learned Judges below have been at pains to pick out from the Bar Coun cils Act and the Original Side Rules of the Calcutta, and Bombay High Courts.
If, as we have pointed out, the enacting part of section 2 covers all Advocates of the Supreme Court, the non obstante clause can reasonably be read as overriding "anything contained" in any relevant existing law which is inconsistent with the new enactment, although the draftsman appears to have had primarily in his mind a particular type of law as conflicting with the new Act.
The enacting part of a statute must, where it is clear, be taken to control the non obstante clause where both cannot be read harmoniously; for, even apart from such clause, a later law abrogates earlier laws clearly inconsistent with it.
Posteriors leges priores contrarias abrogant (Broomo 's Legal Maxims, 10th Edn., p.347)." (emphasis supplied) In The Dominion of India (Now the Union of India) and another vs Shribai A. Irani and another; , , it was observed as under: "While recognising the force of this argument it is however necessary to observe that al though ordinarily there should be a close approximation between the non obstante clause and the operative part of the section, the non obstante clause need not necessarily and always be co extensive with the operative part, so as to have the effect of cutting down the clear terms of an enactment.
If the words of the enactment are clear and are capable of only one interpretation on a plain and gram matical construction of the words thereof a non obstante clause cannot cut down the construction and restrict the scope of its operation.
In such cases the non obstante clause has to be read as clarifying the whole position and must be understood to have been incorporated in the enactment by the Legisla ture by way of abundant caution and not by way of limiting the ambit and scope of the opera tive part of the enactment".
(emphasis supplied) In Union of India and Another.
vs G.M. Kokil and 0 hers.
, it was observed as under: "It is well known that a non obstante clause is a legislative device which is usually employed to give overriding effect to certain provisions over some contrary provisions that may be found either in the same enactment or some other enactment, that is to say, to avoid the operation and effect of all contrary provisions.
" In Chandavarkar Sita Ratna Rao vs Ashalata section Guram, [ ; , the scope of non obstante clause is ex plained in the following words: "A clause beginning with the expression "notwithstanding anything contained in this Act or in some particular provision in the Act or in some particular Act or in any law for the time being in force, or in any contract" is more often than not appended to a section in the beginning with a view to give the enacting part of the section in case of con flict an overriding effect over the provision of the Act or the contract mentioned in the non obstante clause.
It is equivalent to saying that in spite of the provision of the Act or any other Act mentioned in the non obstante clause or any contract or document mentioned the enactment following it will have its full operation or that the provisions embraced in the non obstante clause would not be an impediment for an operation of the enactment.
" On a conspectus of the above authorities it emerges that the non obstante clause is appended to a provision with a view to give the enacting part of the provision an overrid ing effect in case of a conflict.
But the non obstante clause need not necessarily and always be co extensive with the operative part so as to have the effect of cutting down the clear terms of an enactment and if the words of the enactment are clear and are capable of a clear interpreta tion on a plain and grammatical construction of the words the non obstante clause cannot cut down the construction and restrict the scope of its operation.
In Such cases the non obstante clause has to be read as clarifying the whole position and must be understood to have been incorporated in the enactment by the Legislature by way of abundant caution and not by way of limiting the ambit and scope of the Spe cial Rules.
Further, the influence of a non obstante clause has to be considered on the basis of the context also in which it is used.
In State of West Bengal vs Union of India, [1964] 1 SCR 371, it is observed as under: "The Court must ascertain the intention of the legislature by 403 directing its attention not merely to the clauses to be construed but to the entire statute; it must compare the clause with the other parts of the law and the setting in which the clause to be interpreted occurs.
" It is also well settled that the Court should examine every word of a statute in its context and to use context in its widest sense.
In Reserve Bank of India etc.
vs Peerless General Finance and Investment Co. Ltd. & Ors. ; , it is observed that "That interpretation is best which makes the textual interpretation match the contextual".
In this case, Chinnapa Reddy, J. noting the importance of the context in which every word is used in the matter of inter pretation of statutes held thus: Interpretation must depend on the text and the context.
They are the bases of interpretation.
One may well say if the text is the texture, context is what gives the colour.
Neither can be ignored.
Both are important.
That interpretation is best which makes the textual interpretation match the contextual.
A statute is best interpreted when we know why it was enacted.
With this knowl edge, the statute must be read, first as a whole and then section by section, clause by clause, phrase by phrase and word by word.
If a statute is looked at, in the context of its enactment, with the glasses of the statute maker, provided by such context, its scheme, the sections, clauses, phrases and words may take colour and appear different than when the statute is looked at without the glasses provided by the context.
With these glasses we must look at the Act as a whole and discover what each section, each clause, each phrase and each word is meant and designed to say as to fit into the scheme of the entire Act.
No part of a statute and no word of a statute can be construed in isolation.
Statutes have to be construed so that every word has a place and everything is in its place".
If we examine the scope of Rule 3(2) particularly along with other General Rules, the context in which Rule 3(2) is made is very clear.
It is not enacted to supersede the Special Rules.
As already noted, there should be a clear inconsistency between the two enactments before giving an overriding effect to the non obstante clause but when the scope of the provisions of an earlier enactment is clear the same cannot be cut down by resort to non obstante clause.
In the instant case we have noticed that even the General Rules of which Rule 404 3(2) forms a part provide for promotion by selection.
As a matter of fact Rules 1(3)(a) and 3(1) and 4 also provide for the enforceability of the Special Rules.
The very Rule 3 of the General Rules which provides for recruitment also pro vides for promotion by selection and further lays down that the methods of recruitment shall be as specified in the Special Rules, if any.
In this background if we examine the General Rules it becomes dear that the object of these Rules only is to provide broadly for recruitment to services of all the departments and they are framed generally to cover situations that are not covered by the Special Rules of any particular department.
In such a situation both the Rules including Rule 1(3)(a), 3(1)and 4 of general rules should be read together.
If so read it becomes plain that there is no inconsistency and that amendment by inserting Rule 3(2) is only an amendment to the General Rules and it cannot be interpreted as to supersede the Special Rules.
The Amendment also must be read as being subject to Rules 1(3)(a), 3(1) and 4(2) of the General Rules themselves.
The amendment cannot be read as abrogating all other Special Rules in respect of all departments.
In a given case where there are no Special Rules then naturally the General Rules would be applicable.
Just because there is a non obstante clause, in Rule 3(2) it cannot be interpreted that the said amendment to the General Rules though later in point of time would abrogate the special rule the scope of which is very clear and which co exists particularly when no patent conflict or inconsistency can be spelt out.
As already noted Rules 1(3)(a), 3(1) and 4 of the General Rules themselves provide for promotion by selection and for enforceability of the Special Rules in that regard.
Therefore there is no patent conflict or inconsistency at all between the General and the Special Rules.
Shri P. Chidambaram, in this context, however, submit ted that the intention of the Legislature is to do away with promotion by selection and instead of amending every special rule, the General Rule in the form of Rule 3(2) is inserted and therefore by virtue of non obstante clause all other special rules governing the recruitment to all departments stand abrogated.
I am unable to agree.
If such was the intention of the amendment then I see no reason as to why even in the General Rules as noted above the promotion by selection is recognised and provided for and these Rules remain unaffected.
This is also clear from the fact that the Government did not even appeal against the High Court deci sion rendered in Muniswamy 's case.
Shri P. Chidambaram, however, further submitted that a plain reading of Rule 3(2) which is later in point of time would clearly indicate that 405 the Special Rule providing for promotion by selection is repealed at least by implication.
There is no doubt that a later statute may repeal an earlier one either expressly or by implication.
In the instant case we have already noted that there is no express repeal of the Special Rule provid ing for promotion by selection.
The Courts have not favoured such repeal by implication.
On the other hand it is indicat ed by the courts that if earlier and later statutes can reasonably be construed in such a way that both can be .
given effect to, the same must be done.
In Re Chance Farewell, J. observed that "If it is possible it is my duty so to read the section . . as not to effect an implied repeal of the earlier Act".
In Kunter vs Phi/lips it is held that: "It is only when the provisions of a later enactment are so inconsistent with or repugnant to the provisions of an earlier one then only the two cannot stand together and the earlier stands abrogated by the later".
In Municipal Council Palai vs T.J. Joseph, ; , this Court has observed that there is a presumption against a repeal by implication; and the reason of this rule is based on the theory that the Legislature while enacting a law has a complete knowledge of the existing laws on the same subject matter and therefore, when it does not provide a repealing provision, it gives out an intention not to repeal the existing legislation.
It is further observed that such a presumption can be rebutted and repeal by necessary implication can be inferred only when the provisions of the later Act are so inconsist ent with or repugnant to the provisions of the earlier Act, that the two cannot stand together.
I am satisfied that there is no patent inconsistency between the General and Special Rules but on the other hand they co exist.
Therefore, there is no scope whatsoever to infer the repeal by implication as contended by the learned counsel Shri.
Chidambaram.
In the result the appeal is allowed and the Government is directed to consider the case of the appellant for promo tion to the post of Deputy Commissioner of Transport on the basis of promotion by selection, as provided in the Special Rules namely Karnataka General Service (Motor Vehicles Branch) (Recruitment) Rules, 1976.
In the circumstances of the case there will be no order as to costs.
YOGESHWAR DAYAL, J.
I have had the pleasure of going through the judgment prepared by my learned brother, Justice K.J. Reddy.
However, with due respect, 1 regret 1 have not been able to persuade myself to 406 agree to either his reasoning or the conclusion.
There is no quarrel that general principle is that special law prevails over general law but the learned Judge has failed to note that even there is an exception to such a general law, namely it is a later general law which prevails over the earlier special law if it clearly indicates the intention to supersede the special law.
This appeal by Special Leave has been filed by Sri R.S. Raghunath against the order of the Karnataka Administrative Tribunal, Bangalore, dated 9th August, 1990.
Before the Tribunal the appellant sought a declaration that the promo tion of Shri I.K. Devaiah, respondent No. 2 herein, was illegal and to direct the respondent No. 1 to consider the case of the appellant for promotion to the cadre of Deputy Transport Commissioner with all consequential benefits.
The Tribunal dismissed the application filed by the appellant.
The Tribunal was called upon to construe Rule 3(2) of the Karnataka Civil Services (General Recruitment) Rules, 1977 as amended in June, 1982 (hereinafter referred to as "the General Rules ')The Tribunal, after considering the general Rules took the view that the non obstante clause in Rule 3(2) of the General Rules which was introduced after framing of the Karnataka General Service (Motor Vehicles Branch) (Recruitment) Rules, 1976 (in short 'the Special Rules ') clearly indicates the intention to supersede the special law.
The Tribunal took the view that the general principle that the special law prevails over the general law has one exception and that is a later general law prevails over earlier special law if it clearly indicates the intention to supersede the special law.
The Tribunal held that a non obstante clause in Rule 3(2) of the General Rules, which was enacted after the Special Rules, clearly indicates the intention to supersede the special law.
The controversy rises in the following circumstances.
The Special Rules came into force on or about 10th December, 1976 on the publication of the same in the Karna taka Gazette (Extraordinary).
It consisted of only two Rules (I) and (II).
The first Rule gave the 'title and commencement ' and the second Rule dealt with the 'method of recruitment and minimum qualifications '.
There was a sched ule attached to Rule 1I.
In the schedule for the post speci fied in column 1 thereof the method of recruitment and minimum qualification were specified in corresponding en tries in columns 2 and 3 thereof.
It dealt with roughly 35 categories of posts.
I may mention that there was only one post, namely the post of Deputy Transport Commissioner for which the method of recruitment was by selection from the cadre of Regional Transport Officers who must have put in not less than five years of service in that cadre.
407 For all the rest of the posts in the schedule there was no provision for recruitment by way of promotion by selection.
For all the posts the method of recruitment was either by promotion or by deputation or by direct recruitment, or both by direct recruitment and promotion or by merely posting a suitable officer or by direct recruitment through employment exchange etc.
The only recruitment to the post of Deputy Transport Commissioner was by method of promotion by selec tion.
At the time when the aforesaid Special Rules were enact ed the Karnataka State Civil Services (General Recruitment ) Rules, 1957 (in short the General Rules of 1957 ) were in operation which were repelled by the General Rules.
So long as the General Rules of 1957 continued the Special Rules continued to govern the method of recruitment of the posts as specified in the schedule attached to the said Special Rules.
The General Rules of 1957, as stated earlier, were repelled by the General Rules which came into force on 25th June, 1977.
Rule 1(3)(a) of the General Rules provided thus: "1.(3) (a) These rules shall apply to re cruitment to all State Services and to all posts in connection with the affairs of the State of Karnataka and to members of all State Civil Services and to the holders of posts whether temporary or permanent except to the extent otherwise expressly provided (i) by or under any law for the time being in force; or (ii) in respect of any member of such service by a contract or agreement subsisting between such member and the State Government".
It is thus clear from the provision of Rule 1(3)(a) that the General Rules were applicable for all purposes to mem bers of all State Civil Services including the Motor Vehi cles Branch except to the extent otherwise expressly provid ed by the Special Rules.
The Special Rules, as mentioned earlier, dealt with the method of recruitment and qualifica tion for the Motor Vehicles Branch and so far as the post of Deputy Transport Commissioner was concerned, the method of recruitment was "promotion by selection".
The Special Rules dealt with nothing else.
It is also clear from Rule 1(3) of the General Rules itself as to what is the scope of its applicability.
It was applicable to all posts except to the extent otherwise expressly provided for by the Special Rules.
Rule 3(1) of the General 408 Rules, before the insertion of sub rule (2), reads as fol lows: "3.
Method of recruitment (1) Except as otherwise provided in these rules or any other rules specially made in this behalf, recruit ment to any service or post shall be made by direct recruitment which may be either by competitive examination or by selection, or by promotion which may be either by selection or on the basis of seniority cum merit.
The methods of recruitment and qualifications shall be as specified in the rules of recruit ment specially made in that behalf: Provided that in respect of direct recruitment to any service or post when the method of recruitment is not specified in the rules of recruitment specially made, the method of recruitment shall be by selection after an interview by the Commission, the Advisory or Selection Committee or the Appointing Authori ty as the case may be.
Provided further that no person shall be eligible for promotion unless he has satisfac torily completed the period of probation or officiation as the case may be, in the post held by him.
" The substantive part of Rule 3(1) described various methods of recruitment but stated that the methods of re cruitment and qualifications shall be as specified in the rules of recruitment specially made in that behalf.
The first proviso described that when in the Special Rules for recruitment no provision is made for direct recruitment, the method of recruitment shall be by selection after an inter view by the Commission, the Advisory or Selection Committee to the Appointing Authority, as the case may be.
The second proviso to Rule 3(1) contemplated that no person shall be eligible for promotion unless he has satisfied three com pleted years of probation or officiation, as the case may be, in the post held by him.
The second proviso is by way of abundant caution in view of the Karnataka Civil Services (Probation) Rules, 1977 (hereinafter referred to as 'the Probation Rules ') because of Probation Rules contemplated that the period of probation shall be as may be provided for in the rules of recruitment specially made for any service or post, which shall not be less than two years '.
The Proba tion Rules also contemplated declaration of satisfactory completion of probation at the end of the prescribed period of probation as extended or reduced by the appointing au thority.
It may be useful to note that Rule 19 of the Gener al Rules also dealt with probation and appointments by promotion.
It is clear from reading of Rules 1, 2 and 409 3, as originally enacted, of the General Rules that so far as the Special Rules expressly provided to any particular branch of the State Service that was to prevail over the General Rules.
Rule 3A, as amended, provided for qualifica tion in respect of ex servicemen, irrespective of the provi sions of the Special Rules.
Rule 4 provided the procedure of appointment.
It also provided that if the appointment is by way of selection, how a selection has to be conducted and if the recruitment is by way of promotion, how it has to be done.
Rule 5 provided for disqualification for appointment.
Rule 6 provided the age limit for appointment.
Rule 8 pro vided for reservation of appointments for scheduled castes, scheduled tribes, backward tribes etc.
Rule 9 contained provision for ex servicemen and physically handicapped notwithstanding anything contained in the Special Rules.
Rule 10 contemplated conditions relating to suitability and certificates of character.
Rule 11 provided for procedure how the applications have to be made by the Government servants for recruitments.
Rule 16 provided for relaxation notwithstanding the provisions contained in the General Rules or the Special Rules.
Rule 16 A provided for appoint ment by transfer.
Rule 17 dealt with appointment by direct recruitment or by promotion in certain cases notwithstanding anything contained in the General or Special Rules.
All these Rules arc applicable to all the posts except to the extent as contemplated by Rule(3) of the General Rules.
This was the position at the time of enactment of General Rules in 1977.
appears that Rule 3 of the General Rules was amended and subrule (2) was added to Rule 3.
Rule 3(2) of the Gener al Rules, so added in June, 1982, reads thus: "3(2).
Notwithstanding anything contained in these rules or in the rules of recruitment specially made in respect of any service or post (a) the promotion to the post of Head of Department of the post of an Additional Head of Department, if it is in a grade equivalent to that of the Head of Department concerned, shall be by selection: Provided that for the purpose of promotion by selection, the number of persons to be consid ered shall be such number of persons eligible for promotion in the order of seniority, as is equal to five times the number of vacancies to be filled.
410 (b) the promotion to all other posts shah be on the basis of seniority cum merit".
We are really concerned with the scope of Rule 3(2) of the General Rules for proper decision of this case.
Both the General Rules and the Special Rules have been framed by the Government of Karnataka in exercise of powers under Article 309 of the Constitution of India.
It is clear from Rule 1(3)(a) of the General Rules that the General Rules apply to recruitment to all State Services and to all posts in connection with the affairs of the State.
A perusal of different rules in the General Rules makes it clear that the general provisions which apply to recruitment to all posts under the Government are specified in those Rules instead of repeating them in each and every Special Rules of recruitment relating to different depart ments.
For example, provisions relating to age limit for recruitment, disqualification for recruitment, joining time etc.
should find place in Special Rules and normally they should be uniform for all categories of posts.
Instead of repeating them in all Special Rules of each department they have been put in one set of rules known as the General Rules.
It would be impossible to limit the application of the General Rules only for recruitment to posts for which no Special Rules have been made.
If that was so, what arc the provisions relating to disqualification, age limit, joining time etc.
for posts for which Special Rules governing of recruitment have been made ? There are no other rules gov erning the subject except the General Rules.
By the wording of Rule 3(2) of the General Rules it is clear that the Government took conscious and deliberate policy decision and gave a mandate to make only posts of Head of Departments, Additional Head of Departments as selection posts and all other posts on promotion will be filled by the criterion of "seniority cum merit '.
To give effect to that policy decision instead of amending every Special Rules of recruitment relating to different State Civil Services, the Government made a provi sion in the General Rules by incorporating a non obstante clause stating that it would apply to all services and posts j notwithstanding the provisions in the General Rules or in the Special Rules of the State.
This aspect is absolutely clear by a mere reading of Rule 3(2) of the General Rules.
In the case of Maharaja Pratap Singh Bahadur vs Man Mohan Dev.
AIR 1966 SC 1931, the Supreme Court approved the following quotation from Maxwell on Interpretation of Stat ute:/ 411 "A general later law does not abrogate an earlier special one by mere implication.
Generalia specialibus non derogant, or, in other words, "where there are general words in a later Act capable of reasonable and sensible application without extending them to subjects specially dealt.
with by earlier legislation, you are not to hold that earlier and special legislation indirectly repealed, altered, or derogated from merely by force of such general words, without any indication of a particular intention to do so.
" In such cases it is presumed to have only general cases in view, and not particular cases which have been already otherwise provided for by the special Act? ' It is stated therein that for the general principle that the special law prevails over general law there is one exception and that is a later general law prevails over earlier special law if it clearly indicates the intention to supersede the special law.
The non obstante clause intro duced by amending Rule 3 of the General Rules by adding Rule 3(2) which was enacted after the Special Rules indicates the clear intention to supersede the Special Law to the extent that for the posts which arc not Head of the Departments or Additional Head of Departments the promotion, if provided for by way of selection, would mean on the basis of seniori ty cum merit and not on the basis of merit only.
As I have noticed earlier if we look at the Special Law it contained various methods of recruitment to about 35 posts mentioned in the Schedule annexed thereto but there is only one post for which the promotion was proposed by selec tion.
Surely it would have been flimsy way of drafting if one particular clause of a particular Special Law was sought to be individually repelled by enacting a repealing clause for that purpose.
To get over that the non obstante clause is introduced later on by the same authority which enacted both the General and Special Laws to give its latest man date.
The latest mandate cannot be ignored.
Rule 1(3) of the General Rules which accepted the ap plicability of Special Rules is itself a part of General Rules and the non obstante clause is not merely to what is mentioned to the contrary in the Special Rules but it is also notwithstanding anything contained in the General Rules itself.
In the present case the respondent No. 2 herein was promoted after the amendment of Rule 3 of the General Rules and there is no dispute about his recruitment by way of promotion on the basis of seniority cummerit and that the earlier Special Rules which contemplated the promotion by selection were not followed in view of the latest intention clearly given 412 by a positive mandate.
The learned counsel for the appellant strongly placed reliance on the decision of the Karnataka High Court in the case of Muniswamy vs Superintendent of Police, dated 18th July, 1986 (Annexure 'F ' pages 66 to 108 of the paper book).
That decision dealt with the General Rules and the Special Rules in relation to Karnataka State Police Service (Re cruitment) Rules,.
We have to construe the meaning of Clause 3(2) for ascertaining the object and purpose which the legislature had in view in enacting the said provision and the context thereof.
It appears to me that the Special Rules for re cruitment to some of the services had been in force provid ing a particular method of either selection or promotion.
It appears that because of the experience the Government had of its working, it was thought proper to change this policy, namely instead of providing selection on the basis of merit to every post, in certain posts, it thought it fit to give due weightage to seniority and merit instead of having the 'best '.
The selection of 'best ' very often has an ele ment of chance which may not be very conducive to proper climate and harmony in service.
It appears that because of that experience the rule making authority thought it fit that the process of promotion by selection should be con fined only to top posts and for rest of the posts the method should be promotion by adopting the principle of seniority cum merit.
I find that there is a clear mandate of latest intention of the rule making authority contained in Rule 3(2) of the General Rules and this must be respected by the Court.
The Courts are not expert body in knowing what is the best method for selection and to assume that the purest method must be found by the Court and implemented even by violation of the Rule, will not be sound rule of construc tion of statute.
I am afraid I have not been able to persuade myself to agree with the reasoning of the learned Division Bench in the aforesaid case of Muniswamy vs Superintendent of Police.
The learned Division Bench had restricted the scope of Rule 3(2) to only such officers whose "service or post is not regulated by any Special Rules.
then and then only the posts of Head of Departments of Government as defined in 1982 Rules had to be filled by promotion by selection and all other posts in such Departments have to be filled by promotion on seniority cure merit basis".
The Division Bench also examined the merits and demerits of various forms of selection at great length and took the view in paragraph 41 of the judgment as under: "We were shocked and surprised when the learned Govern 413 ment Advocate submitted before us that he was supporting the stand urged by Sri Bhat and the circular issued by the Director under instruc tions from Government.
We have no doubt that the Government had not really reflected on the untenable stand it was urging before this Court which, if accepted would have meant death knell to .efficiency in the services of the State.
" I am surprised with this type of approach.
It is not the function of the Court to examine the efficacy of one form of selection or the other.
It is for the recruiting authority, namely the Government to examine it and enforce it in the way it like.
To use such an expression "death knell to efficiency" really gives the mind of the Court that it wants to enforce the particular policy even though the latest mandate is for change of the policy in the name of efficien cy.
This type of reasoning really ignores the specific provision of the non obstante clause applying to even "in the rules of recruitment specially made in respect of any service or post".
In Ajay Kumar Banerjee and others vs Union of India and others, at page 153 Sabyasachi Mukharji, J. (as His Lordship then was) observed thus: "As mentioned herein before if the scheme was held to be valid, then the question what is the general law and what is the special law and which law in case of conflict would pre vail would have arisen and that would have necessitated the application of the principle "Generalia specialibus non derogant".
The general rule to be followed in ease of con flict between the two statutes is that the later abrogates the earlier one.
In other words, a prior special law would yield to a later general law, if either of the two fol lowing conditions is satisfied.
(i) The two are inconsistent with each other.
(ii) There is some express reference in the later to the earlier enactment.
If either of these two conditions is ful filled, the later law, even though general, would prevail".
It is thus clear that both the conditions mentioned by Mukharji, J., 414 speaking for the Bench are fulfilled.
In this case whether the promotion has to be by the method of selection or sim plicitor promotion on the basis of seniority cum merit, is the contest.
The Special Law contemplated promotion by selection whereas the later law contemplates promotion by the method of seniority cum merit.
The two are inconsistent with each other.
This fulfills the first condition.
So far as the second condition is concerned there is an express reference in the later general law "in the earlier enact ment".
But as per the proposition of Mukharji, J., if either of the two conditions are fulfilled the later law, even though general, would prevail.
Surely the provision of recruitment contemplated in the Special Police Rules is inconsistent with the latest general provision applicable to all posts in Karnataka.
In the present case the later gener al law prevails over the earlier special law because the non obstante clause specifically mentions its efficacy inspite of the Special Law.
It was for the legislature to choose the method of indicate its intention.
The Courts should not defeat their intention by overlooking it.
The respondent No. 2 has been selected for promotion by follow ing the General Rules amending the Special Rules and I find it was strictly in accordance with law.
I am, therefore, of the considered view that the appeal deserves to be dismissed with parties to bear their own costs.
G.N. Appeal allowed. [/INST] The appellant was initially appointed as Inspector of Motor Vehicles and was promoted as Assistant Regional Trans port Officer In 1976, when the Karnataka General Service (Motor Vehicles Branch) (Recruitment) Rules, 1976 were in force.
Karnataka Civil Services (General Recruitment) Rules, 1977 came into being thereafter.
The appellant was promoted as Regional Transport Officer in 1981.
The General Rules of 1977 were amended in 1982 and sub rule (2) of Rule 3 was inserted, and as per the new Rule 3(2) the second Respondent was promoted as Deputy Commissioner of Transport on seniority cum merit basis.
The appellant filed an Application before the State Administrative Tribunal questioning the promotion of the second Respondent on the ground that promotion to the post of Deputy Commissioner of Transport should have been made by selection and not on seniority cure merit basis.
He also sought a declaration that the promotion of Respondent No. 2 was illegal and Respondent No.1 be directed to consider the case of the appellant for promotion to the post of Deputy Transport Commissioner with all consequential benefits.
The Tribunal dismissed the application on 388 the ground that Rule 3(2) of the General Rules, which was introduced later, had the effect of overriding the earlier special Rules, and hence the promotion made as per Rule 3(2) of the General Rule was valid.
Aggrieved by the Tribunal 's order, the appellant pre ferred the present appeal, by special leave.
On behalf of the appellant it was contended that the Special Rules were exclusively meant to govern the recruit ment and promotion of officers of various cadres of the Motor Vehicles Department and the General Rules which gener ally regulate the recruitment of all State Civil Services broadly even though later in point of time cannot abrogate the Special Rules and that they were not meant to be so since the Special Rules were not superseded and were very much in force.
The Respondent State contended that the non obstante clause in Rule 3(2) of the General Rules which was intro duced later clearly indicate the intention of the Legisla ture to supersede the Special Rules and promotions from the cadre of Regional Transport Officer to that of Deputy Com missioner of Transport could only be on the basis of senior ity cum merit and not by selection.
Allowing the appeal, this Court, HELD: (By the Court) Sub rule (2) of Rule 3 of Karnataka Civil Services (General Recruitment) Rules, 1977 (General Rules) has the overriding effect over the Karnataka General Service (Motor Vehicles Branch) (Recruitment) Rules, 1976 (Special Rules).
[400 D,E] Per Majority (By Reddy, J. Kuldip Singh, .1.
concurring) 1.
Examining the scope of Rule 3(2) particularly along with other General Rules, the context in which Rule 3(2) is made is very clear.
It is not enacted to supersede the Special Rules.
[403 G] 2.1 The non obstante clause is appended to a provision with a view to give the enacting part of the provision an overriding effect in case of a conflict.
But the non ob stante clause need not necessarily and always be co exten sive with the operative part so as to have the effect of cutting down 389 the clear terms of an enactment and if the words of the enactment are clear and are capable of a clear interpreta tion on a plain and grammatical construction of the words the non obstante clause cannot cut down the construction and restrict the scope of its operation.
In such cases the non obstante clause has to be read as clarifying the whole position and must be understood to have been incorporated in the enactment by the Legislature by way of abundant caution and not by way of limiting the ambit and scope of the Spe cial Rules.
Courts should examine every word of a statute in its context and use it in its widest sense.
[402 E G; 403 B] 2.2 There should be a clear inconsistency between the two enactments before giving an overriding effect to the non obstante clause but when the scope of the provisions of an earlier enactment is clear the same cannot be cut down by resort to non obstante clause.
[403 G H] 23 Even the General Rules of which Rule 3(2) forms a part provide for promotion by selection.
As a matter of fact Rules 1(3)(a), 3(1) and 4 also provide for the enforceabili ty of the Special Rules.
The very Rule 3 of the General Rules which provides for recruitment also provides for promotion by selection and further lays down that the meth ods of recruitment shall be as specified in the Special Rules, if any.
The object of these Rules is to provide broadly for recruitment to services of all the departments and they are framed generally to cover situations that are not covered by the Special Rules of any particular depart ment.
In such a situation both the Rules including Rules 1(3)(a), 3(1) and 4 of General Rules should be read togeth er.
If so read it becomes plain that there is no inconsist ency and that amendment by inserting Rule 3(2) is only an amendment to the General Rules and it cannot be interpreted as to supersede the Special Rules.
The Amendment also must be read as being subject to Rules 1(3)(a), 3(1) and 4(2) of the General Rules themselves.
The amendment cannot be read as abrogating all other Special Rules in respect of all departments.
[403 H; 404 A D] 2.4 Where there are no special rules to naturally the General Rules would be applicable.
Just because there is a non obstante clause in Rule 3(2) it cannot be interpreted that the said ammendment to the General Rules though later in point of time would abrogate the special rule the scope of which is very clear and which co exists particularly when no patent conflict or inconsistency can be spelt out.
[404 D E] 390 Maharaja Pratap Singh Bahadur vs Thakur Manmohan Dey and Ors., AIR 1966 SC 1931; Justiniane Augusto De Piedade Barre to vs Antonic Vicente Da Fonseca and Others etc. ; , relied on.
Muniswamy vs Superintendent of Police, ILR 1986 Karnata ka 344, approved.
Eileen Louise Nicolle vs John Winter Nicolle, (1922) I AC 284; In Re Chance, ; Kunter vs Phillips, , referred to.
There is no doubt that a later statute may repeal an earlier one either expressly or by implication.
In the instant case there is no express repeal of the Special Rule providing for promotion by selection.
There is no patent inconsistency between the General and Special Rules but on the other hand they co exist.
Therefore, there is no scope whatsoever to infer the repeal by implication.
[405 B,F] Aswini Kumar Ghosh and Ant.
vs Arabinda Bose and Ant, ; ; The Dominion of India (Now the Union of India) and Anr.
vs Shrinbai A. Irani and Anr, ; ; Union of India andAnother vs G.M. Kokil and Ors. ; Chandavarkar Site Ratna Rao vs
Ashalata section Guram; , ; State of West Bengal vs Union of India, [1964] 1 SCR 371; Reserve Bank of India etc.
vs Peerless General Finance and Investment Co. Ltd. & Ors, ; ; Municipal Council Palai vs T.J. Joseph, ; , relied on.
Muniswamy vs Superintendent of Police, ILR 1986 Karnata ka 344, approved.
Maxwell on The Interpretation of Statutes, Eleventh Edition page 168, relied on.
The Government is directed to consider the case of the appellant for promotion to the post of Deputy Commis sioner of Transport on the basis of promotion by selection, as provided in the Special Rules namely Karnataka General Service (Motor Vehicles Branch) (Recruitment) Rules, 1976.
[405 F G] Per Yogeshwar Dayal, J. (dissenting): 1.
It is clear from Rule 1 (3)(a) of the General Rules that the General Rules apply to recruitment to all State Services and to all posts in connection with the affairs of the State.
A perusal of different rules in the General Rules makes it clear that the 391 general provisions which apply to recruitment to all posts under the Government are specified in those Rules instead of repeating them in each and every Special Rules of recruit ment relating to different departments.
It would be impossi ble to limit the application of the General Rules only for recruitment to posts for which no Special Rules have been made.
Thus Rule 1(3) of the General Rules which accepted the applicability of Special Rules is itself a part of General Rules and the non obstante clause is not merely to what is mentioned to the contrary in the Special Rules but it is also notwithstanding anything contained in the General Rules itself.
[410 B D; 411 G] 2.
By the wording of rule 3(2) of the General Rules it is clear that the Government took conscious and deliberate policy decision and gave a mandate to make only posts of Head of Departments, Additional Head of Departments as selection posts and all other posts on promotion will be filled by adopting the criterion of "seniority cum merit".
To give effect to that policy decision instead of amending every Special Rules of recruitment relating to different State Civil Services, the Government made a provision in the General Rules by incorporating a non obstante clause stat ing that it would apply to all services and posts not withstanding the provisions in the General Rules or in the Special Rules of the State.
[410 E G] 3.1 The selection of 'best ' very often has an element of chance which may not be very conducive to proper climate and harmony in service.
Probably because of that experience the rule making authority thought it fit that the process of promotion by selection should be confined only to top posts and for rest of the posts the method should be promotion by adopting the principle of seniority cure merit.
There is a clear mandate of latest intention of the rule making author ity contained in Rule 3(2) of the General Rules and this must be respected by the Court.
Court is not expert body in knowing what is the best method for selection and to assume that the purest method must be found by the Court and imple mented even by violation of the Rule, will not be sound rule of construction of statute.
[412 D F] 3.2 It is not the function of the Court to examine the efficacy of one form of selection or the other.
It is for the recruiting authority, namely, the Government to examine it and enforce it in the way it Likes.
[413 C] 392 3.3 In the present case the respondent No. 2 was promoted after the amendment of Rule 3 of the General Rules and there is no dispute about his recruitment by way of promotion on the basis of seniority cum merit and that the earlier Special Rules which contemplated the promotion by selection were not followed in view of the latest intention clearly given by a positive mandate.
[411 G H] 3.4 As laid down by this Court in Ajay Kumar Baner jee 's case a prior special law would yield to a later gener al law if it satisfies either of the two conditions viz., that the two are inconsistent with each other;, that there is some express reference in the later to the earlier enact ment.
In the instant case, the special law contemplated promotion by 'selection ' whereas the later law, viz., Rule 3(2) of the general law contemplated promotion by seniority cum merit.
The two are inconsistent with each other and if fulfills the first condition.
Since the non obstante clause in the later general law specifically men tions its efficacy inspite of the Special Law, the second condition is also fulfilled.
Thus, in this case, the later general law prevails over the earlier Special Law, having fulfilled not one but both the conditions.
[413 F H; 414 A B] 3.5 It was for the legislature to choose the method to indicate its intention.
The Courts should not defeat their intention by over looking it.
Respondent No. 2 has been selected for promotion by following the General Rules amend ing the Special Rules and it was strictly in accordance with law.
[414 C D] Ajay Kumar Banerjee and Ors.
vs Union of India and Ors., , relied on.
Maharaja Pratap Singh Bahadur vs Man Mohan Dev, AIR 1966 SC 1931; Muniswamv vs Superintendent of Police, ILR 1986 Karnataka 344, referred to. </s> |
<s>[INST] Summarize the following judgement: vil Appeal Nos. 1227 to 1230 of 1979.
From the Judgment and Order dated 24.11.1978 of the Gujarat High Court in Letters Patent Appeal Nos. 54, 52, 53, 55 of 1973.
B. Datta, J.P. Pathak and P.H. Parekh for the Appellants.
R.N. Sachthey, Bimal Roy Jad and Anip Sachthey for the Respondent.
The Judgment of the Court was delivered by KANIA, J.
These are the appeals by special leave from a common judgment of the Full Bench of the Gujarat High Court disposing of the Letters Patent Appeal Nos.
52 to 55 of 1973 and also Letters Patent Appeal No. 50 of 1973.
It is a common ground that the appellants are the tenants of certain lands which form part of the estate or wanta of a Taluqdar.
The question is whether the provisions of Section 6 of the Bombay Taluqdari Tenure Abolition Act, 1949, are applicable to the lands in question, and whether under the Bombay Taluqdari Tenure Abolition Act, 1949, which came into effect from 15th August, 1950, the said lands became vested in the State and all rights in the said land held by the Taluqdar became the property of the Government.
Under the provisions of Section 6 of the said Act, inter alia, all uncultivated lands excluding the land used for building and other non agricultural purposes, vest in the State.
Section 6 of the Bombay Taluqdari Tenure Abolition Act, 1949, runs as fol lows: "All public roads, lanes and paths, the bridges, ditches, dikes and fences on, or beside, the same.
the bed of the sea and of harbours, creeks below high water mark, and of rivers, streams, nailas, lakes, wells and tanks, and all canals, and water courses, and all standing and flowing water, all unbuilt village site lands, all waste lands and all uncultivated lands (excluding lands used for building or other non agricultural purposes), which are not situate within the limits of the wantas as belonging to a taluqdar in a taluq dari estate shall except in so far as any rights of any person other than the taluqdar may be established in and over the same and except as may otherwise be provided by any law for the time being in force, vest in and shall be deemed to be, with all rights in or over the same or appertaining thereto, the property of the Government and all rights held by a taluqdar in such property shall be deemed to have been extinguished and it shall be lawful for the Collector, subject to the 499 general or special orders of the Commis sioner, to dispose them of as he deems fit, subject always to the rights of way and of other rights of the public or of individuals legally subsisting.
Explanation: For the purposes of this section, land shall be deemed to be unculti vated, if it has not been cultivated for a continuous period of three years immediately before the date on which this Act comes into force.
" The question is whether for the purposes of this section the lands in question were uncultivated lands.
It is an admitted position that the lands were leased by the Taluqdar to the tenants.
There is also a clear and categorical find ing of facts that these lands had remained uncultivated for a period of 3 years immediately before the said Act came into force.
Prima facie it would appear that in view of the said explanation to section 6 the lands must be regarded as uncultivated lands for the purposes of section 6 of the said Act and must be deemed to be vested in Government.
Learned Counsel for the appellants, however, contended that as the lands had been put to cultivation earlier for some time even though not cultivated for continuous three years prior to vesting they cannot be regarded as uncultivated lands.
According to learned Counsel, if the land is capable of being cultivated, it cannot be treated as uncultivated land within the meaning of section 6.
He relied on a decision of this Court in State of Gujarat vs Gujarat Revenue Tribunal reported in [1980] 1 SCR page 233.
Our attention has been drawn to the observation made at page 239 of the said re port.
After setting out the provision of Section 6 it has been observed, as follows: "On a fair reading of the section, it would be evident that the vesting is in respect of properties which could be put to public use.
It leaves the private properties of the taluq dar untouched.
The legislative intent is manifested by clear enumeration of certain specific properties not situate within the wantas of a taluqdar.
It begins by specifying 'All public roads, lanes, paths, bridges etc. ' and ends up with 'all village site lands, all waste lands and all uncultivated lands ', and these being public properties situate in a taluqdar 's estate must necessarily vest in the Government because they are meant for public use.
In spite of vesting of such property in the Government, however, the conferral of the rights of an occupant on a taluqdar under section 5(1)(b) in respect of the lands in his actual possession, is saved.
Pausing there, it is fair to observe that the words in parenthesis 'excluding lands used for building or other non agricultural 500 purposes ', exemplify the intention of the legislature not to deprive a taluqdar of such land, even though such property is uncultivated land, due to its inherent charac ter as well as by reason of the Explana tion.
It is, therefore, evident that the determina tion of the question whether a particular category of property belonging to a taluqdar in a taluqdan estate is vested in the Govern ment or not, and the determination of the question whether the rights held by a taluqdar in such property shall be deemed to have been extinguished or not, will depend upon the category of that property.
The expression 'all waste lands ' has been joined by conjunctive 'and ' with the expression 'all uncultivated lands '.
They, therefore, indicate two distinct types of land.
If the legislature had intended that the aforesaid expression should indicate one class of lands, the expression rather would have been 'all waste and uncultivated lands ' as against the expression 'all waste lands and all uncultivated lands '.
Here we have, therefore, two distinct categories of proporties viz. (1) waste lands, and (2) uncultivated lands.
The contention that the grass lands on hilly tracts which are incapa ble of cultivation were 'waste lands ' or 'uncultivated lands ' within the meaning of section 6 cannot be accepted .
" The said decision of this Court and the observation relied on by the learned Counsel do not come in the aid of the contention made by the learned Counsel for the appel lants.
Even according to the appellants themselves, the lands were under cultivation for some time prior to the coming into force of the said Act and hence, it could not be said that they were uncultivable lands.
They were in fact, lands which were capable of cultivation and as a matter of fact subjected to cultivation for some time but, which as found by the High Court were not cultivated for continuous period of three years prior to the coming into force of the said Act.
In these circumstances, the said lands are clearly covered by the definition of the expression "uncultivated land" as set out in the Explanation to section 6.
As the said lands were uncultivated lands within the meaning of section 6, they must be deemed to have been vested in the Government and the contention of the appellants to the contrary must be rejected.
In the result, there is no merit in the appeal and it is dismissed.
There will, however, be no order as to costs.
T.N.A Appeals dismissed. [/INST] The appellants were tenants of certain lands which formed part of a Taluqdari Estate.
These lands though cul tivable were not cultivated for a continuous period of 3 years prior to the coming into Iorce of the Bombay Taluqdari Tenure Abolition Act, 1949.
In the tenant 's appeal to this Court, on the question whether these lands were uncultivated lands within the meaning of Section 6 of the 1949 Act and thus became vested in the State: Dismissing the appeals, this Court, HELD: 1.
The lands in question are clearly covered by the definition of the expression "uncultivated land" as set out in the Explanation to Section 6 of the Bombay Taluqdari Tenure Abolition Act, 1949.
[500 F].
1.1 Even according to the appellants themselves, the lands were under cultivation for some time prior to the coming into force of the said Act and hence it could not be said that they were uncultivable lands.
They were in fact lands which were capable of cultivation and as a matter of fact had been subjected to cultivation for some time but were not cultivated 1or continuous period of three years prior to the coming into force of the Act.
Accordingly the lands must be regarded as "uncultivated lands" for the purposes of Section 6 of the Act and must be deemed to be vested in the State Government.
[500 E F, 499 C].
State of Gujarat vs Gujarat Revenue Tribunal, [1980]1 SCR233, held inapplicable.
497 498 </s> |
<s>[INST] Summarize the following judgement: Appeal No. 4088 of 1991.
From the Judgment and Order dated 24.5.1990 of the Karnataka Administrative Tribunal, Bangalore in Application No. 887 of 1989 C/W. A. No. 2101/1989.
495 Naresh Kaushik, Mrs. Lalita Kaushik and Shankar Divate for the Appellants.
M. Veerappa, S.R. Bhatt and Naveen R. Nath for the Respond ents.
The Judgment of the Court was delivered by KASLIWAL, J.
Special leave granted.
Sri Ashok alias Somanna Gowda appellant No. 1 is a Bachelor of Engineering (Civil) having secured. first class with distinction getting 69.96% marks from Karnataka Univer sity.
Shri Rajendra appellant No. 2 is a Bachelor of Engi neering (Mech.) from Karnataka University and secured 66.40 marks in the qualifying examination.
The Govt.
of Karnataka by notification dated 4th April, 1985 invited applications for recruitment of Asstt.
Engineers (Civil) and (Mech.) for the Public Works Deptt.
The selections were to be made on the basis of marks obtained in the qualifying examination and marks secured in the interview, in accordance with the K.S.C.S. (Direct Recruitment By Selection) Rules, 1973 (hereinafter referred to as 'the Rules ').
According to these Rules total marks for qualifying examination were kept at 100 and 50 for interview.
Thus the marks allotted for inter view amounted to 33.3% of the total marks.
Applications were invited for 300 posts of Civil Engineers and 100 Mechanical Engineers initially and subsequently added additional posts of 150 Civil Engineers and 10 Mechanical Engineers thus in all 450 Civil Engineers and 110 Mechanical Engineers.
Both the appellants applied for the posts of their choices in the Public Works Department, Government of Karnataka.
Appellant No. 1 secured 29.50 marks out of 50 marks in the interview and 69.96 marks in the qualifying examination thus in all 99.46 marks out of 150.
The 2nd appellant obtained 24.83 marks in the interview and 66.40 marks in the qualifying examination thus in all 91.23 marks out of 150.
Both the appellants were not selected in merit as the last candidate selected for the above posts secured higher marks than the appellants.
The appellants filed a petition before the Karnataka Administrative.
Tribunal challenging the Rules on the ground that the percentage of marks for viva voce as 33.3 were excessive and in violation of the decisions of this Court.
The Tribunal by its order dated 24th May, 1990 dismissed the petitions and the appellants aggrieved against the aforesaid decision have approached this Court by grant of special leave.
It is not necessary to examine ' the matter in detail inasmuch as 50 marks for interview out of 150 are clearly in violation of the judgment of this Court in Ashok Kumar Yadav & Ors.
vs State of Haryana & Ors.
, [1988] Sup.
S.C.R., 657 and Mohinder Sain Garg vs State of Punjab & Ors., J .T.
On a direction given by this Court on 4th September, 1991 the record of the 496 Selection Committee was produced before this Court at the time of hearing.
From a perusal of the marks awarded to the selected candidates it is clear that a large number of candidates have been selected though they had secured much lesser marks than the appellants in the qualifying examina tion but had secured very high marks in the viva voce out of 50 marks kept for this purpose.
Thus it is an admitted position that if the marks for interview were kept even at 15% of the total marks and merit list is prepared according ly then both the appellants were bound to be selected and a large number of selected candidates would have gone much lower in the merit list than the appellants.
In view of the fact that the result of the impugned selections was declared in 1987 and the selected candidates have already joined the posts, we do not consider it just and proper to quash the selections on the above ground.
Further the selections were made according to the Rules of 1973 and this practice is being consistently followed for the last 17 years and there is no allegation of any malafides in the matter of the impugned selections.
However, the Rules are clearly in violation of the dictum laid down by this Court in the above referred cases and in case the marks for viva voce would have been kept say at 15% of the total marks, the appellants before us were bound to be selected on the basis of marks secured by them in interview, calculated on the basis of converting the same to 15% of the total marks.
We, therefore, allow the appeal and direct the respond ents to give appointment to the appellant Ashok alias Soman na Gowda on the post of Asstt.
Engineer (Civil) and appel lant Rajendra on the post of Asstt.
Engineer (Mech.) in Public Works Department within a period of two months of the communication of this order in case the appellants are found suitable in all other respects according to the Rules.
Learned counsel appearing on behalf of the State of Karnata ka pointed out that there are many other candidates who had secured much higher marks than the appellants in case the above criteria is applied for selection.
In view of the fact that appointments under the impugned Rules were made as back as in 1987 and only the present appellants had approached the Tribunal for relief, the case of other candidates cannot be considered as they never approached for redress within reasonable time.
We are thus inclined to grant relief only to the present appellants who were vigilant in making griev ance and approaching the Tribunal in time.
Learned counsel for the State also submitted that the State Government has already framed new rules, and as such we do not find it necessary to quash the Rules under which the present selec tions were made as they are no longer in existence.
No order as to costs.
G.N. Appeal allowed. [/INST] The Respondent State invited applications for recruit ment of Assistant Engineers (Civil) and (Mech.) for the Public Works Department.
According to the rules governing the recruitment, viz. Karnataka State Civil Services (Direct Recruitment by Selection) Rules, 1973 the marks obtained In the qualifying examination and the marks secured in the interview would be the basis for selection.
The total marks for qualifying examination was kept at 100 and 50 marks were kept for interview.
Thus the marks allotted for interview was 333% of the total marks.
Appellant No. 1 who applied for the post of Assistant Engineer (Civil) secured 29.50 marks out of 50 marks in the interview, his marks in the qualifying examination were 69.96, totalling in all 99.46 marks out of 150.
The second appellant, a candidate for the post of Assistant Engineer (Mech.) secured 24.83 marks in the interview and his marks in the qualifying examination being 66.40, he got 91.23 marks out of the total of 150 marks.
Both the appellants were not selected as they got less marks titan the last candidate selected, and they filed a petition before the State Administrative Tribunal challenging the rides on the ground that the percentage of marks for viva voce fixed at 333 was excessive.
The Tribunal having dismissed the peti tions, the appellants have preferred the present appeal, by special leave.
Allowing the appeal, this Court, HELD: 1. 50 marks for interview out of 150 are clearly in violation of the settled law on this point.
Some candi dates have been selected though 494 they had secured much lesser marks than the appellants in the qualifying examination but had secured very high marks in the viva voce out of 50 marks kept for this purpose.
If the marks for interview were kept even at 15% of the total marks and merit list was prepared accordingly then both the appellants would have been selected and a large number of selected candidates would have gone much lower in the merit list than the appellants.
[495 G, 496 A B] Ashok Kumar Yadav & Ors.
vs State of Haryana & Ors.
, [1988] Supp.
S.C.R. 657; Mohinder Sain Garg vs State of Punjab & Ors., J.T. , relied on.
Though the Karnataka State Civil Services (Direct Recruitment by Selection) Rules are clearly in violation of the dictum laid down by this Court, since the result of the selections was declared in 1987 and the selected candidates have already joined the posts, it would not be just and proper to quash the selections on the above ground.
Further the selections were made according to the Rules of 1973 and this practice is being consistently followed for the last 17 years and there Is no allegation of any malafides in the matter of selections.
[496 C D] 3.
The respondents are directed to give appointment to the two appellants on the post of Assistant Engineer (Civil) and Assistant Engineer (Mech.), respectively in Public Works Department within a period of two months in case the appel lants are found suitable In all other respects according to the Rules.
[496 E] 4.
Since the appointments under the Rules were made way back in 1987, the case of other candidates cannot be considered as they never approached for redress within reasonable time.
The relief is thus restricted only to the present appellants who were vigilant in making grievance and approaching the Tribunal in time.
[496 F G] </s> |
<s>[INST] Summarize the following judgement: No. 134 of 1958.
Writ Petition under Article 32 of the Constitution of India for the Enforcement of Fundamental Rights.
N. C. Chatterjee, K. P. Mukherjee, P. D. Himatsinghka and B. P. Maheshwari, for the petitioners.
M. C. Setalvad, Attorney General for India, B. Sen and R. H. Dhebar, for the respondent.
K. P. Khaitan, K. P. Mukherjee and B. P. Maheshwari, for Interveners 1 to 10.
G. section Pathak, K. P. Mukherjee and B. P. Maheshwari, for Interveners 11 to 13.
January 23.
The Judgment of the Court was delivered by , WANCHOO, J.
This petition under article 32 of the Constitution challenges the legality of the notification dated July 30, 1958, (hereinafter called the impugned notification), issued by the Government of India fixing the ex factory price per maund of sugar produced in Punjab, Uttar Pradesh and North Bihar.
It has been supported by two sets of interveners consisting of sugar factories in these areas who did not join the petition.
The case of the petitioners is that the (X of 1955).
(hereinafter called the Act), was passed by Parliament in 1955, for the control of the production, supply and distribution of, and trade and commerce in, certain commodities, which included sugar.
By section 3 of the Act, the Central Government was given the power, if it was of opinion that it was necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and 125 availability at fair prices, to provide by order for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.
Section 3(2) further provided inter alia for controlling the price at which any essential commodity might be bought or sold.
In exercise of these powers, the Central Government promulgated the Sugar (Control) Order, 1955, (hereinafter called the Order), on August 27, 1955.
Clause 5 of the Order gave power to the Central Government, by notification in the Official Gazette, to fix the price or the maximum price at which any sugar might be &old or delivered, and different prices might be fixed for different areas factories or different types or grades of sugar.
Such price or maximum price had to be fixed with due regard to various factors, with which we shall deal later.
On June 27, 1958, the Central Government promulgated the Sugar Export Promotion Ordinance, No. V of 1958, empowering it to appoint an export agency for carrying out the work of buying sugar in the Indian market and exporting the same to foreign markets and fixing the quantity of sugar for export.
The Central Government was also authorised by that Ordinance to fix quotas apportioning the quantity of sugar to be supplied by each factory for export and levy an additional excise duty at the rate of Rs. 17 per maund on any factory failing to deliver its quota of sugar for export.
On the same day, three notifications were issued: (i) fixing 50,000 tons of sugar as the quantity to be exported out of India during the period ending October 31, 1958, (2) appointing the Indian Sugar Mills Association, Calcutta, as the export agency, and (3) delegating the powers conferred on the Central Government to the Chief Director of Sugar and Vanaspati, Ministry of Food and Agriculture also.
Then followed the impugned notification fixing ex factory prices of sugar produced by the factories in Punjab, Uttar Pradesh and North Bihar.
It is being challenged on the ground that the price fixed is considerably below the cost of production and ignores various factors affecting the cost of production and distribution of sugar including charges incidental to sale and 126 distribution.
The impugned notification is also attacked on the ground that it did not fix any price at which the persons purchasing sugar from the mills would sell it, so that it was open to the middleman who bought sugar from the factories to sell it at any price, thus creating discrimination between factories and factories and between the producers selling sugar and the middlemen who buy sugar selling the same in their turn.
It is also alleged that fixing of the price was arbitrary and did not take into account the cost of production of a large number of units in the country and did not provide for a fair and equitable distribution of sugar in the country at a price in any way related to the price at which the factories were compelled to sell their products.
Consequently, the petitioners prayed for an appropriate order, direction or writ in the nature of mandamus or any other writ quashing the Sugar (Control) Order, 1955, and all orders made in pursuance of it including the impugned notification.
The petition has been, opposed by the Central Government.
It is contended on their behalf that the entire object of fixing the price of sugar was (a) to make it available at a reasonable price to the consumer, and (b) to ensure adequate and smooth flow and supply of sugar which is an essential commodity for the life of the people to all parts of the country according to their needs and requirements, checking the speculative tendency of the market and destroying the creation of an artificial shortage by unscrupulous persons.
Prices of sugar were first put under control as far back as 1942 and this control continued up to 1947, when it was withdrawn on December 8, 1947.
It was, however ' found that internal prices were raised during the de control period on the pretext of subsidizing export, which never materialised.
In consequence,, control was again imposed on September 2, 1949; but it was lifted in 1952, when it was found that there was sufficient stock available at the end of the 1951 52 season.
In 1953 54, however, production fell and control had again to be imposed for that season.
It was, however, lifted a year later.
In November 1956 127 there was a considerable surplus of sugar and the Central Government permitted export of 1.53 lakh of metric tons in 1957.
The Central Government was again approached in 1958 to make the export of sugar a permanent feature and it agreed to allow export during 1958 in view of the carry over from the previous season and also for earning foreign exchange in the interest of the country.
Therefore, the Central Government promulgated the Sugar Export Promotion Ordinance, No. V of 1958, on June 27, 1958.
But as this Ordinance was expected, a tendency developed 'in the sugar industry to push up prices after the month of April 1958.
As a result of this tendency, prices went up by about a rupee per maund in May and June 1958, and it was feared that they might go up further in view of the quota for export announced on June 27, 1958.
In view of this apprehension, the industry assured Government that the sugar factories would offer to sell their released stocks freely at prices prevalent before the export policy was announced, i.e., in the week before June 27, 1958.
In spite, however, of this assurance, there was a general rise in prices during the four weeks preceding the impugned notification.
This rise was particularly marked in Northern India.
It was in these circumstances that the Government decided to control ex factory prices of sugar in Punjab, Uttar Pradesh and North Bihar.
The Government took all relevant factors into account in fixing the price.
This was done in the interest of the general public in order that sugar might be available at fair prices.
As Uttar Pradesh and North Bihar are the main surplus areas and feed the deficit areas of the country, it was not necessary to control prices elsewhere; nor was it necessary to control prices beyond the ex factory stage as the prices in the whole.
sale or the retail markets are governed by ex factory prices.
There was in the circumstances no question of discrimination or any unreasonable restriction on carrying on trade in sugar.
The Government did not admit that the price fixed was below the cost of production generally.
Consequently, it was prayed that the petition should be dismissed.
128 the interveners raise the following points in support of their contention that the impugned notification is illegal and invalid (1) (a) The impugned notification is beyond the ambit of authority conferred on the Central Government under section 3 of the Act and clause 5 of the Order, and in any case it is bad as it cannot possibly subserve the purposes of the Act ensuring equitable distribution of the commodity to the consumer at a fair price; (b) The impugned notification merely fixes ex factory prices and is bad, firstly, on the ground that the Act and the Order do not authorise the Central Government to fix ex factory prices, and, secondly, on the ground that even if ex factory prices can be Axed under the Act and the Order, the impugned notification is still bad as it fails to fix prices for the ultimate consumer which must be done under the Act; (2) The impugned notification imposes an unreasonable restriction on the right to trade under Article 19 (1) (g), inasmuch as (i) it compels factories to sell sugar at a loss, (ii) it fixes the price arbitrarily, and (iii) there is no reasonable safeguard against the, abuse of power and no provision for a check by way of appeal or otherwise; (3) The impugned notification is bad inasmuch as it is discriminatory because it fixes ex factory prices only for factories in Punjab, Uttar Pradesh and North Bihar and not for factories in other parts of India and there is no reasonable classification discernible on any intelligible differentia on the basis of which prices 'have been controlled in certain regions only.
(1) (a).
The Act deals with essential commodities which have been defined therein.
The preamble shows that it has been passed in the interest of the general, public for the control of the production, supply and distribution of and trade and commerce in, certain commodities.
Section 3 of the Act gives power to the Central Government to pass orders under the Act if it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing 129 their equitable distribution and availability at fair prices.
No attack has been made on the vires of the Act; but the vires of the Order relating to sugar passed under the Act and particularly of the impugned notification fixing ex factory prices in Punjab, Uttar Pradesh and North Bihar have been attacked.
The Order in our opinion merely carries out the purposes of the Act and cl. 5 thereof gives the ambit of the powers of the Central Government in fixing prices, and lays down the manner in which it should be done and the factors which should be taken into consideration in doing so.
Though in the petition, the Order was attacked on the ground that it gave 'uncontrolled, unguided and unfettered ' power to the executive and imposed unreasonable restrictions on the right to carry on trade, no arguments were addressed to us on the constitutionality of the Order itself.
We are in this case concerned only with that part of the Order which deals with the fixation of price.
Clause 5 provides for factors that the Government will take into account in fixing prices and these are: (i) price or minimum price fixed for sugarcane, (ii) manufacturing cost, (iii) taxes, (iv) reasonable margin of profit for producer and/or trade, and (v) any incidental charges.
It is amply clear from this that price is to be fixed after taking into account all reasonable factors which go into the consideration of price fixation.
In view of this it cannot be said that the Order gives 'uncontrolled, unguided and unfettered ' power to the executive to fix prices arbitrarily.
We shall proceed therefore on the basis that the Act and the Order so far as they are concerned with the fixation of price are valid.
This brings us to the question whether the impugned notification is beyond the authority conferred on the Central Government by section 3 of the Act and clause 5 of the Order. ' Reading section 3 of the Act with the preamble, it would be obvious that the object of the Act is to provide for control of the production, supply and distribution of, trade and commerce in, essential commodities in the interests of the general public, so that the 17 130 supplies of such commodities may be maintained or increased, their equitable distribution secured and they may be available to the general public at fair prices.
Considering the history of sugar control and the trends which appeared in the market from April, 1958, it cannot possibly be said that the impugned notification does not subserve the purposes of the Act and the Order.
There can be little doubt that fixation of ex factory prices of sugar mills in the main surplus areas would have the effect of stabilising sugar prices for the general public, which is the consumer, at a fair level and make sugar available at fair prices.
In the affidavit filed on behalf of the Government it is stated that as a result of this action prices have come down to normal levels.
This is demonstrable proof, if such was needed, that the impugned notification subserves the purposes of the Act.
This contention, therefore, fails.
(1) (b).
The argument under this head is two fold.
It is said that in the first instance ' section 3 of the Act requires that prices for the consumer only should be fixed.
The object of section 3 is undoubtedly to secure essential commodities at fair prices for the general public, i.e., the consumer.
It is well known that there are three kinds of prices prevalent in the market for a commodity like sugar, namely, ex factory price, wholesale price and retail price.
It is the last that the consumer has to pay.
It is urged that when section 3 provides for availability of essential commodities at fair prices to the general public it means that price can only be fixed at the stage where the consumer is the purchaser.
In particular, our attention was invited to clause (c) of section 3 (2), which provides for control of price at which any essential commodity may be bought or sold.
Now there is no doubt that the object of the Act is to secure essential commodities for the consumer, i.e., the general public, at fair prices; but it does not follow from this that this object can only be achieved if retail prices are fixed and that there is no other way of achieving it.
In any case, clause (c) of section 3 (2) which speaks specifically of control of price is very general 131 in terms.
It provides for fixation of price at which any essential commodity may be bought or sold ; it does not specify the stage at which the price should be fixed.
Therefore, we are of opinion that the control provided under clause (c) of section 3 (2) is control at any of the three stages mentioned above.
There is no reason to cut down the generality of the words used in clause (c) so as to make them applicable only to the last stage, namely, the retail price.
This contention, therefore, that section 3 only authorises the Central Government to fix the retail price, i.e., the price for the consumer, fails.
It is then urged that even if the power is there to fix prices at all stages, the Act requires that the price must be fixed for the consumer, whether it is fixed at an earlier stage or not.
There are no words in section 3 (1) or section 3 (2) (c) of the Act, which compel such an interpretation.
It is true that the object of the Act is to ensure fair prices for the consumer; but if fair prices for the consumer can be ensured by fixing the ex factory price, there is no reason why the Government should go on also to fix the wholesale or retail price.
It is well known that the wholesale and retail prices depend upon ex factory price, in the case of a commodity like sugar.
Therefore if fixation of price at the ex factory level is enough to ensure a fair price for the consumer, there is no reason why the Government should not stop at that and should go on also to fix wholesale and retail prices.
It is urged that the middleman who buys from the factory is not controlled and he can sell at any price; and, therefore, the object of the Act may not be achieved.
Theoretically this may be so and a middleman may abuse his position.
If he does so, we have no doubt that the Government will intervene as it has ample power to fix wholesale and retail prices also.
But if the purpose is served by merely fixing the ex factory price, we see no reason why the Government must fix wholesale and retail prices also.
The petitioners have not even alleged that as a matter of fact the wholesalers and retailers are profiteering and making it impossible for sugar to be available for the general public at a fair 132 price.
In the circumstances, it was not necessary in fact for the Government to fix wholesale or retail prices.
In law, we see no warrant for holding that under section 3 (1) and section 3 (2) (c) of the Act, the Government must not only fix ex factory prices but also wholesale and retail prices.
What prices the Government will fix depend upon their estimate of the situation, which would serve the object of the Act.
We are, therefore, of opinion that there is no force in this contention either.
The contention under this head is that the impugned notification is invalid as it is an unreasonable restriction on the petitioners ' right to carry on trade under article 19 (1) (g).
The argument is urged in three ways; namely, (i) factories are being compelled to sell at below the cost of production, (ii) the price fixed is arbitrary, and (iii) there is no safeguard Against abuse of power.
The argument that the factories are being compelled to sell at below the cost of production is put in two ways.
It is said that the press note issued by the Government on July 30, 1958, shows that the Government was of the view that prices should be pegged at the level at which they were in the week preceding June 27, 1958, and inasmuch as they fixed prices below that level or even below the level at which they were at the end of May, 1958, the prices were below the cost of production.
We must say that this is a complete misunderstanding of the press note of July 30, 1958.
All that that press note said was that prices had risen even before June 27, 1958, in expectation of a large export quota.
Thereafter, the Government were assured by the industry that prices would not rise further after June 27 ; but this assurance was not kept and prices went up further by one rupee per maund by the end of July.
It was in these circumstances that the Government intervened.
There was, however, no commitment in this press note by the Government that if they intervened they would fix prices at what they were either in the week before June 27 1958, or in the last week of May; nor is there anything in the press note to suggest that the 133 prices prevalent on either of these two days were proper prices and that any price below them would not even meet the cost of production.
The press, note had nothing to do with the cost of production; nor were the Government bound to fix the prices at the level of the end of June or the end of May.
When they eventually decided to intervene at the end of July, they were free to take action under the Act and the Order and so long as the prices fixed were in accordance therewith, the action could not be challenged on the ground that it was an unreasonable restriction on the right to carry on trade under article 19 (1) (g).
Clause 5 of the Order lays down the factors which have to be taken into consideration in fixing prices.
These factors include among other things a reasonable margin of profit for the producer and/or trade and any incidental charges.
This was kept in mind when prices were fixed by the impugned notification.
The petitioners have certainly filed with their affidavit a schedule giving the cost of production.
According to them, their cost of production is above the price fixed by the impugned notification.
This schedule has not been admitted by the Government.
We see no reason to accept the ipse dixit of the petitioners as to their cost of production.
The sugar crushing season begins about the end of October and finishes about the end of May, so that fixation of price in July, 1958, would be on the basis of the 1957 58 season.
Market prices were available to the Government when they fixed the prices by the impugned notification.
In the case of the three States ' namely, Punjab, Uttar Pradesh and North Bihar, the prices fixed by the impugned notification were above the prices prevalent in the beginning of April and also above the average prices for the month of April, though in the: case of Punjab and West Uttar Pradesh they were slightly below the prices of the 30th of April.
These prices were prevalent in the free market and must certainly have taken account of a fair margin of profit for the producer, though in the case of an individual factory due to factors for which the producer might himself be responsible, the cost of production might have been a little more.
134 Therefore, the prices fixed by the Government by the impugned notification can in no circumstances be said to have been proved to be below the cost of production.
The petitioners were also not unaware of this state of affairs, and therefore, in the rejoinder came out with the story of distress sales by the mills in the early part of the crushing season.
We are not impressed by this story, and in any case there could hardly be any question of distress sales in April when the crushing season was almost coming to an end.
We see therefore no reason to hold that the prices fixed were below the cost of production and were therefore an unreasonable restriction on the petitioners ' right to carry on trade under article 19(1)(g).
This also disposes of the second ground of argument under this Head, namely, that the prices were arbitrary.
All relevant factors prescribed under el.
5 of the Order were apparently taken into consideration and the prices fixed themselves show that they were not arbitrary.
The last argument in this connection is that there is no reasonable safeguard against the abuse of power and no check by way of appeal or otherwise is provided against the order of the Central Government.
It is enough to say that we are here dealing with the power of the Central Government to fix prices in the interests of the general public.
It is in these circumstances absurd to expect that there would be some provision by way of appeal or otherwise against this power of the Central Government.
So long as the Central Government exercises its power in the manner provided by the Act and the Order and this is what it appears to have done , it cannot be said that any further safeguard is necessary in the form of an appeal or otherwise.
The safeguards are to be found in el.
5 itself, namely, that the Central Government must give consideration to the relevant factors mentioned therein before fixing the price, and thus these factors are a check on the power of the Central Government if it is ever minded to abuse the power.
We are therefore of opinion that the impugned notification is not an unreasonable restriction on the peti tioners ' right to carry on trade under Art, 19(1)(g).
135 Re.
said that price control is imposed on factories in Punjab, Uttar Pradesh and North Bihar and that there is no reasonable basis for such clasSification ; factories in other parts of India are left uncontrolled with the result that there is discrimination.
From the material supplied it appears that there are 97 sugar factories in Punjab, Uttar Pradesh and North Bihar while there are 50 sugar factories in the rest of India, of which as many as 18 are in the State of Bombay.
In the other States there are very few factories.
, the lowest being in West Bengal, Orissa and Kerala with one factory each and the highest being in Madhya Pradesh with seven factories.
We also understand that the major part of production of sugar in this country is from the factories in Punjab, Uttar Pradesh and North Bihar.
Of the 97 factories which have been controlled, as many as 90 are in Uttar Pradesh and North Bihar and it is these two areas which are what are called mainly surplus areas.
The price of sugar in India depends upon the price of the factories in Uttar Pradesh and Bihar.
The contention of the Government is that as soon as the price is controlled in Punjab, Uttar Pradesh and Bihar the price for the whole of India is fixed, for other States are deficit and import sugar from these States, particularly Uttar Pradesh and North Bihar.
In these circumstances if price is fixed in this area, price all over India is practicalLy fixed, and it is not necessary to fix prices separately so far as factories in other States which are said to be mainly deficit, are concerned.
In the circumstances we are of opinion, that though in form prices are fixed for factories only in Punjab, Uttar Pradesh and North Bihar, in effect they are fixed for the whole of India, once the production of these three regions is controlled.
There is, therefore, in our opinion no discrimination in effect by the fixation of prices in these three regions.
The argument that there is discrimination is purely theoretical, in view of the economic factors which control the price of sugar in, this country.
Thus in fact there is no discrimination after the control of sugar 136 prices in these three regions and the contention that the factories in the other areas are left free to sell at any price is specious and does not merit a moment 's consideration.
We are therefore of opinion that in effect the impugned notification brought about no discrimination between different regions or between producers and middlemen in view of what we have said already in Re. 1 (b), and consequently, it is not necessary to consider the last part of the submission under this head.
There is in fact no discrimination by the impugned notification and this contention fails on that ground.
There is no force therefore in this petition and it is hereby dismissed with costs.
Petition dismissed. [/INST] In exercise of the powers under section 3 Of the Essential Com modities Act, 1955, and under cl. 5 of the Sugar (Control) Order, 1955, the Government of India issued a notification dated July 30, 1958, fixing the ex factory price per maund of sugar produced in Punjab, Uttar Pradesh and North Bihar.
The petitioners challenged the legality of the notification on the grounds (1) that it was beyond the ambit of authority conferred on the Central Government under section 3 of the Essential Commodities Act, 955, and clause 5 Of the Sugar (Control) Order, 1955, and that, in any case, it was bad as it could not subserve the purposes of the Act ensuring equitable distribution of the commodity to the consumer at a fair price, (2) that the Act and the Order did not authorise the Central Government to fix ex factory prices, and,, in any case, the notification failed to fix prices for the ultimate consumer, (3) that it imposed an unreasonable restriction on the right to trade under article 10(1)(g), inasmuch as it fixed the price arbitrarily, and there was no reasonable safeguard against the abuse of power, and (4) that it was discriminatory because it fixed ex factory prices only for factories in Punjab, Uttar Pradesh and North Bihar and not for factories in other parts of India and there was no reasonable classification discernible on any intelligible differentia on the basis of which prices had been controlled in certain regions only.
Held, (1) The notification dated July 30, 1958, is within the authority conferred on the Central Government by section 3 Of the , and cl. 5 of the Sugar (Control) Order,1955.
(2) Section 3 of the Act which provides for control of price is very general in terms and authorises the Central Government to fix the ex factory price of sugar without fixing the wholesale or retail prices; and, since fair prices for the consumer are ensured by fixing the ex factory price, the notification in question subserves the purposes of the Act, and is valid.
(3) Clause 5 of the Sugar (Control) Order, 1955, lays down the factors which have to be taken into consideration in fixing prices, and as the prices were fixed in accordance therewith, the 124 action taken by the Government in the interests of the general public could not be challenged on the ground that it was an unreasonable restriction on the right to carry on trade under article 19(1)(g) of the Constitution.
(4) Though under the notification prices are fixed for fac tories only in Punjab, Uttar Pradesh and North Bihar, in effect, they are fixed for the whole of India, as the other States are deficit ; consequently, the notification brought about no discrimination between different regions. </s> |
<s>[INST] Summarize the following judgement: tion No. 5723 of 1982 & 219 of 1986.
(Under Article 32 of the Constitution of India).
Mrs Pinky Anand and D.N. Goburdhan for the Petitioners.
B.B. Singh, Pramod Swarup, J.P. Verghese, LJ.
Vadakare and Ms. Kamini Jaiswal (N.P.) for the Respondents.
The following Order of the Court was delivered These two petitions under article 32 of the Constitution challenge the provisions of the Chhota Nagpur Tenancy Act which confines succession to property to the male line by contending that the provision is discriminatory against women and, therefore, ultra vires the equality clause in the Constitution.
Petitioner No. 1 in the first writ petition is the editor of a magazine while petitioners nos.
2 and 3 are two ladies of the 'Ho ' tribe, admittedly one of the sched uled tribes residing in Singhbhum district of Bihar.
The petitioners in the other writ petition belong to the 'Oraon ' tribe of the Chhota Nagpur area.
Challenge is essentially to sections 7 and 8 of the Chhota Nagpur Tenancy Act of 1908.
Sec tions 7 and 8 of the Act provide: "7.(1) Meaning of 'raiyat having khunt khatti rights '.
"Raiyat having khunt katti rights" means a raiyat in occupation of, or having any subsisting title to, land reclaimed from jungle by the original founders of the village or their descendants in the male line, when such raiyat is a member of the family which rounded the village or a descendant in the male line of any member of such family: Provided that no raiyat shall be deemed to have khunt katti 479 rights in any land unless he and all his predecessors in title have held such land or obtained a title thereto by virtue of inheri tance from the original founders of the vil lage.
(2) Nothing in this Act shall prejudicially affect the rights of any person who has law fully acquired a title to a khunt kattidari tenancy before the commencement of this Act.
Meaning of Mundan Khunt khattidar.
"Mundari khuntkattidar" means a Mundari who has acquired a right to hold jungle land for the purpose of bringing suitable portions thereof under cultivation by himself or by male members of his family, and includes (a) the heirs male in the line of any such Mundari, when they are in possession of such land or have any subsisting title thereto; and (b) as regards any portions of such land which have remained continuously in the possession of any such Mundari and his descendants in the male line, such descendants.
" Reliance has been placed on a Division Bench decision of the Patna High court in the case of Jitmohan singh Munda vs Ramaratan Singh & Anr., in support of the proposition that the Patna High Court had more than 30 years back taken the view that the provision was not operative and a widow was also entitled to inherit.
When analysed the judgment of the Patna High Court does not seem to provide prop for the argument raised in the writ petitions.
In paragraph 4 of the judgment the High Court indicated: "The contention based on section 8 also terminologically cannot be accepted in the first place, in defining khunt kattidari interest.
As quoted above, the word used is "includes" whereafter occur clauses (a) and (b) containing reference to the male in the male line of a Mundari.
The word "includes" cannot be taken to be exhaustive.
It only states that the heirs in the male line alone are in the category of a Mundari khunt kattidari in their possession, but in implication it may well be that the heirs of the deceased Mundari who are females will not be entitled to succeed to it.
That does not mean that the section is so definite as to exclude the inclusion of the widow of the deceased Mundari as a person who can hold the land during 480 her life time.
Moreover, clause (a) refers to the heirs male in the male fine.
The word "line" is also significant be cause it evidently refers to a person who has descended from the deceased Mundari whose interest may be in question.
Even, therefore, if these words "the heirs male in the male line" were to be given exclusive meaning, then also it would mean only the persons who are descended from him or repre sent another male line altogether.
There is no reference whatsoever to the exclusion of the widow of the particular Mundari.
In my opinion, the position in respect of the interest of the widow of the deceased Mundari is the same in respect of this property as it would be her position in regard to the other properties of her late husband.
Since the court below has accepted that the family has followed the Hindu rites and Hindu religion, the widow of Kartik Singh would be entitled to be in possession.
Section 8, as I have discussed, is not inconsistent with this position of the widow and, as such, the court below took the correct view in holding that the plaintiff could not recover posses sion of the property during the life time of defendant No. 1, but he is entitled to a declaration that he will succeed after the death of the widow.
" The interpretation given of section 8 in the Division Bench decision, therefore, does not provide full support to the point raised before us by the writ petitioners in the two cases.
It was a case confined to its own facts and the Court proceeded to dispose of the case with reference to the widow by bringing in the concept of Hindu law on the finding that the family had adopted Hindu law and was not bound by its own caste custom.
At an earlier stage while one of these writ petitions was heard we had given time to the State of Bihar to consid er the feasibility of carrying out an amendment in the offending sections and to clearly provide that succession was not confined to the male in the male line.
A committee appears to have been set up by the State of Bihar to examine this question and it has come to the conclusion that by custom prevalent among the scheduled tribes a female heir is excluded from succession and in case the law was otherwise interpreted or changed and property was allowed to go into the hands of female heirs, there would be great agitation and unrest in the area among the scheduled tribe people who have custom based living.
Scheduled tribe people are as much citizens as others and they are entitled to the benefit of guarantees of the Constitution.
It may be that the 481 law can provide reasonable regulation in the matter of succession to property with a view to maintaining cohesive ness in regard to Scheduled Tribes and their properties.
But exclusion from inheritance would not be appropriate.
Since this aspect of the matter has not been examined by the State of Bihar and the feasibility of permitting inheritance and simultaneously regulating such inheritance for the purpose of ensuring that the property does not go out of the family by way of transfer or otherwise we arc of the view that in the peculiar facts of the case the State of Bihar should re examine the matter.
In these circumstances, instead of disposing of the two writ petitions by a final order we adjourn the hearing thereof for three months and direct the State of Bihar to immediately take into consideration our order and undertake the exercise indicated and report to the Court by way of an affidavit and along with that a copy of the report may be furnished by the Committee to be set up by the State of Bihar.
This matter shall not be considered as part heard and shall be next listed before a Bench where Justice Kuldip Singh is one of the members.
R.P. Petitions adjourned. [/INST] Chhota Nagpur Tenancy Act, 1908 confined succession to property to descendants in the male line of Scheduled Tribes covered by the Act.
The petitioners who were the ladies belonging to the 'Ho ' and 'Oraon ' Tribes of the Chhota Nagpur area contended that the provisions of Sections 7 & 8 of the Act were dis criminatory against women and, therefore, ultra vires the equality clause in the Constitution.
The Court at an earlier stage while hearing one of the writ petitions, gave time to the respondent State of Bihar to consider the feasibility of carrying out an amendment in the offending sections so as to clearly provide that succes sion was not confined in the male line.
In pursuance there of, a Committee was set up by the State which came to the conclusion that a custom prevailed among the Scheduled Tribes that a female heir be excluded from succession, and that if there was any change, and the property be allowed to go into the hands of female heirs there would be agitation and unrest.
Adjourning the hearing of the petitions, this Court, HELD: Scheduled Tribe people are as much citizens as others and they are entitled to the benefit of guarantees of the Constitution.
It may be that the law can provide reasonable regulation in the matter of succession to proper ty with a view to maintaining cohesiveness in regard to Scheduled Tribes and their properties.
But exclusion from inheritance would not be appropriate.
Since this aspect of the matter was not examined by the State, it should re examine the feasibility of permitting inheritance and simul taneously regulating such inheritance for the purpose of ensuring 478 that the property does not go out of the family by way of transfer or otherwise.
[480 H; 481 AB] Jitmohan Singh Munda vs Ramratan Singh & Anr., , referred to.
In the circumstances, hearing of the matter be adjourned for three months and the State of Bihar would immediately take into consideration the order and undertake the exercise indicated and report to the Court by way of an affidavit, and along with that a copy of the report may be furnished by the Committee to be set up by the State of Bihar.
[481 B C] </s> |
<s>[INST] Summarize the following judgement: vil Appeal No. 1681A(L) of 1979.
From the award dated 2.8.1978 of the Additional Labour Court, Rajasthan in Reference Case No. ALC 120 of 1974.
V.M. Tarkunde, P.H. Parekh and Sunil Dogra for the Appel lant.
474 J.D. Jain for the Respondent.
The Judgment of the Court was delivered by V. RAMASWAMI, J.
The appellant who had been in the service of the respondent company as a Section Salesman was terminated from service on 12th July, 1973 on the ground that he was on an unauthorised absence since 13th January, 1973 and shall be deemed to have left the company 's service of his own account.
At the instance of the appellant the Government of Rajasthan referred to the Labour Court/or adjudication the question whether the termination of the services of the appellant by the respondent company was legal and justified and if not to what relief he was enti tled to.
The Labour Court by its award dated 2.8.1978 held that the appellant was not a "workman" and that, therefore, the reference was incompetent.
We may, however, state that the Labour Court has given findings in favour of the appel lant on the question whether the termination itself was illegal.
The facts as found by the Labour Court for coming to the conclusion that the appellant was not a "workman" are these.
The head office of the company is at Calcutta in West Bengal.
The appellant was appointed as a section salesman and his services were controlled by the head office through its territory office situated in Delhi.
Section salesman are appointed for certain number of districts and in the area of each section salesman, a number of local salesmen and local travelling salesmen are appointed.
The appellant was ap pointed as a section salesman for the districts of Bikaner, Ganganagar, Merta and Barmer in Rajasthan with his head quarters at Bikaner.
There were seven other local salesmen and local travelling salesmen in his area.
The various correspondence and other evidence produced before the Labour Court showed that the appellant was employed for canvassing and pushing and promoting the sales of the company 's product in his area.
The Tribunal also found and in fact it has referred to as an admitted case of both the parties that the respondent company sells its product i.e. cigarettes manu factured by it directly through their wholesalers who in their turn sell the product to the various dealers appointed by the company in the area.
The section salesman neither sells nor collects any money from the wholesaler or retail dealers.
The company controls this through the territory office at Delhi.
Neither the section sales .
man nor the local salesmen or local travelling salesmen are employed in the shop of the wholesaler or any retail dealer to sell the products of the company and to collect the amount of sale.
The section salesmen and the local salesmen and local trav elling salesmen were employed by the company in order to canvass and promote the sales of the company.
From 475 perusal of the records produced before the Labour Court the Tribunal further observed "it was apparent that the appel lant is required to send reports about the publicity and advertisement and of placing posters, holders, cinema slides and suggest means to canvass the sale in this area.
Some of the document relate to matters of publicity in melas, some relate to the existing position of the stock of the goods of the company in the area and the action taken to ameliorate stocks".
It was not the duty of the appellant to procure orders for the company.
None of the salesmen were employed to sell the product of the company in any particular area or collecting the sale proceeds and depositing the same with the company.
However, the Tribunal noted that the appellant was required to supervise the work of the local ' salesmen and local travelling salesmen appointed in the area of his operation as well but it was only incidental to his main function of canvassing and promoting the sale of the product of the company in the four districts allotted to him.
On these facts found, the Tribunal came to the conclusion that the appellant cannot be held to be a workman employed for manual, skilled, unskilled and/or clerical nature and that the provisions of the Industrial Disputes Act was not ap plicable and the reference, therefore, was incompetent.
It is against this order the appeal was filed.
In order to come within the definition of workman under the Industrial Disputes Act as it stood in the year 1973 when the appellant 's service was terminated, the employee has to be ' under the employment to do the work of one of the types of work referred to in the Section i.e. manual, skilled and/or clerical in nature.
The finding of the Tribu nal on the nature of the work is a finding on a question of fact and it is also borne out by the document produced before the Labour Court.
It is seen from the facts found that the appellant was employed to do canvassing and promot ing sales for the company.
The duties involve the suggesting of ways and means to improve the sales, a study of the type or status of the public to whom the product has to reach and a study of the market condition.
He was also required to suggest about the publicity in markets and melas, advertise ments including the need for posters, holders and cinema slides.
These duties do require the imaginative and creative mind which could not be termed as either manual, skilled, unskilled or clerical in nature.
The supervising work of the other local salesmen was part of his work considered by the Tribunal as only incidental to his main work of canvassing and promotion in the area of his operation.
Such a person cannot be termed as a workman is also the ratio of the decision of this Court in Burmah Shell Oil Storage and Distribution Company vs Burmah Shell Management and Staff; ; , D.S. Nagraj vs Labour Officer, Kamal and others, 1973 F.J.R. (42) P. 440, J.J. Dechane Distributor vs State 476 of Kerala and others (1974 11 LLJ.9).
We may also refer to the subsequent passing of the .
This Act defines "sales promotion employees" as meaning a person employed or engaged in any establishment for hire or reward to do any work relating to promotion of sales or business or both.
This Act is to apply in the first instance to every establishment engaged in pharmaceuticals industry.
It enables the Central Government by notification to apply the provisions to any Other establishment engaged in any notified industry.
If an industry is notified under this Act then the provisions of the would also be attracted to these types of workmen.
This is a subsequent enactment and it is not applicable to the termination in the instant case which was long prior to the enactment of this Act.
Further no notification under this Act bringing the provisions to the employees like that of the company has been made under the provisions of this Act.
The object of this enactment and the employees covered by the enactment also go to show that persons employed for sales promotion normally would not come within the definition of workmen under the Industrial Dis putes Act.
The Labour Court considered the merits in detail and ultimately held that the termination of the appellant from service was illegal but dismissed the application only on the ground that the was not applica ble.
We would not have interfered with that finding had we differed from the Labour Court on the question whether the appellant is a workman.
In the light of our holding that the is not applicable to him and in view of the fact that a long period of over 16 years had passed it would be unjust to leave the appellant without any remedy at this stage.
In the circumstances, we consider that a direction to the Management to pay some compensation is necessary to meet the ends of justice.
We accordingly direct the Company to pay an amount equivalent to three years salary at the rate he was drawing when the appellant 's services were terminated, in addition to whatever amount they were paying during the pendency of the appeal under orders of this Court.
But this direction will not be treated as precedent.
For the foregoing reasons we are of the view that no interference is called for with the decisions of the Labour Court and this appeal accordingly fails and it is dismissed subject to the directions given above.
However, there will be no order as to costs.
V.P.R Appeal dismissed. [/INST] The appellant was in the service of the respondent company as a Section Salesman.
He was terminated from serv ice on 12th July, 1973 on the ground that he was on an unauthorised absence since 13th January, 1973.
At the instance of the appellant the Government referred to the Labour Court for adjudication the question whether the termination of the services of the appellant by the respondent company was legal and justified and if not to what relief he was entitled to.
The Labour Court held that the appellant was not a "workman" and that, therefore, the reference was incompetent but it answered the question whether the termination itself was illegal in favour of the appellant.
The appeal was filed in this Court against the order of the Labour Court.
Dismissing the appeal, this Court, HELD: 1.
In order to come within the definition of "workman" under the Industrial Disputes Act as it stood in the year 1973 when the appellant 's service was terminated, the employee has to be under the employment to do the work of one of the types of work i.e. manual, skilled rod/or clerical in nature.
[475 E] 473 2.
The appellant was employed to do canvassing and promoting sales for the company.
The duties involve the suggesting of ways and means to improve the sales; a study of the type or status of the public to whom the product has to reach and a study of the market condition.
He was also required to suggest about the publicity in markets and melas, advertisement including the need for posters, holders and cinema slides.
These duties do require the imaginative and creative mind which could not be termed as either manu al, skilled, unskilled or clerical in nature.
The supervis ing work of the other local salesman was only incidental to his main work of canvassing and promotion in the areas of his operation.
Such a person cannot be termed as a workman.
[475 F G] 3.
The Sales Promotion Employees (Conditions of Service)Act, 1976, defines "sales promotion employees" as meaning a person employed or engaged in any establishment for hire or reward to do any work relating to promotion of sales or business or both.
[476 A B] 4.
The object of the enactment and the employees covered by the enactment also go to show that persons who are em ployed for sales promotion normally would not come within the definition of workmen under the Industrial Disputes Act.
[476C D] In view of the fact that a long period of over 16 years had passed it would be unjust to leave the appellant without any remedy at this stage.
To meet the ends of justice, the Company is to pay an amount equivalent to three years salary at the rate he was drawing when the appellant 's services were terminated, in addition to whatever amount they were paying during the pendency of the appeal.
[476 E,F] Burmah Shell Oil Storage and Distribution Company vs Burmah Shell Management and Staff, ; ; D.S. Nagraj vs Labour Officer, Kamal & Ors., ; JJ.
Decbane Distributor vs State of Kerala and Ors., , referred to. </s> |
<s>[INST] Summarize the following judgement: Appeal No. 849 of 1987.
From the Judgment and Order dated 24.9.1985 of the Delhi High Court in S.A.O. ( 'Second Appeal From Order) No. 295 of 1981.
K.R. Nagaraja, R.S. Hegde and C.B. Nath Babu for the Appel lant.
M .L. Bhargava and Randbit Jain for the Respondents.
The following Order of the Court was delivered: The appellant landlord had filed an application under Sec.
14(1)(b) of the Delhi Rent Control Act, 1958 (for short the 'Act ') for ejectment of the respondents.
All the three courts concurrently found that Gulzar Singh was the sole tenant.
The Rent Controller and the Tribunal found that he sublet the demised premises to Avtar Singh, his brother and therefore ordered ejectment.
The High Court found that the tenant was in exclusive possession of the premises bearing No. W.Z. 258/4, Subash Bazar, Nangal 540 Raya, New Jail Road, New Delhi, and that he did not sublet the premises to Avtar Singh.
On that premise the petition for ejectment was dismissed.
Thus this appeal by special leave under article 136 of the Constitution.
Shri Nagaraja, learned counsel for the appellant has con tended that the High Court has committed a gross error in interfering with the concurrent finding of fact recorded by the Addl.
Rent Controller and the Rent control Tribunal that the tenant, Gulzar Singh has sublet the premises in question to his brother, Avtar Singh and that it is not open to the High court to interfere with the concurrent finding of fact.
He placed reliance on Sec. 18 of the Evidence Act and said that in an affidavit filed by Avtar singh before Income Tax Authorities he claimed exclusive possession as a tenant and that, therefore, the admission made by him would be binding on Gulzar Singh.
The Addl.
Rent Controller and the Rent Control Tribunal relying upon this admission of Avtar Singh and other oral evidence concluded that Avtar Singh alone was in exclusive possession and that, therefore, subletting was proved as a fact.
We find no substance in the contention.
Section 18 of the Evidence Act.
reads as under: "18.
Admission by party to proceeding or his agent; by suitor in representative character; by party interested in subject matter by person from whom interest derived.
State ments made by a party to the proceedings, or by an agent to any such party, whom the court regards, under the circumstances of the case, as expressly or impliedly authorised by him to made them, are admissions.
Statements made by parties to suits, suing or sued in a representative character, are not admissions, unless they were made while the party making them held that character.
Statements made by (1) persons whom have any proprietary or pecuniary interest in the subject matter of the proceeding and who make the statement in their character of persons so interested, or (2) persons from whom the parties to the suit have derived their interest in the subject matter of the suit, are admissions, if they are made during the continuance of the inter est of the persons making the statement.
" Section 18 postulates that statements made by a party to the 541 proceeding, or by an agent to any such party, whom the Court regards, under the circumstances of the. case, as expressly or impliedly authorised by him to make them, are admissions.
Equally statement made by a person who has an proprietary or pecuniary interest in the subject matter of the proceedings or persons having derivative interest make statements during the continuance of the interest also are admissions.
In this case, admittedly, Gulzar Singh was not a party to the .affidavit signed by Avtar Singh.
Therefore, the admis sion made by Avtar Singh that he is the tenant m exclusive possession of the demised premises does not bind Gulzar Singh.
In view of the plea and stand of the appellant, Avtar Singh cannot claim to have any pecuniary interest or any joint interest alongwith Gulzar Singh in the demised prem ises.
Once it is found that Gulzar Singh alone is the ten ant, as admittedly pleaded by the appellant, Avtar Singh cannot claim to have any pecuniary or derivative interest in the demised premises.
He is not an agent of Gulzar Singh.
Under those circumstances, as rightly found by the High Court, that the admission made by Avtar Singh in the affida vit is inadmissible and does not bind Gulzar Singh.
Once that admission is excluded from consideration, there is no other evidence worth accepting to conclude that Avtar Singh was in exclusive possession as a tenant.
The High Court rightly held that the finding of subletting or parting with possession of the premises in dispute was vitiated in law as it was primarily based on inadmissible evidence.
Having found the finding vitiated, it was open to the High Court to re examine and reappreciate the evidence on record.
On reappraisal it disbelieved the oral evidence.
We do not find any error in such reappraisal.
It is then sought to be contended that Gulzar Singh had other business and it im plies that he is not in exclusive possession of the demised premises.
We find no force in the contention.
It may be that Gulzar Singh had other business but that does not lead to the conclusion that Gulzar singh is not in exclusive posses sion of the demised premises as tenant or that he sublet the premises to Avtar Singh.
Accordingly, the appeal is dismissed, but in the circum stances, without costs.
T.N.A. Appeal dismissed. [/INST] The appellant landlord filed an application under Section 14(1)(b) of the Delhi Rent Control Act, 1958 for ejectment of the respondents and the three courts concurrently found that the respondent was the sole tenant.
Relying on an affidavit filed by tenant 's brother before Income Tax au thorities in which he claimed exclusive possession as ten ant, the Rent Controller and the Tribunal concluded that the admission made by the tenant 's brother was binding on the tenant as a result of which sub letting by tenant was proved and consequently allowed the landlord 's eviction petition.
But the High Court dismissed the eviction petition by holding that since the admission made by tenant 's brother was not binding on the tenant, the finding of sub letting by tenant was vitiated in law because it was based on inadmis sible evidence.
In appeal to this court it was contended on behalf of the landlord that (i) the admission made by tenant 's brother was binding on the tenant under section 18 of the Evidence Act; (ii) the High Court erred in interfering with the concurrent finding of fact.
Dismissing the appeal, this Court, 538 539 HELD: 1.
Section 18 of the Evidence Act postulates that statements made by a party to the proceeding, or by an agent to any such party, whom the Court regards, under the circum stances of the case, as expressly or impliedly authorised by him to make them, are admissions.
Equally statement made by a person who has any proprietary or pecuniary interest in the subject matter of the proceedings or persons having derivative interest make statements during the continuance of the interest also are admissions.
[540 H, 541 A B] 2.
In the instant case, admittedly, the respondent tenant was not a party to the affidavit signed by his broth er.
Therefore, the admission made by his brother that he is the tenant in exclusive possession of the demised premises does not bind the respondent tenant.
Once it is found that respondent alone is the tenant, his brother cannot claim to have any pecuniary or derivative interest in the demised premises.
He is not an agent of his tenant brother.
Since the admission made by tenant 's brother was inadmissible and not binding on the tenant, the High Court rightly held that the finding of sob letting or parting with possession of the premises in dispute was vitiated in law as it was primarily based on inadmissible evidence.
Consequently, it was open to the High Court to re examine and reappreciate the evidence on record.
[541 B E] </s> |
<s>[INST] Summarize the following judgement: Appeal No. 129 of 1986.
From the Judgment and Order dated 12.5.1982 of the Allahabad High Court in Civil Misc.
Writ Petition No. 13431 of 1981.
B.D. Agarwal and Indeever Goodwill for the appellant.
A.K. Srivastava for the Respondents.
The following Order of the Court was delivered: This appeal by special leave has been filed by the landlady.
She laid action under s.21 of the U.P. Urban Building (Regulation of letting, rent and eviction) Act, 1972 (for short 'the Act ') for eviction of the tenant on the ground of bona fide requirement to start business by her son.
The prescribed authority and the Appellate Tribunal found as a fact that the appellant required the premises bona fide to start the business.
But the High Court allowed the writ petition, set aside the order on the sole ground that the married daughters of the original tenant, Lalu were not impleaded who are the necessary parties and, therefore, the non joinder of the necessary parties disentitle the landlady to have the ejectment of the tenants namely the sons and the widow of the deceased tenant Lalu.
The only question that arises in this case is whether the married daughters of the deceased tenant are necessary parties and that non impleading them would disentitle the landlady to maintain the action for ejectment.
Admittedly, Lalu the original tenant died in 1%5.
Thereafter, the pro ceedings were initiated in 1974.
Till then, one of the sons of Lalu, 537 namely, Bhole Nath was in occupation of the premises and did carry on business as admitted by him in affidavit Exhibit SA II "that the deponent is the tenant of a portion of house No. 55, Thatheri Bazar, Allahabad on payment of Rs. 40/ per month as rent including electric charges".
It is also not in dispute that the married daughters never participated, nor claimed interest in the business conducted by Bhole Nath.
It is also an admitted fact that even before the death of the father they were married and they are living with their husbands elsewhere.
Indisputably s.3 (a)(2) postulates that "In this Act, unless the context otherwise requires (a) tenant in relation to a building means a person by whom its rent is payable, and on the tenant 's death (2) in the case of a non residential building, his heirs.
" Therefore, as defined under s.3(a)(2) all heirs of the tenants are the tenants who succeeded intestate as per the .
Certainly, therefore, they are tenants within the meaning of s.3(a)(2).
They are entitled to succeed to the tenant 's lease hold rights under the Act, including not merely to the liabilities to pay rent as contended by the appellant but also to continue the business until duly ejected as per the provisions of the Act.
Whether non im pleadment of the married daughters would vitiate maintain ability of the proceedings for ejectment.
The finding re corded by the Rent Appellate Tribunal that by necessary implication, the married daughters surrendered their tenancy rights inherited under the Act.
After the demise of Lalu, the daughters evinced no interest to assert their rights, is well justified.
Once that is found to be so, their nonim pleadment as respondents does not vitiate the action for non joinder of them as necessary parties nor maintainability of the proceedings for ejectment itself.
The High Court committed grave errors of law in allowing the writ petition and dismissing the application for ejectment.
The order of the High Court is set aside and that of the Prescribed Authority and the Tribunal are restored.
It is not in dis pute that the landlady offered a reasonable portion of the premises to the respondent to an extent of 3 1/2 'x 6 ' in the Varanda but respondent had refused to accept that offer but in this Court the learned counsel for the respondents re quested to allow the tenant to retain the portion offered.
In fairness, Mr. Agarwal, learned senior counsel for the appellant, has not objected to it.
Accordingly it is open to the tenant to occupy the portion offered by the appellant and vacate the other portion which is required by the peti tioner for starting the business of her son.
The appellant would carve out the portion in a suitable and convenient manner to run the business by the respondent.
The appeal is allowed with the above modifications, but in the circum stances parties are directed to bear their own costs.
N.P.V. Appeal Allowed. [/INST] The appellant landlady, filed a suit under s.21 of the U.P. Urban Building (Regulation of letting, rent and evic tion) Act, 1972 for eviction of the tenant on the ground of bona fide requirement The prescribed authority and the Appellate Tribunal found as a fact that the appellant 's requirement was bona fide and decreed the suit.
But, the High Court set aside the order on the sole ground that the married daughters of the original tenant, who were the necessary parties, were not impleaded and, therefore, the non joinder of the necessary parties disentitled the appel lant landlady to have the ejectment of the tenants, namely, the sons and the widow of the deceased tenant.
Allowing the appeal of the landlady, this Court, HELD: 1.1 Section 3(a)(2) of the U.P. Urban Building (Regulation, of letting, rent and eviction) Act, 1972 postulates that tenant in relation to a building means a person by whom rent is payable, and on the tenant 's death, in the case of a non residential building, his heirs.
There fore, as defined under s3(a)(2) all heirs of the tenants are the tenants who succeeded intestate as per the Hindu Succes sion Act, 1956.
Consequently, the married daughters are tenants within the meaning of section 3(a)(2), and entitled to succeed to the tenant 's lease hold rights under the Act, including not merely to the liabilities to pay rent but also to continue the business until duly ejected as per the provisions of the Act.
[537 B C] 1.2 However, in the instant case, the original tenant died in 1965.
536 Thereafter, the proceedings were initiated in 1974.
Till then, one of the sons of the deceased tenant.
namely, the first respondent was in occupation of the premises and did carry on business.
The married daughters never participated, nor claimed interest in the business conducted by the first respondent and even before the death of the father, they were married and they were living with their husbands else where.
The Rent Appellate Tribunal has found that by neces sary implication, the married daughters surrendered their tenancy rights inherited under the Act, since after the demise of the original tenant, the daughters evinced no interest to assert their rights.
In view of this, their non impleadment as respondents does not vitiate the action for non joinder of them as necessary parties nor maintain ability of the proceedings for ejectment itself.
[S36 H, 537 AB, D E] </s> |
<s>[INST] Summarize the following judgement: Appeal No. 1677 of 1984.
From the Judgment and Order dated 7.7.1983 of the Rajasthan High Court in S.B. Civil Misc.
Appeal No. 6 of 1983.
S.K. Jain, Mrs. Pratibha Jain and Sudhanshu Atreya for the Appellant.
C.K. Sucharita, Y. Prabhakara Rao (N.P.) and Ganpathi Iyer Gopalkrishnan for the Respondents.
544 The following Order of the Court was delivered: This appeal by special leave under article 136 of the Constitution is against the order of the High Court of Rajasthan dated July 7, 1983.
The appellant a partnership firm consists of nine partners of which Satya Narain is one of the partners.
On July 2.5, 1973 Satya Narain submitted a tender to the respondents offering to supply 1000 quintals of Gram Dal at the rate of Rs. 185/ per bag.
This was accepted by the respondents by letter dated August 28, 1973 followed by confirmation letter by the firm on August 31, 1973.
It is the case of the respondents that the appellant committed breach of the contract and as a result, the re spondents filed an application under sec.
20 of the Arbitra tion Act, 1940 (for short as the 'Act ') before the District Court for making reference for arbitration in terms of the contract.
The Addi.
District Judge after considering the evidence and the objections allowed the application and referred the dispute for arbitration.
Against that order, the appeal was filed and the High Court confirmed the order of the Addi.
District Judge.
The contention raised by Sri Sushil Kumar Jain, learned counsel for the appellant is that by operation of Sec.
19(2)(a) of the (for short as the 'Partnership Act ') there is no implied authority given to one of the partners to refer the dispute relating to the business of the firm for arbitration and therefore the reference made by the court, pursuant to a contract entered into by Satya Narain on behalf of the firm, is without jurisdiction.
The High Court found as a fact that none of the partners have entered into the witness box to deny the validity of the contract nor raised any objection that they had not authorised Satya Narain to enter into the contract nor that they were bound by any acts done by him.
It is also found that Satya Narain signed the tender and at that time no other .partners raised objection regarding the signing of the tender by Satya Narain on behalf of the firm.
In view of these facts it is clear that they ratified the contract.
It is also further to be noted that.
in terms of the contract, the corporation had appropriated the security deposit made by the appellant firm and that was not objected to at any time.
This itself would fortify.
the conclusion that the firm had entered into a binding contract with the corpora tion and contract contained the arbitration clause which binds the partners.
The contention raised that the contract is void and that in terms of the contract, making a refer ence is without jurisdiction bears no substance.
The High Court found that Satya Narain has implied power to con duct business on behalf of the partnership firm and the implied authority 545 binds all the partners.
18 of the Partnership Act postulates that "subject to the provisions of the Act a partner is the agent of the firm for the purposes of the business of the firm".
19(1) adumbrates that "subject to the provisions of Sec.
22 the act of the partners which is done to carry on in the usual way the business of the kind carried on by the firm, binds the firm".
Thus, Satya Narain has implied authority to enter into the contract with the corporation to supply the Dal of 1000 quintals at the contracted rate which is the usual course of the business of the appellant.
But it is settled law that the operation of Sees.
18 & 19(1) is subject to the exceptions engrafted in sub sec.
(2) of Sec. provides that in the absence of any usage or custom of trade to the contrary, the implied authority of a partner does not empower him to submit a dispute relating to the business of the firm to arbitration.
Satya Narain has power to do business on behalf of the firm and in exercise thereof he entered into the contract with the corporation during the usual control of business to supply the Dal.
Then crucial question is whether a valid contract which was not repudiated as per law, binds the other partners? Our answer is yes.
It is not in dispute that the contract engrafts an arbitration clause and in terms thereof the dispute is to be referred to the arbitra tion.
Therefore, the reference made by the Addi.
District Judge under Sec.
20 of the is perfectly within the jurisdiction and in terms of the contract.
It is not the case of the partners that the firm is not carrying on the business of the supply of Dal and that Satya Narain, as found by the Trial Court, was authorised to do business on behalf of the firm.
Under those circumstances, the reference is clearly valid.
We do not find any illegality to interfere with the order of the High Court.
In this view, the decisions in Gopal Das vs Bail Nath & Ors., AIR 1926 Allahabad 238; Finn Radhakishan Chunnilal vs Finn Ashamal lshardas, AIR 1926 Lahore 91; Rajendra Prasad vs Pannalal Champalal & Ors.
AIR 1932 Calcutta 343; Mansab dar Khan vs
M.T. Allah Devi & Ors., AIR 1934 Lahore 48S; Sohanlal vs Finn Madhoram Banwarilal, AIR 19S2 Punjab 240; and M/s Alazappa Cotton Mills vs Indo Bunna Trading Corpora tion, ; cited by learned counsel are of little assistance to the appellant.
In M/s Alazappa Cotton Mills case the original contract does not contain arbitra tion clause.
In a separate letter with a rubber stamp (facsimile) of the firm one of the partners agreed for reference to arbitration.
On those facts it was held that the reference does not bind the other partners.
The appeal is accordingly dismissed.
Since we do not call upon the respondents to argue, there will be no order as to costs.
V.P.R. Appeal dismissed. [/INST] The appellant a partnership firm consisted of nine partners.
One Satya Narain was one of the partners.
He submitted a tender to the respondents on July 25, 1973 on behalf of the firm offering to supply 1000 quintals of Gram Dal at the rate of Rs.185/ per bag.
Tender was accepted by the respondents.
The appellant committed breach of the contract and as a result, the respondents filed an applica tion under sec.
20 of the before the District Court for making reference for arbitration in terms of the contract.
The application was allowed and the dispute was re ferred for arbitration.
Against the order of the Addl.
District Judge, an appeal was filed before the High Court and the High Court confirmed the order of the Additional District Judge.
This appeal by special leave under article 136 of the Constitution is against the order of the High Court.
The appellant contended that by operation of Sec.19(2)(a) of the Partnership Act, 1932, there was no implied authority given to one of the partners to refer the dispute relating to the business of the firm for arbitration and therefore the reference made by the court, pursuant to a contract entered into by one of its partner, Satya Narain on behalf of the firm, was without jurisdiction and that the original con tract did not contain arbitration clause.
In a separate letter with a rubber stamp (facsimile) of the firm, one of the partners agreed for reference to arbitration and there fore the reference did not bind the other partners.
Dismissing the appeal, this Court, 543 HELD: 1.
The operation of Secs.
18 & 19(1) is subject to the exceptions engrafted in sub sec.
(2) of Sec. 19.
19(2)(a) provides that in the absence of any usage or custom of trade to the contrary, the implied authority of a partner does not empower him to submit a dispute relating to the business of the firm to arbitration.
[545B C] 2.
None of the partners have entered into the witness box to deny the validity of the contract nor raised any objection that they had not authorised the partner (Satya Narain) to enter into the contract nor that they were bound by any acts done by him.
When the partner signed the tender, at that time no other partners raised objection regarding the signing of the tender by the partner on behalf of the firm.
In view of these facts it is clear that they ratified the contract.
[544 E F] 3.
The firm had entered into a binding contract with the corporation and contract contained the arbitration clause which binds the partners.
[544 G] 4.
The contract engrafts an arbitration clause and in terms thereof the dispute is to be referred to the arbitra tion.
Therefore, the reference made by the Addl.
District Judge under Sec.
20 of time is within the jurisdiction and in terms of the contract.
[545 D] Gopal Das vs Brij Nath & Ors., AIR 1926 Allahabad 238; Firm Radhakishan Chunnilal vs Firm Ashamal Ishardas, AIR 1926 Lahore 92; Rajendra Prasad vs Pannalal Champalal & Ors, AIR 1932 Calcutta 343; Mansabdar Khan vs M.T. Allah Devi & Or3 '.
, AIR 1934 Lahore 485; Sohanlal vs Firm Madhoram Ban warilal, AIR 1952 Punjab 240; and M/s. Alazappa Cotton Mills vs Indo Burma Trading Corporation, , referred to. </s> |
<s>[INST] Summarize the following judgement: Appeal No. 1518 of 1980.
From the Judgment and Order dated 21.8.1979 of the Allahabad High Court in Civil Misc.
Writ No. 9724 of 1978.
J.D. Jain, A. Subba Rao, C.V.S. Rao and Ms. A. Subha shini for the Appellants.
S.S. Khanduja, V.J. Francis and N.M. Popli for the Respondents.
The Judgment of the Court was delivered by YOGESHWAR DAYAL, J.
This appeal by special leave is directed against the judgment of the Division Bench of the High Court of Allahabad dated 21st August, 1979 whereby the High Court allowed the writ petition filed by the four petitioners therein and issued a writ of mandamus directing respondents 1, 2 and 3 (Comptroller & Auditor General of India, New Delhi, The Accountant General, I, U.P. Allahabad and the Union of In&a) not to enforce the circular dated 25th January, 1973 as a rule regarding reservation of Sched uled Caste and Scheduled Tribes in relation to filling up of posts by promotion on the basis of seniority subject to fitness.
The aforesaid respondents were further restrained from promoting respondents 4, 5 and 6 in the writ petition to the post of Accounts Officers on the basis of the im pugned circular dated 25th January, 1973.
We would continue to refer to the parties as per the cause title of the writ petition in the High Court.
The writ petition came to be filed by the petitioners, M.L. Mehrotra and three others.
The petitioners said to be working as Section Officers in the office of the Accountant General I, II and III, Allahabad and they prayed for re straining respondents 1, 2 and 3 from promoting Yamuna Prasad Kureel, respondent No. 4, Ram Raj Ram, respondent No. 5 and Ram Dihal, respondent No. 6, in the writ petition, who were working as 485 Section Officers and belonged to the Scheduled Caste, to the post of Accounts Officer.
The case of the writ petitioners was that they were senior to respondents 4, 5 and 6 and they cannot be promoted to the post of Accounts Officers through seniority quota before the writ petitioners.
Their case was that the promo tion to the post of Accounts Officers is regulated by the rules made by the President in exercise of the powers con ferred by proviso to Article 309 and clause (5) of Article 148 of the Constitution after consultations with the Comp troller and Auditor General of India.
These rules are known as "Indian Audit & Accounts Department (Administrative Officers, Assistant Accounts Officers and Assistant Audit Officers) Recruitment Rules, 1963" (hereinafter referred to as the Rules).
In the counter affidavit filed it was pleaded that the Assistant Accounts Officers and Assistant Audit Officers are now called Accounts Officers and Audit Offi cers.
The aforesaid rules lay down the method of recruitment to the post of Administrative Officers, Assistant Accounts Officers and Assistant Audit Officers in the Indian Audit and Accounts Department.
The method of recruitment laid down in these rules in respect of these posts is by promotion.
They do not contain any specific provisions for reservation for Scheduled Caste and Scheduled Tribes.
The appellants herein relied upon the administrative instructions contained in the circular letter dated 25th January, 1973 issued by the Comptroller and Auditor General of India for the purpose of reservation for Scheduled Castes and Scheduled Tribes for these promotion posts.
The writ petitioners challenged the validity of these administrative instructions contained in the circular dated 25th January, 1973.
It was further pleaded that the lowest post in the Office of the Accountant General U.P. 1, I1 and II1 is of group 'D ' employees who are selected directly on the basis of merit.
There is a quota fixed for Scheduled Castes and Scheduled Tribes.
Then there are posts of clerks, a fixed quota percentage of which is filled in directly through examination and quota is fixed for Scheduled Castes and Scheduled Tribes.
The remaining posts of clerks are filled in by selection from class 'D ' employees by promotion on the basis of seniority.
The next higher posts are the post of Auditors.
A fixed percentage whereof is filled in directly through examination and a quota is fixed for Scheduled Castes and Scheduled Tribes.
The remaining posts of Auditors are filled in by promotion from clerks on the basis of seniority.
The next higher post is of Section Officers in which the writ petitioners and respondents to the writ petition were working.
These posts are filled in from the cadre of Auditors and clerks.
The Auditors as well as 486 clerks have to pass examination known as Subordinate Ac counts Service.
Normally more candidates pass this examina tion then the number of posts available for the Section Officers.
Here also there is a quota fixed for Scheduled Castes and Scheduled Tribes candidates.
The post of Accounts Officers (i.e. the posts in question) are filled in by promotion from Section Officers.
50 per cent of the vacancies are filled on the basis of merit (called the merit quota) and the remaining 50 per cent are required to be filled in on the basis of seniority (called seniority quota).
Normally the number of candidates avail able in the merit quota are less than 50 per cent of the posts available; hence the number of posts available in seniority quota is usually more than 50 per cent.
It was pleaded in the counter affidavit that the promotion will continue to be made in accordance the existing rules and orders on the subject namely those referred to above includ ing the circular dated 25th January, 1973, validity of which had been challenged.
The High Court took the view (1) that there is no reser vation for Scheduled Castes and Scheduled Tribes made under the rules; (2) that the administrative instructions con tained in the circular No.172 NGE ll/56 72 1 dated 25th January, 1973 issued from the office of Comptroller and Auditor General of India, New Delhi, inter alia, to all the Accountants General and the offices subordinate to them, on its own did not make a provision for the proposed reserva tion in pursuance to the policy decision.
(3) It also took the view that the statutory rules were not silent on the subject of promotion to the post of Assistant Accounts Officer (now called Accounts Officers).
This being so, it was not open to the Government to supplement the statutory rules to fill up the gaps.
This could be done by only amend ing the statutory rules in compliance with the provisions of Article 148(5) of the Constitution.
The High Court drew support from a Division Bench of the Madras High Court in Accountant General, Tamil Nadu & Others vs Doraswami & Oth ers, 1974 Labour Industrial Cases 384 and the decision of the Orissa High Court in the Original Jurisdiction cases No. 357 and 359 of 1977, P. Parbhakar Rao vs Union of India decided on 31st of July, 1978.
The High Court took the view that the administrative Instructions contained in the circu lar letter dated 25th January, 1973 cannot help respondents and no reservations for Scheduled Castes and not Scheduled Tribes can be made on that basis.
The High Court accordingly allowed the writ petition as stated earlier.
Before the High Court the counsel for the writ petition ers also submitted that the administrative instructions contained in the circular dated 487 25th January, 1973 could not be said to be the rules made by the President after consultations with the Comptroller and Auditor General of India as contemplated by Article 148(5) of the Constitution and referred to the language of the circular letter dated 25th January, 1973.
A supplementary counter affidavit of Shri P.P. Dhir, Accountant General l had also been filed where it was stated that the language used in the circular in substance, are the orders of the President.
The High Court took the view that no other mate rial has been referred to in the counter affidavit filed, which will show that the instructions contained in the circular dated 25th January, 1973 were based on the decision of the President of India.
However, the High Court held that they considered it unnecessary to go into this question any further since they had already held that the administrative instructions contained in the circular were of no avail to the respondents in the writ petition as they could not alter the statutory rules in force.
It appears the Department of Personnel issued a memoran dum No. 27/2/71.Estt. (SCT) dated 27th November, 1972 to all Ministries.
The subject of this memorandum was reservation for Scheduled Castes and Scheduled Tribes in posts filled by promotion on the basis of seniority subject to fitness.
This memorandum noted in paragraph 2 thereof that the policy in regard to reservation for Scheduled Castes and ScheduLed Tribes officers in posts to be filled by promotion on the basis of seniority subject to fitness now has been reviewed and it has been decided, in supersession of the orders contained in the aforesaid para 2 C of the O.M. dated 11th July, 1968 that there will be reservation at 15 percent for Scheduled Castes and 7 1/2 per cent for Scheduled Tribes in promotions made on the basis of seniority subject to fit ness, in grades or services in which the element of direct recruitment, if any, does not exceed 50 per cent and gave detailed procedure how promotions have to be made on the basis of seniority subject to fitness in the light of the aforesaid reservations.
It was stated in the memorandum that the Ministry of Finance etc.
arc requested kindly to bring the above decisions to the notice of all attached and subor dinate offices under them and semi Government and autonomous bodies.
This memorandum also stated in paragraph 6 thereof as under: "In so far as officers serving under Indian Audit & Accounts Department are concerned, separate orders will issue in due course.
" Thereafter, Shri section Krishnan, Deputy Secretary, De partment of Personnel, Cabinet Secretariat, New Delhi wrote a D.C. No. 27/2/71 Estt 488 (SCT) dated 1st January, 1973 to Shri R. Hariharan, Assist ant Comptroller & Auditor General (N), Office of the Comp troller and Auditor General of India, New Delhi.
In this letter the Deputy Secretary of the Department of Personnel wrote as under "Dear Shri Hariharan, Please refer to your D.O. letter No.2859/NGEII/56 72 dated the 24th November, 1972 regarding reservations for Scheduled Castes and Scheduled Tribes in posts filled by promotion on the basis of seniority subject to fitness.
A copy of the orders issued in this Department 's O.M. No.27/2/71 Est(SCT) dated 27.11.1972 has already been endorsed to the C. & A.G. A copy of the said O.M. is enclosed for ready reference.
We shall be grateful to know whether separate instructions which are pro posed to be issued by C. & A.G. in this regard in respect of persons serving under the Indian Audit & Accounts Department have since been finalised.
The draft of the instructions may please be shown to us, if since finalised.
I need hardly emphasise that it is desirable to expedite issue of such orders.
Yours sincerely, sd/ (section Krishnan)" Thereafter, the Assistant Comptroller & Auditor General (P) also met the said Deputy Secretary of the Department of Personnel and also sent a draft of instructions proposed to be issued to the offices under the Comptroller and Auditor General of India to Deputy Secretary, Department of Person nel vide a D.O.letter No.20 NGE II/56 72 I dated 5th Janu ary, 1973 by Shri R. Hariharan, Assistant Comptroller and Auditor General, Office of Comptroller and Auditor General of India, New Delhi.
Alongwith this letter a draft of in structions proposed to be issued to the offices under the Comptroller and Auditor General was forwarded.
The Deputy Secretary, Department of Personnel, Shri section Krishnan vide their communication dated 22nd January, 1973 informed Shri R. Hariharan, aforesaid, that the draft of instructions proposed to be issued were in order and it was requested that a copy of the instructions when issued may be 489 sent to their department.
It was in pursuance of these consultations that the impugned circular dated 25th January, 1973 was issued from the office of the Comptroller and Auditor General of India, New Delhi.
For facility of under standing the relevant part of the circular dated 25th Janu ary, 1973 issued from the office of the Comptroller and Auditor General of India, New Delhi is reproduced hereunder: No.172 NGE II/56 72 I OFFICE OF THE COMPTROLLER & AUDITOR GENERAL OF INDIA, NEW DELHI 1.
Dated the 25 1 1973.
To All Accountants General and Offices subordi nate to them.
All Chief Auditors of Rlys.
and offices subor dinate to them.
All Regional Directors of Commercial Audit, Chief Auditors of Commercial Accounts and offices subordinate to them.
The Directors, I.A. & A.S. Staff College, Simla.
The Director of Audit, Defence Services and offices subordinate to him.
The Assistant Comptroller and Auditor General (P).
(For G.E.I, G.E.II, &OE & A.Sections) Subject: Reservation for Scheduled Castes and Scheduled Tribes in posts filled by promotion promotions on the basis of sen iority subject to fitness.
Sir, I am to invite a reference to para 3(c) of this office circular letter No. 1989 NGE.II/89 68, dated 3.10.1968 according to which there is no reservation for Scheduled Castes & 490 Scheduled Tribes in appointments made by promotion on the basis of seniority subject to fitness although cases involving supersession of Scheduled Castes and Scheduled Tribe Officers in Class II appointments are required to be submitted for prior approval of the Comptroller and Auditor General of India and the cases involving supersession of Scheduled Caste and Scheduled Tribe officers in Class III & Class IV appointments have to be report ed within a month to the Comptroller and Auditor General of India for information.
The policy in regard to reserva tions of Scheduled Caste and Scheduled Tribe officers in posts filled by promotion on the basis of seniority subject to fitness has now been reviewed by the Government of India in consultation with the Comptroller and Auditor General of India and it has been decided, in supersession of the orders contained in the aforesaid para 3(c) of our circular letter dated 3.10.1968 that there will be reservation at 15% for Scheduled Caste and 71% for Sched uled Tribes in promotions made on the basis of seniority subject to fitness in appointments to all Class I, Class II, Class III and Class IV posts in grades, of services in which the element of direct recruitment, if any does not exceed 50%.
The above orders will necessitate reservation for Scheduled Castes and Scheduled Tribes in promotions made on the basis of seniority subject to fitness to the following grades in the I.A. & A.D. Promotions from Class III to Class II The existing procedure of promotions to A.Os.
grade will not undergo any change, as far as the posts filled by selection is con cerned.
Reservation to the extent of 15% for Scheduled Castes and 7 1/4% for Scheduled Tribes will, however, have to be made with reference to the number of posts of Accounts Officers filled in a year on the basis of seniority subject to fitness and for this purpose, a roster maintained in respect of such promotions.
491 4.
The following procedure may be followed to give effect to the decision men tioned in paragraph 2 above.
The above instructions take effect from 27.11.1972 except where a Select List, if any, for promotion by seniority subject to fitness has ' already been prepared by a De partmental Promotion Committee and approved by the appropriate authority before issue of these orders (i.e. 27.11.1972).
The receipt of this circular letter may kindly be acknowledged.
Yours faithfully, Sd/ (R. Hariharan) Asstt.
Comptr.
Genl.(N) The High Court is not right in stating that there cannot be an administrative order directing reservation for Sched uled Castes and Scheduled Tribes as it would alter the statutory rules in force.
The rules do not provide for any reservation.
In fact, it is silent on the subject of reser vation.
The Government could direct the reservation by executive orders.
The administrative orders cannot be issued in contravention of the statutory rules but it could be issued to supplement the statutory rules.
(See: the observa tions in Santram Sharma vs State of Rajasthan and Anr., ; In fact similar circulars were issued by the Railway Board introducing reservations for Scheduled Castes and Scheduled Tribes in the Railway services both for selection and non selection categories of posts.
They were issued to implement the policy of the Central Government and they have been upheld by this Court in Akhil Bhartiya Soshit Karamchari Sangh (Railways) vs Union of India & ors.
; The High Court has also touched upon the validity of the impugned circular and stated that they were not issued by the President after consultation with the Comptroller & Auditor General.
In the present case, the President has not issued the circular, but Comptroller and Auditor General has issued it.
There was however, proper consultation between the Government and the Comptroller & Auditor General for issuing the circular.
The infirmity pointed out that it was not issued in the name of the 492 President, therefore, relates only about the form and not with regard to the substance.
The circular of course, ought to have been issued in the name of the President as required under Article 148(5) of the Constitution, as it affects the service conditions of persons in the Audit and Accounts Department.
But since the Government has approved the circu lar and the circular was in accordance with the declared policy of reservation, we do not want to restrain the Comp troller & Auditor General from enforcing it.
We are thus of the view that the impugned circular is valid and binding.
The circular by its own provides for reservation.
The authorities concerned must take that into account while affecting promotions under the rules.
The result is that the impugned judgment of the High Court is set aside and the appeal is allowed.
In the circumstances of the case, however, we make no order as to costs.
N.P.V. Appeal allowed. [/INST] The respondents, Section Officers in the offices of the Accountant General I, II and III, Allahabad, filed a writ petition before the High Court challenging the validity of administrative instructions contained in Circular No. 172 NGE 11/56 72 I dated 25th January, 1973 issued by the first appellant, regarding the reservations for Scheduled Castes and Scheduled Tribes in relation to filling up of posts by promotion on the basis of seniority subject to fitness, and praying that the first appellant and two others be re strained from promoting three of the Section Officers, belonging to the Scheduled Castes to the post of Accounts Officer, contending that since the respondents were senior, those three Section Officers could not be promoted to the post of Accounts Officers through seniority quota before the respondents.
It was also contended that the promotion to the post of Accounts Officers was regulated by Indian Audit & Accounts Department (Administrative Officers, Assistant Accounts Officers and Assistant Audit Officers) Recruitment Rules 1963 made by the President in exercise of the powers conferred by proviso to Article 309 and clause (5) of Arti cle 148 of the Constitution after consultations with the Comptroller and Auditor General of India, which laid down that recruitment to the post of Administrative Officers, Assistant Accounts Officers and Assistant Audit Officers in the Indian Audit and Accounts Department was by promotion, that the rules did not contain any specific provisions for reservation for Scheduled Castes and Scheduled Tribes and hat the administrative instructions contained in the circu lar could not be said to be rules made by the President after consultation with the first 483 appellant as contemplated by Article 148(5) of the Constitu tion.
Allowing the writ petition, the High Court held that there was no reservation for scheduled castes and scheduled tribes made under the rules, that the administrative in structions contained in the circular in question did not make provision for the proposed reservation in pursuance to the policy decision and that the statutory rules were not silent on the subject of promotion to the post of Assistant Accounts Officers, subsequently designated as Accounts Officers and, therefore, it was not open to the Government to supplement the statutory rules to fill up the gaps, which could be done by only amending the statutory rules in com pliance with the provisions of Article 148(5) of the Consti tution.
Hence the appeal by the Department.
Allowing the appeal, this Court, HELD: 1.1 The High Court is not right in stating that there cannot be an administrative order directing reserva tion for Scheduled Castes and Scheduled Tribes as It would alter the statutory rules in force.
The rules do not provide for any reservation.
In fact, they are silent on the subject of reservation.
The Government could direct the reservation by executive orders.
No doubt, administrative orders cannot be Issued In contravention of the statutory rules, but they could be issued to supplement the statutory rules.
In fact, similar circulars were issued by the Railway Board introduc ing reservations for Scheduled Castes and Scheduled Tribes In the Railway Services both for selection and non selection categories of posts.
They were issued to Implement the policy of the Central Government.
[491 D F] Santram Shams vs State of Rajasthan and Anr., ; and Akhil Bhartiya Soshit Karamchari Sangh (Rail ways) vs Union of India & Ors., ; , referred to.
1.2 It is true that the President has not issued the circular in question but the first appellant has issued it.
There was, however, proper consultation between the Govern ment and the first appellant for issuing the circular.
The infirmity pointed out that it was not issued in the name of the President, therefore, relates only to the form and not with regard to the substance.
The circular, of course, ought to have been issued in the name of the President as required under.
Article 148(5) of the Constitution, as it 484 affects the service conditions of persons in the Audit and Accounts Department.
But since the Government has approved the circular and the circular was in accordance with the declared policy of reservation, the first appellant cannot be restrained from enforcing it.
[491 G H, 492 A B] The circular in question is valid and binding.
The circular by itself provides for reservation.
The authorities concerned must take that into account while effecting promo tions under the rules.
[492 B] </s> |
<s>[INST] Summarize the following judgement: Appeal No. 2383 of 1988.
From the Judgment and Order dated 1.4.1988 of the Hima chal Pradesh High Court in Civil Revision No. 29 of 1988.
N.S. Hegde and Ms. Madhu Moolchandani for the Appellant.
469 Ms. Asha Jain Madan for the Respondent.
The Judgment of the Court was delivered by R.M. SAHAI, J.
The short but interesting question of law that arises or consideration in this appeal, directed against judgment of the Himachal Pradesh High Court, is if possession given to competent authority under Himachal Pradesh Requisition and Acquisition of Immovable Property Act, 1972 (for brevity 'Requisition Act ') is vacation of premises without sufficient cause within second proviso to sub section (3) of Section 14 of Himachal Pradesh Urban Rent Control Act, 1987 deemed to have come into force with effect from 17th November 1971 (hereinafter referred to as the Act ').
Sub section (3) of Section 14 is extracted below: "(3) A landlord may apply to the Controller for an order directing the tenant to put the landlord in possession (a) in the case of a residential building, if (i) he requires it for his own occupation: Provided that he is not occupying another residential building owned by him, in the urban area concerned: Provided further that he has not vacated such a building without suffi cient cause within five years of the filing of the application, in the said urban area;" It enables a landlord to obtain an order for eviction of the tenant if he requires the building for his own occupa tion and he has no other building in the area concerned.
This right however stands deferred under second proviso for a period of five years if the landlord has vacated a build ing in his use without sufficient cause.
The question is how the expression he has not vacated such building without sufficient cause ' in the second proviso should be construed.
It has two aspects one whether the proviso applies to volun tary vacation only or it extends to vacating under pressure of legal proceedings such as requisition order by competent Authority.
Second even assuming that the expression 'vacate such building ' is given wide interpretation does giving up possession in consequence of a requisition order amounts to vacation without sufficient cause? Vacate, normally, means to go away, to leave.
The setting or context in which the word has been used does not indicate ,my different meaning.
Nor it is 470 necessary to decide if it applies to voluntary vacation only as it was urged that even assuming that giving up possession in pursuance of requisition order is included in the proviso can it be said to be without sufficient cause Sufficient cause is an expression which is found in various statutes.
It has been construed liberally in keeping with its ordi nary dictionary meaning of adequate or enough.
That is any justifiable reason resulting in vacation has to be under stood as sufficient.
cause.
For instance economic difficulty in financial stringency or family reasons may compel a land lord to let out building in his occupation.
So long it is found to be genuine and bona fide and would amount to vacat ing a building for sufficient cause.
And the bar of second proviso stands lifted.
In other words if the vacation of the building was not a pretence or pretext the proviso could not frustrate the right of landlord to approach the controller for necessary direction to tenant to hand over possession to him.
Vacation of a building by landlord in pursuance of an order of requisition by the competent authority could not be characterised as, 'not without sufficient cause '.
A landlord has no option.
He is required to vacate under constraint of law.
Therefore the statutory restriction created by second proviso would not apply in such a case.
Does it make any difference in law or the action of the landlord is rendered without sufficient cause as he did not file any objection in requisition proceedings either under mistaken advice or ignorance of law? For this it is necessary to narrate facts in brief.
The appellant is owner of Kennilworth house/Simla and its annexure He was in occupation of first floor of Kennilworth house.
Second floor was let out to the District Judge, who, later was elevated to the Bench.
For his occupa tion the entire house was requisitioned.
The appellant did not file any objection.
After vacating, the building he applied for eviction to respondent from the annexe.
His application was rejected as it would found to be in teeth of the second proviso.
It was held that the order of requisi tion was passed because the appellant did not show any cause be filing any objection under sub section (2) of Section 3 of the Requisition Act even though proviso to the sub sec tion precluded any property or part from being requisitioned if it was in bonafide use by the owner.
The explanation of the appellant that he was advised by his lawyer not to file an objection as the building was required for a High Court judge, was not accepted.
Validity or invalidity of an order under Requisition Act could not adversely reflect on sufficiency of cause under Rent Control Act.
Reason for either arises in different circumstances.
Vacating a building, even under an incorrect order passed by a competent authority under Requis 471 tion Act would be for sufficient reason.
The Rent Control authorities could not examine merit of the order under Requisition Act.
Therefore it could not be a valid consider ation for holding that the building was vacated without sufficient cause.
The courts below thus committed an error of law in applying second proviso to reject the application filed on behalf of the appellant.
Even the finding on requirement of the appellant to occupy the building is not well founded.
The inference drawn by the two courts below that the appellant being a rich man would not occupy the annexe or that he would use it occa sionally is not well founded.
It being undisputed that the appellant has no other building in the urban area and it having been found that he vacated the other building for sufficient reason there was no fetter on the right of appel lant to seek eviction of the tenant.
In the result this appeal succeeds and is allowed.
The orders of all the courts below are set aside.
The applica tion of appellant shall stand allowed.
He shall approach the Rent Control authorities for appropriate directions.
Parties shall bear their own costs.
T.N.A Appeal allowed. [/INST] "Vacation " "Sufficient Cause" Meaning of.
Section 14(3) of the Himachal Pradesh Urban Rent Control Act 1987 enables a landlord to obtain an order for eviction of the tenant if he requires the building for his own occu pation and he has no other building in the area concerned.
This right however stands deferred under second proviso for a period of five years if the landlord has vacated a build ing in use without sufficient cause.
The appellant, an owner of a house, was in occupation of first floor of the house, while the second floor was let out to a Judge.
His entire house is requisitioned for occupation of a Judge.
The appellant did not file any objection under section 3(2) of the Requisition Act.
However, after vacating the building he applied for eviction of respondent.
The Courts in view rejected his application by applying the second proviso to section 14(3) of the Himachal Rent Control Act.
468 Allowing the Landlord 's appeal and setting aside the order of Courts below, this Court, HELD: 1. 'Sufficient cause ' is an expression which is found in various statutes.
It has been construed liberally in keeping with its ordinary dictionary meaning as adequate or enough.
That is any justifiable reason resulting in vacation has to be understood as sufficient cause.
For instance economic difficulty or financial stringency or family reasons may compel a landlord to let out a building in his occupation.
So long it is found to be genuine and bona fide it would amount to vacating a building for suffi cient cause.
And the bar of second proviso stands lifted In other words if the vacation of the building was not a pre tence or pretext the proviso could not frustrate the right of landlord to approach the controller for necessary direc tion to tenant to hand over possession to him.
[470 B C] 1.1 Vacation of a building by landlord in pursuance of an order of requisition by the competent authority could not be characterised as 'not without sufficient cause '.
A land lord has no option.
He is required to vacate under con straint of law.
Therefore the statutory restriction created by second proviso would not apply in such a case.
[470 D] 2.
Validity or invalidity of an order under Requisition Act could not adversely reflect on sufficiency of cause under Rent Control Act.
Reason for either arises in differ ent circumstances.
Vacating a building, even under an incor rect order passed by a competent authority under Requisition Act would be for sufficient reason.
The Rent Control author ities could not examine merit of the order under Requisition Act Therefore it could not be a valid consideration for holding that the building was vacated without sufficient cause.
The courts below thus committed an error of law in applying second proviso to reject the application filed on behalf of the appellant.
[470 H, 471 A B] </s> |
<s>[INST] Summarize the following judgement: 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. [/INST] 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. </s> |
<s>[INST] Summarize the following judgement: peaINo. 4235 of 1991.
From the Judgment and Order dated 5.6.1987 of the Cal cutta High Court in original order No. 129 of 1985 and/915 of 1983.
A.K. Ganguly, A.K. Chakraborty, A.D. Sikri and Ms. Mridula Ray for the Appellants.
D.N. Mukherjee and Rathin Das for the Respondents.
The Judgment of the Court was delivered by PUNCHHI, J.
We are required in this matter to interplay some of the provisions of the Urban Land (Ceiling and Regu lation) Act, 1976 to determine whether the appellant herein had any excess vacant land.
Probhavati Poddar (Proforma respondent herein) was the owner of two properties in the city of Calcutta being (i) premises No. P 290, C.I.T. Road, comprising 414.56 sq.
of land of which 321 sq.
was covered by a build ing, constructed thereon long before the coming into force of the Urban Land (Ceiling and Regulation) Act, 1976 (hereafter referred to as 'the Act '), with a dwelling unit therein, and (ii) property No. P 210, C.I.T. Scheme VII(M), Calcutta comprising 339.65 sq.
of vacant land.
Hereaf ter these would be referred to as the 'built up property ' and 'vacant property ' respectively.
The exact date/period of the construction of the built up property is not available on the present record but the litigation has proceeded on the footing that it was constructed long before February 17, 1976, the day when the Act came into force in the State of West Bengal.
The State 1egislatures of 11 States, including the State of West Bengal, considered it desirable to have a uniform legislation enacted by Parlia 506 ment for the imposition of ceiling on urban property for the country as a whole, and in compliance with clause (1) of Article 252 of the Constitution, passed a Resolution to that effect.
Accordingly, the Urban Land (Ceiling and Regulation) Bill, 1976 was introduced in the Lock Sabha on January 28, 1976 covering all the Union Territories and the 11 resolving States.
After the passing of the Bill by the Parliament, the Act came into force on February 17, 1976 at once.
Later from time to time, the Act was adopted by some other States after passing Resolutions under Article 252(1) of the Constitu tion.
The Act now apparently is in force in 17 States and all the Union Territories in the country.
The primary object and purpose of the Act was to provide for the imposition of the ceiling on vacant land in urban ag glomerations, for the 'acquisition of such land in excess of the ceiling limit, to regulate the construction of buildings on such land and for matters connected therewith, with a view to preventing the concentration of urban land in the hands of a few persons and speculation and profiteering therein, and with a view to bringing about an equitable distribution of land in urban agglomerations to sub serve the common good, and in furtherance of the directive princi ples of Articles 39(B) & (C) of the Constitution.
These features were .spelled out by this Court in Union of India etc.
V.B. Chaudhary etc.
[1979]3 SCR 802.
That it is valid piece of legislation, save and except Section 27(1), and had received the protective umbrella of Article 31 C as it stood prior to its amendment by 42nd Amendment Act was held by this Court in Maharao Sahib Shri Bhim Singhji etc.
vs Union of India & Others.
[1981]1 SCC 166. "Appointed day" has been defined in Section 2 A of the Act.
It means (i) in relation to any State to which the Act applies in the first instance, the date of introduction of the Urban Land (Ceiling and Regulation) Bill, 1976 in Par liament, and (ii) in relation to any State which adopts the Act under Clause (1) of Article 252 of the Constitution, the date of such adoption.
In relation to the State of West Bengal, in which the town of Calcutta is situated, the "appointed day" is January 28, 1976.
It is thus evident that between the appointed day and the date of enforcement of the Act, there is a 20 day 's gap.
The Act ordains a ceiling limit of 500 sq. mtrs.
for the urban agglomeration of Calcutta, as per item 15 of Category A in .Schedule
I of the Act.
Both the properties of Smt.
Poddar,.
the proforma respondent herein, thus became liable to be screened by the Authorities under the Act.
Before hand on July 8, 1978, Smt.
Poddar entered into an agreement with Smt.
Meera Gupta, the appellant herein, to sell the vacant property on 507 terms entered.
On November 23, 1978, the proposed vendor and the proposed vendee gave notice under Section 26 of the Act to the Competent Authority, appointed for the purpose of the proposed sale.
On August 7, 1980, the competent authority in exercise of powers under Section 6(2) of the said Act, issued a notice under Section 6(1) thereof to Smt.
Poddar directing her to file a statement in Form No. 1 on the basis that she held vacant land in the Calcutta Urban Area in excess of the ceiling limit of 500 sq. mtrs.
Having got no response, a reminder was sent to her, but in vain.
The Competent Authority thereafter initiated suomo to proceed ings against Smt.
Poddar and sent her a draft statement on September 18, 1979, exercising powers under Section 8(1) of the Act intimating that she could submit her objection, if any, to the draft statement.
It was specified in the said statement that she was tentatively required to surrender 254.21 sq.
of land (figure arrived by totalling .414.56 sq. mtrs.
of the built up property and 339.65 sq. mtrs.
of the vacant property to 754.21 sq. mtrs, are substracting therefrom 500 sq.
resulting in 254.21 sq. mtrs.).
The objections of Smt.
Poddar filed to the draft statement were rejected by the Competent Authority, who published the final statement under section 9 of the Act vesting the said 254.21 sq.
of excess land in the State, and the same was communicated to Smt.
Poddar on June 22, 1981.
She preferred an appeal under Section 33 of the Act before the Special Secretary, Land and Land Reforms Department, Government of West Bengal, the Appellate Author ity under the Act, but the same was dismissed in default on January 18, 1983.
Before hand the appellant herein filed suit No. 121 of 1981 against Smt.
Poddar in the Calcutta High Court claiming specific performance of the agreement dated July 8, 1978.
On August 21, 1981, a decree for specific performance was passed in favour of the appellant in the usual terms.
Pursu ant to the said decree, the deed of conveyance in respect of the vacant property was executed in favour of the appellant on November 19, 1981 for a consideration of Rs.1,26,000/ paid over to Smt.
Poddar.
Possession of the vacant property was delivered to the appellant and necessary entries were made in the municipal and revenue registers.
The appellant then got scent of the dismissal of the appeal of Smt.
Poddar in default on July 2, 1983.
The appel lant then filed a Review Petition before the Appellate Authority stating, inter alia, that she had become the owner of the vacant property and prayed for retrieval of the same from being treated as excess land in the hands of Smt.
Podar.
The Review Petition was rejected on August 10, 1983, which occasioned a petition under Article 226 of the Consti tution being filed by the appellant in the Calcutta 508 High Court on a variety of grounds.
The Writ Petition was opposed on each and every ground.
The learned Single Judge, before whom the writ petition was placed, taking aid from some observations in two decisions of this Court in Maharao Sahib Shri Bhim Singhji 's case (supra), and State of U.P. & Others vs L J. Johnson & Others, allowed the writ petition on November 27, 1984.
On appeal by the State of West Bengal and its responding officers, a Division Bench of the High Court reversed the judgment and order of the Single Judge on June 5, 1987 in Appeal No. 129 of 1985, leading to this appeal by special leave at the instance of the appellant.
The matter having come before a two Judge Bench of this Court, of which one of us was a member, on 28.7.1988, it was felt that lohnson 's case (supra) may have to be tested, and thus the matter was ordered to be heard by a larger Bench at least of three Judges.
This is how the matter stands placed before us.
As said at the outset, we have to interplay some of the provisions occurring in Chapter 3 titled as "Ceiling on Vacant Lands" in the Act.
We shall presently set out those provisions which have a bearing in the case.
But before we do that we do not wish to leave the impression that we have not viewed the statute as a whole.
The endeavour on our behalf to construe the provisions has not left any part thereof altogether.
So we proceed thenceforth to the interpretative process.
Section 3 of the Act provides that except as otherwise provided in this Act, on and from the commencement of this Act, no person shall be entitled to hold any vacant land in excess of the ceiling limit in the territories to which this Act applies under sub section (2) of Section 1.
Ceiling limit of vacant land in case of every person like the prece dessor in interest of the appellant is 500 sq.
as set up under Section 4.
Clauses (g) and (q) defining "vacant land" and "land appurtenant" and sub sections (9) and (11) of Section 4 which have precedence in engaging our attention are set out below, but without the Explanation to sub sec tion (11), for it is not relevant for our purpose: "2(g) "Land appurtenant", in rela tion to any building means (i) in an area where there are building regulations, the minimum extent of land required under such regulations to be kept as open space for the enjoyment of such building, which is no case shall exceed five hundred square meters; or (ii) in an area where there are no building regulations, an extent of five hundred square metres contiguous to the land oc 509 cupied by such building, and includes, in the case of any building constructed before the appointed day and with a dwelling unit therein, an additional extent not exceeding five hundred square metres of land, if any, contiguous to the minimum extent referred to in subclause (i) or the extent referred to in sub clause (ii), as the case may be; 2(q) "Vacant Land", means land, not being land mainly used for the purpose of agricul ture, in an urban agglomeration, but does not include (i) land on which construction of a building is not permissible under the building regula tions in force in the area in which such land is situated; (ii) in an area where there are building regulations, the land occupied by any building which has been constructed before, or is being constructed on, the appointed day with the approval of the appropriate authority and the land appurtenant to such building; and (iii) in an area where there are no building regulations, the land occupied by any building which has been constructed before, or is being constructed on, the appointed day and the land appurtenant to such building.
4(9) where a person holds vacant land and also holds any other land on which there is a building with a dwelling unit therein, the extent of such other land occupied by the building and the land appurtenant thereto shall also be taken into account in calculat ing the extent of vacant land held by such person.
4(11) For the removal of doubts it is hereby declared that nothing in sub sections (5), (6), (7), (9) and (10) shall be construed as empowering the competent authority to declare any land referred to in sub clause (ii) or sub clause (iii) of clause (q) of section 2 as excess vacant land under this Chapter.
" To begin with "vacant land" as per the definition given in clause (q) of Section 2 means land as such, not being land mainly used for the put 510 pose of agriculture, but situated in an urban agglomeration. "Vacant Land", however, does not include, as per the defini tion, land of three categories.
The first category is land on which construction of a building is not permissible under the building regulations in force in the area in which such land is situated.
But this is a category with which we are not concerned in the instant case.
Johnson 's case (supra) is of this category.
The second category is of land occupied by any building in an area, where there are building regula tions, which has been constructed upon, or is under con struction on the appointed day, with the approval of the appropriate authority, and the land appurtenant to such building.
This means that if the building stood constructed on the land prior to January 28, 1976, the land occupied under the building is not vacant land.
It also covers the land on which any building was in the process of construc tion on January 28, 1976 with the approval of the appropri ate authority.
That too is not "vacant land".
Additionally, the land appurtenant to these two kinds of buildings is also not "vacant land".
The third category likewise conditioned is of land occupied by any building in an area where there are no building regulations, which has been constructed before January 28, 1976 or is in the process of construction on such date, and the land appurtenant to these two kinds of buildings.
The aforesaid three categories of lands would otherwise be "vacant land" but for the definitional exclusion.
The specific non inclusion of these three categories of land is by itself an integral part of the definitional and function al sphere.
The question that arises what happens to lands over which buildings are commenced after the appointed day and the building progresses to complete thereafter.
On the appointed day, these lands were vacant lands, but not so thereafter because of the surface change.
Here the skill of the draftsman and the wisdom of the legislature comes to the fore in cognizing and filling up the gap period and covering it up in the scheme of sub section (9) of Section 4.
The visible contrast between "vacant land" and "any other land" held by a person on which there is a building with a dwell ing unit therein becomes prominent.
The said "any other land" is reckoned and brought at par with the "vacant land" for the purpose of calculating the final extent of vacant land.
It seems to us that the expression "vacant land" in the first portion of the provision connotes land minus land under buildings constructed or in the process of construc tion before and on the appointed day, and the expression "vacant land" in the latter portion of the provision con notes the sum total of "vacant land" of the first order and distinctly the "other land" on which is a building with a dwelling unit therein of which construction commenced after the appointed day, and the land appurtenant thereto.
Such an interpretation is required by the conext 511 as otherwise the concept of the appointed day and the gap period would be rendered otiose.
The legislature cannot be accused to have indulged in trickery or futility in giving something with one hand and taking it away with the other.
"Any other land"in the sequence would thus mean any other built upon land except the one excluded from the expression "vacant land" on account of it being occupied by a building which stood constructed, or was in the process of construc tion, on the appointed day.
Such interpretation of ours finds support from Section 5 of the Act which pursues and does not leave alone transfer of vacant land in the gap period.
It provides as follows: "5.
TRANSFER OF VACANT LAND (1) In any State to which this Act applies in the first in stance, where any person who had held vacant land in excess of the ceiling limit at any time during the period commencing on the appointed day and ending with the commencement of this Act, has transferred such land or part thereof by way of sale, mortgage, gift, lease or otherwise, the extent of the land so trans ferred shall also be taken into account in calculating the extent of vacant land held by such person and the excess vacant land in relation to such person shall, for the pur poses of this Chapter, be selected out of the vacant land held by him after such transfer and in case the entire excess vacant land cannot be so selected, the balance, or, where no vacant land is held by him after the trans fer, the entire excess vacant land, shall be selected out of the vacant land held by the transferee: Provided that where such person has trans ferred his vacant land to more than one per son, the balance, or, as the case may be, the entire excess vacant land aforesaid, shall be selected out of the vacant land held by each of the transferees in the same proportion as the area of the vacant land transferred to him bears to the total area of the land trans ferred to all the transferees.
(2) Where any excess vacant land is selected out of the vacant land transferred under sub section (1), the transfer of the excess vacant land so selected shah be deemed to be null and void.
(3) In any State to which this Act applies in the first instance and in any State which adopts this Act under clause (1) of Article 252 of the Constitution, no person holding vacant land 512 in excess of the ceiling limit immediately before the commencement of this Act shall transfer any such land or part thereof by way of sale, mortgage, gift, lease or otherwise until he has furnished a statement under Section 6 and a notification regarding the excess vacant land held by him has been pub lished under sub section (1.) of Section 10; and any such transfer made in contravention of this provision shall be deemed to be null and void." [Underlining ours].
The underlining is reflective of the scheme of the Act in as much as transfers of vacant land within the gap period are ignorable, and likewise, in our view, vacant land brought under construction of building by a person within the gap period is also ignorable for the purposes of calcu lating the extent of vacant land, so that the provisions of law are not defeated by human ingenuity.
At this juncture, sub section (11) of Section 4 may be noticed.
It provides removal of doubts declaring.
inter alia, that nothing in sub section (9) shall be construed as empowering the competent authority to declare any land referred to in sub clause (ii) or sub clause (iii) of clause (q) of Section 2 as excess vacant land under this Chapter.
Though this provision is not happily worded, yet when mean ingfully construed in the context, it means that a building which gets excluded by virtue of the definition of "vacant land" gets clothed with the protective cloak for not being reckoned again as any other land, over which there is a building with a dwelling unit therein.
Sub section (11) of Section 4 means to convey that what is not vacant land under sub clauses (ii) and (iii) of clause (q) of Section 2 cannot go to add up as "vacant land" under sub section (9) of Section 4 by descriptive overlapping.
If we wipe out the distinction of "vacant land" and "any other land" as demon strated in sub section (9) of section 4, we strangulate and destroy the spirit and life blood of the "appointed day" and the gap period.
We would loathe giving such a construction and would rather opt for a construction which carries out the objectives of the Act, primary of which is to fix a ceiling limit on the holding of vacant lands, conditioned as they are on the appointed day, and as held on the date of the commencement of the Act.
It would be worthwhile at this stage to take note of the expression "land appurtenant" as defined in Section 2(g).
When related to any building in an area where there are building regulations, as well as in an area where there are no building regulations, the additional extent as permitted is based on the principle of contiguity.
The expression applies to buildings constructed before the "appointed day" as well as to buildings, construction of which commenced before the "appointed day", and was in progress on that day.
It, no doubt, applies to buildings, constructed thereafter too.
513 When we import this understanding to sub section (9) of Section 4, two different results discernably follow, based on the commencement of the construction.
If the construction of a building with a dwelling unit therein had begun after the appointed day, then it is all the same "any other land" to be reckoned for calculating the extent of vacant land held by a person.
And if the construction of a building with a dwelling unit therein on land had been completed or was in progress by and on the appointee day, then is not "any ' other land" to be reckoned for calculating the extent of vacant land held by a person.
This is the interpretation which commends to us of sub section (9) of Section 4 as also of sub section (11) of Section 4 and the definitive expres sions used therein as explained and highlighted earlier.
Applying that interpretation on the facts found by the High Court we hold that the built up property, which in any event had been built up prior to the commencement of the Act, and it is nobody 's case that construction thereof had begun after the "appointed day", is outside the purview of "vacant land".
If that is excluded from being reckoned towards calculating the extent of vacant land held by the predeces sor in interest of the appellant, the vacant land in the vacant property cannot be declared excess for that is within the permissible limits.
Even if no land is left as land appurtenant to the built up area, then 93.56 sq. mtrs, the remainder plus 339.65 sq. mtrs, of the unbuilt property would total up to the figure less than 500 sq.
; again within the permissible limit.
Therefore, interpretation to the contrary of the dealt with provisions by the Division Bench of the High Court, bereft as it is of the concept of the appointed day and the gap period, would have to give way, meriting the acceptance of this appeal and setting aside of the judgment of the Division Bench of the High Court by issuing the necessary writ, direction and order so as to quash the entire proceedings towards declaring excess land in the hands of the appellant and her predecessor in title.
We order accordingly.
The interpretation we have put to the provisions pertinently relate to sub clause (ii) and (iii) of clause (q) of Section 2.
This interpretation in express terms cannot apply to sub clause (i) of clause (q) of Section 2.
Johnson 's case (supra) as said before, is a case under sub clause (i) of clause (q) of Section 2.
In the instant case, there appears to be no occasion to test its correctness or even to dilate upon the judgments of the High Courts reported in AIR 1981 Madhya Pradesh 17, AIR 1984 Bombay 122 and AIR 1987 Allahabad 272, cited at the bar.
As a result, this appeal is allowed.
The appellant shall have her costs throughout.
T.N.A. Appeal allowed. [/INST] The appellant 's predecessor in interest, respondent herein, was the owner of two properties consisting of a 'built up property ' and a 'vacant property ' in the city of Calcutta.
The built up property comprised of 414.56 sq. mtrs.
of land of which 321 sq.
was covered by a build ing with a dwelling unit therein and the said property was constructed long before the Urban Land (Ceiling and Regula tion) Act, 1976 came into force.
The second property com prised of 339.65 sq.
of vacant land.
The Act came into force on February 17, 1976 but under Section 2A of the Act the appointed day in relation to State of West Bengal was 28th January, 1976.
Thus between the appointed day and the date of enforcement of the Act there was a 20 days ' gap.
On 8th July, 1978 the respondent entered into an agree ment with the appellant to sell the vacant property.
Since both the properties were covered by the Urban agglomeration as specified in category 'A ' in Scheduled 1 to the 1976 Act, under which the ceiling limit prescribed was 500 sq.
, the appellant and the respondent gave a notice of the pro posed sale under Section 26 of the Act to the competent authority.
The competent authority held that the respondent was holding 25421 sq.
of land in excess of the ceiling limit.
The excess land was determined by totalling 414.56 sq.
of the built up property and 339.65 sq. mtrs.
of vacant property to 754.21 sq.
, and substracting 502 therefrom 500 sq.mtrs.
resulting in 254.21 sq. mtrs.
in excess of the ceiling limit.
Accordingly the competent authority issued order vesting the excess land in the State.
Against the decision of the competent authority the respond ent preferred an appeal before the Appellate Authority which was dismissed in default.
In the meantime the appellant filed a suit against the respondent for specific performance of the agreement dated 8th July, 1978 which was decreed and consequently a deed of conveyance was executed in favour of the appellant and the possession of the property was also given to her.
Subsequently the appellant came to know of the dis missal of the respondent 's appeal.
Thereupon she filed a Review Petition before the Appellate Authority stating that she had become the owner of the vacant property and prayed for retrieval of the same from being treated as excess land in the hands of respondent which was dismissed.
The appel lant filed a writ petition in the High Court and a Single Judge allowed the same.
On appeal by State a Division Bench of the High Court reversed the judgment of the Single Judge.
Against the decision of the Division Bench, appeal was filed in this Court.
Setting aside the judgment of the Division Bench of the High Court and allowing the appeal, this Court, HELD: 1.
The primary objective of the Urban Land Ceiling and Regulation Act, 1976 is to fix a ceiling limit on the holding of vacant lands, conditioned as they are on the appointed day, and as held on the date of commencement of the Act.
[512 F] 2.
Under Section 3 of the Urban Land (Ceiling and Regulation) Act, 1973 no person is entitled to bold any vacant land in excess of the ceiling limit.
Ceiling limit of vacant land in case of every person like the predecessor in interest of the appellant is 500 sq.
as set up under Section 4.
[508 E F] 2.1 However, as per Section 2(g), 'Vacant land ' does not include land of three categories.
The first category is land on which construction of a building is not permissible under building regulation in force in the area in which such land is situated.
The second category is of land occu pied by any building in an area, where there are building regulations, which has 503 been constructed upon, or is under construction on the appointed day, with the approval of the appropriate authori ty, and the land appurtenant tO such building.
Thus if the building stood constructed on the land prior to January 28, 1976, the land occupied under the building is not vacant land.
It also covers the land on which any building was in the process of construction on January 28, 1976 with the approval of the appropriate authority.
Additionally, the land appurtenant to these two kinds of buildings is also not "vacant land".
The third category likewise conditioned is of land occupied by any building in an area where there are no building regulations, which has been constructed before January 28, 1976 or is in the process of construction on such date, and the land appurtenant to these two kinds of buildings.
[510A D] 2.2 The expression "land appurtenant" as defined in Section 2(g) when related to any building in an area where there are building regulations as well as in an area where there are no building regulations reveals that the addition al extent as permitted is based on the principle of conti guity.
The expression applies to buildings constructed before the "appointed day" as well as to buildings, con struction of which commenced before the "appointed day", and was in progress on that day.
Therefore, if the construction of a building with a dwelling unit therein had begun after the appointed day, then it is all the same "any other land" to be reckoned for calculating the extent of vacant land held by a person.
And if the construction of a building with a dwelling unit therein on land had been completed or was in progress by and on the appointed day, then it is not "any other land" to be reckoned for calculating the extent of vacant land held by a person.
[512G H, 513A B] The built up property in question had been constructed prior to the commencement of the Act.
Therefore, it is outside the purview of "vacant land".
If that is excluded from being reckoned towards calculating the extent of vacant land held by the predecessor in interest of the appellant, the vacant land in the vacant property cannot be declared excess for that is within the permissible limits.
Even if no land is left as land appurtenant to the built up area, then 93.56 sq. mtrs.
the remainder plus 339.65 sq.
of the unbuilt property would total up to the figure less than 500 sq.
; which is again within the permissible limit.
Accordingly the entire proceedings towards declaring excess land in the hands of the appellant and her predecessor in title are quashed.
[513C E] 504 State of U.P. & Or3.
L.J. Johnson & Ors. , held inapplicable.
Union of India etc.
V.B. Chaudhary etc.
; ; Maharao Sahib Shri Bhim Singhji etc.
vs Union of India & Ors., , referred to.
Eastern Oxygen vs State AIR 1981 M.P. 17; Prabhakar Narhar Pawar vs State, AIR 1984 Bom.
122; State vs Radha Raman Aggarwal, AIR 1987 All. 272, cited.
In the scheme of sub section (9) of Section 4 of the Act the visible contrast between "vacant land" and "any other land" held by a person on which there is a building with a dwelling unit therein is prominent.
The said "any other land" is reckoned and brought at par with the "vacant land" for the purpose of calculating the final extent of vacant land.
The expression "vacant land" in the first portion of the provision connotes land minus land under buildings constructed or in the process of construction before and on the appointed day, and the expression "vacant land" in the latter portion of the provision connotes the sum total of "vacant land" of the first order and distinctly the "other land" on which is a building with a dwelling unit therein of which construction commenced after the appointed day, and the land appurtenant thereto.
Such an interpreta tion is required by the context as otherwise the concept of the appointed day and the gap period would be rendered otiose.
The legislature cannot be accused to have indulged in trickery in giving something with one hand and taking it away with the other.
"Any other land" in the sequence would thus mean any other built upon land except the one excluded from the expression "vacant land" on account of it being occupied by a building which stood constructed.
or was in the process of construction, on the appointed day.
[510F H, 511A B] 4.
Section 5 is reflective of the scheme of the Act in as much as transfers of vacant land within the gap period are ignorable, and likewise, vacant land brought under construction of building by a person within the j gap period is also ignorable for the purposes of calculat ing the extent of vacant land, so that the provision of law are not defeated by human ingenuity.
[512 BC] 5.
Though Sub section (11) of Section 4 is not happily worded, yet when meaningfully construed in the context, it means that a building which 505 gets excluded by virtue of the definition of "vacant land" gets clothed with the protective cloak for not being reck oned again as any other land, over which there is a building with a dwelling unit therein.
This provision means to convey that what is not vacant land under sub clauses (ii) and (iii) of clause (q) of Section 2 cannot go to add up as "vacant land" under sub section (9) of Section 4 by descrip tive overlapping.
To wipe out the distinction of "vacant land" and "any other land" as demonstrated in sub section (9) of section 4 is to strangulate and destroy the spirit and life blood of the "appointed day" and the gap period.
[512 D F] </s> |
<s>[INST] Summarize the following judgement: ivil Appeal No. 1187 (NT) of 1976.
From the Judgment and order dated 22.7.75 of the Bombay High Court in ITR No. 95 of 1965.
Harish N. Salve and Mrs. A.K. Verma for the Appellants.
S.C. Manchanda, K.P. Bhatnagar and Ms. A. Subhashini for the Respondent.
550 The Judgment of the Court was delivered by OJHA, J.
This appeal by special leave has been pre ferred against the judgment dated 22nd July, 1975 of the Bombay High Court in I.T. Ref.
No. 95 of 1%5 made under Section 66(1) of the Indian Income tax Act, 1922.
The as sessment year under reference was 1%1 62.
Chandrakant Manilal Shah was the Karta of a Hindu undi vided family (HUF) and the family was carrying on business of cloth.
Naresh Chandrakant, one of the sons of Chandrakant Manilal Shah, joined the business on a monthly salary of Rs. 100/ since about April 1959.
It was asserted that with effect from 1st November 1959 the business had been convert ed into a partnership between Chandrakant Manilal Shah as Karta of HUF and Naresh Chandrakant.
The deed of partnership executed in this behalf on 12th November, 1959 indicated that Naresh Chandrakant had been admitted as a working partner with effect from 1st November, 1959 having 35 per cent share in the profits and losses of the firm and the remaining 65 per cent share was held by Chandrakant Manilal as the Kartas of the HUF.
An application was made for regis tration of the firm which was dismissed by the Income tax officer on the ground that there was no valid partnership.
The view taken by the Income tax officer was upheld in appeal by the Appellate Assistant Commissioner.
On further appeal, the Income tax Appellate Tribunal also came to the same conclusion that there was no valid partnership and the business consequently must be taken to continue in the hands of the joint family.
However, at the instance of the asses see the following question was referred by the Tribunal to the High Court for its opinion: Whether on the facts and in the circumstances of the case, there was a valid partnership under Annexure 'A ' between Shri Chandrakant, as the Karta of the HUF and Shri Naresh, a member of the family? The High Court by the judgment under appeal answered the aforesaid question in the negative, in favour of the Revenue and against the assessee.
In doing so, it relied on an earlier decision of that Court in Shah Prabhudas Gulabchand vs Commissioner of Income tax, Bombay, 119701 (77) ITR page 870.
It is against this judgment that the assessee has come up in appeal to this Court.
It has been urged by the learned counsel for the appel lants that the mere fact that Naresh Chandrakant had neither separated from the HUF nor brought in any cash asset as his capital contribution to the partnership 551 but was contributing only his skill and labour, could not in law detract from a valid partnership being created.
Learned counsel for the respondent, on the other hand, contended that the view taken in this behalf by the Tribunal and the High Court was correct and was not only supported by the decision relied on by the High Court referred to above but also by another decision of the Gujarat High Court in Pitam berdas Bhikhabhai & Co. vs Commissioner of Income tax, Gujarat [1964] (53) ITR page 341.
Having heard learned counsel for the parties, we are inclined to agree with the submission made by learned coun sel for the appellants.
In our view, this contention derives full support from the view of the Judicial Committee of the Privy Council in Lachhman Das vs Commissioner of Income tax, Punjab [1948] (16) ITR page 35.
There the question which fell for consideration was: "Whether in the circumstances of this case, there could be a valid partnership between Lachhman Das as representing a Hindu undivided family on the one hand and Daulat Ram, a member of that undivided Hindu family in his individual capacity, on the other?" In other words, the question was the same as the one arising in the present case but for the difference in the factual background that, whereas in the ease before the Judicial Committee the member had brought in his separate capital, the member in the present case claims only to be a working partner.
Does this difference in facts make a dif ference in principle? That is the question.
In Lachhman Das, it had been urged before the High Court for the assessee that, when a Karta of a HUF could enter into a partnership with a stranger as held by the Privy Council in P.K.P.S. Pichappa Chettiar vs Chockalingam Pillai A.I.R. 1934 P.C. 192, there was no reason why a coparcener also could not enter into such a partnership by making contributions in his individual capacity from his separate funds.
This plea was repelled by the High Court on the ground that a coparcener could not be regarded as a stranger so long as he continued his connection with his undivided family in the capacity as a coparcener.
While reversing the judgment of the High Court, it was held by the Privy Coun cil: "After careful consideration, their Lordships cannot accept this vicw and on general princi ples they cannot find any sound reason to distinguish the case of a stranger from that of a coparcener who puts into the partnership what is admittedly 552 his separate property held in his individual capacity and unconnected with the family funds.
Whatever the view of a Hindu joint family and its property might have been at the early stages of its development, their Lord ships think that it is now firmly established that an individual coparcener, while remaining joint, can possess, enjoy and utilise, in any way he likes, property which was his individu al property, not acquired with the aid of or with any detriment to the joint family proper ty.
It follows from this that, to be able to utilise this property at his will, he must be accorded the freedom to enter into contractual relations with others, including his family, so long as it is represented in such transac tions by a definite personality like its manager.
In such a case he retains his share and interests in the property of the family, while he simultaneously enjoys the benefit of his separate property and the fruits of its investment.
To be able to do this, it is not necessary for him to separate himself from his family.
This must be dependent on other con siderations, and the result of a separate act evincing a clear intention to break away from the family.
The error of the Income tax Offi cer lay in his view that, before such a con tractual relationship can validly come into existence, the "natural family relationship must be brought to an end.
" This erroneous view appears to have coloured this and the subsequent decisions of the Income tax author ities.
In this view of the Hindu law, it is clear that if a stranger can enter into partnership, with reference to his own property, with a joint Hindu family through its Karta, there is no sound reason in their Lordships ' view to withhold such opportunity from a coparcener in respect of his separate and individual property.
The aforesaid view of the Privy Council was approved by this Court in Firm Bhagat Ram Mohanlal vs Commissioner of Excess Profits Tax, Nagpur [1956] (29) ITR page 521 but on the facts of that case it was held that the partnership set up in that case was not valid.
The above principle has been applied by several High Courts to uphold the validity of a partnership between the Karta of a HUF and an individual member of the family where the latter is taken in as a working partner.
In I.P. Munav alli vs Commissioner of Income tax, Mysore [1969] (74) ITR page 529, it was held by the Mysore High Court, after refer ring to 553 the decision of the Privy Council in the case of Lachhmandas (supra) and of this Court in the case of Bhagat Ram (supra): "So it is clear that the Supreme Court did not dissent from the opinion expressed by the Privy Council that "in respect of their separate or undivided property" the coparcen ers of a Hindu joint family, even though they had not become divided from one another and there had been no partition of the family properties could become partners of a firm of which the joint Hindu family represented by its karta is itself a partner.
If a partner by putting into the partnership by way of his capital his separate property or the property which he obtained at a partition on division and thus can become a partner with the family represented by its karta, it is difficult to understand how such a partnership cannot come into being and why a coparcener who continues to remain a member of the copar cenary cannot become a working partner of a firm of which he and the family represented by its karta are the partners.
In Lachhman Das 's case the coparcener placed at the disposal of the firm as his capital his separate property, and in the case of a working partner he con tributes his.
skill or labour or both as the case may be.
If the partnership is permissible in one case, it would be difficult.to assign any reason for reaching the conclusion that it is not permissible in the other." In Ramchand Nawalrai vs Commissioner of Income tax, M.P. 119811 (130) ITR page 826, it was held by the Madhya Pradesh High Court as hereunder: "it will be clear from the facts of the case of Firm Bhagat Ram Mohanlal that the question whether a coparcen er can enter into a valid partnership with the karta of his family by contributing merely skill and labour did not arise for decision.
The only question in the case was whether the individual members of a HUF can, without contributing anything, become members of a partnership constituted between the karta and strangers.
This question had necessarily to be answered in the negative on the settled view that when a karta enters into a partnership with strangers it is the karta alone who becomes the partner.
The observations of the Supreme Court that (p.526): "If members of a coparcenary are to be 554 regarded as having become partners in a firm with strangers, they would also become under the partnership law partners inter se, and it would cut at the very root of the notion of a joint undivided family to hold that with reference to coparcenary properties the mem bers can at the same time be both coparceners and partners", as contained in the passage quoted above, must be limited to the facts on which Firm Bhagat Ram Mohanlal 's case was decided.
The Supreme Court in the same passage referred to the decision of the Privy Council in Lachhrnandas ' case and did not disapprove of it.
If a coparcener by contrib Uting his separate property can enter into a valid partnership with the karta of his fami ly, as held by the Privy Council in Lachhman das ' case, there seems no valid reason why a coparcener cannot, by contributing merely his skill and labour, enter into a partnership with the karta.
If the former does not cut at the root of the notion of the joint Hindu family, the latter also does not.
Even in the case of the former, the partnership property will consist of the contribution made by the karta from the coparcenary property and the contribution made by the coparcener of his individual property Both taken together would become partnership property in which all the partners would have interest in proportion to their share in the joint venture of the busi ness of partnership (Narayanappa vs Bhaskara Knshnappa; , , 1304 (para 5).
If in such a situation the coparcener entering into the partnership can be a partner in relation to coparcenary property contributed for the partnership business, there can be no difficulty in holding that the same result would follow when the coparcener entering into a partnership only contributes his skill and labour.
In the former case, as stated by the Privy Council in Lachhmandas ' case , the coparcener entering into the partnership, retains his share and interest in the family property while simultaneously enjoying the benefit of his separate property and the fruits of its investment.
In the same way, it can be said that in the latter case the coparcener retains his share and interest in the property of the family while simultane ously enjoying the benefits of his skill and labour which he contributes as consideration for formation of the partnership and for sharing profits.
Learned standing counsel for the department further sub 555 mitted that as the profits earned by a part nership in which the contribution of capital is only of joint family funds from the side of the karta would ensure to the benefit of the entire joint family being earned with the help of the joint family funds, a coparcener who only contributes his skill and labour for becoming a partner cannot claim any share in the profits as his separate property and, therefore, there cannot be any valid partner ship.
Learned counsel in this connection relied upon the case of V. D. Dhanwatey vs CIT Dhanwatey 's case has to be read along with the case of CIT vs D.C. Shah In Dhanwatey 's case [19681 (68) ITR 365 (SC) a karta of a HUF who entered into a partnership was paid a salary from the partnership and it was held that the salary income was the income of the HUF.
The basis of the decision was that the salary was paid because of the investments of the assets of the family in the partnership business and there was a real and sufficient connection between the investments from the joint family funds and the remuneration paid to the karta.
In Shah 's case also the karta entered into a part nership and was paid remuneration.
But as the remuneration was paid for the specific acts of management done by the karta resting on his personal qualification and not because he represented.
the HUF, it was held that the remuneration was his individual income.
Apply ing the same principle, if a coparcener be comes a working partner in a partnership with the karta and gets a share in profits in consideration of the skill and labour contrib uted by him, his share in the profits would be his separate property for the profits coming to his share would be directly related to his skill and labour and not to be investments of the joint family funds in the business.
The question, however, whether a coparcener enter ing into a partnership with the karta does really contribute any labour or skill for the management of the partnership business in which he is given a share in profits is a question of fact which will have to be deter mined in the light of the circumstances of each case.
In case it is found that there is no real contribution of skill or labour by the coparcener for sharing the profits, the part nership will be held to be unreal and ficti tious but that is an entirely different thing from saying that there cannot at all be a valid partnership between the karta and a coparcener when the latter only con 556 tributes his skill and labour and is merely a working partner.
In our opinion, the argument that as the capital investment in the partner ship is only of the funds of the undivided family, there cannot be any partnership, cannot be accepted.
The conclusion reached by us is fully support ed by a decision of the Mysore High Court in I.P.Munavalli vs CIT , with which we respectfully agree.
The Bombay High Court in Shah Prabhudas Gulabchand vs CIT took a contrary view.
With great respect and for the reasons give above, we are unable to agree with In Commissioner of Income tax, Lucknow vs Gupta Brothers , the Alla habad High Court took the same view when it said : "The observations of the Privy Council that a partnership can be, formed with a junior member by the karta qua his separate property is by way of illustration of a particular eventuality when the separate property consti tutes consideration for the induction of a junior member into the partnership.
It cannot be read as being exhaustive of cases where consideration may take other forms.
Now, as labour and skill would also be consideration as contemplatedby the Contract Act, a valid partnership had come into existence, which ought to have been registered.
" Learned counsel for the respondent has laid considerable emphasis on two points.
Firstly, it was urged that Hindu Law does not recognise any contract among the coparceners inter se except in two cases, namely, where there is a partial partition and where a coparcener has separate property and brings in such separate property as capital towards consid eration for becoming a partner.
While elaborating the first point, it has been urged that if, even in a case where there is neither partial partition nor any separate property is brought in by the coparcener as consideration for the part nership it is held that a valid partnership can still come into existence, it would create an anomalous situation inasmuch as such coparcener would be having an interest in the coparcenary property both as a coparcener and partner.
Reliance in.
this behalf has been placed on the following observations made in the case of Bhagat Ram Mohanlal (supra): "If members of a coparcenary are to be regard ed as having become partners in a firm with strangers, they would also become under the partnership law partners inter se, and it would 557 cut at the very root of the notion of a joint undivided family to hold that with reference to coparcenary properties the members can at the same time be both coparceners and part ners.
The second point emphasised by learned counsel for the respondent is that skill and labour cannot be treated as property.
It must be confessed that the observations made in ' the case of Bhagat Ram Mohanlal (supra) relied upon do appear to support the contention of the Revenue.
In the case of Firm Bhagat Ram Mohan Lal vs 'CEPT[1956] (29) I.T.R. 521 (S.C.), a partnership had been entered into in 1940 between Mohan Lal (M) and two outsiders (R&G), M admittedly representing a HUF consisting of himself and his two brothers Chotelal (C) and Bansilal (B).
In 1944, the HUF got divided and, conse quently, the firm was reconstituted with five partners viz. the two outsiders (R&G), M, C and B. This, according to the Revenue, had resulted in a "change in the persons carrying on the business" leading to certain consequences adverse to the assesses in the context of the Excess Profits Tax Act.
The firm attempted to get over the difficulty in two ways: (a) It was contended that, even initially, in 1940, the firm must be considered as having been constituted with all the five persons, R, G, M, C and B, as partners; in other words when M entered into the partnership on behalf of the HUF, the consequence was that not only he but his two undivided brothers B & C also became partners in the firm in their individu al capacity; and (b) It was suggested that when M entered into the partnership agreement in 1940, all the three coparceners M, C & B, could be regarded as having entered into the contract as kartas of (i.e, representing) the HUF.
Both these contentions were negatived.
So far as the first contention was concerned, the Court observed that it could be disposed of as being an afterthought opposed to the factual findings in the case.
However, the Court proceeded to observe that it was difficult to visualise a situation, which the appellants contended for, of a HUF entering into a partnership with strangers through its karta and the junior members of the family also becoming its partners in their personal capacity.
After referring to Lachman Das (supra) and Sunder Singh Majithia vs CIT where divided members of a family were held competent to carry on the erstwhile joint family business in partnership, the Court pointed out: 558 "But in the present case, the basis of the partnership agreement of 1940 is that the family was joint and that Mohanlal was its karta and that he entered into the partnership as karta on behalf of the joint family.
It is difficult to reconcile this position with that of Chotelal and Bansilal being also partners in the firm in their individ ual capacity, which can only be in respect of their separate or divided property. ' (Emphasis supplied).
This was followed by the observations on which Sri Manchanda, learned counsel for the Revenue has placed con siderable reliance.
Similarly, so far as contention (b) was concerned, the Court observed that "even if such a conten tion could be raised consistently with the principles of Hindu LAW ', it was in the teeth of the pleadings in the case and so could not be allowed to be raised.
These passages no doubt suggest that, in the Court 's view, an undivided member of a HUF cannot be a partner along with the karta of the family, except where he furnishes capital in the form of property belonging to him in his individual right or ob tained by him on a partition of the family and that the Court left open the question whether more than one member of a HUF can represent the family in a partnership with outsid ers.
It will be apparent that this Court had rejected both contentions of the assessee as being an afterthought or contrary to the factual findings in the case.
This was sufficient to dispose of the case.
However, the further expressions of opinion, coming from such an eminent Judge as Venkatarama Ayyar, J., are entitled to the greatest weight and respect.
We, however, think that the scope of these observations, made in the context of the special facts and circumstances of the case, has been magnified by the learned counsel for the Revenue.
We may observe, at the outset, that his basic postulate that, under the Hindu Law, there can be no contract inter se between the undivided members of the family is basically incorrect.
This Court has recognised the validity of such contract in various situations.
For in stance, an undivided member of a HUF (including its karta) can be employed by the HUF for looking after the family business and paid a remuneration therefor: vide, Jitmal Bhuramal vs CIT ( S C ) and Jugal Iri shore Baitleo Sahai vs CIT [1967] ( 63 ) ITR 238 S.C. Again on the second contention which was left open, subsequent decisions of this Court have held that it is open to more than one member of a HUF to represent the family in partner ship with strangers.
In Commissioner of Income tax vs Sir Hukumchand Mannalal and Co. , it was 559 held by this Court: "The Indian Contract Act imposes no disability upon members of a Hindu undivided family in the matter of entering into a contract inter se or with a stranger.
A member of a Hindu undivided family has the same liberty of contract as any other individual: it is re stricted only in the manner and to the extent provided by the Indian Contract Act.
Partner ship is under section 4 of the Partnership Act the relation between persons who have agreed to share the profits of a business carried on by all or any of them acting for all: if such a relation exists, it will not be invalid merely because two or more of the persons who have so agreed are members of a Hindu undivid ed family." This position has also been recognised in Ratanchand Darbarilal vs Commissioner of Income Tax In that case, there were two firms, one at Katni and one at Satna, constituted by two members of an undivided family with others.
The question posed however was whether the Satna firm could be treated as an independent unit of assessment.
This Court held that it was a question of fact on which the Tribunal 's findings were conclusive.
In this view, it left unanswered, as academic, the following ques tion on which the Commissioner had sought a reference: "Whether, on the facts and in the circum stances of the case, the Appellate Tribunal was justified in directing that the firm owning the Satna business should be registered in spite of the fact that the members of the two HUFs entered as partners inter se without their effecting in the first instance a sever ance of joint status by partitioning either partially or totally, the assets of the re spective HUFs?" However, in the course of its judgment, the Court observed: "The High Court obviously fell into an error in proceeding on the footing that, without a partition or a partial partition,.
some of the members belonging to the Hindu undivided family could not constitute themselves into a partnership firm.
We do not think this view is correct in law.
It is a well settled proposi tion applicable to Hindu Law that members of the joint family and even coparceners can, without disturbing the status of a joint family or the coparcenary, acquire separate property or run independent business for themselves.
" 560 Turning now to the specific observations on which reliance has been placed, we do not think that they should be read as permitting a partnership between the karta of a HUF and its individual member only when he brings in some capital but not otherwise.
In the context in which they were made, it is seen that they were only limited to point out that there was no claim before the Court, as in Lachmandas or Majithia that the other member had brought in any sepa rate or divided.
property as capital.
On the contrary, the claim was that the coparceners of the HUF other than the karta, who was the co nominee partner, should be regarded as partners, though they had not entered into any such agree ment and had placed neither capital nor services at the disposal of the firm.
It was this claim that was held un tenable.
Much more significance cannot be read into these observations for, if construed too strictly and in the manner suggested, they will militate against the possibility of a valid partnership being formed in two classes of cases about which there can be no doubt.
The first is where an undivided member seeks to become a partner by furnishing capital which has been held permissible in Lachmandas and approved in Firm Bhagat Ram Mohanlal itself.
The other is the case of a partnership firm on which more than one part ner represents a HUF, the validity of which has been upheld in the cases referred to earlier.
The observations cannot, therefore, be read as precluding altogether a claim by an undivided member of a HUF that he has in fact agreed to become a partner along with the karta for genuine and valid reasons.
In our view, the Allahabad, Madhya Pradesh and Mysore decisions rightly held that the observations in Finn Bhagat Ram Mohanlal do not militate against the formation of a valid partnership in such cases.
This takes us on to the second point made by Sri Man chanda that, though an undivided member can, by contributing separate capital, enter into a partnership with the karta qua the family business, he cannot do so by offering as his contribution to the firm not material capital but only his labour and skill.
With regard to this submission made by the learned counsel for the respondent that skill and labour cannot be equated with property, it may not be out of place to refer to some earlier history.
As has been stated in Mulla 's Hindu Law, before the commencement of the (hereinafter referred to as the Act) it was settled law that income earned by a member of a joint family by the practice of a profession or occupation requiring special training was joint family property if such training was imparted at the expense of joint family proper ty.
This being so, if such a member of a joint family were to enter into a partnership with the karta of the family to carry on business, the fruits even of his skill and labour would have been property of the joint 561 family and the very purpose of entering into a partnership namely having a share of his own in the profits of the business would have been defeated.
In this state of law if an agreement was reached between such member of the joint family and the karta that out of the profits of the business a defined share will be payable to and be the separate property of such member, the agreement would have been illegal.
Indeed such a member would have been getting a separate share in the profits of the business without making any contribution of his own.
However, an almost complete transformation in the legal position was brought about by the Act.
Sections 2 and 3 of the Act which are relevant in this behalf read as hereunder: "2.
In this Act, unless there is anything repugnant in the subject or context, (a) 'acquirer" means a member of a Hindu undivided family, who acquires gains of learn ing; (b) "gains of learning" means all acquisitions of property made substantially by means of learning, whether such acquisitions be made before or after the commencement of this Act and whether such acquisitions be the ordinary or the extraordinary result of such learning; and (c) ' "learning" means education, whether elementary, technical scientific, special or general, and training of every kind which is usually intended to enable a person to pursue any trade, industry, profession or avocation in life.
Notwithstanding any custom, rule or inter pretation of the Hindu law, no gains of learn ing shall be held not to be the exclusive and separate property of the acquirer merely by reason of (a) his learning having been, in whole or in part imparted to him by any member living or deceased, of his family, or with the aid of the joint funds of his family or with the aid of the funds of any member thereof, or (b) himself or his family having, while he was acquiring his learning, been maintained or supported, wholly or in part, by the joint funds of his family, or by the funds of any member thereof.
" 562 As seen above, the definition of the term "learning" is very wide and almost encompasses within its sweep every acquired capacity which enables the acquirer of the capacity "to pursue any trade, industry, profession or avocation in life.
" The dictionary meaning of "skill", inter alia, is: "the familiar knowledge of any science, art, or handicraft, as shown by dexterity in execution or performance; technical ability" and the meaning of "labour" inter alia is: "physi cal or mental exertion, particularly for some useful or desired end." Whether or not skill and labour would squarely fall within the traditional jurisprudential connotation of property e.g. jura in re propria, jura in re aliena, corpo real and incorporeal etc.
may be a moot point but it cannot be denied that skill and labour involve as well as generate mental and physical capacity.
This capacity is in its very nature an individual achievement and normally varies from individual to individual.
It is by utilisation of this capacity that an object or goal is achieved by the person possessing the capacity.
Achievement of an object or goal is a benefit.
This benefit accrues in favour of the individual possessing and utilising the capacity.
Such individual may, for consideration, utilise the capacity possessed by him even for the benefit of some other individual.
The nature of consideration will depend on the nature of the contract between the two individuals.
As is well known, the aim of business is earning of profit.
When an individual contrib utes cash asset to become partner of a partnership firm in consideration of a share in the profits of the firm, such contribution helps and at any rate is calculated to help the achievement of the purpose of the firm namely to earn prof it.
The same purpose is, undoubtedly, achieved also when an individual in place of cash asset contributes his skill and labour in consideration of a share in the profits of the firm.
Just like a cash asset, the mental and physical capac ity generated by the skill and labour of an individual is possessed by or is a possession of such individual.
Indeed, skill and labour are by themselves possessions.
"Any posses sion" is one of the dictionary meanings of the word 'proper ty '.
In its wider connotation, therefore, the mental and physical capacity generated by skill and labour of an indi vidual and indeed the skill and labour by themselves would be the property of the individual possessing them.
They are certainly assets of that individual and there seems to be no reason why they cannot be contributed as a consideration for earning profit in the business of a partnership firm.
They certainly are not the properties of the HUF but are the separate properties of the individual concerned.
To hold to the contrary, we may observe, would also be incompatible with the practical, economic and social reali ties of present day living.
We no longer live in an age when every member of a HUF considered it his duty to place his personal skill and labour at the services of the family with no quid pro quo except the right to share ultimately, on a partition, in its general prosperity.
Today, where an undi vided member of a family 563 qualifies in technical fields may be at the expense of the family he is free to employ his technical expertise else where and the earnings will be his absolute property; he will, therefore, not agree to utilise them in the family business, unless the latter is agreeable to remunerate him therefor immediately in the form of a salary or share of profits.
Suppose a family is running a business in the manufacture of cloth and one of its members becomes a tex tile expert, there is nothing wrong in the family remunerat ing him by a share of profits for his expert services over and above his general share in the family properties.
Like wise, a HUF may start running a diagnostic laboratory or a nursing home banking on the services of its undivided mem bers who may have qualified as nurses and doctors and prom ising them a share of profits of the 'business ' by way of remuneration.
This will, of course, have to be the subject matter of an agreement between them but, where there is such an agreement, it cannot be characterised as invalid.
It is certainly illogical to hold that an undivided member of the family can qualify for a share of profits in the family business by offering moneys either his own or those de rived by way of partition from the family but not when he offers to be a working partner contributing labour and services or much more valuable expertise, skill and knowl edge for making the family business more prosperous.
For the reasons discussed above, we have reached the conclusion that the decisions referred to above which sup port the contentions of learned counsel for the appellants lay down the correct legal position.
The two decisions relied on by the learned counsel for the respondent in the cases of Pitamberdas Bhikhabhai and Co. and Shah Prabhudas Gulabchand of the Gujarat and Bombay High Courts respective ly turned on their particular facts and, if read as laying down a contrary rule, do not lay down good law.
In this view of the matter, it cannot be said that when a coparcener enters into a partnership with the karta of a HUF and con tributes only his skill and labour, no contribution of any separate asset belonging to such parruer is made to meet the requirement of a valid partnership.
Reverting to the facts of the instant case it is noteworthy that it is not the case of the Revenue that the partnership between Chandrakant Manilal Shah as karta of HUF and Naresh Chandrakant was fictitious or invalid on any other ground.
Consequently, the judgment of the High Court cannot be sustained.
In view of the foregoing discussion, this appeal suc ceeds and is allowed.
The judgment of the High Court is set aside and the question referred to the High Court is an swered in the affirmative, in favour of the assessee and against the Revenue.
In the circumstances of the case, however, there shall be no order as to costs.
N.P.V, Appeal allowed. [/INST] The business being carried on by a HUF, of which the first appellant was the Karta, was converted into a partnership between the first appellant and one of his sons, who had earlier joined the business on monthly remuneration.
The deed of partnership executed in that behalf indicated that the son had been admitted as a working partner, having 35 per cent share in the profits and losses of the firm and the remaining 65 per cent share was held by the first appellant as the Karta of the HUF.
An 547 application made for registration of the firm was dismissed by the Income tax Officer on the ground that there was no valid partnership.
This was upheld in appeal by the Appel late Tribunal.
However, at the instance of the assessee the matter was referred to the High Court for its opinion.
The High Court also held that there was no valid partnership.
In the appeal before this Court, on behalf of the asses seeappellants, it was contended that the mere fact that the son had neither separated from the HUF nor brought in any cash asset as his capital contribution to the partnership but was contributing only his skill and labour, could not in law detract from a valid partnership being created.
On behalf of the respondent Revenue it was contended that Hindu Law did not recognise any contract among the coparceners inter se except in two cases, namely, where there was a partial partition and where a coparcener had separate property and brought in such separate property as capital towards consideration for becoming a partner and that skill and labour could not be treated as property.
Allowing the appeal by the assessee appellants, this Court, HELD: 1.1 It cannot be said that when a coparcener enters into a partnership with a karta of a HUF and contrib utes only his skill and labour, no contribution of any separate asset belonging to such partner is made to meet the requirement of a valid partnership.
The aim of business is earning of profit.
When an individual contributes cash asset to become partner of a partnership firm in consideration of a share in the profits of the firm, such contribution helps and at any rate is calculated to help the achievement of the purpose of the firm, namely, to earn profit.
The same purpose is, undoubt edly, achieved also when an individual, in place of cash asset, contributes his skill and labour in consideration of a share in the profits of the firm.
[562 D E] 1.3 Just like a cash asset, the mental and physical capacity generated by the skill and labour of an individual is possessed by or is a possession of such individual.
Indeed, skill and labour are by themselves possessions.
"Any possession" is one of the dictionary meaning of the word 'property '.
In its wider connotation, therefore, the mental and physical capacity generated by skill and labour of an individual and indeed the skill and 548 labour by themselves would be the property of the individ ual possessing them.
They are certainly assets of that individual and there is no reason why they cannot be con tributed as a consideration for earning profit in the busi ness of a partnership.
They certainly are not the properties of the HUF, but are separate properties of the individual concerned.
To hold to the contrary, would also be incompati ble with the practical, economic and social realities of present day living.
[562 E G] 1.4 Where an undivided member of a family qualifies in technical fields may be at the expense of the family he is free to employ his technical expertise elsewhere and the earnings will be his absolute property; he will, therefore, not agree to utilise them in the family business unless the latter is agreeable to remunerate him therefor immediately in the form of a salary or share of profits.
This, of course, will have to be the subject matter of an agreement between the HUF and the member, but where there is such an agreement, it cannot be characterised as invalid.
[562 H, 563 A B,C] 1.5 It is, therefore, illogical to hold that an undi vided member of the family can qualify for a share of prof its in the family business by offering moneys either his own or those derived by way of partition from the family but not when he offers to be a working partner contributing labour and services or much more valuable expertise, skill and knowledge for making the family business more prosper ous.
[563 C D] 1.6 In the instant case, it is not the case of Revenue that the partnership between the first appellant as karta of HUF and his son was fictitious or invalid on any other ground.
Hence, the judgment of the High Court cannot be sustained.
[563 F G] I.P. Munavalli vs Commissioner of Income Tax, Mysore, [1969] 74 ITR page 529; Ramchand Nawalrai vs Commissioner of Income Tax, M.P. [1981] 130 ITR page 826; Commissioner of Income Tex; Lucknow vs Gupta Brothers, ; approved.
Shah Prabhudas Gulabchand vs Cornmissioner of Income Tax; Bombay, [1970] 77 ITR page 870; Pitamberdas Bhikhabhai page 341; disapproved.
Lachman Das vs Commissioner of Income tax, Punjab, [ 1948] 16 ITR I 35; P.K.P.S. Pichappa Chettiar vs Chockalin gam Pillai, A.I.R. 1934 P.C. 192; 549 Finn Bhagat Ram Mohanlal vs Commissioner of Excess profits Tax; Nagpur, [1956] 29 ITR page 521; Jitmal Bhuramal vs CIT, ; and Jugal Kishore Baldeo Sahai vs CIT, [ 19671 S.C.; Commissioner of Income tax vs Sir Hukumchand Mannalal and Co., ; and Ratanchand Darbarilal vs Commissioner of Income Tax, ; referred to.
The definition of the term "learning" under Section 2 of the is very wide and almost encompasses within its sweep every acquired capacity which enables the acquirer of the capacity 'to pursue any trade, industry, profession of vocation in life".
The dic tionary meaning of "skill" inter alia, is: "the familiar 'knowledge of any science, art, or handicraft, as shown by dexterity in execution or performance; technical ability" and the meaning of "labour" inter alia is: "physical or mental exertion, particularly for some useful or desired end." Whether or not skill and labour would squarely fail within the traditional jurisprudential connotation of property e.g. jura in re propria, jura in re aliena, corpo real and incorporeal etc.
may be a moot point but it cannot be denied that skill and labour involve as well as generate mental and physical capacity.
This capacity is in its very nature an individual achievement and normally varies from individual to individual.
It is by utilisation of this capacity that an object or goal is achieved by the person possessing the capacity.
Achievement of an object or goal is a benefit.
This benefit accrues in favour of the individual possessing and utilising the capacity.
Such individual may, for consideration, utilise the capacity possessed by him even for the benefit of some other individual.
The nature of consideration will depend on the nature of the contract between the two individuals.
[562 A D] Mulla 's Hindu Law, referred to. </s> |
<s>[INST] Summarize the following judgement: minal Appeal No. 141 of 1958.
Appeal by special leave from the judgment and order dated November 28, 1957, of the Madhya Pradesh High Court in Criminal Revision No. 78 of 1957, arising out of the judgment and order dated August 21, 1957, of the Court of Special Judge at Gwalior in File No. 2/57 Special Case.
G. C. Mathur and R. H. Dhebar, for the appellant.
The respondent did not appear.
February 3.
The Judgment of the Court was delivered by SUBBA RAO, J.
This is an appeal by special leave against the, Judgment of the High Court of Madhya Pradesh at Jabalpur directing the Special Judge, Indore, to order the Deputy Superintendent of Police to carry on the investigation afresh.
The facts are simple.
One Shri Mohinder Nath Bhalla was the manager of Daisy Sewing Machine Co. Ltd., Bhopal.
On January 11, 1955, between 12 and 1 p. m., he contacted the Sub Inspector of Police, Special Police Establishment, Gwalior, and gave him the following information: The company had opened their stall in the Gwalior Mela and he (Shri Bhalla) had to book empty wooden cases of machine and machine parts from Gwalior Mela, to Now Delhi.
When lie went to the station to enquire for booking the said cases, the Station Master demanded annas ten for each case as illegal gratification, but he did not agree to it.
Subsequently, the Assistant Station Master agreed to accept annas eight for each case and asked him to bring the wooden cases between 2 and 4 p. m. on the same day, i.e., January 11, 1955.
On this allegation lie requested the police to take action " to stop the said sort of 204 corruption ".
The police officer went along with the informant to his stall at Gwalior Mela and saw the twenty wooden cases twelve big and eight small ready for booking.
The said Shri Bhalla gave the police officer a typed complaint signed by him and duly attested by two witnesses.
With the assistance of the police officer, a trap was laid.
The numbers of the rupee notes intended to be given as bribe to the Assistant Station Master were entered in a memorandum which was attested by witnesses.
The said rupee notes were given to Shri Bhalla in the presence of the witnesses.
Shri Bhalla was instructed to pay the amount to the Assistant Station Master when demanded by him in such a manner that the witnesses could overhear the conversation and also see the Assistant Station Master taking the bribe.
He was also told that on his giving a signal, the police would come on the scene.
The plan was carried out in detail as agreed.
The Assistant Station Master, after some bargaining, took the bribe, and after the act of bribery was completed, Shri Bhalla gave the prearranged signal.
The Sub Inspector then went to the Station Office and disclosed his identity to the Assistant Station Master in the presence of witnesses and asked him to produce the money taken by him as bribe.
The Assistant Station Master, when questioned by the Sub Inspector, gave him his name and also produced the notes which he had kept in his pocket.
The police officer took those notes and counted them.
The numbers on those notes tallied with those noted in the memorandum.
He then searched the person of the Assistant Station Master and secured the articles found on him.
He also searched the person of Shri Bhalla and took from his shirt two currency notes, which he did not give to the Assistant Station Master, as the bargain was struck at a smaller amount, and secured the same.
The numbers of those notes also tallied with the corresponding numbers noted in the memorandum.
Thereafter, a memorandum of the articles recovered was prepared in the presence of the witnesses and was duly attested by them.
The forwarding note, together with the record copy of the 205 R/R prepared in respect of the booking of the twenty wooden cases to New Delhi, was taken possession of and another memorandum was prepared in regard to them.
An inventory of the twenty wooden cases lying on the platform near the weighing machine as booked by the Assistant Station Master was also prepared and the same was attested by the witnesses.
The Sub Inspector, having regard to the aforesaid facts, came to the conclusion that the facts disclosed offences punishable under sections 120 B and 161 of the Indian Penal Code and section 5(2) of the Prevention of Corruption Act, 1947 (2 of 1947), had been committed by the Assistant Station Master, Shri Mubarak Ali, and the pointsman, Shri Mool Chand, of Golakamandir railway station.
On the same day he sent a report of the aforesaid facts to the Special Police Establishment Office, Madhya Bharat.
The office registered it on January 14, 1955, in its register.
Seven days thereafter, on January 21, 1955, the Sub Inspector filed an application before the Additional District Magistrate (Judicial), Gwalior, asking for permission to investigate the offence under the aforesaid sections.
The record does not disclose what further steps were taken by the Sub Inspector after he obtained the said permission from the Additional District Magistrate.
On October 1, 1955, a charge sheet was filed before the Special Judge, Anti Corruption, Indore.
It appears from the record that soon after the case was taken up for trial, the respondent filed objections questioning, inter alia, the validity of the order of the Additional District Magistrate giving permission to the Sub Inspector to make the investigation.
But the scope of the objections is not clear as they have not been placed before us.
It appears that the Special Judge intended to take evidence on the question of delegation of power of investigation, but the prosecution applied for adjournment on the ground that an appeal had been filed in the High Court against a similar order directing the prosecution to give evidence on the said question and the same was pending there.
The learned Special Judge, though inclined not to give the adjournment, made an order giving an adjournment 206 of three weeks on December 3, 1955, on the ground that " the Special Police Establishment Office might not have any grievance on that account ".
We do not know what transpired between December 3, 1955, and the date of disposal of the objections by the Special Judge, i. e., August 21, 1957.
On August 21, 1957, the learned Special Judge made an order discharging Shri Mool Chand, the pointsman, and charging Shri Mubarak Ali, the Assistant Station Master, under section 161 of the Indian Penal Code.
By the said order the learned Judge, presumably an officer different from the one who gave the adjournment in 1955, disallowed the objection of the accused on the ground that on the date when the Magistrate gave the sanction, there were many papers in connection with a case against the accused, on observing which the Magi strate could have satisfied himself whether there was a prima facie case or not against the accused and that there was no reason to believe that at the time of giving the sanction, the Magistrate did not peruse the papers.
The accused preferred a Revision against the said order to the High Court of Madhya Pradesh.
The High Court came to the conclusion that the Sub Inspector applied for permission ten days after investigation had started and that the Magistrate did not satisfy himself that there were good and sufficient reasons for authorising the officer of a lower rank to conduct the investigation but had given the permission as a mere matter of routine.
In the result, the High Court set aside the order of the Special Judge with a direction that in order to rectify the defects and cure the illegality he should order the Deputy Superintendent of Police to carry on the investigation himself while the case remains pending on his file ".
The State, preferred the present appeal against the said order of the High Court.
Learned Counsel, appearing for the State, raised before us two points: (i) the High Court was not justified in holding that the Magistrate gave the permission as a mere matter of routine without satisfying himself as to the advisability of giving such permission; (ii) the High Court was wrong in holding 207 that the investigation started ten days prior to the obtaining of permission of the Magistrate by the Sub Inspector.
To appreciate the first contention, it is necessary to set out some of the relevant provisions of The Prevention of Corruption Act, 1947 (2 of 1947), hereinafter referred to as the Act.
Section 3 (as it stood before the Prevention of Corruption (Amendment) Act, 1955 (50 of 1955): "An offence punishable under section 161 or section 165 or section 165A of the Indian Penal Code (Act 45 of 1860) shall be deemed to be a cognizable offence for the purposes of the Code of Criminal Procedure, 1898 (Act 5 of 1898), notwithstanding anything to the contrary contained therein ".
Section 4. " (1) Where in any trial of an offence punishable under section 161 or section 165 of the Indian Penal Code (Act 45 of 1860), it is proved that an accused person has accepted or obtained, or has agreed to accept or attempted to obtain, for himself or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed unless the contrary is proved that he accepted or obtained, or agreed to accept or attempted to obtain, that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in the said section 161, or, as the case may be, without consideration or for a consideration which he knows to be inadequate ".
The Act was passed, as the preamble indicates, to make more effective provisions for the prevention of bribery and corruption among public servants.
It introduced a definition of the offence of criminal misconduct in discharging an official duty and new rules of presumption against accused in the case of the said offence.
But in the year 1952, by Act 59 of 1952, presumably on the basis of the experience gained, section 5A was inserted in the Act to protect the public servants against harassment and victimization.
If it was in the interest of the public that corruption should be eradicated, it was equally in the interest of the public that honest public servants should be able to 208 discharge their duties free from false, frivolous and malicious accusations.
To achieve this object, sections 5A and 6 introduced the following two safeguards: (1) no police officer below the rank (a) in the presidency towns of Madras and Calcutta, of an assistant commissioner of police, (b) in the presidency town of Bombay, of a superintendent of police and (c) elsewhere, of a deputy superintendent of police, shall investigate any offence punishable under section 161, section 165 or section 165A of the Indian Penal Code or under sub section
(2) of section 5 of the Act, without the order of a presidency magistrate or a magistrate of the first class, as the case may be, or make any arrest therefor without a warrant see section 5A; (2) no court shall take cognizance of an offence punishable under section 161 or section 164 or section 165 of the Indian Penal Code or under section 5(2) of the Act, alleged to have been committed by a public servant, except with the previous sanction, of the appropriate Government see section 6.
These statutory safeguards must be strictly complied with, for they were conceived in public interests and were provided as a against frivolous and vexatious prosecutions.
While in the case of an officer of assured status and rank, the legislature was prepared to believe them implicitly, it prescribed an additional guarantee in the case of police officers below that rank, namely, the previous order of a presidency magistrate or a magistrate of the first class, as the case may be.
The magistrate 's status gives assurance to the bonafide8 of the investigation.
In such circumstances, it is self evident that a magistrate cannot surrender his discretion to a police officer, but must exercise it having regard to the relevant material made available to him at that stage.
He must also be satisfied that there is sufficient reason, owing to the exigencies of administrative convenience, to entrust a subordinate officer with the investigation.
This Court in H. N. Rishbud and Inder Singh vs The State of Delhi (1) emphasised the necessity to adhere strictly to the provisions of section 5A of the Act.
Jagannadhadas, J., who delivered the judgment of the Court, observed at p. 1159: (1) ; 209 " When, therefore, the Legislature thought fit to remove the protection from the public servants, in so far as it relates to the investigation of the offences of corruption comprised in the Act, by making them cognisable, it may be presumed that it was considered necessary to provide a substituted safeguard from undue harassment by requiring that the investigation is to be conducted normally by a police officer of a designated high rank.
Having regard therefore to the peremptory language of subsection (4) of section 5 of the Act as well as to the policy apparently underlying it, it is reasonably clear that the said provision must be taken to be mandatory ".
After adverting to the argument advanced on behalf of the State,learned Judge closed the discussion thus at p. 1162: "We are, therefore clear in our opinion that section 5(4) and provisoto section 3 of the Act and the corresponding section 5 A of Act LIX of 1952 are mandatory and not directory and that the investigation conducted inviolation thereof bears the stamp of illegality".
This Court again considered the scope of section 6 of the Act in Biswabhusan Naik vs The State of Orissa (1).
One of the questions raised there was that the sanction given by the Government was invalid.
In rejecting that contention Bose, J., observed at p. 95 : " The judgment of the Judicial Committee relates to clause 23 of the Cotton Cloth and Yarn (Control) Order, 1943, but the principles apply here.
It is no more necessary for the sanction under the Prevention of Corruption Act to be in any particular form, or in writing or for it to set out the facts in respect of which it is given than it was under clause 23 of the Order which their Lordships were considering.
The desirability of such a course is obvious because when the facts are not set out in the sanction proof has to be given aliunde that sanction was given in respect of the facts constituting the offence charged, but an (1)[1955] 1 S.C.R. 92. 27 210 omission to do so is not fatal so long as the facts can be, and are provided in some other way ".
While the former decision emphasises the importance of the protection given by the Act to public servants against harassment, the latter decision points out the desirability of giving all the necessary facts in an order giving sanction the same applies to an order of a Magistrate and also the necessity of proof aliunde of the said facts in case the facts are not disclosed in the sanction.
Applying the said two principles, we must hold that in a case where an officer other than the designated officer, seeks to make an investigation, he should get, the order of a Magistrate empowering him to do so before he proceeds to investigate and it is desirable that the order giving the permission should ordinarily, on the face of it, disclose the reasons for giving the permission.
For one reason or other, if the said salutary practice is not adopted in a particular case, it is the duty of the prosecution to establish, if that fact is denied, that the Magistrate in fact has taken into consideration the relevant circumstances before granting the permission to a subordinate police officer to investigate the case.
In the present case, though objection was taken by the accused at the earliest stage in 1955 on the ground that the order giving permission was invalid no attempt was made by the prosecution, though years have elapsed between the date of the petition and that of the order of the Sessions Judge, to adduce any evidence to support the contention that the Magistrate gave the permission to the Sub Inspector only after satisfying himself on the advisability of doing so on the material placed before him.
The only material that was placed before the Sessions Judge was the application filed by the Sub Inspector before the Magistrate seeking the said permission and the order made by him thereon.
In that application the Sub Inspector stated that he had been deputed to investigate the case and therefore permission might be given to him to do so under section 5 A of the Act.
On that application, the Magistrate passed the order " permission given ".
Neither the application 211 nor the order made thereon discloses that any material was placed before the Magistrate on the basis of which he gave the permission.
Ex facie, it appears to us, just like it appeared to the High Court, that the Magistrate did not realise the significance of his order giving permission, but only mechanically issued the order on the basis of the application which did not disclose any reason, presumably because he thought that what was required was only a formal compliance with the provisions of the section.
A request was made before the High Court that an opportunity should be given to the prosecution to enable them to produce the necessary evidence to support the order of the Magistrate.
But the learned Judge of the High Court rightly did not accede to that belated request.
We, therefore, without any hesitation, agree with the High Court that the provisions of section 5A of the Act have not been strictly complied with in this case.
In this view no other question arises for consideration.
But as the learned Counsel appearing for the State contended that the observations of the learned Judge of the High Court that permission of the Magistrate was obtained ten days after the investigation was started was wrong, it would be as well that we considered the argument briefly.
Section 4(1) of the Code of Criminal Procedure defines " investigation as to include all the proceedings under that Code for the collection of evidence conducted by the police officer or other persons other than a Magistrate who is authorised by the Magistrate in this behalf.
Chapter XIV of the Code prescribes the procedure for investigation.
Investigation starts after the police officer receives information in regard to an offence.
Under the Code " investigation consists generally of the following steps: (i) proceeding to the spot; (ii) ascertainment of the facts and circumstances of the case; (iii) discovery and arrest of the suspected offender; (iv) collection of evidence relating to the commission of the offence which may consist of (a) the examination of various persons (including the accused) and the reduction of their statements into writing, if 212 the officer thinks fit, (b) the search of places of seizure of things considered necessary for the investigation and to be produced at the trial; and (v) formation of the opinion as to whether on the material collected there is a case to place the accused before a Magistrate for trial and if so taking the necessary steps for the same by the filing of a charge sheet under section 173."See H. N. Rishbud and Inder Singh vs The State of Delhi (1).
From the narration of facts given supra, it would be seen that in the present case Shri Bhalla gave information to the Sub Inspector on January 11, 1955, as regards the attempt by the Station Master as well as the Assistant Station Master to take bribe from him.
Under section 5 of the Act, attempt to obtain from any person for himself or for any other person any gratification is in itself an offence and therefore the information certainly related to an offence.
Thereafter, the Sub Inspector, after assisting Shri Bhalla to trap the accused, came on the scene, questioned the accused, searched his person and recovered the marked notes and other articles from him ; he searched the person of the informant and recovered the other notes marked but not given to the accused ; he took possession of the twenty wooden boxes intended to be booked and the forwarding note together with the record copy of the R/R; he got prepared relevant memoranda for the aforesaid recoveries and got them duly attested by witnesses; and thereafter on the basis of his investigation he sent a report to the Special Police Establishment Office, Indore.
We do not know on the material placed before us what further things he did in the matter of investigation between the 14th and 21st when be obtained the permission of the District Magistrate.
In the circumstances, we must hold, agreeing with the High Court that the investigation in this case was started by the Sub Inspector on the 11th, i.e., ten days prior to his obtaining permission of the Magistrate.
The appeal fails and is dismissed.
Appeal dismissed.
(1)[1955] 1 S.C.R. 1150. [/INST] Section 5A of the Prevention of Corruption Act, 1947, pro vided: " No police officer below the rank of a deputy Superintendent shall investigate any offence punishable under section 161, section 165 or section 165A of the Indian Penal Code or under section 5(2) of the Act without the order of a magistrate of the first class . . ".
(1) (1880) L.R. 7 I.A. 107.
26 202 On January 11, 1955, B, the manager of a company, gave information to the Sub Inspector of Police, Special Police Establishment, that the respondent, an Assistant Station Master, was demanding a bribe for sending the goods belonging to the company by rail.
The Sub Inspector, after assisting B to trap the respondent, came on the scene, questioned the latter, searched his person and recovered the marked notes and other articles from him.
The Sub Inspector filed an application before the District Magistrate, stating that he had been deputed to investigate the case and the permission might be given to him to do so under section 5A of the Act.
On the application the Magistrate passed the order "permission given.
" Neither the application nor the order made thereon disclosed that any material was placed before the Magistrate on the basis of which he gave permission.
A charge sheet was filed before the Special judge.
The respondent filed objections questioning, inter alia, the validity of the Magistrate giving permission to the Sub Inspector to make the investigation.
The Special judge disallowed the objection.
On revision, the High Court set aside the order of the Special judge with a direction that " in order to rectify the defects and cure the illegality " he should order the Deputy Superintendent of Police to carry on the investigation himself while the case remained pending on his file.
The State preferred an appeal against the order of the High Court by special leave: Held, that the statutory safeguards under section 5A of the Prevention of Corruption Act must strictly be complied with for they were conceived in public interest and were provided as a guarantee against frivolous and vexatious prosecutions.
A Magistrate cannot surrender his discretion to a police officer, but must exercise it having regard to the relevant material made available to him at the stage of granting permission.
He must also be satisfied that there is sufficient reason owing to the exigencies of the administrative convenience to entrust a subordinate officer with the investigation.
Where an officer other than the designated officer seeks to make an investigation, he should get order of a Magistrate empowering him to do so before he proceeds to investigate, and it is desirable that the order giving the permission should ordinarily on the face of it disclose the reasons for giving permission.
Where objection is taken by the accused that the order giving permission was invalid, the prosecution, at the earliest opportunity, must adduce evidence to support the contention that the Magistrate gave the permission only after having satisfied himself on the advisability of doing so on the material placed before him.
H. N. Rishbud & Inder Singh vs State of Delhi, ; and Viswabhusan Naik vs The State of Orissa, ; , relied on.
203 Held, further, that an investigation starts after the police officer receives information in regard to an offence, and that as under section 5 Of the Act attempt to obtain from any person any gratification is in itself an offence, any steps taken by the Sub Inspector after the information was given to him amounted to investigation. </s> |
<s>[INST] Summarize the following judgement: (Criminal)No.
1339 of 1991.
(Under Article 32 of the Constitution of India).
R.K: Jain, A. Mariarputham, Ms. Aruna Mathut, Udai Lalit, Shankar C. Ghosh and Ms. Chanchal Ganguli for the Petitioner.
The Judgment of the Court was delivered by K.N. SINGH, J.
Smt.
Shashi Nayar wife of Raj Gopal Nayar who has been awarded death sentence for offence under Sec tion 302 of the Indian Penal Code [ 'IPC ' for short] has approached this Court by means of this petition under Arti cle 32 of the Constitution challenging the constitutional validity of death penalty.
Raj Goapal Nayar, the petitioner 's husband was tried for offence under Section 302, IPC for having killed his father and step brother.
The Sessions Judge by his judgment and order dated 24.4.1986 convicted Raj Gopal Nayar and awarded sentence of death.
On appeal, the High Court confirmed the death penalty and dismissed Raj Gopal 's appeal against the order of the Sessions Judge.
Raj Gopal thereafter filed a special leave petition before this Court challenging the judgment and order of the Sessions Judge and the High Court, but the special leave petition was also dismissed by this Court.
Review petition filed by him was also dismissed.
Consequently, his conviction and the sentence of death stood confirmed by all the courts.
Thereupon, he filed mercy petitions before the Governor of Jammu & Kashmir and the President of India, but the same were rejected. 'He chal lenged the order of the President of India rejecting the mercy petition before this Court by means of a writ petition under Article 32 of the Constitution, but the same was also dismissed.
Another writ petition under Article 226 of the Constitution was filed before the Jammu & Kashmir High Court for quashing the sentence imposed on him but the same was also rejected.
As the legal proceedings before the court failed, he was to be hanged on 26.10.1991.
Shashi Nayar, the petitioner, thereupon filed the present petition under Article 32 of the Constitution before this Court challenging the validity of the capital punishment with a prayer for the quashing of the sentence awarded to Raj Gopal Nayar.
The petition was entertained by a Division Bench on 25.10.1991 and the matter was referred to the Constitution Bench for consideration, and meanwhile the execution of the condemned prisoner was stayed.
Mr. Ravi K. jain, learned counsel for the petitioner made the following submissions: 106 (1) Capital punishment is violative of Article 21 of the Constitution of India as the Article absolutely prohibits deprivation of a person 's life.
(2) Capital punishment does not serve any social purpose and in the absence of any study, the barbaric penalty of death should not be awarded to any person as it has no deterrent effect.
(3) The penalty of death sentence has a dehumanising effect on the close relations of the victims and it deprives them of their fundamental rights under Article 21 of the Constitution, to a meaningful life.
(4) The execution of capital punishment by hanging is barbaric and dehumanising.
This should be substituted by d some other decent and less painful method in executing the sentence.
The questions raised by Shri Jain have already been consid ered by this Court in detail on more than one occasion.
In Jagmohan Singh vs State of U.P.,[1973] 1 SCC 20 and in Bachan Singh vs State of Punjab, , this Court has on a detailed consideration, held that the capital punishment does not violate Article 21 of the Constitution.
In Bachan Singh 's case (supra), the court considered all the questions raised in this petition except question No.4, and the majority judgment rejected the same by a detailed rea soned order.
Since we fully agree with those reasons, we do not consider it necessary to reiterate the same.
Learned counsel further urged that the view taken in Jagmohan Singh 's and Bachan Singh 's cases (supra) is incor rect and it requires reconsideration by a larger Bench.
He, therefore, requested us to refer the matter to a larger Bench as the question relates to the life of a citizen.
He urged that the award of death penalty is a serious matter as it deprives a citizen of his life in violation of Article 21 of the Constitution and as such the court should consider the matter again.
We are fully conscious of the effect of the award of capital punishment.
But we are of the opinion that the capital punishment as provided by the law is to be awarded in rarest of the rare cases as held by this Court.
The procedure established by law for awarding the death penalty is reasonable and it does not in any way violate the mandate of Article 21 of the Constitution.
Since we agree with the view taken by the majority in Bachan Singh 's and Jagmohan Singh 's cases (supra), we do not find any valid ground to refer the matter to a larger Bench.
Learned coun sel urged that the majority opinion in Bachan Singh 's case (supra) was founded upon the 35th Report of the Law Commis sion submitted in 1967, which summarises the recommendations in the following words: 107 "Having regard, however, to the conditions in India, to the variety of the social upbringing of its inhabitants, to the disparity in the level of morality and education in the coun try, to the vastness of its area, to the diversity of its population and to the para mount need for maintaining law and order in the country at the present juncture India cannot risk the experiment of abolition of capital punishment." Shri Jain urged that the above Report indicates that in 1967 the Law Commission was of the opinion that the country should not take the risk of experimenting abolition of capital punishment.
However, since then much water has flown.
Further, there is no empirical study before the Court to show that the situation which prevailed in 1967 is still continuing.
Hence, the Court should reconsider the matter.
We do not find any merit in this submission.
The death penalty has a deterrent effect and it does serve a social purpose.
The majority opinion in Bachan Singh 's case (supra) held that having regard to the social conditions in our country the stage was not ripe for taking a risk of abolishing it.
No material has been placed before us to show that the view taken in Bachan Singh 's case(supra) requires reconsideration.
Further, a judicial notice can be taken of the fact that the law and order situation in the country has not only not improved since 1967 but has deteriorated over the years and is fast worsening today.
The present is, therefore, the most in opportune time to reconsider the law on the subject.
Hence the request for referring the matter to a larger Bench is rejected.
As regards the method of execution of the capital pun ishment by hanging, this Court considered the same in detail in Deena alias Deen Dayal & Ors.
etc., vs Union of India & Ors. etc.
, [1983] 4 SCC 645 and held that hanging by neck was a scientific and one of the least pain ful methods of execution of the death sentence.
We find no justification for taking a different view.
Shri Jain, howev er, brought to our notice that a learned Judge of this Court while sitting during vacation had issued notice to the State on the question as to whether the execution by hanging is a cruel and unusual procedure.
Hence, he urged that we should entertain this petition and reconsider the question.
Since the question of the mode of execution of capital punishment has already been considered in detail by this Court m Deen Dayal 's case (supra), we do not find any good reason to take a different view.
The question of reasonableness in the award of the capital punishment to Raj Gopal Nayar has been considered by the High Court and this 108 A Court at various stages and consistently it has been answered against the prisoner.
Hence the petition fails and is accordingly dismissed.
Interim relief order dated 25.10.
1991 is vacated.
V.P.R. Petition dismissed. [/INST] The petitioner 's husband was tried under Section 302, IPC for having killed his father and step brother.
The Sessions Judge convicted awarding sentence of death.
On appeal, the High Court confirmed the death penalty against which a special leave petition before this Court was filed and same was also dismissed.
The Review Petition filed by him was also dismissed.
His mercy petitions filed before the Governor of Jammu & Kashmir and the President of India, were rejected.
He chal lenged the order of the President of india rejecting the mercy petition before this Court in a writ petition under Article 32 of the Constitution, which was also dismissed.
Another writ petition under Article 226 of the Constitu tion was filed before the Jammu & Kashmir High Court for quashing the sentence imposed on him.
The High Court dis missed the same.
The husband of this petitioner, the condemned prisoner, was to be hanged on 26.10.1991.
The petitioner, filed the present petition under Article 32 of the Constitution challenging the validity of the capital punishment 104 with a prayer for the quashing of the sentence awarded to her husband.
The petition was entertained by a Division Bench on 25.10.91 and the matter was referred to the Constitution Bench for consideration staying the execution of the condem ned prisoner.
Petitioner contended that capital punishment was violative of Article 21 of the Constitution of India as the Article absolutely prohibits deprivation of a person 's life; that capital punishment did not serve any social purpose and the barbaric penalty of death should not be awarded to any person as it had no deterrent effect; that the penalty of death sentence had a dehumanising effect on the close rela tions of the victims and it deprived them of their fundamen tal rights under Article 21 of the Constitution, to a mean ingful life; that the execution of capital punishment by hanging was barbaric and dehumanising and it should be substituted by some other decent and less painful method in executing the sentence.
Dismissing the petition, this Court, HELD: 1.
The capital punishment as provided by the law is to be awarded in rarest of the rare cases.
The procedure established by law for awarding the death penalty is reason able and it does not in any way violate the mandate of Article 21 of the Constitution.
Hanging by neck was a scien tific and one of the least painful methods of execution of the death sentence.
[106 G, 107 F] 2.
The death penalty has a deterrent effect and it does serve a social purpose, having regard to the social condi tions in our country the stage was not ripe for taking a risk of abolishing it.
[107 C D] 3.
A judicial notice can be taken of the fact that the law and order situation in the country has not only not improvided since 1967 but has deteriorated over the years and is fast worsening today.
The present is, therefore, the most inopportune time to reconsider the law on the subject.
[107 E] Jagmohan Singh vs State of U.P.,[1973] 1 SCC 20; Bachan Singh vs State of Punjab, ; Deena alias Deen Dayal & Ors.
vs Union of India & Ors. etc.
, [1983] 4 SCC 645, referred to. 105 </s> |
<s>[INST] Summarize the following judgement: N: Criminal Appeal No. 664 of 1990.
From the Judgement and Order dated 13.3.1990 of the Andhra Pradesh High Court in Criminal Revision Case No. 532 of 1989.
K. Ramkumar for the Appellant.
B. Kanta Rao for the Respondent.
The Judgment of the Court was delivered by FATIMA BEEVI, J.
The appellant and the respondent got 906 married according to Hindu rites and customs on June 30, 1983.
They lived together until the appellant started complaining of desertion and ill treatment.
She moved the court for maintenance by an application under Section 125 of the Code of Criminal Procedure.
Though the claim was resisted on the ground that the appellant is not the legally wedded wife of the respondent who had earlier married one Veeramma, the learned magistrate awarded a monthly maintenance of Rs.400 holding that the first marriage has not been proved.
The order was, however, set aside by the High Court in revision accepting the plea that the first marriage was subsisting when the respondent married the appellant.
We have granted special leave to appeal against the order of the High Court.
We have been taken through the pleadings and the evidence by the learned counsel for the appellant for the purpose of satisfying that the High Court had no material before it for arriving at the finding that there was a valid marriage between Veeramma and the respondent on the day the respondent married the appellant.
It is pointed out that the appellant had nowhere admitted the subsistence of a valid marriage which would render her marriage illegal.
The appellant stated in her petition that one year after her marriage, she came to know that respondent married Veeramma and lived with her in Hyderabad and soon thereafter Veeramma started living along with the appellant and the respondent and, thus extra marital relationship of the respondent with Veeramma has disrupted her family life.
In fact, the respondent had in his counter flatly denied all the averments made by the appellant in the petition and maintained that a marriage ceremony was performed between Veeramma and the respondent when both were children and the appellant is only his kept mistress.
The respondent has, however, clearly admitted that he married the appellant according to Hindu rites.
When that marriage is repudiated as void on account of the subsistence of an earlier marriage, the respondent was bound to prove that he married Veeramma in the customary form and the marriage was subsisting in the year 1983 when the appellant was married to him.
As rightly pointed out by the learned counsel for the appellant, there is no clear admission of an earlier marriage between the respondent and Veeramma to dispense with the proof of subsisting valid first marriage when the second marriage was solemnised.
In the absence of such an admission, the statement that the respondent is living with another woman as husband and wife cannot persuade the court to hold that the marriage duly solemnised between the appellant and the respondent suffers from any legal infirmity.
The High Court has referred to exhibit R 12 and R 13 relied on 907 by the respondent to prove that he was already married.
exhibit R 12 is the insurance policy issued On 5. 12. 1975 where the name of the nominee is shown as Veeramma indicating that she is the wife of the respondent.
exhibit R 13 is the family identity card issued by the Road Transport Corporation where the respondent was working in 1977.
These documents are issued on the basis of what the respondent himself had stated.
The entries are not conclusive of the subsistence a valid marriage between the respondent and Veeramma.
If they had been living together as husband and wife even without performing a ceremonial marriage, and the respondent represented that Veeramma was his wife, it is possible that such entries would come into existence.
Therefore, these documents by themselves cannot prove any marriage or the subsistence of a valid marriage when the admitted marriage with the appellant was solemnised.
Section 125 of the Code of Criminal Procedure is meant to achieve a social purpose.
The object is to prevent vagrancy and destitution.
It provides a speedy remedy for the supply of food, clothing and shelter to the deserted wife.
When an attempt is made by the husband to negative the claim of the neglected wife depicting her as a kept mistress on the specious plea that he was already married, the court would insist on strict proof of the earlier marriage.
The term wife ' in Section 15 of the Code of Criminal Procedure includes a woman who has been divorced by a husband or who has obtained a divorce from her husband and has not remarried.
The woman not having the legal status of a wife is thus brought within the inclusive definition of the term 'wife ' consistent with the objective.
However, under the law a second wife whose marriage is void an account of the survival of the first marriage is not a legally wedded wife and is, therefore, not entitled to maintenance under this provision.
Therefore, the law which disentitles the second wife from receiving maintenance from her husband under Section 125, Cr.
P.C., for the sole reason that the marriage ceremony though performed in the customary form lacks legal sanctity can be applied only when the husband satisfactorily proves the subsistence of a legal and valid marriage particularly when the provision in the Code is a measure of social justice intended to protect women and children.
We are unable to find that the respondent herein has discharged the heavy burden by tendering strict proof of the fact in issue.
The High Court failed to consider the standard of proof required and has proceeded on no evidence whatsoever in determining the question against the appellant.
We are, therefore, unable to agree that the appellant is not entitled to maintenance.
908 We find that there is no dispute that the appellant was married to the respondent in the customary form.
They lived together as husband and wife and of late the respondent had neglected to maintain her.
The respondent has no case that the appellant has means to maintain herself or that the amount she has claimed is not commensurate with the means of the respondent.
The learned magistrate was, therefore, justified in awarding an amount of Rs.400 per mensem towards the maintenance of the appellant.
That order of the magistrate has to be restored.
In the result, we allow the appeal, set aside the order of the High Court and restore that of the trial court.
T. N. A. Appeal allowed. [/INST] The appellant wife filed an application for maintenance against respondent husband under section 125 of the Code of Criminal procedure, 1973.
The respondent contested the application on the ground that appellant was not his legally wedded wife since their marriage was void on account of subsistence of respondent 's earlier marriage.
The Magistrate awarded a monthly maintenance of Rs. 400 to the wife by holding that the respondent has not proved his first marrige.
The order of the magistrate was set aside by the High Court in revision accepting the respodent 's plea that his first marriage was subsisting when the respodent married the appellant.
In appeal to this court it was contented on behalf of the respodent that the High Court had no material before it for arriving at the finding that there was an earlier valid marriage on the date respondent married the appellant.
Allowing the appeal, this Court.
HELD:1 Section 125 of the code of Criminal Procedure is meant to achieve a social purpose.
The object is to prevent vagrancy and destitution.
it provides a speedy remedy for the supply of food,clothing and shelter to the deserted wife.
The term "wife" includes a woman who has been divorced by a husband or who has obtained a divorce from her husband and has not remarried.
The woman not having the legal status of a wife is thus brought within the inclusive definition of the term "Wife" consistent with the objective.
However,under the law a second wife whose marriage is void on account of the survival of the first marriage is 905 not a legally wedded wife and is,therefore,not entitled to maintenance under this provision.
Therefore, the law which disentitles the second wife from receiving maintenance from her husband for the sole reason that the marriage ceremony though performed in the customary from lacks legal sanctity can be applied only when the husband satisfactorily proves the subsistence of a legal and valid marriage particularly when the provision in the Code is ameasure of social justice intended to protect women and children.
Accordingly, when an attempt is made by the husband to negative the claim of the neglected wife depicting her as a kept mistress on the specious plea that he was already married, the court should insist on strict proof of the earlier marriage.
[907D H] 2.
The respondent has not discharged the heavy burden by tendering strict proof of the fact in issue.
He clearly admitted his marriage with the appellant acording to Hindu rites.
But there is no clear admission of his earlier marriage to dispense with the proof of subsisting valid first marriage when the second marriage was solemnised.
In the absence of such an admission, the statement that the respondent was living with another woman as husband and wife cannot persuade was court to hold that the marriage duly solemnised between the appellant and the respondent suffers from any legal infirmity.
[906C H] 3.
The nomination in the Insurance Policy and Entry in the Identity Card, referred to by the High Court are not conclusive of the subsistence of a valid marriage between the respondent and his earlier wife.
The High Court has failed to consider the standard of proof required and has proceeded on no evidence whatsoever in determining the question against the appeallant.
Accordingly the order of the High Court is set aside and the order of the Magistrate is restored.
[907B C] </s> |
<s>[INST] Summarize the following judgement: 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. [/INST] 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] </s> |
<s>[INST] Summarize the following judgement: Appeal No. 3850 of 1991.
From the Judgment and Order dated 21.4.1978 of the Andhra Pradesh High Court in Civil Revision Petition No. 3974 of 1977.
A. Subba Rao, G. Narasimhulu and A.D.N. Rao for the Appel lants.
T.V.S.N. Chari and Ms. Manjula Gupta for the Respondent.
The Judgment of the Court was delivered by KANIA, J.
Leave granted.
Counsel heard.
As we are in agreement with the conclusions arrived at by the High Court of Andhra Pradesh, we propose to set out the few facts necessary for the appreciation of the argu ments before us very briefly.
517 The parties belong to the Reddi caste in an area of Andhra Pradesh which originally formed part of the Madras Presidency.
Appellant No. 1 is the illatom son in law of Appellant No. 2.
The appellants filed their respective declarations under Section 8 of the Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings) Act, 1973, (hereinafter referred to as "the Ceiling Act").
In his declaration, appellant No. 2 claimed an increase in the ceiling unit permitted to be held by him on the ground that appellant No. 1 as his illatom son in law who had attained the age of majority had a share in the properties of his father in law, appellant No. 2.
Appellant No. 2 deposed in the inquiry held that appellant No. 1 was entitled to a half share in his properties as his illatom son in law.
Both of them claimed that appellant No. 1 was entitled to the afore said share under an agreement (Exhibit A I).
The Land Re forms Tribunal, Anantapur by its judgment dated May 31, 1977, rejected the claim of the appellants and held that the declarant, appellant No. 2 held surplus holding to an extent of 0.4109 standard acres and directed him to surrender the excess land.
Appellant No. 1 was declared as not holding any land in excess of ceiling limit.
The appellants preferred an appeal to the Land Reforms Appellate Tribunal, Anantapur which was dismissed on November 4, 1977.
Aggrieved by the order of dismissal made by the said Tribunal, the appellants filed a Civil Revision Petition No. 3974 of 1977 in the High Court of Andhra Pradesh which was dismissed by a learned Single Judge of the High Court by a common judgment along with other connected matters on April 21, 1978.
This appeal by special leave is one of the appeals directed against the common judgment of the said High Court.
An illatom son in law is in a sense, a creature of custom.
It is well settled by a series of decisions that a custom of illatom adoption prevails among the Reddi and Kamma castes in territories which earlier formed part of the then Madras Presidency.
It is stated in Mayne 's Hindu Law and Usages, 13th Edition, Paragraph 242 in Chapter VII, as follows: "A custom known as that of illatom adoption prevails among the Reddi and Kamma castes in the Madras Presidency.
It consists in the affiliation of a son in law, in consideration of assistance in the management of the family property.
No religious significance appears to attach to the act.
Neither the execution of any document nor the performance of any cere mony is necessary.
The incidents of an illatom adoption have now become crystallized into fixed rules of law by a long course of deci sions.
To constitute a person an illatom, a specific agreement is necessary . .
After the death of the adop 518 ter he is entitled to the full rights of a son even as against natural sons subse quently born or a son subsequently adopted in the usual manner." It has also been stated by Mayne that an illatom son in law has no right to claim partition with his father in law unless there is an express agreement or custom to that effect.
An illatom son in law is not an adopted son in any sense.
In N.R. Raghavachariar 's Hindu LaW, 8th Edition, in paragraph 176, it is stated that an illatom son in law loses no rights of inheritance in his natural family and the property he takes in the adoptive family is taken by his own relations to the exclusion of those of his adoptive father.
The position, as set out in Mulla 's Hindu law, 16th Edition is no different.
Regarding the position of an illatom son in law it has been inter alia observed by Mulla at para 515 (page 534) as follows: "He does not lose his right of inheritance in his natural family.
Neither he nor his de scendants become coparceners in the family of adoption though on the death of the adopter he is entitled to the same rights and the same share as against any subsequently born natural son or a son subsequently adopted in accord ance with the ordinary law.
He cannot claim a partition with the father in law and the incidence of a joint family, such for instance as right to take by.
survivorship, do not apply.
In respect of the property or share that he may get he takes it as if it were his separate and self acquired property.
" To cite just a few decisions, the custom of having an illatom son in law in the Kamma Castes and the Reddis in Madras Presidency has been recognised in Nalluri Kristnamma and another vs Kamepalli Venkatasubbayya and others.
(1918 19) L.R. 46 I.A. 168.
The same custom has also been recog nised by the decision of a Division Bench of the Madras High Court in Hanumantamma vs Rami Reddi.
(1882) L.R. 4 I.A. Madras Series, 272.
In Narasayya and others vs Rammachan drayya and others A.I.R. [1956] 43 A.P. 209 it has been held that the institution of illatom adoption, that is, affiliat ing a son in law and giving him a share, is purely a crea ture of custom and judicial recognition has been given to it.
Learned Counsel for the appellants contends that appel lant No. 1 as an illatom son in law of appellant No. 2, was entitled to a half share in the property of appellant No. 2.
He submitted that an illatom son in law who had attained the age of majority was in the same position as a major son and hence, the ceiling area permitted to appellant No. 2 was liable to be increased by one ceiling unit as appellant No. 1 did not hold any land independently nor in any manner specified under Section 4 A of the Ceiling Act.
519 Before examining the correctness of these submissions, we may refer to the relevant provisions of the Ceiling Act.
The Ceiling Act which provided for a ceiling on agricultural holding in Andhra Pradesh was enacted in 1973 and amended by Act No. 10 of 1977 which was reserved tot the assent of the President and received the same on April 29, 1977.
The said amending Act was made effective from January 1, 1975.
Section 3 of the said Act is the definition section.
Sub section (c) of Section 3 defines the term 'ceiling area ' after the amendment as meaning the extent of land specified in Section 4 or 4A to be the ceiling area.
Sub section (5) of Section 3 defines the term "family unit" and clause (i) thereof provides that in case of an individual who has a spouse or spouses such individual, the spouses and their minor sons and their unmarried minor daughters, if any, constitute his family unit.
Section 4 provides for the ceiling area.
After Section 4 of the said Act, the following Section 4A was inserted in the Act.
"4A. Increase of ceiling area in certain cases : Notwithstanding anything in section 4, where an individual or an individual who is a member of a family unit, has one or more major sons and any such major son either by himself or together with other members of the family unit of which he is a member, holds no land or holds an extent of land less than the ceiling area, then, the ceiling area, in the case of said individual or the family unit of which the said individual is a member computed in accordance with section 4, shall be increased in respect of each such major son by an extent of land equal to the ceiling area applicable to such major son or the family unit of which he is a member, or as the case may be, by the extent of land by which the land held by such major.
son or the family unit of which he is a member falls short of the ceiling area.
" Section 5 prescribes how the standard holding for dif ferent categories of land is to be computed.
Section 8 provides for declaration of holding by persons whose holding on the notified date together with the other lands mentioned therein exceeds the specified limit.
Section 9 provides for the determination of the ceiling area by the Tribunal.
Section 10 inter alia provides that if the extent of the holding of a person is in excess of the ceiling area, the person shall be liable to surrender the land held in excess.
The question which arises is whether, for the purposes of Section 4A 520 of the Ceiling Act, an illatom son in law can be regarded as a major son, that is, whether an illatom son in law is covered in the definition of the term 'major son ' as em ployed in Section 4A of the Ceiling Act.
It has been ob served in the impugned judgment that an illatom son in law is a creature of custom and hence, his rights are such as recognised by the custom or under an agreement duly proved.
It has been pointed out in the impugned judgment that the Land Reforms Tribunal held, on consideration of the evidence, that half share in property of appellant No. 2 was bequeathed to him and hence, he would be entitled to half share only after the demise of appellant No. 2.
It was further pointed out that all the lands stood registered in the name of appellant No. 2 and hence, appellant No. 1 was not entitled to any share in the properties of appellant No. 2 during the life time of appellant No. 2.
It has been held in the impugned judgment that appellant No. 1 who is the illatom son in law could not be regarded as a son of appellant No. 2, although he had some rights which were similar to the rights of a natural born son or an adopted son.
The agreement (Exhibit A) which was set up by the appellants and under which appellant No. 1 given a share the land belonging to appellant No. 2 in presenti has not been accepted by the courts below on consideration of the evi dence.
It has been held that the said agreement was a document brought into existence merely with a view to avoid the ceiling law.
In this appeal, we are not inclined to interfere with these findings of the appeal.
It was also held in the impugned judgment that in the aforestated cir cumstances, the ceiling limit of appellant No. 2 was not liable to be increased on the ground that appellant No. 1 was his illatom son in law who had attained majority on the relevant date.
Coming to the position in law, the discussion in the text books, which we have referred to in some detail earli er, makes it clear that although an illatom son in law has some rights similar to those of a natural son born F after the adoption of the iliatom son in law, his rights are not identical to those of conferred by law on a son or an adopt ed son.
To cite two main differences, he does not succeed to the properties of his father in law by survivorship, but only on account of custom or an agreement giving him a share in the property of his father in law.
His position is not identical to that of an adopted son because he does not lose his rights in his natural G family on being taken as an iliatom son in law and continues to be entitled to a share in the property of his natural father.
It is, therefore, difficult to regard an iliatom son in law who has attained majority as a major son for the purposes of Section 4A of the Ceiling Act.
Learned Counsel for the appellants placed reliance on the decision of a learned Single Judge of the Andhra Pradesh High Court in Peechu 521 Ramaiah vs Government of Andhra Pradesh [1976] 2 (H.C.) Andhra Pradesh Law Journal 278, where it has been held that after the death of the father in law an iliatom son in law is entitled to the rights of his son.
If there is an agree ment to that effect, the illatom son in law is also entitled to half share in the property of the adoptive father in law even during his lifetime.
The Division Bench in the impugned judgment has not accepted the correctness of the aforesaid judgment.
In our opinion, the view taken by the Division Bench in the impugned judgment appears to be correct.
From the texts which we have cited earlier it is clear that the general recognised position is that an illatom son in law becomes entitled to a share in the property of his father in law as his heir; that is, on his death, it being well settled in law that there can be no heir to a living person.
Moreover, in Peechu Ramaiah vs Government of Andhra Pradesh the conclusion arrived at by the learned Single Judge that the illatom son in law was entitled to a half share in presenti, that is, even during the lifetime of his father in law, was based on an agreement to that effect which was duly proved.
In the present case, the agreement (Exhibit A) has been disbelieved by the authorities below as well as the High Court.
It has been pointed out by the Land Reforms Tribunal that the half share to which appellant No. 1 would be entitled was bequeathed to him in the Will of appellant No. 2 and he would be entitled to that share only on the death of appellant No. 2.
In fact, it was fairly conceded by learned Counsel for the appellants that he was not in a position to show any evidence on the basis of which it could be said that there was a custom applicable to the parties by which appellant No. 1 as an illatom son in law of appellant No. 2 was entitled to a share in the property of appellant No. 2 during the latter 's lifetime.
In our opinion, it is not possible to equate an iliatom son in law who has attained majority with a major son for the purposes of Section 4A of the Ceiling Act.
As pointed out in Penumatsa Koti Ramachandra Raju vs State of A.P., (1980) 1 (H.C.) Andhra Pradesh Law Journal, 307, it is quite apparent from the language of the Statement of Objects and Reasons of the Act 10 of 1977, whereby Section 4A was in serted in the Ceiling Act, that Section 4A was inserted in order to obviate the hardship caused to the Muslims and Christians among whom the concept of a joint family did not obtain and even major sons did not have any share in the ancestral property during the lifetime of the father unlike in the case of Joint Hindu Families.
It appears that the intention which lay behind the amendment was to put Muslims and Christians at par with Hindus in respect of the ceiling law.
It was with this point of view that it was provided in Section 4A of the Ceiling Act that, although the limit of the father 's holding would be increased on the ground of his having a major son that increase would 522 be limited to the extent by which the land holding of the major son and his family unit fell short of the ceiling unit.
In our opinion, the Statement of Objects and Reasons of the said amending Act whereby Section 4A was inserted into the said Act lends support to the view that we are taking, that an illatom son in law, who does not lose his rights in his own family, cannot be regarded as a major son of his father in law for the purposes of the Ceiling Act.
If he was so regarded, there would be a double benefit, in the sense that because of his presence the ceiling area of his father in law would be increased as well as the ceiling area of his natural father and that certianly could not have been the intention behind the amendment inserting Section 4A.
Since there is no custom of having an illatom among Muslims and Christians such a construction would lead to disparity between the position of Muslims and Christians on the one hand and Hindus on the other.
That would be contrary to the very purpose for which the amendment was made.
In the result, we are of the view that there is no merit in the appeal and it must fail.
Appeal dismissed.
However, looking to the facts and circumstances of the case there will be no order as to costs.
V.P.R Appeal dismissed. [/INST] The appellants, who belonged to the Reddi caste in an area of Andhra Pradesh, which originally formed part of the Madras Presidency filed their respective declarations under Section 8 of the Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings) Act, 1973.
Appellant No. 2 in his declaration claimed an increase in the ceiling unit permitted to be held by him on the ground that appellant No. 1, as his illatom son in law who had attained the age of majority, had a share in the proper ties.
In the inquiry held Appellant No. 2 deposed that appel lant No. 1 was entitled to a half share in his properties as his illatom son in law.
Both the appellants claimed that appellant No. 1 was entitled to a share under an agreement.
The Land Reforms Tribunal rejected the claim of the appellants and held that the declarant, appellant No. 2 held surplus holding and directed him to surrender the excess land.
Appellant No. 1 was declared as not holding any land in excess of ceiling limit.
The appellants preferred an .appeal to the Land Reforms Appellate 514 515 Tribunal, which was dismissed.
The appellants filed a Civil Revision Petition in the High Court, which was also dismissed.
This appeal by special leave is one of the appeals directed against the common judgment of the High Court.
The appellants contended that appellant No. 1 as an illatom sonin law of appellant No. 2, was entitled to a half share in the property of appellant No. 2; that an illatom son in law who had attained the age of majority was in the same position as a major son and hence, the ceiling area permitted to appellant No. 2 was liable to be increased by one ceiling unit as appellant No. 1 did not hold any land independently nor in any manner specified under Section 4A of the Ceiling Act.
Dismissing the appeal, this Court, HELD: 1.
The institution of illatom adoption, that is, affiliating a son in law and giving him a share, is purely a creature of custom and judicial recognition has been given to it.
It prevails among the Reddi and Kamma castes in territories which earlier formed part of the then Madras Presidency.
[518 G, 517 F] 2.
An illatom son in law becomes entitled to a share in the property of his father in law as his heir, that is, on his death.
[521 C] 3.
Although an illatom son in law has some rights simi lar to those of a natural son born after the adoption of the illatom son in law, his rights are not identical to those of conferred by law on a son or an adopted son.
The illatom son in law does not succeed to the properties of his father in law by survivorship, but only on account of custom or an agreement giving him a share in the property of his father in law.
His position is not identical to that of an adopted son because he does not lose his rights in his ' natural family on being taken as an illatom son in law and continues to be entitled to a share in the property of his natural father.
It is not possible to equate an illatom son in law who has attained majority with a major son for the purposes of Section 4A of the Ceiling Act.
[520 F G, 521 E] 516 4.
The Statement of Objects and Reasons of the Amending Act whereby Section 4A was inserted into the Ceiling Act indicate that an illatom son in law, who does not lose his fights in his own family, cannot be regarded as a major son of his father in law for the purposes of the Ceiling Act.
If he was so regarded, there would be a double benefit, because of his presence as the ceiling area of his father in law would be increased as well as the ceiling area of his natu ral father.
That Certainly could not have been the intention behind the amendment.
Since there is no custom of having an illatom among Muslims and Christians such a construction would lead to disparity between the position of Muslims and Christians on the one hand and Hindus on the other.
That would be contrary to the very purpose for which the amend ment was made.
[522A C] Nallun Kristnamma and another vs Kamepalli Venkatasub bayya and others, (1918 19) L.R. 46 I.A. 168; Hanumantamma vs Rami Reddi, (1882) L.R.4 I.A. Madras Series 272; Nara sayya and others vs Ramachandrayya and others, AIR [1956] 43 A.P. 209; Penumatsa Koti Ramachandra Raju vs State of A.P. (1980) 1 (H.C.) Andhra Pradesh Law Journal 307, referred to.
Peech Ramaiah vs Government of Andhra Pradesh, (1976) 2 (H.C.) Andhra Pradesh Law Journal 278, distinguished.
Mayne: Hindu Law and Usages, 13th Edition, Chapter VII, Paragraph 242, N.R. Raghavachariar; Hindu Law 8th Edition, Paragraph 176; Mulla: Hindu Law, 16th Edition, Para , referred to. </s> |
<s>[INST] Summarize the following judgement: Appeal No.4375 OF 1991.
From the Judgment and Order dated 3.9.1990 of the Karna taka Administrative Tribunal, Bangalore in Application No. 2564 of 1989.
M.K. Ramamurthy, section Ravindra, K.V. Mohan and S.R. Bhat for the Appellant.
Raju Ramachandran, M. Veerappa and Kh.
Nobin Singh (N.P.) for the Respondents.
The Judgment of the Court was delivered AHMADI, J.
Special leave granted.
The controversy which we are required to resolve in this appeal by special leave is regarding the appellant 's senior ity vis a vis respondents Nos.3 to 7.
The factual background which has given rise to this controversy, briefly stated, is as under: In the year 1966 posts of Junior Engineer (Mechanical) were created in the Department of Mines and Geology (Ground Water Surveys and Drilling Unit) of the State of Karnataka.
The appellant who was then working as a Rigman in the Drill ing Unit of the Department was appointed Junior Engineer (Mechanical) in the scale of Rs. 200 375 on one of the said posts by an order dated 14th August, 1967 issued by the Director of the department.
Subsequently, he was regularly recruited through the State Public Service Commission in the said post w.e.f. 4th May, 1970.
However, even though the Director had requested the State Government to frame Re cruitment Rules for the newly created post immediately after its creation, the Recruitment Rules were not finalised till the issuance of a Notification dated 26th June, 1973.
Before the appellant was regularly recruited through the State Public Service Commission in the year 1970 the Director had apprised the Government of the action which he proposed to 602 take to fill up the post.
The appointment order was issued after the Public Service Commission had advertised the post and had selected persons for appointment to the said posts.
The appellant was initially appointed on probation for one year and on his satisfactorily completing the probation period he was continued in service and was later confirmed in the said post by an order dated 13th June, 1974 w.e.f. 29th September, 1972.
Respondents Nos. 3 to 7 entered service as Drillers in 1964 65.
The appellant and the respondents Nos.
3 to 7 were promoted as Assistant Drilling Engineers by the Director 's order dated 16th December, 1974.
The Office Order No.676/74 75 shows that the appellant and one another were working as Junior Engineers at the relevant time whereas respondents Nos.
3 to 7 were working as Drillers before their promotions as Assistant Drilling Engineers.
The State Government did not approve of the Director 's action in promoting the appellant since he was a local candidate and directed that he be reverted.
However, no such reversion took place.
The State Government also did not take any further action.
The appellant was shown senior to respond ents Nos. 3 to 7 in the said cadre of Assistant Drilling Engineers.
The appellant was subsequently promoted by the State Government to the next higher post of Drilling Engi neer in 1980 and further as Chief Drilling Engineer in 1984 which post he was holding at the date when his seniority came to be disturbed.
The appellant was throughout shown senior to respondents Nos.
3 to 7 till the revised provi sional seniority list in regard to the cadre of Assistant Drilling Engineers was published on 31st December, 1987.
Since objections were invited the appellant objected to his being shown junior to respondents Nos.3 to 7 but to no avail.
Even in the final seniority list dated 4th May, 1989 he was shown junior to respondents Nos. 3 to 7.
Respondents Nos.3 to 7 were shown in both the provisional and final seniority list at Serial Nos.1 to 5 whereas the appellant was shown at Serial No.6.
Thus, for the first time, since his regular appointment in the year 1970, he was shown junior to respondents Nos. 3 to 7 under the provisional seniority list issued in 1987 and the final seniority sen iority list issued in 1989.
The appellant, therefore, chal lenged the provisional seniority list as well as the final seniority list by an Application No. 2564 of 1989 preferred to the Karnataka Administrative Tribunal.
The Tribunal by its order dated 3rd September, 1990 rejected his application holding that his initial entry into service as a Junior Engineer was itself irregular and since he did not have the requisite experience of three years as a regular incumbent he was not qualified to be promoted to the next higher post of Assistant Drilling Engineer because his regular employ ment could only be related from the date of framing of the Recruitment Rules for the adre which came to be notified on 23rd August, 1973.
In this view of 603 the matter, the Tribunal held that the service of the appel lant from 4th May, 1970 to 23rd August, 1973 could not be taken into consideration for the purpose of determining his inter se seniority vis a vis respondents Nos. 3 to 7.
The appellant feeling aggrieved by the dismissal of his applica tion, has approached this Court under Article 136 of the Constitution.
The appellant contends that the order of the Tribunal suffers from a number of fallacies, namely, firstly, the Tribunal has failed to realise that the appellant was re cruited as a regular employee on selection by the State Public Service Commission pursuant to an advertisement issued in this behalf and, therefore, the appellant 's em ployment was regular in nature and not that of a mere local candidate; secondly, the post to which he was appointed was a regularly created post and was a higher than that of respondents Nos. 3 to 7 even during the period there existed no recruitment rules and in any case after his confirmation w.e.f.
29th September, 1972 it was not open to the Tribunal to hold that his appointment was irregular and thirdly, the Tribunal had erred in overlooking the guideline issued by the state Government on 5th July, 1976 which specifically provided that 'all appointments made by the Government or under specific authority of Government either by direct recruitment or by promotion or on or after 1st November, 1956 but prior to the commencement of the Rules regarding recruitment to such cadres may be treated as regular '.
The appellant contends that in pursuance of this guideline issued by the State Government even if it is assumed that his initial appointment was irregular it had to be treated as regular throughout.
The appellant, therefore, contends that the Tribunal 's order suffers from certain patent in firmities and deserves to be set aside.
It appears that before the Tribunal respondents Nos.1, 2, 4, 6 and 7 did not file any counter challenging the appellant 's claim to sen iority but respondents Nos. 3 and 5 contested the appel lant 's claim while the State Government avoided entering into the arena by filing a counter but instead presented the relevant files to the Tribunal.
So far as respondents Nos. 3 and 5 are concerned, they supported the action taken by the state Government in preparing both the impugued provisional as well as the final seniority lists.
They contended that since they were regular employees and had entered service before the appellant and were promoted to the post of As sistant Drilling Engineers along with the appellant they were clearly senior to 'the appellant and the State Govern ment was, therefore, justified in showing them at Serial Nos.1 to 5 and the appellant at Serial No. 6 in the seniori ty list.
They, therefore, contend that this 604 appeal is without substance and needs to be dismissed.
We have heard counsel for the rival contestants.
Counsel of the State Government submitted that they had prepared the seniority list for reasons already stated but they would not like to take sides and would abide by the decision of this court.
In order to appreciate the controversy, it is necessary to refer to the Karnataka Civil Services (Classification, Control and Appeal) Rules, 1957.
According to Rule 5, the Civil Services of the State of Karnataka are classified into Class I, Class II, Class II and Class IV posts.
Class I and Class II are gazetted Posts whereas Class III and Class IV consist of non gazetted Posts.
So far as Class III posts are concerned the initial appointments have to be made by the authorities mentioned in Column 2 of Schedule II appended to the Rules.
In regard to the posts of Junior Engineers the lind Schedule makes the Director the Appointing Authority.
There can, therefore, be no doubt that the initial appoint ment of the appellant was by an authority competent to appoint.
It is indeed true that at the time when the appel lant was selected by the State Public Service Commission and appointed as Junior Engineer w.e.f.
4th May, 1970 there were no specific Recruitment Rules in existence for the post in question.
As stated earlier, the posts were created for the first time in 1966 and since then the Director had been in correspondence with the State Government for framing of the Recruitment Rules for the said posts.
Since the Recruitment rules were not framed for one reason or the other, in 1969 the Director wrote a letter to the State Public Service Commission to advertise the vacancies and select candidates for appointment.
Simultaneously, he wrote a letter informing the State Government of the action taken by him in request ing the State Public Service Commission to advertise the posts and select candidates for appointment.
Pursuant to the requisition sent by him the Commission selected candidates and forwarded the list to the Director who was the Appoint ing Authority under the Karnataka Civil Service (Classifica tion, Control and Appeal) Rules, 1957.
The Director who was competent to make the appointment by virtue of Rule 7 issued a letter of appointment dated 24th April, 1970 whereapon the appellant took charge w.e.f. 4th May, 1970.
It, therefore, becomes apparent that the posts were regularly created sometime in 1966 and the appellant was duly selected by the State Public Service Commission and appointed to the post in question in 1970.
The appellant being an engineering gradu ate was qualified for appointment to post in question.
The state Government 's approach while sliding down the appellant in seniority vis a vis the respondents Nos.
3 to 7 may be briefly noticed.
605 After the recruitment rules for Junior Engineers (Mechani cal) were framed and brought into effect w.e.f.
23rd August, 1973, it was felt that the two posts of Junior Engineers were filled by direct recruitment contrary to the said rules which provided a ratio of 50% by promotion from the cadre of Drillers and 50% by direct recruitment.
Since both the posts were filled by direct recruitment, it was felt that this ratio was violated.
The date of the appellant 's seniority was, therefore, reckoned from 23rd August, 1973 and since the appellant had not acquired experience of three years he was held ineligible for promotion to the next higher post of Assistant Drilling Engineer.
His entry into the promo tional post was, therefore, pushed down to 23rd August, 1976 and accordingly respondents Nos. 3 to 7 were placed above him in the seniority list.
The Tribunal concurred with this approach.
The Tribunal held that the initial appointment of the appellant as Junior Engineer (Mechanical) by the Direc tor was not supported by any rules and the Director not being the appointing authority for the said posts in 1970, the appellant 's appointment was not regular.
Secondly, the Tribunal concurred with the Government that the appellant 's entry into the cadre of Assistant Drilling Engineer must be assumed to be w.e.f.
23rd August, 1976 and hence respondents nos.
3 to 7 were clearly senior to him.
In short the Tribu nal approved of the Government 's approach in With respect we find it difficult to approve of the said approach.
As pointed out earlier, the posts were sanc tioned in 1966.
Initially the appellant was appointed as a local candidate but later the Director requested the State Public Service Commission to advertise the said two posts and select candidates for appointment to the said posts.
Pursuant to the advertisement so issued the appellant ap plied, was found qualified and was selected for appointment.
The Director, therefore, made the appointment as he was the appointing authority for Class III posts under the Karnataka Civil Services (Classification, Control & Appeal) Rules, 1957, vide Rule 7(2) read with Column 2 of Schedule II thereto.
That rule clearly shows that the Director is the appointing authority for Junior Engineers, a Class III post.
The Tribunal was, therefore, not right in holding that the appointment made was irregular as it was not by the appoint ing authority.
The Tribunal was wrong in holding that the Director was not the appointing authority for Junior Engi neers.
Strictly speaking, that was not the approach of the Government.
The Government held the appointment irregular as in its opinion it had exceeded the quota of 50% for direct recruits.
This view is based on the premise that the serv ices must be regularised applying the 1973 Rules retrospec tively.
Here there are two fallacies, firstly the appellant being senior of the two direct recruits appointed as Junior Engineers, he would fill the slot for the one post which 606 went to direct recruits on the 50% quota and secondly it was not permissible to question the appointment made in 1970 in 1987 when in the intervening period none had challenged the appellant 's appointment.
The objection which the Government had raised on his promotion to the next higher post was that he was a local candidate and not a regular appointee, an objection which was not pursued presumably on realising that he was selected by the State Public Service Commission before appointment.
Not only that the Government acquiesced in his appointment by promoting him to the next higher posts in 1980 and 1984.
Since the posts existed on the establish ment and selection for appointment was made by the State Public Service Commission and the Director was competent to make the appointment, it cannot be said that the absence of recruitment rules makes the appointment illegal or irregular when it is found that the appellant, a degree holder, was eligible for appointment to the post.
This is so also be cause irregular appointments were regularised by the Govern ment Memorandum dated 5th July, 1976, the relevant part whereof reads as under: "3(a).
All appointments made by Government or under specific authority of Government either by direct recruitment or by promotion on or after 1st November, 1956, but prior to the commencement of rules regulating recruitment to such cadres may be treated as regular".
This was clarified by the subsequent letter dated 17th September, 1977 as under: "Para 3(a) states that all the appointments made by Govern ment or under specific authority of Government either by direct recruitment or by promotion on or after 1.11.1956 and prior to the commencement of the Cadre and Recruitment Rules of the concerned cadre may be treated as regular, that is to say, the action taken by Government on other Appointing authorities in resorting either of the modes of recruitment is regular.
This para does not say that the appointment of local candidates as a stop gap arrangement is regular".
The Tribunal refused to place reliance on the above on the erroneous ground that the Director was not the appoint ing authority and the appellant was a local candidate.
Once both these are found to be erroneous there is no reason to brush aside the said guidelines.
It may also be appreciated that the services of local candidates in Class III cadre were regularised by Office Order No.177/71 72 dated 31s1 August, 1971 and had the 607 appellant not have been appointed as a regular candidate w.e.f. 4th May, 1970 his service would also have been regu larised as a local candidate.
From what we have discussed above it is obvious that the entire approach of the State Government and the Tribunal was erroneous.
Besides, the appellant was shown senior to re spondents Nos.
3 to 7 right from 1970 to 1987 when his seniority came to be disturbed.
During the said period of 17 years all attempts to disturb his seniority had 'failed.
No one successfully challenged it in Court.
The appellant 's seniority which had stabilised over a period of time and on the basis whereof he was granted promotions by the Govern ment could not be disturbed by doubting the.
regularity of the initial appointment after so many years.
It was not as if he had gained experience as an ad hoc employee in a stop gap arrangement that his experience as a Junior Engi neer could be overlooked.
We are, therefore, of the opinion that his seniority in the promotion post could not be upset on the ground that he did not possess the requisite experi ence till 23rd August, 1976.
In Direct Recruit Class H Engineering Officer 's Associa tion vs State of Maharashtra & Ors, ; , this Court held in paragraph 13 as under: "The principle for deciding inter se seniority has to conform to the principles of equality spelt out by Articles 14 and 16.
If an appointment is made by way of stop gap arrangement, without considering the claims of all the eligible available persons and without following the rules of appointment, the experience on such appointment cannot be equated with the experience of a regular appointee, because of the qualitative difference in the appointment.
To equate the two would be to treat two unequals as equal which would violate the equality clause.
But if the appointment is made after considering the claims of all eligible candidates and the appointee continues in the post uninterruptedly till the regularisation of his service in accordance with the rules made for regular substantive appointments, there is no reason to exclude the officiating service for purpose of seniority.
Same will be the position if the initial appoint ment itself is made in accordance with the rules applicable to substantive appointments as in the present case.
To hold otherwise will be discriminatory and arbitrary".
In the present case also the appellant 's appointment was made in 1970 after all eligible candidates were interviewed by the State Public Service Commission.
As pointed out earlier, the posts were borne on the establishment and the Director was the appointing authority who made the appoint ment pursuant to the selection made by the State Public Service Commission.
The appellant worked on that post unit erruptedly till he was 608 promoted to the next higher post along with respondents Nos. 3 to 7.
In these circumstances, his experience in the post of Junior Engineer (Mechanical) from 1970 till his promotion to the next higher post could not be ignored.
We are, there fore, of the opinion that the ratio laid down by the Consti tution Bench in the aforequoted paragraph applies with all force in the present case also.
In the result, we allow this appeal and set aside the order of the Tribunal.
We hold that the appellant 's seniori ty over respondents Nos.
3 to 7 as was obtaining before 31st December, 1987 when the provisional seniority list was published shall be restored and he shall be shown to be senior to respondents Nos.
3 to 7 by correcting the impugned final seniority list.
The appeal is allowed accordingly with no order as to costs.
T.N.A. Appeal allowed. [/INST] The appellant, a Rigman in the Department of Mines and Geology, State of Karnataka, was initially appointed as a local candidate on the newly created post of Junior Engineer (Mechanical).
Later he was regularly selected by the State Public Service Commission and appointed on the said post on 4.5.1970 by the Director and was confirmed on the said post on 29.9.1972.
On 16.12.1974, he, alongwith respondents No. 3 to 7, who were drillers in the Department was promoted as Assistant Drilling Engineer and was shown senior to them.
However, in the revised provisional seniority list as well as in the final seniority list, he was shown junior to respondents No. 3 to 7 in the cadre of Assistant Drilling Engineer.
The appellant filed an application before the State Administrative Tribunal challenging the seniority lists which was rejected holding (i) the appellant 's appointment as Junior Engineer was irregular because it was not support ed by Recruitment Rules and the Director was not the ap pointing authority; (ii) since the appellant had not ac quired three years experience as regular incumbent he was not qualified to be promoted as Assistant Drilling Engineer;, his regular employment could only be related from the date of framing of the Recruitment Rules.
Accordingly, the Tribunal held that appellant 's service from 4th May, 1970 to 23rd August, 1973 could not be taken into considera tion for reckoning his seniority and hence he was junior to Respondents No3 to 7.
599 600 The appellant filed an appeal in this Court challeng ing the Tribunal 's order contending that (i) in view of his recruitment as a regular employe on selection by the Service Commission his employment was regular in nature; (ii) the post to which he was appointed was regularly created post and was higher than that of respondents even during the period there existed recruitment rules; in any case after his confirmation it was not open to the Tribunal to hold his appointment irregular;, and (iii) in view of the guidelines issued by the State Government, under which irregular ap pointments were regularised, even if it is assumed his initial appointment was irregular it has to be treated regular throughout.
Allowing the appeal and setting aside the order of the Tribunal this Court: HELD :1.
Rule 7(2) of the Karnataka Civil Services (Classification, Control & Appeal ) Rules, 1957 read with column 2 of Schedule 11 thereto clearly shows that the Director is the appointing authority for Junior Engineers.
The appellant was found qualified and was duly selected by the Public Service Commission and appointed as Junior Engi neer in 1970.
He worked on the post uninterruptedly till he was promoted to the next higher post of Assistant Drilling Engineer alongwith the respondents No. 3 to 7.
The Tribunal was, therefore, not right in holding that the appointment made was irregular and that the Director was not the ap pointing authority for Junior Engineers.
Accordingly his experience in the post of Junior Engineer from 1970 till his promotion to the next higher post could not be ignored.
[605 F, 604 G, 607 H, 608 A] 2.
Since the posts existed on the establishment and selection for appointment was made by the State Public Service Commission and the Director was competent to make the appointment, it cannot be said that the absence of recruitment rules made the appointment illegal or irregular.
Moreover, the irregular appointments were regularised by the Government Memorandum dated 5th July, 1976.
[606 B C] 3.
The appellant 's seniority which had stabilised over a period of time and on the basis whereof he was granted promotions by the Government could not be disturbed by doubting the regularity of the initial appointment after so many years.
It was not as if he had gained experience as an ad hoc employee in a stop gap arrangement that his experi ence as a Junior Engineer could be overlooked.
Therefore, his 601 seniority in the promotion post could not be upset on the ground that he did not possess the requisite experience.
[607 B C] Direct Recruit Class H Engineering Officers ' Associa tion vs State of Maharashtra & Ors.
; , fol lowed.
The appellant 's seniority over respondents No. 3 to 7 shall be restored and he shall be shown to be senior to them.
[608 B] </s> |
<s>[INST] Summarize the following judgement: iminal Appeal No.404 of 1979.
From the Judgment and order dated 19.4.79 of the Punjab High Court in Criminal Appeal No.843 of 1976.
A.N. Mulla, N.D. Garg and T.L. Garg for the Appellants.
Ms. Amita Kohli and R.S. Suri for the Respondents.
The Judgment of the Court was delivered by PUNCHHI, J.
This appeal by special leave is directed against the judgment and order of the Punjab and Haryana High Court at Chandigarh dated April 19, 1979 passed in Criminal Appeal No. 843 of 1976.
The appellants herein are five in number.
They along with four others were sent up for trial before the Court of Session, Faridkot on various charges as detailed in the judgment under appeal.
Those four co accused of the appel lants were acquitted by the learned Sessions Judge, and the matter seems to have rested there because apparently the State of Punjab did not rake up the issue against those four accused.
On the basis thereof, the principle plea of the appellants through their counsel herein is that when four accused have been acquitted, the prosecution story itself has lost credence, entitling the appellants to acquittal.
It is this plea which has engaged our attention.
579 The parties belong to village Talwandi Bhagerian, Distt.
Faridkot, Punjab.
Thereat was a vacant plot belonging to Karnek Singh, Jagatjit Singh and Wasakha Singh sons of Partap Singh, who were living abroadAdjoining thereto was the outer house of Balwant Singh P.W.15.
According to the prosecution, Balwant Smgh P.W.15 had put up a boundary wall around it as also a structure thereon storing wheat chaff therein, besides putting cotton sticks and dung manure in the unbuilt space.
Mohinder Singh son of the said Balwant Singh P.W.15 moved the Civil Court through a suit on Decem ber 10, 1975 seeking a decree for permanent injunction restraining his co villager Jiwan Singh, his sons Naib Singh appellaht herein and Mohinder Singh an acquitted co accused, as also the minor sons of the aforesaid two accused from interfering in his possession over the suit land.
The Court on December 10, 1975 granted interim injunction restraining the impleaded defendants from interfering with the posses sion of the plaintiff over the disputed plot.
Later on the request of the defendants, the Civil Court on 29 1 1976 identified the suit property being in Khasra No.345, 346 and 356 and out of the same vide Order exhibit
D 16, vacated the temporary injunction in respect of Khasra No. 345 and 346 confirming the same in respect of Khasra No.356.
Besides there had been security proceedings between Mohinder Singh aforesaid and his brother Ginder Singh (one of the victims) on the one hand and Nirmal Singh and Darshan Singh acquitted co accused and some others, on the other.
However, both parties were ultimately discharged by the Court.
The occurrence took place in that integral on 16 12 1975 when the temporary injunction was in force.
The complainant party except for P.Ws. 18 and 19 are members of one family.
This relationship is disclosed in the judgment of the learned Sessions Judge as also by the High Court.
We would not burden this judgment with details thereof.
The fact remains that on the night intervening 15th and 16th Decem ber, 1975, Jugraj Singh P.W.14, Balwant Singh P.W.15, Ginder Singh, since deceased and Assa Singh had slept in a room in their outer house, and where they were keeping their cattle also.
At about 8.00 a.m. on December 16, 1975, all the inmates of the outer house, and others having joined them having come from their residential house, at that ' time were busy doing their assigned chores.
At that juncture, the five appellants namely, Hoshiar Singh, armed with SBBL gun, Jalaur Singh, armed with a 12 bore DBBL gun, Ex.M.O/5, Sardara Singh, armed with a gandasa, Ex.M.O./2, Ram Singh alias Ram Charan Singh, armed with SBBL gun, exhibit
M.O./6 and Naib Singh son of Jiwan Singh, armed with a DBBL gun, exhibit
M.O./7 entered the house accompanied by five other men.
They were the four acquitted co accused namely, Thamman Singh, unarmed, Darshan Singh, armed with a gandasa, 580 Mohinder Singh, son of Jiwan Singh (brother of Naib Singh, appellant) armed with a spear, Nirmal Singh, armed with a rifle and Major Singh, the fifth man, armed with a DBBL gun, who was lately injured during the occurrence.
Thamman Singh acquitted co accused raised an exhortation challenging Ginder Singh that he would not be spared.
Tham man Singh, then caught hold of the long hair of Ginder Singh and thereupon Nirmal Singh acquitted co accused fired a shot with his rifle hitting Ginder Singh on his left flank.
On Ginder Singh falling down by the side of the manger, Sardara Singh appellant gave two successive gandasa blows on the head of Ginder Singh deceased while he was in the process of failing down.
This was the first casualty.
It was followed by Naib Singh appellant firing at Balwant Singh P.W.15 hitting him in the abdomen reflective of at tempt to murder.
Dhanna Singh alias Shinghara Singh a member of the complainant 's family also happened to reach the scene of the occurrence having come from the residential house and while in the door way was fired at by Jalaur Singh appellant with his gun followed by a gun shot by Ram Singh alias Ram Charan Singh appellant hitting Dhanna Singh.
This was the second casualty.
Sukhminder Singh, P.W.16 also reached there and was fired at by Hoshiar Singh appellant hitting him on the left arm and blank, where upon he fell down.
This was the second case reflecting attempt to murder.
The female folk Bhagwan Kaur P.W.17 and Raj Kaur present at the place of occurrence while raising alarm laid themselves over Ginder Singh and Sukhvinder Singh respectively.
Darshan Singh acquitted co accused gave blows from the reverse side of his gandasa to Bhagwan Kaur P.W.17, and Mohinder Singh co accused to Raj Kaur with the blunt side of his spear.
Apart from the members of the family involved Sukhdev Singh P.W.18, Pritam Singh P.W,19, neighbours, had occasion to see the occurrence while standing in their respective houses.
On the side of the accused party, so claimed the prosecution, a Barchha(spear) blow of Mohinder Singh meant to hit Raj Kaur accidently hit the abdomen of Naib Singh appellant.
Like wise, a shot fired by Jalaur Singh appellant accidently caused injury to Major Singh the co culprit, but that injury later proved fatal.
The accused persons took away not only their weapons but a licensed rifle of Ginder Singh and revolver of Mohinder Singh son of Balwant Singh P.W.15 from inside the room (baithak) while going away.
This is the whole prosecution case with regard to the motive and the actual occurrence.
To complete the picture the deceased persons were taken to the Civil Hospital, Moga wherefrom Dr.
A.C. Gupta P.W.I sent intimation to Police Station, Moga Sadar.
Avtar Singh, ASI.
P.W.20 reached the spot and recorded the statement of Jugraj Singh P.W.14 at 11.00 a.m., within three 581 hours of the occurrence, formal F.I.R. of which was recorded at the Police Station at 11.15 a.m.
In that statement vivid details of the occurrence are given.
The injured persons were examined and given medical aid.
The bodies of the deceased persons were subjected to post mortem.
The accused were arrested and weapons were recovered, either from them, or at their instance, on statements made under Section 27 of the Evidence Act.
The accused at the trial pleaded denial to the occurrence but Naib Singh appellant gave written state ment, exhibit
D 6 as his counter version.
The trial resulted in the acquittal of four persons but so far as the appellants were concerned, all of them were held guilty and convicted under Sections 148, 449 IPC awarding them various terms of sentences.
Substantively, Sardara Singh appellant was con victed under Section 302 IPC for having caused the death of Ginder Singh by giving him two fatal gandasa blows.
The remaining appellants were convicted constructively under Sections 302/149 IPC.
All of them were given life sentence.
Jalaur Singh and Ram Singh appellants were substantively convicted under Section 302/149 IPC for causing the death of Dhanna Singh and the remaining appellants under Sections 302/149 IPC, and all were awarded life sentence.
Naib Singh appellant was substantively convicted under Section 307 IPC for murderously attacking Balwant Singh P.W.15, as also Hoshiar Singh appellant under Section 307 IPC for murderous ly attacking Sukhminder Singh P.W.16.
The remaining four appellants in each case were convicted constructively under both counts under Sections 307/149 IPC and awarded various terms of imprisonment.
All the sentences imposed were or dered to run concurrently.
Appropriate orders of disposal with respect to the weapons recovered were passed by the learned Sessions Judge.
As indicated above, the main plea of the appellants is that four accused having been acquitted, despite the eye witnesses deposing to their participation, no credence should be given to the prosecution witnesses in order to maintain the convictions.
The maxim falsus in uno falsus in omnibus has been pressed into service.
It appears that the argument as such was not raised before the High Court.
Rather it appears that the High Court 's attention was not invited to the reasoning of the learned Sessions Judge in acquitting the four co accused.
It would be apt therefore to scrutinize that reasoning and see whether the prosecution case has lost credibility on such reasoning.
Thamman Singh acquitted accused was empty handed.
The role attributed to him is that he gave an exhortation chal lenging Ginder Singh deceased to be ready and that he would not be spared.
He then caught hold of the long hair of Ginder Singh.
Thereafter Ginder Singh was as 582 saulted.
At the end of the occurrence, he is blamed of having taken away the licensed rifle of Ginder Singh.
The learned Sessions Judge tended to go in generalities in terming that the evidence of exhortation, in the very nature of things, is a weak piece of evidence and there was quite often a tendency to implicate some person besides the actual assailant.
For this he took the cue from a reported decision of this Court in Jainul Haque vs State of Bihar, AIR 1974 SC 45 as well as a decision of the Punjab and Haryana High Court to that effect in support.
Then without coming to the specifics the learned Sessions Judge abruptly came to the conclusion that when Thamman Singh acquitted co accused had come to the spot empty handed, the exhortation appears to have been introduced in the prosecution case and that the witnesses apparently were out to rope him in.
The two roles attributed to him, namely, of catching the long hair of Ginder Singh and to have carried away the rifle of Ginder Singh went in the same sweep to hold that this was part of the over doing.
The fact that the rifle was being carried by Thamman Singh at the time of his arrest was considered by the learned Sessions Judge to be abnormal as otherwise in the normal course of events, it was expected to have been kept concealed somewhere.
His finding thus in his own words is "the fact remains that I have not been satisfied about the criminality of Thamman Singh." The only comment worth making is that exhortation is necessarily not a padding or over doing and has to be viewed in the correct perspective, in the facts and circumstances of each case.
In the instant case, besides the exhortation, there were other factors available enumerated herein, which could lead the learned Sessions Judge to take the view that he has, and that was a possible view which any cautious Judge could have taken.
But that per se does not mean that the witnesses which had deposed to the participation of the accused at the time of occurrence have to be dubbed as liars.
With regard to Darshan Singh acquitted accused, the role assigned to him is that he gave gandasa blows to Bhagwan Kaur P.W.17 from the reverse side and that he took away the licensed revolver of Mohinder Singh from the room (baithak) of the outer house.
The learned Sessions Judge opined that though the eye witnesses account was that Bhagwan Kaur had received injuries from the reverse side of the gandasa from Darshan Singh, still in the First Information Report given by Jugraj Singh P.W.14, the use of the weapon was mentioned but not of the manner in which it was used.
The learned Sessions Judge took the view that it was normally expected of Darshan Singh to have given at least one gandasa blow to someone from the sharp side as well.
Besides his taking away the revolver from Mohinder Singh after the occurrence did not inspire confidence, like the case of Thamman Singh.
Besides if these two weapons namely the rifle and the 583 revolver were available with the complainant party when the occurrence started it was expected of them to have used those, which had not appeared to have been used.
In that light the act of removing the revolver was viewed with suspicion, more so, when its recovery was made as a result of the disclosure statement after a span of eight days from the date of arrest of Darshan Singh.
The learned Sessions Judge then concluded with these words, "The case against Darshan Singh, accused does not again stand beyond reasona ble doubt".
Now such a view of the learned Sessions Judge was a possible view taken on a cautious approach, without telling on the veracity of the prosecution witnesses.
So far as Mohinder Singh acquitted accused is concerned, he is said to have used a spear blunt wise on Raj Kaur.
Raj Kaur was not found to have any stab or punctured wound.
Further the spear was recovered after seven days of the arrest of Mohinder Singh and that recovery was viewed with suspicion due to the time lag.
The version in F.I.R. was pressed into service about the omission of the specific manner in which the weapon had been used.
The learned Ses sions Judge then held, "I would accordingly give the benefit of doubt to Mohinder Singh accused and acquit him." This finding could be given by the learned Sessions Judge without causing the least dent to the prosecution case.
Shifting the grain from the chaff does not mean loss of grain and gain of chaff.
Such a view of the learned Judge cannot caste a reflection on the case as a whole.
Lastly Nirmal Singh acquitted accused was described in the F.I.R. to be armed with a "pakki banduq" which descrip tion the learned Sessions Judge translates as "rifle".
Since Nirmal Singh is accused to have begun the occurrence by firing at Ginder Singh and Ginder Singh had pellets seen in his dead body, such description of the weapon sowed the seeds of suspicion in the mind of the learned Sessions Judge.
It was at best either a case of a mistaken perception or flash impression that Nirmal Singh, undisputably being a licensee of a rifle, had that rifle.
Finding the description of the weapon being in discord with medical evidence, the learned Sessions Judge found the prosecution case not proved against Nirmal Singh acquitted accused.
Here even though the learned Judge did not extend the benefit of doubt to Nirmal Singh in so many words, his approach is an exercise in that direction.
The acquittal of Nirmal Singh too would cause no affectation to the prosecution case as a whole.
For the views afore expressed and the totality of the circumstances, we do not think that in the instant case the maxim falsus in uno falsus in omnibus is attracted.
The large number of participants in the occurrence would, at some place or the other, leave a place for entertaining some 584 doubt.
But here the prosecution case as a whole remains strong supported as it is by the independent evidence of P.Ws 18 and 19, the neighbours, and the occurrence having taken place in the house of the complainant party.
It was next contended that the prosecution has cocealed its own guilty part and has not explained the way the in juries were caused to Major Singh Deceased and to Naib Singh appellant.
The argument ' is barely to be noticed and reject ed.
Significantly Jugraj Singh in the First information Report specifically mentioned that the injuries to Major Singh deceased and Naib Singh appellant were as a result of the doings of accused persons themselves and in the circum stances narrated above all the eye witnesses have cogently and consistently deposed to that effect.
The findings of both the courts below are that the occurrence took place in the courtyard of the outer house of the complainant party.
Blood stained earth was collected from four places therein during investigation.
Time of the occurrence being 8.00 a.m. and the inmates of the house being busy with their daily chores leaves one to pose the question as to why should the complainant party anticipate an assault and be ready with fire arms to put them to use.
It does not stand to reason that the complainant party having licensed weapons, if anticipating an assault, to hhave not kept the same ready for use.
The fact that these licensed weapons of the com plainant party are not shown to have been used by itself goes a long way to establish that the injuries received by Major Singh deceased and Naib Singh appellant were acciden tal and suffered in the manner as suggested by the prosecu tion.
On this score also we remain unconvinced of the argu ment.
Having examined the prosecution case as finally estab lished at the level of the High Court and having seen the reasoning of the Court of Session in acquitting the four accused, and also for the reasons set out above, we go to hold the appeal to be devoid of merit and accordingly dis miss the same.
The appellants are on bail.
They are required to surrender to their bail bonds forthwith .
R.P. Appeal dis missed. [/INST] A litigation regarding possession of a certain plot of land was pending in the civil court between the complainants and the accused persons.
On 16.12.1975 at about 8 a.m. the accused, armed with fire arms and sharp edged weapons, reached the outer house of the complainants and attacked them.
According to the prosecution case, accused No. 4 who was unarmed, raised an exhortation challenging deceased 1l, and caught hold of his long hair while accused 1 fired a rifle shot at him and accused No.7 gave two successive gandasa blows on his head.
Accused No.9 fired a shot at PW 15.
Accused nos.6 and 8 fired one shot each at deceased 2 who also succumbed to his injuries.
PW 16 was fired at by accused No. 2 hitting him at the left arm and flank.
Accused No. 3 and 5 gave blows from the reverse side of gandasa and spear to PW. 17 and another woman respectively.
On the side of the accused, a spear blow of accused No. 5 accidently his accused No. 9 and a shot fired by accused No. 6 accidently hit another man on the side of the accused who later on died.
Besides the members of the complainant 's family, the neighbours, PWs, 18 & 19 also witnessed the occurrence.
The accused were alleged to have run away taking a rifle and revolver belonging to the complainants.
The police investi gation culminated in the trial of the 9 accused.
576 The Trial Court acquitted four accused (nos.1 and 3 to 5 ) but convicted the appellants (accused nos.
2 and 6 to 9) of offences punishable under sections 148, 149, 302, 302/149, 307 and 307/149 and sentenced them to various terms of imprisonment.
The appeal filed by the appellant having been dis missed by the High Court, an appeal by special leave to this Court was filed.
It was contended on behalf of the appellants that the four accused having been acquitted despite the eye witnesses deposing to their participation in the alleged incident, no credence should be given to the prosecution witnesses in order to maintain the convic tion; and that the prosecution failed to explain the way the injuries were caused to the persons on the accused side.
Dismissing the appeal, this Court, HELD :1.
The large number of participants in the occurrence would, at some place or the other leave a place for entertaining some doubt.
But in the instant case the prosecution case as a whole remained strong supparted as it was by the independent evidence of P.Ws.18 and 19, the neighhours.
The occurrence took place in the Courtyard of the outer house of the complainant party.
Blood stained earth was collected from four places therein during investi gation.
In the totality of circumstances it cannot be said that the maximfalsus in uno falsus in omnibus was attracted.
[583 H; 584A,C] 2.
Exhortation is necessarily not a padding or over doing and has to be viewed in the correct perspective, in the facts and circumstances of each case.
[582E] In the instant case, the roles assigned to accused No. 4 who was acquitted, that he gave [an] exhortation, caught hold of the long hair of deceased 1 and carried away his rifle after the incident, were, according to the Sessions Judge, part of the overdoing.
The fact that the rifle was being carried by the accused at the time of his arrest was considered by him to be abnormal as otherwise in the normal course of events it was expected to have been kept con cealed.
The Sessions Judge held that he was not satisfied about the criminality of accused No. 4.
[582 C D] 577 Besides the exhortation, there were other factors avail able which could lead the Sessions Judge to take the view that he had, and that was a possible view which any cautious Judge could have taken.
But that per se does not mean that the witnesses who had deposed to the participation of the accused at the time of occurrence have to be dubbed as liars.
[582 E F] Jainul Haque vs State of Bihar, AIR 1974 SC 45, referred to.
3.1 With respect to acquitted accused No. 3, the SeS sions judge held that though PW 17 had received injuries from the reverse side of the gandasa from the accused still in the FIR the use of weapon was mentioned but not the manner in which it was used; and that it was normally ex pected of the accused to have given at least one gandasa blow to someone from the sharp side.
Besides his taking away the revolver from the victim after the occurrence did not inspire confidence.
In the circumstances, the act of remov ing the revolver was viewed with suspicion, more so, when its recovery was made as a result of the disclosure state ment after a span of eight days of the arrest of the ac cused.
The view of the Sessions Judge that the case against acquitted accused No. 3 did not stand beyond reasonable doubt was a possible view taken on a cautious approach, without telling on the veracity of the prosecution witness es.
[582 G H; 583 A B] 3.2 Acquitted accused No. 5 was said to have used a spear bluntwise but the concerned victim was not found to have any stab or punctured wound.
The recovery of the spear taking place after seven days of arrest of the accused was viewed with suspicion due to the time lag.
There was omis sion in the FIR of the specific manner in which the weapon had been used.
The finding of benefit of doubt to accused No.5 could be given by the Sessions Judge without causing least dent to the prosecution case.
Shifting the grain from the chaff does not mean loss of grain and gain of chaff.
Such a view of the learned Judge cannot cast a reflection on the case as a whole.
[583 C E] 3.3 As regards acquitted accused No.1, finding the description of the weapon being in discord with the medical evidence the Sessions Judge held the prosecution case not to have been proved against the accused.
Even though the Ses sions Judge did not extend the benefit of doubt to the accused in so many words, his approach was an exercise in that direction.
The acquittal of accused No.1 too would cause no affectation to the prosecution case as a whole.
[589 F G] 578 4.1 The first information report specifically mentioned that the injuries to the persons on the side of the accused were as a result of the doings of accused persons them selves; and all the eye witnesses cogently and consistently deposed to that effect.
[584 B C] 4.2 The time of the occurrence being 8.00 a.m. and the inmates of the 'house being busy with their daily chores, the complainant party would not anticipate an assault and be ready with fire arms to put them to use.
The fact that the licensed weapons of the complainant party were not shown to have been used by itself established that the injuries received by the persons on the side of the accused were accidental and suffered in the man ner as suggested by the prosecution.
[584 D E] </s> |
<s>[INST] Summarize the following judgement: Appeal No.1865 of 1975.
From the Judgment and Decree dated 7/10.2.1975 of the Gujarat High Court in First Appeal No. 291 of 1967.
566 A.S. Qureshi, N.K. Sahoo, P.H. Parekh, and Ms. Chetna Anand for he Appellant.
Dushyant Dave, Mrs. Nandini Gore for Mrs. M. Karanjawa la, R. Karanjawala (N.P), Anip Sachthey and Rajesh for the Respondents.
The plaintiffs Nos. 2 to 4 were Dumaldars of village Nalej of erstwhile State of Chhota Udepur (hereinafter referred to as the jagirdars).
The jagirdars vide exhibit 58 dated 9.1.1954 sold all the teak trees in favour of plaintiff no.1 (hereinafter referred to as the contractor) for a sum of Rs.6,001/ and received a sum of Rs. 101/ as earnest money.
By another agreement exhibit 59 dated 29th July, 1954, the jagirdars sold all the Mahuda trees in favour of the con tractor for a sum of Rs. 5001/and received sum of Rs. 600/ as earnest money.
On 1st August, 1954 Bombay Merged Territo ries and Areas (Jagirs Abolition) Act, 1953 (hereinafter referred to as the 'Jagir Abolition Act ') was applied to village Nalej.
The compensation in lieu of trees was not awarded to the Jagirdars as the same had already been sold by the Jagirdars in favour of the contractor.
The contractor made an application to the Collector of Baroda under sou rashtra Felling of Trees Act for permission to cut the trees in question.
The Collector forwarded the application to the Mamlatdar of Chhota Udepur who granted the permission vide order dated 25th September, 1961.
The contractor then start ed cutting the trees in question.
However, the Prant Offi cer, Chhota Udepur prevented the contractor from cutting the trees.
The contractor then made representations to the Divisional Forest Officer and the Government.
In reply the contractor was told that the Jagirdar had no right to the trees standing in the reserved forest area and in the waste land.
Thereupon the contractor 's authorisation to cut the trees and his transit passes to transport the goods were withheld.
The Government invited tenders for the sale of the trees already cut and sold the same on 30th July, 1962 for a sum of Rs.15786/ .
The Government also sold other trees to other persons and realised from them some amounts.
The Jagirdars and the contractor filed a suit against the Gov ernment of Gujarat and the Divisional Forest Officer, Chhota Udepur, District Baroda for rendition of account, for a declaration of the plaintiffs title of the trees in question and for a declaration of the right of the contractor to cut the trees in question and to remove the cut materials.
567 A declaration was also sought that the impugned action of the Government was illegal, ultra rites and unlawful and to give a direction to the Government to issue the necessary authorisation and transit passes for cutting and removing the trees in question in favour of the contractor.
It was also prayed that out of the sale proceeds of the cut materi als on 30th July, 1962 for Rs.15786/ an amount of Rs.1267.82 having paid by the Divisional Forest Officer, a decree for the balance of Rs.14518.18 may be passed against the Government.
The Trial Court by judgment dated 31st March, 1967 partly decreed the suit.
It was declared that the jagirdars were the full owners of the trees and as such the contractor had also become the full owner of the trees.
It was also declared that the contractor was entitled to cut and remove these trees and the State of Gujarat, its officers, servants and agents were ordered to issue necessary permit, authori sation and transit passes to plaintiff no.1 (contractor) for removal of the trees.
The state was also ordered to pay Rs.14518.18 together with proportionate costs and interest at 4% per annum on this amount from the date of decree till realisation.
The State of Gujarat, its officers, servants and agents were also restrained by perpetual injunction not to interfere with the rights of ownership of the plaintiffs except in due course of law.
Prayer for rendition of ac counts was dismissed.
The State of Gujarat, aggrieved by the Judgment and decree of the Trial Court filed an appeal in the High Court.
The Division Bench of the High Court allowed the appeal, set aside the decree passed by the Trial Court and dismissed the suit.
The cross objections filed by the plaintiffs were also dismissed.
It would be necessary to state some events which have a material bearing with the case.
The Jagir Abolition Act came into force on 1.8.54 as already mentioned above.
The Govern ment issued a notification dated 15th February, 1955 under Sec. 4 of the and constituted cer tain survey numbers of the village Nalej into a reserve forest.
Thereafter another notification was issued under section 20 of the constituting survey No.102 alone into a reserve forest.
It may be noted that in the present case we are concerned with the Teak and Mahuda trees standing on survey No.102 of village Nalej.
Learned counsel appearing on behalf of the State of Gujarat had raised the following contentions before the High Court: 1.
Under the Forest Rules of Chhota Udepur State, Chhota Udepur State had exercised rights over three kinds of forest 568 reserved, protected and open.
These rights devolved upon the State of Gujarat.
Therefore, the State of Gujarat can exercise those rights and issue under section 4 of the the impugned notification.
Under the Forest Rules of Chhota Udepur State 21 kinds of trees including teak and mahuda trees were reserved trees and they were prohibited from being cut.
The interest which Chhota Udepur State had in those trees de volved upon the State of Gujarat and, there fore, under Section 4 of the it was within the power and authori ty of the State of Gujarat to issue the im pugned notification.
Under section 5 of the Jagir Abolition Act the soil vested in the Jagirdars and not the trees.
Therefore, the jagirdars could not have sold away to the contractor the trees in question.
Since the trees in question had vested in the State it was within the power and authority of the State to issue the im pugned notification.
The agreement executed by the Jagirdars in favour of the contractor were not valid and, therefore, not enforceable at law.
They did not confer any title upon the contractor.
Alternatively, if the contractor had acquired any rights under the said agreements, his remedy lay in claiming compensation in respect of his rights which were hit by the impugned notification.
The High Court dealt with the above four contentions in seriatim.
While dealing with the first contention the High Court considered that the decision of the appeal largely turned upon the forest Rules of Chhota Udepur State.
The High Court after considering the matter in detail held that survey No.102 of village Nalej was a reserved forest during the days of Chhota Udepur State.
The High Court referred to the forest Rules of Chhota Udepur State in order to find out the position in relation to survey no.102 of Nalej.
Schedule 'A ' of the Rules contained the detailed discription of areas which was declared as reserved forest.
At serial No.11 Village Nalej has been mentioned amongst other villages.
Columns 7 and 8 showed that an area of 250 acres and 14 gunthas of village Nalej was declared as reserved forest.
No survey number of that area had been mentioned therein.
According to the High Court this Entry in Schedule 'A ' lends support to the fact that there was one reserved forest admeasur 569 ing 290 acres and 14 gunthas in village Nalej of Chhota Udepur State.
Survey No.102 of Village Nalej as a reserved forest was not mentioned but this was on account of the reason that Chhota Udepur State made its forest Rules in 1934 which were published in 1938 when the reserved forest area of village Nalejj did not bear any survey number.
However, it was mentioned in the Rules that there was one reserved forest in village Nalej to the extent of 290 acres and 1.4 Gunthas.
The plaintiffs themselves admitted in agreement exhibit 59 that survey No.102 was a reserved forest.
It was then held that in respect of a reserved forest Jagirdars did not have the right to cultivate any land nor to cut any trees.
The only right he had was a right to graze cattle and to remove some forest produce in accord ance with Regulations made by Chhota Udepur State in that behalf.
The Jagirdar did not have any right to any trees situated in reserved forest.
With the merger of Chhota Udepur State with the then State of Bombay the property belonging to Chhota Udepur State in the reserved forest devolved upon the State of Bombay and subsequently upon the State of Gujarat.
The High Court thus accepted the first contention raised on behalf of the State of Gujarat.
The High Court then considered the second contention and in this regard observed that Rule 4 of the Forest Rules of Chhota Udepur State contained the list of reserved trees.
21 kinds of trees had been listed as reserved trees which included the teak and Mahuda trees which formed the subject matter of the two transactions between the Jagirdars and the contractor.
The High Court then held that the right to forest produce which Chhota Udepur State had in respect of such trees in the "open forest" devolved upon the State of Bombay, on merger of Chhota Udepur State with it and there after upon the State of Gujarat.
It was thus held that the second contention raised on behalf of the State was right and the same was upheld.
The High Court found no substance in the third conten tion and rejected the same.
However, the High Court observed that in the light of the finding recorded on the second contention it was quite clear that the trees which vested in the Jagirdars vested in them subject to such right or inter est in them which the State had under the Forest Rules of Chhota Udepur State.
In the 4th and last contention challenging the validi ty of the two agreements exhibits 58 and 59, the High Court observed that there are two aspects of this contention.
The first aspect is that agreements exhibits 58 and 59 were compulsorily registerable and that since they were not registered, they did not convey any title to the contractor in respect of the 570 subject matter of the agreements.
The High Court in this regard held that what was transferred was the standing timber and not any interest in soil.
Therefore, the two agreements were not compulsorily registerable.
The High Court then considered the second aspect of the 4th conten tion.
It was argued on behalf of the State that all the survey numbers to which agreements exhibits 58 and 59 relat ed were waste lands and as such under section 8 of the Jagir Abolition Act they vested in the State.
The High Court in this regard held that forest lands are not waste lands.
Therefore, if they have not vested by virtue of the provi sions of section 8 of the Jagir Abolition Act in the State of Gujarat.
The High Court in view of the findings recorded above on the first and second contentions in favour of the state, allowed the appeal and dismissed the suit filed by the plaintiffs.
Learned counsel for the plaintiffs appellants raised altogether new line of argument before us.
It was submitted that the appellants did not challenge the existence or the legality of the Chhota Udepur Forest Rules but their submis sion was that the said Rules did not apply to the facts and circumstances of this case.
It has been contended that the aforesaid forest Rules, together with all other laws of Chhota Udepur State, stood repealed on 28.7.48 when the Indian States (Application of Laws) Order 1948 came into force.
On and from 28.7.1948 the , and the Rules made thereunder became applicable.
The two agreements were made on 9.1.1954 and 29.7.1954 long after the Chhota Udepur Forest Rules were repealed and before the issuance of the notification by the Government dated 12.5.55 declaring its intention to make a part of survey No. 102 of Nalej as reserved forest under Sec.4 of the .
It has thus been submitted that so far as the impugned contracts are concerned the same are not adversely affected either by the Forest Rules of Chhota Udepur State or by the Notifica tion issued under section 4 of the .
It has been contented that the High Court was wrong in holding that the impugued contracts dated 9.1.1954 and 29.7.1954 could not pass any right on the contractor as the same were hit by the provisions of Chhota Udepur State Forest Rules, when in fact those forests Rules had already been repealed.
It was also argued that the High Court 's decision about reserved forests is based on surmises and so called admis sion in the contract exhibit 59.
The words used in the plaint are "alleged jungle bhag" which does not amount to an admission that it is a reserved forest.
In the agreement exhibit 59 the words used are "So called reserved forest" and subsequently in the same agreement the words used are "reserved Padtar (vacant)".
It has thus been submitted that the earlier use of words 'so called ' is not repeated subse quently and as such it means that the plaintiffs had denied 571 the same to be reserved forest.
As regards Entry No.11 in the Schedule to the Forest Rules of Chhota Udepur State, the High Court itself has observed that no survey number is mentioned.
This itself goes to prove that survey No.102 was not intended to be covered by the said Entry No.11.
Thus it was not proved that survey No.102 was a reserved forest.
It was further argued that assuming that survey No.102 in village Nalej was a reserved forest under the Forest Rules of Chhota Udepur State, it ceased to be so from 28.7.48.
It is an admitted position that the Notification under Section 4 of the was published on 12.5.55 and in case survey No.102 of village Nalej was already continuing as reserved forest under the Forest Rules of Chhota Udepur State, then there was no necessity at all of issuing a fresh Notification under Section 4 of the .
The fact that such Notification was issued on 12th May, 1955 clearly goes to show that survey No.102 did not constitute reserved forest in between the period 28.7.48 to 12.5.55.
We do not find any force in the above submission made on behalf of the appellants.
So far as the legality of the Chhota Udepur State 's Forest Rules is concerned, it was nowhere challenged by the plaintiffs.
In the written submis sions filed before us on behalf of the appellants the point made at 1.1 itself reads as under: "The appellants do not challenge the existence or the legality of the Chhota Udepur Forest Rules (hereinafter the Forest Rules).
The appellants merely submit that those Rules do not apply to the facts and circumstances of this case".
Apart from the above stand taken by the appellants themselves, Judgment of the High Court of Gujarat in Special Civil Application No. 404/61 State of Gujarat vs Kumar Shri Ranjit Singhji Bhavani Singhji, Shn C.M. 7halair Jagir Abolition Officer, Baroda and others decided on 22nd April, 1965 has been placed on record by the Learned counsel for the appellants.
In the aforesaid judgment Shelat, C.J., and Bhagwati, J. (as he then was) have observed that in 1934, the State of Chhota Udepur promulgated amended Forest Rules under Notification of August 1, 1934.
The Notification was issued under the signature of the Ruler himself.
These Rules, therefore,.
became and constituted the law of the State.
The High Court in the impugned order before us has also placed reliance on such Rules.
The High Court has rightly held that at serial No.11 an area of 290 acres and 14 gun thas of village Nalej was declared as reserved forest.
No survey number on that area could have been mentioned because the reserved forest area of village Nalej did not bear any survey number at that time.
However, it cannot disputed be that there 572 was one reserved forest in village Nalej admeasuring 290 acres and 14 gunthas and the plaintiffs themselves have admitted in the plaint that the trees in question were in the alleged jungle bhag.
In the agreement exhibit 59 also the words used are "so called reserved forest".
Thus apart from the above admissions, the entire case has been contest ed in the trial court as well as in the High Court on the assumption that the trees in question were standing on the area of reserved forest declared by the Chhota Udepur State.
In case the plaintiffs wanted to show that the trees in question were not inside the reserved forest area they should have taken such stand in a clear manner and it .would have been very easy for them to succeed in the suit without going through all the various legal submissions made by the parties.
Thus we see no reason to take a different view from the High Court and we affirm the finding of the High Court in this regard that the trees in question stood on the area which was declared as reserved forest under the Forest Rules framed by the Chhota Udepur State.
In order to appreciate the other submission made by the learned counsel for the appellants we would refer to the Indian States (Application of Laws) order, 1948 (hereinafter referred to as 'Application of Laws order ' 1948).It would be necessary to reproduce Section 5 which repeals the enact ments in force in Indian States.
Section 5: Repeal of enactments in force in Indian States: All enactments in force in the Province of Bombay and extended to any such State under paragraph 3 shall stand repealed: Provided that the appeal by this Order of any such enactments shall not affect the validity, invalidity, effect or consequence of any 'thing already done or suffered or any right, title, obligation or liability already acquired, accrued or incurred, or any remedy or proceed ing in respect thereof, of any release or discharge of or from any debt, penalty, obli gation, liability, claim or demand or any indemnity already granted, or the proof of any past act or thing; Nor shall the repeal by this order of any enactment affect any principle or rule of law, or established jurisdiction, form or course of pleading, practice or procedure, or existing usage, custom, privilege, restriction, exemp tion, office or appointment, in so far as the same respectively is not in any way inconsist ent with any of the enactments extended under paragraph 3 of this order, notwithstanding that the same respectively may have been in any manner affirmed, recognised or derived by, in or from any enactment hereby repealed; 573 Nor shall the repeal by this order of any enactment revive or restore any jurisdiction, office, custom, liability, right, title, privilege, restriction, exemption, usage, practice, procedure or other matter or thing not now existing or in force immediately before the date on which this order comes into force.
There is no doubt that Chhota Udepur State, has been mentioned in Schedule 1 of the Application of Laws order and all enactments in force in Chhota Udepur stood repealed and the mentioned in Schedule 11 became applicable, but the proviso to section 5 clearly provides that the repeal by this order shall not affect any right, title, obligation or liability acquired, accrued or in curred.
Thus the Jagirdars had already acquired accrued or incurred a liability in respect of the trees in question which were part of the reserved forest as declared under the Forest Rules of Chhota Udepur State.
There is nothing on the record to show that the Jagirdars were cutting trees from the part of village Nalei which was declared reserved forest during the time of erstwhile Chhota Udepur State.
Jagirdars could not have given a better title to the contractot in respect of the trees, which the jagirdars themselves did not possess.
The repealing of the Forest Rules of Chhota Udepur State on 28th July, 1948 did not furnish any additional or increased rights to the Jagirdars which they did not have before the merger of Chhota Udepur State.
It has been vehemently contended on behalf of the appel lants that it was a case of full proprietorship right in the Jagir and the Jagirdars had full and complete rights of ownership in the soil, as well as the trees.
Reliance is placed on the definition of proprietary jagir under Clause XVIII as conternplated in section 2 of the Jagir Abolition Act which reads as under: "Proprietary Jagir" means a Jagir in respect of which the Jagirdar under the terms of a grant or agreement or by custom or usage is entitled to any rights or interest in the soil".
It has been contended that the Jagirdars in the present case had not only a right over the trees but also interest in the soil and as such they had full right to sell the trees to the contractor.
It was submitted that even if there were any restrictions on cutting of trees so long as forest rules of Chhota Udepur State remained in force that restric tion was removed on 28.7.48 when such rules were repealed by the Application of Laws order.
After the forest rules of Chhota Udepur State were repealed, the Jagirdars got full right to alienate the trees as such right was inherent in the right of proprietary Jagir.
It was also submitted that the Government of Bombay had itself taken policy decision that all contracts made by the Jagirdars prior to the aboli tion of jagits on 1.8.54 shall be honoured.
It cannot be considered the intention of the Government to take away such vested rights 574 in the jagirdar having come into force on 28.7.48, after a lapse of seven years by issuing a Notification on 12.5.55 under Section 4 of the .
It has also been contended that the Government has recognized that right of full ownership in the trees in favour of other jagirdars similarly situated and there was no justification for taking such arbitrary and discriminatory action against the plain tiffs alone.
The above submissions are based on a total misconcep tion.
As already mentioned above, there is no question of taking away any rights.
It is no doubt correct that it is a case of proprietary jagir, but it does not confer any right in respect of trees standing in a reserved forest.
Once it is established that during the time of existence of erst while State of Chhota Udepur an area admcasuring 290 acres and 14 gunthas in village Nalej was declared as reserved forest and Jagirdars had no right at all in the trees stand ing in such area of reserved forest, the Jagirdars cannot be considered to have acquired a greater right on 28.7.48 when the Forest Rules of Chhota Udepur State were repealed by the Application of Laws order.
There is another insurmountable difficulty for the plaintiffs in as much as the trees had not been cut and removed prior to 12.5.55 when admittedly a notification has been issued under Sec. 4 of the also.
That being so no relief can be sought for cutting and removing the trees in question after 12.5.55 as the survey No.102 has been constituted as reserved forest under the provisions of The tree in question are teak and Mahuda trees which were out of 21 kinds of trees declared as reserved trees which were prohibited from being cut under the extent of forest rules of Chhota Udepur State.
Such trees even if standing in forest were not allowed to be cut.
Thus examining the matter from any angle, we are already of the opinion that the plaintiffs are not entitled to any relief as claimed in the suit.
So far as the ground of discrimination is concerned, it is well settled that in order to establish the same it is necessary to make out such case in the pleadings.
In the present case no such ground was taken in the plaint nor any facts or material were placed on record during the trial of the suit or before the High Court and the same cannot be considered for the first time before this Court, specially when the defendants were not given any opportunity to meet the same.
In our view the High Courts was right in dismissing the suit.
In the result we find no force in this appeal and the same is dismissed.
In the facts and circumstances of the case we direct no order as to costs.
Y.L. Appeal dismissed. [/INST] This appeal by the plaintiffs is against an order of rever sal dtd.7/10th February, 1975 passed by the Gujarat High Court.
Plaintiff No.1 first appellant is the contractor and Plaintiffs Nos.
2 to 4, the other appellants.
are the jagir dars of the farmer State of chhota Udepur.
The Jagirdars sold some teak trees to plaintiff No.1, contractor.
With effect from 1.8.1954, the Bombay Merged Territories and Areas (Jagirs Abolition) Act, 1953 was made applicable to village Nalej,and no compensation was awarded to the Jagir dars in lieu of the trees, as they had sold them to appel lant No.1 (since dead) and now represented by his legal representatives.
The contractor made an application to the Collector of Baroda under Sourashtra Felling of Trees Act for permission to cut the trees in question, which was forwarded to Mamlatdar of Chhota Udepur who granted the same on 25.9.1961 as a consequence whereof the contractor started cutting the trees.
The Prant Officer, Chhota Udepur however, prevented the contractor from cutting the trees whereupon the contractor represented the matter before the Divisional Forest Officer and the State Government but was told that the Jagirdars had no right to the trees standing in the reserved forest area and in the waste land.
The Government sold the trees already cut for Rs. 15786 and also sold the other trees to some other persons.
The Jagirdars and the contractor filed a suit against the State of Gujarat and the Divisional Forest Officer.
Chhota Udepur, District, Baroda for rendition of accounts, for declaratio of the plaintiffs ' title to the trees, for a declaration of the right of the contractor to cut the trees and to remove the same, and for direction to the State to issue the necessary authorisation and transit passes for cutting and removing the trees in question in favour of the contractor.
Decree for the balance of the amount of Rs. 14518.18 after adjusting Rs. 1267.82 already received was also sought.
The trial court partly decreed the suit holding that the jagir dars were the full owners of the trees and as such the 564 565 contractor had also become the full owner thereof.
The State was also ordered to pay Rs. 14518.18 with proportionate costs and interest at 4 per centum per annum on this amount from the date of decree till realisation.
The State of Gujarat appealed against that order to the High Court of Gujarat contending (i) that under Forest Rules of Chhota Udepur State, Chotta Udepur State had exercised rights over three kinds of forest reserved, protected and open, the State of Gujarat was thus competent to issue notification under sec.
4 of the Indian Forest Act, 1947.
(ii) under the rules, Mahuda and teak trees were reserved trees and they are prohibited from being cut; (iii) under the Jagir Abolition Act, Section 5, the solid vested in the jagirdar and not the trees; hence Jagirdars could not have sold the trees and (iv) the agreement executed between the contractor and the Jagirdars was not enforceable at law; the contractor could not claim any right/interest under the same.
The High Court negatived all the contentions and the rights accruable to the contractor under the agreement and allowed the appeal of the State and dismissed the suit filed by the appellants.
Hence this appeal by the appellants.
Dismissing the appeal, this Court HELD: The trees in question stood on the area which was declared as reserved forest under the forest rules framed by the Chhota Udepur State.
[512 B] Once it is established that during the time of existence of erstwhile State of Chhota Udepur an area admeasuring 290 acres and 14 gunthas in village Nalej was declared as re serve forest and jagirdars had no right at all in the trees standing in such area of reserved forest, the Jagirdars cannot be considered to have acquired a greater right on 28.7.48 when the Forest Rules of Chhota Udepur State were repealed by the Application of Laws Order.
[514 C D] </s> |
<s>[INST] Summarize the following judgement: Appeal No. 4488 of 1991.
From the Judgment and Order dated 8.4.91 of the Delhi High Court in C.W.P. No. 749 of 1990.
R. Mohan for the Appellant.
F.S.Nanman, Kailash Vasudev, Ms. Alpana Kitpal and M.J.Paul for the Respondents.
The following order of the Court was delivered: K. JAGANNATHA SHETTY, J. Leave granted.
When we are moving forward to achieve the constitutional guarantee of equal rights for women the life Insurance Corporation of India seems to be not moving beyond the status quo.
The case on hand illustrates this typical atti tude of the Corporation.
The petitioner applied for the post of Assistant in the Life Insurance Corporation of India ("the Corporation").
She was called for written test and also for interview.
She was successful in both the tests.
She was asked to fill a decla ration form which she did and submitted to the Corporation on 25 May 1989.
On the same day, she was also examined by a lady doctor and found medically fit for the job.
The Doctor who examined the petitioner was in the approved panel of the Corporation.
The petitioner was directed to undergo a short term training programme.
After successful completion of the training she was given an appointment letter dated 25, Sep tember 1989.
She was appointed as Assistant in the Corpora tion.
She was put on probation for a period of 6 months.
She was entitled to be confirmed in the service subject to satisfactory work report.
The petitioner took leave from 9 December 1989 till 8 March 1990.
In fact, she applied for maternity leave on 27 December 1989 followed by medical certificate dated 6 Janu ary.
She was admitted to the Nursing Home of Dr. Hira Lal on 10 January 1990.
She delivered a full term baby on 11 January 1990.
She was discharged from Nursing Home on 19 January 1990.
On 13 February 1990, the petitioner was discharged from the serv 149 ice.
It was during the period of her probation.
It would appear from the order of discharge that no ground was as signed in it and it seems to be a discharge simplicitor.
The petitioner moved the High Court under Article 226 of the Constitution challenging that order on the ground that it was not a discharge simplicitor but based on some discrepan cy in the declaration made by her before joining the serv ice.
The Corporation in the counter resisted the case stat ing that the petitioner 's work was not satisfactory and as such under the terms of the appointment she was discharged without notice and without assigning any reason.
The High Court refused to interfere with the termination.
The High Court observed that the Petitioner 's work during the period of probation was found to be not satisfactory.
The petitioner has now appealed to this Court.
When the appeal was listed for preliminary hearing this Court issued notice for final disposal and made an order as follows: "The facts of the case compel us to issue an interim mandamus directing the respondents to put the petitioner back to service and we accordingly issue a direction to the respond ent to reinstate the petitioner within 15 days from the date of receipt of this order.
" The Corporation upon service has filed the counter seeking to justify the termination of the petitioner 's services.
It has been stated that the Corporation discharged the service of the petitioner while she was still a proba tioner.
At the time of discontinuing her services as a probationer, no reasons were given and it was an order of discharge simplicitor.
No stigma was imputed to the peti tioner.
The petitioner was on leave from 9 December 1989 till 8 March 1990.
The petitioner had deliberately withheld to mention the fact of being in the family way at the time of filling up the declaration form before medical examina tion for fitness.
The petitioner concealed the fact of her being in the family way.
this was revealed later when she informed the Corporation that she had given birth to a daughter.
The Corporation also made reference to the terms of the declaration as filled in by the petitioner on 25 May 1989: "6.
To be filled in by female candidates only in the presence of the Medical examiner: a) Are you married Yes.
b) If so, please state: 150 i) Your Husband 's Name in full & occupation Mr. PRADEEP MATHUR, Law Officer, Central Pollution Control Board, Nehru Place, New Delhi.
ii) State the number of children, if any, and their present ages: One daughter: 1 year and 6 months.
iii) Have the menstrual periods always been regular and painless, and are they so now? . Yes.
iv) How many conceptions have taken place? How many have gone full term? One.
v) State the date of last menstruation: . 29th April, 1989.
vi) Are you pregnant now? .
No. vii) State the date of last delivery: 14th November, 1987.
viii) Have you had any abortion or miscarriage? .
No." It was further alleged in the counter affidavit that the declaration given by the petitioner was false to the knowl edge of the petitioner inasmuch as, as per her own averment she had delivered a full term baby on 11 January 1990.
The petitioner to her own knowledge, could not have had a men struation cycle on 29 April 1989 as stated by her in the declaration on 25 May 1989.
Dr. S.K. Gupta, MD, of Dr. Hira Lal Child & Maternity Home, where the petitioner was admit ted for delivery has certified that the petitioner had LMP on 3 April 1989.
A copy of the certificate of Dr. Hira Lal has also been produced as Annexure to the Counter Affidavit.
It was asserted that the petitioner had deliberately given in her declaration to the Corporation wrong date of menstru ation as 29 April 1989 and she had given her correct date of LMP as 3 April 1989 to Dr. S.K. Gupta.
If she had mentioned the correct date of her menstruation in her declaration her appointment would have been deferred as per rules.
It was also contended that the decision to discharge the petitioner from the service of the Corporation was on 2 grounds: (1) because of a false declaration given by her at the very initial stage of her service; and (2) her work during the period of probation was not satisfactory.
Reference was also made to the Instruction 16 issued by the Corporation as to the Medical examination for recruit ment of Class 1II and Class IV staff.
Clause 16 of the Instructions reads as trader: "16.
MEDICAL EXAMINATION. ' No person shall be appointed to the services of the Corporation unless he/she has been certified to be of sound constitu 151 tion and medically fit for discharging his/her duties.
The certificates in the form given in Annexure IX should be from a doctor, duly authorized for the purpose by the Appointing Authority.
If at the time of medical examina tion, any lady applicant is found to be preg nant, her appointment to the Corporation shall be considered three months after the delivery.
This would be subject to a further medical examination at the candidate 's cost and sub ject to the ranking list continuing to be valid.
" We have examined the matter carefully.
We have nothing on record to indicate that the petitioner 's work during the period of probation was not satisfactory.
Indeed, the reason for termination seems to be different.
It was the declara tion given by her at the stage of entering the service.
It is said that she gave a false declaration regarding the last menstruation period with a view to suppress her pregnancy.
It seems to us that the petitioner cannot be blamed in this case.
She was medically examined by the Doctor who was in the panel approved by the Corporation.
She was found medically fit to join the post.
The real mischief though, unintended is about the nature of the declaration required from a lady candidate.
The particulars to be furnished under columns (iii) to (viii) in the declaration are indeed embar rassing if not humilating.
The modesty and self respect may perhaps preclude the disclosure of such personal problems like whether her menstrual period is regular or painless, the number of conceptions taken place; how many have gone full term etc.
The Corporation would do well to delete such columns in the declaration.
If the purpose of the declara tion is to deny the maternity leave and benefits to a lady candidate who is pregnant at the time of entering the serv ice (the legality of which we express no opinion since not challenged), the Corporation could subject her to medical examination including the pregnancy test.
In the circumstances the interim order already issued is made absolute.
We however, direct that the appellant is not entitled to the salary from the date of discharge till her reinstatement.
With this direction the appeal stands dis posed of but no order as to costs.
S.B. Appeal allowed. [/INST] The petitioner applied for the post of assistant in the Life Insurance Corporation of India.
She was called for written test and also for interview and was successful in both the tests.
She had to file a declaration form which she submitted to the corporation on May 25, 1989.
On the same day she was also examined by a lady doctor who was on the panel of the corporation and found medically fit for the job.
Thereafter she underwent a short term training programme and given a letter of appointment dated September 25, 1989.
She was put on probation for a period of six months and was entitled to be confirmed in the service, subject to satis factory work report.
The petitioner took leave from December 9, 1989 till March 8, 1990.
She applied for maternity leave on December 27, 1989 followed by medical certificate dated January 6, 1990.
She delivered a full term baby on January 11, 1990 in Dr. Hira Lal 's Nursing Home and was discharged from there on January 19, 1990.
On February 13, 1990 the petitioner was discharged from the service during her period of probation.
No ground was assigned and the order seemed to be a discharge simplicitor.
The petitioner moved the High Court, and the High Court, refused to interfere with the termination since the peti tioner 's work during the period of probation.
was found to be not satisfactory.
Thereafter the petitioner appealed to this Court.
After preliminary hearing the court issued an interim mandamus directing 147 the respondent to put the petitioner back to service within 15 days from the date of receipt of the court order and also issued notice for final hearing.
The corporation upon service of notice, filed the coun ter seeking to justify the termination of petitioner 's services on two grounds: (1) that the petitioner had delib erately withheld to mention the fact of being in the family way at the time of filling up the declaration form before medical examination for fitness.
The same was revealed only when she informed the corporation that she had given birth to a daughter.
(2) Her work during the probation was not satisfactory.
So it was an order of discharge simplicitor.
The Corporation further made reference to Instruction No.16 as to the medical examination for recruitment of class 1II and IV staff, wherein for the purpose of appointment, if at the time of medical examination any lady applicant is preg nant, her appointment shall be considered three months after the delivery.
Granting the appeal, the Court, HELD: While we arc moving forward to achieve the consti tutional guarantee of equal rights for women, the Life Insurance Corporation of India seems to be not moving beyond the status quo.
In the instant case there is nothing on record to indicate that the petitioner 's work during the probation was not satisfactory.
The reason for termination was only the declaration given by her at the stage of enter ing the service, though the petitioner was medically exam ined by the lady doctor and found her medically fit to join the post.
[148 D, E, 151 C] The real mischief though unintended is the nature of the declaration required from a lady candidate specially the particulars required to be furnished under columns (iii) to (viii) which are indeed embarrassing if not humilating.
The modesty and self respect may perhaps preclude the disclosure of such personal problems.
The corporation would do well to delete such columns in the declaration.
If the purpose of the declaration is to deny the maternity leave and benefits to a lady candidate who is pregnant at the time of entering the service, the Corporation could subject her to medical examination including the pregnancy test.
[151 D F] The interim order already given is made absolute though the appellant is not entitled to the salary from the date of discharge till her reinstatement.
[151 G] 148 </s> |
<s>[INST] Summarize the following judgement: vil Appeal No. 4336 (NL) of 1991, From the Judgment and Order dated 14.9.1989 of the Madras High Court in Writ Appeal No. 697 of 1989.
M.K. Ramamurthy, Mrs. Chandan Ramamurthy and M.A.Krish namurthy for the Appellants.
F.S.Nariman, R.F.Nariman, T.S.Gopalan, Raian Karanjiwa la, Mrs. Manik Karanjiwala, Mrs. V.S.Rekha and Sajai Singh for the Respondents.
The Judgment of the Court was delivered by KULDIP SINGH, J.
Special leave granted.
The Reptakos Brett & Co. Ltd. (hereinafter called the 'Company ') is engaged in the manufacture of pharmaceutical and dietetic speciality products and is having three units, two at Bombay and one at Madras.
The Madras factory.
with which we are concerned, was set up in the year 1959.
The Company on its own provided slab system of Dearness Allow ance (DA) which means the DA paid to the workmen was linked to cost of living index as well as the basic wage.
The said double linked DA Scheme was included in various settlements between the Company and the workmen and remained operative for about thirty years.
The question for our consideration is whether the Company is entitled to re structure the DA scheme by abolishing the slab system and substituting the same by the Scheme prejudicial to the workmen on the ground that the slab system 134 has resulted in over neutralisation thereby landing the workmen in the high wage island.
The first settlement between the Company and the workmen was entered into on August 11, 1964.
While accepting the double linked DA it further provided variable DA limited to the cost of living index up to 5.41 5.50.
Further relief was given to the workmen in the settlement dated July 18, 1969 when the limit on the variable DA was removed.
The Company revised the rates of DA on August 7, 1971.
Thereafter, two more settlements were entered into on July 4, 1974, and January 4, 1979, respectively.
Slab system with variable DA continued to be the basic constituent of the wage structure in the company from its inception.
The position which emerges is that in the year 1959 the Company on its own introduced slab system of DA.
In 1964 in addition, variable DA to the limited extent was introduced but the said limit was removed in the 1969 settlement.
The said DA scheme was reiterated in the 1979 settlement.
It is thus obvious that the slab system of DA introduced by the Company in the year 1959 and its progressive modifications by various settlements over a period of almost thirty years, has been consciously accepted by the parties and it has become a basic feature of the wage structure in the Company.
The workmen raised several demands in the year 1983 which were referred for adjudication to the Industrial Tribunal, Madras.
The Company in turn made counter demands which were also referred to the said Tribunal.
One of the issues before the Tribunal was as under: "Whether the demand of the Management for re structuring of the dearness allowance scheme is justified, if so, to frame a scheme?" The Tribunal decided the above issue in favour of the Company and by its award dated October 14, 1987 abolished the existing slab system of DA and directed that in future dearness allowance in the Company, be linked only to the cost of living index at 33 paise per point over 100 points of the Madras City Cost of living Index 1936 base.
The Tribunal disposed of the two References by a common award.
The Company as well as the workmen filed separate writ petitions before the Madras High Court challenging the award of the Tribunal.
While the two writ petitions were pending the parties filed a joint memorandum dated June 13, 1988, before the High Court in the following terms: 135 "In view of the settlement dated 13.5.1988 entered into between the parties, a copy of which is enclosed, both the parties are not pressing theft respective writ petitions except with regard to the issue relating to re structuring of dearness allow The learned Single Judge of High Court upheld the find ings of the Tribunal on the sole surviving issue and dis missed the writ petition of the workmen.
The writ appeal filed by the workmen was also dismissed by the High Court by its judgment dated September 14, 1989.
The present appeal by special leave is against the award of the Tribunal as upheld by the High Court.
Mr. M.K. Ramamurthy, learned counsel for the appel lants has raised following points for our cosideration: (i) The Tribunal and the High Court grossly erred in taking Rs. 26 as a per war wage of a worker in Madras region and, on that arith metic, reaching a conclusion that the rate of neutralisation on the basis of cost of living index in December 1984 was 192 per cent.
(ii) Even if it is assumed that there was over neutralisation unless the pay structure of the workmen is within the concept of a 'living wage ' and in addition it is proved that financially the Company is unable to bear the burden the existing pay structure/DA scheme cannot be revised to the prejudice of the work men.
(iii) In any case the DA scheme which was voluntarily introduced by the Company and reiterated in various settlements cannot be altered to the determent of the workmen.
" Before the points are dealt with, we may have a fresh look into various concepts of wage structure in the industry.
Broadly, the wage structure can be divided into three categories the basic "minimum wage" which provides bare subsistence and is at poverty line level, a little above is the "fair wage" and finally the "living wage" which comes at a comfort level.
It is not possible to demarcate these levels of wage structure with any preci sion.
There are, however, well accepted norms which broadly distinguish one category of pay structure from another.
The Fair Wages Commit tee, in its report published by the Government of India, Ministry of Labour, in 1949, defined the "living wage" as under: "the living wage should enable the male earner to provide for himself and his family not merely the bare essentials of food, 136 clothing and shelter but a measure of frugal comfort including education for the the chil dren, protection against illhealth, require ments of essential social needs, and a measure of insurance against the more important mis fortunes including old age." "The Committee 's view regarding "minimum wage was as under: "the minimum wage must provide not merely for the bare sustenance of life but for the preservation of the efficien cy of the worker.
For this purpose the minimum wage must also provide for some measure of education.
medical require ments and amenities.
" The Fair Wages Committee 's Report has been broadly approved by this Court in Express Newspapers (P) Ltd. vs Union of India, and Standard Vacuum Refining Co. of India vs Its Workmen and Anr., ; The Tripartite Committee of the Indian Labour Conference held in New Delhi in 1957 declared the wage policy which was to be followed during the Second Five Year Plan.
The Committee accepted the following five norms for the fixation of 'minimum wage ': "(i) In calculating the minimum wage, the standard working class family should be taken to consist of 3 consumption units for one earner; the earnings of women, children and adolescents should be disregarded.
(ii) Minimum food requirement should be calculated on the basis of a net intake of calories, as recommended by Dr. Aykroyd for an average Indian adult of moderate activity.
(iii) Clothing requirements should be esti mated at per capita consumption of 18 yards per annum which would give for the average workers ' family of four, a total of 72 yards.
(iv) In respect of housing, the rent corre sponding to the minimum area provided for under Government 's Industrial Housing Scheme should be taken into consideration in fixing the minimum wage.
(v) Fuel, lighting and other 'miscellaneous ' items of expenditure should constitute 20% of the total minimum wage.
" This Court in Standard Vacuum Refining Compa ny 's case (supra) has referred to the above norms with approval.
The concept of 'minimum wage ' is no longer the same as it was in 137 1936.
Even 1957 is way behind.
A worker 's wage is no longer a contract between an employer and an employee.
It has the force of collective bargaining under the labour laws.
Each category of the wage structure has to be tested at the anvil of social justice which is the live fibre of our society today.
Keeping in view the socio economic aspect of the wage structure, we are of the view that it is necessary to add the following additional component as a guide for fixing the minimum wage in the industry: "(vi) children education, medical require ment, minimum recreation including festivals/ceremonies and provision for old age, marriages etc.
should further constitute 25% of the total minimum wage.
The wage structure which approximately answers the above six components is nothing more than a minimum wage at subsist ence level.
The employees are entitled to the minimum wage at all times and under all circumstances.
An employer who cannot pay the minimum wage has no right to engage labour and no justification to run the industry.
A living wage has been promised to the workers under the constitution.
A 'socialist ' framework to enable the working people a decent standard of life, has further been promised by the 42nd Amendment.
The workers are hopefully looking forward to achieve the said ideal.
The promises are pilling up but the day of fulfilment is nowhere in sight.
Industrial wage looking as a whole has not yet risen higher than the level of minimum wage.
Adverting to the first point raised by Mr. Ramamurthy it would be convenient to quote from the award the conten tions of the Company and the findings reached by the Tribu nal.
The Company 's case as noticed by the tribunal is as under: "It is stated that the pre war wage of a worker in the Madras Region was Rs.26.
It is evidenced by the decision of the Labour Appel late Tribunal reported in 1951 1I L.L.J. page 314 (Buckingham and Carnatic Mills vs Their workers) and 1951 II L.L.J. page 718 (Good Pastor Press vs Their workers).
It is contend ed that taking the pre war minimum wage of worker at Madr,ks being R:,. 26 per month equivalent to 100 per cent neutralization the rate of Dearness Allowance at 26 paisa for every point above 100 points of cost of living index would work out to 100 per cent neutrali sation.
On the above basis at 138 2780 points of cost of living index in Decem ber 1984, the 100 per cent neutralised wage should be Rs. 722.80 (basic wage of Rs. 26 plus dearness allowance of Rs. 696.80).
As against the above wage a workman of lower grade in the Petitioner 'Company in December 1984 was getting a total wage of Rs. 1,`394/comprising of basic plus dearness allowance plus house rent allowance and the rate of neutralisation of dearness allowance correspondingly works out to 192 per cent.
" The Tribunal accepted the above contentions of the Company.
The evidence produced by the Company, regarding prevailing DA schemes in the comparable industries in the region, was also taken into consideration.
The Tribunal finally decided as under: "Taking an overall view of the rate of dear ness allowance paid by these comparable con cerns in the region and the higher total emoluments received by the workmen in this establishment, the slab system of dearness allowance now in existence shall stand abol ished and in future, dearness allowance in the Petitioner Management would be linked only to the cost of living index at 33 paise per point over 100 points of the Madras City Cost of Living Index 1936 base and it shall be effec tive from the month in which the award is published in the Tamil Nadu Gazette.
" The learned Single Judge of the High Court upheld the above findings of the Tribunal.
The Division Bench of the High Court, in writ appeal, approved the award and the judgment of the learned Single Judge in the following words "The learned judge has observed that the counsel for the Management had taken him through all the relevant materials which were filed in the form of Exhibits before the Tribunal in order to show that the matter of over neutralisation cannot be in dispute.
Thus the learned Judge proceeded on the basis that there is over neutralisation which called for devising a scheme for restructuring the wage scale.
This finding cannot be interfered with as no materials have been placed before us by the learned counsel for the appellant to show that the exhibits which were perused by the learned Judge do not support his conclusion.
Hence, we hold that the contention that there are no compelling circumstances in this case to revise the pattern of dearness allowance is unsustainable.
" 139 According to the Company the only purpose of DA is to enable a worker in the event of a rise in cost of living to purchase the same amount of goods of basic necessity as before.
In other words the DA is to neutralise the rise in prices.
the said purpose can be achieved by providing maxi mum of 100 per cent neutralisation.
Accepting the calcula tions of the Company based on Rs. 26 being the pre war (1936) minimum wage in Madras region the Tribunal came to the finding that there was 192 per cent neutralisation.
The Tribunal accepted Rs. 26 as the pre war minimum wage in Madras region on the basis of the decisions of Labour Appellate Tribunal of India in Buckingham and Carnatic Mills Ltd. vs Their workers, and Good Pastor Press vs Their workers, In Buckingham case the appellate tribunal came to the conclusion that the basic wage of the lowest category of operatives on the living cost of index of the year 1936 was Rs. 28.
The said wage included Rs.16 1/2 as expenses on diet.
The workers relied upon the Textile Enquiry Commit tee 's report to claim 25% addition to the diet expenses.
The Appellate Tribunal rejected the report on the ground that the recommendations in the said report were for the purpose of attaining the standard of "living wage" and not of 'min imum wage '.
The Appellate Tribunal stated as under: "The Union however, contends that Dr. Akroyd revised his opinion when submitting a specially prepared note to assist the Textile Enquiry Committee, Bombay of which Mr. Justice Divatia was the Chairman, where he is said to have stated that 25 per cent more will have to be added for obtaining a balanced diet for a minimum wage earner.
The report of that Enquiry Committee, which was published in 1940, however, shows that Dr. Akroyd added 25 per cent as the costs of the extra items to his standard menu such as sugar etc., for the purpose of attaining the standard menu of 'living wages ' (final report of the Textile Labour Enquiry Committee 1940, Vol.
II, pages 70 to 71).
Therefore, for the purpose of fixing 'minimum wages ' that 25 per cent is not to be added.
" The question as to whether the recommendations of Textile Enquiry Committee were in relation to 'living wage ' or 'minimum wage ' came for consideration before this Court in Standard Vacuum case (supra).
This Court held as under: "It is obvious that the Committee was really thinking of what 140 is today described as the minimum need based wage, and it found that judged by the said standard the current wages were deficient.
In its report the Committee has used the word 'minimum ' in regard to some of the constitu ents of the concept of living wage, and its calculations show that it did not proceed beyond the minimum level in respect of any of the said constituents.
Therefore, though the expression 'living wage standard ' has been used by the Committee in its report we are satisfied that Rs. 50 to Rs. 55 cannot be regarded as anything higher than the need based minimum wage at that time.
If that be the true position the whole basis adopted by the appellant in making its calculations turns out to be illusory." This Court, therefore, in Standard Vacuum case came to the conclusion that the Textile Labour Committee Report in the year 1940 in its calculations did not proceed beyond the minimum level of the wage structure.
It was further held that Rs. 50 to Rs. 55 was the need based minimum wage in the year 1940.
The Appellate Tribunal in Buckingham case, therefore misread the Textile Committee Report and was not justified in rejecting the same on the ground that it related to the category of 'living wage ' We are of the view that it would not be safe to accept the findings of the Appellate Tribunal in Buckingham case as the basis for fixing the wage structure to the prejudice of the workmen.
This court in Standard Vacuum case (supra) has further held that in Bombay the minimum wage in the year 1940 was Rs.50 to Rs.55.
On that finding it is not possible to accept that the minimum wage in the year 1936 in Madras region was Rs.26/28.
So far as the Good Pastor Press case is concerned the question of determining the minimum wage in per war 1936 was not before the Appellate Tribunal.
It only mentioned the fact that Rs.26 was held to be so by some of the subordinate tribunals.
There was no discussion at all on this point.
The Tribunal 's reliance on this case was wholly misplaced.
In any cause we are of the opinion that purchasing power of today 's wage cannot be judged by making calculations which are solely based on 30/40 years old wage structure.
The only reasonable way to determine the category of wage structure is to evaluate each component of the category concerned in the light of the prevailing prices.
There has been sky rocking rise in the prices and the inflation chart is going up so fast that the only way to do justice to the labour is to determine the money value of various components of the minimum wage in the context of today.
141 We may now move on to the second and third point raised by Mr. Ramamurthy.
We take up these points together.
Mr. F.S. Nariman, learned counsel appearing for the Company, contended that the existing DA scheme can be revised even to the prejudice of the workmen and for that proposition he relied upon the judgment of this Court in M/s. Crown Alumin ium works vs Their Workmen; , Mr. Rama murthy has, however, argued that even if the contention of Mr. Nariman is accepted in principle, the Company has not been able to make out a case for such a revision.
In M/s. Crown Aluminium Works case this Court speaking through Gajendragadkar, J.(as he then was) held as under: "The question posed before us by Mr. Sen is: Can the wage structure fixed in a given indus try be never revised to the prejudice of its workmen? Considered as a general question in the abstract it must be answered in favour of Mr. Sen.
We do not think it would be correct to say that in no conceivable circumstances can the wage structure be revised to the prejudice of workmen.
When we make this obser vation, we must add that even theoretically no wage structure can or should be revised to the prejudice of workmen if the structure in question falls in the category of the bare subsistence or the minimum wage.
If the wage structure in question falls in a higher cate gory, then it would be open to the employer to claim its revision even to the prejudice of the workmen provided a case for such revision is made out on the merits to the satisfaction of the tribunal.
In dealing with a claim for such revision, the tribunal may have to con sider, as in the present case whether the employer 's financial difficulties could not be adequately met by retrechment in personnel already effected by the employer and sanc tioned by the tribunal.
The tribunal may also enquire whether the financial difficulties facing the employer are likely to be of a short duration or are going to face the em ployer for a fairly long time.
It is not necessary, and would indeed be very difficult, to state exhaustively all considerations which may be relevant in a given case.
It would, however, be enough to observe that, after considering all the relevant facts, if the tribunal is satisfied that a case for reduc tion in the wage structure has been estab lished then it would be open to the tribunal to accede to the request of the employer to make appropriate reduction in the wage struc ture, subject to such conditions as to time or otherwise that the tribunal may deem fit or expedient to impose.
" 142 The above dicta was reiterated by this Court in Ahmeda bad Mills Owners, Association etc.
vs The Textiles Labour Association, wherein this Court through Gajendragadkar, CJ, laid down as under: "The other aspect of the matter which cannot be ignored is that if a fair wage structure is constructed by industrial adjudication and in course of time, experience shows that the employer cannot bear the burden of such wage structure, industrial adjudication can, and in a proper case should revise the wage struc ture, though such revision may result in the reduction of the wages paid to the employees. . . . if it appears that the employer cannot really bear the burden of the increasing wages bill industrial adjudication, on principle, cannot refuse to examine the employer 's case and should not hesitate to give him relief if it is satisfied that if such relief is not given, the employer may have to close down his business. . .
This principle, however, does not apply to cases where the wages paid to the employees are no better than the basic minimum wage.
If, what the employer pays to his employees is just the basic sub sistence wage, then it would not be open to the employer to contend that even such a wage is beyond his paying capacity.
" The ratio which emerges from the judgments of this Court is that the management can revise the wage structure to the prejudice of the workmen in a case where due to financial stringency it is unable to bear the burden of the existing wage.
But in an industry or employment where the wage struc ture is at the level of minimum wage, no such revision at all, is permissible not even on the ground of financial stringency.
It is, therefore, for the management, which is seeking restructuring of DA scheme to the disadvantage of the workmen to prove to the satisfaction of the tribunal that the wage structure in the industry concerned is well above minimum level and the management is financially not in a position to bear the burden of the existing wage struc ture.
Mr. Ramamurthy further relied upon this Court 's judgment in MonthlyRated workmen at the Wadala factory of the Indian Hume Pipe Co. Ltd. vs Indian Hume Pipe Co. Ltd., Bombay, ; and contended that an employer cannot be permitted to abolish the DA scheme which has worked smoothly for almost thirty years on the plea that the said scheme is more beneficial than the DA schemes adopted by other indus tries in the region.
In the Indian Hume Pipe Co. Ltd case the management pleaded that the dearness allowance enjoyed by the workmen was so high in certain cases that neutralisation was at rates much higher than 100%.
It was further contended that the manage ment did not have the capacity to pay the slab system of DA and in the event of a claim for similar DA by other workmen the management might have to close down the factories.
Khalid, J. spoke for the court as under: "We thought it necessary to refer to the various awards read by Mr.Pai only for the completeness of the judgment.
It has to be borne in mind that in most of these cases, awards were passed at the instance of the employees when demands were made for raising the dearness allowance paid to them.
Here, we have the case of the employer trying to get over a system of dearness allowance which had worked smoothly for 18 years, on the specious plea that at the time the slab system was introduced, it was not in the expectation of anyone that the cost of price index would spiral up so much as to make it impossible for the company to pay according to this scheme.
From the materials available we do not find that this plea can be accepted.
The records produced show that despite this system of dearness allowance the Company has been making profits and has been improving its position year by year. . . we do not think it necessary to deal at length about the evolu tion of the concept of dearness allowance.
Suffice it to say that this Court has, often times, emphasised the need for a living wage to workmen instead of a subsisting wage.
It is indeed a matter of concern and mortification that even today the aspirations of a living wage for workmen remain a mirage and a distant dream.
Nothing short of a living wage can be a fair wage.
It should be the combined effort of all concerned including the Courts to extend to workmen a helping hand so that they get a living wage which would keep them to some extent at least free from want.
It is against this background that a claim by em ployers to change the conditions of service of workmen to their detriment has to be consid ered and it is against this background that we have considered the award review.
We are not satisfied that a case has been made out on the facts available for a change. . . .
The question is often asked as to whether it would be advisa ble for Tribunals and Courts to revise the wage structure of workmen to their prejudice when a dispute arises.
Normally the answer would be in the negative.
Tribunals and Courts can take judicial notice of one fact; and that is that the wages of workmen, except inexcep tionally rare cases, 144 fail within the category of mere "sub sisting wages".
That being so, it would be inadvisable to tinker with the wage structure of workmen except under compelling circum stances.
" We agree with Mr. Ramamurthy that the DA scheme which had stood the test of time for almost thirty years and had been approved by various settlements between the parties has been unjustificably abolished by the Courts below and as such the award of the Tribunal and the High Court Judgments are unsustainable.
Mr. Nariman has also relied on the judgment of this Court in Killick Nixon Ltd. vs Killick & Allied Companies Employees ' Union, to support the findings of the Tribunal and the High Court.
The said case does not lay down that in all cases the slab system of DA should be abolished to the prejudice of the workers.
In the said case this Court on the facts of the case came to the conclusion that the employer had made out a case for putting a ceiling on the dearness allowance.
The ratio of that case cannot be extended to interfere with the existing DA schemes in every case where such schemes are beneficial to the workmen.
Mr. Nariman has invited our attention to para 20 of the Award wherein the tribunal has held as under: "These figures as detailed in exhibit
M 13 would establish that the company is not in a finan cial position to bear the additional burden on account of increased wages.
" From the above finding it was sought to be shown that the Company has proved to the satisfaction of the Tribunal that financially it was not in a position to bear the burden of the existing DA scheme.
We do not agree with the learned counsel.
The Tribunal gave the above finding in the refer ence made on behalf of the workmen asking for bonus increase and various other monetary benefits.
While rejecting the demands of the workmen the Tribunal gave the above finding which related to the additional burden accruing in the event of acceptance of the workers ' demands.
The Tribunal nowhere considered the financial position of the company vis avis the existing DA scheme.
The Company neither pleaded nor argued before the Tribunal that its financial position had so much deteriorated that it was not possible for it to bear the burden of the slab system of DA.
The Tribunal has not dealt with this aspect of the matter while considering the demand of the Company for re structuring the DA scheme.
It has been pleaded by the company that its workmen are in a high wage island and as such the revision of DA scheme was justified.
The 145 Company also produced evidence before the Tribunal to show that comparable concerns in the region were paying lesser DA to its workmen.
On the basis of the material produced before the Tribunal all that the Company has been able to show is that the DA paid by the Company is somewhat higher than what is being paid by the other similar industries in the region.
There is, however, no material on the record to show that what is being paid by the company is higher than what would be required by the concept of need based minimum wage.
In any case there is a very long way between the need based wage and the living wage.
Mr. Nariman reminded us of the limits on our jurisdic tion under Article 136 of the Constitution of India and relying upon Shaw Wallace & Co. Ltd. vs Workmen, and The Statesman Ltd. vs Workmen, ; contended that so long as there is "some basis, some materi al to validate the award" the "jurisdiction under Article 136 stands repelled".
The Tribunal and the High Court, in this case, has acted in total oblivion of the legal position as propounded by this court in various judgments referred to by us.
Manifest injustice has been caused to the workmen by the award under appeal.
We see no force in the contention of the learned counsel.
In view of the above discussion we are of the view that the Tribunal was not justified m abolishing the slab system of DA which was operating in the Company for almost thirty years.
We allow the appeal and set aside the award of the Tribunal and the judgment of the learned Single Judge in the writ petition and of the Division Bench in the Writ Appeal.
The reference of the Company on the issue of re structuring of the dearness allowance is declined and rejected.
The Appellant workmen shall be entitled to their costs through out which we assess at Rs. 25,000. [/INST] The respondent company, in its factory set up at Madras 1959, introduced slab system of dearness allowance (DA) i.e. the DA paid to the workmen was linked to the cost of living index as well as the basic pay.
The double linked DA scheme, being consciously accepted as basic constituent by the company and its workmen in various settlements between them, became basic feature of the wagestructure and remained operative in the company for about 30 years, In the year 1983, a dispute arose between the company and its workmen.
The matter was referred to the industrial Tribunal.
One of the issues before the Tribunal was based on the demand of the Management for restructuring of the dear ness allowance scheme and to frame a new scheme.
The Tribu nal abolished the existing slab system of DA and directed the dearness allowance to be linked only to the cost of living index at 33 paise per point over 100 points at the Madras city cost of living index 1936 base.
Before the High Court, both the parties agreed not to press their respective writ petitions except on the issue of restructuring of 130 DA.
Upholding the findings of the Tribunal on the sole surviving issue, the Single Judge dismissed the workmen 's writ petition.
The intra Court appeal filed by the workmen was also dismissed.
grieved, the workmen filed the appeal by special leave to this Court.
It was contended on behalf of the workmen that the Tribunal and High Court grossly erred in taking Rs. 26 as a pre war wage of a worker in Madras region and holding that the rate of neutralization on the basis of cost of living index in December, 1984 was 192%; that even assuming that there was over neutralization, the existing pay structure/DA scheme could not be revised to the prejudice of the workmen unless their pay structure was within the concept of 'living wage ' and, in addition, it was proved that financially the company was unable to bear the burden; and that the company could not be permitted to abolish the DA scheme to the detriment of the workmen much less on the plea that the said scheme was more beneficial than the DA schemes adopted by other industries in the region.
The respondent, contended that the company had proved to the satisfaction of the Tribunal that financially it was not in a position to bear the burden of existing DA scheme; that its workmen were in a high wage island and as such the revision of DA scheme was justified.
It was also contended that so long as there was some basis and material to vali date the award, the jurisdiction under Article 136 of the Constitution stood repelled.
On the question; whether the Management is entitled to restructure the DA scheme to the prejudice of the workmen on the ground that the existing system had resulted in over neutralization thereby landing the workmen in the high wage island Allowing the appeal of the workmen, this Court, HELD: 1.1.
The management can revise the wage structure to the prejudice of the workmen in a case where due to financial stringency it is unable to bear the burden of the existing wage.
But in an industry or the employment where the wage structure is at the level of minimum wage, no such revision at all, is permissible not even on the ground of financial stringency.
[p. 142 E] Monthly Rated workmen at the Wadala factory of the Indian Hume 131 Pipe Co. Ltd. vs Indian Hume Pipe Co. Ltd., Bombay, ; , relied on.
M/s Crown Aluminium Works vs Their Workmen, ; & Ahmedabad Mills Owners ' Association etc.
vs The Textiles Labour Assosication; , , referred to.
Killick Nixon Ltd. vs Killick & Allied Companies Employ ees Union, , distinguished.
1.2 The employees are entitled to the minimum wage at all times and under all circumstances.
An employer who cannot pay the minimum wage has no right to engage labour and no justification to run the industry.
[p. 137 C] 1.3 It is for the management, seeking to restructure the DA scheme to the disadvantage of the workmen, to prove to the satisfaction of the tribunal that the wage structure in the industry concerned is well above minimum level and the management is financially not in a position to bear the burden of the existing wagestructure.
[p. 142 F] 2.1 'The concept of 'minimum wage ' is no longer the same as it was in 1936.
Even 1957 is way behind.
A worker 's wage is no longer a contract between an employer and an employee.
It has the force of collective bargaining under the labour laws.
Each category of the wage structure has to be tested at the anvil of social justice which is the live fibre of our society today.
[pp. 136 H, 137 A] 2.2 The Tripartite Committee of the Indian Labour Con ference ' 1957 has formulated five norms for the fixation of 'minimum wage ' (i) three consumption units for one earner disregarding earnings of women, children and adolescents; (ii) minimum food requirement based on net intake calories; (iii) clothing requirement at 72 yards per annum for an average working family of four; (iv) house rent correspond ing to minimum area provided for under the Government 's Industrial Housing Scheme; (v) 20% of total minimum wage for fuel, lighting and other miscellaneous items.
[p. 136 D G] Express Newspapers (P) Ltd. vs Union of India, , followed.
Standard Vacuum Refining Co. of India vs Its Workmen & Anr., ; , relied on.
132 Keeping in view the socio economic aspect of the wage structure the following additional component has also to be taken into account: "(vi) children education, medical require ment, minimum recreation including festivals/ceremonies and provision for old age, marriages etc.
should further constitute 25% of the total minimum wage," The wage structure which approximately answers these six components is nothing more than a minimum wage at subsist ence level.
[p. 137 A C] 2.3 In spite of the promise by the Constitution of a living wage and a 'socialist ' framework to enable the work ing people a decent standard of life, industrial wage, looking as a whole, has not yet risen higher than the level of minimum wage.
[p. 137 D E] 3.1 Purchasing power of today 's wage cannot be judged by making calculations which are solely based on 30/40 years old wagestructure.
The only reasonable way to determine the category of wage structure is to evaluate each component of the category concerned in the light of the prevailing prices.
There has been skyrocking rise in the prices and the inflation chart is going up so fast that the only way to do justice to the labour is to determine the money value of various components of the minimum wage in the context of today.
[p. 140 F H] 3.2 In the instant case, the Company neither pleaded nor argued before the Tribunal that its financial position had so much deteriorated that it was not possible for it to bear the burden of the slab system of DA; nor did the Tribunal deal with this aspect of the matter while considering the demand of the Company for re structuring the DA scheme.
[p. 144 F G] 3.3 Although the DA paid by the Company was somewhat higher than what was being paid by the other similar indus tries in the region, yet it could not be shown that what was being paid by the Company was higher than what would be required by the concept of need based minimum wage.
In any case there is a very long way between the need based wage and the living wage.
[p. 145 AB] 4.
The Tribunal and the High Court acted in total oblivion of the legal position.
Consequently, manifest injustice has been caused 133 to the workmen by the award.
It can, therefore, not be said that jurisdiction under article 136 stands repelled.
[p. 145 CD] Shaw Wallace & Co. Ltd. vs Workmen, & The Statesman Ltd. vs Workmen, ; , referred to.
The Tribunal was not justified in abolishing the slab system of DA which had stood the test of time for almost 30 years and had been approved by various settlements between the parties and as such the award of the Tribunal and the High Court judgments were unsustainable.
[pp. 144 AB; 145 DE] Buckingham and Carnatic Mills Ltd. vs Their Workers, [1951] 2 L.L,.
J. 314 & Good Pastor Press vs Their Workers, , referred to. </s> |
<s>[INST] Summarize the following judgement: 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. [/INST] The tenure holder of the land in dispute father of the appellants died on 20.8.1974, leaving behind, besides the four appellants, three other sons, three daughters and a widow as his legal heirs and representatives.
After his death a notice under section 10 of the Uttar Pradesh Imposition of Ceiling on Land Holdings Act, 1960, proposing to declare certain lands as surplus, addressed to him, was served on his son appellant No. 1 who filed objections.
The Prescribed Authority partly upheld the objections and by its judgment dated 29.4.1975 determined some land as surplus.
The appel lants filed an appeal before the Civil Judge.
Meanwhile the Ceiling Act was amended by the Uttar Pradesh Act 20 of 1976, section 31 (3) whereof provided for redetermination of surplus lands within two years from 10.10.1975 in cases where orders declaring lands as surplus had been made prior to that date, notwithstanding any appeal against the original order of determination of surplus land.
A fresh notice under section 10 (2) of the Act issued to appellant No. 1 proposing to declare certain lands as surplus.
After considering the appellant 's objection the Prescribed Authority by its order dated 22.12.1976 deter mined some land as surplus, holding that the said lands were surplus which were owned by the deceased as tenure holder on the appointed day.
The appeal against the said order was dismissed by the District Judge.
In the writ petition preferred by the appellants, the High Court held that previous determination of surplus lands by the Prescribed Authority did not operate as res judicata, and that the appellate 160 authority was justified in ignoring the sale deed dated 27.10.1971.
It, however, held that the determination about some plots of lands had not been properly made, and remanded the case to the appellate authority with the direction to it to issue notice to the other brothers of the appellants.
Aggrieved, the appellants filed the appeal by special leave to this Court.
It was contended on behalf of the appellants that the proceeding for re determination of ceiling land could not have been initiated by the Prescribed Authority until notice under section 9 (2) of the Act was issued to all the heirs of the deceased tenure holder; that since the redetermination proceedings were initiated after Act 20 of 1976 was en forced, the redetermination could only be made under the provisions of the Act as amended by Act 20 of 1976 and in view of the changes in the Ceiling Act there was no surplus land liable to be vested in the State; that as two years had elapsed from the enforcement of Act 20 of 1976, no redeter mination was permissible thereafter.
Disposing of the appeal and remanding the case to the Prescribed Authority, this Court, HELD: 1.
Section 31(3) of the Uttar Pradesh Imposition of Ceiling on Land (Amendment) Act, 1976 (Act 20 of 1976) authorised the Prescribed Authority to redetermine the surplus land in relation to the tenure holder if initiated within two years from October 10, 1975.
[p. 164 D E] In the instant case, the previous determination of ceiling was made before 10.10.1975.
Accordingly, under section 31(3) of U.P. Act 20 of 1976, the Prescribed Authority had jurisdiction to initiate the said proceedings and such jurisdiction did not depend on issuance of notice under section 9 (2) of the Act to the tenure holder and/or his successors in interest.
[p. 164 EF] Shantnu Kumar vs State of Uttar Pradesh & Ors, 1977 Allahabad Law Reports p. 564, referred to.
Although the Prescribed Authority had jurisdiction to initiate the proceeding for re determination of surplus land and he had in fact initiated such proceeding within two years as referred to in 31(3) of U.P. Act 20 of 1976, yet, such determination could not have been made without affording to the heirs and legal representatives of the tenure holder an opportunity of being heard and showing cause before the Prescribed Authori ty.
[p. 164 FG] The tenure holder had died in 1974 and the said fact was made known to the Prescribed Authority when the initial determination of surplus lands was made.
It was unfortunate that in spite of the said fact, the Prescribed Authority failed and neglected to ascertain the names of all the legal heirs and representatives of the deceased tenure holder and did not issue notice to them for redetermination of surplus land.
[pp. 164 GH; 165 A] 3.
While the High Court directed to issue notice to other brothers and remanded the case to the appellate au thority, it did not direct to issue notices to other heirs and legal representatives.
Morever, 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.
[p. 165 AB] 4.
The Prescribed Authority will decide the question of plus land in accordance with the existing provisions of the Ceiling Act applicable on the relevant date, after issuing notices to the heirs and legal representatives of the tenure holder and giving them a reasonable opportunity of being heard.
[P 165 DE] </s> |
<s>[INST] Summarize the following judgement: Appeal No. 674 of 1957.
Appeal by special leave from the judgment and decree dated August 10, 1955, of the Bombay High Court in C. R. Application No. 1213 of 1953, arising out of the judgment and decree dated April 25, 1953, of the Assistant Judge, Thana, in C. A. No. 97 of 1952, against the judgment and decree dated January 31, 1952, of the Court of the Civil Judge, J. D. Kalyan, in Suit No. 153 of 1949.
Purshottam Tricumdas, Rameshwar Nath and section N. Andley, for the appellant.
H. J. Umrigar, Ratnaparkhi Anant Govind and W. P. Oka, for the respondent.
February 16.
The Judgment of the Court was delivered by KAPUR, J.
This is an appeal by special leave against the judgment of the High Court of Bombay confirming the order of ejectment passed by the Assistant Judge, Thana.
The tenant who was the defendant in the suit is the appellant and the landlord who was the plaintiff is the respondent.
The facts giving rise to this litigation shortly stated are that the appellant was a tenant for about 20 years in the premises known as " Fida Ali Villa " in Kalyan.
This building was purchased by the respondent who gave notice to the appellant to vacate, as he wanted to construct a new building on the site of the old building.
The appellant agreed to vacate and the respondent let to him a portion of his new building which 219 was riot far from " Fida Ali Villa ".
The appellant had four sub tenants, three of them also shifted to the new premises which were let to the appellant by the respondent.
Although it was disputed, the courts below have found that they occupied the same position qua the appellant.
The 4th, a Bohri, was fixed up by the respondent in some other place.
There was some dispute as to the date when these new premises were let to the appellant, the appellant alleging that they were let on July 1, 1948, and the respondent that they were let on June 1, 1948.
The trial Court found that they were let on June 1, 1948.
The terms of the lease are contained in a document dated June 7,1948, which is a letter in Marathi written by the respondent to the appellant and contains the following terms as to sub tenancy: " In the shops in the old chawl which are with you you have kept sub tenants.
We are permitting you to keep sub tenants in the same manner, in this place also ".
The parties were not agreed as to the correctness of the translation of this term.
The submission of the appellant was that the word 'sub tenant ' should be in the plural and of the respondent that it should be in the singular but whether it is in the singular or plural it does not make any difference to the principal argument advanced in this Court.
On January 3, 1949, the respondent gave notice to the defendant to vacate the premises on the ground of nonpayment of rent and sub letting which it was alleged had resulted in the termination of the tenancy.
On April 20, 1949, the respondent brought a suit for ejectment on the ground of non payment of rent and sub letting of the premises.
The defence of the appellant was that under the terms of the lease he had the right to sub let the premises.
As to the claim on the ground of non payment of rent be deposited the arrears of rent in court.
The trial Court held that subletting was lawful in spite of section 15 of Bombay Hotel and Lodging Houses Rates Control Act, 1947 (Bom.
57 of 1947).
He also held that the appellant did not occupy the premises on the same terms and conditions on which he occupied the old premises in " Fida Ali 220 Villa".
He passed a decree for Rs. 445 on account of rent remaining due and dismissed the respondent 's suit for ejectment.
On appeal the Assistant Judge at Thana reversed the decree holding that section 15 of the Act completely prohibited sub letting and under section 13(1)(e) of the Act the landlord bad the right to evict the tenant on account of sub letting.
The appellant then went in revision to the High Court of Bombay, but it affirmed the order of ejectment.
The appellant has come to this Court by special leave.
Counsel for the appellant urged that there was no new tenancy after the coming into force of the Act and therefore sections 13(1)(e) and 15 of the Act did not apply; (2) that the tenant had not sub let the premises to the sub tenants and they were merely licensees of the landlord; (3) that no new sub tenancy had been created ; (4) that section 15 was confined to 'any other law '; it did not apply to contracts between the landlord and tenant and therefore it did not preclude an agreement between the parties as to sub letting; (5) that the parties were in pari delicto and therefore the plaintiff respondent could not succeed.
He also raised a new ground which had not been raised in the courts below or in the grounds of appeal or in the statement of case in this Court, that the respondent had waived his right in regard to the prohibition against sub tenancy and the provision in section 13(1)(e) was for the protection of his rights which he was entitled to waive.
The courts below have held that the tenancy by the letter of June 7,1948, was a new tenancy and not a continuation of the old and that the sub tenants were tenants of the appellant and not licensees of the respondent and in this Court no serious argument was addressed on these points.
The previous tenancy was of a different building called I Fida Ali Villa ' which came to an end when the appellant vacated those premises and entered into a new agreement of lease in regard to the premises in dispute.
There ",as no privity between the respondent and the sub tenants of the appellant and they could not be termed his licensees.
These contentions are without substance and have rightly been rejected.
221 It was then argued that under section 15 of the Act there is no prohibition against a contract of sub letting, the non obstante clause being confined to other laws.
The section when quoted runs as follows: " Notwithstanding anything contained in any law it shall not be lawful after the coming into operation of this Act for any tenant to sub let the whole or any part of the premises let to him or to assign or transfer in any other manner his interest therein: Provided that the (State) Government may, by notification in the Official Gazette, permit in any area the transfer of interest in premises held under such leases or class of leases and to such extent as may be specified in the notification ".
This section prohibits sub letting and makes it un lawful for a tenant to assign or to transfer his interest in the premises let to him.
The non obstante clause would mean that even if any other law allowed subletting, e. g., section 108 of the Transfer of Property Act, the sub letting would, because of section 15, be unlawful.
This would appy to contracts also as all contracts would fall under the provisions of the law relating to contracts, i. e., Contract Act.
An agreement contrary to the provisions of that section (section 15) would be unenforceable as being in contravention of the express provision of the Act which prohibits it.
It is not permissible to any person to rely upon a contract the making of which the law prohibits (section 23 of the Contract Act).
Counsel for the appellant contended that the view of the Bombay High Court in P. D. Aswani vs Kavashah Dinshah Mulla (1) was erroneous and that the correct rule was laid down by that Court in Cooper V. Shiavax Cambatta (2).
That was a case under section 10 of Bombay Rents, Hotel Rates and Lodging Houses Rates (Control) Act (Bom.
VII of 1944) which in ex press terms allowed sub letting as follows : " Notwithstanding anything to the Contrary in any law for the time being in force, a tenant may sublet any portion of his premises to a sub tenant, provided be forthwith intimates in writing to his landlord (1) (2) A.I.R. 1949 Bom.
222 the fact of his having so sub let the premises and also the rent at which they have been sub let ".
It was contended that the non obstante clauses in section 10 of Act VII of 1944 and of section 15 of the Act being similar in language must be similarly interpreted.
The non obstante clause has to be read in conjunction with the rest of the section.
Section 10 of the Act of 1944 permitted sub letting on certain conditions.
By section 9 of that Act provision was made for a Contract between the landlord and the tenant prohibiting sub letting and in Cooper vs Shiavax Cambatta (1) the two provisions were reconciled by saying that, a contract under section 9 prevailed over the permission given by section 10.
But section 15 expressly prohibits subletting and therefore a contract to the contrary cannot neutralise its prohibitory effect.
The non obstante clause of the two sections, section 10 of the Act of 1944 and of section 15 of the Act therefore cannot be said to have the same effect.
The respondent 's suit for ejectment was brought under section 13(1)(e) which provides: " Notwithstanding anything contained in this Act (but subject to the provisions of section 15), a landlord shall be entitled to recover possession of any premises if the Court is satisfied (e) that the tenant has, since the coming into operation of this Act, sub let the whole or part of the premises or assigned or transferred in any other manner his interest therein ; ".
It was contended that section 13(1)(e) had to be read separately and not in conjunction with section 15 of the Act.
The section itself makes it quite clear that it is subject to the provision of section 15 and the two sections must therefore be read together.
The appellant pleaded that under the agreement between him and the ' respondent he was entitled to sub let the premises.
Such an agreement, in our opinion is void because of the provisions of section 15 of the Act and section 23 of the Contract Act and enforcement of the agreement would produce the (1) A.I.R. 1949 Bom.
very result which the law seeks to guard against and to prevent and by sustaining the plea of the appellant the Court would be enforcing an agreement which is prohibited and made illegal.
The appellant relied on the maxim in pari delicto potior est conditio posidentis to support his plea that the respondent could not enforce his right under section 13 (1)(e).
But this maxim " must not be understood as meaning that where a transaction is vitiated by illegality the person left in possession of goods after its completion is always and of necessity entitled to keep them.
Its true meaning is that, where the circumstances are such that the Court will refuse to assist either party, the consequence must, in fact, follow that the party in possession will not be disturbed ".
(Per Du Parcq, L. J., in Bowmakers Ltd. vs Barnet Instruments Ltd. (1).
The respondent in the present case did not call upon the Court to enforce any agreement at all.
When the instrument of lease was executed and possession given and sub letting done it received its full effect; no aid of the Court was required to enforce it.
The respondents ' suit for ejectment was not brought for the enforcement of the agreement which recognised sub letting but he asked the Court to enforce the right of eviction which flows directly from an infraction of a provision of the Act (section 15) and for which the Act itself provides a remedy.
There is thus a manifest distinction between this case where the plaintiff asked the Court to afford him a remedy against one who by contravening section 15 of the Act has made himself liable to eviction and those cases where the Court was called upon to assist the plaintiff in enforcing an agreement the object of which was to do an illegal act.
The respondent is only seeking to enforce his rights under the statute and the appellant cannot be permitted to assert in a Court of justice any right founded upon or growing out of an illegal transaction.
Gibbs & Sterret Manufacturing Co. vs Brucker (2).
In our opinion section 15 of the Act is based on public policy and it has been hold that if public policy demands it even an equal participant in the (1) [1945] I K.B. 65, 72.
(2) (1884) III U.S. 597; ; 224 illegality is allowed relief by way of restitution of res cission, though not on the contract.
It was next contended that section 13(1)(e) is a provision for the protection of private rights of the landlord and unless there is in the Act itself any provision to the contrary such rights as far as they were personal rights may be parted with or renounced by the landlord.
In other words the right of the respondent to sue for ejectment on the ground of subletting being a personal right for his benefit, the landlord must be taken to have waived it as by an express contract he had allowed the tenant to sub let and consequently he could not evict the appellant under section 13(1)(e) of the Act.
The plea of waiver was taken for the first time in this Court in arguments.
Waiver is not a pure question of law but it is a mixed question of law and fact.
This plea was neither raised nor considered by the courts below and therefore ought not to be allowed to be taken at this stage of the proceedings.
But it was argued on behalf of the appellant that according to the law of India the duty of a pleader is to set up the facts upon which he relied and not any legal inference to be drawn from them and as he had set up all the circumstances from which the plea of waiver could be inferred lie should be allowed to raise and argue it at this stage even though it had not been raised at any previous stage not even in the statement of case filed in this Court and he relied upon Gouri Dutt Ganesh Lal Firm vs Madho Prasad (1).
Assuming that to be so and proceeding on the facts found in this case the plea of waiver cannot be raised because as a result of giving effect to that plea the Court would be enforcing an illegal agreement and thus contravene the statutory provisions of section 15 based on public policy and produce the very result which the statute prohibits and makes illegal.
In Surajmull Nargoremull vs Triton Insurance Co. (2), Lord Sumner said: " No Court can enforce as valid that which competent enactments have declared shall not be valid, nor is obedience to such an enactment a thing from (1) A.I.R. 1943 P. C. 147.
(2) (1924) L.R. 52 I. A. 126.
225 which a Court can be dispensed by the consent of the parties, or by a failure to plead or to argue the point at the outset: Nixon vs Albion Marine Insurance Co. (1).
The enactment is prohibitory.
It is not confined to affording a party a protection of which he may avail himself or not as he pleases.
It is not framed solely for the protection of the revenue and to be enforced solely at the instance of the revenue officials, nor is the prohibition limited to cases for which a penalty is exigible In the instant case the question is not merely of waiver of statutory rights enacted for the benefit of an individual but whether the Court would aid the appellant in enforcing a term of the agreement which section 15 of the Act declares to be illegal.
By enforcing the contract the consequence will be the enforcement of an illegality and infraction of a statutory provision which cannot be condoned by any conduct or agreement of parties.
Dhanukudhari Singh vs Nathima Sahu (2).
In Corpus Juris Secundum, Vol.
92, at p. 1068, the law as to waiver is stated as follows: ". . a waiver in derogation of a statutory right is not favoured, and a waiver will be inoperative and void, if it infringes on the rights of others, or would be against public policy or morals. . .
In Bowmakers Limited vs Barnet Instruments Ltd. (3) the same rule was laid down.
Mulla in his Contract Act at page 198 has stated the law as to waiver of an illegality as follows: " Agreements which seek to waive an illegality are void on grounds of public policy.
Whenever an illegality appears, whether from the evidence given by one side or the other, the disclosure is fatal to the case.
A stipulation of the strongest form to waive the objection would be tainted with the vice of the original contract and void for the same reasons.
Wherever the contamination reaches, it destroys ".
This, in our opinion, is a correct statement of the law and is supported by high authority.
Field, J., in (1) ; (2) , 852.
(3) [1945] 1 X.B. 65, 72.
29 226 Oscanyan vs Winchester Arms Company (1) quoted with approval the observation of Swayne, J., in Hall vs coppell (2) " The principle is indispensable to the purity of its administration.
It will not enforce what it has forbidden and denounced.
The maxim Ex dolo malo non oritur actio, is limited by no such qualification.
The proposition to the contrary strikes us as hardly worthy of serious refutation.
Wherever the illegality appears, whether the evidence comes from one side or the other, the disclosure is fatal to the case.
No consent of the defendant can neutralise its effect.
A stipulation in the most solemn form, to waive the objection, would be tainted with the vice of the original contract, and void for the same reasons.
Wherever the contamination reaches, it destroys ".
Waiver is the abandonment of a right which normally everybody is at liberty to waive.
A waiver is nothing unless it amounts to a release.
It signifies nothing more than an intention not to insist upon the right.
It may be deduced from acquiescence or may be implied.
Chitty on Contract, 21st Ed., p. 381 : Stackhouse vs Barnston (3).
But an agreement to waive an illegality is void on grounds of public policy and would be unenforceable.
In Mytton vs Gilbert(4) Ashurst, J., said: " Besides, there is still further reason why the trustees should not be estopped ; for this is a public Act of Parliament, and the Courts are bound to take notice that the trustees under this Act had no power to mortgage the toll houses.
This deed therefore cannot operate in direct opposition to an Act of Parliament, which negatives the estoppel ".
Vaughan Williams, L. J., in Norwich Corporation vs Norwich Electric Tramways Company(5) said : " The case is not like that of a provision in an agreement which is for the benefit of one of the parties and which he may waive.
This is a provision in an Act of Parliament, which, though to some extent (1) ; ; (2) 7 Wallace 542.
(3) ; ; (4) ; (1787) 2 T.R. 171 ; (5) , 124.
227 it may be for the benefit of the parties to the difference, must be regarded as inserted in the interest of the public also In that case there was a provision made by the Legislature that disputes mentioned in the section of the Act were to be determined by an Expert nominated by the Board of Trade and it was contended that though not in the strict technical sense estoppel, it was a waiver of the provisions introduced into the Statute for the benefit of private rights.
No doubt that was a case which proceeded on a question of jurisdiction but the judgment proceeded on the principle of waiver of a statutory provision inserted in public interest.
Thus the plea of waiver is unsustainable.
In our opinion, therefore, the judgment of the High Court is sound and the appeal must therefore be dismissed with costs.
Appeal dismissed. [/INST] The appellant was a tenant originally in the old building but after it was purchased by the respondent he vacated it and became a tenant under the respondent in the new premises.
In the old building the appellant had sub tenants, who shifted to the new premises along with the appellant when the latter occupied those premises.
One of the terms of the lease which were contained in a letter dated June 7, 1948, written by the respondent to the appellant provided: " In the shops in the old chawl which are with you, you have kept sub tenants.
We are permitting you to keep sub tenants in the same manner, in this place also.
" On April 20, 1949, the respondent brought a suit for ejectment against the appellant on the ground, inter alia, that section 15 of the Bombay Hotel and Lodging Houses Rates Con trol Act, 1947, prohibited sub letting and under section 13(1)(e) of the Act the landlord has the right to evict the tenant on account of sub letting.
The appellant 's defence was (1) that section 15 of the Act was confined to "any other law ", that it did not apply to contracts between the landlord and tenant and therefore it did not preclude an agreement between the parties as to sub letting, (2) that the parties were in pari delicto and therefore the respondent could not succeed, and (3) that the right of the respondent to sue for ejectment on the ground of sub letting being a personal right for his benefit, he must be taken to have waived it as he had allowed the appellant to sub let and, consequently, he could not evict him under section 13(1)(e) of the Act.
Held : (1) that the non obstante clause " Notwithstanding anything contained in any law " in section 15 of the Bombay Hotel and Lodging Rates Control Act, 1947, applies to contracts also as they would fall under the provisions of the law relating to contracts; (2) that the respondent was entitled to sue for ejectment, though the agreement recognised sub letting, as the suit was brought not for the enforcement of the agreement but to enforce the right of eviction which flowed directly from an infraction of the provisions of section 15 of the Act and for which the Act itself 28 218 provided a remedy.
The section is based upon public policy, and where public policy demands, even an equal participant in an illegality is allowed relief by way of restitution or rescission, though not on the contract; and, (3) that the plea of waiver which the appellant relied on cannot be sustained because as a result of giving effect to that plea the court would be enforcing an illegal agreement and thus contravene the statutory provisions Of section 15 Of the Act.
An agreement to waive an illegality is void on grounds of public policy and would be unenforceable.
Case law reviewed. </s> |
<s>[INST] Summarize the following judgement: vil Appeal No. 1204 (NT) of 1979.
From the Judgment and Order dated 3.2.1978 of the Madras High Court in Tax Case Petition No. 271 of 1977.
WITH Civil Appeal No. 4371 (NIT) of 1991.
Ms. A. Subhashini for the Appellant.
Ms. Janaki Ramchandran and A.T.M. Sampath for the Respondents.
The Judgment of the Court was delivered by RANGANATHAN, J.
Both these matters raise the same ques tion viz. whether the act of a member of a joint family by which he impresses his individual property with the charac ter of joint family property or "throws" it into the hotch potch of the joint family or "blends" it with the joint family property is a "disposition" within the meaning of the ( 'the ', for short).
Civil Appeal No. 1204/79 is an appeal from an order of the High Court declining to call upon the Income tax Appel late Tribunal to refer the above question for the decision of the High Court in view of certain earlier decisions of the Court.
The Madras High Court also declined to direct a reference on the above issue in T.C.P. No. 478 of 1977 and that is the subject matter of SLP (C) No. 335 of 1979.
In view of the pendency of Civil Appeal No. 1204/79, we grant special leave in SLP (C) No. 335/79 also.
Before discussing the correctness of the above conclu sion, it may be convenient to set out the background of facts in Civil Appeal No. 1204/79.
170 That appeal arises out of the estate duty assessment conse quent on the death of one Natesan Chetty, who died on 1.3.72.
He was the Karta of a Hindu Undivided Family (HUF) consisting of himself and his four sons.
He was also the owner, in his individual capacity, of five house properties in Madras.
On 18.6.1970 and 16.9.1970 he made declarations by which he impressed the above mentioned properties with the character of joint family properties and declared that they would thereafter belong to HUF of which he was the karta.
Subsequently, a partition was effected in the family in March 1971 in which two of the above mentioned properties came to the share of the deceased.
Sri Natesan Chetty had also borrowed a sum of Rs. 46,800 from the HUF out of the rental income from the above mentioned properties for being invested in the business earned on by him.
These borrowings were made between March 1970 and April 1971 and they were repaid in April 1971.
In completing the assessment to estate duty of the estate passing on the death of Natesan Chetty, the Assistant Controller of Estate Duty held that the declarations made by the deceased on 18.6.1970 and 16.9.1970 were "dispositions" within the meaning of the said expression as defined in the second explanation to section 2(15) of the .
These dispo sitions having been made for no consideration within the meaning of section 27 (1), amounted, according to him, to gifts and since the gift had been made within two years of the date of death, the subject matter of the gift was liable to be assessed as pan of the estate passing on death under section 9 of the .
As already mentioned, two of the properties had been allotted to the share of the deceased in the partition of 1971 and it is common ground that they passed on the death of the deceased as they belonged to him on the date of his death.
The question, however, was whether the other three properties which went to the other members of the family as a result of the declarations and partition were also liable to be included as pan of the estate deemed to pass on the death of the deceased by the application of section 9 read with S.27 (1) and section 2(15) of the .
The Assistant Controller answered this question in the affirmative and included their value, taken at Rs. 1,22,500, in the princi pal value of the estate.
As a consequence of his conclusion that the properties were liable to be included in the es tate, the officer ,,I so took the view that the sum of Rs. 46,800 being the loan taken by the deceased from the HUF and discharged within two years prior to the death should be added hack in computing the principal value of the estate by reason of the provisions of section 46 (2) of the .
It is not in dispute before us that though two points were thus involved in the assessment one regarding the inclusion of the value of 171 three items of property as part of the estate of the de ceased passing on his death and the other regarding the addition or disallowance of the debt of Rs. 46,800 they are inter connected and that, if the first question is answered in favour of the assessees, the second question will also stand answered likewise.
Dissatisfied with the conclusion of the Assistant Con troller, the accountable person preferred an appeal to the Appellate Controller of Estate Duty which was successful.
Thereupon the Department preferred an appeal to the Tribunal which, following a decision of the Madras High Court in Rajamani Ammal vs Controller of Estate Duty.
held that the sum of Rs. 1,22,500 could not be included in the value of the estate passing on the death and, consequentially, that the add back of Rs. 46,800 was also not justified.
Thereupon the Controller of Estate Duty applied, under section 64 (1) of the , for a reference to the Madras High Court, for its decision, of the following two questions: "1 Whether, on the facts and in the circumstances of the case, the Appellate Tribunal was right in holding that the trans action by which a Hindu impressed his separate properties [as] with joint family character could not be considered as a disposition under the second explanation to section 2(15) and section 27 of the ? 2.
Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that the addition of Rs. 1,22,500 made under section 9 and Rs. 46,800 made under section 46(2) could not be sus tained in the case of the deceased ?" The Madras High Court was of the opinion that the basic question at issue was covered by the earlier decisions of the Court in Rajamani Ammal vs Controller of Estate Duty, as well as a subsequent decision in Con troller of Estate Duty vs Smt.
Mookammal, The Court found no substance in the attempt, on behalf of the Revenue, to distinguish the above decisions on the strength of a decision of the Court in Ranganayaki Ammal vs CED, which had been confirmed by the Supreme Court in CED vs Kantilal Trikamlal, In this view of the matter the High Court de clined to call for a reference on the two questions above mentioned and dismissed the application for reference.
Hence the present Civil Appeal.
It is not necessary to set out the facts in SLP No. 335 of 1979 where the question involved is the same except that there was no subsequent partition after the blending and that no question regarding the deductibili ty of debts also arose in this case.
172 It will be seen that both these appeals are directed against the orders of the High Court declining to call for a reference.
It is fairly clear that the questions whether Rajamani Ammal was rightly decided and whether, if so, it needed reconsideration in the light of Kantilal Trikamlal are questions of law.
But, in view of the long lapse of time, we have considered the issues on merits and since we are satisfied that the High Court 's conclusion was correct, we dispose of the appeals straightaway without going through the formality of asking the Tribunal to make a reference to the High Court and then awaiting the High Court 's decision on the question of law referred.
The has ceased to be enforceable since 16.3.1985.
In the circumstances we need not elaborate ly set out the provisions of the and the principles behind them.
An outline of the provisions necessary for the determination of the issue before us will suffice.
The levies a duty on the aggregate market value of the proper ties passing on the death of any person (statutorily termed the 'principle value of the estate ').
It is manifest that the statute could be easily circumvented if duty were re stricted only to properties which actually pass on a death, for, various of devices could be thought of by which the property of such person could ostensibly be transferred to others sometime before the death, although it continues to be really under the domain and control of the deceased till the time of his death.
The statute therefore contains elabo rate provisions deeming certain properties to pass on death even though their beneficial enjoyment may not actually change hands at the time of his death.
One such item of properties which are deemed to pass on the death of a person are those which formed the subject matter of a gift made by him within a specified period preceding his death.
S.9 of the , which contains this deeming provision reads thus: "9.Gifts within a certain period before death (1) Property taken under a disposition made by the deceased purporting to operate as an immediate gift inter vivos whether by way of transfer, delivery, declaration of trust, settlement upon persons in succession, or otherwise, which shall not have been bona fide made two years or more before the death of the deceased shall be deemed to pass on the death".
In short, the provision enabled the Revenue to ignore any gift of property made by the deceased within two years of his death by creating a statutory fiction that properties so gifted passed on the death of the deceased, 173 although, in fact and in law, they ceased to be his a short time before his death.
This is the first fiction.
The legislature next proceeded to enact a second fic tion.
This was in order to bring into the net of taxation transactions which may not be comprehended within the legal concept of a gift because they are ostensibly made for some consideration.
It provided in section 27 that: "27.
(1) Dispositions in favour of relatives Any disposition made by the de ceased in favour of a relative of his shall be treated for the purposes of this as a gift unless (a) the disposition was made on the part of the deceased for full consideration in money or money 's worth paid to him for his own use or benefit; or (b) . . ; and references to a gift in this shall be construed accordingly: . . " Resort to this provision in the present case is needed for a purpose.
Admittedly, the deceased received no consideration for impressing the property with the character of joint family property.
If this amounted to a transfer, then S.9 alone would be sufficient to bring the properties within the net of taxation.
But it could be argued that a gift involves a 'transfer ' without consideration but the act of blending does not constitute a 'transfer ' [vide: Stremann vs CI.T., and a host of other cases under the Income tax ].
Section 27 helps the Department in the present case only in that it uses a much wider word, 'dispo sition ', and treats dispositions in favour of relatives as gifts.
The statute had to make provision for a third fiction as well as it could still be contended that the word 'disposi tion ' would not be sufficient to comprehend certain types of transactions.
To be on the safe side, therefore, the statute proceeded to enact a special definition of the word 'dispo sition ' in section 2(15) of the wide enough to rope in various kinds of acts in respect of property.
This provi sion, insofar as it is material for our present purposes, reads as follows: "2(15) 'Property ' includes any interest in property, movable or immovable, the proceeds of sale thereof and any money or investment for the time being representing the proceeds of sale and also includes any property con verted from one species into another by any method; Explanation I The creation by a person or with his consent 174 of a debt or other right enforceable against him personally or against property which he was or might become competent to dispose of, or to charge burden for his own benefit, shall be deemed to have been a disposition made by that person, and in rela tion to such a disposition expression 'proper ty ' shall include the debt or right created.
Explanation 2 The extinguishment at the expense of the deceased of a debt or other right shall be deemed to have been a disposi tion made by the deceased in favour of the person for whose benefit the debt or right was extinguished, and in relation to such a dispo sition the expression 'property ' shall include the benefit conferred by the extinguishment of the debt or right; The short case of the department now is this; the de ceased in these cases was the full and exclusive owner of the immovable properties in question.
By the act of blending he has convened them into HUF propertieS.
The properties no longer belong to him as an individual; they belong to the family thereafter with certain rights qua them in the other members of the HUF.
In other words, there 'has been an extinguishment, at the expense of the deceased, of a part, at least, of his rights in the properties with a correspond ing benefit to the others.
There has also been the creation, by the deceased, of a right in the others enforceable against the deceased and the properties e.g. the right to demand a partition.
The deceased, therefore, has made a disposition in favour of his relatives for no consideration within two years of his death.
The value of the properties, in respect of which he made the disposition in favour of the family, are, therefore, liable to be included in the principal value of the estate passing on his death under section 9 read with section 27 read with the Explanations to section 2(15).
This is quite apart from the fact that the value of the two properties, which subse quently fell to the share of the deceased at the partition in March 1971, are liable to be included as his own property actually passing on his death.
The question that we have to consider is, therefore, whether the legal incidence of the act of blending an be brought within the four corners of the two Explanations to section (15) of the .
It was precisely this question which had been considered by the Madras High Court earlier in Rajamani Ammal vs Controller of Estate Duty in deciding the issue, The High Court had the benefit of two earlier decisions of this Court in Goli Eswariah vs C G.T., and CG.T, vs Getti Chettiar., , 175 where this Court had held, in the context of the Gift Tax , that the act of blending and the act of a coparcener receiving, on partition of a HUF, less than the share he was entitled to receive would not constitute gifts.
The details of this decision need to be set out at some length.
Three contentions had been urged in Rajamani: (a) The first was that the act of blending constituted a 'disposi tion ' within the general meaning of that word.
Repelling this contention, the Court observed: "The learned counsel for the revenue placed strong reliance on the word "disposition" in section 27 (1) of the and contended that even an act of throwing of the self acquired property into the common stock of a joint Hindu family is included in that expression.
In a case arising under the Gift tax , the word "disposition" came up for consideration in the decision in Goli Eswariah vs Commis sioner of Gift tax, The Supreme Court held that the word "disposition" refers to a bilateral or a multilateral act and it does not refer to a unilateral act.
This decision of the Supreme Court approves the decision of this court in Commissioner of Gift tax vs
P. RangasamiNaidu, (F.B).
It is true that these decisions are under the Gift tax .
It is also true that the word "disposi tion" was considered in these decisions, with particular reference to the definition of "transfer of property" under that .
We are of the view that the word "disposition" in section 27(1) of the also refers to a bilateral or multilateral act.
The section refers to a disposition by the de ceased in favour of a relative and also speaks of partial failure of consideration.
Section 9 also refers to property "taken under a dispo sition".
Therefore, in our opinion the word "disposition" in section 27(1), however wide its ambit may be, would not include the uni lateral act of a person by which he throws his self acquired property into the common stock of the joint family.
" (b) It had been next contended, on behalf of the Revenue that, by throwing the self acquired properties into the common stock of the joint family, the deceased had created a right enforceable against him in favour of the sons or the other coparceners viz. the right to demand partition of the properties in question which they could not have exercised earlier.
This contention was rejected by the learned judges by applying the principle enunciated in an earlier Full Bench decision of the Court in CIT vs Rangasami Naidu, , where a similar contention had been repelled in the context of the Gift Tax .
The Court had there observed: 176 "With the father having absolute power of disposition inter vivos or testamentary in respect of his self acquisition and with no power in the son to interdict any alienation or disposition or call for partition, the son 's interest is next to nothing.
But the right is real.
It lies dormant.
It is this dormant right which the undivided sons have in their father 's property that entitles them to take the self acquired property of the father as coparceners to the exclusion of a divided son.
Juridically, it must be this dormant birth right that enables the father at his pleasure, without formalities, to deny to himself his independent power or predominant interest and look upon the property as the property of the family.
In our view, it is this birth right imperfect and subordinate to the special power and predominant interest of the father that comes into play and makes the interest of the son real and an interest in praesenti, when the father chooses to waive his rights.
At his pleasure and without reference to his son, if the father abandons or determines once for all not to exercise his independent power over the property, the son 's interest therein becomes a real and full fledged coparcenary right.
There is no vesting of rights here by the father on the son, but what is dormant springs to life but irrevocably at the pleasue of the father.
" (c) A third contention raised on behalf of the Revenue was that throwing the self acquired property into the common stock of the joint family would amount to "extinguishment at the expense of the deceased of a debt or other right" within the meaning of Explanation 2 to section 2 (15).
This conten tion was also repelled by the learned Judges.
They observe: "We are also of the opinion that throwing the self acquired property into the common stock of the joint family will not amount to "extin guishment at the expense of the deceased of a debt or other right" within the meaning of Explanation 2 to section 2 (15).
As seen from the judgments cited above, after the act of throwing into the common stock, it is the joint family or the coparcenary that owns the property.
The person who converted his indi vidual property into joint family property is a member of the Hindu joint family or the coparcenary and contines to be a member of the joint family.
His interest in 177 the erstwhile separate property would extend to the whole of the property even as of the other coparceners, for the interest of every coparceners extends over the whole of the joint family property.
There is community of interest and unity of possession between all the coparceners.
On the death of any one of the coparceners the others take the proper ty by survivorship.
It may be, the ultimate survivor is the person who threw the self acquired property into the common stock.
It, therefore, follows that there was no extinguishment of the right of the deceased and creation of a right in favour of another, in these of throw ing the self acquired properties into the common stock.
The decision in Valliammal Achi vs Controller of Estate Duty, relied on by the learned counsel for the revenue, and the decision in Kantilal Trikamlalv.
Controller of Estate Duty, , relied on by the learned counsel for the accountable person,related to what we may term as "unequal partitions".
They do not deal with cases of throwing the self acquired properties into the common stock.
We are not concerned with the case as to whether an unequal partition would amount to an extinguishment of a right and creation of a benefit within the meaning of Explanation 2 to section 2(15), which was the point that was considered in those cases.
" The above decision is clearly against the Revenue.
The Revenue, however, strongly relies upon a later decision of the same High Court in Ranganayaki Ammal & Ors.
vs Controller of Estate Duty, It is sub mitted that Ranganayaki Ammal has been af firmed by this Court in CED vs Kantilal Tri kamlal, a common judgment reversing Kantilal Trikamlal vs CE.D., and affirming Ranganayaki Ammal (Mad) and, therefore, Rajmani is no longer good law.
It is therefore, necessary to refer to these cases though the question involved there was somewhat different.
In Ranganayaki Ammal, the deceased Bheema Naidu and his widow and children constituted a Hindu undivided family.
A little within the period of two years prior to the death of the deceased, a partition was effected of the joint family properties and in that partition he took a smaller share instead of his legal half benefiting the other to the extent of the difference.
The same thing had happened in the case of Kantilal Trikamlal also.
Trikamlal Vadilal and his son Kantilal constituted a Hindu undivided family.
On 16th November, 1953, and instrument styled a "release deed" was executed between the two persons.
Under this instrument, a sum of rupees one lakh out of the joint family properties was taken by 178 the deceased m lieu of his share in the joint family properties and he relinquished his interest in the remaining properties of the joint family which were declared to belong to Kantilal as his sole and absolute properties and Kantilal also relinquished his interest in the amount of rupees one lakh given to the deceased and declared that the deceased was the sole and absolute owner of the said amount.
Trikamlal Vadilal died on 3rd June, 1955, that is within two years of the release deed.
The Assistant Controller found that, as on November 16, 1953, the deceased was enti tled to a one half share in the joint family properties, the value of which was Rs. 3,44,058, but had relinquished his interest in the joint family properties by receiving only a sum of rupees one lakh.
The officer, there fore, held that the difference between Rs.3,44,058 and Rs, 1,06,724 (being the amount received by the deceased together with inter est) was includible in the principal value of the estate of the deceased, being the value of a disposition by the deceased in favour of a relative for partial consideration.
This assessment was upheld eventually by the Su preme Court.
Both these decisions, thus, raised the question whether there was "gift" within the meaning of S.9 read with S.27 read with the Explanations to S.2(15) of the where a coparcener in a HUF, at the family parti tion, voluntarily agrees to accept properties of a value less than what he is entitled to claim, as a matter of right, at such partition.
This Court as did the Madras High Court in Ranganayaki Ammal, the Andhra Pradesh decision in Cherukuru Eswaramma vs C.ED., and the Punjab & Haryana High Court judgment in C.E.D.v.
Jai Gopal Mehra, answered the question in the affirmative.
This Court distinguished Go[i Eswariah, , S.C. and Getti Chettiar, , S.C. on the ground that the defi nition of 'disposition ' in Explanation 2 Sec tion 2(15) of the is much wider than the scope of that expression used in the Gift Tax Act.
We do not consider it necessary to set out here the full and de tailed reasoning of this Court in Kantilal Trikamlal 's case.
Before proceeding further, we may refer to a few later decisions of High Court relevant to the issue before ns.
The Allahabad High Court, in C.E.D.v.
Laxmi Bai, , a decision rendered after Kantilal Trikamlal, thought that the act of blending would not be a 'disposition ' within fie mean ing of:the .
In C.E.D vs Babub hai T. Panchal, (1982) 133 I.T.R.455, the Gujarat High Court had occasion to consider the question whether a transaction of release by a member of a Hindu Undivided family, within a period of two years of his death, of his interest in the family properties would amount to a 'disposition ' within the ' meaning of Explanation 2 to Section 2(15) of the .
The 179 question was answered in the negative.
In CE.D vs Satyanarayan Babulal Chaurasia, , the Bombay High Court, without touching the issue in detail, merely held, applying Goli Eswarian vs C G.T., (1970)76 I.T.R. 675 S.C, that the act of blending does not involve a transfer.
The question that falls for our considera tion now is whether, despite the extended definition in S.2(15) of the , as explained in Kantilal Trikamlal, the act of blending, unlike the voluntary acceptance of an unequal partition, fails outside the purview of the deeming part of the definition contained in the explanations.
We think the answer to this question has to be in the affirmative, Revert ing once again to the contentions of the Revenue in Rajamani (which are also the con tentions reiterated before us for the Revenue), it will be remembered that Rajamani specifically dealt with the language of the two explanations 10 S.2(15) and that its decision rested on three grounds: (i) a 'disposition ', as held on Goli Eswariah, S.C., has to be a 'bilateral ' or 'multilateral ' act or trans action, not a unilateral act; (ii) the act of blending does not create any right enforceable against the blender or his property but only brings to the surface rights already latent and inherent in the others; and (iii) the act of blending does not result in the extinguishment of any right of the blender with a correlative conferral of benefit on others.
our view.
Kantilal Trikamlal does not affect the validity of any of the three grounds set out above.
So far as the first ground is concerned, it does not touch upon the reasoning of Goli Eswariah, not to say doubt or dissent from it.
It refers to C.E.D. vs Kancherla Kesava Rao, , S.C. hinting at possible distinction and to Getti Chettiar (but without any hint of dis sent) and points out that the conventional construction of disposition ' has to submit to the larger sweep of hypothetical extension by definition" and that, unlike under the Gift Tax , "there is no limitation, environmen tal or by the society of words, warranting the whittling down of the unusually wide range of Explanation 2 to S.2 (15)".
In other words, the cumulative effect of Goli Eswariah, Getti Chettiar and Kantilal Trikamlal is that 'blending ' or 'partition ' will not be a 'disposition ' within the ordinary connotation of the expression but will be one if either of the Explanations to S.2(15) are attracted.
This takes us to the other two contentions dealt with in Rajamani as to the scope of the two explanations.
On this aspect, Rajamani has held that, unlike an 180 equal partition, the act of blending will not amount to a 'disposition ' attracting Ss.9 and 27 of the .
It distinguishes cases of unequal partition dealt 'with in Valliammal Achi, vs
C.E.D., and the High Court 's decision in Kantilal Trikam lal cited before it which have now received the imprimatur of this Court in Kantilal Trikamlal.
We are inclined to think that the distinction has been made on sound lines.
We do not consider it necessary to repeat or elaborate the rea soning in Rajamani on these two points as it succinctly epitomises well settled principles of Hindu Law.
Suffice it to say that we en dorse this reasoning and think that the High Court was right in holding, in the present cases, that the acts of blending did not result in the 'gift ' of immovable properties within the meaning of the statute and that Rajamani required no reconsideration because of Ranganayaki Ammal/Trikamlal.
This disposes of the question sought to be referred in these cases.
We should however like to advert to another aspect which may arise for consideration at some future date.
It may, perhaps, be possible to contend that, though a declaration of blending does not amount to a 'gift ', where the act of blending is followed up by a subsequent partition, the two transactions taken together do result in the extinguishment, at the expense of the deceased, of his rights in the properties which go to the share of other coparceners at the subsequent partition and that, if the two can be treated as parts of the same transac tion, Explanation 2 to S.2(15) may be attract ed.
But this, apart from being a totally new question of law not raised at any stage and not debated before us, would also require not only a closer look from the legal angle but also investigation into facts, particularly as to whether the act of blending and the subse quent partition can be treated, in law and on facts, as parts of a single transaction.
We, therefore, express no opinion on this issue.
For the reasons discussed above, these appeals fail and are dismissed.
But we make no order regarding costs.
Y.L. Appeals dismissed. [/INST] A common question of law that arises for determination in these appeals by special leave is whether the act of a member of a joint family by which he impresses his individu al property with the character of joint family property or "throws" it into the hotch potch of the joint family or "blends" it with the joint family property is a 'disposi tion ' within the meaning of the .
In Civil Appeal No. 1204 of 1979 the facts are: One Natesan Chetty who died on 1.3.1972, was the Karta of a Hindu Undi vided Family, consisting of himself and his four sons.
He owned five house properties in Madras, On 18.6.70 and 16.9.1970, he made declarations by which he impressed the properties with the character of joint family properties and further declared that they would thereafter belong to HUF of which he was the Karta.
Thereafter a partition was effected in the family in March 1971 in which two of the properties came to his share.
Sri Chetty had also borrowed Rs. 46,800 from HUF out of the rental income from the properties for his business purposes.
These borrowings were duly repaid in April, 1971.
In completing the assessment to estate duty of the estate passing on the death of Natesan Chetty, the Assistant Controller of Estate Duty held that the declarations made by the deceased on 18.6.70 and 16.9.70 were "dispositions" within the meaning of the said expression as defined in the second explanation to section 2(15) of the .
He further held that since the declarations were made with out consideration, they amounted to gift which had been made within two years of the date of death and hence liable to be assessed as part of the estate passing on death under sec tion 9 of the Act.
The two properties which had fallen to the share of the deceased passed on the death of the de ceased.
He accordingly included Rs. 1,22,500 the value of the other three properties also in 168 the principal value of the estate.
The Asstt.
Controller further held that a sum of Rs. 46,800 being the loan taken and discharged by the deceased should also be added back in computing the principal value of the estate by virtue of section 46(2) of the Act.
Dissatisfied with the conclusion of the Asstt.
Control ler, the accountable person preferred an appeal to the Appellate Controller of Estate Duty which was successful.
Thereupon the Department preferred an appeal to the Tribunal which, following the decision of the Madras High Court in Rajamani Ammal vs Controller of Estate Duty, held that the sum of Rs. 1,22,500 could not be included in the value of the estate passing on the death and consequently, that the add back of Rs. 46,800 was also not justified.
Thereupon the Controller of Estate Duty applied under Section 64 (1) of the Act for a reference to the Madras High Court for its opinion on the two questions.
The Madras High Court was of the opinion that the basic question at issue was covered by the earlier decisions of the Court in Rajamani Ammal vs Controller of Estate Duty and Control ler of Estate Duty vs Smt.
Mookammal, The High Court declined to call for a reference and dis missed the application for reference.
Hence the appeals by the Department.
Dismissing the appeals, this Court, HELD: "Blending" or "partition" will not be a 'disposi tion ' within the ordinary connotation of the expression but will be one if either of the Explanations to Section 2(15) are attracted.
[179 G] Unlike an unequal partition, the act of blending will not amount to a 'disposition ' attracting Ss. 9 and 27 of the Act.
[179 H 180 A] The High Court was right in holding that the acts of blending did not result in the 'gift ' of immovable proper ties within the meaning of the statute.
[180 C] Though a declaration of blending does not amount to a 'gift ' where the act of blending is followed up by a subse quent partition, the two transactions taken together do result in the extinguishment, at the expense of the de ceased, of his rights in the properties which go to the share of other coparceners at the subsequent partition and, if the two can be treated as parts of the same transaction the Explanation to Section 2 (15) may be attracted.
[180 D E] 169 Rajamani Ammal vs Controller of Estate Duty, ; Controller of Estate Duty vs Smt.
Mookammal, ; Rangabayaki Ammal vs CED, ; CED vs Kantilal Trikamlal, ; Stremann vs CIT, SC; Goli Eswariah vs CGT, ; C.G.T.v.
Getti Chettiar, ; Cherukuru Eswaramma vs
C.E.D, ; CED vs Jai Gopal Mehta, ; C.E.D., vs Laxmi Bai, ; C.E.D.v.
Babubhai T. Panchal, ; and C.E.D.v.
Satyanaravan Babulal Chaurasia, , referred to. </s> |
<s>[INST] Summarize the following judgement: 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. [/INST] Proceedings for acquisition of appellant 's land were initiated.
and a Notification under section 4(1) of the Land Acquisition Act, 1894 was published in the Government Ga zette.
The substance of the said Notification was published in the locality long after 40 days within which it was required to be published under Section 4(1) of 1894 Act 'as amended by the Andhra pradesh(Amendment) Act, 1983.
During the course of enquiry regarding the fixation of compensa tion, the appellant consented to his land being acquired provided he was given compensation in a lump sum.
However, before any award was made he withdrew his consent and filed a petition challenging the validity of the acquisition proceedings.
A Single Judge of the High Court dismissed his petition by holding that since he gave his consent to the acquisition of land he could not challenge the acquisition proceedings.
On appeal the decision of the Single Judge was confirmed by the Division Bench of the High Court.
Against the decision of the Division Bench of the High Court, an appeal was filed in this Court.
Allowing the appeal, this Court, HELD: 1.
The Single Judge and the Division Bench of the.
High Court were clearly in error in dismissing the respective writ petition and the appeal filed by the appel lant respectively.
The appellant 's statement that he was willing to accept the acquisition provided a lump sum com pensation was awarded to him amounted 115 116 in law to no more than an offer in terms of the Contract ACt.
The said offer was never accepted by the Land Acquisi tion Officer to whom it was made.
Leave alone, making the award of lump sum compensation, no award at all was made by the said officer awarding compensation to the appellant till the aforesaid offer was withdrawn by the appellant or even till the writ petition was filed.
Till the offer was accept ed there was no contract between the parties and the appel lant was entitled to withdraw his offer.
There was nothing inequitable or improper in withdrawing the offer, as the appellant was in no way bound to keep the offer open indefi nitely.
1117 G H, 118 A] 2.
The acquisition of the appellant 's land is bad in law because the substance of the Notification was not pub lished in the locality within forty days of the publication of the Notification in the Government Gazette.
The time limit of forty days for such publication in the locality has been made mandatory by section 4(1) of the 1894 Act as amended by the Andhra Pradesh (Amendment) Act, 1983.
Such non compliance renders acquisition bad in law.
[118 C] </s> |
<s>[INST] Summarize the following judgement: Civil Appeal No. 4380 of 1991.
From the Judgment and Order dated 10.4.1991 of the Madras High Court in Writ Appeal No. 38 of 1991.
K. Parasaran, K.V. Vijaya Kumar and V. Bala Chandran for the Appellants.
C.T. Selvamani and P.P. Tripathi for the Respondents.
The Judgment of the Court was delivered by K. RAMASWAMY, J.
Special Leave is granted.
This appeal is against the judgment dated April 4, 1991 of the Madras High Court.
A sum of Rs. 12,163.50 p. was alleged to have been misappropriated by the appellant (now he was acquitted of the charge of misappropriation) and for the recovery thereof his 13.07 acres of coffee estate situated in Semmanthaputhur village was brought to sale under the Tamil Nadu Revenue Recovery Act, 1894 (for short 'The Act ').
On March 30, 1979 the sale by auction was held by the Tahsildar.
The first respondent purchased for a sum of Rs. 12,225 and deposited a sum of Rs.2,000 being 15 per cent of the sale price.
Under Sec.
36 of the Act, the first respondent should have deposit ed the balance consideration within 30 days from the date of the auction.
On October 23,1981 the sale was confirmed and the balance amount was deposited on November 4, 1981.
The appellant filed an application but by proceed ing dated October 23, 1981, the Revenue Divi sional Officer overruled the objections and dismissed the application.
On appeal the Addl.
Distt.
Collector, Salem set aside the sale on October 13,1982.
The first respondent filed writ petition 184 No. 246 of 1984 in the High Court.
The learned Single Judge by judgment dated August 21, 1990 quashed the order of the Addl.
Collec tor.
On writ appeal, the Division Bench dis missed it.
Thus this appeal.
The formidable objection raised by the appellant is that it is mandatory under Sec.36 that the date and place of sale shall be published in the Gazette and that the publica tion did not mention the place of sale.
There fore, the sale is invalid in law.
It is also his further plea that it is equally mandatory that the balance sale consideration of 85% should be deposited within 30 days from the date of sale which was done only on November 4, 1981 long after one year and eight months of the date of sale.
The sale and Confirmation thereof are, therefore, illegal.
The learned Single Judge and the Division Bench held that Form 7A of the forms prescribed under the Act read with relevant provisions of the Board Standing Order No.41 does not prescribe the place of sale and that, therefore, the omis sion to specify the place of sale does not render the sale invalid nor an irregularity.
Shri Selvamam, the first respondent in person (himself a practising Advocate) contended that it is Form 7 and not Form 7A that would be applicable to the facts of the case.
Form 7 contains the place of sale and that it was complied with.
Therefore, the sale is not illegal.
It is also contended that the deposit was made after protracted correspondence and that, therefore, the non deposit within 30 days from the date of sale is not illegal.
At any rate, having accepted the amount, the authority acquiesced to the deposit/Therefore, the confirmation of the sale is not illegal.
We find no substance in either of the conten tions.
The contention that Form 7 and not Form 7A would be applicable to the facts, is not the case set up or argued either before the authorities or the courts below.
For the first time he cannot raise that plea in this Court.
That apart specifically the High Court (learned Single Judge and the Division Bench) held that it is form 7A that is applicable and that it does not prescribe publication of place of sale and therefore, the omission thereof does not render the sale invalid.
The High Court wholly misconceived of Sec.36.
A reading of Sec.
36 manifests that the word 'shall ' is mandatory in the context.
The publication is an invitation to the intending bidders to prepare and participate at the bid.
Unless there is a due publication of the date and place of sale, the intending purchasers cannot be expected to run after the Sale Officer to find out the date and place of sale and to participate thereat.
The Sale officer has a statutory duty and a responsi bility to have the date and place of sale men tioned in the notice and given 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.
Public auction also ensures fairness in actions of the public authorities or the sale 185 officers who should act fairly, objectively and kindly.
Their action should be legitimate.
Their dealing should be free from suspicion.
Nothing should be suggestive of bias, favouri tism, napotism or beset with suspicious fea tures of underbidding detrimental to the legitimate interest of the debtor.
The fair and objective public auction would relieve the public authorities or sale officers from above features and accountability.
Any infraction in this regard would render the sale invalid.
It is settled law that the word 'shall ' be construed in the light of the purpose the Act or Rule that seeks to serve.
It is not an invariable rule that even though the word 'shall ' is ordinarily mandatory but in the context or if the intention is otherwise, it may be construed to be directory.
The construc tion ultimately depends upon the provisions itself, keeping in view the intendment of the enactment or of the context in which the word 'shall ' has been used and the mischief it seeks to avoid.
Where the consequence of failure to comply with any requirement of a provision is provided by the statute itself, the consequence has to be determined with reference to the nature of the provision, the purpose of enactment and the effect of non compliance thereof.
In its absence the conse quence has to be determined with reference to the effect of the non compliance of the provi sion of the legislature.
Mere use of the word 'shall ' need not be given that connotation in each and every case that the provision would be invariably interpreted to be mandatory or directory.
But given due consideration to the object, design, purpose and scope of the legislation the word shall be construed and interpreted in that design and given due emphasis.
See.36 obligates the Sale Officer (Tahsildar) that he shall publish the date and place of sale.
The object thereby is an invita tion to the public at large that the notified property would be brought to sale at that specified time and place and that they are invited to participate, if they so desire.
To reiterate for emphasis and continuity that the object of the sale is to secure the maximum price and to avoid arbitrariness in the proce dure adopted before sale and to prevent under hand dealings in effecting sale and purchase of the debtor 's property.
As a responsibility as sale officer and a duty towards the debtor, the sale officer should conduct the sale strictly in conformity with the prescribed procedure under the statute and the rules as the case may be.
Such due and wide publicity would relieve the debtor from the maximum liability he owes and payable to the creditor.
This responsibility is not only salutory to vouchsafe bonafides in the conduct of the sale officer but also to ensure fairness in the procedure adopted in bringing the property of the debtor to sale.
Considered from this perspective the non compliance of Sec.35 i.e., omission to mention the place of sale world visit with deprivation of the property to the debtor 186 for an inadequate sale consideration due to absence of competing bidders.
Thus, we hold that specification of the date and place of sale shall be mandatory.
The forms either 7 or 7A are only procedural and they should be in conformity with Sec. 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 irregulate but also invalid.
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.
Confirmation of the sale should precede the deposit of the sale amount.
36 man dates 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 that period unless he is prevented by an order of the court or tribunal from so making depos it.
The 'non compliance renders the 15% depos it liable to forfeiture.
Therefore, the con firmation of the sale without compliance is illegal.
We hold that the sale is vitiated by manifest error of law and rightly set aside by the Addl.
Collector, Salem (Appellate Authority).
The High Court, both the learned Single Judge and the Division Bench committed menifest error of law in interfering with the order of the appellate authority.
The appeal is accordingly allowed.
The writ petition stands dismissed and that of the order of the Addl.
Distt.
Collector, Salem restored, but in the circumstances parties are directed to bear their own costs throughout.
S.B. Appeal allowed. [/INST] 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] </s> |
<s>[INST] Summarize the following judgement: ivil Appeal Nos.4554 to 4556 of 1991.
From the Judgment and Order dated 18.2.91 of the Madhya Pradesh High Court in Misc.
Petition Nos.
1707, 1746 and 1797 of 1986.
D.D. Thakur, C.S.Chazed, V.Gambhir, Surinder Kamail, S.K.Gambhir and N.N.Bhatt for the Appellants.
K.K. Venugopal, P.P.Rao, G.L.Sanghi, K.K. Sharma, Ashok K. Mahajan, L.R. Singh, D.Mehta, A.Vachher, R.N.Mittal and S.K.Mehta for the Respondents.
The Judgment of the Court was delivered by 249 RANGANATH MISRA, CJ.
Special leave granted.
Ujjain Development Authority is in appeal challenging the judgment of the Madhya Predesh High Court, Indore Bench, rendered in an application under Article 226 of the Consti tution annulling the notification issued under section 4 of the Land Acquisition Act of 1894 (hereinafter referred to as 'the Act ') by holding that scheme No.23 flamed under Madhya Pradesh Nagar Tatha Gram Nivesh Adhiniyam, 1973 does not operate against certain specified lands of the respondents.
It would appear that there was a similar notification under section 4(1) of the Act for acquisition of the self same properties along with some 600 hectares for the purpose of development of Ujjain, a historical town of Kalidas fame within Madhya Pradesh.
On 17.9.80 for different reasons the notification had been quashed.
In 1985 the impugned notifi cation was issued afresh under section 4(1) of the Act.
The High Court found that the requirements of the stat ute for completing the scheme for the purpose of which the acquisition had been made had not been complied with and, therefore, no action for acquisition under the scheme could be taken.
We have heard learned counsel for both the sides and must state that the reasoning given by the High Court is difficult to find fault with.
There are, however certain features which lead us not to sustain the decision of the High Court.
Admittedly there has been a notification under section 50(2) of the Adhiniyam.
Gazette Notification in respect of Scheme No. 23 has also been produced.
Though there is a finding that the pre conditions had not been complied with strictly under the statutory provisions, the High Court has not found any mala fides.
The Development Authority in question consisted of only one person.
His own order was perhaps taken by him and the governmental authori ties as the requisite resolution.
The respondents did not take the ground that there was no valid authority behind the scheme.
In the earlier petition also such a ground had not been raised.
The High Court called for the record and dis covered for itself that the statutory pre condition had not been complied with for the said scheme to operate.
If this question had been raised when the earlier writ petition was filed about 12 years back, the defect could have then been rectified.
It is the admitted case before us that the undisputed huge patch of land has been substantially improved upon under the scheme.
Cancellation of the notification does not bring the matter to an end.
Obviously fresh proceedings would be taken after complying with the defect if the judg ment of the High Court is allowed to stand.
If the acquisi tion is not made the respondents should enjoy usual benefits of their land on account of the 250 development of the neighbouring area and if the re acquisi tion is made there would be claim for higher compensation.
Looking at the matter from these different angles, we have thought it appropriate to allow the appeal, vacate the judgment of the High Court and allow the acquisition to remain subject, however, to the condition that the notifica tion under section 4(1) of the Act issued in 1985 shall be deemed to be one dated 1.1.88 and the market value of the land for the acquisition shall be determined with reference to that date.
We would like to point out that the potential value of the land has substantially enhanced on account of the improvements made pursuant to the notification which had been assailed.
We have directed the deemed date of the notification under section 4(1) to be postponed by almost three years and during this period the appellant has brought about the bulk of the improvements in the neighbourhood.
We direct that 25 per cent of the potential value of the land relatable to the improvements made by the appellant would only be available to the respondents, but in fixing market value all other legitimate considerations shall be taken into account.
We make it clear that we have no intention to extend the benefit under section 28A of the Act to the owners of the lands already acquired under the notification of 1980 or 1985 on the basis of our direction that the respondents ' lands shall be deemed to have been notified under section 4(1) of the Act on 1.1.
In fact our order must be deemed to be a separate notification for acquisition and, therefore, it would not be a common notifi cation for the purpose of section 28 A of the Act.
The respondents should, therefore, be entitled to this benefit that instead of the notification under section 4(1) of the Act being of 1985, it shall be treated to be of 1.1.1988.
The appellate authority is now entitled to take position in accordance with law subject to the valuation of the compen sation in the manner indicated.
There will be no order as to costs.
V.P.R. Appeals dis posed of. [/INST] A notification u/s.4(1) of the Land Acquisition Act, 1894 was issued for acquisition of the questioned lands along with some other lands for the purpose of development of the town.
On 17.9.80 the same was quashed.
In 1985 another similar notification was issued u/s 4(1) of the Act, for acquisition of the same lands for the Scheme No.23 framed under Madhya Pradesh Nagar Tatha Gram Nivesh Adhiniyam, 1973.
The respondents challenged the notification before the High Court under Article 226 of the Constitution.
The High Court allowed the writ petitions annulling the notification and holding that the Scheme No.23 did not operate against certain specified lands of the respondents.
It also found that the statutory requirements for completing the scheme were not complied with and therefore, no action for acquisition under the Scheme could be taken.
These appeals were filed by the Development Authority against the High Court judgments by special leave.
Disposing of the appeals, this Court, HELD: 1.
The pre conditions had not been complied with strictly under the statutory provisions.
The High Court has not found any malafides.
The Development Authority in ques tion consisted of only one person.
His own order was perhaps taken by him and the gov 248 ernmental authorities as the requisite resolution.
The respondents did not take the ground that there was no valid authority behind the scheme.
[249 E F] 2.
The huge patch of land has been substantially improved upon under the scheme.
Cancellation of the notifi cation does not bring the matter to an end.
Obviously, fresh proceedings would be taken after complying with the defect if the judgment of the High Court is allowed to stand.
If the acquisition is not made the respondents should enjoy usual benefits of their land on account of the development of the neighbouring area and if the re acquisition is not made there would be claim for higher compensation.
[249 G250 A] 3.
It is directed that the acquisition remain to subject, to the condition that the notification under sec tion 4(1) of the Act issued in 1985 shall be deemed to be one dated 1.1.88 and the market value of the land for the acquisition shall be determined with reference to that date, and that as the deemed date of the notification under sec tion 4(1) to be postponed by almost three years and during this period since the appellant has brought about the bulk of the improvements in the neighbourhood, 25 per cent of the potential value of the land relatable to the improvements made by the appellant would only be available to the re spondents, but in fixing market value all other legitimate considerations shall be taken into account.
There is no intention to extend the benefit under section 28 of the Act to the owners of the lands already acquired under the noti fication of 1980 or 1985 on the basis of court 's direction that the respondents ' lands shall be deemed to have been notified under section 4(1) of the Act on 1.1.1988.
[250 B D] </s> |
<s>[INST] Summarize the following judgement: Appeal No. 1345 of 1986.
From the Judgment and Order dated 29.8.1984 of the Madhya Pradesh High Court in Misc.
Petition No.613 of 1983.
Avadh Behari Rohtagi.
S.K. Gambhir, Vivek Gambhir and K.K. Mohan for the Appellants.
U.R. Lalit, S.S. Khanduja, Y.P. Dhingra, B.K Satija and Surinder Karnai for the Respondents.
The Judgment of the Court was delivered by 260 KASLIWAL, J.
In all the above appeals the parties are the same and the controversies raised are intimately con nected and dependent on each other, hence all the cases are disposed of by one single order.
Land measuring 19 bighas was granted by the ruler of the erstwhile State of Ratlam in favour of ancestors of respond ents Shantilal and Poonam Chand Pitaliyas (hereinafter referred to as 'Pitaliyas ') for installation of a Ginning factory.
Ancestors of Kantilal Jhalani and other appellants (hereinafter referred to as 'Jhalanis ') entered into part nership with Pitaliyas and the partnership started a Ginning factory on a portion of the above 19 bighas of land.
The names of Jhalanis and Pitaliyas were recorded in the revenue records in respect of the entire land.
The above 19 bighas of land had some different survey numbers but subsequently at the time of settlement in Ratlam in the year 1956 57, the numbers were changed to survey numbers 120 and 121.
Survey No. 120 comprised of 2 biswas and survey No.121 of 18 bighas and 18 biswas.
According to the Jhalanis in execution of a decree against Pitaliyas the above land was sold and Jhala nis purchased the said land in an auction.
Thereafter, an application was moved by the Jhalanis on 13th April, 1951 for mutation of their names before the Tehsildar in respect of the entire lands bearing survey Nos. 120 and 121 leaving such portion of the land on which the Ginniing factory was standing.
The Tehsildar vide his order dated 20th February, 1953 allowed the application and passed an order mutating the names of Jhalanis on the entire 19 bighas of land.
The said mutation was allowed on the basis of compromise between Pitaliyas and Jhalanis and also on the basis of a sale certificate issued by the Civil Court.
The Town Improvement Trust, Ratlam (hereinafter referred to as 'the Trust ') started acquisition proceedings for a housing scheme under the provisions of the Town Improvement Trust Act, 1960 (hereinafter referred to as 'the Act ') and issued a notification on 28th August, 1964 under Sec.68 of the Act.
Survey Nos. 120 and 121 were shown in the notifica tion leaving out some area of survey No.121.
In the acquisi tion proceedings, the Trust obtained possession of the acquired land on 21st March, 1968.
The Collector started svomotu proceedings under Sec.50 of the Madhya Pradesh Land Revenue Code, 1959 and issued a notice on 17th December, 1970 to the Jhalanis stating that the mutation proceedings did not appear to be legal.
It is not necessary to state the details of other proceedings by which the Jhalanis went to the higher authorities as ulti mately the matter came back to the Collector by remand.
The Jhalanis contested the proceedings before the Collector and prayed for the cancellation of the 261 notice dated 15th February, 1972 which was issued afresh by the Collector after the remand of the case to him.
The Collector ultimately by an order dated 31st March, 1977 set aside the order of mutation passed by the Tehsildar and gave a direction that the Tehsildar, Ratlam will again make the same entry in the revenue records which was done previously in respect of disputed land.
It was further directed that thereafter the Tehsildar will do proper investigation and analyse all the concerned facts and events which had hap pened in the case and take steps for making the record upto date.
Particularly he will see by which lease and on what conditions originally how much land was given for factory purpose by the State and whether that lease is effective or lapsed.
An appeal filed by the Jhalanis to the Additional Commissioner was dismissed by order dated 11th December, 1981.
The Jhalanis then filed an appeal before the Board of Revenue.
This appeal filed by the Jhalanis was allowed in their favour by the Board of Revenue by order dated 26th March, 1983.
The Board inter alia held that pending mutation proceedings, there was compromise between the parties, objections were withdrawn by the Pitaliyas and no appeal or revision was filed against the mutation order nor any suit was filed challenging the order of the Tehsildar.
The Pitaliyas then filed a writ petition before the High Court for setting aside the order of the Board of Revenue.
The High Court by order dated 29th August, 1984 allowed the Writ Petition and set aside the order of the Board of Revenue and restored the orders of the Additional Commissioner and the Collector.
Aggrieved against the aforesaid judgment of the High Court, the Jhalanis have filed Civil Appeal No. 1345 of 1986 by grant of Special leave.
In the acquisition proceedings the question of compensa tion was decided by the Tribunal constituted under Sec.73 of the Act.
The Tribunal by its order dated 30th November, 1973 held that Pitaliyas had no right to claim compensation and the Jhalanis alone were entitled to the entire amount of compensation.
The Order of the Tribunal was challenged by Pitaliyas, for apportionment of the amount of compensation, also by Jhalanis for increasing the amount of compensation and by the trust for reducing the amount of compensation by filing separate appeals in the High Court.
The High Court by its order dated 29th July, 1984 allowed the appeal filed by the Pitaliyas and held that they were entitled to claim compensation in equal proportion with Jhalanis.
The High Court dismissed the appeal filed on behalf of the Trust.
The High Court allowed the appeal filed by Jhalanis in part and increased the rate of compensation from 0.65 paisa per Sq.
10 0.75 paisa per Sq.
Aggrieved against the afore said judgment of the High Court in acquisition proceedings, the Jhalanis have filed Civil Appeal No. 1346 of 1986 and the Trust has flied appeal No.3426 of 1987 by grant of special leave.
262 We have heard learned counsel for the parties and have thoroughly perused the record.
The land in question was given by the Ruler of erstwhile State of Ratlam for establishing a Cotton Ginning factory at Ratlam.
The deed of partnership between the Pitaliyas and Jhalanis has not been produced on the record of this case but the admitted position is that the Janlabandi entries in the revenue records of the year 1921 22 show tllat survey Nos. 1326 to 1336, 1337/2 and 1340 to 1342 (subsequently changed to Survey Nos. 120 and 121), stood in the name of Keshrimal Vardhman Pitaliya and Keshrimalji Dhanrajji Jhala ni in equal shares.
Keshrimal Vardhman Pitaliya proprietor of firm Vardhman Keshrimal died sometime prior to 1932 and he left behind two sons Sagarmal and Vinayakrao Pitaliya who became the proprietors of Hindu Undivided Family firm Vard human Keshrimal.
Sagarmal and Vinayakrao Pitaliyas did not apply for the mutation of their names in the revenue re cords, after the death of their father Keshrimal Pitaliya.
Keshrimal Dhanraj Jhalani had to recover some amount from the firm Vardhman Keshrimal and he filed a civil suit for the recovery of the money against Sagarmal and Vinayakrao Pitaliyas.
A degree was passed in favour of Keshrimal Dhan raj Jhalani and they filed an application for execution of the decree.
In the execution case No. 161/42 the right, title and interest of Pitaliyas in the Ginning Factory were sold in auction for Rs.6541 and which was purchased by Keshrimal Dhanraj Jhalani on 2nd November, 1946.
A sale certificate was also issued in favour of Keshrimal Dhanraj Jhalani by the Civil Court Ratlam on 3rd October, 1950.
On the basis of this sale certificate Keshrimal Dhanraj Jhalani applied for mutation in the revenue records on 3rd April, 1951 before the Tehsildar, Ratlam.
Alongwith the application Keshrimal Jhalani filed a copy of the sale certificate and a certified copy of the Jamabandi of the land of Samwar year 20,35 (1948 49 A.D).
During the pendency of this mutation application Vinayakrao Pitaliya died leaving no heirs.
Sagarmal who was Karta of the Joint Hindu Family filed objections to the mutation application on 17th March.
It is important to note that in these objections Sagannal clearly raised the ground that in the auction proceedings only movable property of the factory was sold and as such Keshrimal Dhanraj Jhalani had no right to clam mutation of the entire agricultural land in his favour.
Thereafter an agreement took place between Sagarmal Pitaliya and Keshrimal Dhanraj Jhalani on 16th October.
This agreement made in writing was filed before the Tehsildar in which Sagarmal Pitaliya agreed to with draw his objections for the mutation of his share in 19 bighas of land.
in favour of Shri Keshri mal Dhanraj Jhalani in lieu of Shri Keshrimal Dhanraj JhaIa ni having agreed not to recover Rs.4941.
being the balance amount of decree passed in suit No.2 of 1932 against Pita liyas.
Apart from the 263 aforesaid compromise application the statement of Sagarmal Pitaliya was also recorded on 16th October, 1952 itself and Sagarmal clearly made a statement that he was withdrawing his objections as regards mutation in respect of his share in the land of 19 bighas and that he had no objection to the mutation of Shri Keshrimal Dhanraj Jahalani 's name in re spect of the land in dispute.
Thereafter, the Teshsildar rejected the objections filed by Sagarmal and passed an order on 20th February, 1953 granting mutations in the name of Shri Keshrimal Dhanraj Jhalani.
After this order of mutation passed by the Tehsildar on 20th February, 1953 Sagaramal or any other member of the family of Pitaliyas did not take any steps for challenging the aforesaid order of the Tehsildar.
It is further proved on record that thereaf ter names of Jhalanis alone was continued in the revenue records in respect of the entire 19 bighas of land.
The land acquisition proceedings then commenced in the year 1964 and possession over the land was taken by the Trust on 21st March, 1968 from Jhalanis.
The Collector took suo motu proceedings in 1970 and passed an order on 31st March, 1977 setting aside the order of the Tehsildar.
In the above set of circumstances Pitaliyas came forward and claimed half share in the compensation amount in land acquicition pro ceedings before the Tribunal.
The Tribunal rejected the claim of the Pitaliyas but High Court by order dated 29th August,1984 granted half share in favour of Pitaliyas taking the view that they were persons interested under the Town Improvement Trust Act.
On the same day by a separate judg ment the High Court set aside the order of Board of Revenue and maintained the order of the Additional Commissioner and the Collector passed in mutation proceedings.
After going through the entire record , 'red hearing the arguments at length, we are clearly of the view that the High Court went wrong in passing the impugned orders.
As already mentioned above from the year 1922 onwards the entries in the Revenue records in respect of 19 bighas of land was made in favour of Jhalanis and Pitaliyas both in equal share.
Jhalanis had a decree against Pitaliyas and in execution of said decree share of Pitaliyas was auctioned and was purchased by Jhalanis for a sum of Rs. 6541.
Sale certificate was also issued in favour of Jhalanis.
According to Jhalanis the half share of Pitaliyas in the land was also sold and on that basis an application was filed before the Tehsildar for ranration of the entire land in their favour.
According to Sagarmal Pitaliya who was also Karta of Joint Hindu Family, no such land was sold in auction.
11 may be noted that the bid in auction was for an amount of Rs.6541 but it did not satisfy the entire decretal amount and the balance of Rs.4941 still remained due against the Pitaliyas Judgment debtors.
In view of these circumstances a compromise took place between the parties according to which Sagarmal agreed to withdraw his objections in consid eration of 264 satisfaction of the aforesaid amount of Rs.4941 outstanding against him.
On 16th October, 1952 the compromise applica tion was filed in writing and statement of Sagarmal.
was also recorded in which he clearly agreed that he will not claim any right in the land and withdraw his objections and the amount of Rs.4941 was taken as satisfied and Jhalanis agreed not to recover the aforesaid amount of Rs.4941.
It is an admitted position that the order passed by the Tehsildar on 20th February, 1953 rejecting the objections of Sagarmal Pitaliya and mutating the name of Jhalanis for the entire land, was not challenged and the same became final.
Mr.U.R.Lalit, learned Sr.
Advocate appearing on behalf of Pitaliyas did not argue, that the compromise application filed on 16th October, 1952 and the statement recorded on the same day were forged or not genuine.
The only submission made by Mr. Lalit was that any order passed in mutation proceedings cannot confer any legal title in favour of Jhalanis nor such order can divest the ownership rights of Pitaliyas in the agricultural land.
We do not find any force in this submission.
Admittedly, there was a decree of a Civil Court and in execution of the same the properties were auctioned.
Even if there was any dispute as to whether any share of Pitaliyas in the land was sold or not in the auc tion proceedings, the same was settled at rest by making a compromise between the parties.
Not only that after the order of the Tehsildar passed as back as 20th February, 1953 the Jhalanis alone were recorded as full owners of the properties and also continued to remain in possession.
It is also proved that the Trust took possession from Jhalanis on 21st March, 1968 in the land acquisition proceedings.
It is no where proved on record that the Pitaliyas ever remained in possession of the land in question after 20th February, 1953 till the time they made a claim of half share in the compensation before the Tribunal.
The Collector in our view had no justification at all to have initiated such proceed ings suo motu in 1970 after 17 years of the order passed by the Tehsildar.
Even under the law of limitation no suit for possession could have been maintained after 12 years by Pitaliyas and they were not entitled to any share in the amount of compensation.
There was also no Justification for entering the names of pitaliyas in the revenue records and to set aside the order of the Tehsildar dated 20th Febru ary,1953 after 17 years, As already mentioned above, Tehsil dar was perfectly justified in passing the order dated 20.2.1953 on the basis of the sale certificate, as well as compromise application and the statement of Sagarmal marie before him on 16.10.52.
Now, we shall deal with Civil Appeal No.3426 of 1987 filed by the Trust.
It was argued on behalf of the appel lant Trust that in the erstwhile State of Ratlam one bigha was equivalent to 21511 Sq.
as per Jantri 265 Milan Bigha Va Ekad prepared in 1911 and the lower courts wrongly calculated the area acquired by treating one bigha equivalent to 22500 Sq.
as now prevalent according to the prescribed standards.
We do not find any force in the abvoe contention.
No such argument was raised before the Tribunal and it was raised for the first time before the High Court.
The High Court rejected the aforesaid argument on the ground that admittedly at present one bigha was equivalent to 22500 Sq.
and no contention was raised before the Tribunal that one bigha was equivalent to 21511 Sq.
prevalent in the erstwhile State of Ratlam.
This being a controvercial question of fact and the other side having given no chance to lead any evidence on this point it was difficult to rely on the Jantri Milan Bigha Va Ekad.
The High Court thus held that the compensation for one Bigha of land would be calculated as equivalent to 22500 Sq.
We do not find any error in the aforesaid view taken by the High Court.
It was next contended on behalf of the Trust that the Tribunal had awarded compensation at the rate of 0.65 paisa per Sq.
and there was no ground or justification for the High Court to have increased the same at the rate of 0.75 paisa per sq.
There is some force in the above conten tion raised on behalf of the Trust.
The High Court in in creasing the rate of compensation to 0.75 paise per Sq.
Ft. has given no reason.
The High Court in this regard observed as under: "Thus, after going through the oral as well as documentary evidence and material placed on record and after beatifing the learned counsel for the Trust as also appellant No. 1 and also after going through the case law cited, the question arises at what rate compensation should be paid for the land which is compulso rily acquired.
It cannot be disputed that either party No. 1 nor party No.2 was making any use of the land at the time of acquisi tion.
On the contrary it was being treated as a waste and fallow land having no importance.
There is no satisfactory evidence placed on record to prove that in fact the land was being used as an agricultural land from which certain income was derived.
It appears this land gained importance only when the trust proposed to acquire the same.
Therefore, though the principles enunciated in the various authorities cited and referred to above are not disputed, we are of opinion that considering the facts and circumstances of the case it would be just, proper and reasonable to award compensation for the land at the rate of 0.75 p. per square feet and not more be cause the price fetched for the developed lands also the price fetched for the small plots of land cannot be taken 266 into consideration for purposes of comparision in respect of such big lands.
After all for a developed plot of land the cost of development has also to be taken into consideration which cannot be said to be quite meagre, Besides, admittedly there is a big nala in the land in question, that there was no direct independent road to approach this land and that even the factory was also not working for several years before the acquisition.
All these facts indi cate that the potential value of the land even as a building site was not so high.
" Learned Distt.
Judge after considering large number of documentary evidence placed on record by both the parties arrived to the conclusion that the fair market price of the acquired land on 22nd August, 1964 was 0.65 p. per Sq.
The finding recorded by the Distt.
Judge in this regard was based on adequate material placed on record and supported by good reasons.
In our view the High Court went wrong in increasing the rate from 0.65p.
to 0.75p.
without any valid reasons whatsoever.
As a result of the findings recorded above, the appeal Nos. 1345 and 1346 of 1986 filed by Kanti lal & Ors. are allowed.
The appellants therein would alone be entitled to claim the entire amount of compensation.
The orders of the High Court, Addl.
Commissioner and Collector in the matter of mutation proceedings are set aside and that of the Board of Revenue is upheld.
The appeal No.3426 of 1987 filed by the Trust is allowed in part.
The market value determined by the High Court at the rate of 0.75p.
per Sq.
is set aside and the rate determined by the District Judge at 0.65p.
per Sq.
Ft. is maintained.
In the facts and circumstances of the case, there would be no order as to costs.
G.N. Appeals allowed. [/INST] The land in question was granted by the Ruler of erst while State of Ratlam in favour of ancestors of respondents (Pitaliyas) for installation of a ginning factory.
Ancestors of appellants (Jhalanis) entered into a partnership with Pitaliyas and started a ginning factory on a portion of the said land.
In the revenue records, in respect of the entire land the names of Jhalanis and Pitaliyas were entered.
According to the Jhalanis in execution of a decree against Pitaliyas the above land was sold and Jhalanis purchased the said land in an auction.
On an application moved by the Jhalanis, the Tehsildar passed an order mutat ing the names of Jhalanis in respect of the entire land.
The said mutation was allowed on the basis of compromise between the parties and on the basis of a sale certificate issued by the Civil Court.
The Town Improvement Trust started acquisition proceed ings for a housing scheme and acquired certain lands includ ing the land in question.
The Collector started suo motu proceedings, issued notice to the Jhalanis and set aside the order of mutation passed by the Tehsildar.
An appeal pre ferred by the Jhalanis before the Addi 258 tional Commissioner was dismissed.
The Board of Revenue allowed the further appeal and held that pending mutation proceedings, there was compromise between the parties, objections were withdrawn by the Pitaliyas and no appeal or revision was filed against the mutation order nor any suit was filed challenging the order of the Tehsildar.
The Pita liyas then filed a writ petition before the High Court, which was allowed and the order of the Board of Revenue was set aside.
Against the said judgment of the High Court, the Jhalanis have preferred an appeal before this Court.
In the acquisition proceedings the Tribunal gave a finding that Pitaliyas had no right to claim compensation and Jhalanis alone were entitled to the entire amount of compensation.
The order of the Tribunal was challenged by the parties by filing separate appeals before the High Court.
The High Court allowed the appeal filed by Pitaliyas and held that they were entitled to claim compensation in equal proportion with Jhalanis; it dismissed the appeal filed on behalf of the Trust for reducing compensation and allowed the appeal filed by Jhalanis in part and increased the rate of compensation from 65 paise per sq.ft to 75 paise per sq.ft.
Aggrieved against the aforesaid judgment of the High Court in acquisition proceedings, the Jhalanis and the Trust have filed the other two appeals before this Court.
Allowing the appeals on the questions of validity of the mutation made and entitlement to receive compensation, and partly allowing the appeal on the question whether enhance ment of compensation was justified, this Court, HELD: 1.1.
There was a decree of a Civil Court and in execution of the same the properties were auctioned.
Even if there was any dispute as to whether any share of Pitaliyas in the land was sold or not in the auction proceedings the same does not survive after the compromise between the parties.
In the order of the Tehsildar passed as back as 20th February, 1953 the Jhalanis alone were recorded as full owners of the properties and they continued to remain in possession.
The Trust took possession from Jhalanis on 21st March, 1968 in the land acquisition proceedings.
There is nothing on record to show that Pitaliyas ever remained in possession of the land in question after 20th February, 1953 till the time they made a claim of half share in the compen sation before the Tribunal.
[264 D, E] 1.2.
The Collector had no justification at all to have initiated the proceedings suo motu in 1970 after 17 years of the order passed 259 by the Tehsildar.
Even under the law of limitation no suit for possession could have been maintained after 12 years by Pitaliyas and they were not entitled to any share in the amount of compensation.
There was also no justification for entering the names of Pitaliyas in the revenue records and to set aside the order of the Tehsildar dated 20th February, 1953, after 17 years.
The Tehsildar was perfectly justified in passing the order dated 20.2.1953 on the basis of the sale certificate, as well as compromise application and the statement made before him on 16.10.1952.
[264 F, G] 2.
One bigha is equivalent to 22500 sq.
and no contention was raised before the Tribunal that one bigha was equivalent to 21511 sq.
ft. prevalent in the erstwhile State of Ratlam.
For the first time, this point was raised before the High Court.
This being a controversial question of fact and the other side did not have the chance to lead any evidence on this point, the High Court rightly negatived it and held that the compensation for one bigha of land would be calculated as equivalent to 22500 sq.
[265 A C] 3.
The District Judge after consideriug large number of documentary evidence placed on record by both the parties arrived at the conclusion based on good and valid reasons that the fair market price of the acquired land on 22nd August, 1964 was 65 paise per sq.
The High Court went wrong in increasing the rate from 65 paise to 75 paise without any valid reasons whatsoever.
In the circumstances, enhancement ordered by the High Court is set aside and the compensation determined by the District Judge at the rate of 65 paise per sq.
ft. is maintained.
[266 C E] </s> |
<s>[INST] Summarize the following judgement: on (Civil) No. 1022 of 1989.
(Under Article 32 of the Constitution of India).
Sri Ramulu, A.T.M. Sampath, A.K. Srivastava and Raju Ramchandran for the Petitioners.
Tapas Ray, R.N. Sachthey, P.S. Poti, Yogeshwar Prasad, V.C. Mahajan, U.N. Bachswat, A.S. Nambiar, Kailash Vasudev, Ms. A. Subhashini, Hemantika Wahi, Vasudata Talib, Anip Sachthey, T.T. Kunhikannan, Ms. Rachna Gupta, Mrs. section Dik shit, Ms. section Janani, Ms. Urmila Kapoor, M. Veerappa, K.H. Nobin Singh, Ashok Singh, S.K. Agnihotri, Aruneshwar Gupta, K.C. Bajaj, Ms. Renu George, K. Chaudhary, A.S. Bhasme, H.S. Munjral, G.K. Bansal, R. Mohan, P.K. Manohar, Ms. section Vasude van, B. Parthasarthy, V. Krishnamurthy, A.K. Panda, J.R. Das, D.K. Sinha, D.N. 210 Mukherjee, Gopal Singh, P. Chowdhary, Indra Makwana and K. Swamy for the Respondents.
The Judgment of the Court was delivered by/1 RANGANATH MISHRA, CJ.
This application under Article 32 of the Constitution is by the All India Judges, Association and its working President for reliefs through directions for setting up of an All India Judicial Service and for bringing about uniform conditions of service for members of the subordinate judiciary throughout the country.
Rule having been granted, notice was issued to the Union of India and all the States and Union territories.
Most of them have responded by making returns to the Rule.
A few of the States have taken the stand that they would accept whatever this Court ultimately decides while others have placed their view points and yet some others have objected to the reliefs claimed.
Mr. Sri Ramulu, Chairman of the All India Judges, Asso ciation personally appeared at the hearing.
Mr. Raju Ram chandran on our request appeared to support the petition as amicus curiae.
At the hearing the standing Counsel for the several states and Union Territories have also been heard.
The plea for setting up of an All India Judicial Service was not seriously pressed and reliefs on the following heads were claimed: 1.
Uniformity in the Judicial cadres in the different States and Un ion Territories; 2.
An appropriate enhanced uniform age of retirement for the Judicial Officers throughout the country; 3.
Uniform pay scales as far as possible to be fixed; 4.
Residential accommodation to be provided to every Judicial Officer.
Transport facility to be made available and conveyance allowance provided.
Adequate perks by way of Library Allow ance, Residential Office Allowance and Sump tuary Allowance to be provided.
Provision for inservice training to be made.
Administration of justice and orgamsation of courts was a provincial subject under the Government of India Act, 1935.
The Constitution adopted 211 the same scheme by providing in Entry 3 of List 11 of the Seventh Schedule the subject of administration of justice, constitution and organisation of all courts excepting the Supreme Court and the High Courts as a State subject.
It was only under the 42nd Amendment in 1977 that Entry 3 from List I1 was deleted and the subject as such was taken as Entry 11 A in the Concurrent List.
This had become necessary on account of the recommendation of the Law Commission that an All India Judicial Service should be set up.
Prior to independence, the District Judge used to be invariably a Member of the Indian Civil Service and his position in the district was superior to that of the Dis trict Magistrate.
This position continued until the Indian Civil Service came to be abolished around 1946 47.
This long association of the Civil Service with the judicial manning had led to service conditions of both to be tied up.
Crimi nal justice at that time was handled by Magistrates who belonged to the Executive.
Under the Constitution, the concept of Rule of Law came to be accepted and developed.
Article 50 prescribed the guideline of separating the judiciary from the executive in the public services of the State.
This position is the outcome of recognition of the fact that the judiciary is a class separate from the executive.
The control over the subordinate judiciary has been vested in the High Court and the administrative control has been construed to be complete and exclusive.
Yet, in certain aspects, and particularly in regard to service conditions, the distinction has not been maintained; That is why very often when any specific aspect relating to conditions of service is taken up or benefits for judicial service is considered, comparative basis between the two is adopted for review.
It is high time that this aspect is appreciated and the administrative authorities remain alive to it.
We shall first deal with the plea for setting up of an All India Judicial Service.
The Law Commission of India in its 14th Report in the year 1953 said: "If we are to improve the personnel of the subordinate judiciary, we must first take measures to extend or widen our field of selection so that we can draw from it really capable person.
A radical measure suggested to us was to recruit the judicial service entire ly by a competitive test or examination.
It was 212 suggested that the higher judiciary could be drawn from such competitive tests at the all India level and the lower judiciary can be recruited by similar tests held at State level.
Those eligible for these tests would be graduates who have taken a law degree and the requirement of practice at the Bar should be done away with.
Such a scheme, it was urged, would result in bringing into the subordinate judiciary capa ble young men who now prefer to obtain immedi ate remunerative employment in the executive branch of Government and in private commercial firms.
The scheme, it was pointed out, would bring to the higher subordinate judiciary the best talent available in the country as a whole, whereas the lower subordinate judiciary would be drawn from the best talent available in the Slate".
The Commission proceeded to further state: "Recruitment to the higher judiciary at the all India level in the manner suggested would be a powerful unifying influence and serve to counteract the existing growing regional tendencies.
In this connection, attention may be drawn to the observations made by the States Reorganisation Commission in regard to the creation of the All India Services as a major compelling necessity for the nation.
The Commission observed:. "The raisond"etre of creating All India Services, individually or in groups, is that officers on whom the brunt of responsibility of administration will inevitably fail, may develop a wide and all India outlook .
The present emphasis on regional languages in the Universities will inevitably lead to the growth of parochial attitude, which will only be corrected by a system of training which emphasises the all India point of view . .
It has not been very easy for us to balance these consid erations, but we are definitely of the view that proportion of the higher judiciary should be recruited by competitive examination at the all India level so as to attract the best of our young graduates to the judicial service.
This measure will enlarge the field of selec tion and bring into file higher judicial service a leaven of brilliant young men who will set a higher tone and level to the subor dinate judiciary as a whole.
The personnel so recruited will be subjected to . 'm intensive training.
The rest of the higher judiciary should, in our view, be recruited in part directly from senior members of the Bar, and partly by promotion from the lower subordinate judiciary".
213 Dealing with the same subject from a different angle, the Commission proceeded to say: "The great advantage that the Indian civilian had, was the intensive and varied course of training which he had to undergo.
At the time of his first entry into service, his training was confined to matters pertaining to the revenue and criminal administration alone, but when he was taken over to the judicial side, generally an equally intensive training in civil law was given to him for a period of not less than eighteen months.
There can be no doubt that a similar intensive judicial train ing given to a judicial officer who possesses a law degree can be of the greatest value . .
Indeed, it can be claimed that a planned and systematic training such as is contemplated by us for the judicial officer selected for the Indian Judicial Service may be more effective than the uncertain and spasmodic training which may be received during the course of a few years practice at the Bar.
These and the other considerations referred to earlier have led us to the conclu sion that in the interests of the efficiency of the subordinate judiciary, it is necessary that an All India Service called the Indian Judicial Service should be established.
This will need action being taken in the manner provided by Article 312 of the Constitution".
The Law Commission has reiterated this view in subse quent reports.
It took nearly 20 years for the Government to take follow up action on the basis of the recommendation and that led to the amendment of the legislafive entries as already referred to.
This proposal of the Law Commission and the follow up governmental action led to consultation and dialogue in the Conference of Chief Justices of the High Courts but many of the High Courts were of the view that setting up of an All India Judicial Service would affect the constitutional scheme of control of the High Courts over the subordinate judiciary and in particular Article 235 of the Constitution.
Article 233 makes provision for appointment of District Judges and requires that appointment to such posts has to be made by the Governor of the State in consultation with the appropriate High Court.
Article 234 provides for recruitment of persons other than District Judges to judicial service by prescribing that appointments shall be made by the Governor of the State in accordance with the Rules made by him in that behalf after consulting the State Public Service Com mission and the High Court exercising the jurisdiction in relation to such State.
The post of District Judge has ordinarily been equated with the senior scale status in the All India Services.
It was 214 perhaps not contemplated by the Law Commission that on appointment members of the proposed All India Judicial Service were to hold the post of District Judge.
Like all other All India Services the initial recruitment could be to a lower rank equal to civil judge and after serving in such post for a reasonable time appointment to the post of Dis trict Judge could be made.
Since the Law Commission itself was of the view that a percentage should be filled up by direct recruitment from the Bar, the scheme envisaged by the Law Commission would not require amendment of Article 233.
It is to be examined whether any alterations in Article 234 would be necessary or recruitment to All India Service could be made by appropriate amendment of the State Rules contem plated under that Article.
Control over the subordinate courts under the constitu tional mechanism is vested in the High Court.
Under Article 235, the provision is that the control over District Courts and courts subordinate thereto vests in the High Court.
The main objection against implementation of the recommendation of the Law Commission relating to the setting up of the All India Judicial Service was founded upon the basis that control contemplated under Article 235 of the Constitution would be affected if an All India Judicial Service on the pattern of All India Services Act, 1951, is created.
We are of the view that the Law Commission 's recommendation should not have been dropped lightly.
There is considerable force and merit in the view expressed by the Law Commission.
An All India Judicial Service essentially for manning the higher services in the subordinate judiciary is very much necessary.
The reasons advanced by the Law Commission for recommending the setting up of an All India Judicial Service appeal to us.
Since the setting up of such a service might require amendment of the relevant Articles of the Constitution and might even require alteration of the Service Rules operating in the different States and Union Territories, we do not intend to give any particular direction on this score par ticularly when the point was not seriously pressed but we would commend to the Union of India to undertake appropriate exercise quickly so that the feasibility of implementation of the recommendations of the Law Commission may be examined expeditiously and implemented as early as possible.
It is in the interest of the health of the judiciary.
throughout the country that this should be done.
II The Law Commission in the 14th Report also referred to the various designations provided for judicial officers working in the different States and Union Territories It observed: 215 "In view of the more or less uniform functions performed by the judicial officers so various ly designated, it would, we think, be advisa ble to aim at a uniformity of designation.
There is, however, a fundamental difference in the general scheme of distribution of judicial business between the tower grade of officers (munsifs) on the one hand, and the higher grade of officers (subordinate judges) on the other.
The first has limited pecuniary juris diction while the second, generally speaking, has unlimited pecuniary jurisdiction.
We would, therefore, suggest that the State Judi cial Service Class II should consist of civil judges who should be designated as civil judges of the senior and junior divisions.
Officers corresponding to munsifs would be designated as civil judges (junior division) and those corresponding to subordinate judges would be designated as civil judges (senior division)".
If reference is made to Article 236 of the Constitution, it would be noticed that the expression "District Judge" has been defined to include Judge of a City Civil Court, Addi tional District Judge, Joint District Judge, Assistant District Judge, Chief Judge of a Small Causes Court, Chief Presidency Magistrate, Additional Chief Presidency Magis trate, Sessions Judge, Additional Sessions Judge and Assist ant Sessions Judge.
This definition in Article 236 covers the higher section of the State Judicial Service both in the civil and criminal sides.
The definition is only inclusive and in implementing the recommendations of the Law Commis sion to simplify the designations by saying that the hierarchy of subordinate judicial officers would be District Judge or Additional District Judge, below him Civil Judge (Senior Division) and below him Civil Judge (junior divi sion) does not go against the constitutional scheme nor does it require any amendment of the Constitution.
If there be any laws operating in the States, perhaps the same may have to be appropriately modified or altered if the uniformity recommended by the Law Commission has to work out.
We are inclined to adopt the view of the Law Commission.
On the civil side, the State Judicial Service, therefore, should be classified as District or Additional District Judge, Civil Judge (senior division) and Civil Judge (Junior division).
On the criminal side, there should be a Sessions Judge or Additional Sessions Judge and below him there should be the Chief Judicial Magistrate and Magistrates provided for in the Code of Criminal Procedure.
Appropriate adjustments, if any, may be made of existing posts by indi cating their equivalence with any of these categories.
The process of bringing about such uniformity would require some time 216 and perhaps some monitoring.
We direct that the Ministry of Law and Justice of the Union Government would carry on the monitoring activity and all the States and Union Territories would follow the pattern indicated above by March 31, 1993.
III One of the issues debated at the hearing related to the age of retirement.
The Constitution has fixed the age of retirement of Judges in the High Courts and the Supreme Court at 62 and 65 years respectively.
There is no constitu tional prescription of the age of retirement of the members of the subordinate judiciary and in India that is controlled by the relevant rules obtaining in the different States and Union Territories and it is 58 years at present excepting in the State of Kerala where the age of superannuation is 55 years for all State Government employees including the members of the State Judicial Service.
It is the claim of the petitioners that the age of retirement of the officers of the subordinate judiciary should be fixed at 60 years inasmuch as the basic qualifica tion for recruitment to the service requires every officer to have in the minimum a bachelors degree in law which is acquirable after becoming a graduate.
Thus, while for normal civil service a graduate is eligible, for recruitment to the judicial service a minimum further period of three years becomes necessary to acquire the basic qualification.
In many of the states and the Union Territories, for recruit ment to the post in the judicial service a basic period of experience at the Bar is a pre requisite.
Thus, while for the civil service the age of recruitment varies between 25 and 28 years, for judicial service at the basic level most of the States permit entry upto the age of 32.
In some of the States where direct recruitment of judicial officers for an in between stage is permitted, the age of entry is even upto 35 years.
Article 233(2) of the Constitution provides: "A person not already in service of the Union or of the State shall only be eligible to be appointed a District Judge if he has been for not less than seven years an advocate or a pleader and is recommended by the High Court for appointment".
Keeping this constitutional requirement in view in respect of direct recruitment for District judge, entrance is permitted upto a later age in many States.
Thus at the point of entry into service there is a marked distinction between civil service and the judicial service.
Notwithstanding these special features the history of the service 217 would show that no distinction has been maintained in regard to the age of retirement between officers of the civil service and the officers of the judicial service and over the years the same rule has been applied to both.
This Court in Moti Ram Deka, etc.
vs The General Manager, North East Frontier Railway, Maligaon, Pandu, etc.; , pointed out: "In regard to the age of superannuation, it may be said prima facie that rules of superan nuation which are prescribed in respect of public service in all modern States are based on considerations of life expectation, mental capacity of the civil servants having regard to the climatic conditions under which they work, and the nature of the work they do.
They are not fixed on any ad hoc basis and do not involve the exercise of any discretion.
They apply uniformity to all public servants fail ing under the category in respect of which they are framed . . " Nature of work is thus one of the considerations rele vant to fixing the age of retirement.
There is a marked distinction between the nature of work which executive officers and judicial officers are called upon to discharge.
The work of the judicial officers is usually sedantry while that of the executive officers in volves a lot of physical movement.
This is particularly so in the lower cadres of both the services.
In view of this feature physical fitness is more important for an executive officer than in case of a judicial officer while in case of judicial officers, there is thus necessarily more of a mental activity than physical.
Experience is an indispens able factor and subject to the basic physical fitness with growing age experience grows.
As already indicated, retirement age for High Court Judges is 62 years.
A sizable portion of the manning in the High Court is done by elevating District Judges and those who are elevated continue upto the age of 62 years like directly elevated members of the Bar to the High Court.
There are certain services in the States where retire ment is fixed at the age of 60 years taking into account the special type of work the officers are called upon to per form.
For instance, throughout the country teachers of universities are allowed to serve upto 60 years of age.
Employees under some of the corporations also go upto the age of 60.
Scientific Research Officers are also allowed in many cases the benefit of 60 years age of retirement.
Mr. Poti for the State of Kerala raised serious objection to raising 218 the age of retirement of judicial officers to a common level of 58 years by contending that this would lead to unrest in the other services of the State and everyone would press for the age of retirement being enhanced to 58.
In fact, Kerala had once experimented with the enhanced age for all and has reverted back to the age of 55.
The main ground raised by Mr. Poti to resist the proposal of enhancement is that in the State of Kerala the level of literacy is high and unem ployment is acute.
If the age of retirement is enhanced the scope of the unemployed to get employment would be adversely affected.
We are not impressed by the submission of Mr. Poti on this score.
The total number of judicial officers of every category in the State may not exceed 3,000 or so.
This certainly is not such a big number that might create unem ployment problem in the event of the age of superannuation being brought to the all India level of 58 or even enhanced to a higher limit.
The Law Commission in its 14th Report dealt with this aspect at page 2 13 of the report and said: "There is yet another reason why the question of the age of retirement of the subordinate judiciary should be treated differently from that in other State Services.
As noticed earlier a judicial officer enters service at a comparatively higher age than a recuit to the executive or administrative services.
It would, therefore, be proper that the retire ment age of a judicial officer should be relatively higher than that of an executive officer, so as to enable him to serve for the full number of years if he retains his fitness and capacity of work till he reaches such higher age.
We, therefore, recommend that the retirement age of the subordinate judiciary in all States should be raised to 58 years.
Such a measure will tend to raise the tone and morale of the judicial service as a whole.
It will also be consistent with our recommendation to raise the age of retirement of High Court Judges to 65 years.
" The recommendation that superannuation should be fixed at 58 for judicial officers was made at a time when in public services retirement was prescribed at the age of 55.
Considering the enhancement of the longevity of human life and taking all other relevant considerations into account, all the States and all the Union Territories have now en hanced the age of retirement to 58 years excepting, as already pointed out, in the case of the State of Kerala.
We are of the view that on the logic which was adopted by the Law Commission and for the reasons which we have 219 indicated the age of retirement of judicial officers should be 60 years.
We accordingly direct that appropriate altera tions shall be made in the Rules obtaining in the States and Union Territories in respect of judicial service so as to fix the age of retirement at 60 years with effect from December 31, 1992.
We have given a long period so that appropriate amendments may be made in the meantime.
IV We shall now deal with the claim for appropriate pay scales and on, as nearly as possible, uniform basis.
The 14th Report of the Law Commission dealt with this matter at page 163 of the report and said: "It is the matter of scales of pay and remu neration, the judiciary compares unfavourably with the executive branches of the Government.
It is true that, generally speaking, the scales of pay of the judicial officers and the corresponding executive officers are identical in many of the States.
However, it has to be remembered that the executive officers are, by and large, recruited at a much younger age than the judicial officers.
The entrant to the judicial services is required to be a graduate in law and in most of the States it is also necessary that he should have practised for a certain number of years at the Bar.
On the other hand, for recruitment to the executive branches of Government service, a degree in arts or science is, generally speaking, suffi cient.
In the result, a person entering the judicial service does so when he is about 26 or 27 years of age and at a time when his contemporaries who have entered the executive service of the Government have already ac quired a certain seniority in the service and have come to draw a higher salary.
It will thus be seen that a person joining the judi cial service starts with a lower remuneration than what he would have received if he had entered the executive service for a few years earlier.
It has also to be noted that owing to the lesser proportion of superior posts in the judicial service promotions come less quickly to the judicial officers, and a person who has entered the service as a munsif, assuming that he is fit and fully qualified, takes much longer time to become a district judge than would an equally competent deputy collector to reach the position of a collector.
Again the judicial officer, having started at a later age, has a shorter span of service than the executive officer and this affects his pension and other retirement benefits".
220 We had called for the prevailing pay scales of the different judicial cadres in the States and the Union Terri tories and the same have been made available to us.
We found that there is wide violence in the pay structure prevailing in the various States and Union Territories and for the same nature of work performed by the judicial officers they are remunerated differently.
It is difficult for us on the data now placed to get into the exercise of fixing the appropri ate pay scales.
We suffer a handicap in the absence of full details necessary for fixing the appropriate pay scales on comparative basis.
Again, we are apprehensing that if we enter into the matter and say something in a final way, it is possible that in some States benefits which are now available may be taken away or adversely affect some offi cers.
For these reasons, we do not propose to finally exam ine the propriety of the existing pay scales nor do we direct any pay scales to be fixed.
A Pay Commission for the Central Government employees was appointed about 8 years back and on the basis of its Report the revised benefits have been given effect to from January 1, 1986.
Following that pattern, most of the States have either given the Central scales or appointed their own commissions or committees and given the revised benefits to their officers.
It appears that with an interval of 10 years or so such a commission is being appointed and pay scales are being reviewed.
Such an exercise is likely to be under taken within less than three or four years.
We are of the view that the claim on this score can be better handled when the pay commissions or committees in the States are set up to review the position.
We direct that as and when such commissions or committees are set up in the States and Union Territories hereafter, they separately examine and review the pay structure of judicial officers keeping in view all relevant aspects.
V. Under this head, however, we would like to deal with the claim for various allowances.
Unlike the administrative officer, the judicial officer is obliged to work for long hours at home.
When he reserves a judgment he has usually to prepare the same at his residence.
For that purpose, he has to read the records as also the judicial precedents cited by counsel for the adversaries.
Even otherwise with a view to keeping himself uptodate about the legal position he has to read judgments of his own High Court, other High Courts and of the Supreme Court.
He has also to read legal journals.
The judicial officer very often has no provision of an officer at his residence.
Unless a reasonable allowance is provided for maintaining an office, it became very difficult for him to undertake the various aspects 221 of the exercise referred to above.
We are of the view that a residential office allowance should be admissible to every judicial officer.
The same for the civil judge (junior division) and the civil judge (senior division) be fixed at the rate of Rs. 250 per month and officers of the higher category the monthly allowance should be Rs. 300.
Law books, Law repons and legal journals are indispens able to a judicial officer.
They are in fact his tools and in case a junior officer has to discharge his duties satis factorily he has to get acquainted with these.
His ability to perform his duty to a considerable extent depends upon his reading habit and devoting a sizeable working time to reading all this literature.
Reading habit is indispensable to a judicial officer and possession of a small library of one 's own helps generation of the proper reading habit.
Law books and Law journals have in particular become very costly these days.
One standard Law journal for the decisions of the High Court, another for the decisions of this Court and one or two Standard Law journals on the average would cost about Rs. 200 a month.
There is no existing system of providing Law books and journals to the officers of the lower judiciary.
Many of the judicial officers in the lower ranks have their working places away from the district headquarters where the seat of the district judge is located.
There is perhaps at every district headquarter a small library but the number of books is small and more than one copy of many of the books would not be available.
Therefore, whether it is at the district headquarter or in areas away therefrom, effective library facility is not available.
We are of the view that a uniform pattern of small library should be provided to every judi cial officer.
We accordingly direct that such a library shall be made available by 30.6.2992 to every judicial officer and the District Judge should have provision made in his budget for the said residential library for every judi cial officer under his control.
The High Court should moni tor this aspect effectively so that without loss of time, a handy library may be at the disposal of every judicial officer.
The District Judge is the principal judicial officer of the district.
Ordinarily every revenue district has a dis trict judge and his seat is located at the headquarter.
In heavy stations, the district judge has a team of additional district judges to assist him.
There would also be a number of judicial officers of lower categories working at the headquarters.
It is the obligation of the district judge to operate as the captain of the team both under his direct supervision at the headquaters and in respect of the offi cers located in different areas within his district.
Of late, lower or subordinate courts are being established in the outlying and rural interior.
It is the 222 obligation of the district judge to inspect the outlying courts, maintain the proper judicial tempo and temper of functioning in his district and be responsible for the efficient running of the system.
In many of the States the prevailing practice is that the district judge takes a monthly meeting with the collec tor and district magistrate and the superintendent of po lice.
He also meets the members of the Bar.
Now and then he meets his judicial officers those at the headquarters as also the others who are in the interior.
It is desirable that the district judge devotes some time as frequently as possible and at least once a week to meet the judicial officers beyond the working hours, discusses working prob lems of his officers and forms his own opinion about now the work is being done.
A weekly assessment of such perform ance generates even temper of judicial activity and upholds the tempo being maintained at the appropriate level.
There is not yet any definite system of judicial training in most of the States and Union Territories.
A judicial officer with his first posting or until he acquires adequate experience requires guidance.
It should ultimately be the obligation of the district judge to provide the same, we are of the view that to the post of district judge a monthly allowance of Rs. 300 by way of sumptuary allowance should be available to enable him to extend small courtesies at such meetings.
The chief judicial magistrate does some of these activities in respect of the magistrates handling criminal work.
In our opinion he should be entitled to a sum of Rs. 200 per month by way of sumptuary allowance.
We are aware of the fact that under the conditions of Service Act of High Court Judges, a sumptuary allowance of Rs. 300 is payable to them every month.
Now that we have directed that Rs. 300 should be fixed for the district judges, we command that the sumptuary allowance fixed for the High Court Judges may be enhanced suitably.
These allowances shall be payable from 1.4.1992.
We would like to add that this allowance is intended for utilisation to the full extent for entertaining judicial officers in connection with preformance of duty and would not be considered as a perk for being included in the hands of the recipient as his income.
VI Provision of an official residence for every judicial officer should be made mandatory.
A judicial officer to work in a manner expected of him has to free himself from undue obligations of others, particularly owners of buildings within his jurisdiction who ordinarily may have litigations before him.
This is mostly the case in rural areas where outstation judicial courts are located.
We are aware of cases where a rural court is located in the building belong ing to a lawyer or a client.
Even the residential accom 223 modation of the judicial officer belongs to people of that category.
Such a situation often gives occasion to personal embarrassment to the judicial officer and it has to be avoided.
Expenditure on residential accommodation in a family budget is not ordinarily to exceed 15 per cent of the month ly income, otherwise it becomes difficult for the person concerned to make his two ends meet.
A judicial officer who is not provided residential accommodation is obliged to go in for rented accommodation.
In view of the prevailing rate of rent, the smallest accommodation that can be taken may often cost 75 per cent to 100 per cent of the monthly sal ary, a situation which cannot be contenanced by any logic.
It is absolutely necessary that appropriate conditions should be provided for the judicial officer and he should have reasonable mental peace in order that he may perform his duties satisfactorily.
Rendering justice is a difficult job.
It is actually a divine act.
Unless the judicial offi cer has a reasonable worry free mental condition, it would be difficult to expect unsoiled justice from his hands.
Very often building projects are undertaken for provid ing residential accommodation to public officers but the requirement of the judicial ofricer is not taken into ac count for one reason or the other.
Control of the State purse is in the hands of the executive.
As appropriate share of construction expenses is not being provided towards accommodation of judicial officers, they do not have any quota in the building projects.
As a result of this over the years at several places throughout the country residential accommodation for judicial officers has turned out to be scanty.
Many judicial officers dread postings in Metropoli tan towns as residential accommodation is not available and the rental would be exorbitant in respect of private accom modation.
The cost of living also becomes heavy.
We take judicial notice of the fact that the Planning Commission of the Central Government is considering accept ance of the subordinate judiciary as a plan subject.
Provid ing adequate residential accommodation should be considered as a priority.
Until adequate government accommodation is available, it should be the obligation of the State at the instance of the High Court to provide requisitioned accommo dation for every judicial officer according to his entitle ment and recovery of not more than twelve and a half per cent of salary of the officer towards rent should be made and the balance should be met by the State Exchequer.
We would emphasise the need of provision of a separate and exclusive office room as an indispensable component of every such official residence and the accommodation should take into account this feature.
As a long term measure, Govern ment accommodation should be constructed to meet the 224 need of the judicial officers at their respective stations.
This should be a matter for the Planning Commission to review and the State Governments to cooperate and undertake construction activity.
The Governments of the States and the Union Territories would take some time to implement this pan of the direction.
In case for some reason, the Planning Commission does not come forward to take up the matter before January, 1992, the Chief Justice of every High Court should set up a committee with him as Chairman where two senior Judges of the Court and the Secretaries of Finance, Law and Works should be members and annual planning of construction of residences should be made.
We accordingly fix the outer limit of December 31,1992 when this part of the direction would become fully operative.
VII We shall now deal with the claim for transport.
In most of the States the district judge has been provided a motor car and in some of the States the chief judicial magistrate is also provided with such transport, be it a car or a jeep.
There are still some States like Rajasthan, Haryana and Madhya Pradesh where provision of a car for every district judge has not yet been made.
We direct that every district judge should be provided with a car by March 31, 1992, and it shall be the obligation of the other States where such facility has not open provided to ensure the same within the time limit.
The chief judicial magistrate is a touring officer apart from doing trial work as a magistrate.
Mandate of the Code of Criminal Procedure requires him to undertake some tout ing.
The quality of criminal justice administration would very much depend upon the mobility of the chief judicial magistrate.
We, therefore, direct that in such States and Union Territories where provision of independent transport for the chief judicial magistrate has not been made, the same should be done by September 30, 1992.
We are.
further of the view that in stations with more than four judicial officers a common transport should be provided for the purpose of taking them from the residence to the court and back and meeting their other official purposes and such vehicle should be placed under the control of the seniormost officer in the pool.
The arrangement should be that for every five officers, there should be a vehicle.
Provision for this aspect should be made by March 31, 1993.
This direction has become necessary as judicial officers should not be forced to travel along with litigants and lawyers.
In many sensitive cases, records are carried by them.
Often judgments to be pronounced are also taken by them.
In some disturbed areas, instances of harassment to judicial offi cers taking advantage of their using 225 common transport have come to light.
We direct that every State and Union Territory would file a compliance report in the Registry of this Court in respect of these three aspects within one month from the expiry of the outer limit indicat ed for each of them.
There are several outlying courts where the number of officers would not be more than five.
We do not intend to provide any independent transport for them but such officers who ask for loan for purchase of a two wheeler automobile should immediately be provided the same.
Appropriate funds should be made available for such purpose.
A pool car should have 60 litres of petrol per month and a judicial officer owing a scooter would be entitled to an allowance of Rs. 200 per month.
We are alive to the fact that our directions involve a burden on the State Exchequer.
Perhaps some justification as to why these expenses should not be grudged must now be indicated.
Professor Pannick in his book entitled "Judges" has observed: "Judges do not have an easy job.
They repeat edly do what the rest of us seek to avoid; make decisions".
He further added: "Judges are mere mortals but they are asked to perform a function that is utterly divine".
Professor Harold Laski once wrote to Justice Oliver Holmes that 'he wished that people could be persuaded to realise that judges are human beings; it would be a real help to jurisprudence '.
The Trial Judge ' is the kingpin in the hierachical system of administration of Justice.
He directly comes in contact with the litigant during the proceedings in Court.
On him lies the responsibility of building up of the case appropriately and on his understanding of the matter the cause of justice is first answered.
The personality, knowl edge, judicial restraint, capacity to maintain dignity are the additional aspects which go into making the court 's functioning successful.
Krishna Iyer, J. described the scene very graphically thus: "Law is a means to an end and justice is that end.
But in actuality, Law and Justice are distant neighbours; sometimes even strange hostiles.
If law shoots down justice, the people shoot down law and lawlessness paraly ses development, dis 226 rupts order and retards progress.
This is the current scene".
It calls for serious introspection.
The Law Commission in its 14th Report said: "If the public is to give profound respect to the judges the judges should by their conduct try and observe it; not by word or deed should they give cause for the people that they do not deserve the pedestal on which we expect the public to place them.
It appears to us that not only for the performance of his duties but outside the court as well a Judge has to maintain an aloofness amounting almost to self imposed isolation".
The Commission quoted Sir Winston Churchill who had said: "A form of life and conduct far more severe and restricted than that of ordinary people is required from judges and though unwritten has been most strictly observed.
They are at once privileged and restricted; they have to present a continuous aspect of dignity and conduct".
These prescriptions for a Judicial Officer, therefore, result in a restricted life.
Austerity is a quality to be practised by every Judge personally as also in his public functioning.
This necessarily gives rise to a situation where the Judge must have patience, perseverance and pains taking habits.
In order that a Judge may be able to put in these aspects into his public functioning it is absolutely necessary that the Judge enjoys freedom from personal wor ries.
A reasonable salary, appropriate allowances and man ageable living conditions are, therefore, required to be provided.
For quite a few years the conditions of service of Judges of the superior Courts and those of the public offi cers in the Executive side had been put at par excepting such provisions as were contained in the Government of India Act, 1935 or under the Constitution.
For the first time it was accepted that separate Conditions of Service should be provided and Conditions of Service Acts for the High Court and Supreme Court Judges were separately enacted in 1954.
Those statutes and the Schedules therein even now contain provisions to the effect that matters for which provisions have not been made by the statutes are to continue to be the same as provided for the officers in the Executive wing as named.
In a democratic polity the role of the judiciary is indispensable.
The efficient functioning of the Rule of Law under the aegis of which our democratic society can thrive requires an efficient, strong and enlightened judiciary.
And to have it that way the Nation has to pay to the price.
There was a time when a 227 Judge enjoyed a high status in Society.
Very often a suc cessful Member of the Bar earning a high income favourably responded to the invitation of the Chief Justice to accept Judgeship.
Thai no more is the position.
The sense of pro fessional obligation has died down for reasons more than one; but perhaps the most eloquent one is loss of social status of the judge.
The effect of this position in respect of the higher judiciary has its impact on the subordinate judiciary too.
Half a century back a Judicial officer even of the lowest category enjoyed great social status.
He was looked upon with a sense of reverence.
He led a life in tune with the recommendations of the Law Commission in its 14th Report.
He had the training of limiting his wants and man aged to live a contented life by making his two ends meet with limited resources of small salary.
That philosophy of life has vanished or is fast vanishing.
A great social change has over taken today 's society.
Life has become competitive; demands of life have increased; and aptitudes have changed.
Therefore, today a judicial officer always looks at life in a comparative way with administrative officers of his age.
Professional income at the Bar has tremendoulsy swelled up.
Very often counsel 's fee per day equals to the salary of a judicial officer for a full month or even a longer period.
This great disparity affects peace and equilibrium in the judicial operation.
As early as 1958 the Law Commission said: "As we shall point out, later the problem has since grown in dimension because there is unmistakable testimony that the standards of the judicial officers recruited from the Bar and other sources have during recent years fallen in a substantial degree for various reasons.
This has been almost the unique view expressed by the witnesses .before us.
It is thus obvious that no scheme of review of judicial administration will be effective or worthwhile unless the basic problem of provid ing a trained and capable judicial personnel is satisfactorily solved" This was adequate and timely notice to the Government and its people.
Instead of attending to the problem then, 33 long years have been allowed to roll by and what was then said as a growing dimension has grown to devalue the system.
Its resurrection has, therefore, become more costly.
It is perhaps useful to recall here the prophetic warn ing sounded by Robert Ingersoll: "A government founded on anything except liberty and justice cannot stand.
All the wrecks on either side of the stream of time, all the wrecks of the great cities, and all the nations that 228 have passed away all are a warning that no nation founded upon injustice can stand.
From the sand enshrouded Egypt, from the marble wilderness of Athens, and from every fallen or crumbling stone of the once mighty Rome, comes a wail as it were, the cry that no nation founded on injustice can permanently stand".
Society, therefore, must understand the problem.
Solu tion to the problem would depend upon realisation of the fact that the more capable people at the Bar are not willing to accept offers of judicial appointments.
The plea that the other wings, in the States would demand inprovement in their scales of pay is not a relevant feature at all when the problem is viewed from this angle.
We hope and trust that society would generate the appropriate understanding of the matter and no Government would come forward to take the stand that if the pay scales and perks of the Judicial officers are improved similar demands would come from other wings of Government.
Even in the existing system there are some posts which carry special pay that is on account of the fact that there is more of basic equipment demanded and the nature of work is different and judicial service satisfies both and, there fore, Government can always prescribe a higher pay scale for Judicial Officers.
In 1986 there was a Conference of the Chief Justices of the High Courts, Chief Ministers and the Law Ministers of the States called by the then learned Chief Justice of India and the Ministry of Law and Justice.
The then Chief Justice of India and the Law Minister of the Central Government tried their best to make the State Governments and the Union Territories understand the basic problem.
While some improvements came as a result of the Conference for the higher judiciary, the claim of the subor dinate judiciary remained unattended.
We would like to point out that dispensation of justice is an inevitable feature in any civilised society.
Mainte nance of law and order require the presence of an efficient system of administration of criminal justice.
Under the Civil Code, Court fee is realised under the Court Fee Act.
For some time demand to abolish it has been made but the States have abandoned the idea on account of the demand by the States of compensation from the Centre in case of aboli tion of Court fee.
Court fee is not a tax and is a fee as has been ' held by a Constitution Bench of this Court in Secretary, Government of Madras, Home Department and another vs Zenith Lamps and Electrical Ltd., ; In Paragraph 29 of this 229 Judgment Sikri, CJ speaking for this Court pointed out: "It seems to us that the separate mention of 'fees taken in Court ' in the Entries referred to above has no other significance than that they logically come under Entries dealing with administration of Justice and courts.
The draftsman has followed the scheme designed in the Court Fees Act, 1870 or dealing with fees taken in court at one place.
If it was the intention to distinguish them from fees in List II Entry 66, surely some indication would have been given by the language employed.
If these words had not been separately mentioned in List I, Entry 77 and List II . . .
It seems plain that 'fees taken in court ' are not taxes, for if it were so, the word 'taxes ' would have been used or some other indication given.
It seems to us that this conclusion is strengthened by two considerations.
First, taxes that can be levied by the Union are mentioned in List I from Entry 82; mentioned in List II taxes that can be imposed start from Entry 45.
Secondly, the very use of the words 'not including fees taken in any court ' in Entry 95 List 1, and Entry 66 List II, shows that they would otherwise have fallen within these Entries.
It follows that 'fees taken in court ' cannot be equated to "Taxes".
If this is so, is there any essential differ ence between fees taken in court and other fees ? We are unable to appreciate why the word 'fees, bears a different meaning in Entry 77, List I and Entry 96 List I or Entry 3 List II and Entry 66 List II.
All these relevant cases on the nature of 'fees ' were reviewed in India Mica and Micanite Industries Ltd. vs The State of Bihar.
; at page 1186, by Hegde J. and he observed: "From the above discussion, it is clear that before any levy can be upheld as a fee, it must be shown that the levy has reasonable co relationship with the services rendered by the Government.
In other words, the levy must be proved to be a quid pro quo for the serv ices rendered.
But in these matters it will be impossible to have an exact co relationship.
The correlationship expected is one of a general character and not as of arithmetical exactitude".
It is not our intention to raise a dispute on this aspect.
We adverted to these authorities and the views of this Court to bring support for the view that what is col lected as Court fee at least be spent on the administration of Justice instead of being utilised as a source of general revenue 230 of the States.
Undobutedly the income from court fees is more than the expenditure on the administration of Justice.
This is conspicuously noticeable from the figures available in the publication in the Ministry of Law and Justice.
What we have said above should be adequate justification for making provision with a view to making judicial func tioning viable.
We would like to recall a part of the funeral oration on Mr. Justice Story delivered some 150 years back by Daniel Webster: "Justice, Sir, is the greatest interest of man on earth.
It is the ligament which holds civilised beings and civilised nations togeth er.
Wherever her temple stands, and so long as it is duly honoured, there is a foundation for social security, general happiness and the improvement and progress of our race.
And whoever labours on this edifice with useful ness and distinction.
whoever clears its foundations, strengthens its pillars, adorns its entaplateures, or contributes to raise its august dome still higher in the skies, con nects himself in name and frame and character with that which is and must be as durable as the frame of human society".
To those who control the purse what Webster said should provide the direction.
VIII One of the claims advanced before us was for provision of inservice training for judicial officers.
This we consid er as a must.
In fact, the Law Commision in one of its recent reports has advised that inservice institutes should be immediately set up.
About a year back the Union Govern ment had proposed the setting up of an All India Inservice Institute but nothing more has been done about it.
In some of the States like Uttar Pardesh and Andhra Pradesh, such inservice institutes are functioning.
We are of the view mat in service institutes are indispensable for the upkeep of the efficiency of judicial service.
We direct that an All India institute of Inservice Training for higher officers of the judiciary including the district judges and a State level institute for training of the other member, of the subordinate judiciary within each of the States and Union Territories or one common institute for more than one State or Union Territory should be set up within one year from now and at any rate nor later than December 31, 1992.
This has to be orgainised by respective High Courts.
231 Before we part, we must indicate with all the emphasis at our command that the system has to be saved as for a civilised society an enlightened independent judiciary is totally indispensable.
The High Court must take greater interest in the proper functioning of the subordinate judi ciary.
Inspection should not be a matter of casual atten tion.
The Constitution has vested the control of the subor dinate judiciary under Article 235 in the High Court as a whole and not its Chief Justice alone.
Every Judge should, therefore, take adequate interest in the institution which is placed under the control of the High Court.
We may point out that that in what Lord Aktins said in Devi Prasad Sharma and others vs The King Emperor, 70 IA 216.
And it has been approved by a Constitution Bench in Baradakanta Misra vs The Registrar of Orissa High Court and Another, ; It should be remembered by all Judges of the High Coart viz., that the administrative control of the subordinate courts of the states vest nor in the Chief Justice alone but in the Court over which the Chief Justice presides.
Surger, CJ of the American Supreme Court once said: "A sense of confidence in ,he Courts is essen tial to maintain the fabric of ordered liberty for a free people and it is for the subordi nate Judiciary by its action and the High Court by its appropriate control to ensure it".
It is useful to remember what President Lin coln often said: "If you once forfeit the confidence of your fellow citizens you can never regain their respect and esteem".
It is time we mention about society 's expectation from the Judicial Officers.
A judge ought to be wise enough to know that he is fallible and, therefore, even ready to learn and be courageous enough to acknowledge his errors The conduct of every judicial officer should be above reproach.
He should be conscientious, studious, thorough, courteous, 'patient, punctual, just, impartial, fearless of public clamor, regardless of public praise, and indifferent to private, political or partisan influences; he should administer justice according to law, and deal with his appointment as a public trust; he should not allow other affairs or his private interests to interfere with the prompt and proper performance of his judicial duties, nor should he administer the office for the purpose of advancing his personal ambitions or increasing his popularity.
232 We would like to part with the matter by recalling a statement of Edmund Burke: "All persons possessing a portion of power ought to be strongly and awfully impressed with an idea that they act in trust, and that they are to account for their conduct in that trust to the one great Master, Author and Founder of Society".
We would now briefly indicate the direc tions we have given in the judgment: (i) An All India Judicial Service should be set up and the Union of India should take appropriate steps in this regard.
(ii) Steps should be taken to bring about uniformity in designation officers both in civil and the criminal side by 31.3.1993.
(iii) Retirement age of judicial officers be raised to 60 years and appropriate steps are to be taken by 31.12.
(iv) As and when the Pay Commissions/Commit tees are set up in the States and Union Terri tories; the question of appropriate pay scales of judicial officers be specifically referred and considered.
(v) A working library at the residence of every judicial officer has to be provided by 30.6.1992.
Provision for sumptuary allowance as stated has to be made.
(vi) Residential accommodation to every judicial officer has to be provided and until State accommodation is available, Government should provide requisitioned accommodation for them in the manner indicated by 31.12.1992.
In providing residential accommodation, avail ability of an office room should be kept m view.
(vii) Every District Judge and Chief Judi cial Magistrate should have a State Vehicle, Judicial officers in sets of 5 should have a pool vehicle and others would be entitled to suitable loans to acquire two wheeler automo biles within different time limits as speci fied.
(viii)Inservice Institute should be set up within one year at the Central and State or Union Territory level.
V.P.R. Petition disposed of. [/INST] The petitioners All India Judges ' Association filed an application under Article 32 of the Constitution of India for directions of this Court for setting up of an All India Judicial Service, for bringing about uniform conditions of service for members of the subordinate judiciary, provision of residential accommodation, transport facility; library and in service training for judicial officers.
Disposing of the writ petition, this Court, HELD: 1.
For a civilised society an enlightened inde pendent judiciary is totally indispensable.
1231 A] 2.
Rendering justice is a difficult job.
Unless the judi cial officer 207 has a reasonably worry free mental condition, it would be difficult to expect unsoiled justice from his hands.
[223 C] 3.
A judge ought to be wise enough to know that he is fallible and, therefore, even ready to learn and be coura geous enough to acknowledge his errors.
The conduct of every judicial officer should be above reproach.
He should be coscientious, studious, thorough, courteous, patient, punc tual, just, impartial fearless of public clamour, regardless of public praise and indifferent to private, political or partisan influences; he should administer justice according to law, and deal with his appointment as a public trust; he should not allow other affairs or his private interests to interfere with the prompt and proper performance of his judicial duties, nor should he administer the office for the purpose of advancing his personal ambitions or increasing his popularity.
[231 F H] 4.
Under the Constitution, the concept of Rule of Law came to be accepted and developed.
Article 50 prescribed the guideline of separating "the judiciary from the executive in the public services of the State".
This position is the outcome of recognition of the fact that the judiciary is a class separate from the executive.
[211 D] 5.
The Trial Judge is the kingpin in the hierarchical system of administration of justice.
He directly comes in contact with the litigant during the proceedings in Court.
On him lies the responsibility of building up of the case appropriately and on his understanding of the matter the cause of justice is first answered.
The personality, knowl edge, judicial restraint, capacity to maintain dignity are the additional aspects which go into making the courts ' functioning successful.
[225 F G] 6.
The District Judge is the principal judicial officer of the district.
It is the obligation of the district judge to operate as the captain of the team both under his direct supervision at the headquarters and in respect of the offi cers located in different areas within his district.
Of late, lower or subordinate courts are being established in the outlying and rural interior.
It is the obligation of the district judge to inspect the outlying courts, maintain the proper judicial tempo and temper of functioning in his district and be responsible 1or the efficient running of the system.
[221 G 222 A] 7.
The High Courts must take greater interest in the proper functioning of the subordinate judiciary.
Inspection should not be a matter of casual attention.
The Constitution has vested the control of 208 the subordinate judiciary under Article 235 in the High Court as a whole and not its Chief Justice alone.
Every Judge should, therefore, take adequate interest in the institution which is placed under the control of the High Court.
The administrative control of the subordinate courts of the State vests not in the Chief Justice alone but in the Court over which the Chief Justice presides.
[231 A C] 8.
There is a marked distinction between the nature of work which executive officers and judicial officers are called upon to discharge.
The work of the judicial officers is usually sedantry while that of the executive officer involves a lot of physical movement.
This is particularly so in the lower cadres of both the services.
In view of this feature physical fitness is more important for an executive officer than in case of a judicial officer while in case of judicial officers, there is thus necessarily more of mental activity than physical.
Experience is an indispensable factor and subject to the basic physical fitness with grow ing age experience grows.
[217 D E] 9.
Today a judicial officer always looks at life in a comparative way with administrative officers of his age.
Professional income at the Bar has tremendously swelled up.
Very often counsel 's fee per day equals to the salary of a judicial officer for a full month or even a longer period.
This great disparity affects peace and equilibrium in the judicial operation.
[227 D] 10.
It is absolutely necessary that the Judge enjoys freedom from personal worries.
A reasonable salary appropri ate allowances and manageable living conditions are, there fore, required to be provided.
[226 E] 11.
An All India Judical Service should be set up and the Union of India should take appropriate steps in this regard.
[232 C] 12.
Steps should be taken to bring about uniformity in designation of officers both in civil and the criminal side by 31.3.1993.
[232 C] 13.
Retirement age of judicial officers be raised to 60 years and appropriate steps be taken by 31.12.1992.
[232 C] 14.
As and when the Pay Commissions/Committees are set up in the States and Union Territories; the question of appropriate pay scales of judicial officers be specifically referred and considered.
[232 D] 209 15.
A working library at the residence of every judicial officer has to be provided by 30.6.1992.
Provision for sumptuary allowance has to be made.
[232 D] 16.
Residential accommodation to every judicial officer has to be provided and until State accommodation is avail able.
Government should provide requisitioned accommodation for them by 31.12.1992.
In providing residential accommoda tion, availability of an office room should be kept in view.
[232 E] 17.
Every District Judge and Chief Judicial Magistrate should have a State vehicle, Judicial officers in sets of 5 should have a pool vehicle and others would be entitled to suitable loans to acquire two wheeler automobiles within different time limits.
[232 F] 18.
In service Insititute should be set up within one year at the Central and State or Union Territory level.
[232 G] The Law Commission of India 14th Report, 1958 Judges: by Professor Pannick; Law Commission of India, 1 Ith Report referred to.
Moti Ram Deka, etc.
vs The General Manager, North East Frontier Railway, Maligaon, Pandu, etc.
; , ; Secretary, Government of Madras, Home Department and ,Anoth er vs Zenith Lamps and Electrical Ltd., ; ; Devi Prasad Sharma and Others vs The King Emperor, 70 IA 216; Baradakanta Mishra The Registrar of Orissa, High Court and Another, ; , referred to. </s> |
<s>[INST] Summarize the following judgement: Appeal No. 1203 of 1977.
From the Judgment and Order dated 4.12.1973 of the Calcutta High Court in Appeal from Original Order No. 624 of 1968.
A.K.Ganguli, U.R. Lalit, S.KNandy, Chandra Nath Mukher jee, Gaurav Kumar Banerjee, Ajit Chakravorty, Narayan Sinha and B.C. Barua for the appellants.
G. Ramawamy, Dr. Shankar Ghosh, R.F. Nanman, P.H.Parekh, Ms. Sunita Sharma, B.M.Mitra and Dhillon for the Respond ents.
The Judgment of the Court was delivered by PUNCHHI, J.
This appeal by certificate, poses an impor tant question of law, as to whether, a court sale held in execution of a final decree, passed in a suit for recovery of mortgage money, can be upset under the provisions of section 47 of the Code of Civil Procedure, on the displace ment of the preliminary decree upon which such final decree was based.
The question of law emerges on the facts summarized as follows: 239 Raja Abhoy Narain Deb was the owner of premises No. I 17 A, Rash Behari Avenue statedly a fashionable quarter of Calcutta, built on an area approximating 1 Bigha 6 cottahs, with three storied building on it consisting of 32 spacious rooms and two out houses.
On the demise of Raja Abhoy Narain Deb, the appellant herein, and the proforma respondents, succeeded as heirs to the same on September 15, 1949.
The appellant and his co heirs mortgaged their two third inter est in the said property as security for a loan of Rs.27,000 obtained from the mortgagor Smt.
Prokashini Biswas, the predecessor in interest of the plaintiffs respondents.
After her death some of the heirs and legal representatives of Smt.
Biswas, on March 13, 1961, filed a mortgage suit for the recovery of the mortgage money etc.
in the court of the 3rd Subordinate Judge at Alipore, being title Suit No.17 of 1961, seeking enforcement and sale of the mortgaged proper ty.
To this suit the left out heir of Smt.
Biswas, original ly arrayed as a defendant, was transposed as a co plaintiff.
On July 25, 1962, the trial court passed a preliminary decree in the sum of Rs.27000 for the principal sum and a sum of Rs.24570 for interest on the said principal, totall ing Rs.51570, together with costs.
The sum of Rs.51570 was proportioned in as much as two third was ordered as payable to the original plaintiffs and the remaining one third to the transposed co plaintiff.
The decree stipulated that the mortgagors were allowed to pay the decrectal amount in 15 equal annual instalments, to be deposited by the 30th June of each year, in the afore mentioned proportions of two third and one third, to the credit of the respective mortga gee plaintiffs; the first instalment being payable by August 31, 1962.
The mortgagee plaintiffs were also allowed interest on the sums due from the date of institution of the suit till the date of realisation of the entire sum.
It was further stipulated that in default of any one of the instal ments, the mortgagee plaintiffs were at liberty to apply for making the decree final, and in the event of such applica tion being made the mortgaged property, or a sufficient part thereof, shall be directed to be sold, and for such purpose all necessary steps were required to be taken by the plain tiffs mortgagees.
On December 18, 1962, the present proforma respondent no.8, Kumar Sudhendu Narain Deb, filed F.A. No. 902 of 1964 against the aforesaid preliminary decree in the Calcutta High Court praying as well for stay of execution of the decree, which prayer was ultimately declined.
Some deposits, however, were made to feed the preliminary decree but since there was a failure to deposit in the terms there of, a final decree was passed by the Court of the 3rd Subor dinate Judge, Alipore on March 6, 1963, even though F.A. No. 902 of 1964, the appeal against the preliminary decree, was pending in the High Court.
The group of the decree holders representing two third interest filed an execution petition for realisation of their own share under the decree 240 which was followed by another execution petition of the remaining decree holder representing one third interest, seeking realisation of his onethird share of the decreetal amount.
Both the execution petitions contained identical prayers for sale of the mortgaged property.
The execution petitions were consolidated and numbered as Execution Peti tions 11 and 13 of 1963 respectively.
On August 10, 1963, proclamation of sale was drawn, apparently in the presence of parties.
The decree holders suggested the value of the mortgaged property as Rs.75,000.
The appellant herein put its value at Rs.3 lacs.
In these circumstances, the execut ing court ordered that both the valuations be incorporated in the sale proclamation.
The sale, however, did not take place till March 15, 1968 and a period of over 4 % years passed by in the mean time.
By that time, the value of the property, according to the appellant, had risen to Rs.6 lacs for which on March 4, 1968, before the sale, the appellant made a regular objection under section 47 of the Code of Civil Procedure.
Within the intervening period of 4 1/2 years, some more deposits apparently were made by the appel lant.
The property was all the same sold on March 15, 1968, on the proclamation of sale as was drawn on August 10, 1963, for Rs. 1,00,500 in favour of the auction purchasers re spondents 6 & 7 herein.
On April 11, 1968, the appellant yet filed an application under Order 21 Rule 90 C.P.C. for selling aside the sale and prayed for stay of its confirma tion basically on three grounds: (i) the judgment debtors had no saleable interest in the mortgaged property; (ii) legally two execution petitions could not be consoli dated; and (iii) the provisions of section 35 of the Bengal Money Lenders ' Act had been overlooked.
This petition was treated as a part of the original objection under section 47 C.P.C.
On April 11, 1968, the objection under section 47 C.P.C. was dismissed by the executing court against which the appellant preferred an appeal before the Calcutta High Court being F.M.A. No.624 of 1968.
Later the petition under Order 21 Rule 90 C.P.C. was formally dismissed in default in the above backgrround.
On September 14, 1968, the auction sale was confined.
In F.M.A. No.902 of 1964, the appeal against the prelim inary decree, the parties arrived at a settlement on Decem ber 13, 1971 before the Calcutta High Court.
In place of the preliminary decree dated July 25, 1962 a new preliminary decree on settlement between the parties, was passed by a division bench of the High Court, whereunder the decrectal amount was principally agreed not to exceed Rs.54000 being the double 241 of the original debt of Rs.27000.
The sums deposited by the appellant, under interim orders of the court from time to time to the credit of the decree holders, were adjusted and the final amount struck as unpaid was put at Rs.44000 re garding which claim of the morttgagees was conceded by the appellant mortgager as well as to the manner of its payment, and which sum in fact was deposited by him in Court, for not only simultaneous passing of the decree but recording as well it satisfaction.
Having cleared off in this manner the mortgage debt, the appellant in his appeal F.M.A. 624 of 1968, preferred against the rejection of objection raised the additional legal ground that after the displacement of the original preliminary decree by substitution the final decree did not survive, and so did succumb the auction sale, posing amongst others the question set out in the opening paragraph of the judgment.
The High Court rejected all the legal pleas otherwise raised but certified as fit questions as raised to be answered by this Court, without framing any one of them as such.
It was pointed out by Mr. Ganguli, learned counsel for the appellant that the preliminary decree dated July 25, 1962 was a preliminary decree for sale passed in terms of Order 34 Rule 4 of the kind covered under Clause (c) (i) of sub rule (1) of Rule 2 and the final decree dated March 6.
1963 was final decree for sale under Order 34 Rule 5 (3) of the Code of Civil Procedure.
This is evident from the copies of both the decrees which are part of the additional documents submitted to this Court.
The preliminary decrees for sale, details apart, besides striking the amount due payable in instalments, mentions the time for payment, further provides that in default of payment as provided, the plaintiff may apply to the Court for final decree for the sale of the mortgaged property; and on such application being made.
The mortgaged property or sufficient part there of.
shall be directed to be sold; and for the purpose of such sale, the plaintiff shall produce before the court or such officer, as it appoints, all documents in his posses sion or relating to the mgrtgaged property.
It is evident from the terms of the final decree that it was passed on the basis of the preliminary decree dated July 25, 1962 and the plaintiff making an application on September 19, 1962 for a final decree, and it appearing that the payment directed by the said decree and orders had not been made by the defend ant or any person on his behalf or any other person entitled to redeem the mortgage.
the Court then ordered and decreed that the mortgaged property in the preliminary decree afore mentioned, or a sufficient part thereof, be sold and that for the purpose of such sale, the plaintiff shall produce before the Court or such Officer,, as it appoints, all the documents in his possession or power relating to the mortgaged property.
" It is on the strength of terms of both the decrees that Mr. Ganguli urged that the right to apply for the final decree arose from the terms of the 242 preliminary decree and on the failure of the defendant making payments in terms thereof.
And since the preliminary decree of July 25, 1962 was displaced and substituted by the preliminary decree passed by the High Court in appeal, which was instantly satisfied, the foundation under the final decree stood removed.
It was further urged that the plain tiff had lost the right to ask for a final decree, there was no compulsory need for the purpose or tee occasion to pass it, It is also urged that the auction has become non est having no legal foundation or sanction in law.
The well settled principle of the appeal being a continuation of the suit was pressed into service to contend that the final decree had no life of its own and could only be passed on an application moved by the plaintiff on the defendant 's fail ure to comply with the terms of the substituted preliminary decree.
Mr. Nariman, learned counsel appearing for the respondents on the other hand contended that there could not be a reverse process when the final decree had factually been passed and an auction sale in terms thereof had taken place bringing in the rights of the stranger auctionpurchas ers.
In order to appreciate the respective contentions of learned counsel for the parties, the scheme of Order 34 would be essential to be grasped.
It would be seen that Rule 1 thereof enjoins that subject to the provisions of the Code, all persons having an interest either in the mortgage security or in the fight of redemption shall be joined as parties to any suit relating to the mortgage.
Confining to the relevant statutory provisions thereunder, as are applicable to the case, the preliminary decree was passed in the foreclosure suit in accordance with sub clause (c)(i) of Clause (1) of Rule 2.
Further in terms of sub clause (c)(ii) of Clause (1) of Rule 2, the Court held the plaintiffs entitled to apply for a final decree, debarring the defendant from all right to redeem the property.
The Court under sub rule (2) of Rule 2 can, on good cause shown and upon terms to be fixed by the Court from time to time, at any time before any decree is passed, extend the time fixed for the payment of the amount found or declared due under sub rule (1) or of the amount adjudged due in respect of subsequent costs, charges, expenses and interest.
Rule 3 of Order 34 provides that when an application is made by the defendant seeking a final decree, the Court has two courses open depending on the defendant making payment in Court of all amounts due from him under sub rule (1) of Rule 2, and not making payment.
Under sub rule (1) of Rule 3, a final decree of one kind may be passed in terms thereof.
if pay ment is made.
But if no payment is made a final decree of the other kind may be passed in terms of sub rule (2) of Rule 3.
Sub rule (3) of Rule 3 enjoins that on the passing of a final decree under sub rule (2) all liabilities to which the defendant is subject in respect of mortgage or on account of suit shall be deemed to have been 243 discharged.
Under Rule 5, the defendant is given another opportunity to make payment of all amounts due from him under sub rule (1) of Rule 4, if such payment.
is made on or before the day fixed or at any time before the confirmation of sale in pursuance of the final decree.
It is thus notice able that at every conceivable step opportunity is given to the defendant to redeem the property at any time before the confirmation of sale made in pursuance of the final decree, and if such deposit is made the Court bas to accept the payment and make an order in favour of the defendam.
The Court, however, has no power to go on fixing date after date, in postponing confirmation of sale to accommodate the defendant, as was held by this Court in Hukumchand vs Bansi lal & Ors; , No right is given to the mort gagor defendant to ask for postponement of confirmation of sale in order to enable him to deposit the amount.
Reference may also be made to Janak Raj vs Gurdial Singh and Anr, [1967] 2 SCR wherein it has been laid down that when no application for setting aside a sale has been made to the executing court or when one made under Rules 89 to 91 of Order 21 gets dis missed, the court has no choice thereafter but to confirm the sale.
This Court made significant observation by spell ing out the policy of protecting auction purchasers in the following words: "The policy of the Legislature seems to be that unless a stranger auction purchaser is protected against the vicissitudes ,of the fortunes of the suit, sales in execution would not attract customers and it would be to the detriment of the interest of the borrower and the creditor alike if sales were allowed to be impugned merely because the decree was ulti mately set aside or modified.
The Code of Civil Procedure of 1908 makes ample provision.for the protection of the interest of the judgment debator who feels that the decree ought not to have been passed against hint.
_" [Underlining ours] However, this Court in Sardar Govindrao Mahadik & Ant: vs Devi Sahai & Ors, ; , carved out an excep tion in the case of the auction purchaser who was a decree holder himself, denying to him the protection given in Janak Raj 's case (supra) to the stranger auction purchaser.
As is discernible Sardar Govindrao 'case (supra) and Hukumchand 's case (Supra) are cases distinguishable as against Janak Raj 's case (supra).
Whereas Sardar Govindrao 's case (supra) is a case of a mortgagee 'decree holder ' auction purchaser and Hukumchand 's case [supra] relating to a mortgage suit, Janak Raj 's case (supra) is a case of a simple money decree in execution of which the auction purchaser got to buy the judgment debtors immovable property.
Still the underlined words in the extract from Janak Raj 's case (supra) conceiva bly leave to the judgment 244 debtor his rights under the Civil Procedure Code whereby he can have the decree passed against him set aside and to seek appropriate reliefs on the basis thereof.
Now coming to the substituted preliminary decree, even though by consent, there is no denying the fact that the seal of adjudication gets affixed to it.
The Court passing it has formally expressed the terms itself under its own authority, even though at the suggestion of the parties.
It conclusively determines the right of the parties with regard to the matters in controversy valid in the suit till the stage of passing of the preliminary decree.
The Explanation to Section 2(2) of the Code of Civil Procedure defining the word "decree", goes to say that a decree is preliminary when further proceedings had to be taken before a suit can be completely disposed of.
It is final where such adjudication completely disposes of the suit.
It may be partly prelimi nary and partly final.
The preliminary decree in the instant case, whether as originally made or as substituted in ap peal, had not disposed of the suit completely.
It was to be enforceable on the terms it was drawn.
There were obliga tions for the defendants to fulfil and on the violation to observe these obligations rights accrued to the plaintiffs.
If we import this analysis into the understanding of the decree, the defendants could obviously in appeal against the decree have their obligations altered and the scope and role of re defining the obligations definitely vested in the appellate court.
It cannot thus be twistedly said that the obligations of the defendants may substitutedly be that as defined by the appellate preliminary decree, but the right of the plaintiffs kept accrued on the failure of non fulfil ment of the obligations of the defendants under the prelimi nary decree of the Court of first instance.
Is it then conceivable that the appellate preliminary decree was valid for the purposes of defining the obligations of the defend ants, but was not valid since rights had accrued to the plaintiffs on the non fulfilment of obligations under the preliminary decree of the Court of first instance7 Such an interpretation or construction would render the substantive right of appeal redundant and choked defeating the ends of justice and would otherwise be iII fined in the scheme of Order 34 C.P.C. Therefore.
it must be held that in the field the only preliminary decree is the one.which was passed by the Calcutta High Court substituting the original prelimi nary decree of the Trial Court, and the final decree, if at all required, is to be passed in accordance therewith.
The fact that the decree was consensualin in nature, having been passed between the parties to the suit, is of no consequence.
It has the same binding force just as one which could be passed on contest.
An objection was raised that to this settlement, the auction purchasers were 245 not parties and hence not bound by it, though their interest had appeared on the scene due to the auction purchase.
Our attention was invited to Section 47 of the C.P.C. and to Explanation II(a) providing that ' for the purposes of Sec tion 47, a purchaser of a property in execution of the decree shall be deemed to be a party to the suit in which the decree is passed.
It was suggested that the plaintiffs and the defendants could not settle the suit without the consent and participation of the auction purchasers to their detriment.
There is an obvious fallacy in the argument.
Significantly, for the purposes of Section 47, the auction purchaser deemingly is a party to the suit in which the decree is passed if he has purchased the property at the sale and execution of that decree.
Instantly, the auction purchasers had purchased the property in execution of the final decree and not in execution of the preliminary decree and on that basis can at best be deemed to be parties to the suit throughout only on :the strength of the final decree if obtained on the terms of the existing preliminary decree.
But here the property, as said before, was not put to sale in execution of the preliminary decree.
The auction purchas ers cannot claim themselves to be parties to the suit at the time of or at any time prior to the passing of the prelimi nary decree.
It is to be remembered that both the prelimi nary decree and final decree are passed under Order 34 of the Code of Civil Procedure in one and the same suit, in which two decrees may be required to be passed at separate stages.
And both being formal adjudications appropriate to the stage are formal expressions of decision of the Court.
At the stage of the preliminary decree there arises no question of the property under mortgage being put to sale in execution of the decree, and if that is so the ultimate auction purchaser cannot be held deemingly to be a party to the suit upto the stage of the preliminary decree.
In our opinion, the converse interpretation that the auction pur chaser at a sale and execution of the final decree shall be deemed to be party to the suit at and prior to the stage when preliminary decree is passed, unless sustaining, would be contrary to the spirit and scheme of Order 34 of the Code of Civil Procedure.
And since all questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, dis charge or satisfaction of the decree are required to be determined by the Court executing the decree and not by a separate suit, the objection of the appellant judgment debtor with regard to the knocking out of the original preliminary decree was to our mind sustainable.
In terms of the preliminary appellate decree and fulfilment of the obligations of the defendants of payment of the sum as struck, there remained no occasion for entertaining, main taining or sustaining the application of the plaintiff mortgagees for sale of the property mortgaged and on that basis the auction sale in favour of the auction purchasers and confirmation of that sale automatically becomes non est.
We are thus of the considered view that the High Court went wrong in rejecting the objection of the appellant judgment debtor.
246 For the view above taken it would not be necessary to go into the other two questions raised by Mr. Ganguli, and for which there is warrant in the order of the High Court grant ing certificate, with regard to violation of section 35 of the Bengal Money Lenders Act, as well as to settle the effect of the executing court not mentioning its own evalua tion of the property in the proclamation of sale and to have illegally incorporated both the evaluations as suggested by the decree holders and the judgmentdebtors, rendering the auction sale void.
But this is not the end of the matter.
The auction purchasers are not on firm footing on the strength of the observations afore quoted in Janak Raj 's case (supra), afore distinguished.
In that case the relief in the suit was unconnected with the property sold in execution of the decree.
Here the relief in the suit is inextricably connect ed with the property sold.
The two cannot be divorced di verting them to different courses.
The substituted prelimi nary decree is the one passed under Rule 4 of Order 34 and involves the property in dispute.
It so happens that the stage of Rule 5 Order 34 stands withdrawn, rendered non est and wiped out.
No compensatory sum is due to the auction purchasers under the strict terms of subrule (2) of Rule 5 of Order 34, whereunder the defendant mortgagor, in addition to the payment of all amount due from him under sub rule (1) of Rule 4.
is required to deposit a sum equal to 5% of the amount of the purchase, money paid into the Court by the auction purchaser, which obviously is meant to compensate the auction purchaser.
That stage in the eye of law has not arrived.
Since in strict sense the provisions would not be applicable to the facts of the instant case, we in exercise of the Court 's inherent powers under the Code and powers otherwise under Article 142 of the Constitution, to further the cause of complete justice, confining it to the facts of this case, and to be fair to the auction purchasers, direct the appellant to burden himself in paying to the auction purchasers, interest on their blocked sum of Rs. 1,05,000, the purchase money, lying in Court since 1963, which we quantify as equivalent to the sum deposited.
We thus allow this appeal on the condition that the appellant shall depos it in the executing Court a sum of Rs.1,05,000, within a period of two months from this date and direct that this sum together with the sum of Rs. 1,05,000, lying in deposit as auction money be paid over by the executing Court to the auction purchasers, singularly or collectively, at the convenience of the auction purchasers.
In the facts and circumstances of the case, however, we leave the parties to bear their own costs in this Court.
V.P.R. Appeal allowed. [/INST] The appellant and his co heirs mortgaged their two third interest in the property as security for a loan of Rs. 27,000 obtained from one Smt.
Biswas, the predecessor in interest of the plaintiffsrespondents.
After the death of the mortgagee, some of her heirs and legal representatives filed a mortgage suit on 13.3.1961 for the recovery of the mortgage money before the Subordinate Judge and seeking enforcement and sale of the mortgaged property.
The left out heir of the mortgagee, originally arrayed as a defendant was transposed.
as a co plaintiff.
On 25.7.1962, the trial court passed a preliminary decree for.
Rs.51,570 totalling the principal sum and inter est, and costs.
The 234 decretal amount was proportioned in as much as two third was ordered as payable to the original plaintiffs and the re maining onethird to the transposed co plaintiff.
The decre tal amount was to be paid by the mortgagors in 15 equal annual instalments and in default of any one of the instal ments, the mortgagee plaintiffs were at liberty to apply for making the decree final and in the event of such application being made the mortgaged property, or a part thereof, shall be directed to be sold.
Interest also was allowed on the sum due from the date of institution of the suit till the date of realisation of the entire sum.
On 18.12.1962, the proforma respondent no.8 filed an appeal against the preliminary decree in the High Court.
Prayer for stay of execution of the decree was rejected.
Though some deposits were made on the basis of the preliminary decree, there was a failure to deposit in terms thereof.
Therefore a final decree was passed by the trial court on 6.3.1963, when the appeal against the preliminary decree was pending in the High Court.
The decree holders representing two third interest and the decree holder representing one third interest filed two separate execution petitions for realisation of their shares under the decree.
Both the execution petitions contained identical prayers for sale of the mortgaged property and the execution petitions were consolidated and numbered.
On 10.8.1963, proclamation of sale was drawn.
The value of the mortgaged property was suggested as Rs. 75,000 and Rs. 3 lacs, by the decree holders and the appellant respectively.
On 4.3.1968, before the sale of the property, the appellant made a regular objection u/s 47, C.P.C.
The appel lant had also made some more deposits within the intervening period of 41/2 years.
The property was sold on 15.3.1968 on the proclamation of sale as was drawn on 10.8.1963 for Rs. 1,00,500 in favour of the auction purchasers [respondents nos.
6 & 7].
On 11.4.1968 the appellant filed an application under Order 21, Rule 90, C.P.C. for setting aside the sale and prayed for stay of its confirmation on the grounds that the judgment debtors had no 235 saleable interest in the mortgaged property; that legally two execution petitions could not be consolidated; and that the provisions of section 35 of the Bengal Money Lenders ' Act had been overlooked.
The application under Order 21 Rule 90 was treated as part of the original objection section 47, C.P.C. The executing Court on 11.4.1968 dismissed the objection u/s 47 C.P.C. against which the appellant preferred an appeal before the High Court.
Later the petition under Order 21 Rule 90, C.P.C. was formally dismissed in default.
On 14.9.1968 the auction sale was confirmed.
In the appeal against the preliminary decree, the par ties arrived at a settlement on 13.12.1971 before the High Court.
In the place of the preliminary decree dated 21.7.1962 a new preliminary decree on settlement between the parties was passed by the High Court, whereunder the secre tal amount was principally agreed not to exceed Rs.54,000.
The sums deposited by the appellant were adjusted and the final amount struck as unpaid was put at Rs.44,000.
Having cleared off the mortgage debt, the appellant in his appeal, preferred against the rejection of objection, raised the additional legal ground that after the displace ment of the original preliminary decree by substitution, the final decree as well as the auction sale did not survive.
The High Court rejected all the legal points otherwise raised, but certified as fit questions as raised to be answered by this Court without framing anyone of them as such.
Hence this appeal by certificate, involving the question of law as to whether a court sale held in execution of a final decree, passed in a suit for recovery of mortgage money can be upset under the provisions of section 47 of C.P.C., on the displacement of the preliminary decree upon which such final decree was based.
The appellant contended that the preliminary decree dated 25.7.1962 was a preliminary decree for sale passed in terms of Order 34 Rule 4 and the final decree dated 6.3.1963 was a final decree for sale under Order 34 Rule 5(3) of the C.P.C., that the 236 right to apply for the final decree arose from the terms of the preliminary decree and on the failure of the defendant making payments in terms thereof.
And since the preliminary decree of 25.7.1962 was displaced and substituted by the preliminary decree passed b) the High Court in appeal, which was instantly satisfied, the foundation under the final decree stood removed; that the plaintiff had lost the right to ask for a final decree, there was no compulsion for the purpose or the occasion to pass it; and that the auction had become non est having no legal foundation or sanction in law.
The respondents on the other hand contended that there could not be a reverse process when the final decree had factually been passed and an auction sale in terms thereof had taken place bringing in the rights of the stranger auction purchasers.
Allowing the appeal of the judgment debtor appellant, this Court, HELD: 1.
On the substitution of the preliminary decree, even though by consent, there is no denying the fact that the seal of adjudication gets affixed to it.
The court passing it has formally expressed the terms itself under its own authority, even though at the suggestion of the parties.
It conclusively determines the right of the parties with regard to the matters in controversy valid in the suit till the stage of passing of the preliminary decree.
In the field, the only preliminary decree is the one, which was passed by the High Court substituting the original prelimi nary decree of the Trial Court, and the final decree, if at all required, is to be passed in accordance therewith.
[244 B, G] 2.
The Explanation to Section 2(2) of the Code of Civil Procedure defining the word "decree", goes to say that a decree is preliminary when further proceedings had to be taken before a suit can be completely disposed of.
It is final where such adjudication completely disposes of the suit.
It may be partly preliminary and partly final.
[244 C] 3.
In the instant case the preliminary decree whether as originally made or as substituted in appeal, had not disposed of the suit completely.
It was to be enforceable on the terms it was drawn.
There were obligations for the defendants to fulfil and on the violation to observe the obligations, rights accrued to the plaintiffs.
It cannot be twistedly said that the obligations of the defendants may substitutedly be that as defined by the appellate prelimi nary decree, but the right of the plaintiffs kept accrued on the failure of non fulfilment of the 237 obligations of the defendants under the preliminary decree of the Court of first instance.
Such an interpretation or construction would render the substantive right of appeal redundant and choked defeating the ends of justice and would otherwise be ill fitted in the scheme of Order 34, C.P.C. [244 D F] 4.
For the purposes of Section 47, the auction purchas er deemingly is a party to the suit in which the decree is passed if he has purchased the property at the sale and execution of that decree.
[245 B] 5.
Instantly, the auction purchasers had purchased the property in execution Of the final decree and not in execu tion of the preliminary decree and on that basis can at best be deemed to be parties to the suit throughout only on the strength the final decree if obtained on the terms of the existing preliminary decree.
But the property was not put to sale in execution of the preliminary decree.
The auction purchasers cannot claim themselves to be parties to the suit at the time of or at any time prior to the passing of the preliminary decree.
The preliminary decree and final decree are passed under Order 34 of the Code of Civil Procedure in one and the same suit, in which two decrees may be required to be passed at separate stages.
And both being formal adjudications to the stage are formal expressions of deci sion of the Court.
At the stage of the preliminary decree there arises no question of the property under mortgage being put to sale in execution of the decree, and if that is so the ultimate auction purchaser cannot be held deemingly to be party to the suit upto the stage of the preliminary decree.
[245 B E] 6.
The converse interpretation that the auction pur chaser at a sale and execution of the final decree shall be deemed to be a party to the suit at and prior to the stage when preliminary decree is passed, unless sustaining, would be contrary to the spirit and scheme of Order 34 of the Code of Civil Procedure.
And since all questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution dis charge or satisfaction of the decree are required to be determined by the Court executing the decree and not by a separate suit, the objection of the appellant judgment debtor with regard to the knocking out of the original preliminary decree was sustainable.
[245 E G] 7.
In terms of the preliminary appellate decree and fulfilment of the obligations of the defendants on payment of the sum as struck, there remained no occasion for enter taining, maintaining or 238 sustaining the application of the plaintiff mortgagees for sale of the property mortgaged and on that basis the auction sale in favour of the auction purchasers and confirmation of that sale automatically becomes non est.
The High Court went wrong in rejecting the objection of the appellant judgment debtor.
[245 G H] 8.
No compensatory sum is due to the auction purchasers under the strict terms of sub rule (2) of Rule 5 of Order 34.
In exercise of the Court 's inherent powers under the C.P.C. and powers otherwise under Article 142 of the Consti tution, to further the cause of complete justice, confining it to the facts of the case, and to be fair to the auction purchasers, the appellant is directed to burden himself in paying to the auction purchasers, interest on their blocked sum of Rs.1,05,000 the purchase money, lying in Court since 1963, which was quantified as equivalent to the sum deposit ed.
[246 D,E F] Hukumchand vs Bansilal & Ors., ; ; Janak Raj vs Gurdial Singh and Anr., ; and Sardar Govindrao Mahadik & Anr.
vs Devi Sahai & Ors., ; , referred to. </s> |
<s>[INST] Summarize the following judgement: Appeal No. 2568 of 1991.
From the Judgment and Order dated 10.5.1991 of the Madhya Pradesh High Court in M.P. No. 2727 of 1990.
S.K. Mehta, R.D. Sharma, Dhruv Mehta, Arvind Verma and Aman Vachher for the Appellants.
Rameshwar Nath and Ravinder Nath (for Rajinder Narain & Co.) for the Respondents.
The Judgment of the Court was delivered by R.M. SAHAI, J.
The only legal question that arises for consideration, in this appeal directed against judgment of the Madhya Pradesh High Court is, if an application filed by an operator for renewal of his permit under Section 58 of , became extinct and was rendered non existent.
in eye of law, after coming into force of or it being a right within meaning of clause (c) of Section (6) of survived and continued despite repeal of 1939 Act.
The appellant, holder of a permit, for operating stage carrier on route Eklera Narsinghgarh in District Rajgarh, applied for its renewal, as required, on 18th October, 1988, 120 days before the date of its expiry on 18th February 1989 under Section 58(2) of the 1939 Act.
The application was published on 23rd June, 1989, under Section 57(3) of the Act.
But before renewal could be granted 1988 Act came into force on 1st July 1989.
The respondent who, too, had applied on 30th December 1988 for a fresh permit on the same route and on the same time schedule, withdrew his application and filed a fresh application on 18th May, 1990.
The Regional Transport Authority after considering both the applications, allowed renewal of the appellant 's permit from 18th Febru ary, 1989 to 18th February, 1994.
The application of re spondent was rejected as that could be considered only if the appellant 's existing permit was cancelled, but since the appellant was operating on the route regularly and paying taxes etc.
there was no reason to refuse renewal.
In an appeal to the State Transport Appellate Tribunal held that no appeal against renewal was maintainable against which the respondent filed writ petition which was 308 allowed and it was held that right to seek renewal of permit under a Motor Vehicle Act was not a vested right.
It was merely an incohate right with ripens into a right only on being granted.
But before this could happen the 1939 Act was repealed.
Effect of it was that the application ceased to exist.
Thus there was nothing pending which could empower the Regional Transport Authority to grant renewal.
Is this correct? Could the application for renewal be dismissed, only, because of enforcement of 1988 Act or the right of the appellant to get his application under the earlier Act decided in accordance with law subsisted and survived under the new Act as well.
The answer shall depend on construction of Section 217, 'the repealing and saving provision, in 1988 Act read with Section 6 of the .
Sub Section (1) of Section 217 of 1988 Act repeals 1939 Act.
But Sub Section (2) saves certain notifi cations, rules, regulations, Acts etc.
Clause (b) of sub section (2) reads as under: 217(1) Notwithstanding the repeal by sub section (1) of the repealed enactments, "(b) any certificate of fitness or registra tion or licence or permit issued or granted under the repealed enactments shall continue to have effect after such commencement under the same conditions and for the same period as if this Act had not been passed;" On strength of this it was urged on behalf of the respond ents that the only saving was in respect of unexpired period of a permit.
However what is relevant is sub section (4) of Section 217 which provides as follows: "S.217(4) The mention of particular matter in this Section shall not be held to prejudice or affect the general application of section 6 of the (10 of 1897), with regard to the effect of repeals.
" How such a provision should be construed was explained by this Court in The Brihan Maharashtra Sugar Syndicate Ltd. vs Janardan Ramchandra Kulkarni & Others, ; It was held that such a provision was not by way of abundant caution and any proceedings pending under repeated Act could be continued in view of Section (6) of .
Section 658 of which was a repealing and saving provision which was considered by the Court read as under: "The mention of particular matters in sections 645 to 657 or in any other provision of this Act shall not prejudice the general ap 309 plication of s(6) of the (X of 1897), with respect to the effect of repeals.
" It should be noticed that phraseology of Section 658 of the and sub section (4) of Section 217 of the is identical.
Therefore the reason ing given in the decision squarely applies for construction of sub section (4) of Section 217.
Consequently it could not be, successfully, argued that sub section (2) of Section 217 is exhaustive and sub section (4) should be read by way of abundant caution and applied only to the field which is already covered by sub section (2).
Section (6) of the may now be extracted: "S.6.
Effect of repeal Where this Act, or any (Central Act) or Regulation made after the commencement of this Act, repeals any enact ment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not: (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; ( e ) . . . . . . . . . . " The objective of the provision is to ensure protection of any right or privilege acquired under the repealed Act.
The only exception to it is legislative intention to the contrary.
That is, the repealing Act may expressly provide or it may impliedly provide against continuance of such right, obligation or liability.
The controversy thus narrows down to if the renewal of a permit under 1939 Act was a right.
In other words whether any right accrued to the appellant under the repealed Act which could be said to continue unaffected by the repeal of the Act.
A permit could be renewed under Section 58(2) of 1939 Act which reads as under: "S.58(2).
A permit may be renewed on an appli cation made and disposed of as if it were an application for a permit: Provided that the application for the renewal of a permit shall be made (a) in the case of a stage carriage permit or a public carrier 's permit, not less than one hundred and twenty days before the date of its expiry, and 310 (b) in any other case, not less than sixty days before the date of its expiry Provided further that, other condi tions being equal, an application for renewal shall be given preference over new applica tions for permits." Although the Section uses the word 'may ' but read with proviso it creates a preference in favour of a permit holder to claim renewal if other conditions were equal.
A holder of a permit thus stands on a better footing.
The preference created by sub section (2) of Section 58 for consideration of the permit and its grant cannot be said to be a mere incohate right, or a right which does not exist in law.
It may not be a vested right or a fundamental right but it certainly is civil right which could be enforced in a court of law and any authority acting in contravention of it can be forced to act in accordance with it.
For instance, if a Regional Transport Authority under the old Act refused renewal even though the person applying for renewal was in all respects similar to other new applicants then it could be corrected either by the tribunal or by way of writ peti tion under Article 226.
Therefore.
It is a right which is enforceable in law.
This right accrued to appellant as he had already applied for renewal and his application had been notified.
The legal machinery was set in motion by him.
He theretore had a right to get his application for renewal processed and considered in accordance with 1939 Act.
It would be too artificial to say that it was not a right or it had not accrued under 1939 Act.
Therefore, in our opinion, by virtue of Section 6(c) of the the right of the appellant to get his application considered and decided in accordance with law was saved by sub section (4) of Section 217 of .
In Cheran Transport Co. Ltd. vs Kanan Lorry Service & Anr, ; at 390 It was held that the setting of a legal process in accordance with law for renewal of permit was itself a right.
This principle was laid down by this Court even when a scheme under Section 68(f) had been pub lished which debarred grant or renewal of any permit yet the court was of the opinion t.b, at since there was undue delay and the applicant had done all that he could do in law he could not be deprived of his right of consideration of his application for renewal so long the scheme was not pub lished.
This was again approved in D. Nataraja Mudaliar vs State Transport Authority Madras, [1979] 1 SCR 552.
The Court pointed out that a permit holder had an ordinary right of renewal.
It is thus obvious that the High Court committed a manifest error of law in throwing out the application of renewal as the new Act had come into force.
311 Does the new Act indicate any intention to the contrary? No express provision debarring renewal of permits, applied for, under old Act could be pointed out.
Reliance was placed on absence of preferential provision under Section 81 of the Act which provides for renewal of permits.
It was urged that there was a definite departure from the old Act therefore any right under the old Act, could not be continued to under the new Act.
The submission does not appear to be sound.
The new Act is a legislation on the same subject.
Section 81 specifically provides for renewal.
It cuts across the argu ment of intention to the contrary.
Rather it is kept alive by Sub section (4) of Section 217.
The scheme of renewal having been continued even under new Act mere absence of preference clause in Section 81 of the new Act could not be construed as destroying the claim for renewal set in motion under the old Act.
In the result this appeal succeeds and is allowed.
The order passed by the High Court is set aside.
Parties shall bear their own costs.
T.N.A. Appeal allowed. [/INST] The appellant, a Stage Carriage Operator, filed an appli cation for renewal of his permit under section 58(2) of the and his application was notified.
However, before the renewal could be granted the came into force.
The respondent had also applied for a fresh permit on the same route on which the appellant was operating his carriage.
The Regional Transport Authority allowed renewal of the appellant 's permit and rejected the respondent 's application.
On respondent 's appeal the State Transport Appellate Tribunal held that no appeal against renewal was maintainable.
The respondent filed a writ petition and the High Court allowed it by holding that right to seek renewal of a permit was not a vested right but was merely an incohate right which ripened into a right only on being granted; with the coming into force of 1988 Act, the 1939 Act was repealed as a result of which the appellant 's application for renewal ceased to exist and consequently the Regional Transport Authority was not empowered to grant a renewal of permit.
Against the decision of the High Court an appeal was filed in this Court.
Allowing the appeal and setting aside the order of the High Court, this Court, 306 HELD: 1.
The High Court committed a manifest error of law in rejecting the appellant 's application of renewal on the ground that the new Act had come into force.
[310 H] 1.1 Although section 58(2) of the uses the word 'may ' but read with proviso it creates a preference in favour of a permit holder to claim renewal if other conditions were equal.
A holder of a permit thus stands on a better footing.
The preference created by sub section (2) of Section 58 for consideration of the permit and its grant cannot be said to be a mere incohate right, or a right which does not exist in law.
It may not be a vested right or a fundamental right but it certainly is civil right which could be enforced in a court of law and any authority acting in contravention of it can be forced to act in ac cordance with it.
[310 B C] 1.2 The right accrued to appellant as he had already applied for renewal and his application had been notified.
The legal machinery was set in motion by him.
He therefore had a right to get his application for renewal processed and considered in accordance with 1939 Act.
It would be too technical to say that no right had accrued to him under 1939 Act.
By virtue of Section 6(c) of the the right of the appellant to get his application considered and decided in accordance with law was saved by subsection (4) of Section 217 of .
[310 D E] The Brihan Maharashtra Sugar Syndicate Ltd. vs Janardan Ramchandra Kulkarni & Ors, [1960] 3 S.C.R.85, followed.
Cheran Transport Co. Ltd. vs Kanan Lorry Service & ,Anr, ; ; D. Nataraja Mudsliar vs State Transport Authority, Madras , referred to. 2.
The objective of Section 6(c) of the is to ensure protection of any right or privilage ac quired under the repealed Act.
The only exception to it is legislative intention to the contrary.
That is, the repeal ing Act may expressly provide or it may impliedly provide against continuance of such right, obligation or liability.
[309 E] 3.
The new Act is a legislation on the same subject and Section 81 of the said Act specifically provides for renewal of permits.
The scheme of renewal having been continued even under new Act mere absence of preference clause in Section 81 of the new Act 307 could not be construed as destroying the claim for renewal set in motion under the old Act.
[311 B C] </s> |
<s>[INST] Summarize the following judgement: on (Civil) No. 491 of 1991.
(Under Article 32 of the Constitution of India) WITH TRANSFER PETITION (CIVIL) No, 278 of 1991.
(Under Article 139 A(i) of the Constitution of India) WITH WRIT PETITION (CIVIL) Nos.
541,542 & 560/91 G. Ramaswamy, Attorney General, Altar Ahmad, Addl.
Solicitor General, Shanti Bhushan, Ram Jethmalani, P.P. Rao, Kapil Sibal, P.R.Krishnan, Ms. Indira Jaisingh, Ashok Desai, Hardev Singh, P.S. Poti, Danial Latifi, Rajinder Sachhar, M.K. Ramamurthy, R.K. Garg, S.K. Dholakia, Santosh Hegde, V.N. Ganpule, Tapas Ray, N.B. Shetye, Jayant Bhushan, Mohan Rao, Prashant Bhushan, Ms. Kamini Jaiswal, A.K. Srivastava, Manoj Wad, Ms. Rashmi Kathpalia, Ms. Nina Dikshit, E.M.S. Anam, Rajiv K. Garg, N.D. Garg, G.D. Sharma, Sudhir Walia, A.M. Khanwilkar, Mrs. Anil Katiyar, Ms. A. Subhashini, R.S. Suri, M. Veerappa, K.R. Nambiar, Harish Uppal (appeared in person) and P.H. Parekh for the appearing parties.
The Judgment of the Court was delivered by B.C. RAY, J.
These writ petitions raise certain consti tutional issues of quite some importance bearing on the construction of Articles 121 and 124 of the Constitution of India and of the "The Judges 25 (Inquiry) Act, 1968" even as they in the context in which they are brought, are somewhat unfortunate.
Notice was given by 108 members of the 9th Lok Sabha, the term of which came to an end upon its dissolution, of a Motion for presenting an Address to the President for the removal of Mr. Justice V.Ramaswami of this Court.
On 12th March, 1991, the motion was admitted by the then Speaker of the Lok Sabha who also proceeded to constitute a Committee consisting of Mr. Justice P.B. Sawant, a sitting Judge of this Court, Mr. Justice P.D. Desai, Chief Justice of the High Court of Bombay, and Mr. Justice O. Chinappa Reddy, a distinguished jurist in terms of Section 3(2) of The .
The occasion for such controversy as is raised in these proceedings is the refusal of the Union Government to act in aid of the decision of the Speaker and to decline to notify that the services of the two sitting Judges on the Committee would be treated as "actual service" within the meaning of Para 11(b) (i) of of the II Schedule to the Constitu tion.
It is said that without such a notification the two sitting Judges cannot take time off from theft court work.
The Union Government seeks to justify its stand on its understanding that both the motion given notice of by the 108 Members of the Lok Sabha for presenting an Address to the President for the removal of the Judge concerned as well as the decision of the Speaker of the 9th Lok Sabha to admit the motion and constitute a Committee under the provisions of the have lapsed with the dissolution of the 9th Lok Sabha.
Constitutional issues of some importance, therefore, arise as to the constitutional and the legal position and status of a Motion for the removal of a Judge under a law made pursuant to Article 124(5) of the Constitution and as to whether the Doctrine of Lapse would apply to such a Motion upon the dissolution of the Lok Sabha and whether, in view of the contention that such motions for removal, im peachment etc.
of holders of high constitutional offices are in their very nature politically introduced, debated and decided in the Houses of Parliament and not elsewhere, the matters arising out of or relating to a Motion for removal of a Judge in either House of the Parliament are at all justiciable before courts of law.
It is also urged that even if these issues have some degree of adjudicative disposition and involve some justiciable areas, the Court should decline to exercise jurisdiction as its decision and its writ might become infructous in view of the fact that in the ultimate analysis, the final arbiter whether at all any Address is to be presented rests exclusively with the Houses of Parliament and which, are wholly outside the purview of the Courts.
The foregoing serves to indicate broadly the com plexities of the constitutional issues on which the Court is invited to pronounce and, as in all constitutional litiga tion, the views inevitably tend to reflect a range of policy options in constitutional adjudications and, in some meas ure, value judgments.
Writ Petition No. 491 of 1991 is by a body called the "SubCommittee on Judicial Accountability" represented by its convener, Sri Hardev Singh, a Senior Advocate of this Court.
Petitioner body claims to be a Sub Committee consti tuted by an "All India Convention on Judicial Accountabili ty" "to carry forward the task of implementing the resolu tions of the conventions".
Writ Petition No. 541 of 1991 is by the Supreme Court Bar Association represented by its Honorary Secretary.
The Bar Association seeks to prosecute this petition "in the larger public interest and in particu lar in the interests of litigant public".
The two prayers common to both the petitions are, first, that the Union of India be directed to take immediate steps to enable the Inquiry Committee to discharge its functions under the "The " and, secondly, that during the pendency of the proceedings before the Committee the learned Judge should be restrained from performing judicial func tions and from exercising Judicial powers.
Writ Petition No. 542 is by a certain Harish Uppal.
This writ petition is more in the nature of a counter to the second prayer in the WP No. 541/1991 and WP No. 491/1991.
Petitioner, Sri Harish Uppal says that till the Inquiry Committee actually finds the learned Judge guilty of the charges there should be no interdict of his judicial func tions and that if such a finding is recorded then thereafter till such time as the Motion for the presentation of the Address for the removal of the Judge disposed of by the Houses of Parliament which petitioner says should not be delayed beyond 180 days the President may ask the Judge concerned to recuse from judical functions.
In Writ Petition No. 560/1991 brought by Shyam Ratan Khandelwal, a practising Advocate, the constitutional valid ity of the is challenged as ultra vires Articles 100, 105, 118, 121 and 124(5) of the Consti tution of India.
It also seeks a declaration that the Motion presented by 108 Members of Parliament for the removal of the Judge has lapsed with the dissolution of the 9th Lok Sabha.
It also seeks quashing of the decision of the Speaker admitting the Motion on the ground that an opportunity of being heard had been denied to the Judge before the Speaker admitted the Motion and proceeded to constitute a Committee.
On the question of the validity of The , 27 1968 the petitioner contends that the law properly construed vests the powers of admitting a Motion and of constituting a Committee under Section 3 in the Speaker in his capacity as Speaker of the House and subject to the well known and well settled principles of law.
procedure and conventions of the Houses of Parliament and the statute does not depart from these principles.
On the contrary, the statute admits of a construction which accords with the powers and privileges of the House and that the Motion even at that stage of admis sion would require to be debated by the House.
It is urged that if that be ' the construction, which the language of the statute admits then there should be no vice of unconstitu tionality in it.
But if the statute is construed to vest such power exclusively in the Speaker, to the exclusion of the House, the statute, on such constitution would be uncon stitutional as violative of Articles 100 (1), 105,118 and 121 of the Constitution.
Transfer Petition No. 268/1991 is for the withdrawal by this Court to itself from the High Court of Delhi, the Writ Petition (Civil) No. 1061/1991 in the Delhi High Court where reliefs similar to those prayed for by Sri Khandelwal in WP (Civil) No. 560/1991 are sought.
The prayer for trans fer has not yet been granted; only the further proceedings in the High Court are stayed.
But full dress arguments in all these matters have been heard.
It is appropriate that this writ petition should also be formally withdrawn and finally disposed of along with the present batch of cases.
All that is necessary is to make a formal order withdrawing WP (Civil) No. 1061/1991 from the Delhi High Court, which we hereby do.
Certain allegations of financial improprieties and irregularities were made against Justice V. Ramaswami, when he was the Chief Justice of the High Court of Punjab & Haryana.
There were certain audit reports concerning certain items of purchases and other expenditure.
The then Chief Justice of India, Justice Sabyasachi Mukharji, took note of the reports in this behalf and of representations submitted to him in this behalf and advised Justice Ramaswami to abstain from discharging judicial functions until those allegations were cleared.
Thereafter, a Committee of three Judges was constituted by the then Chief Justice of India, to look into the matter and to advise him whether on the facts Justice Ramaswami might be embarrassed in discharging judicial functions as a Judge of this Court.
The Committee tendered its advice to the Chief Justice.
It noted that Justice Ramaswami had declined to acknowledge the jurisdic tion of any Committee to sit in judgment over his conduct.
The Committee, accordingly, abstained from an inquiry on the charges but.
on an evaluation of the matter before it, expressed the view that as long as the charges of 28 improper conduct involving moral turpitude were not estab lished in the various enquiries then pending the operation of the constitutional warrant appointing him a Judge of the Court could not be interdicted.
Thereafter, in February, 1991, 108 Members of the Lok Sabha presented a Motion to the Speaker of the 9th Lok Sabha for Address to the President for the removal of the learned Judge under Article 124(4) of the Constitution read with the provisions of the .
On 12.3.1991 the Speaker of the Lok Sabha in purported exercise of his powers under Section 3 of the said Act, admitted the Motion and constituted a Committee as aforesaid to investigate the grounds on which the removal was prayed for.
Soon after the decision of the Speaker to admit the Motion and constitute a Committee to investigate the charges was made, the term of the Ninth Lok Sabha came to premature end upon its dissolution.
The petitioners question the legality of the Speaker 's order and assert that, at all events, the Motion had lapsed with the dissolution of the House.
This contention is supported by the Union of India.
They say that the effect of dissolution of the Ninth Lok Sabha is to "pass a sponge across the Parliamentary slate" and all pending motions lapse.
The motion for removal, it is urged, is no exception.
'We have heard Sri Shanti Bhushan, Sri Ram Jethmala ni, Sri P.P. Rao, Sri R.K. Garg and Ms. Indira Jaising learned senior counsel in support of the prayers in writ petitions Nos. 491 and 541 of 1991 filed by the Sub Commit tee on Judicial Accountability and the Supreme Court Bar Association respectively; Sri G. Ramaswamy, learned Attorney General for the Union of India; Sri Kapil Sibal for the petitioners in writ petition No. 560/91 and transfer peti tion No. 278/91.
Sri Harish Uppal, petitioner in person in writ petition No. 542/91 has filed his written submissions.
The arguments of the case covered a wide constitutional scheme relating to the removal of members of the superior judiciary in India and tO the problems of justiciability of disputes arising therefrom.
We shall refer to the arguments when we assess the merits of these contentions.
The contentions urged at the hearing in support of the petitions which seek enforcement of Speaker 's decision as well as those urged in support of the petitions which say that the Motion has lapsed can be summaried thus: 29 Contention A: The motion for removal of the Judge moved by 108 Members of Parliament as well as the purported decision of the Speaker to admit that motion and to constitute a committee to investigate into the grounds on which removal is sought have lapsed upon the dissolution of the 9th Lok Sabha.
The general rule is that no House of Parliament can seek to bind its successor.
All pending business at the time of dissolution of House lapses.
A motion for removal of a judge is just another motion and perishes with the expiry of the term or the earlier dissolution of the House.
The question whether the motion for the remov al of the judge has lapsed or not is a matter pertaining to the conduct of the business of the House of which the House is the sole and exclusive judge.
No aspect of the matter is justiciable before Court.
Contention B: The constitutional process of removal of a Judge, both in its substantive and procedural aspects, is a political process within the exclusive domain of the Houses of Parliament.
The conduct of the Speaker in regulating the procedure and business of the House shall not be subject to the jurisdiction of any Court.
The Speaker of the Lok Sabha in the exercise of his powers under the , 1%8, acts in an area outside the courts ' jurisdiction.
There is nothing in the which detracts from this doctrine of lapse.
On the contrary, the provi sions of the 'Act ' are consistent with this Constitutional position.
Contention C: Article 124(5) pursuant to which the , is a mere enabling provi sion.
Prior 'proof of misconduct is not a condition precedent before the bar under Article 121 against the discussion of the conduct of the Judge is lifted.
Contention D: The action of the Speaker in admitting the notice of motion without reference to the House and constituting a committee for inves tigation without the support of the decision of the 30 House is ultra vires Articles 100(1), 105, 121 and the rules made under Article 118 of the Constitution.
The provisions of the ; 1968 can be read consistently with the Consti tutional Scheme under the aforesaid Articles.
But if the provisions of the Act are so con strued as to enable the Speaker to exercise and perform those powers and functions without reference to and independently of the House, then the provisions of the Act would be uncon stitutional.
Contention E.
The decision of the Speaker to admit the motion and to constitute a committee for investigation is void for failure to comply with the rules of natural justice as no oppor tunity, admittedly, was afforded to the Judge of being heard before the decision was taken.
Contention F. ' The process of removal by means of a motion for address to the President is a political remedy.
But the fundamental right to move the Supreme Court for enforcement of fundamental rights take within its sweep the right to access to a court comprising of Judges of sterling and unsullied reputation and integri ty which is enforceable.
This judicial remedy is independent of the constitutional remedy and that the court has jurisdiction to decide as to its own proper constitution.
In exercise of this jurisdiction it should examine the grounds of the alleged misbehaviour and re strain the Judge from judicial functioning.
Contention G. ' The Speaker 's decision is vitiated by mala fides and oblique and collateral motives.
Contention H. ' The Supreme Court Bar Association and the Sub Committee on Judicial Accountability the petitioners in Writ Petition No. 491 of 1991 and Writ Petition No. 541 of 1991, respective ly, do not have the requisite standing to sue and the writ petitions are, accordingly, not maintainable at their instance.
31 Contention L ' At all events, even if the Speaker is held to be a statutory authority acting under the Statute and not as part of the proceedings or business of the Lok Sabha and is amenable to the jurisdiction of the Court, any judgment rendered and writ issued by this Court have the prospect of being infructuous in view of the undisputed constitutional position that, in the ultimate analysis, the decision to adopt or turn down the motion is exclusively within the power of the House and the Court would have no jurisdiction over that area.
The Court would, therefore, decline to exercise its jurisdiction on grounds of infructuousness.
Before we discuss the merits of the arguments it is necessary to take a conspectus of the constitutional provi sions concerning the judiciary and its.independence.
hi interpreting the constitutional provisions in this area the court should adopt a construction which strengthens the foundational features and the basic structure of the Consti tution.
Rule of law is a basic feature of the Constitution which permeates the whole of the Constitutional fabric and is an integral part of the constitutional structure.
Inde pendence of the judiciary is an essential attribute of Rule of law.
Articles 124(2) and 217(1) require, in the matter of appointments of Judges, consultation with the Chief Jus tices.
These provisions also ensure fixity of tenure of office of the Judge.
The Constitution protects the salaries of Judges.
Article 121 provides that no discussion shall take place in Parliament with respect to the conduct of any Judge of the Supreme Court or of a High Court in the dis charge of his duties except upon a motion for presenting an address to the President praying for the removal of the Judge as hereinafter provided.
Articles 124(4) and 124(5) afford protection against premature determination of the tenure.
Article i 24(4) says "a Judge of the Supreme Court shall not be removed from his office except" etc.
The grounds for removal are again limited to proved misbehaviour and incapacity.
It is upon a purposive and harmonious con struction and exposition of these provisions that the issues raised in these petitions are to be resolved.
In construing the Constitutional provisions the law and procedure for removal of Judges in other countries afford a background and a comparative view.
The solution must, of course, be found within our own Constitutional Scheme.
But a comparative idea affords a proper perspective for the understanding and interpretation of the Constitu tional Scheme.
32 10.
In England a Judge of the superior courts can be removed only on presentation of an address by both the Houses of Parliament to the Crown.
Proceedings may be initi ated by a petition to either House of Parliament for an address to the Crown or by a resolution for an address to the Crown to appoint a committee of inquiry into the conduct of the person designated, though preferably they should be commenced in the House of Commons.
Sometimes [as in Barring tons Case (1830)], a Commission of Inquiry is appointed and the matter is considered in the light of the report of the said Commission.
The motion for removal is considered by the entire House.
In case any enquiry is to be conducted into the allegations, it is either referred to a Select Committee of the House or to the Committee of the whole House Opportu nity is given to the Judge whose conduct is impugned to make defence on public inquiry.
The report of the Committee and its recommendation are placed before the House where the matter is debated.(See: Halsbury 's Laws of England, 4th Ed.
p. 1108).
This process has been subjected to following criticism (i) legislative removal is coloured by political partisanship inasmuch as the initia tion of the process as well as the ultimate result may be dictated by political considera tions and process of fact finding and deliber ations also suffer from party spirit.
(ii) the government has considerable control not only on the ultimate result of the pro ceedings but also on parliamentary time which enables them to prevent motions for an address from being adopted if it suits them.
(iii) the legislative procedure is not adequate for adjudicative fact finding; and (iv) since Parliament is the master of its own procedure, the procedures and rules of evidence appropriate to judicial proceedings which would seem to be required in a case of judicial removal are unlikely to be allowed in Parliament.
(See: Shetreet Judges on Trial (1976) p. 405 407) 12.
The Justice Sub Committee on the Judiciary consid ered the question whether the existing process for removal by address of the Houses should be substituted for or sup plemented by a new mechanism designed to meet changing needs and conditions.
The Sub Committee, in its 1972 Report, answered the said question in the affirmative and has pro posed a new procedure for removal of judges.
The Sub Commit tee has recommended the establishment of an adhoc judicial commission to be ap 33 pointed by the Lord Chancellor, if he decides that the question of removing a judge is to be investigated.
The Commission should include a majority of, and in any event not less than three, persons who hold or have held high judicial office.
Members of Parliament or persons who hold or have held any political appointment would be excluded.
Upon completing its inquiry the ad hoc Commission shall report the facts and recommend whether the question of removal of a judge should be referred to the Judicial Com mittee of the Privy Council.
If the Commission so recommend ed, the Privy Council would consider the matter and if it concluded that the judge should be removed, it would so advise Her Majesty.
[see: Shetreet 'Judges on Trial ', (1976); pp.
404 405].
Dr. Shetreet has suggested a via media and has favoured the establishment of a Judicial Commission for removal (but not for discipline short of removal) along the lines sug gested by the Sub Committee but has expressed the view that the existing process of address should also be preserved.
[See: Shetreet 'Judges an Trial ', (1976); p. 409].
Similar view has been expressed by Margaret Brazier.
(See: Rodney Brazier 'Constitutional Texts ' (1990) pp.606 607).
In Canada, under section 99(1) of the Constitution Act of 1867, the judges of the superior courts hold office during good behaviour, and are removable by the Governor General on address of the Senate and House of Commons.
On petition for removal submitted in 1868 and 1874 the matter was referred to a Select Committee of the House.
In a third case in 1874 the judge died before any action could be taken on motion for appointment of a Select Committee.
Recently in 1966 67, a motion for removal of Mr. Justice Leo Landreville of the Supreme Court of Ontario was moved and in that con nection a Royal Commission consisting of Mr. Justice Ivan C. Rand, a retired judge of the Supreme Court of Canada was appointed under the Inquiries Act R. section C. 1952 C. 154 to conduct an enquiry.
After considering the report of the said Commission, a Joint Committee of the Houses recommended removal but the judge resigned while Parliament was prepar ing for his removal by joint address.
Thereafter, Judges Act was enacted in 1971 whereby Canadian Judicial Council has been created.
The functions of the said Council as set out in section 39(2) include making the enquiries and the investiga tion of complaints or allegations described in section 40.
Sec tion 40 provides that the council may conduct an enquiry to determine whether a judge of superior, district or county court should be removed from office and it may recommend to the Minister of Justice of Canada that a Judge should be removed from office.
The grounds on which such a recommenda tion can be made are set out in section 41(2) of the Act and they are: (a) age or infirmity, Co) having been 34 guilty of misconduct, (c) having failed in the due execution of his office, or (d) having been placed, by his conduct or otherwise, in a position incompatible with the due execution of his office.
(Gall 'The Canadian Legal System ' ( 1983 ); pp. 184 186).
In 1 '982 the matter of Mr. Justice Thomas Berger, a Judge of the Supreme Court of British Columbia, was investi gated by the Canadian Judicial Council prompted by certain remarks made by the judge.
The Council concluded that the public expression of political views in the nature of those made by Mr. Justice Berger constituted an "indiscretion", but that they were not a basis for a recommendation that he be removed from office and on the basis of the said recom mendation, no further action was taken though Mr. Justice Berger tendered his resignation as a judge a few months later.
(See: Gall. ' The Canadian Legal System, (1983) p. 189) 14.
Under section 72(ii) of the Commonwealth of Austra lia Constitution Act, 1900, the justices of the High Court and of the other courts created by the Parliament cannot be removed except by the GovernorGeneral in Council, on an address from both Houses of the Parliament in the same session praying for such removal on the ground of proved misbehavior or incapacity.
Similar provisions are contained in the Constitutions of the States with regard to removal of Judges of State Courts.
Proceedings were initiated for removal of Mr. Justice Murphy of the High Court of Australia in 1984 under section 72(ii) of the Commonwealth of Australia Constitution Act.
In connection with those proceedings at first a select Commit tee of the Senate was appointed to enquire and report into the matter.
It consisted of six senators drawn from three political parties.
The Committee by majority decision (3: 2, one undecided) found no conduct amounting to misbehaviour under section 72(ii).
In view of the split vote a second Committee of four senators from the same three political parties was established and it was assisted by two retired judges one from the Supreme Court of Western Australia and the other from Supreme Court of the Australian Capital Territory and the said Committee recorded its finding but the judge did not appear before either of the committees.
The judge was also prosecuted before the Central Criminal Court of New South Wales and was found guilty of an attempt to pervert the course of justice but the said verdict was set aside by the Court of Criminal Appeal.
Fresh trial was held where under the judge was found not guilty.
Thereafter, an ad hoc legislation, namely, Parliamentary Commission of Inquiry Act, 1986 was enacted by the Commonwealth Parliament and a Commission consisting of three retired judges respec tively of Supreme Court of Victoria, Supreme Court of Aus tralia Capital Territory 35 and the Federal Court and Supreme Court of South Australia was constituted to investigate into the allegations of misbehaviour.
Before the said commission could give its report, the judge became gravely ill and the Act was re pealed [Lane 's Commentary on the Australian Constitution, (1986) p. 373].
In one other case, proceedings for removal were initiated against Mr. Justice Vasta of the Supreme Court of Queensland and for that purpose, the Queensland Legislature enacted the Parliamentary (Judges) Commission of Inquiry Act, 1988 whereby a commission comprised of three retired judges respectively of the High Court of Australia, Supreme Court of Victoria and the Supreme Court of New South Wales was constituted.
In Australia, there has been criticism of the exist ing procedure with regard to removal of judges both by judges as well as by lawyers.
Mr. Justice L.J. King, Chief Justice of the Supreme Court of South Australia, has ob served: "The concept of removal by an address of both Houses of Parliament is itself the subject of a good deal of criticism.
Curiously, common criticism which are made are contradictory.
One criticism is that the necessity for the involvement of the legislature ensures that the procedure will not be used and that the judges therefore have a practical immunity from removal.
Removal by this means is cer tainly extremely tare.
That may be, however, because in the countries in which this proce dure prevails, conditions are such that a judge who commits a serious act of judicial misconduct would certainly resign.
That con sideration, together with the fact that stand ards of judicial conduct are generally very high in those countries, renders removal by the legislature a rarity.
The opposite criti cism, however, is that there is no established procedure for the trial of a judge whose removal by the legislature is sought.
It is assumed that the legislature would itself institute some form of inquiry at which the judge would be able to defend himself against the accusations, but that would be a matter for the legislature in each case.
There are some who fear that a parliamentary majority, encouraged by inflamed public feeling about an unpopular judicial decision, might some day act to remove a judge, without due process.
It is at least questionable whether the system of removal by an address of both Houses of Parliament accords to a judge the 30 degree of security which is required by the concept of judicial independence.
[ 'Minimum Standards of Judicial Independence ' 1984 (58) ALl 340, at p. 345] Similarly, Mr. Justice M.H. Mclelland of the Supreme Court, of New South Wales has expressed the view: "In lieu of measures of the kinds already discussed, some permanent, and preferably Australia wide, machinery should be provided by legislation for the purpose of establishing an effective procedure for the determination by a judicial tribunal of the existence of misbehaviour or incapacity which could warrant a judge 's removal from office.
The design of that ma chinery should be such as to produce as little damage to judicial independence, public confi dence in the judicial system, and the authori ty of the courts, as is consistent with its effective operation.
It should also be such as to ensure to a judge both procedural fairness and protection from public vilification or embarrassment pending the making of the deter mination".
(Disciplining Australian Judges, at p. 401) Mr. Justice Mclelland has also suggested that the tribu nal should be subject to the supervisory jurisdiction of, and an appeal should lie from the tribunal to, the High Court of Australia.
In this context, he has stated: "Furthermore, the protection of judicial tenure and independence which the Act of Settlement provisions were intended to effect, has in the intervening period lost a great deal of its strength.
In 1701, the Crown, the House of Lords and the House of Commons were three powerful but relatively independent entities.
It was necessary for a judge to incur the displeasure of all three concurrent ly to be at risk of removal under the parlia mentary address procedure.
The subsequent development of the party system and cabinet government (especially with modern ideas of strict party discipline) has radically altered the position.
In modern times, the executive government and the lower house (and frequently the upper house, where there is one) are effectively under the control of a single individual or cohesive group, so that now a judge may be at risk of removal under the parliamentary address procedure if 37 he or she were to incur the sole displeasure of that individual or group." (Disciplining Australian Judges, 8 8 at p. 402 3) Sir Maurice Byers, former Solicitor General of the Commonwealth has also spoken in the same vein: "A federal system involves a tension between the High Court and the Parliament and the executive.
Recent years have seen this in crease because interpretations of the Consti tution have become party dogma.
The Court 's constitutional decisions are seen by many of the uninformed and quite a few of the informed as bearing upon party political questions.
When, as in the case of Mr. Justice Murphy and to a much less degree Sir Garfield Barwick, a former political figure, hands down a judgment he attracts the animus and often the abuse of some in Parliament.
Section 72 of the Consti tution leaves him exposed to the attack of his opponents and the often doubtful support of his former friends.
Whether Parliament may itself decide the judicial question of his fitness for office or "proved misbehaviour or incapacity" is at the least doubtful.
But the Court should not be exposed to this hazard, A Commission of Judges whose membership rotates is called for." (From the other side of the Bar Table: An Advocates ' view of the Judici ary; , at p. 185).
A Constitutional Commission was set up in Australia for suggesting reforms in the Commonwealth Constitution.
The said Commission has recommended that provision should be made by amendment to the Commonwealth Constitution for (a) extending the security of tenure provided by section 72 to all judges in Australia, and (b) establishing a national judicial tribunal to determine whether facts found by that tribunal are capable of amounting to misbehaviour or inca pacity warranting removal of a judge from office.
(Mclelland 'Disciplining Australian Judges ', , at p. 403) 17.
In the United States, the removal of a judge of the U.S. Supreme or a Federal judge is governed by the provisions of the U.S. Constitution wherein Article 11(4) provides for the removal from office of the President, Vice President and all civil officers of the United States on impeachment for, and conviction of, treason, bribery or other high crimes 38 and misdemeanours.
Impeachment may be voted by a simple majority of the members of the House of Representatives, there being a quorum on the floor and trial is then held in the Senate, which may convict by a vote of two thirds of the members of the Senate present and voting, there being a quorum.
With regard to state judiciary, the process of removal is governed by the State Constitutions.
Majority of the States follow the federal pattern an4 provide for im peachment as the normal process of removal of appointed judges.
In some States, provision is made for removal by an address of the Governor to both Houses of legislature or by a joint resolution of the legislature.
In some States, the removal power is vested in the State Supreme Courts while in some states, special courts are provided to hear removal charges.
In the State of New York, the Court is known as the Court on the judiciary.
(See Henry J. Abraham: The Judicial Process, 3rd Ed. p.45).
For judicial administration at the national level, there is Judicial Conference of the United States which consists of the Chief Justices of the United States, the chief judges of each of the eleven numbered circuits and of the District of Columbia and federal circuits but also, since 1957, a district judge representative from each circuit with the exception of the federal circuit, which lacks a trial court tier.
By an Act of the Congress passed in 1932 (incorporated in Title 28 of the U.S. Code) the Judicial Conference is charged with the duty to make a comprehensive survey of the condition of business in the courts; to prepare plans for assignment of judge, ' to or from circuits or districts where necessary; and to submit suggestions and recommendations to the various courts to promote uniformity of management procedures and the expeditious conduct of court business.
The work of the Judicial Conference is performed in special committees which include the special committee on judicial ethics.
Another Act of Congress passed in 1939 makes provi sion for a judicial council for each circuit composed of circuit judges of the circuit who is empowered to make all necessary orders for the effective and expeditious adminis tration of the business of the courts within its circuit.
The mandate of the Judicial Councils embraces the business of the judiciary in its institutional sense (administration of justice), such as avoiding of loss of public esteem and confidence in respect to the court system, from the actions of a judge or other person attached to the courts.
The Judicial Councils have exercised the power of review of allegations of misconduct on the part of court personnel, officers and judges.
In view of the increased number of judges, who can be removed only by the process of impeach ment, Congress has enacted the Judicial Councils Reform and Judicial Conduct and Disability Act of 1980 whereby the Judicial Councils have been explicitly empowered to receive complaints about judicial 39 conduct opaquely described as "prejudicial to the effective and expeditious administration of the business of the courts, or alleging that such a Judge or magistrate is unable to discharge all the duties of office by reason of mental or physical disability.
" It prescribes an elaborate judicilised procedure for processing such complaints within the administrative system of the councils and the Judicial Conference.
Should a Council determine that the conduct constitutes grounds for impeachment the case may be certi fied to the Judicial Conference of the United States which may take appropriate action and if impeachment is deemed warranted, the Conference is empowered to transmit the record and its determination to the House of Representa tives.
In so far as the States are concerned, all the fifty States have central Institutions for disciplining their judges and in each a variously constituted commission is organised in either a single tier or in many tiers depending on the perceived desirability of separating fact finding from judgment recommendation tasks.
Commission recommenda tions are transmitted to the State Supreme Court for its authoritative imprimatur, except in states where they are received by legislatures that retain judicial removal power.
(See Robert J.Janosik Encyclopaedia of the American Judicial System, Vol.
II pp.575 to 578).
This study of the practice prevailing in the above mentioned countries reveals that in Canada, Australia and the United States, the process of removal of a judge incor porates an investigation and inquiry into the allegations of misconduct or incapacity against a judge by a judicial agency before the institution of the formal process of removal in the legislature.
England is the only exception where the entire process is in Parliament but there also views are being expressed that it should be replaced by a judicial process of investigation by a judicial tribunal before the matter is taken up by the Houses of Parliament.
This is also the trend of the recommendations in the resolu tions adopted by the United Nations General Assembly and international conferences of organisations of lawyers.
International Bar Association at its 19th Biennial Conference held at New Delhi in October 1982 adopted Minimum Standards of Judicial Independence.
Paras 27 to 32 relating to 'Judicial Removal and Discipline ' are as under: "27.The proceedings for discipline and removal of judges should ensure fairness to the judge, and adequate opportunity for hearing.
40 28.
The procedure for discipline should be held in camera.
The judge may however request that the heating be held in public, subject to final and reasoned disposition of this request by the Disciplinary Tribunal.
Judgments in disciplinary proceedings whether held in camera or in public, may be published.
(a) The grounds for removal of judges should be fixed by law and shall be clearly defined.
(b) All disciplinary action shall be based upon standards of judicial conduct promulgated by law or in established rules of court.
A judge shall not be subject to removal unless, by of a criminal act or through gross or repeated neglect or physical or mental incapacity, he has shown himself manifestly unfit to hold the position of judge.
In systems where the power to discipline and remove judges is vested in an institution other than the Legislature, the tribunal for discipline and removal of judges shall be permanent and be composed predominantly of members of the Judiciary.
The head of the court may legitimately have supervisory powers to control judges on administrative matters.
The First World Conference on the Independence of Justice held at Montreal on June 10, 1983 adopted a UniVer sal Declaration on the Independence of Justice.
It relates to international judges as well as national judges.
The following paragraphs deal with 'Discipline and Removal ' in relation to national judges: "2.32 A complaint against a judge shall be processed expeditiously and fairly under an appropriate practice, and the judge shall have the opportunity to comment on the complaint at its initial stage.
The examination of the complaint at its initial stage shall be kept confidential, unless otherwise requested by the judge.
2.33 (a) The proceedings for judicial removal or discipline, when such are initiated, shall be held before a court or a board predominant ly composed of members of the judiciary and selected by the judiciary.
(b) However, the power of removal may be vested in the Legislature by impeachment or joint address, preferably upon a recommenda tion of a court or board as referred to in 2.33(a).
41 [Explanatory Note: In countries where the legal profession plays an indispensable role in maintaining the rule of law and judicial independence, it is recommended that members of the legal profession participate in the selection of the members of the court or board, and be included as members thereof.
] 2.34 All disciplinary action shall be based upon established standards of judicial con duct.
2.35 The proceedings for discipline of judges shall ensure fairness to the judge and the opportunity of a full hearing.
2.36 With the exception of proceedings before the Legislature, the proceedings for disci pline and removal shall be held in camera.
The judge may, however, request that the hearing be held in public, subject to a final and reasoned disposition of this request by the Disciplinary Tribunal.
Judgments in discipli nary proceedings, whether held in camera or in public, may be published.
2.37 With the exception of proceedings before the Legislature or in connection with them, the decision of a Disciplinary Tribunal shall be subject to appeal to a court.
2.38 A judge shall not be subject to removal except on proved grounds of incapacity or misbehaviour, rendering him unfit to continue in office.
2.39 In the event that a court is abolished judges serving in this court shall not be affected, except for their transfer to another court of the same status.
The Seventh United Nations Congress on the Preven tion of Crime and the Treatment of Offenders held at Milan from August 26 to September 6, 1985 adopted the Basic Prin ciples on the Independence of the Judiciary.
Paragraphs 17 to 20 dealing with 'Discipline, Suspension and Removal ' are as under: "17.A charge or complaint made against a judge in his/her judicial and professional capacity shall be processed expeditiously and fairly under an appropriate procedure, The judge shall have the right to a fair heating.
The examination of the matter at its initial stage shall be kept confidential, unless otherwise requested by the judge.
Judges shall be subject to suspension or removal only for reasons of incapacity or behaviour that renders them unfit to 42 discharge their duties.
All disciplinary, suspension or removal proceedings shall be determined in accordance with established standards of judicial con duct.
Decisions in disciplinary, suspension or removal proceedings should be subject to an independent review.
This principle may not apply to the decisions of the highest court and those of the legislature in impeachment or similar proceedings.
" The Congress Documents were endorsed by the U.N. General Assembly in its Resolution 40/32 on November 9, 1985 and Resolution 40/ 146 on December 13, 1985.
Resolution 40/146 dated December 13, 1985 of the General Assembly specifically welcomed the Basic Principles on the Independence of the Judiciary and invited Government "to respect them and to take them into account within the framework of their nation al legislation and practice" (para 2).
Unlike the judges of the Superior courts in England, the judges in the colonies did not enjoy the security of tenure as guaranteed under the Act of Settlement, 1700 and they held office at the pleasure of the Crown.
(See: Terrell vs Secretary of State for the Colonies and Another, 1953(2), 482).
The position was not different in India till the enactment of Government of India Act, 1935.
In Clause (b) of the proviso to sub Section 2 of Section 200 of the said Act which related to judges of the Federal Court, it was pre scribed that "a judge may be removed from his office by order of the Governor General on the ground of misbehaviour or of infirmity of body or mind, if the Judicial Committee of the Privy Council, on reference being made to them, report that the judge ought on any such ground to be re moved".
Similar provisions were made with regard to judges of the High Court in Section 220.
It would thus appear that prior to the coming into force of the Constitution of India, it was necessary to have a determination by a judicial body about the alleged grounds of misbehaviour or infirmity of mind and body before a judge of the Federal Court or High Court could be removed.
Does the Constitution seek to alter this position in a way, as to exclude investigation and proof of misbehaviour or incapacity by a judicial body and to rest the power of removal including the investigation and proof of misbehaviour or incapacity in Parliament alone.
Basically, the process of removal or impeachment of a judge is a political process.
A learned author in "The Impeachment of the Federal 43 Judiciary: ' [Wrisley Brown Harward Law Review 1912 1913 684 at page 698) says: ".
Thus an impeachment in this country, though judicial in external form and ceremony.
is political in spirit.
It is directed against a political offence.
It culminates in a polit ical judgment.
It imposes a political forfei ture.
In every sense, say that of administra tion, it is a political remedy, for the sup pression of a political evil, with wholly political consequences.
This results in no confusion of the political and the judicial powers.
The line of demarca tion is clearly discernible even through the labyrinth of formal non essentials under which ingenious counsel in various cases have sought to bury it.
The judgment of the High Court of Parliament upon conviction of an impeachment automatically works a forfeiture of political capacity; but this is simply an effect of the judgment, which is to be distinguished from the judgment itself. " Mauro Cappelletti in 'The Judicial Process in Comparative Perspective '[Clarendon Press Oxford 1989 at page 731 says: "Two main features of this accountability type can be identified; first, the fact that ac count has to be given to 'political ' bodies, ultimately to the legislative and/or the executive branches by means of essentially 'po litical ', non judicial processes; second, and perhaps even more characteristically, the fact that account has to be given not, or not primarily, for 'legal ' violations, but rather for behaviour (and this might include private, out of office behaviour) which is evaluated on the basis of 'political ' criteria.
Perhaps the best illustration of political accountability can be found in the systems of the common law tradition.
In England, judges (like any other officials) can be impeached 'before the House of Lords, at the suit of the House of Commons ', although this practice has fallen into desuetude; moreover, higher court judges can be 'removed from office by the Crown on an address presented to Her Majesty by both Houses of Parliament '.
The idea behind this 'address ' procedure is that judges are appointed 'during good behaviour ', hence, they can be removed upon breach of the condition.
Misbehaviour includes such situations as 'the case of conviction upon an indictment for any infamous offence of such a nature as to render the 44 person unfit to exercise the office ', but also 'improper exercise of the functions appertain ing to the office, or non attendance, or neglect of or refusal to perform the duties of the office '.
Of course the decision of the Houses and the Crown can only be an essential ly political one, not a purely juridical decision, even though we are informed that the removal procedure is subject to some extent 'to the rules of natural justice '. " 24.
But the Constitutional scheme in India seeks to achieve a judicious blend of the political and judicial processes for the removal of Judges.
Though it appears at the first sight that the.proceedings of the Constituent Assembly relating to the adoption of.
clauses, (4) and (5) of Article 124 seem to point to the contrary and evince 'an intention to exclude determination by a judicial process of the correctness of the allegations of misbehaviour or inca pacity on a more careful examination this is not the correct conclusion.
In the submissions of the learned counsel who contend against the manifestation of an intention to bring in a judicial element, reliance has been placed on the proceedings of the Constituent Assembly dated July 29, 1947 relating to adoption of Clause 18 of the report of the Union Constitution Committee relating to the Supreme Court.
Shri Alladi Krishnaswami Ayyar had moved the said clause subject to modifications and conditions in the said clause which related to appointment and removal of judges of Supreme Court.
It was provided that "a judge of the Supreme Court of India shall not be removed from his office except by the President on an address from both the Houses of Parliament of the Union in the same session for such removal on the ground of proved misbehaviour or incapacity.
Further provi sion may be made by Federal law for the procedure to be adopted in this behalf '.
Shri K. Santhanam had moved an amendment in the said Clause relating to removal of judges and he wanted the last sentence about further provision being made by Federal law for the procedure to be adopted in that behalf, to be omitted.
Shri M.Ananthasayanam Ayyanagar proposed amendments suggesting two alternative clauses in the place of the Clause with regard to removal of the judges.
In one clause, it was suggested that "a judge may be removed from office on the ground of misbehaviour or infirm ity of mind or body by an address presented in this behalf by both the Houses of the legislature to the President provided that a committee consisting of not less than 7 High Court Chief Justices chosen by the President, investigates and reports that the judge on any such ground be removed".
The other alternative clause suggested by Shri M.Anantha sayanam Ayyangar was that "a judge of the Supreme Court may be removed from office by the President on the ground of misbehaviour or of infirmity of mind or body, if on refer ence being made to it (Supreme Court) by the President, a special 45 tribunal appointed by him for the purpose from amongst judges or exjudges of the High Courts or the Supreme Court, report that the" 'judge ought on any such grounds to be removed.
" The Constituent Assembly adopted clause 18 with the amendments as proposed by Shri Alladi Krishnaswami Ayyar and rejected the amendments suggested by Shri M. Anantha sayanam Ayyangar.
Shri Santhanam did not press his amendment and it was withdrawn.
There is no doubt that in the amend ments which were suggested by Shri M.Ananthasayanam Ayyan gar, it was provided that there should be investigation into the allegations of misbehaviour or infirmity by a committee consisting of Chief Justices of the High Courts or the special tribunal consisting of judges or ex judges of the High Court or the Supreme Court, but the rejection of the said amendments moved by Shri Ayyangar does not mean that the Constituent Assembly was not in favour of determination about the correctness of such allegations by judicial body because Shri Alladi Krishnaswami Ayyar, while moving Clause 18 had emphasised the word 'proved misbehaviour ' and had stated: "While the ultimate power may rest with the two Houses, the Clause provides that the charges must be proved.
How exactly to prove the charges will be provided for in the Feder al law.
We need not be more meticulous or more elaborate, than the people who have tried a similar case in other jurisdictions.
I chal lenge my friend to say whether there is any detailed provision for the removal of judges more than that in any other Constitution in the world.
The general principle is laid down in the Constitution and later on the Federal law will provide for adequate machinery and that is the import of the clause". .
There is sufficient safeguard in the reference "proved misbehaviour" and we might make elabo rate and adequate provision for the way in which ',he guilt could be brought home to a particular judge in any Federal law that may be passed but that is a different matter". "But I do not think that in a Constitution it is necessary to provide de tailed machinery as to the impeachment, the charges to be framed against a particular judge.
To make a detailed machinery for all these could be a novel procedure to be adopted in any Constitution".
(Constituent Assembly Debates, vols.
I to VI at pp.
899 900) 25.
Reference was also made to the debates of the Con stituent Assembly dated May 24, 1949 on Article 103 of the Draft Constitution.
Shri Tajamul Hnsain moved an amendment in Clause (4) of Article 103 which related to the removal of a judge of Supreme Court and suggested an amendment in the said clause so as to provide that "a judge of the Supreme 46 Court shall not be removed from his office except by an order of the President passed, after a Committee consisting of all the judges of the Supreme Court had investigated the charge and reported on it to the President and etc.
" The said amendment was negatived by the Constituent Assembly.
(Constituent Assembly Debates, vol.
VIII at pp.
243 and 262).
The said amendment was similar to those moved by Shri M. Ananthasayanam Ayyangar at the stage of adoption of Clause 18 of the report of the Union Constitution Committee noticed earlier.
The reasons which were given by Shri Alladi Krishnaswami Ayyar for opposing the said amendments would apply to this amendment also.
The proceedings in the Constituent Assembly, there fore, do not give an indication that in adopting Clauses (4) and (5) of Article 124 of the Constitution, the intention of the Costituent Assembly was to exclude_ investigation and proof of misbehavior or incapacity of the judge sought to be removed, by a judicial body.
Having regard to the views expressed by Shri Alladi Krishnaswami Ayyar, who was a member of the Drafting Committee, while opposing the amend ments proposed by Shri M.Ananthasayanam Ayyangar, it is possible to infer that the intention of the Constituent Assembly was that the provision with regard to the machinery for such investigation and proof was a matter which need not be contained in the Constitution and it is a matter for which provision could be made by Parliament by law.
This is some of the historical material and back ground on the topic.
We may now proceed to consider the merits of the contentions.
RE: CONTENTION A: 28.
This contention has two aspects: whether a motion for removal of a Judge lapses upon the dissolution of the House of Parliament and secondly, the question whether it so lapses or not is a matter within the exclusive domain and decision of that House itself.
On the first aspect, the contention of the learned Attorney General and Shri Kapil Sibal, learned Senior Counsel, are similar.
On the second aspect, the learned Attorney General would say that the question whether a motion lapsed or not is to be decided on the basis of the provisions of law guiding the matter and the House itself is not its final arbiter.
Learned Attorney General would say that the Court alone has jurisdiction to examine and pronounce on the law of the matter.
On the question of lapse reliance was placed on the classic treatise of Erskine May 's "The Law, Privileges, Proceedings and Usage 47 of Parliament" [Twenty first Edition, London Butterworths 1989].
A motion is described as a "proposal made for the purpose of illustrating the decision of the House".
Accord ing to Erskine May, certain matters may be raised by only a substantive motion.
He says: "Certain matters cannot be debated, except on a substantive motion which allows a distinct decision of the House.
Amongst these are the conduct of the sovereign, the heir to the throne or other members of the Royal Family, a Governor General of an independent territory, the Lord Chancellor, the Speaker, the Chairman of Ways and Means, Members of either House of Parliament and judges of the superior courts of the United Kingdom, including persons holding the position of a judge, such as a judge in a court of bankruptcy and a county court, or a recorder. " 30. 'Sri Sibal placed strong reliance on the following statements in M.N.Kaul and S.L.Shakdher in "Practice and Procedure of Parliament" as to the effects of the dissolu tion of the House: "Dissolution, as already stated, marks the end of the life of a House and is followed by the constitution of a new House.
Once the House has been dissolved, the dissolution is irrevo cable.
There is no power vested in the Presi dent to cancel his order of dissolution and revive the previous House.
The consequences of a dissolution are absolute and irrevocable.
In Lok Sabha, which alone is subject to dissolu tion under the Constitution, dissolution "passes a sponge over the parliamentary slate".
All business pending before it or any of its committees lapses on dissolution.
No part of the records of the dissolved House can be carried over and transcribed into the records or registers of the new House.
In short, the dissolution draws the final curtain upon the existing House".
Adverting to the effect of dissolution on other business such as motions, resolutions etc.
, the learned authors say: "All other business pending in Lok Sabha, e.g., motions, resolutions, amendments supple mentary demands for grants etc., at whatever stage, lapses upon dissolution, as also the petitions presented to the House which stand referred to the Committee on Petitions." Learned Attorney General urged that a combined reading of Articles 107, 108 and 109 leads irresistibly to the conclusion that upon dissolution 48 of the House, all bills will lapse subject only to the exception stipulated in Article 108.
It is further urged that on first principle also it requires to be accepted that no motion should survive upon the dissolution of the House unless stipulated otherwise under the Rules of Procedure and conduct of business.
The doctrine of lapse, it is urged, is a necessary concomitant of the idea that each newly consti tuted House is a separate entity having a life of its own unless the business of the previous House is carried over by the force of statute or rules of procedure.
Both the learned Attorney General and Shri Kapil Sibal took us through the Rules of Procedure and Conduct of Business in Lok Sabha made under Article 118 of the Constitution to show that invaria bly all pending business come to an end with the expiry of the term of the House or upon its earlier dissolution.
Shri Ram Jethmalani for the petitioner sub committee referred to the conventions of the British Parliament and urged that pending business lapses on prorogation and as a general practice the House is usually prorogued before it is dissolved.
Learned counsel said that impeachment motions are sui generous in their nature and that they do not lapse.
It is.
however, necessary to distinguish the Indian Parliamen tary experience under a written Constitution from the Brit ish conventions.
Indeed, referring to the doctrine of lapse this Court in Purushothaman Nambudiri vs The State of Kerala [1962] Suppl.
1 SCR 753 Gajendragadkar J said: ".
In support of this argument it is urged that wherever the English parliamentary form of Government prevails the words "prorogation" and "dissolution" have acquired the status of terms of art and their significance and conse quence are well settled.
The argument is that if there is no provision to the contrary in our Constitution the English convention with regard to the consequence of dissolution should be held to follow even in India.
There is no doubt that, in English, in addition to bringing a session of Parliament to a close prorogation puts an end to all business which is pending consideration before either House at the time of such prorogation; as a result any proceedings either in the House or in any Committee of the house lapse with the session Dissolution of Parliament is invariably pre ceded by.
prorogation, and what is true about the result of prorogation" is, it is said, a fortiori true about the result of dissolution.
Dissolution of Parliament is sometimes de scribed as "a civil death of Parliament".
Ilbert, in his work on 'Parliament ' has ob served that "prorogation means the end of a session (not of a Parliament)"; and adds that "like dissolution, it kills all bills which have not yet passed".
He also describes disso lution as an "end of a Parliament (not merely of 49 a session) by royal proclamation", and ob serves that "it wipes the slate clean of all uncompleted bills or other proceedings". "[p.759 & 760].
After referring to the position in England that the dissolution of the House of Parliament brought to a close and in that sense killed all business of the House at the time of dissolution, the learned Judge said: " . .
Therefore, it seems to us that the effect of cl.
(5) is to provide for all cases where the principle of lapse on dissolution should apply.
If that be so, a Bill pending assent of the Governor or President is outside cl.
(5) and cannot be said to lapse on the dissolution of the Assembly." [p. 768] " . .
In the absence of cl. (5) it would have followed that all pending business, on the analogy of the English convention, would lapse on the dissolution of the Legisla tive Assembly.
It is true that the question raised before us by the present petition under Pal.
196 is not free from difficulty but, on the whole, we are inclined to take the view that the effect of cl.
(5) is that all cases not falling within its scope are not subject to the doctrine of lapse of pending business on the dissolution of the Legislative Assem bly.
In that sense we read cl.
(5) as dealing exhaustively with Bills which would lapse on the dissolution of the Assembly.
If that be the true position then the argument that the Bill which was pending assent of the President lapsed on the dissolution of the Legislative Assembly cannot be upheld." [P. 769] 31.
It is true that Purushothaman Nambudiri case dealt with a legislative measure and not a pending business in the nature of motion.
But, we are persuaded to the view that neither the doctrine that dissolution of a House "passes a sponge over parliamentary slate" nor the specific provisions contained in any rule or rules flamed under Article 118 of the Constitution determine the effect of dissolution on the motion for removal of a judge under Article 124.
the reason is that Article 124(5) and the law made thereunder exclude the operation of Article 118 in this area.
Section 3 of the Act provides: "3(1) If notice is given of a motion for presenting an address to the President praying for the removal of a Judge signed, (a) in the case of a notice given in the House of the People, by not less than one hundred members of that House; 50 (b) in the case of a notice given in the Council of States, by not less than fifty members of that Council; then, the Speaker or, as the case may be, the Chairman may, after consulting such persons, if any, as he thinks fit and after considering such materials, if any, as may be available to him, either admit the motion or refuse to admit the same.
(2) If the motion referred to in sub section (1) is admitted, the Speaker or, as the case may be, the Chairman shall keep the motion pending and constitute, as soon as may be, for the purpose of making an investigation into the grounds on which the removal of a Judge is prayed for, a Committee consisting of three members of whom (a) One shall be chosen from among the Chief Justices and other Judges of the Supreme Court; Co) one shall be chosen from among the Chief Justices of the High Courts; and (c) one shall be a person who is, in the opinion of the Speaker or, as the case may be, the Chairman, a distinguished jurist; Proviso &) Omitted Sub sections) as (3) to (9)) unnecessary here.
Section 6.(2) provides: "(2) If the report of the Committee contains a finding that the Judge is guilty of any misbe haviour or suffers from any incapacity, then, the motion referred to in sub section (1) of section 3 shall, together with the report of the Committee, be taken up for consideration by the House or the Houses of Parliament in which it is pending.
" The effect of these provisions is that the motion shall be kept pending till the committee submits its report and if the committee finds the Judge guilty, the motion shall be taken up for consideration.
Only one motion is envisaged which will remain pending.
No words of limitation that the motion shall be kept pending subject to usual effect of dissolution of the House can or should be imported.
The reason is that a law made by the Parliament and binding on the House can provide against the doctrine of lapse.
The law envisaged in article 124(5) is Parliamentary law which is of higher quality and efficacy than rules made by the House for itself under Article 118.
Such a law can, and under the present statute does 51 provide against the doctrine of lapse.
Further, article 118 expressly states that each House of Parliament may make rules "for regulating, subject to the provisions of this Constitution".
In State of Punjab vs Sat Pal Dang & Ors. ; this Court held that the law for purposes of Article 209 (analogues to Article 119) could even take the form of an Ordinance promulgated by the Governor of a State under Article 213 and that wherever there is repugnance between the Rules of Procedure framed under Article 208 (Article 118 in the ease of Parliament), the law made under Article 209 shall prevail.
In the constitutional area of removal of a Judge, the law made under Article 124(5) must be held to go a little further and to exclude the operation of the Rules under Article 118.
Indeed, no question of repugnance could arise to the extent the field is covered by the law under Article 124(5).
Such a view would indeed obviate some anomalies which might otherwise arise.
Rajya Sabha is not dissolved and a motion for presentation of address for the removal of the Judge can never lapse there.
Section 3 applies to both the Houses of Parliament.
The words "shall keep the motion pending" cannot have two different meanings in the two different contexts.
It can only mean that the consideration of the motion shall be deferred till the report of the committee implying that till the happening of that event the motion will not lapse.
We are of the view that the argument that such a motion lapses with the dissolution of the House of Parliament is not tenable.
The second limb of Contention A is that the question whether a motion has lapsed or not is a matter pertaining to the conduct of the business of the House of which the House is the sole and exclusive master.
No aspect of the matter, it is contended, is justificiable before a Court.
Houses of Parliament, it is claimed, are privileged to be the exclu sive arbiters of the legality of their proceedings.
Strong reliance has been placed on the decision in oft quoted decision in Bradlaugh vs Gosserr, There the exclusiveness of parliamentary jurisdiction on a matter related to the sphere where Parliament, and not the Court, had exclusive jurisdiction even if the matters were covered by a statute.
But where, as in this country and unlike in England, there is a written constitution which constitutes the funda mental and in that sense a "higher law" and acts as a limi tation upon the Legislature and other organs of the State as grantees under the Constitution, the usual incidents of parliamentary sovereignty do not obtain and the concept is one of 'limited Government '.
Judicial review is, indeed, an incident of and flows 52 from this concept of the fundamental and the higher law being the touchstone of the limits of the powers of the various organs of the State which derive power and, authori ty under Constitution and that the judicial wing is the interpreter of the Constitution and, therefore, of the limits of authority of the different organs of the State.
It is to be noted that the British Parliament with the Crown is Supreme and its powers are unlimited and courts have no power of judicial review of legislation.
This doctrine is in one sense the doctrine of ultra vires in the constitutional law.
In a federal set up the judiciary becomes the guardian of the Constitution.
Indeed, in A.K. Gopalan vs The State of Madras, ; Arti cle 13 itself was held to be ex abundante cautela and that even in its absence if any of the fundamental rights were infringed by any legislative enactment, the court had always power to declare the enactment invalid.
The interpretation of the Constitution as a legal instrument and its obligation is the function of the Courts.
"It is emphatically the province and duty of the judicial department to say what the law is".
In Re: Special Reference Case; , Gajendragadkar, CJ said: ". .though our Legislatures have plenary powers, they function within the limits pre scribed by the material and relevant provi sions of the Constitution.
In a democratic country governed by a written Constitution, it is the Constitution which is supreme and sovereig. . " But it is the duty of this Court to interpret the Con stitution for the meaning of which this Court is final arbiter.
Shri Kapil Sibal referred us to the following obser vations of Stephen J. in Bradlaugh vs Gosserr, supra: ".
It seems to follow that the House of Commons has the exclusive power of interpret ing the statute, so far as the regulation of its own proceedings within its own walls is concerned; and that even if that interpreta tion should be erroneous, this court has no power to interfere with it directly or indi rectly. " [p. 280 & 281] ".
The House of Commons is not a Court of Justice; but the effect of its privilege to regulate its own internal concerns practically invest it with the judicial character when it has to apply to particular cases the provi sions of Acts of Parliament.
53 We must presume that it discharges this func tion properly and with due regard to the laws, in the making of which it has so great a share.
If its determination is not in accord ance with law, this resembles the case of an error by a judge whose decision is not subject to appeal.
There is nothing startling in the recognition of the fact that such an error is possible.
If, for instance, a jury in a crimi nal case gives a perverse verdict, the law has provided no remedy.
The maxim that there is no wrong without a remedy does not mean, as it is sometimes supposed, that there is legal remedy for every moral or political wrong. . " [p. 285] The rule in Bradlaugh vs Gossett, supra, was held not applicable to proceedings of colonial legislature governed by the written constitutions Barton vs Taylor, and Redillusion (Hong Kong) Ltd. vs Attorney General of Hong Kong, ; The principles in Bradlaugh is.
that even a statutory right if it related to the sphere where Parliament and not the courts had exclusive jurisdiction would be a matter of the Parliament 's own concern.
But the principle cannot be extended where the matter is not merely one of procedure but of substantive law concerning matters beyond the Parliamen tary procedure.
Even in matters of procedure the constitu tional provisions are binding as the legislations are en forceable.
Of the interpretation of the Constitution and as to what law is the Courts have the constitutional duty to say what the law is.
The question whether the motion has lapsed is a matter to be pronounced upon the basis of the provisions of the Constitution and the relevant laws.
In deed, the learned Attorney General submitted that the ques tion whether as an interpretation of the constitutional processes and laws, such a motion lapses or not is exclu sively for the courts to decide.
The interpretation of the laws is the domain of the courts and on such interpretation of the constitutional provisions as well as the , it requires to be held that under the law such a motion does not lapse and the Courts retain jurisdiction to so declare.
Contention A is answered accordingly.
RE: CONTENTIONS (B), (C) AND (D): 34.
These contentions have common and over lapping areas and admit of being deal with and disposed of together.
On tile interpretative criteria apposite to the true meaning and scope of Articles 121, 124(4) and 124(5), indeed, three constructional options become avail able: 54 First: The entire power for taking all steps for the removal of a Judge, culminating in the presentation of an address by different Houses of Parliament to the Presi dent, is committed to the two Houses of Par liament alone and no initiation of any investigation is possible without the initiative being taken by the Houses them selves.
No law made by Parliament under Article 124(5) could take away this power.
The bar of Article 121 is lifted the moment any Member of Parliament gives notice of motion for the removal of a Judge and the entire allegations levelled by him would be open for discussion in the House itself.
It will be for the majority of the Members of the House t decide if and how they would like to have the allegations investigated.
Any abridging this power is bad.
Second: Since a motion for presenting an address to the President referred to in Arti cles 121 and 124 (4) has to be on ground of "proved" misbehaviour and incapacity, no such motion can be made until the allegations relating to misbehaviour or incapacity have first been found to be proved in some forum outside either Houses of Parliament Law under Article 124(5) is mandatory and until the Parliament enacts a law and makes provision for an investigation into the alleged misbeha viour or incapacity and regulates the proce dure therefor, no motion for removal of a Judge would be permissible under Article 124(4) and the House of Parliament would not be brought into the picture till some authori ty outside the two Houses of Parliament has recorded a finding of misbehaviour or incapac ity.
The emphasis is on the expression 'proved '.
Third: That Article 124(5) is only an enabling provision and in the absence of any enactment by the Parliament under that provi sion it would be open to either House to entertain a motion for the removal of a Judge.
However, it is open to the Parliament under Article 124(5) to enact a law to regulate the entire procedure starting with the investiga tion of the allegations against the Judge concerned and ending with the presentation of the address by the two Houses of Parliament.
It would be open to the Parliament to desig nate any authority of its choice for investi gating the allegations and also to regulate the 55 procedure for the consideration of the matter in either House.
As soon as a law has been enacted all its provisions would be binding on both Houses of Parliament and would even override any Rules flamed by the two Houses under Article 118 of the Constitution.
It will not be permissible for either House to act contrary to the provi sions of such Act.
The question as to when and in what circumstances motion would be allowed to be moved in either House of Parliament to lift the ban against the discussion of conduct of a Judge under Article 121 would be accord ing to such Act of Parliament.
In regard to the first and the second alternative propo sitions, the deliberations of the Joint Select Committee would indicate a sharp divide amongst the eminent men who gave evidence.
Particularly striking is the sharp contrast between the opinions of Mr. K.K. Shah and Mr. M.C. Setalvad.
The first view would tend to leave the matter entirely with the House, which can adopt any procedure even differing from case to case.
The matter would be entirely beyond judicial review.
Then there is the inevitable ' element of political overtone and of contemporary political exacerbations arising from inconvenient judicial pronouncements thus endangering judicial independence.
The third view would suffer from the same infirmities except that Parliament might itself choose to discipline and limit its own powers by enacting a law on the subject.
The law enacted under Article 124(5) might be a greatly civi lized piece of legislation deferring to values of judicial independence.
But then the Parliament would be free to repeal that law and revert hack to the position reflected in the first view.
The third view can always acquire back the full dimensions of the first position at the choice of the Parliament.
The second view has its own commendable features.
It enables the various provisions to be read harmoniously and, together, consistently with the cherished values of judicial independence.
It also accords due recognition to the word "proved" in Article 124(4).
This view would also ensure uniformity of procedure in both Houses of Parliament and serve to eliminate arbitrariness in the proceedings for removal of a Judge.
It would avoid duplication of the inves tigation and inquiry in the two Houses.
Let us elaborate on this.
56 36.
Article 121 ,and the material parts of Article 124 read as under: "121.
Restriction on discussion in Parlia ment.
No discussion shall take place in Parliament with respect to the conduct of any Judge of the Supreme Court or of a High Court in the discharge of his duties except upon a motion for presenting an address to the Presi dent praying for the removal of the Judge as hereinafter provided.
Establishment and constitution of Supreme Court.
(1). . . . . . (2) Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose and shall hold office until he attains the age of sixty five years: Provided that in the case of appointment of a Judge other than the Chief Justice of India shall always be consulted: Provided further that (a) a Judge may, by writing under his hand addressed to the President, resign his office; (b) a Judge may be removed from his office in the manner provided in clause (4).
(4) A Judge of the Supreme Court shall not be removed from his office except by an order of the President passed after an address by each House of Parliament supported by a majority of not less than two thirds of the members of that House present and voting has been pre sented to the President in the same session for such removal on the ground of proved misbehaviour or incapacity.
(5) Parliament may by law regulate the proce dure for the presentation of an address and for the investigation and proof of the misbe haviour or incapacity of a Judge under clause (4).
" Article 121 suggests that the bar on discussion in Parliament with respect to the conduct of any Judge is lifted 'upon a motion for presenting an address to the President praying for the removal of a Judge as hereinaf 57 provided '.
The word 'motion ' and 'as hereinafter provid ed ' are obvious references to the motion for the purpose of clause (4) of Article 124 which in turn, imports the concept of "proved" misbehaviour or incapacity.
What lifts the bar under Article 121 is the 'proved ' misbehaviour or incapaci ty.
Then arises the question as to how the investigation and proof of misbehaviour or incapacity preceding the stage of motion for removal on the ground of "proved" misbehaviour or incapacity under Article 124(4) is to be carried on.
Clause (5) of Article 124 provides for enactment of a law for this purpose.
The seminal question is whether clause (5) is merely an enabling provision particularly in view of the use of the word 'may ' therein, or it incorporates a condition precedent on the power of removal of the parliament.
In other words, can the function of removal under Article 124(4) be per formed without the aid of a law enacted under clause (5)?If it can be, then the power for investigation and proof of misbehaviour or incapacity of a Judge must be found in clause (4) itself and the scope of clause (5) limited only to enactment of a law for this limited purpose if the Par liament so desires and not otherwise.
The other view is that clause (5) contains a constitutional limitation on the power of removal contained in clause (4) so that it can be exer cised only on misbehaviour or incapacity "proved" in accord ance with the law enacted under clause (5).
In such situa tion, the power of the Parliament would become available only for enacting the law under clause (5) and if misbeha viour or incapacity is "proved" in accordance with such law.
The motion which lifts the bar contained in Article 121 is really a motion for such removal under clause (4) of Article 124 moved in the House after the alleged misbehavior or incapacity has been proved in accordance with the law enact ed by the Parliament under clause (5) of Article 124.
In this connection, the parliamentary procedure commences only after proof of misbehaviour or incapacity in accordance with the law enacted under clause (5), the machinery for investi gation and finding of proof of the misbehaviour or incapaci ty being statutory.
governed entirely by provisions of the law enacted under clause (5).
This also harmonises Article 121.
The position would be that an allegation of misbeha viour or incapacity of a Judge has to be made, investigated and found proved in accordance with the law enacted by the Parliament under Article 124(5) without the Parliament being involved upto that stage; on the misbehaviour or incapacity of a Judge being found proved in the manner provided by that law, a motion for presenting an address to the President for removal of the Judge on that ground would be moved in each House under Article 124(4); on the motion being so moved after the proof of misbehaviour or incapacity and it being for presenting an address to the President praying for removal of the Judge, the bar.
on 58 discussion contained in Article 121 is lifted and discussion can take place in the Parliament with respect to the conduct of the Judge; and the further consequence would ensue de pending on the outcome of the motion in a House of Parlia ment.
If, however, the finding reached by the machinery provided in the enacted law is that the allegation is not proved, the matter ends and there is no occasion to move the motion in accordance with Article 124(4).
If it be accepted that clause (4) of Article 124 by contains the complete power of removal and the enactment of a law under clause (5) is merely enabling and not a consti tutional limitation on the exercise of the power of removal under clause (4), then some other questions arise for con sideration.
If clause (5) is merely an enabling provision, then it cannot abridge the scope of the power in clause (4) and, therefore, the power of a House of Parliament under clause (4) cannot be curtailed by a mere enabling law enact ed under clause (5) which can be made only for the purpose of aiding or facilitating exercise of the function under clause (4).
In that situation, enactment of the enabling law under clause (5) would not take the sphere covered by the law outside the ambit of Parliament 's power under clause (4).
The argument that without enactment of the law under clause (5), the entire process from the time of initiation till presentation of the address to the President, including investigation and proof of the misbehaviour or incapacity, is within the sphere of Parliament, but on enactment of a law under clause (5) that area is carved out of the Parlia ment 's sphere and assumes statutory character appears tenu ous.
If the argument were correct, then clause (5), would merely contemplate a self abnegation.
The other view is that clause (4) of Article 124 gives power to the Parliament to act for removal of the Judge on the ground of proved misbehaviour or incapacity in the manner prescribed if the matter is brought before it at this stage; and for reaching that stage the Parliament is required to enact a law under clause (5) regulating the procedure for that purpose.
This means that making of the allegation, initiation of the proceedings, investigation and proof of the misbehaviour or incapacity of a Judge are governed entirely by the law enacted by the Parliament under clause (5) and when that stage is reached, the Parliament comes into the picture and the motion for removal of the Judge on the ground of proved misbehaviour or incapacity is moved for presentation of the address to the President in the manner prescribed.
The matter not being before the Parliament prior to this stage is also indicated by Article 121 which lifts the bar on discussion in Parliament only upon a motion for presenting an address to the President as provided later in Article 124(4).
The bar in 59 Article 121 applies to discussion in Parliament but investi gation and proof of misconduct or incapacity cannot exclude such discussion.
This indicates that the machinery for investigation and proof must necessarily be outside Parlia ment and not within it.
In other words, proof which involves a discussion of the conduct of the Judge must be by a body which is outside the limitation of Article 121.
The word 'proved ' also denotes proof in the manner understood in our legal system i.e. as a result of a judicial process.
The policy appears to be that the entire stage upto proof of misbehaviour or incapacity, beginning with the initiation of investigation on the allegation being made, is governed by the law enacted under Article 124(5) and in view of the restriction provided in Article 121, that machinery has to be outside the Parliament and not within it.
If this be so, it is a clear pointer that the Parliament neither has any role to play till misconduct or incapacity is round proved nor has it any control over the machinery provided in the law enacted under Article 124(5).
The Parliament comes in the picture only when a finding is reached by that machinery that the alleged misbehaviour or incapacity has been proved.
The enacted under Article 124(5) itself indicates that the Parliament so understood the integrated scheme of Articles 121, 124(4) and 124(5).
The general scheme of the Act conforms to this view.
Some ex pressions used in the Act, particularly sections 3 and 6 to suggest that the motion is initiated in the House or is kept pending in the House during investigation can be reconciled, if this Constitutional Scheme is accepted.
Those expressions appear to have been used since the authority tO entertain the complaint is 'Speaker/Chairman ', the complaint is de scribed as 'motion ' and the complaint can be made only by the specified number of Members of Parliament.
In substance it only means that the specified number of M.Ps.
alone can make such a complaint; the complaint must be made to the 'Speaker/Chairman '; on receiving such a complaint if the Speaker/Chairman form the opinion that there is a prima facie case for investigation, he will constitute the judi cial committee as prescribed; and if the finding reached is 'guilty ' then the Speaker/Chairman commences the parliamen tary process in accordance with Article 124(4) for removal of the Judge and the bar in Article 121 is lifted.
If this be the correct position, then the validity of law enacted by the Parliament trader clause (5) of Arti cle 124 and the stage upto conclusion of the inquiry in accordance with that law being governed entirely by statute would be open to judicial review as the parliamentary proc ess under Article 124(4) commences only after a finding is recorded that the alleged misbehaviour or incapacity is proved in the inquiry conducted in accordance with the law enacted under clause (5).
For this reason the argument based on exclusivity of Parliament 's jurisdiction over 60 the process and progress of inquiry under the Judges (in quiry) Act, 1968 and consequently exclusion of this Court 's jurisdiction in the matter at this stage does not arise.
For the same reason, the question of applying the doctrine of lapse to the motion made to the Speaker giving rise to the constitution of the Inquiry Committee under the Act, also does not arise and there can be no occasion for the House to say so at any time.
If the House is, therefore, not required to consider this question since the parliamentary process can commence only after a finding of guilt being proved, the further question of a futile writ also does not arise.
The argument that the House can decide even after a finding of guilt that it would not proceed to vote for removal of the Judge is not germane to the issue since that is permissible in the Constitutional Scheme itself under Article 124(4) irrespective of the fact whether Article 124(5) is a mere enabling provision or a constitutional limitation on the exercise of power under Article 124(4).
It is not the law enacted under Article 124(5) which abridges or curtails the parliamentary process or exclusive ly of its jurisdiction but the Constitutional Scheme itself which by enacting clauses (4) and (5) simultaneously indi cated that the stage of clause (4) is reached and the proc ess thereunder commences only when the alleged misbehaviour or incapacity is proved in accordance with the law enacted under clause (5).
It is only then that the need for discussing a Judge 's conduct in the Parliament arises and, therefore, the bar under Article 121 is lifted.
in short, the point of time when the matter comes first before the Parliament in the Constitutional Scheme, Article 121 provides that the bar is lifted.
The other view creates difficulties by restricting discussion in Parliament on a motion which would be before it.
The suggestion to develop a convention to avoid discus sion at that stage or to prevent it by any other device adopted by the Speaker after admitting the motion, does not appear to be a satisfactory solution or explanation.
That this obvious situation could have been left unprovided for and the field left to a convention to be developed later, while enacting these provisions with extreme care and cau tion in a written Constitution, is extremely unlikely.
This indicates that this area is not left uncovered which too is a pointer that the stage at which the bar in Article 121 is lifted, is the starting point of the parliamentary process i.e. when the misbehaviour or incapacity is proved; the stage from the initiation of the process by ' making the allegation, its mode, investigation and proof are covered by the law enacted under clause (5); in case the allegation is not proved, the condition precedent to invoke the Parlia ment 's jurisdiction under clause (4), does not exist, which is the reason for section 6 of 1968 Act saying so; and in case it is proved, the 61 process under clause (4) commences, culminating in the result provided in it.
In Part V of the Constitution relating to 'The Union ', Article 124 is in 'Chapter IV The Union Judiciary ' while Articles 118 and 119 relating to Parliament 's power to make rules or enact a law to regulate its procedure and the conduct of its business are in 'Chapter II Parliament ' under the heading 'Procedure Generally ' wherein Article 121 also finds place.
The context and setting in which clause (5) appears along with clause (4) in Article 124 indicate its nature connected with clause (4) relating to curtailment of a Judge 's tenure, clause (4) providing the manner of removal and clause (5) the pre requisite for removal distin guished from Articles 118, 119 and 121, all of which relate to procedure and conduct of business in Parliament.
Article 124(5) does not, therefore, operate in the same field as Article 118 relating to procedure and conduct of business in Parliament.
Accordingly, the scheme is that the entire process of removal is in two parts the first parts under clause (5) from initiation to investigation and proof of misbehaviour or incapacity is covered by an enacted law, Parliament 's role being only legislative as in all the laws enacted by it; and the second part only after proof under clause (4) is in Parliament, that process commencing only on proof in accordance with the law enacted under clause (5) Thus the first part is entirely statutory while the second part alone is the parliamentary process.
The Constitution intended a clear provision for the first part covered fully by enacted law, the validity of which and the process thereunder being subject to judicial review independent of any political colour and after proof it was intended to be a parliamentary process.
It is this synthesis made in our Constitutional Scheme for removal of a Judge.
If the motion for presenting an address for removal is envisaged by Articles 121 and 124(4) 'on ground of proved misbehaviour or incapacity ' it presupposes that misbehaviour or incapacity has been proved earlier.
This is more so on account of the expression 'investigation and proof used in clause (5) with specific reference to clause (4).
This indicates that 'investigation and proof ' of misbehaviour or incapacity is not within clause (4) but within clause (5).
Use of the expression 'same session ' in clause (4) without any reference to session in clause (5) also indicates that session of House has no significance for clause (5) i.e., 'investigation and proof ' which is to be entirely governed by the enacted law and not the parliamentary practice which may be altered by each Lok Sabha.
62 45.The significance of the word 'proved ' before the expression 'misbehaviour or incapacity ' in clause (4) of Article 124 is also indicated when the provision is compared with Article 317 providing for removal of a member of the Public Service Commission.
The expression in clause (1) of Article 317 used for describing the ground of removal is 'the ground of behaviour ' while in clause (4) of Article 124, it is, 'the ground of proved misbehaviour or incapaci ty '.
The procedure for removal of a member of the Public Service Commission is also prescribed in clause (1) which provides for an inquiry by the Supreme Court on a reference made for this purpose.
In the case of a Judge, the procedure for investigation and proof is to be in accordance with the law enacted by the Parliament under clause (5) of Article 124.
In view of the fact that the adjudication of the ground of misbehaviour under Article 317 (1) is to be by the Su preme Court, in the case of a Judge who is a higher consti tutional functionary, the requirement of judicial determina tion of the ground is re inforced by the addition of the word 'proved ' in Article 124(4) and the requirement of law for this purpose under Article 124(5).
Use of the word 'may ' in clause (5) indicates that for the 'procedure for presentation of address ' it is an enabling provision and in the absence of the law the general procedure or that resolved by the House may apply but the 'investigation and proof ' is to be governed by the enacted law.
The word 'may ' in clause (5) is no impediment to this view.
On the other hand, if the word 'shall ' was used in place of 'may ' in clause (5) it would have indicated that it was incumbent on the Parliament to regulate even the proce dure for presentation of an address by enacting such a law leaving it no option even in the matter of its procedure after the misbehaviour or incapacity had been investigated and found true. 'Sometimes, the legislature uses the word "may" out of deference to the high status of the authority on whom the power and the obligation are intended to be conferred and imposed. ' (See: State of Uttar Pradesh vs Joginder Singh; , at 202.
Indeed, when a provision is intended to effectuate a right here it is to effectuate a constituational protection to the Judges under Article 124 (4) even a provision as in Article 124 (5) which may otherwise seem merely enabling, becomes mandatory.
The exercise of the powers is rendered obligatory.
In Fred eric Guilder julius vs The Right Rev.
The Lord Bishop of Oxford; the Rev. Thomas Tellsson Carter, [1879 80] 5 A.C. 214 at p. 24zt, Lord Blackburn said: ,.The enabling words are construed as compulsory whenever the object of the power is to effectuate a legal right. " 63 In Punjab Sikh Regular Motor Service, Moudhapura vs The Regional Transport ,Authority, Raipur & Anr, ; , this Court referring to the word 'may ' in Rule 63 (a) in Central Provinces and Berar Motor Vehicles Rules, 1940, observed: ".
On behalf of the appellant attention was drawn to the expression 'may ' in Rule 63.
But in the context and the language of the rule the word 'may ' though permissive in form, must be held to be obligatory.
Under Rule 63 the power to grant renewal of the counter signa ture on the permit in the present case is conferred on the Regional Transport Authority, Bilaspur.
The exercise of such power of renew al depends not upon the discretion of the authority but upon the proof of the particular cases out of which such power arises. 'Ena bling words are construed as compulsory when ever the object of the power is to effectuate a legal right '.
(See: Julius vs Bishop of Oxford, 5 A.C. 214, 244). " If the word 'may ' in Article124 (5) is given any other meaning that sub Article would render itself, to be treated by the Parliament, as superfluous, redundant and otiose.
The power to prescribe a procedure for the exercise of power under Article 124 (4) could otherwise also be available to the House.
The law envisaged under Article 124(5) is not such a law; but one which would effectuate the constitution al policy and philosophy of the machinery for removal of Judges.
The use of the word 'may ' does not, therefore, neces sarily indicate that the whole of clause (5) is an enabling provision leaving it to the Parliament to decide whether to enact a law even for the investigation and proof of the misbehaviour or incapacity or not.
The mere fact that clause (5) does not form a part of clause (4) itself, as appears to have been considered at one stage when the constitution was being drafted, does not reduce the significance or content of clause (5).
It is likely that the framers of the Constitution thought of clearly demarcating the boundaries and, therefore, indicated that upto the stage of proof of misbehaviour of incapacity the field is covered by a law enacted by the Parliament, the first pan being covered by clause (5) and the latter by clause (4) with the only difference that the Parliament was given the option to regulate even the procedure for the presentation of an address after the misbehaviour or inca pacity had been proved by enacting a law for the purpose to make it more definite and consistent.
64 48.
Similarly, use of word 'motion ' to indicate the process of investigation and proof in the because the allegations have to be presented to the 'Speaker ' does not make it 'motion in the House ' not withstanding use of that expression in Section 6.
Otherwise, section 6 would not say that no further step is to be taken in case of a finding of 'not guilty '.
It only means that when the allegation is not proved, the Speaker need not commence the process under clause (4) which is started only in case it is proved.
The Speaker is, therefore, a statutory authority under the Act chosen because the further process is parliamentary and the authority to make such a complaint is given to Members of Parliament.
Moreover, to the enact ment under Article 124(5) cannot be a safe guide to deter mine the scope of Article 124(5).
If this construction of the inter connection amongst Articles 118,121, 124 (4) and 124 (5) is the proper one to be placed on them, as indeed we so do, the provisions of the do not foul with the Constitutional Scheme.
On scope of the law under Article 124(5), the idea of regulating procedure for (i) Presentation of the address; (ii) Investigation and proof of misbehaviour or incapacity admit of two possible options of interpretation.
The idea of "Presentation of the address" may be confined to the actual presentation of address by both Houses of the Parliament; or may be held to cover the entire process from initiation by the motion in the House till the final act of delivery of the address.
If the first view is correct the law under Article 124(5) would apply at the stage of investigation and proof of misbehaviour or incapacity and at the final stage of presentation of address after the motion is adopted by both the Houses.
The motion and its consideration and adop tion by the House would be outside the ambit of such law and it would be regulated by the rule of procedure made under Article I 18.
This view is too narrow.
By bringing in the rules of procedure of the House made under Article 118 it introduces an element of uncertainty and might affect inde pendence of the judiciary.
Second view is to be preferred.
It enables the entire process of removal being regulated by a law of Par liament ensures uniformity and reduces chances of arbi trariness.
Article I 18 is a general provision conferring on each House of Parliament the power to make its own rules of procedure.
These rules are not binding on the House and can be altered by the House at any time.
A breach of such rules amounts to an irregularity and is not subject to judicial review in view of Article 122.
Article 124(5) is in the nature of a special provi sion intended to regulate the procedure for removal of a Judge under Article 124(4) which 65 iS not a part of the normal business of the House but is in the nature of special business.
It covers the entire field relating to removal of a Judge.
Rules made under Article 118 have no application in this field.
Article 124(5) has no comparison with Article 119.
Articles 118 and 119 operate in the same field viz. normal business of the House.
It was, therefore, necessary to specifically prescribe that the law made under Article 119 shall prevail over the rules of procedure made under Article 118.
Since Article 118 and 124(5) operate in different fields a provision like that contained in Article 119 was not necessary and even in the absence of such a provision, a law made under Article 124 (5) will override the rules made under Article 118 and shall be binding on both the Houses of Parliament.
A violation of such a law would constitute illegality and could not be immune from judical scrutiny under Article 122(1).
Indeed, the Act reflectS the constitutional philoso phy of both the judicial and political elementS of the process of removal.
The ultimate authority remains with the Parliament in the sense that even if the Committee for investigation records a finding that the Judge is guilty of the charges it is yet open to the Parliament to decide not to present an address to the President for removal.
But if the Committee records a finding that the Judge is not guilty, then the political element in the process of removal has no further option.
The law is, indeed, a civilised piece of legislation reconciling the concept of accountability of Judges and the values of judicial independence.
Indeed, the dissenting note of Dr. L.M. Singhvi, in the Report of the Joint Committee on the Judges (Inquiry) Bill, 1964 brings into sharp focus the thrust of the report of the majority.
It is to be recalled that the 1964 Bill vested the power to initiate the process of removal with the Executive.
That was found objectionable and inconsistent with the idea of judicial independence.
However, as to the nature of the authority which was the repository of the power to investigate, the dissenting opinion, by necessary implication, emphasises the majority view which ultimately became the law.
Dr. Singhvi in his dissent says: "10.
The present Bill seeks to provide only the modality of a tribunal clothed in the nomenclature of a Committee.
The Committee contemplated in the Bill may well be consid ered a tribunal or an "authority" within the meaning of Articles 226 and 227 of the Consti tution, rendering itS work subject to judicial review and supervision.
What is more, the Parliament is not left with any choice in the matter and procedure of parliamen 66 tary committee has been wholly excluded.
With this I am not in agreement.
In both these matters in respect of which I have dissented from my esteemed colleagues in the Joint Select Committee, there appears to be an imprint on the provisions of the Bill of the now defunct Burmese Constitution, which provided that a notice of such resolution should be signed by not less than one fourth of the total membership of either Chamber of Parliament and further that the charge would be investigated by a special tribunal (section 143 of the Burmese Constitution).
In the Burmese case, the special tribunal was to consist of the President or his nominee and the Speakers of the Chamber of Nationalities and the Cham ber of Deputies.
I feel that the Burmese analogue is neither inspiring nor instructive, and that the more highly evolved procedures of other democratic constitutions which have been tried and tested for centuries would have served us better".
Our conclusions, therefore, on contentions B, C and D are as under: The constitutional process for removal of a Judge upto the point of admission of the motion, constitution of the Committee and the recording of findings by the Committee are not, strictly, proceedings in the Houses of Parliament.
The Speaker is a statutory authority under the Act.
Upto that point the matter cannot be said to remain outside the Court 's jurisdiction.
Contention B is answered accordingly.
Prior proof of misconduct in accordance with the law made under Article 124(5) is a condition precedent for the lifting of the bar under Article 121 against discussing the conduct of a Judge in the Parliament.
Article 124 (4) really becomes meaningful only with a law made under Article 124(5).
Without such a law the constitutional scheme and process for removal of a Judge remains inchoate.
Contention C is answered accordingly.
The Speaker while admitting a motion and constituting a Committee to investigate the alleged grounds of misbehaviour or incapacity does not act as part of the House.
The House does not come into the picture at this stage.
The provisions of the are not unconstitutional as abridging the powers and privileges of the House.
The is constitutional and is intra vires.
Contention D is disposed of accordingly.
67 RE: CONTENTION (E) 56.
It is urged by Shri Sibal that having regard to the serious consequences that flow from the admission of a motion by the Speaker and the decision to constitute a Committee for investigation, it is incumbent upon the Speak er to afford an opportunity to the Judge of being heard before such a decision is taken.
It is urged that such decision has momentous conseqences both to the Judge and to the judicial system as a whole and that any politically motivated steps to besmear a Judge will not merely affect the Judge himself but also the entire system of administra tion of justice.
If a motion brought up with collateral and oblique motives, it would greatly advance the objects and purposes of if the Judge con cerned himself is heard before a decision to admit a ,"notion which has shattering consequences so far as the Judge is concerned is taken.
The minimum requirements of natural justice, appropriate in the context, says learned counsel, require that the Judge should have an opportunity of being heard.
Shri Jethmalani, on the contrary, contended that it would be highly inappropriate that the Speaker should issue notice to a Judge and call upon him to appear before the Speaker.
That apart, Shri Jethmalani said at that stage of the proceedings where the Speaker merely decides that the matter might bear investigation no decisions affecting the rights, interests or legitimate expectation can be said to have been taken.
Shri Jethmalam sought to point out that these proceedings could not be equated with disciplinary or penal proceedings.
The Speaker does not decide anything against the Judge at that stage.
Referring to the nature and purpose of such preliminary proceedings Corpus Juris Secundum (Vol.
48A) says: "As a general rule, disciplinary or removal proceedings relating to Judges are sui generis and are not civil or criminal in nature; and their purpose is to inquire into judical conduct and thereby maintain standards of judicial fitness".
[p.614] As to the stage at which there is a need for notice and opportunity to the Judge to be heard the statement of the law is: "The general rule is that before a Judge may be disciplined, as by removal, he is entitled to notice and an opportunity to defend even though there is no statute so requiring.
Ordinarily, 68 the right to defend is exercised in a trial or hearing, as considered infra 51.
More specifi cally the Judge is entitled to notice of the particular charges against him.
In addition, notice of the charge should be given suffi ciently in advance of the time for presenting a defence to permit proper preparation of a showing in opposition".
(pp. 613 614) But negativing the position that the Judge would be entitled to notice even at the preliminary stage it is stated: "Investigations may be conducted into matters relating to judicial conduct as a preliminary to formal disciplinary proceedings.
A judiciary commission may conduct an investi gation into matters relating to judicial conduct as a preliminary to formal discipli nary proceedings, and a court may, under its general powers over inferior courts, appoint a special commissioner to preside over a prelim inary investigation.
A court rule providing that a Judge charged with misconduct should be given a reasonable opportunity in the course of a preliminary investigation to present such matters as he may choose, affords him more protection than is required by constitutional provisions".
[p. 615] 58.
The position is that at the stage of the provisions when the Speaker admits the motion under section 3 of the , a Judge is not, as a matter of right, entitled to such notice.
The scheme of the statute and rules made thereunder by necessary implication, exclude such a right.
But that may not prevent the Speaker, if the facts and circumstances placed before him indicate that hearing the Judge himself might not be inappropriate, might do so.
But a decision to admit the motion and constitute a Commit tee for investigation without affording such an opportunity does not, by itself and for that reason alone, vitiate the decision.
Contention E is disposed of accordingly.
RE:CONTENTION (F) 59.
The substance of this contention as presented by the learned counsel for the petitioner, "Sub Committee" argued with particular emphasis by Shri R.K. Garg is that the constitutional machinery for removal of a Judge is merely a political remedy for judicial misbehaviour 69 and does not exclude the judicial remedy available to the litigants to ensure and enforce judicial integrity.
It is urged that the right to move the Supreme Court to enforce fundamental rights is in itself a fundamental right and that takes within its sweep, as inhering in it, the right to an impartial judiciary with persons of impeccable integrity and character.
Without (his the fundamental right to move court itself becomes barren and hollow.
It is urged that the court itself has the jurisdiction nay a duty to ensure the integrity and impartiality of the members composing it and restrain any member who is found to lack in those essential qualities and attainments at which public confidence is built.
It is true that society is entitled to expect the high est and most exacting standards of propriety in judicial conduct.
Any conduct which tends to impair public confidence in the efficiency integrity and impartiality of the court is indeed forbidden.
In Corpus Juris Secundum (Vol.
48A) refer ring to the standards of conduct, disabilities and privi leges of Judges, it is observed: "The State which creates a judicial office may set appropriate standards of conduct for a Judge who holds that office, and in many jurisdictions, courts acting within express or implied powers have adopted or have followed certain canons or codes of judicial conduct.
The power of a particular court in matters of ethical supervision and the maintenance of standards for the judiciary may be exclusive.
Guidelines for judicial conduct are found both in codes of judicial conduct and in general moral and ethical standards expected of judi cial officers by the community.
Canons or codes are intended as a statement of general principles setting forth a wholesome standard of conduct for judges which will reflect credit and dignity on the profession and illsolar as they prescribe conduct which is malum in so as opposed to malum prohibitum they operate to restate those general prinici ples that have always governed judicial con duct.
Although these canons have been held to be binding on judges and may have the force of law where promulgated by the courts, except as legislatively enacted or judicially adopted they do not of themselves have the force and effect of law".
[pp. 593 594] the nature of prescribed conduct it is stated: 70 "A Judge 's official conduct should be free from impropriety and the appearance of impro priety and generally, he should refrain from participation in activities which may tend to lessen public respect for his judicial office.
It is a basic requirement, under general guidelines and canons of judicial conduct, that a Judge 's official conduct be free from impropriety and the appearance of impropriety and that both his official and personal beha viour be in accordance with the highest standard society can expect.
The standard of conduct is higher than that expected of lay people and also higher than that expected of attorneys.
The ultimate standard must be conducted which constantly reaffirms fitness for the high responsibilities of judicial office and judges must so comfor '.
themselves as to dignify the administration of justice and deserve the confidence and respect of the public.
It is immaterial that the conduct deemed objectionable is probably lawful albeit unjudicial or that it is perceived as lowhu mored horseplay.
In particular, a judge should refrain from participation in activities which may tend to lessen public respect for his judicial office and avoid conduct which may give rise to a reasonable belief that he has so participated.
In fact even in his private life a judge must adhere to standards of probity and propriety higher than those deemed acceptable for oth ers.
While a judge does have the right to entertain his personal views on controversial issues and is not required to surrender his rights or opinions as a citizen his right of free speech and free association are limited from time to time by his official duties and he must be most careful to avoid becoming involved in public controversies".
594~596] In Sampath Kumar & Ors.
vs Union of India & Ors, [1985 ] 4 S.C.C. 458, dealing with the qualifications, accomplish ments and attainments of the members of the Administrative Tribunal, which were intended to substitute for the High Courts, this court emphasised the qualities essential for discharging judicial functions.
But we are afraid the proposition that, apart from the constitutional machinery for removal of a Judge, the judiciary itself has the jurisdiction and in appropriate cases a duty to enquire into the integrity of one of its members and restrain the Judge from exercising judicial functions is beset with grave risks.
The court would then indeed be acting as a tribunal1 for the removal of a Judge.
Learned counsel supporting the proposition 71 stated that the effect of restraining a Judge from exercis ing judicial functions is not equivalent to a removal be cause the conditions of service such as salary etc.
of a Judge would not be impaired.
But we think that the general proposition that the court itself has such a jurisdiction is unacceptable.
It is productive of more problems then it can hope to solve.
The relief of a direction to restrain the Judge from discharging judicial functions cannot be granted.
It is the entire Constitutional Scheme including the provisions relat ing to the process of removal of a Judge which are to be taken into account for the purpose of considering this aspect.
It is difficult to accept that there can be any right in anyone running parallel with the Constitutional Scheme for this purpose contained in clauses (4) and (5) of Article 124 read with Article 121.
No authority can do what the Constitution by necessary implication forbids.
Inciden tally, this also throws light on the question of interim relief in such a matter having the result of restraining the Judge from functioning judicially on initiation of the process under the Judge (Inquiry) Act, 1968.
The Constitu tional Scheme appears to be that unless the alleged misbeha viour or incapacity is 'proved ' in accordance with the provisions of the law enacted under Article 124(5) and a motion for presenting an address for removal of the Judge on the ground of proved misbehaviour or incapacity is made, because of the restriction contained in Article 121, there cannot be a discussion about the Judge 's conduct even in the Parliament which has the substantive power of removal under Article 124(4).
If the Constitutional Scheme therefore is that the Judge 's conduct cannot be discussed even in the Parliament which is given the substantive power of removal, till the alleged misconduct or incapacity is 'proved ' in accordance with the law enacted for this purpose, then it is difficult to accept that any such discussion of the conduct of the Judge or any evaluation or inferences as to its merit is permissible according to law elsewhere except during investigation before the Inquiry Committee constituted under the statute for this purpose.
The indication, therefore, is that interim direction of this kind during the stage of inquiry into the alleged misbehaviour or incapacity is not contemplated it being alien to our Constitutional Scheme.
The question of propriety is, however, different from that of legality.
The absence of a legal provision, like Article 3 17(2) in the case of a Member of Public Service Commission, to interdict the Judge faced with such an inquiry from contining to discharge judicial functions pending the outcome of the inquiry or in the event of a finding of misbehaviour or incapacity being proved till the process of removal under Article 124(4) is complete, does not necessarily indicate that the Judge shall continue to function during that period.
That area is to be covered by the 72 sense of propriety of the learned Judge himself and the judicial tradition symbolised by the views of the Chief Justice of India.
It should be expected that the learned Judge would be guided in such a situation by the advice of the Chief Justice of India, as a matter of convention unless he himself decides as an act of propriety to abstain from discharging judicial functions during the interregnum.
Since the learned Judge would continue to hold the office of a Judge unless he resigns or is removed, an arrangement to meet the situation has to be devised by the Chief Justice.
The Constitution while providing for the suspension of a Member of a Public Service Commission in Article 3 17 (2) in a similar situation has deliberately abstained from making such a provision in case of higher constitutional function aries, namely, the Superior Judges and President and Vice President of India, facing impeachment.
It is reasonable to assume that the framers of Constitution had assumed that a desirable convention would be followed by a Judge in that situation which would not require the exercise of a power of suspension.
Propriety of the desirable course has to be viewed in this perspective.
It would also be reasonable to assume that the Chief Justice of India is expected to find a desirable solution in such a situation to avoid embarrass ment to the learned Judge and to the Institution in a manner which is conducive to the independence of judiciary and should the Chief Justice of India be of the view that the interests of the institution of judiciary it is desirable for the learned Judge to abstain from judicial work till the final outcome under Article 124(4), he would advise the learned Judge accordingly.
It is further reasonable to assume that the concerned learned Judge would ordinarily abide by the advice of the Chief Justice of India.
All this is, however, in the sphere of propriety and not a matter of legal authority to, permit any court to issue any legal directive to the Chief Justice of India for this purpose.
Accordingly Contention F is rejected.
RE:CONTENTION (G) 63.
This relates to the mala fides alleged against the Speaker.
The averments in this behalf are identical in both Raj Birbal 's and Sham Ratan Khandelwal 's peti tions.
We may notice the relevant averments: "It is, therefore, disconcerting to note that the Speaker acted contrary to Constitutional practice.
It is assumed that this high Consti tutional functionary would have known of the well settled and established constitutional practice in regard to the fact that motions lapse with the dissolution of the House.
The action of the Speaker, therefore, in admitting the motion in the manner that he did, smacks of mala fides and, therefore, de 73 serves to be struck down.
The action of the Speaker is mala fide on yet another count.
The Speaker has not resigned from the primary membership of the Janta Dal.
The petitioners verily believe that the first signatory to the motion is the erstwhile Prime Minister of India Shri V.P. Singh who happens also to be the leader of the Janta Dal.
The signatories to the said motion, the petition ers verily believe, belong mostly to the Janta Dal, though the details of this fact are not precisely known to the petitioners.
The Speak er, as has been indicated earlier, ought to have allowed parliament to look into the matter and discuss as to whether or not the motion ought to be admitted.
The Speaker ought to have at least tabled the motion in the House to ascertain the views of the Members of parliament belonging to various Houses.
The Speaker, to say the least, ought to have transmitted all materials to Justice Ramaswami and sought a response from him before attempt ing to admit the motion.
The Speaker ought to have dealt with the motion much earlier and transmitted to Justice Rammaswami all the materials as well as the views that might have been expressed to him in the course of his consultations which enabled him to come to a decision.
The Speaker in the very least ought to have ascertained the wishes of the House in this regard.
The Speaker ought not to have decided to admit the motion in the manner he did on the last evening of the 9th Lok Sabha amidst din and noise, when what he spoke was also not entirely audible in the House.
The Speaker is a high Constitutional functionary and ought to have exercised his functions in the highest traditions of the office of this high constitutional function ary.
The Speaker ought also not to have dealt with the motion, the prime movers of which are members of his own party. 'the Speaker ought to have disqualified himself in this regard and placed the matter for the discussion of the House.
The conduct of the Speaker in this entire episode was unbecoming of a high Con stitutional functionary.
The action of the Speaker is mala fide and deserves to be struck down on this count alone." The averments as to mala fides are intermixed with and inseparable from touching the merits of certain constitu tional issues.
Indeed, mala fides are sought to be impugned to the Speaker on the grounds that he did 74 not hear the Judge, did not have the motion discussed in the House etc.
We have held these were not necessary.
But a point was made that the Speaker not having entered appearance and denied these allegations on oath must be deemed to have admitted them.
It appears to us that even on the allegations made in the petition and plea of mala fides which require to be established on strong grounds, no such case is made out.
A case of mala fides cannot be made out merely on the ground of political affiliation of the Speaker either.
That may not be a sufficient ground in the present context.
At all events, as the only statutory au thority to deal with the matter, doctrine of statutory exceptions or necessity might be invoked.
Contention G cannot therefore be accepted.
RE :CONTENTION (H) 65.
This pertains to the locus standi of "Sub Committee on the Judicial Accountability" and the Supreme Court Bar Association to maintain the proceedings.
If this is true, then the petitioners in Transfer Petition No. 278 of 1991 and other writ petitions challenging the Speaker 's decision would not also have the necessary standing to sue.
The law as to standing to sue in public interest actions had under gone a vast change over the years and liberal standards for determining locus standi are now recognised.
The matter has come to be discussed at considerable care and length in S.P. Gupta & Ors.
vs Union of India & Ors. etc.
, [1982] 2 SCR 365.
The present matter is of such nature and the constitutional issues of such nature and importance that it cannot be said that members of the Bar, and particularly the Supreme Court Bar Association have no locus standi in the matter.
An elaborate re survey of the principles and prece dents over again is unnecessary.
Suffice it to say that from any point of view the petitioners satisfy the legal equip ments of the standing to sue.
We, therefore, reject the Contention H. 66.
We are constrained to say that certain submissions advanced on the prayer seeking to restrain the learned judge from functioning till the proceedings of the committee were concluded lacked as much in propriety as in dignity and courtesy with which the learned judge is entitled.
The arguments seemed to virtually assume that the charges had been established.
Much was sought to be made of the silence of the Judge and his refusal to be drawn into a public debate.
If we may say so with respect, learned judge was entitled to decline the invitation to offer his explanation to his detractors, No adverse inference as to substance and validity of the 75 charges could be drawn from the refusal of the learned judge to recognise these forums for his vindication.
While the members of the bar may claim to act in public interest they have, at the same time, a duty of courtesy and particular care that in the event of the charges being found baseless or insufficient to establish any moral turpitude, the judge does not suffer irreparably in the very process.
The ap proach should not incur the criticism that it was calculated to expose an able and courteous judge to public indignity even before the allegations were examined by the forum constitutionally competent to do so.
We wish the level of the debate both in and outside the Court was more decorous and dignified.
Propriety required that even before the charges are proved in the only way in which it is permitted to be proved, the Judge should not be embarrassed.
The constitutional protection to Judges is not for theft person al benefit; but is one of the means of protecting the judi ciary and its independence and is, / therefore, in the larger public interest.
Recourse to constitutional methods ' must be adhered to, if the system were to survive.
Learned Judge in his letter to the Registrar General which he de sired to be placed the Court had, indeed, expressed deep anguish at the way the petitioners had been permitted them selves to sit in judgment over him and deal with him the way they did.
RE: CONTENTION (I) 67.
This argument suggests that the court should, having regard to the nature of the area the decision of the court and its writ is to operate in, decline to exercise its jurisdiction, granting it has such jurisdiction.
It is urged that any decision rendered or any writ issued might, in the last analysis, become futile and infructuous as indeed the Constitution of and investigation by the committee are not, nor intended to be, an end by themselves culminating in any independent legal consequences but only a proceeding prelim inary to and preceding the deliberations of the House on the motion for the presentation of an address to the President for the removal of a Judge.
The latter, it is urged, is indisputably with in the exclusive province of the Houses of parliament over which courts exercise no control or juris diction.
The constitution of and the proceedings before the committee are, it is urged, necessarily sequential to and integral with the proceedings in the Houses of Parliament.
SinCe the committee and its investigations have neither any independent existence nor separate legal effect otherwise than as confined to, and for the purposes and as part of the possible prospective proceedings in the Houses of Parlia ment, the court should decline to exercise jurisdiction on a matter which is of no independent legal consequence of its own and which, in the last analysis, falls and remains entirely in an area outside the courts ' jurisdiction.
It is urged 76 that both from the point of view of infructuousness, propri ety and futility, the court should decline the invitation to interfere even though that part of the proceedings pertain ing to the constitution of the committee might not strictly be within the exclusive area of Parliament.
Courts, it is urged, would not allow its process to expect in a matter which will eventually merge in something over which it will have no jurisdiction.
The elements of infructuousness, it is suggested, arise in two areas.
The first is, as is posited, what should happen if the Houses of Parliament choose to say that in their view the motion has lapsed? Would the court then go into the legality of the proceedings of the Houses of Par liament and declare the decision of the House void? The second area of the suggested source of infructuous ness is as to the consequences of the position that the Houses of Parliament would, notwithstanding the report of the committee, be entitled to decide not to present an address to the President to remove the Judge.
It is, it is said, for the House of Parliament to discipline the Govern ment if the House is of the view that Government is guilty of an illegal inaction on the Speaker 's decision as ulti mately the House has dealt with the committee 's report.
On the first point there is and should be no diffi culty.
The interpretation of the law declared by this court that a motion under section 3(2) of the , does not lapse upon the dissolution of the House is a binding declaration.
No argument based on an assumption that the House would act in violation of the law need be entertained.
If the law is that the motion does not lapse, it is erroneous to assume that the Houses of Parliament would act in violation of the law.
The interpretation of the law is within the exclusive power of the courts.
So far as the second aspect is concerned, what is now sought by the petitioners who seek the enforcement and implementation of the Speaker 's decision is not a direction to the committee to carry out the investigation.
Such a prayer may raise some issues peculiar to that situation.
But here, the Union.
Government has sought to interpret the legal position for purposes of guiding its own response to the situation and to regulate its actions on the Speaker 's decision.
That understanding of the law is now found to be unsound.
All that is necessary to do is to declare the correct constitutional position.
No specific writ of direction need issue to any authority.
Having regard to the nature of the subject matter and the purpose it is ultimately intended to serve all that is necessary is to declare the legal and constitu 77 tional position and leave the different organs of the State to consider matters falling within the orbit of their re spective jurisdiction and powers.
Contention I is disposed of accordingly.
In the result, for the foregoing reasons, Writ Petition Nos. 491 and 541 of 1991 are disposed of by the appropriate declarations of the law as contained in the judgment.
Writ Petition Nos. 542 and 560 of 1991 are dismissed.
Transfer Petition No. 278 of 1991 is allowed.
Writ Petition No. 1061 of 1991 is withdrawn from the Delhi High Court.
The transferred writ petition is also dismissed.
SHARMA, J. I have gone through the erudite Judgment of my learned Brothers, and I regret that I have not been able to persuade myself to share their views.
In my opinion, all these petitions are fit to be dismissed.
The stand of the petitioners in W.P. (C) Nos. 491 of 1991 and 541 of 1991 is that the inquiry with respect to the alleged misbehaviour of Mr. Justice V. Ramaswami, the third respondent in W.P. (C) No. 491 of 1991, which was referred to a Committee under the provisions of the ought to proceed and accordingly the Union of India must take all necessary steps.
The main arguments on their behalf have been ad dressed by Mr. Shanti Bhushan, Mr. Ram Jethmalani and Mr. R.K.Garg, all appearing for the petitioners in W,P. (C) No. 491 of 1991, which has been treated as the main case.
Al though in substance their stand is similar, they are not consistent on some of the points debated during the heating of the case.
They have been supported in general terms by Ms. Indira Jaising and Mr. P.P. Rao, the learned counsel representing the Supreme Court Bar Association, the peti tioner in W.P. (C) No. 541 of 1991, and for the sake of convenience the petitioners in these two cases shall be hereinafter referred to as the petitioners.
The opposite point of view has been pressed by Mr. Kapil Sibal, on behalf of Mrs. Raj Birbal, the petitioner in T.P. (C) No. 278 of 1991, Mr. V.R.Jayaraman intervenor in W.P. (C) No. 491 of 1991 and Mr. Shyam Ratan Khandelwal, the petitioner in W.P.(C) No. 560 of 1991; and in view of their stand, they shall be referred to as respondents in this judgment.
The Committee for the investigation into the alleged misbehaviour of the third respondent was constituted on 12.3.1991 under the provi 78 sions of the (hereinafter re ferred to as the Act) by Shri Rabi Ray, the then Speaker of the Lok Sabha, not a party in W.P. (C) Nos. 491 of 1991 and 541 of 1991, but impleaded by Mr. Shyam Ratan Khandelwal as respondent No. 1 in W.P. (C) No. 560 of 1991.
The Lok Sabha was dissolved the very next day, i.e. 13.3.1991.
Mr. Attorney General appearing on behalf of the Union of India has contended that this Court should affirm the views expressed by the Union of India in its affidavit that on dissolution of the last Lok Sabha, the Motion against the third respondent lapsed and the matter cannot proceed further.
According to the case of the petitioners, once the Committee was constituted, the entire inquiry must be com pleted in accordance with the provisions of the Act, and the stand of the Union Government that the Motion in this regard lapsed on the dissolution of the House is fit to be reject ed.
The Union Government, in the circumstances, is under a duty to act in such manner by way of providing funds et cetera, that it may be practically possible for the Commit tee to complete its task.
Since the obligation to act ac cordingly, arises under the Act, this Court has full author ity to enforce the performance of the statutory duty; and having regard to the circumstances in the present case it is appropriate to exercise that power.
The petitioners further pray that in the meantime the third respondent should not undertake to dispose of judicial matters, and since he has not himself refrained from so doing, no judicial work should be allotted to him.
The Chief Justice of India has also been impleaded as a party respond ent but this Court while issuing Rule Nisi after hearing learned counsel for the parties, did not consider it expedi ent to issue notice to the Chief Justice.
A prayer for interim direction in this regard was also rejected.
During the hearing of the cases another application to the same effect was filed and was heard at considerable length and ultimately rejected by a reasoned order.
Mr. Sibal, the learned counsel for the respondents has challenged the maintainability of the writ petitions, on the ground that the matter is not justiciable.
It was fur ther argued that since the Speaker proceeded to admit the Notice of Motion initiated by 108 Members of the Lok Sabha without reference to the House, the order of the Speaker was void, and the constitution of the Committee is ultra vires.
The Speaker 's order has been challenged also on the grounds of violation of principles of natural justice and mala fides.
So far as the effect of the dissolution of the 79 last Lok Sabha is concerned the respondents have supported the stand of the Union Government that the Motion has lapsed, but consistent with their plea.
of non justiciabili ty, Mr. Sibal has indicated that it is for the House to decide this issue.
Long arguments were addressed by the learned counsel for the parties on the correct interpretation of Article 124(4) and (5) and the Act, and Mr. Sibal has contended that if the construction suggested by him of the provisions of the Act are not accepted, the Act has to be struck down either in its entirety or in part as ultra vires the Constitution.
In W.P. (C) No. 560 of 1991 Mr. Shyam Ratan Khandelwal has, inter alia, prayed for declaring the and the Rules framed thereunder as ultra vires Article 121 and 124(5) of the Constitution; for quashing the decision of the Speaker; and, for issuing a Writ of Mandamus to the Committee not to embark upon or proceed with the inquiry.
He also wants a declaration that the Chief Justice of India cannot withhold allocation of work to the third respondent for discharging his judicial functions, and seeks for consequential directions in this regard.
During the course of his argument, Mr. Sibal, in reply to a query from the Bench, clarified the position that if his plea of non justiciability is accepted, all the petitions may have to be dismissed.
It is appropriate that the point relating to the jurisdiction of this Court, and for that matter of any court in India, is considered first.
If the stand of the respond ents is correct on this issue, it may not be necessary to deal with the other questions raised by the parties.
In support of his argument, Mr. Sibal has relied upon the provisions of Article 122(2) of the Constitution read with Article 93, and has urged that the present matter relates to the conduct of the business of the Lok Sabha and is included within the functions of regulating its procedure, and as such the Speaker who is a Member and officer of the Parlia ment cannot be subjected to the jurisdiction of any Court in respect of the exercise of those powers.
The questions whether the Motion on the basis of which the present inquiry by the Committee has been ordered has lapsed or not and whether the inquiry should further proceed or not are for the House to determine, and its decision will be final.
Reference was also made to Article 100, but the learned counsel clarified his stand that in the present context a special majority as indicated in Article 124(4) will have to be substituted for a simple majority mentioned in Article 100(1).
It has been contended that the Speaker was not free to take a decision by himself to refer the matter to the Committee for inquiry and that too without hearing the Judge concerned; and in any event his order is subject to any decision 80 to the contrary of the House arrived at, at any stage.
Emphasis was laid on the concept of Separation of State powers amongst its three wings, and it was claimed that all matters within the House including moving of motions, ad journment motions and debates are beyond the purview of judicial scrutiny.
Counsel said that it does not make any difference that in the present case it is the Union Govern ment, which has taken a decision for itself on the disputed issue; and the petitioners cannot use this as an excuse for approaching the Court.
The Court should refuse to entertain the writ petitions on this ground, as it cannot be persuaded to do indirectly what it cannot do directly.
The crux is that the matter is in the exclusive domain of the Parlia ment.
Although in my final conclusion I agree with the respondents that the courts have no jurisdiction in the present matter, I do not agree with Mr. Sibal 's contention based on an assumption of the very wide and exclusive juris diction of the Parliament in the general terms, as indicated during his argument.
His stand that the Speaker could not have taken a decision singly also does not appear to be well founded.
He strenuously argued that since the matter relat ing to the removal of a Judge is from the very beginning within the exclusive control of one of the Houses of the Parliament every decision has to be taken by the entire House and if necessary a debate will have to be permitted.
As a result, the bar on discussion in the House on the Judges ' conduct will disappear from the initial stage it self, but that cannot be helped.
He relied upon the inter pretation of Mr. M.C.Setalvad on clauses 4 & 5 of Article 124 as stated by him before the Joint Committee on the Judges (inquiry) Bill, 1964 (being Bill No. 5 of 1964 which was ultimately dropped) and his view that the desired object of avoiding debate on the conduct of a Judge in the Parlia ment can be achieved only by the Speaker carefully exercis ing his discretion after taking into account the impropriety of such a debate.
Although the powers of State has been distributed by the Constitution amongst the three limbs, that is the Legis lature, the Executive and the Judiciary, the doctrine of Separation of Powers has not been strictly adhered to and there is some overlapping of powers in the gray areas.
A few illustrations will show that the courts ' jurisdiction to examine matters involving adjudication of disputes is sub ject to several exceptions.
Let us consider a case in which an individual citizen approaches the Court alleging serious violation of his fundamental rights resulting in grave and irreparable injury, arising as a consequence of certain acts, and the decision of his claim is dependent on the adjudication of a dispute covered by Article 262 or Article 363.
He does not have a legal remedy before the courts.
Similarly a Member of Parliament or of a State Legislature who 81 may have a just grievance in matters covered by Article 122(2) or 212(2) cannot knock the doors of the courts.
Let us take another example where a group of citizens residing near the border of the country are in imminent danger of a devastating attack from an enemy country in which they are sure to lose large number of lives besides theft property.
This can be averted only by accepting the terms offered by the enemy country, which are in their opinion reasonable and will be highly in the interest of the nation as a whole.
The concerned authorities of the State, however, hold a differ ent view and consider starting a war immediately as an unavoidable strategy, even in the face of imminent danger to the border area.
On an application by the aggrieved citi zens, the Court cannot embark upon an inquiry as to the merits and demerits of the proposed action of the State nor can it direct that the residents of the threatened area must be shifted to some safe place before starting of the war.
The examples can be multiplied.
Generally, questions involv ing adjudication of disputes are amenable to the jurisdic tion of the courts, but there are exceptions, not only those covered by specific provisions of the Constitution in ex press terms, but others enjoying the immunity by necessary implication arising from established jurisprudential princi ples involved in the Constitutional scheme.
It was observed by this Court in Smt.
Indira Gandhi vs Raj Narain, at page 415, that rigid Separation of Powers as under the American Constitution or under the Australian Constitution does not apply to our country and many powers which are strictly judicial have been excluded from the purview of the courts under our Constitution.
Judicial power of the State in the comprehensive sense of the expression as embracing all its wings is dif ferent from the judicial power vested or intended to be vested in the courts by a written Constitution.
The issue which arises in the present case is whether under the Con stitutional scheme a matter relating to the removal of a Judge of the superior courts (Supreme Court or High Courts) is within the jurisdiction of the courts or in any event of this Court.
On a close examination of the Constitution it appears to me that a special pattern has been adopted with respect to the removal of the members of the three organs of the State The Executive, the Legislature and the Judici ary at the highest level, and this plan having been con sciously included in the Constitution, has to be kept in mind in construing its provisions.
The approach appears to be that when a question of removal of a member of any of the three wings at the highest level i.e. the President; the Members of the Parliament and the State Legislatures; and the Judges of the Supreme Court and the High Courts arises, it is left to an organ other than where the problem has arisen, to be decided.
82 11.
The President has to be elected by the members of an electoral college as prescribed by Article 54, in the manner indicated in Article 55.
Since he has to exercise his func tions in accordance with the advice tendered by the Council of Ministers, the matter relating to his impeachment has been entrusted by Article 61 to the Parliament.
In the constitution of the two Houses of the Parliament and the Legislatures of the States, the people of the country are involved more directly, through process of election and any dispute arising therefrom is finally settled judicially.
When it comes to a disqualification of a sitting member, the matter is dealt with by Article 103 or 192 as the case may be and what is significant for the purpose of the present case is that instead of entrusting the matter to the rele vant House itself, the Constitution has provided for a different machinery, not within the control of the Legisla ture.
The decision on such a dispute is left to the Presi dent, and he is not to act on the advice of the Council of Ministers, but in accordance with the opinion of the Elec tion Commission which has been held by this Court to be a Tribunal falling squarely within the ambit of Article 136 of the Constitution in All Party Hill Leaders Conference vs
M. A. Sangma; , at 411.
Thus, the power to decide a dispute is not to be exercised by the Legislature, but lies substantially with the courts.
Consistent with this pattern clause (4) of Article 124 in emphatic terms declares that a Judge of the Supreme Court or the High Court shall not be removed from his office except on a special majority of the Members of each House of Parliament.
Both the Execu tive and the Judiciary are thus excluded in this process.
The provisions of the Constitution and the Act and relevant materials which ,viII be discussed later all unmistakably indicate this Constitutional plan.
The scheme, as mentioned above, which according to my reading of the Constitution has been adopted, cannot be construed as lack of trust in the three organs of the State.
There are other relevant considerations to be taken into account while framing and adopting a written constitution, which include the assurance to the people that the possibil ity of a subjective approach clouding the decision on an issue as sensitive as the one under consideration, has been as far eliminated as found practicable in the situation.
And where this is not possible at all, it cannot be helped, and has to be reconciled by application of the doctrine of necessity, which is not attracted here.
Hamilton, in "The Federalist", while discussing the position in the United States, observed that when questions arise as to whether a person holding very high office either in the Judiciary or the Legislature or the President himself has rendered him self unfit to hold the office, they are of a nature which relates chiefly to the injuries done immediately to the society itself.
Any proceeding for their removal will, 83 for this reason seldom fail to agitate the passions of the whole community and divide it into parties more or less friendly or inimical to the person concerned.
The delicacy and the magnitude of a trust which so deeply concerns the reputation and existence of every man engaged in the admin istration of public affairs speak for themselves.
Mr. Sibal has further relied on Hamilton stating that "the awful discretion which a court of impeachment must necessarily have to doom to honour or to infamy the most confidential and the most distinguished characters of the community, forbids the commitment of the trust, to a small number of persons.
" The counsel added that presumably that is the reason that the question of removal of a Judge of the superior court has been exclusively entrusted to the parlia ment and further in that spirit the Act requires a large number of Members of the parliament to even give the Notice of Motion.
Quoting from 'Harvard Law Review ' (1912 1913 vol.), counsel argued that judicial office is essentially a public trust, and the right of the public to revoke this trust is fundamental.
In a true republic no man can be born with a right to public office, Under such a system of gov ernment, office, whether elective or appointive, is in a sense a political privilege.
The grant of this privilege flows from the political power of 'the people, and so, ulti mately must it be taken away by the exercise of the politi cal power resident in the people.
After referring to the view of many Jurists of international repute Mr. Sibal again came back to "The Federalist", considering the inappropri ateness of the Supreme Court of United States of America to be entrusted with the power of impeachment in the following words: "It is much to be doubted whether the members of that Tribunal at all times be endowed with so eminent a portion of fortitude, as would be called for in the execu tion of so difficult a task, and it is still more to be doubted whether they would possess the degree of credit and authority, which might, on certain occasions be indispens able towards reconciling the people to their decision".
I am not sure whether these are the.precise considerations which appealed to the framers of our Constitution to adopt the Scheme as indicated earlier, but there is no doubt that the subject dealing with the removal of the very high function aries in three vital limbs of the State, received special treatment by the Constitution.
My conclusion is further supported by the materials discussed below.
Learned counsel for the parties referred to the historical background of the relevant provisions of the Constitution and the Act, as also to the constitutional provisions of several other countries, as aid to the inter pretation of the legal position in relation to removal of Judges of the superior courts.
Mr. Sibal laid great emphasis on the evidence of Mr. 84 Setalvad and several other persons before the Joint Commit tee on the Judges (inquiry) Bill, 1964.
His argument is that the Bill was dropped as a result of the opinion expressed before the Joint Committee, and consequently another Bill was drafted which was ultimately adopted by the Parliament as the 1968./Act.
The provisions of the earlier Bill, objec tions raised thereto, and the fact that the Act of 1968 was passed on a subsequent Bill, reconstructed immediately after the decision to drop the original Bill, are all permissible aids to the interpretation of the legal position which has to be ascertained in the present cases before us.
Although the learned counsel for the petitioners challenge their admissiblity, portions of the documents referred to by Mr. Sibal were attempted to be construed on behalf of the peti tioners as supporting their stand.
In my view, it is permis sible to take into consideration the entire background as aid to interpretation.
The rule of construction of statutes dealing with this aspect was stated as far back as in 1584 in Heydon 's case: 76 E.R. 637, and has been followed by our Court in a large number of decisions.
While interpreting Article 286 of our Constitution, reliance was placed by this Court in the Bengal Immunity Company vs The State of Bihar, at 632 & 633, on Lord Coke 's dictum in Heydon s case and the observations.
of the Earl of Halsbury in Eastman Photographic Material Company vs Comptroller General of Patents L R., at p. 576 reaffirm ing the rule in the following words: "My Lords, it appears to me that to construe the statute in question, it is not only legit imate but highly convenient to refer both to the former Act and to the ascertained evils to which the former Act had given rise, and to the later Act which provided the remedy.
These three being compared I cannot doubt the con clusion".
In B. Prabhakar Rao vs State of Andhra Pradesh, [1985] Suppl.
2 SCR 573, the observa tions at p. 591, quoted below, are illuminat ing: "Where internal aids are not forthcoming, we can always have recourse to external aids to discover the object of the legislation.
Exter nal aids are not ruled out.
This is now a well settled principle of modern statutory con struction.
Thus 'Enacting History ' is rele vant: "The enacting history of an Act is the surrounding corpus of public knowledge rela tive to its introduction into Parliament as a Bill, and subsequent progress through, and ultimate passing by, Parliament.
In particular it is the extrinsic material assumed to be within the contemplation of Parliament when it passed the Act." Again "In the period im 85 mediately following its enactment, the history of how an enactment is understood forms part of the contemporanea expositio, and may be held to throw light on the legislative inten tion.
The later history may, under the doc trine that an Act is always speaking, indicate how the enactment is regarded in the light of development from time to time".
"Official statements by the government department admin istering an Act, or by any other authority concerned with the Act, may be taken into account as persuasive authority on the meaning of its provisions".
Justice may be blind but it is not to be deaf.
Judges are not to sit in sound proof rooms.
Committee reports, Parliamentary debates, Policy statements and public utterances of official spokesmen are of relevance in statu tory interpretation.
But 'the comity, the courtsey and respect that ought to prevail between the two prime organs of the State, the legislature and the judiciary ', require the courts to make skilled evaluation of the extra textual material placed before it and exclude the essentially unreliable. "Nevertheless the court, as master of its own procedure, retains a residuary right to admit them where, in rare cases, the need to carry out the legisla tor 's intention appears to the court so to require".
With a view to correctly interpret the Act which was the subject matter of that case, the history and the succession of events including the initial lowering the age of superan nuation, the agitation consequent upon it, and the agreement that followed the agitation were all taken into considera tion.
I, accordingly, propose to briefly state the relevant background of both the Constitutional provisions and of the Act.
At the time of framing of the Constitution of India, the Constitutions of several other countries, which appeared to be helpful were examined, and a Draft was initially prepared.
On the amendment moved by Sir Alladi Krishnaswamy Iyyar the relevant provision was included in the Draft in terms similar to section 72(ii) of the Commonwealth of Australia COnstitution Act (1900) except the last sentence in the following terms: "Further provision may be made by the Federal Law for the procedure to be adopted in this behalf.
" When the matter was finally taken up by the Constituent Assembly the Debates indicate that there was a categorical rejection of the suggestion to entrust the matter to the Supreme Court or a Committee of a 86 number of sitting Judges of the Supreme Court; and while doing so, the law of the other Commonwealth countries were taken into consideration.
So far the last sentence of the draft was concerned, Sir Alladi explained the position by stating "that such a provision does not occur in other Constitutions, but there is a tendency to overelaborate the provisions on our side and that is the only justification for my putting in that clause.
Before further considering the Debates and the other steps in flaming of the Constitution, it may be useful to appreciate the relevance and importance of the point which has an impact on the controversial issue before us.
Accord ing to the petitioners, the question relating to the removal of a Judge comes to the Parliament only on receipt of a report by the Committee under the Act.
The Parliament or any of its Houses, not being in the picture earlier, does not have any control over the Committee, which is to function purely as a statutory body, and, therefore, amenable to the jurisdiction of this Court.
If this stand is correct, what was the position before 1968, when there was no Act? The question is whether the Parliament did not have any power to take any action even if an inquiry in the alleged misbeha viour or incapacity of a Judge was imminently called for.
In other words whether the exercise of the power under clause (4) of Article 124 by the Parliament was dependent on the enactment of a law under clause (5) and until this condition was satisfied no step under clause (4) could be taken.
If on the other hand the Parliament 's power was not subject to the enactment of a law, was it divested of this jurisdiction when it passed an Act? On what principle could the initial jurisdiction of the Parliament disappear in 1968? Since this aspect has a bearing, it was the subject matter of some discussion during the arguments of the learned advocates.
Mr. Sibal was emphatic in claiming that clause (5) was enabling in nature, and clause (4) could not be inter preted as dependent on clause (5).
He relied on Mr. Setal vad 's evidence before the Joint Committee of Bill No. 5 of 1964.
The stand of Mr. Shanti Bhushan, instructed by Mr. Prashant Bhushan, the Advocate on record on behalf of the petitioner in the leading case Writ Petition (C) No. 491 of 1991, has been that clause (5) was merely enabling, but not in the sense as stated by Mr. Setalvad in his evidence.
In the view of the latter, it is open to the Parliament either to follow the procedure laid down by an Act made under clause (5) or to ignore the same in any case and adopt any other procedure.
In other words, even after the passing of the 1968 Act, the Parliament can choose either to proceed according to the said Act or to act independently ignoring the same.
Mr. Shanti Bhushan said that this is not permissi ble.
Once the 1968 Act was enacted, the Parliament is bound to follow it, but earlier 87 it was free to proceed as it liked.
He, however, was quite clear in his submission that the exercise of power under clause (4) could not be said to be conditional on the enact ment of a law under clause (5), and that to interpret the provisions otherwise would lead to the extraordinary result that the Parliament was in a helpless condition for about 18 years till 1968, if a Judge was rendered unfit to continue.
I agree with the learned counsel.
The other learned advocates appearing for the peti tioners did not advert to this aspect pointedly.
The stand of Mr. Garg is that whether or not the third respondent is removed, or whether the inquiry proceeds before the Commit tee or not, he must cease to function as a Judge, as his image being under a cloud, must be cleared so that the people may have trust in the judiciary.
Mr. Ram Jethmalani, the other learned counsel who appeared on behalf of the petitioner in Writ petition (C).No. 491 of 1991, was ini tially of the view as Mr. Shanti Bhushan on the co relation of clause (4) and (5), but after some discussion, he recon sidered the position and took a positive stand that the exercise of power under clause (4) was dependent on a law being enacted under clause (5), and that the Parliament was bound to proceed in accordance with the provisions of the Act.
Now coming back to the Debates, Mr. Santhanam sug gested an amendment for including more details to which the answer of Sir Alladi was as follows: "We need not be more meticulous and more elaborate than people who have tried a similar case in other jurisdictions.
I challenge my friend to say whether there is any detailed provision for the removal of Judges more than that in any other Constitution in the world".
He requested the House to accept the general principle, namely, that the President in consultation with the Supreme Legislature of this country shall have that right, and assured that, "That does not mean that the Supreme Legisla ture will abuse that power".
He rejected the idea of making further additions to the provision relating to the framing of the law by saying, "To make a detailed provision for all these would be a noble procedure to be adopted in any Con stitution.
You will not find it in any Constitution, not even in the German Constitution which is particularly de tailed, not in the Dominion Constitution and not even in the Act of Settlement and the later Acts of British Parliament which refer to the" removal of Judges".
Some members strong ly suggested that the Supreme Court of India or a number of sitting Judges of the Court should be 88 involved in the proceeding, to which Sir Alladi had strong objection.
He called upon the members, "not to provide a machinery consisting of five or four Judges to sit in judg ment over a Chief Justice of the Supreme Court.
Are you really serious about enhancing the dignity of the Chief Justice of India ? You are.
I have no doubt about it".
The clause was ultimately drafted as mentioned above vesting the power in the "Supreme Parliament" as "there must be some power of removal vested somewhere".
He pointed out that the matter was not being left in the discretion of the either House to remove a Judge, but ultimate soverign power will be vested in the two Houses of the Parliament and, "that is the import of my amendment".
In this background, the Article was finally included in the Draft.
Although as was clear from the statements of Sir Alladi as also the language used, the intention of the Sub commit tee preparing the Draft was not to make clause (4) dependent on clause (5), still presumably with a view to allaying any misapprehension which could have arisen by including the entire provisions in one single clause, they were divided and put in two separate clauses and while so doing, the language was slightly changed to emphasise the limited scope of the law.
Clause (4) does not state that the misbehaviour or incapacity of the Judge will have to be proved only in accordance with a law to be passed by the Parliament under clause (5).
Clause (4) would continue to serve the purpose as it does now, without any amendment if clause (5) were to be removed from the Constitution today.
There is no indica tion of any limitation on the power of the Parliament to decide the manner in which it will obtain a finding on misbehaviour or incapacity for further action to be taken by it.
Clause (5) merely enables the Parliament to enact a law for this purpose, if it so chooses.
The word 'may ' has been sometimes understood in the imperative sense as 'shall ', but ordinarily it indicates a choice of action and not a com mand.
In the present context, there does not appear to be any reason to assume that it has been used in its extraordi nary meaning.
It is significant to note that while fixing the tenure of a Judge in clause (2) of Article 124, proviso Co) permits the premature removal in the manner provided in clause (4) without mentioning clause (5) at all.
The signif icance of the omission of clause (5) can be appreciated by referring to the language of clause 2(A) of Article 124 directing that the "age of a Judge of the Supreme Court shall be determined by such authority and in such manner as Parliament may by law provide".
On an examination of all the relevant materials, I am of the view that the exercise of power under clause (4) was not made conditional on the enactment of a law under clause (5), and the reason for inserting 89 clause (5) in Article 124 was, as indicated by Sir Alladi, merely for elaborating the provisions.
The other provisions with reference to which the matter needs further examination are Article 121 of the Constitution and the Act of 1968.
The object of Article 121 is to prevent any discussion in Parliament with respect to the conduct of a Judge of the Superior Courts, except when it cannot be avoided.
The Article, accordingly, prohibits such a discussion except upon a motion for presenting an 'address ' to the President for removal of a Judge.
The point is that if the entire proceeding in regard to the removal of a Judge from the very initial stage is assumed to be in the House, does the bar under Article 121 get lifted at that very stage, thus frustrating the very purpose of the Arti cle.
There is a complete unanimity before us, and rightly so, that the object of Article 121 to prevent a public discussion of the conduct of a Judge is in public interest and its importance cannot be diluted.
Mr. Shanti Bhushan elaborated this aspect by saying that any such discussion in the House is bound to be reported through the media and will thus reach the general public and which by itself, irrespec tive of the final outcome of the discussion, will damage the reputation of the Judge concerned and thereby the image of the entire judiciary; and must not, therefore, be permitted until a report against the Judge after a proper inquiry is available.
Mr. Sibal also agreed on the significance of Article 121 and relied on the views of several eminent international jurists, but we need not detain ourselves on this point, as there is no discordant note expressed by anyone before us.
The question, however, is as to whether the object of Article 121 will be defeated, if clause (4) of Article 124 is construed as complete in itself and independ ent of clause (5), and clause (5) be understood as merely giving an option to the Parliament to enact a law, if it so chooses; and further whether the inquiry before the Commit tee is within the control of the House of the Parliament so as to exclude an outside interference by any other authori ty, including the courts.
It is true that the provisions of an Act control or determine the constitutional provisions, but where the meaning of an Article is not clear it is permissible to take the aid of other relevant materials.
Besides, in the present context, where it is necessary to assess the effect of the construction of the other provisions of the Constitution and of the Act on Article 121, the Act provides useful assist ance; and its importance has been greatly enhanced in view of the points urged in the arguments of the learned counsel for the parties before us.
All the learned advocates for the petitioners as also the Attorney General are positive that the Act is a perfectly valid piece of legislation and no part of it is illegal or ultra vires.
It is on 90 this premise that the writ petitions of the petitioners have been filed and the reliefs are prayed for.
Mr. Sibal repre senting the respondents has halfheartedly challenged the Act, making it clear at the same time that if his interpre tation of the provisions is accepted no fault can be found with the Act.
Besides, the foundation of the reliefs, asked for in the writ petitions, is the Act and the inquiry there under and if the Act itself goes, the reference to the Committee of Inquiry itself will have to be held as nonex istent in the eye of Law and the writ petitions will have to be rejected on that ground alone.
We must, therefore, assume for the purpose of the present cases, that the Act is good and on that basis if the petitioners be found to be entitled to any relief, it may be granted.
I am emphasising this aspect as the Act gives a complete answer to the main ques tion as to whether the Committee is subject to the control of the Lok Sabha, and whether this construction of the provisions defeats the purpose of Article 121.
The is a short enactment containing only seven sections.
Section 1 gives the title and the date of commencement, Section 2 contains definitions and Section 7 deals with power to make rules.
The expression "motion" which has not been defined in the Act is signifi cant in the scheme and naturally, therefore, has been sub ject of considerable discussion during the hearing of these cases.
The Lok Sabha Rules flamed under Article 118 of the Constitution deal with "motions" in Chapter XIV.
There are separate rules of procedures for conduct of business adopted by the Rajya Sabha.
In view of the facts of this case, I propose to refer only to the Lok Sabha Rules.
Section 3(1) of the states that if a notice of"motion" is given for presenting an address to the Presi dent for the removal of a Judge, signed, in the case of a notice given in the Lok Sabha, by not less than 100 members, and in the case of a notice given in the Rajya Sabha, by not less than 50 members of the House, the Speaker or the Chair man, as the case may be, after consulting such persons as he deems fit, as also such relevant materials which may be available to him, either admit the "motion" or refuse to admit the same.
The manner in which this section refers to "motion" in the Act for the first time without a definition or introduction clearly indicates that it is referring to that "motion" which is ordinarily understood in the context of the two Houses of Parliament attracting their respective rules.
Section 3 does not specify as to how and to whom this notice of "motion" is to be addressed or handed over and it is not quite clear how the Speaker suddenly comes in the picture unless the Lok Sabha Rules are taken into account.
Rule 185 states that notice of "motion" shall be given in writing addressed to the Secretary General and its ' admissi bility should satisfy the conditions detailed in Rule 186.
Rule 187 directs the 91 Speaker to examine and decide the admissibility of a "mo tion" or a part thereof.
Rule 189 says that if the Speaker admits notice of a "motion" and no date is fixed for discus sion of such "motion", it shall be notified in the BUlletin with the heading "No,Day Yet Named Motions".
It is at this stage that 1968 Act by Section 3(1) takes over the matter and asks the Speaker to take a decision for admitting this "motion" or refusing it after consulting such persons and materials as he deems fit.
The conclusion is irresistible that the provisions of the Act have to be read along with some of the Lok Sabha Rules.
Rules 185, 186 and 187 should be treated to be supplementary to the Act.
Then comes sub section (2) of Section 3 which is of vital importance in the present context.
It says that if the "motions" referred to in sub section (1) is admitted, the Speaker "shall keep the motion pending" and constitute a Committee for investigation into the allegations consisting of three members of whom one shall be chosen among Chief Justice and other Judges of the Supreme Court and another from among the Chief Justices of the High Court.
The situs where the "motion" is pending is almost conclusive on the issue whether the House is seised of it or not.
Unless the "motion" which has to remain pending, as directed by Section 3(2) is outside the House and the Speak er while admitting it acts as a statutory authority and not qua Speaker of the Lok Sabha, as is the case of the peti tioners before us, the petitioners will not have any base to build their case on.
If the Speaker has admitted the "mo tion" in the capacity as the Speaker and consequently, therefore, representing the House, and has constituted a Committee, it will be entirely for him and through him the House, to pass any further order if necessary about the future conduct of the Committee, and not for this Court, for, the Committee cannot be subjected to a dual control.
So the question to ask is where is the "motion" pending, which is promptly answered by the provisions in the Act, by de claring that it remains pending in the House.
Section 6 deals with the matter from the stage when the report of the Committee is ready and sub section (1) says that if the report records a finding in favour of the Judge, "the motion pending in the House" shall not be proceeded with.
If the report goes against the Judge, then "the motion referred to in sub section (1) of Section 2 shall, together with a report of the Committee, be taken for consideration by the House or the Houses of Parliament in which it is pending".
The Act, therefore, does not leave any room for doubt that the "motion" remains pending in the House and not outside it.
This is again corroborated by the language used in Proviso to Section 3 (2) which deals with cases where no tices of"motion" under Section 3(1) are given on the same date in both Houses of Parliament.
It says that in such a situation, no Committee shall be constituted unless the "motion" has been "admitted in 92 both Houses" and where such "motion"has been admitted "in both Houses", the Committe shall be constituted jointly by the Speaker and the Chairman.
The rule making power dealt with in Section 7 is in the usual terms enumerating some of the subject matters without prejudice to the generality of the power, and permits the Joint Committee of both Houses of Parliament to frame the rules, and accordingly, the Judges (Inquiry) Rules, 1969 were made.
Rule 2(e) of these Rules describes "motion" as motion admitted under Section 3(1) of the Act.
Supplementing the provisions of Section 6(2), Rule 16(2) provides that "a copy of the motion admitted under sub section (1) of section 3 shall be reproduced as an Annexure to such an address".
Sub rule (4) states that "the address prepared under subrule (1) and the motion shall be put to vote together in each House of Parliament".
It is clear that it is not an inadvertent reference in the Act of the "motion" being pending in the House; the provisions unmistakably indicate that the Act and the Rules envisage and deal with a "motion" which is admitted in the House and remains pending there to be taken up again when the date is fixed by the Speaker on receipt of the report from the Committee.
The language throughout the Act has been consist ently used on this premise and is not capable of being ingored or explained away.
Nowhere in the Act or the Rules, there is any provision which can lend any support to the stand of the petitioners before us.
The scope of the Act and the Rules is limited to the investigation in pursuance of a "Motion" admitted by the Speaker.
At the Conclusion of the investigation the Commit tee has to send the report to the Speaker (or the Chairman as the case may be) along with a copy of the original Mo tion.
If the finding goes against the Judge, section 6(2) of the Act directs that the Motion, the same original Motion, shall together with the report be taken up for consideration by the House where the Motion is pending.
The relevant part of section 6(2) mentions: "the Motion referred to in sub section (1) of section 3 shall together with the report of the Committee, be taken up for consideration by the House. in which it is pending".
Rule 16(4) states that the address and the Motion shall be put to vote together in each House of Parliament.
What the Act and the Rules contemplate is the original Motion to be taken up for consideration by the House, and if this Motion is held to have exhausted itself on admission by the Speaker, as has been urged on behalf of the petitioners, nothing remains on which the Act would operate.
The concept of the original Motion being pending in the House, to be taken up for debate and vote on the receipt of the report of the Committee, is the life and soul of the Act, and if that Motion disappears nothing remains behind to attract the Act.
This 93 idea runs through the entire Act and the Rules, and cannot be allowed to be replaced by a substitute.
The existence of a Motion pending in the House is a necessary condition for the application of the Act.
Bereft of the same, the Act does not survive.
It is, therefore, not permissible to read the Act consistent with the stand of the petitioners that the House is not seised of the Motion and does not have anything to do with the inquiry pending before the Committee, until the report is received.
If clauses (4) and (5) of Article 124 are construed as suggested on behalf of the petitioners, the Act will have to be struck down as ultra vires, or in any event inoperative and infructuous and on this ground alone the Writ Petitions are liable to be dismissed.
It has been contended that if the Motion is held to be pending in the House on its admission, the object of Article 121 shall be defeated.
The apprehension appears to be misconceived.
The mandate of the Constitution against discussion on the conduct of a Judge in the House is for everybody to respect, and it is the bounden duty of the Speaker to enforce it.
He has to ensure that Article 121 is obeyed in terms and spirit, and as a matter of fact there is no complaint of any misuse during the last more than 41 years.
The question, however, is whether it will not be feasible for the Speaker to maintain the discipline, if the Motion on admission becomes pending in the House.
Before 1968 Act was passed, the motion, like any other motion, was governed by the Lok Sabha Rules, and Rule 189 enabled the Speaker to notify it as a No Day Yet Named Motion without fixing a date, and to permit the matter to be discussed only at the appropriate stage.
After the Act, what was left within the discretion of the Speaker, has been replaced by mandatory statutory provision, directing that the motion shall remain pending in the House, to be taken up only on receipt of a finding of the Committee against the Judge.
The pendency of the motion in the House, therefore, cannot be a ground to violate Article 121.
Mr Sibal, however, claimed that the members of the House are entitled to express their opinion on the proposed endictment from the very initial stage and as a part of his argument relied upon the statement of Mr. Setalvad before the Joint Committee.
Mr. Shanti Bhushan challenged the views of Mr. Setalvad on the ground that they would foul with Article 121.
I am afraid, the statements of Mr. Setalvad, referred to above, have not been properly appeciated by either side.
The modified Bill, on the basis of which the 1968 Act was passed, had not been drafted by then and Mr. Setalvad was expressing his opinion on the earlier Bill, which substantially vested the power of removal of a Judge in the Executive, and kept the Parliament out of the picture until the receipt of a report on the 94 alleged misbehaviour or incapacity.
If that Bill had been passed, the effect would have been that the entire proceed ing beginning with the initiation of the inquiry and con cluding with the report would have remained completely outside the House, an interpretation which is being attempt ed by the present petitioners before us, on the present Act too.
The objection to the entrustment of the power to the Executive was mainly on the ground that the intention of the Article 124 to leave the removal of a Judge in the hands of the Parliament would be frustrated.
In answer to a query of the Chairman of the Committee, Mr. Setalvad said that as a result of the provisions of the Bill (then under considera tion) the Parliament would be completely kept out until a finding of another body was received by the House and this would militate against the constitutional scheme.
In this background when his attention was drawn to the bar of Arti cle 121 he replied that it was possible to prevent a prema ture discussion in the Parliament, by the Speaker exercising his authority with discretion.
He referred to the Lok Sabha Rules in this context and furher recommended for the Speaker to be vested with larger powers.
He was emphatic that the President should not be entrusted with the matter, even at the initial stage, and that it should be left in the hands of the Speaker to take appropriate steps.
The suggested substitution of the Speaker (and the Chairman) in place of the President was in accordance with the view that the matter is within the exclusive domain of the two Houses of the Parliament which could exercise its powers through the respective representatives Speaker and the Chairman.
About Mr. Setalvad 's evidence I would like to clarify the position that I am not treating his opinion as an authority, and I have taken into account the same as one step in the history of the present legislation starting from the original Bill of 1964.
The report of the JointCommittee (presented on 17th May, 1966) sets out the observations of the Committee with regard to the principal changes proposed in the Bill.
Para graph 17 of the Report dealing with clause (2) states that the expression "Special Tribunal" has been substituted by "Committee" and "Speaker" and "Chairman" have been brought in "with a view to ensuring that the Committee may not be subject to writ jurisdiction of the Supreme Court & the High Courts".
With respect to clause (3), the following observa tions of the Committee are relevant: "The Committee are of the view that to ensure and maintain the independence of the judici ary, the Executive should be excluded from every stage of the procedure for investigation of the alleged misbehaviour or incapacity of a Judge and that the initiation of any proceed ing against a Judge should be made in Parlia ment by a notice of a motion.
The Committee 95 also feel that no motion for presenting an address to the President praying for the removal of a Judge should be admitted unless the notice of such motion is signed in the case of a motion in the Lok Sabha, by not less than one hundred members of that House and in the case of a motion in Rajya Sabha, by not less than fifty members of that House.
Fur ther, the Committee are of the opinion that the Speaker or the Chairman or both, as the case may be, may after consulting such persons as they think fit and after considering such materials, as may be available, either admit or reject the motion and that if they admit the motion, then they should keep the motion pending and constitute a Committee consisting of three members, one each to be chosen from amongst the Chief Justice and other Judges of the Supreme Court, Chief Justice of the High Courts and distinguished Jurists, respective ly".
Paragraph 20 of the Report deals with clause (6) and the proposed changes, that were more consistent with the motion being pending in the House or Houses.
Ultimately, another Bill on the lines suggested by the aforesaid Joint Committee was drafted and adopted.
Mr. Setalvad 's opinion is relevant as an important step in this history of legislation and can be referred to as such.
The wider proposition put forward by Mr. Sibal that the House was seised of the matter so effectively as to entitle every member to demand a discussion in the House at any stage is, however, not fit to be accepted.
This will not only violate Article 121, but also offend the provisions of the 1968 Act.
It is not correct to assume that if the right of the individual member to insist on immediate discussion is denied, the consequence will be to deprive the Parliament of the control of the motion.
When the Speaker exercises authority either under the Lok Sabha Rules or under the.1968 Act, he acts on behalf of the House.
As soon as he ceases to be the Speaker, he is divested of all these powers.
When he acts the House acts.
It is another matter that he may con sult other persons before admitting the motion, and while so doing, he may consult the members of the House also, but without permitting a discussion in the House.
The consulta tion, which the Act permits, is private in nature, not amounting to a public discussion while the object of Article 121 is to prevent a public debate.
It may also be open to the Speaker to consult the House on a legal issue which can be answered without reference to the conduct of Judge in question, as for example, the issue (involved in the present case) whether on account of dissolution of the old House the Motion has lapsed and the Committee of Inquiry is defunct.
What is prohibited is not every matter 96 relating to the removal of a Judge; the bar is confined to a discussion with respect to the conduct of a Judge in the discharge of his duties.
28: Mr. Shanti Bhushan strenuously contended that such portion of the 1968 Act which direct or declare the initial motion admitted by the Speaker to remain pending in the House, should be interpreted as creating a legal fiction limited for the purpose of ensuring that the bar under Article 121 is not lifted prematurely.
I do not see any justification for placing this construction on the Act.
This issue could not arise with reference to the original Bill which was ultimately dropped, as under its scheme the matter could not have reached the Parliament before the report the Special Tribunal was laid before the Houses under the Presi dent 's direction.
The petitioners are trying to put an interpretation on the present Act that may lead to the same conclusion, that is, that the Parliament does not come in the picture until the receipt of the report from the Commit tee.
This is wholly inconsistent with the original Bill not Finding favour with the Parliament.
But apart from this consideration, let us assume that the petitioners are right, and the matter does not reach the Parliament at all before it is ready for consideration on the basis of the Inquiry Report.
It cannot be suggested that even at that stage a discussion on the conduct of a Judge is banned; and before this stage is reached there is no occasion for relying upon Article 121 to prevent a discussion.
The situation, there fore, does not require the aid of any legal fiction.
The consequence of accepting the argument of Mr. Shanti Bhushan will be to render the aforesaid provisions of the statute wholly superfluous.
Also, had it been a case of a legal fiction as suggested, it would attract the observations of Lord Asquith in East End Dwellings Co. Ltd And Finsbury Borough Council: , (followed in 'this country in numerous cases) to the effect that if you are bidden to treat an imaginary state of affairs as real, you must also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevita bly have flowed from or accompanied it; and if the statute says that you must imagine a certain state of affairs, it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs.
The alternative sug gestion of Mr. Shanti Bhushan that the motion, on its admis sion, having served its purpose, is completely exhausted, and a new motion is to be moved again by a member on the receipt of the Report from the Committee, has also no merit, for if the motion completely exhausts itself and there.
fore does not remain in existence any further, no problem about the lifting of the bar under Article 121 arises for being solved with the help of a legal fiction.
An attempt was made by mr. Shanti Bhushan to derive some support 97 from that part of clause (4) of Article 124 which requires the voting in the two Houses to take place in the same session.
The provision appears to me to be absolutely irrel evant.
The clause does not require that the entire proceed ing with respect to the removal of a Judge commencing with the notice of motion has to be within the same session.
It refers only to the voting part.
A close reading of the entire Act indicates that the language therein, which com pletely demolishes the petitioners ' case, was consciously chosen to make the House seised of the matter, and conse quently it became necessary to include the provisions di recting the motion to remain pending for the purpose of preventing a premature discussion.
The Act has, thus, very successfully respected both Articles 124 and 121 in their true spirit, by neatly harmonising them.
Let us consider another argument of the petitioners that by reason of the expression "on the ground of proved misbehaviour or incapacity" occurring in clause (4) of Article 124 it should be held that until an adverse verdict of misbehaviour or incapacity by some other body is received by the House, the matter does not come within its purview.
The body in contemplation of clause (4) may be an authority, completely unassociated with either House of the Parliament or the Speaker or the Chairman, and the Parliament may not have any control over the same.
Such authority would be purely statutory, not amenable to the discipline of the Parliament, but subject to the Court 's jurisdiction.
Merely for the reason that a statute under clause (5) prescribes the procedure in this regard by entrusting the Speaker to take a decision at the initial stage, he could not cease to be a statutory authority.
In other words, he acts in his individual capacity under the power vested by the law and not in a representative capacity.
1 do not find this con struction of clauses (4) and (5) acceptable.
This would, in substance, deny the Parliament the power to remove a Judge exclusively vested in it by Constitution.
Let us ignore the present Act and consider another statute with provisions in express terms on the lines suggested by the petitioners, that is, entitling the statutory authority to act independ ently of the Parliament, the Speaker and the Chairman.
If that could be permissible it would lead to the Parliament being reduced to a helpless spectator, dependent on the statutory authority, to act on or to ignore a complaint.
This would be in complete violation of the intention of the Constitution to vest the power to remove a Judge exclusively in the Parliament.
It must, therefore, be held that the Parliament is in control of the matter from the very begin ning till the end, and it acted correctly in accepting the objections of the Joint Committee to the original Bill, aforementioned, and in passing the Act of 1968, iii the form we find it.
By the introduction of the Speaker and the requirement of a large number of members of either House to initiate the matter, the 98 House is brought in control of the proceeding through its representative the Speaker or the Chairman.
It has to be noted that "the ground of proved misbehaviour or incapacity" is necessary only for putting the matter to vote in the House under clause (4), and is not a condition precedent for initiating a proceeding and taking further steps in this regard.
Mr Sibal projected another extreme point of view by contending that a finding of the Committee in favour of the Judge cannot be held to be binding on the Parliament on account of the limited scope of a statute passed under clause (5).
There is no merit in this argument either.
Clause (4) authorises the Parliament to act on the ground of proved misbehaviour or incapacity and clause (5) permits it to pass a law to lay down the manner in which it may become possible to do so.
It is true that the Parliament can exer cise its power without formally framing a law.
The House in question could in the absence of a law, decide on the proce dure to be followed in a given case but it was perfectly open to it to pass an Act laying down a general code to be followed until the Act is repealed or amended.
It is a well established practice for a large body to entrust investiga tions to a smaller body for obvious practical reasons, and such an exercise cannot be characterised as indulging in abnegation of authority.
It could have asked a Parliamentary Committee to enquire into the allegations or employed any other machinery for the purpose.
The ratio in State of Uttar Pradesh vs Batuk Deo Pati Tripathi and Anr., , is attracted here.
In that case the Administrative Committee of the High Court, constituted under the Rules of the Court resolved that the District Judge should be retired compulsorily from the service, and the Registrar of the High Court communicated the decision to the State Government and thereafter circulated to all the Judges of the High Court for their information.
The State Government passed orders retiring the District Judge, whereupon he filed a writ petition in the High Court.
The matter was heard by a Full Bench and the majority of the Judges held that the writ petitioner could not have been compulsorily retired on the opinion recorded by the Administrative Committee, as the Full Court was not consulted.
The application was allowed and a writ was accordingly issued.
On appeal by the State Government this Court reversed the decision holding that Article 235 of the Constitution authorised the High Court to frame the rules for prescribing the manner in which the power vested in the High Court had to be exercised, and observed that though the control over the subordinate courts is vested constitutionally in the High Court by the Article, it did not follow that the High Court has no power to pre scribe the manner in which that control may, in practice, be exercised; and in fact, the very circumstance that the power of control, which comprehends matters of a wide ranging authority, vests in the entire body of Judges 99 makes it imperative that the rules are flamed so that the exercise of the control becomes feasible, convenient and effective.
The parliament is a far larger body than the High Court and the observations apply to it with greater force.
So long as the statute enables the House to maintain its control either directly or through the Speaker, the entrust ment of the investigation does not amount to abdication of power.
It is a case where the Parliament has taken a deci sion to respect the verdict of the Committee in favour of the Judge, consistently with clause (4) and no fault can be .found.
It has been stated on behalf of the respondents that the question whether the Motion against the respondent No. 3 has lapsed as a result of the dissolution of the old House is agitating the minds of the members of the Lok Sabha and the issue is under consideration of the new Speaker.
In support, he produced a copy of the proceeding of the House.
If the present Speaker holds that the Motion has lapsed, and the Committee does not have any duty to perform, the pro ceeding cannot be proceeded with any further.
In reply the learned counsel for the petitioners claimed that after the matter is entrusted to the Committee, neither he nor the Parliament at this stage can undo the admission of the Motion by the earlier Speaker, or withdraw the investiga tion.
If the petitioners are right, then what happens if a member of the Committee becomes unavailable by any reason whatsoever or another member renders himself unfit to be on the Committee, say by reason of his apparent and gross bias, against or in favour of the Judge concerned, coming to light after the formation of the Committee ? The answer is that the House which is in control of the proceeding is entitled to take all necessary and relevant steps in the matter, except discussing the conduct of the Judge until the stage is reached and the bar under Article 121 is lifted.
If on the other hand it is held that the Committee is an independ ent statutory body not subject to the control of the House directly or through the Speaker, as the petitioners suggest, the Act may be rendered unworkable.
Besides, this would impute to the Parliament to have done exactly what the Constituent Assembly refused to do by accepting Sir Alla di 's impassioned appeal, referred to above in para graph 19, not to lower the dignity of the Chief Justice of India by providing a machinery consisting of 5 or 4 Judges to sit in appeal over him.
It may be noted here that the Constitution has considered it fit to entrust the inquiry in the alleged misbehaviour of a member of a Public Service Commission, a constitutional functionary but lower in rank than the Supreme Court, to the Supreme Court without associ ating a Chief Justice of the High Court or any other person lower in rank.
If the Committee is held to be functioning under the supervision and control of the parliament, with a view to aid it for the purpose of a proceeding pending in the House, it will be the parliament which will be in con trol of the proceeding and not the Committee.
100 32.
Mr Jethmalani was fervent in his exhortation to construe the Constitution and the Act in a manner which will protect the independence of the judiciary from the politi cians, and this, according to him, is possible only if this Court comes to an affirmative conclusion on the question of justiciability.
There cannot be two opinions on the necessi ty of an independent and fearless judiciary in a democratic country like ours, but it does not lead to the further conclusion that the independence of judiciary will be under a threat, unless the matter of removal of Judges, even at the highest level, is not subjected to the ultimate control of Courts.
The available materials unmistakably show that great care was taken by the framers the Constitution to this aspect and the matter was examined from every possible angle, before adopting the scheme as indicated earlier.
So far as the district courts and subordinate courts are concerned, the control has been vested in the High Court, but when it came to the High Court and Supreme Court Judges, it was considered adequate for the maintenance of their independence to adopt and enact the Constitution as we find it.
I do got see any reason to doubt the wisdom of the Constituent Assembly in entrusting the matter exclusively in the hands of the Parliament and I do not have any ground for suspicion that the Members of Par liament or their representatives, the Speaker and the Chair man, shall not be acting in the rue spirit of the Constitu tional provisions.
Similarly, the task of enacting a law under clause (5) was taken up seriously by consid ering every relevant aspect, and the process took several years before the Act was passed.
do not propose to deal with this point any further beyond saying that the mandate of the Constitution is binding on all of us, and I would close by quoting the following words from Hamilton: "If mankind were to resolve to agree in no institution of government, until every part of it had been adjusted to the most exact stand ard of perfection, society would soon become a general scene of anarchy, and the world a desert.
Where is the standard of perfection to be found ? Who will undertake to unite the discordant opinions of a whole community, in the same judgment of it; and to prevail upon one conceited projector to renounce his infal lible criterion for the fallible criterion of his more conceited neighbour? To answer the purpose of the adversaries of the Constitu tion, they ought to prove, not merely that particular provisions in it are not the best which might have been imagined, but that the plan upon the whole is bad and pernicious".
It has not been suggested on behalf of the petition ers or by anybody else that it is open to the Court to examine the legality of a final decision taken by the Par liament under clause (4).
Even after a verdict against the Judge is returned by the Committee, the Parlia ment or for that matter any of the two Houses can refuse to vote in favour of the Motion for removal of a Judge, and the Court shall not have any jurisdiction to interfere in the matter.
Is it conceivable, in the circumstances, that at the intermediate stage of investigation the Court has got the power to intervene ? The answer is in the negative for more than one reason.
If the control of the House continues on the proceeding throughout, which can he exercised through the Speaker, it cannot be presumed that the Court has a parallel jurisdiction, which may result in issuance of contradictory directions.
Besides, the Court cannot he expected to pass orders in the nature of step in aid, where the final result is beyond its jurisdiction.
Any order passed or direction issued by this Court may result in merely an exercise in futility, and may cause a situation, embarassing both for the highest judicial and legislative authorities of the country.
The Constitution cannot he attributed with such an intention.
I, therefore, hold that the courts including the Supreme Court do not have any jurisdiction to pass any order in relation to a proceeding for removal of a Judge of the superior courts.
Reference was made by the learned counsel for the parties to the Constitutions of several other countries, but I do not consider it necessary to discuss them excepting the Australian Constitution as they do not appear to be helpful at all.
As has been mentioned earlier the language of Arti cle 124 (4) is similar to section 72(ii) of the Common wealth of Australia Constitution Act (1900), except with this difference that the Australian Constitution Act.does not specifically provide for any law to he made for regulat ing the procedure and investigation.
However, the constitu tional and the legal position in Austraila is not helpful to resolve the present dispute before us, as the Commonwealth of Australia Constitution Act (1900) has adopted rigid Separation of Powers between the Executive, Legislature and Judiciary (as has been observed by this Court on many occa sions including at page 415 in Smt.
Indira Gandhi vs Raj Narain, , relented to above in paragraph 9.
Reference has been made by P.H. Lane in his commentary on the Australian Constitution to the proceedings which were initiated for removal of Mr. Justice Murphy under section 72 (ii) of the Constitution Act.
On account of sharp difference amongst the members of the Select Committee of the Senate appointed to inquire into the matter and a further failure to resolve the situation by establishing a second Committee and in view of certain other facts an adhoc legislation was passed under the name of Parliamentary Commission of Inquiry Act, 1986.
Under this Act further steps were being taken when Mr. Justice Murphy moved the High Court of Austraila for an order of injunction challenging the validity of the Act and alleging that one of the members of the Commission constituted under the Act (a 102 retired Judge) was disqualified on account of bias.
The application was dismissed on merits without adverting to the question of justiciability.
This decision, to my mind, is of no help to the petitioners before us, mainly on account of the difference in the Constitutional scheme of the two countries with respect to the Separation of Powers.
The judicial powers there have been exclusively vested in the courts by section 71 of the Constitution Act of 1900.
Lane has at page 372 of his book opined that sec tion 72 (ii) may be non justiciable, since it seems to place the exercise under the section in Parliament itself.
He, however, further proceeds to say that the Parliament could seek the High Court 's help, for example, in the peripheral matter of the meaning of misbehaviour or incapacity in section 72(ii).
He has also referred to certain other provi sions of the Constitution Act, and analysed the roles of Parliament and Court with his comments.
I do not consider it necessary to proceed further beyond saying that Mr. Justice Murphy 's case does not provide any aid in deciding the issue in the cases before us.
Although our Constitution was made after examining the Constitutions of many other countries, it has adopted a pattern of its own.
The learned counsel also placed a large number of decisions; both Indian and foreign and since I have not found them relevant, I have refrained from discussing them.
None of the cases in which this Court has either interfered with the decision of the House or has refused to do so, related to a proceeding for removal of a Judge, and are clearly distinguishable in view of my opinion expressed above.
I am also not dealing with the other points urged by Mr. Sibal, as I agree with him on the main issue of justiciability.
I am avoiding to express any opinion on the controversy whether the Motion lapsed or not on the dissolution of the earlier House, as the issue is for the Lok Sabha to decide.
In view of the above findings this Court cannot pass any order whether permanent or temporary on the prayer that the respondent No. 3 should not be allowed to exercise his judicial powers.
In the result all the F writ petitions are dismissed.
The prayer for transfer of Writ Petition No. 1061 of 1991 in Transfer Petition No. 278 of 1991 is allowed and that Writ Petition is also dismissed.
There will be no order as to costs.
N.P.V. Petitions dis posed of. [/INST] Upon a notice given by 108 members of the 9th Lok Sabha of a Motion for presenting an Address to the President for the removal of a sitting Judge of the Supreme Court for the alleged misconduct committed by him while he was functioning as Chief Justice of a High Court, the Speaker of the Lok Sabha admitted the Motion and constituted a Committee con sisting of a sitting Judge of this Court, Chief Justice of a High Court and a distinguished jurist in terms of Section 3(2) of the .
Subsequently, the Lok Sabha was dissolved and its term came to an end.
On its understanding that the Motion as well as the decision of the Speaker thereon had lapsed consequent on the dissolution of the Lok Sabha, the Union government did not act in aid of the decision of the Speaker, and notify that the services of the two sitting Judges on the Committee would be treated as "actual service" within the meaning of Para 11(B)(i) of of the II Schedule to the Constitu tion.
Thereupon, a body called the Sub Committee on Judicial Accountability, claiming to be a Sub Committee constituted by an All India Convention on Judicial Accountability to carry forward the task of implementing the resolutions of the conventions, and the Supreme Court Bar Association, seeking to prosecute the matter in the larger public inter est and, in particular, in the interests of litigant public, filed two Writ Petitions before this Court.
Two prayers common to both the petitions were, first, that the Union of India be directed to take immediate steps to enable the Inquiry Committee to discharge its functions under the and, second, that during the pendency of the proceedings before the Committee the con cerned Judge should be restrained from performing judicial functions and from exercising Judicial powers.
It was contended on behalf of the petitioners that pending business lapsed on prorogation, and as a general practice the House was 4 usually prorogued before it was dissolved, but impeachment motions were sui generis in their nature and, therefore, they did not lapse; that the question whether a motion lapsed or not was a matter pertaining to the conduct of the business of the House of which the House was the sole and exclusive master; no aspect of the matter was justiciable before a Court and Houses of Parliament were privileged to be the exclusive arbiters of the legality of their proceed ings, that it would be highly inappropriate that the Speaker should issue notice to a Judge and call upon him to appear before him; that these proceedings could not be equated with disciplinary or penal proceedings and the Speaker would not decide anything against the Judge at that stage and would merely decide whether the matter would bear investigation; that the constitutional machinery for removal of a Judge was merely a political remedy for judicial misbehaviour and did not exclude the judicial remedy available to the litigants to ensure and enforce judicial integrity, that the right to move the Supreme Court to enforce fundamental rights was itself a fundamental right and that took within its sweep, as inhering in it, the right to an impartial judiciary with persons of impeccable integrity and character, without which the fundamental right to move the court itself becomes barren and hollow, that the court itself had the jurisdic tion nay a duty to ensure the integrity and impartiality of the members composing it and restrain any member who was found to lack in those essential qualities and attainments at which public confidence is built.
Another Writ Petition was filed by an individual by way of a counter to the second prayer in the Writ Petitions filed by the SubCommittee on Judicial Accountability and the Supreme Court Bar Association.
It was contended that till the Inquiry Committee actually found the concerned Judge guilty of charges, there should be no interdiction of his judicial functions and that if such a finding was recorded then thereafter till such time as the Motion for the presen tation of the Address for the removal of the Judge was disposed of by the Houses of Parliament which should not be delayed beyond 180 days the President may ask the Judge concerned to recuse from judicial functions.
Another Writ Petition was also filed by a practising Advocate challenging the constitutional validity of the as ultra vires Articles 100, 105, 118, 121 and 124(5) of the Constitution of India and seeking a declaration that the ' Motion presented by 108 Members of Parliament for the removal of the Judges 5 had lapsed with the dissolution of the Lok Sabha.
The peti tioner also sought the quashing of the decision of the Speaker admitting the Motion, on the ground of denial of opportunity of being heard to the concerned Judge before the admission of Motion and constitution of the Committee by Speaker.
A Transfer Petition was filed seeking the withdrawal by the Supreme Court to itself from the Delhi High Court the Writ Petition filed in the High Court, where reliefs were similar to those prayed for in the Writ Petition filed by the practising Advocate.
The Writ Petition was directed to be withdrawn to the Supreme Court and was heard along with other Writ Petitions.
1t was contended on behalf of the petitioners in these Writ Petitions that before taking a decision to admit the motion and constituting a Committee for investigation, it was incumbent upon the Speaker, as a minimum requirement of natural justice, to afford an opportunity to the Judge of being heard since such a decision had momentous consequences both to the Judge and to the judicial system as a whole and that any politically motivated steps to besmear a Judge would not merely affect the Judge himself but also the entire system of administration of justice and therefore it would greatly advance the objects and purposes of if the Judge concerned himself was given such a hearing; that the Speaker had acted contrary to Constitutional practice, that the manner in which he had admitted the motion smacked of malafides and since the Speaker had not entered appearance and denied the allega tions, he must be deemed to have admitted them; that having regard to the nature of the area the decision of the Court and its writ is to operate in, the Court should decline to exercise its jurisdiction, and that any decision rendered or any writ issued might, ultimately become futile and infruc tuous as the constitution of and investigation by the com mittee were not, nor intended to be, an end by themselves culminating in any independent legal consequence, but only a proceeding preliminary to and preceding the deliberations of the House on the motion for the presentation of an address to the President for the removal of a Judge, which was indisputably within the exclusive province of the Houses of Parliament over which courts exercised no control or juris diction.
On behalf of the Union of india it was contended that a combined reading of Articles 107, 108 and 109 would lead irresistibly to the conclusion that upon dissolution of the House, all bills would 6 lapse subject only to the exception stipulated in Article 108, that on first principle also it required to be accepted that no motion should survive upon the dissolution of the House unless stipulated otherwise under the Rules of proce dure and conduct of business; the doctrine of lapse was a necessary concomitant of the idea that each newly constitut ed House was a separate entity having a life of its own unless the business of the previous House was carried over by the force of statute or rules of procedure and that the question whether a motion lapsed or not was to be decided on the basis of the provisions of law guiding the matter and the House itself was not its final arbiter and the Court alone had jurisdiction to examine and pronounce on the law of the matter.
Disposing of the cases, this Court, HELD: By majority Per Ray.
J. (for himself, Venkatacha liah, Verma and Agrawal, J J) 1.1 Where there is a written Constitution which consti tutes the fundamental and in that sense a "higher law" and acts as a limitation upon the Legislature and other organs of the State as grantees under the Constitution, the usual incidents of parliamentary sovereignty do not obtain and the concept is one of 'limited Government '.
Judicial review is an incident of and flows from this concept of the fundamen tal and the higher law being the touchstone of the limits of the powers of the various organs of the State which derive power and authority under Constitution and that the judicial wing is the interpreter of the Constitution and, therefore, of the limits of authority of the different organs of the State.
In a federal set up, the judiciary becomes the guard ian of the Constitution.
The inter pretation of the Consti tution as a legal instrument and its obligation is the function of the Courts.
It is emphatically the province and duty of the judicial department to say what the law is.
[51 G H, 52A, D] 1.2 In interpreting the constitutional provisions con cerning the judiciary and its independence the Court should adopt a construction which strengthens the foundational features and the basic structure of the Constitution.
Rule of law is a basic feature of the Constitutional fabric and is an integral part of the constitutional structure.
Inde pendence of the judiciary is an essential attribute of Rule of law.
[31 D] 1.3 In construing the Constitutional provisions, the law and 7 procedure for removal of Judges in other countries afford a background and a comparative view.
The solution must, of course, be found within our own Constitutional Scheme.
But a comparative idea affords a proper perspective for the under standing and interpretation of the Constitutional Scheme.
[31 G H] Barringtons Case [1830]; Terrell vs Secretary of State for the Colonies and Another, , referred to.
Constituent Assembly Debates Vols.
I to VI @ pp 899,900 Vol.
VIII @ pp.
243 262, referred to.
Halsbury 's Laws of England, 4th Ed.
p 1108; She treet 'Judges on Trial ' (1976); pp.
404 405; Rodney Brazier 'Constitutional Texts ' (1990) pp.
606 607; Gall 'The Canadi an Legal System ' (1983); pp. 184 186, 189; Lane 's Commentary on The Australian Constitution (1986) p. 373; Mclelland 'Disciplining Australian Judges ' , at p. 403; Henry J. Abraham. ' The Judicial Process, 3rd Ed.
p. 45; Robert J. Janosik: Encyclopeadia of the American Judicial System, Vol II pp.
575 to 578; "The Impeachment of the Federal Judiciary" Wrisley Brown Harvard Law Review 1912 1913 684 at page 698; 'The Judicial Process in Comparative Perspective ' (Clarendon Press Oxford 1989 at page 73); (Erskine May 's "The Law, Privileges, Proceeding and Usage of Parliament" (Twenty first Edition London Butterworths 1989); M.N. Kaul and S.L. Shakdher in Practice and Procedure of Parliament", referred to.
2.1 It is not correct to say that the question whether a motion has lapsed or not was a matter pertaining to the conduct of the business of the House, of which the House was the sole and exclusive master, and that no aspect of the matter was justiciable before a Court.
[29 C ,53 G] 2.2 The question whether the motion has lapsed is a matter to be pronounced upon on the basis of the Constitu tion and the relevant rules.
[53 E] 2.3 On such interpretation of the Constitutional provi sions as well as the , the Courts retain jurisdiction to declare that a motion for removal of Judge does not lapse on dissolution of the House.
[53F G] Bradlaugh vs Gossett, [18841 , distinguished.
8 A.K. Gopalan vs The State of Madras, |; Special Reference Case; , , referred to.
Barton vs Taylor, , Rediffuson (Hong Kong) Ltd. vs Attorney General of Hong Kong, ; , referred to.
3.1 The constitutional process for removal of a Judge upto the point of admission of the motion, constitution of the Committee and the recording of findings by the Committee are not, strictly, proceedings in the Houses of Parliament.
The Speaker is a statutory authority under the Act.
Upto that point the matter cannot be said to remain outside the Court 's jurisdiction.
[66 E] 3.2 The scheme of Articles 124(4) and (5) is that the entire process of removal is in two parts the first part, under clause (5) from initiation to investigation and proof of misbehaviour or incapacity is covered by an enacted law, Parliament 's role being only legislative as in all the laws enacted by it, the second part under clause (4) is in Par liament and that process commences only on proof of misbeha viour or incapacity in accordance with the law enacted under clause (5).
Thus, the first part is entirely statutory, while the second part alone is the parliamentary process.
[61 D] 3.3 The context and setting in which clause (5) appears along with clause (4) in Article 124 indicate its nature and distinguish it from Articles 118, 119 and 121, all of which relate to procedure and conduct of business in Parliament.
[61 B C] 3.4 The validity of law enacted by the Parliament under clause (5) of Article 124 and the stage upto conclusion of the inquiry in accordance with that law, being governed entirely by statute, would be open to judicial review as the parliamentary process under Article 124(4) commences only after a finding is recorded that the alleged misbehaviour or incapacity is proved in the inquiry conducted in accordance with the law enacted under clause (5).
For this reason, the argument based on exclusivity of Parliament 's jurisdiction over the process and progress of inquiry under the and, consequently, exclusion of this Court 's jurisdiction in the matter at this stage does not arise.
[59 G H, 60 A] 4.1 Article 121 suggests that the bar on discussion in Parliament with respect to the conduct of any Judge is lifted 'upon a 9 motion for presenting an address to the President praying for the removal of a Judge as hereinafter provided '.
The words 'motion ' and 'as hereinafter provided ' are obvious references to the motion for the purpose of clause (4) of Article 124 which, in turn, imports the concept of "proved" misbehaviour or incapacity.
What lifts the bar under Article 121 is the 'proved ' misbehaviour or incapacity.
Clause (5) of Article 124 provides for an enactment of law for the purpose of investigation and proof of misconduct or incapac ity preceding the stage of motion for removal on the ground of 'proved ' misbehaviour or incapacity under clause (4).
[56 H, 57 A B] 4.2 An allegation of misbehaviour or incapacity of a Judge has to be made, investigated and found proved in accordance with the law enacted by the Parliament under Article 124 (5) without the Parliament being involved upto that stage; on the misbehaviour or incapacity of a Judge being found proved in the manner provided by that law a motion for presenting an address to the President for remov al of the Judge on that ground would be moved in each House under Article 124(4); on the motion being so moved after the proof of misbehaviour or incapacity and it being for pre senting an address to the President praying for removal of the Judge, the bar on discussion contained in Article 121 is lifted and discussion can take place in the Parliament with respect to the conduct of the Judge; and the further conse quences would ensue depending on the outcome of the motion in a House of Parliament.
If, however, the finding reached by the machinery provided in the enacted law is that the allegation is not proved, the matter ends and there is no occasion to move the motion in accordance with Article 124(4).
[57 G H, 58 A B] 4.3 Thus prior proof of misconduct in accordance with the law made under Article 124(5) is a condition precedent for the lifting of the bar under Article 121 against dis cussing the conduct of a Judge in the Parliament.
Article 124(4) really becomes meaningful only with a law made under Article 124(5), without which, the constitutional scheme and process for removal of a Judge remains inchoate.
[66 F] 4.4 The bar in Article 121 applies to discussion in Parliament but investigation and proof of misconduct or incapacity cannot exclude such discussion.
This indicates that the machinery for investigation and proof must neces sarily be outside Parliament and not within it.
In other words, proof which involves a discussion of the conduct of the Judge must be by a body which is outside the limita 10 tion of Article 121.
The policy appears to be that the entire stage upto proof of misbehaviour or incapacity, beginning with the initiation of investigation on the alle gation being made, is governed by the law enacted under Article 124(5) and in view of the restriction provided in Article 121, that machinery has to be outside the Parliament and not within it.
Parliament neither has any role to play till misconduct or incapacity is found proved nor has it any control over the machinery provided in the law enacted under Article 124(5).
Parliament comes in the picture only when a finding is reached by that machinery that the alleged misbe haviour or incapacity has been proved.
The enacted under article 124(5) itself indicates that the Parliament so understood the integrated scheme of Arti cles 121, 124(4) and 124(5).
The general scheme of the Act conforms to this view.
[58 H 59 A D] 4.5 It is not the law enacted under Article 124(5) which abridges or curtails the parliamentary process or exclusivi ty of its jurisdiction, but the Constitutional Scheme itself which by enacting clauses (4) and (5) simultaneously indi cated that the stage of clause (4) is reached and the proc ess thereunder commences only when the alleged misbehaviour or incapacity is proved in accordance with the law enacted under clause (5).
It is only then that the need for discuss ing a Judge 's conduct in the Parliament arises and, there fore, the bar under Article 121 is lifted.
[60 D E] 5.1 If the motion for presenting an address for removal is envisaged by Articles 121 and 124(4) 'on ground of proved misbehaviour or incapacity ', it presupposes that misbeha viour or incapacity has been proved earlier.
This is more so on account of the expression 'investigation and proof ' used in clause (5) with specific reference to clause (4), indi cating that 'investigation and proof ' of misbehaviour or incapacity is not within clause (4) but within clause (5).
Use of the expression 'same session ' in clause (4) without any reference to session in clause (5) also indicates that session of House has no significance for clause (5) i.e., 'investigation and proof ' which is to be entirely governed by the enacted law and not the parliamentary practice which may be altered by each Lok Sabha.
[61 F H] 5.2 The significance of the word 'proved ' before the expression 'misbehaviour or incapacity ' in clause (4) of Article 124 is also indicated when the provision is compared with Article 317 providing for removal of a member of the Public Service Commission.
The expression in clause (1) of Article 317 used for describing the ground 11 of removal is 'the ground of misbehaviour ' while in clause (4) of Article 124, it is, 'the ground of proved misbeha viour or incapacity '.
[62 A] 5.3 Use of the word 'may ' in clause (5) indicates that for the 'procedure for presentation of address ' it is an enabling provision and in the absence of the law, the gener al procedure or that resolved by the House may apply but the 'investigation and proof ' is to be governed by the enacted law.
The word 'may ' in clause (5) is no impediment to this view.
When a provision is intended to effectuate a right here it is to effectuate a constitutional protection to the Judges under Article 124(4) even a provision as in Arti cle 124(5) which may otherwise seem merely enabling becomes mandatory.
The exercise of the power is rendered obligatory.
The use of the word 'may ' does not necessarily indicate that the whole of clause (5) is an enabling provision leaving it to the Parliament to decide whether to enact a law even for the investigation and proof of the misbehaviour or incapaci ty or not.
[62 D, 62 G, 63 E F] State of Uttar Pradesh vs Joginder Singh, ; at 202; Punjab Sikh Regular Motor Service, Moudhapara vs The Regional Transport Authority, Raipur & Anr., ; , referred to.
Erederic Guilder ,Julius vs The Right Rev. The Lord Bishop of Oxford, ' the Rev. Thomas Tellusson Carter, at 244, referred to.
5.4 Similarly, use of word 'motion ' to indicate the process of investigation and proof in the , because the allegations have to be presented to the 'Speaker ' does not make it 'motion in the House ' not withstanding use of that expression in Section 6.
Otherwise, section 6 would not say that no further step is to be taken in case of a finding of 'not guilty '.
It only means that when the allegation is not proved, the Speaker need not commence the process under clause (4) which is started only in case it is proved.
The Speaker is, therefore, a statutory authority under the Act chosen because the further process is parliamentary and the authority to make such a complaint is given to Members of Parliament.
Moreover, the enactment under Article 124(5) cannot be a safe guide to determine the scope of Article 124(5).
[64 A C] 6.1 Article 124(5) does not operate in the same field as Article 118 relating to procedure and conduct of business in Parliament.
[61C] 12 6.2 Article 118 is a general provision conferring on each House of Parliament the power to make its rules of procedure.
These rules are not binding on the House and can be altered by the House at any time.
A breach of the rules amounts to an irregularity and is not subject to judicial review in view of Article 122.
[64 G] 6.3 Article 124(5) is in the nature of a special provi sion intended to regulate the procedure for removal of a Judge under Article 124(4), which is not a part of the normal business of the House but is in the nature of special business.
It covers the entire field relating to removal of a Judge.
Rules made under Article 118 have no application in this field.
[64 H, 65 A] 6.4 Article 124(5) has no comparison with Article 119.
Articles 118 and 119 operate in the same field viz., normal business of the House.
It was, therefore, necessary to specifically prescribe that the law made under Article 119 shall prevail over the rules of procedure made under Article 118.
Since Articles 118 and 124(5) operate in different fields; a provision like that contained in Article 119 was not necessary and even in the absence of such a provision, a law made under Article 124(5) will override the rules made under Article 118 and shall be binding on both the Houses of Parliament.
A violation of such a law would constitute illegality and could not be immune from judicial scrutiny under Article 122(1).
[65 B C] 7.1 Neither the doctrine that dissolution of a House passes a sponge over parliamentary slate nor the specific provisions contained in any rule or rules framed under Article 118 of the Constitution determine the effect of dissolution on the motion for removal of a Judge under Article 124, because Article 124(5) and the law made there under exclude the operation of Article 118 in this area.
[49 F] Purushothaman Nambudiri vs The State of Kerala, [1962] Suppl.
1 SCR 753, referred to.
7.2 The law envisaged in Article 124(5) is parliamentary law which is of higher quality and efficacy than rules made by the House for itself under Article 118.
Such a law can provide against the doctrine of lapse.
[50 H] 7.31n the constitutional area of removal of a Judge, the law made under Article 124(5) must be held to go a little further and to exclude the operation of the Rules under Article 118 and no ques 13 tion of repugnance could arise to the extent the field is covered by the law under Article 124(5).
[51 C] State of Punjab vs Sat Pal Dang & Ors, ; , relied on.
8.1 The reflects the consti tutional philosophy of both the judicial and political elements of the process of removal.
The ultimate authority remains with the Parliament in the sense that even if the Committee for investigation records a finding that the Judge is guilty of the charges, it is yet open to the Parliament to decide not to present an address to the President for removal.
But if the Committee records a finding that the Judge is not guilty then the political element in the proc ess of removal has no further option.
The law is, indeed, a civilised piece of legislation reconciling the concept of accountability of Judges and the values of judicial inde pendence.
The provisions of the do not foul with the constitutional scheme.
[65 B C, 64 C] 8.2 The Speaker, while admitting a motion and constitut ing a Committee to investigate the alleged grounds of misbe haviour or incapacity does not act as part of the House.
The House does not come into the picture at this stage.
The provisions of the are not uncon stitutional as abridging the powers and privileges of the House.
The is constitutional and is intra vires.
[66 G H] 9.1 The is law enacted under Article 124(5) which provides against doctrine of lapse.
9.2 The effect of sections 3(1) and (2) and 6(2) of the , is that the motion should be kept pending till the committee submits its report and if the committee finds the Judge guilty, the motion shall be taken up for consideration.
Only one motion is envisaged which will remain pending.
No words of limitation that the motion shall be kept pending subject to usual effect of dissolution of the House can or should be imported.
[50 G] 9.3 Section 3 of the Act applies to both the Houses of Parliament.
The words "shall keep the motion pending" cannot have two different meanings in the two different contexts.
It can only mean that the consideration of the motion shall be deferred till the report 14 of the Committee implying that till the happening of that event the motion will not lapse.
Therefore, such a motion does not lapse with the dissolution of the House of Parlia ment.
[51 D] 10.
At the stage of the provisions when the Speaker admits the motion under section 3 of the , a Judge is not, as a matter of right, entitled to a notice.
The scheme of the statute and the rules made there under by necessary implication, exclude such a right.
But that may not prevent the Speaker, if the facts and circum stances placed before him indicate that hearing the Judge himself might not be inappropriate, might do so.
But a decision to admit the motion and constitute a Committee for investigation without affording such an opportunity does not, by itself and for that reason alone, vitiate the deci sion.
[68 E G] 11.1 It is true that society is entitled to expect the highest and most exacting standards of propriety in judicial conduct, and any conduct which tends to impair public confi dence in the efficiency, integrity and impartiality of the court is indeed forbidden.
But, the proposition that, apart from the constitutional machinery for removal of a Judge, the judiciary itself has the jurisdiction and in appropriate cases a duty to enquire into the integrity of one of its members and restrain the Judge from exercising judicial functions is beset with grave risks.
The court would then indeed be acting as a tribunal for the removal of a Judge and is productive of more problems than it can hope to solve.
[69 C, 70 H] Sampath Kumar & Ors.
vs Union of India & Ors, , referred to.
Corpus Juris Secundum, (VoI.48A), referred to.
11.2 The relief of a direction to restrain the Judge from discharging judicial functions cannot be granted.
The entire Constitutional Scheme, including the provisions relating to the process of removal of a Judge are to be taken into account for the purpose of considering this aspect.
Since the Constitutional Scheme is that the Judge 's conduct cannot be discussed even in the Parliament which is given the substantive power of removal, till the alleged misconduct or incapacity is 'proved ' in accordance with the law enacted for this purpose, it is difficult to accept that any such discussion on the conduct of the Judge or any evaluation or inference as to its 15 merit is permissible according to law elsewhere except during investigation before the Inquiry Committee constitut ed under the statute for this purpose.
Therefore, it is difficult to accept that there can be any right in anyone running parallel with the Constitutional Scheme for this purpose contained in clauses (4) and (5) of Article 124 read with Article 121.
No authority can do what the Constitution by necessary implication forbids.
[71 B F] 11.3 The question of propriety is, however, different from that of legality.
Whether the Judge should continue to function during the intervening period is to be covered by the sense of propriety of the concerned Judge himself and the judicial tradition symbolised by the views of the Chief Justice of India.
It should be expected that the Judge would be guided in such a situation by the advice of the Chief Justice of India, as a matter of convention, unless he himself decided as an act of propriety to abstain from discharging judicial functions during the interregnum.
It is reasonable to assume that the framers of Constitution had assumed that a desirable convention would be followed by a Judge in that situation which would not require the exercise of a power of suspension.[It would also be reasonable to assume that the Chief Justice of India is expected to find a desirable solution in such a situation to avoid embarrass ment to the concerned Judge and to the Institution in a manner which is conducive to the independence of judiciary and should the Chief Justice of India be of the view that in the interests of the institution of judiciary it is desira ble for the Judge to abstain from judicial work till the final outcome under Article 124(4), he would advise the Judge accordingly, and the concerned Judge would ordinarily abide by the advice of the Chief Justice of India.
All this is, however, in the sphere of propriety and not a matter of legal authority to permit any court to issue any legal directive t? the Chief Justice of India for this purpose.
[71 G, 72 A, C E] 12.
Even on the allegations made in the petition and plea of malafides which require to be established on strong grounds no such case is made out.
A case of malafides cannot be made out merely on the ground of political affiliation of the Speaker either.
That may not be a sufficient ground in the present context.
At nil events, as the only statutory authority to deal with the matter, doctrine of statutory exceptions or necessity might be invoked.
[74 B C] 13.
The law as to standing to sue in public interest actions has 16 undergone a vast change over the years and liberal standards for determining locus standi are now recognised.
The present matter is of such nature and the constitutional issues of such nature and importance that it cannot be said that members of the Bar, and particularly, the Supreme Court Bar Association have no locus standi in the matter.
An elaborate re survey of the principles and precedents over again is unnecessary.
Suffice it to say that from any point view, the petitioners satisfy the legal requirements of the standing to sue.
[74 E F] S.P. Gupta & Ors.
vs Union of India & Ors. etc.
, [1982] 2 SCR 365, relied on.
Certain submissions advanced on the prayer seeking to re.strain the judge from functioning till the proceedings of the committee were concluded lacked as much in propriety as in dignity and courtesy with which the Judge is entitled.
While the members of the bar may claim to act in public interest, they have, at the same time, a duty of courtesy and particular care that in the event of the charges being found baseless or insufficient to establish any moral turpi tude, the Judge does not suffer irreparably in the very process.
The approach should not incur the criticism that it was calculated to expose an able and courteous Judge to public indignity even before the allegations were examined by the forum constitutionally competent to do so.
The level of the debate both in and outside the Court should have been more decorous and dignified.
Propriety required that even before the charges are proved in the only way in which it is permitted to be proved, the Judge should not be embarrassed.
The constitutional protection to Judges is not for their personal benefit; but is one of the means of protecting the judiciary and its independence and is, therefore, in the larger public interest.
Recourse to constitutional methods must be adhered to if the system were to survive.
[74 G, 75 A C] 15.1 The interpretation of the law declared by this Court that a motion under section 3(2) of the Judges (In quiry) Act, 1968, does not lapse upon the dissolution of the House is a binding declaration.
If the law is that the motion does not lapse, there can be no occasion for the House to say so at any time and it is erroneous to assume that the Houses of Parliament would act in violation of the law, since the interpretation of the law is within the exclusive power of the courts.
[76 E] 17 25.2 If the House is not required to ' consider this question since the parliamentary process can commence only after a finding of guilt being proved, the further question of a futile writ also does not arise.
The point that the House can decide even after a finding of guilt that it would not proceed to vote for removal of the Judge is not germane to the issue since that is permissible in the Constitutional Scheme itself under Article 124(4), irrespective of the fact whether Article 124(5) is a mere enabling provision or a constitutional limitation on the exercise of power under Article 124 (4).
[60 B C] 15.3 The Union Government has sought to interpret the legal position for purpose of guiding its own response to the situation and to regulate its actions on the Speaker 's decision.
That understanding of the law is unsound.
[76 G] 15.4 No specific writ of direction need issue to any authority.
Having regard to the nature of the subject matter and the purpose it is ultimately intended to serve, all that is necessary is to declare the legal and correct constitu tional position and leave the different organs of the State to consider matters falling within the orbit of their re spective jurisdiction and powers.
[76 H, 77 A] 15.5 In the circumstances, the question of Court de clining to exercise its jurisdiction on the ground that the Judgment rendered and Writ issued by it would become infruc tuous does not arise.
[31 A C, 77 A] Per Sharma, J. (dissenting); 1.1 On a close examination of the Constitution, it is clear that a special pattern has been adopted with respect to the removal of the members of the three organs of the State.
The Executive, the Legislature and the Judiciary at the highest level, and this plan having been consciously included in the Constitution, has to be kept in mind in construing its provisions.
The approach should be that when a question of removal of a member of any of the three wings at the highest level i.e. the President; the Members of the Parliament and the State Legislatures; and the Judges of the Supreme Court and the High Courts arises, it is left to an organ other than where the problem has arisen, to be decid ed.
Consistent with this pattern, Clause (4) of Article 124 in emphatic terms declares that a Judge of the Supreme Court or the High Court shall not be removed from his office except on a special majority of the Members of each House of Parliament.
Both the Executive and the Judiciary 18 are thus excluded in this process.
The scheme cannot be construed as lack of trust in the three organs of the State.
There are other relevant considerations to be taken into account while framing and adopting a written Constitution, which include the assurance to the people that the possibil ity of a subjective approach clouding the decision on an issue as sensitive as the one under consideration, has been as far eliminated as found practicable in the situation.
And where this is not possible at all, it cannot be helped, and has to be reconciled by application of the doctrine of necessity, which is not attracted in the instant case.
[81 F H, 82 D E,F G] A11 Party Hill Leaders Conference vs M.A. Sangma, ; at 411, referred to.
The Federalist: Hamilton, referred to.
1.2 There cannot be two opinions on the necessity of an independent and fearless judiciary in a democratic country like ours, but it does not lead to the further conclusion that the independence of judiciary will be under a threat, unless the matter of removal of Judges, even at the highest level, is not subjected to the ultimate control of Courts.
Great care was taken by the framers of the Constitution to this aspect and the matter was examined from every possible angle, before adopting the scheme as laid down.
So far as the district courts and subordinate courts are concerned, the control has been vested in the High Court, but when it came to the High Court and Supreme Court Judges, it was considered adequate for the maintenance of their independ ence to adopt and enact the Constitution as it is found now.
There is no reason to doubt the wisdom of the Constituent Assembly in entrusting the matter exclusively in the hands of the Parliament and there is no ground for suspicion that the Members of Parliament or their representatives, the Speaker and the Chairman, shall not be acting in the true spirit of the Constitutional provisions.
The mandate of the Constitution is binding on all.
[100 B E] 2.1 The exercise of power under clause (4) was not made conditional on the enactment of a law under clause (5), and the reason for inserting clause (5) in Article 124 was merely for elaborating the provisions.
Clause (4) does not state that the misbehaviour or the incapacity of the Judge will have to be proved only in accordance with a law to be passed by the Parliament under clause (5) Clause (4) would continue to serve the purpose as it does now, without any 19 amendment if clause (5) were to be removed from the Consti tution today.
There is no indication of any limitation on the power of the Parliament to decide the manner in which it will obtain a finding on misbehaviour or incapacity for further action to be taken by it.
Clause (5) merely enables the parliament to enact a law for this purpose, if it so chooses.
[88 E, 88 A, 89 A] 2.2 The word 'may ' has been sometimes understood in the imperative sense as 'shall ', but ordinarily it indicates a choice of action and not a command.
In the present context, there is no reason to assume that it has been used in its extraordinary meaning.
[88 F] 3.
The object of Article 121 is to prevent any discus sion in Parliament with respect to the conduct of a Judge of the Superior Courts, except when it cannot be avoided.
The Article, accordingly, prohibits such a discussion except upon a motion for presenting an address to the President for removal of a Judge.
[89 B] 4.1 The expression "motion" has not been defined in the .
The Lok Sabha Rules framed under Article 118 of the Constitution deal with "motions".
There are separate rules of procedures for conduct of business adopted by the Rajya Sabha.
Section 3(1) of the Act states that if a notice of "motion" is given for presenting an address to the President for the removal of a Judge, the Speaker or the Chairman, as the case may be, after consult ing such persons as he deems fit, as also such relevant materials which may be available to him either admit the "motion" or refuse to admit the same.
The manner in which this section refers to "motion" in the Act for the first time without a definition or introduction clearly indicates that it is referring to that "motion" which is ordinarily understood in the context of the two Houses of Parliament attracting their respective rules.
Section 3 does not speci fy as to how and to whom the notice of "motion" is to be addressed or handed over and it is not quite clear as to how the Speaker suddenly comes in the picture unless the Lok Sabha Rules are taken into account.
Therefore, the provi sions of the Act have to be read alongwith some of the Lok Sabha Rules.
Rules 185, 186 and 137 which are relevant for the purpose should be treated to be supplementary to the Act.
[90 D G, 91 B] 4.2 Sub section (2) of Section 3, which is of vital importance in the present context, says that if the "motion" referred to in subsection (1) is admitted, the Speaker "shall keep the motion pending" 20 and constitute a Committee for investigation into the alle gations.
191 C] 4.3 The situs where the "motion" is pending is almost conclusive on the issue whether the House is seized of it or not.
The Act does not leave any room for doubt that the "motion" remains pending in the House and not outside it.
This is corroborated by the language used in proviso to Section 3(2) which deals with cases where notices of "mo tion" under Section 3(1) are given on the same date in both Houses of Parliament.
It says that in such a situation, no Committee shall be constituted unless the "motion" has been "admitted in both Houses", and where such "motion" has been admitted "in both Houses", the Committee shall be constitut ed jointly by the Speaker and the Chairman.
It is not an inadvertent reference in the Act of the "motion" being pending in the House: the Act and the Rules made thereunder envisage and deal with a "motion" which is admitted in the House and remains pending there to be taken up again when the date is fixed by the Speaker on receipt of the report from the Committee.
The language throughout the Act has been consistently used on this premise and is not capable of being ignored or explained away.
[91 D, G H, 92 A, C D] 4.4 The scope of the Act and the Rules is limited to the investigation in pursuance of a "motion" admitted by the Speaker.
At the conclusion of the investigation the Commit tee has to send the report to the Speaker (or the Chairman as the case may be) along with a copy of the original Mo tion.
If the finding goes against the Judge, the Motion, the same original Motion, together with the report would be taken up for consideration by the House where the Motion is pending, and the address and the Motion would be put to vote together in each House of Parliament.
What the Act and the Rules contemplate is the original Motion to be taken up for consideration by the House, and if this Motion is held to have exhausted itself on admission by the Speaker nothing remains on which the Act would operate.
[92 E, G] 4.5 Thus, the concept of the original Motion being pending in the House, to be taken up for debate and vote on the receipt of the report of the Committee, is the life and soul of the Act, and if that Motion disappears nothing remains behind to attract the Act.
This idea runs through the entire Act and the Rules, and cannot be allowed to be replaced by a substitute.
The existence of a Motion pending in the House is a necessary condition for the application of 21 the Act.
Bereft of the same, the Act does not survive.
It is, therefore, not permissible to read the Act so as to mean that the House is not seised of the Motion and that it does not have anything to do with the inquiry pending before the Committee, until the report is received.
If clauses (4) and (5) of Article 124 are construed otherwise the Act will have to be struck down as ultra vires, or in any event, inopera tive and infructuous and, on this ground alone, the Writ Petitions are liable to be dismissed.
[92 H, 93 A B] 5.1 The mandate of the Constitution against discussion on the conduct of a Judge in the House is for everybody to respect, and it is the bounden duty of the Speaker to en force it.
He has to ensure that Article 121 is obeyed in terms and spirit.
The pendency of the motion in the House cannot be a ground to violate Article 121, and the apprehen sion that if the motion is held to be pending in the House, on its admission, the object of Article 121 would be defeat ed is misconceived.
[93 C, F] 5.2 The wider proposition that the House was seized of the matter so effectively as to entitle every member to demand a discussion in the House at any stage will not only violate Article 121, but also offend the provisions of the 1968 Act.
It is not correct to assume that if the right of the individual member to insist on immediate discussion is denied, the consequence will be to deprive the Parliament of the control of the motion.
The Speaker may consult other persons before admitting the motion, and while so doing he may consult the members of the House also, but without permitting a discussion in the House.
The consultation, which the Act permits, is private in nature, not amounting to a public discussion, while the object of Article 121 is to prevent a public debate.
It may also be open to the Speaker to consult the House on a legal issue which can be answered without reference to the conduct of Judge in ques tion, as for example, the issue involved in the instant case, whether on account of dissolution of the old House the Motion has lapsed and the Committee of Inquiry is defunct.
What is prohibited is not every matter relating to the removal of a Judge; the bar is confined to a discussion with respect to the conduct of a Judge in the discharge of his duties.
[95 E H, 96A] 5.3 There is no justification for interpreting such portion of the 1968 Act, which directed or declared the initial motion admitted by the Speaker to remain pending in the House, as creating legal fiction limited for the purpose of ensuring that the bar under Article 121 was not lifted prematurely.
[96 B] 22 East End Dwellings Co. Ltd. And Finsbury Borough Coun cil: , referred to.
5.4 A close reading of the entire Act indicates that the language therein was consciously chosen to make the House seized of the matter, and consequently it became necessary to include the provision directing the motion to remain pending for the purpose of preventing a premature discus sion.
The Act has, thus, very successfully respected both Articles 124 and 121 in their true spirit, by neatly harmo nising them.
[97 B] 5.5 Parliament is in control of the matter from the very beginning till the end.
By the introduction of the Speaker and the requirement of a large number of members of either House to initiate the matter, the House is brought in con trol of the proceeding through its representative, the Speaker or the Chairman.
The ground of proved misbehaviour or incapacity is necessary only for putting the matter to vote in the House under clause (4), and is not a condition precedent for initiating a proceeding and taking further steps in this regard. ]97 G H, 98 A] 5.6 It is a well established practice for a larger body to entrust investigations to a smaller body for obvious practical reasons, and such an exercise cannot be characte rised as indulging in abnegation of authority.
It could have asked a Parliamentary Committee to enquire into the allega tions or employed any other machinery for the purpose.
[98 D] 5.7 So long as the statute enables the House to maintain its control either directly or through the Speaker, the entrustment of the investigation does not amount to abdica tion of power.
It is a case where the Parliament has taken a decision to respect the verdict of the Committee in favour of the Judge, consistently with clause (4) and no fault can be found.
199 B] State of Uttar Pradesh vs Batuk Deo Pati Tripathi and Anr., , referred to.
5.8 The House, which is in control of the proceeding is entitled to take all necessary and relevant steps in the matter, except discussing the conduct of the Judge until the stage is reached and the bar under Article 121 is lifted.
If it is held that the Committee is an independent statutory body not subject to the control of the House 23 directly or through the Speaker, then the Act may be ren dered unworkable.
Besides, this would lower the dignity of the Chief Justice of India by providing a machinery consist ing of 5 or 4 Judges to sit in ,appeal over him.
If the Committee is held to be functioning under the supervision and control of the Parliament, with a view to aid it for the purpose of a proceeding pending in the House, it will be the Parliament which will be in control of the proceeding and not the Committee.
[99 E F, H] 6.1 When even after a verdict against the Judge is returned by the Committee, the Parliament, or for that matter any of the two Houses can refuse to vote in favour of the Motion for removal of a Judge, and the Court would not have any jurisdiction to interfere in the matter, it is not conceivable, that at the intermediate stage of investigation the Court has got the power to intervene.
This is because, if the control of the House continues on the proceeding throughout, which can be exercised through the Speaker, it cannot be presumed that the Court has a parallel jurisdic tion, which may result in issuance of contradictory direc tions.
Besides, the Court cannot be expected to pass orders in the nature of step in aid, where the final result is beyond its jurisdiction.
Any order passed or direction issued by this Court may result in merely an exercise in futility, and may cause a situation, embarrassing both for the highest judicial and legislative authorities of the country.
The Constitution cannot be attributed with such an intention.
[101 A C] 6.2 In the circumstances the courts, including this Court, do not have any jurisdiction to pass any order in relation to a proceeding for removal of a Judge of the superior courts.
[101 C] 7.
No opinion is expressed on the controversy whether the Motion lapsed or not on the dissolution of the earlier House, as the issue is for the Lok Sabha to decide.
[102 E] 8.
This Court cannot pass any order whether permanent or temporary on the prayer that the respondent No. 3, the concerned Judge, should not be allowed to exercise his judicial powers.
[102 F] 9.1 Although the powers of State have been distributed by the Constitution amongst the three limbs, i.e. the Legis lature, the Executive and the Judiciary, the doctrine of Separation of Powers has not been strictly adhered to and there is some overlapping of powers in the gray areas.
[80F G] 24 Smt.
Indira Gandhi vs Raj Narain, at p. 415, referred to.
9.2 Generally, questions involving adjudication of disputes are amenable to the jurisdiction of the courts, but there are exceptions, not only those covered by specific provisions of the Constitution in express terms, but others enjoying the immunity by necessary implication arising from established jurisprudential principles involved in the Constitutional scheme.
[81 C] 10.
It is permissible to take into consideration the entire historical background of the provisions of the Con stitution and the Act as aid to interpretation.
[84 C] Bengal Immunity Company vs The State of Bihar, at 632 & 633; B. Prabhakar Rao vs State of Andhra Pradesh, [1985] Suppl 2 SCR 573, referred to.
Heydon 's case: 76 E.R. 637; Eastman Photographic Materi al Company vs Comptroller General of Patents, LR. , referred to. </s> |
<s>[INST] Summarize the following judgement: Appeals Nos. 713 to 715 of 1957.
Appeals by special leave from the judgment and order dated May 25, 1956, of the Labour Appellate Tribunal of India (Lucknow Bench) in Appeals Nos. 111 272, 282 and 327 of 1955, arising out of an Award dated August 18, 1955, of the Additional Industrial Tribunal, Delhi.
M. C. Setalvad, Attorney General for India, B. Sen and section N. Mukherjee, for the appellants.
A. V. Viswanatha Sastri and Janardan Sharma, for the respondents.
February 2.
The Judgment of the Court was delivered by section K. DAS, J.
These are three appeals by special leave.
The appellant in all the three appeals is a company called Messrs. Lipton Ltd., London, having an office at Asaf Ali Road, New Delhi (hereinafter referred to as the Lipton, Ltd.).
The respondents are the employees of the Delhi office of the said Lipton, Ltd. represented by the Lipton Employees Union (hereinafter referred to as the Union).
On April 14, 1958, a petition was filed on behalf of the appellant for an amendment of the cause title of the three appeals, wherein it was stated that as a matter of internal arrangement the Board of Directors of the 153 Lipton Ltd., London, decided to separate the export side of its business from its internal trade in respect of its branch in India and on April 4, 1957, a separate sterling company called Lipton (India) Ltd., was incorporated in the United Kingdom and this new Company took over the internal side of the business in India on and from January 5, 1958, but the export side of the business continued to be a branch of the Lipton Ltd., London.
Pursuant to the aforesaid arrangement, the employees of the Delhi office of the Lipton, Ltd., were notified of the formation of the new Company and on and from January 5, 1958, their services were transferred to Lipton (India) Ltd., on condition that their services would be treated as continuous, uninterrupted and on the same terms as before.
On the aforesaid statements, the appellant made a prayer that the cause title of the three appeals should be amended by substituting Lipton (India) Ltd. in place of Lipton, Ltd. We directed that Lipton (India) Ltd. be added as one of the appellants without prejudice to either party on the merits of the case.
Two of the appeals (Civil Appeals Nos. 713 and 714 of 1957) were consolidated by an order of this Court, and they raise certain common questions with regard to (1) fixation of grades and scales of pay of the respondent employees and (2) bonus for the year 195 1.
The third appeal (Civil Appeal No. 715 of 1957) raises a somewhat different question with regard to overtime payment and is directed against an order of the Additional Industrial Tribunal, Delhi, dated October 15, 1955, by which the Tribunal made a modification in its award dated August 18, 1955, in respect of overtime payment.
It will be convenient if Civil Appeal No. 715 of 1957 is dealt with separately from the other two appeals.
It is necessary now to state very briefly some of the facts which have given rise to these three appeals.
The Lipton, Ltd., is a company incorporated in England having its registered office in London.
Its business in the United Kingdom consists of stores and groceries, including tea which represents only about 20 154 10% of its business there.
Its operations in India are carried on by a branch with its head office in Calcutta.
This branch, which may be conveniently called the Indian branch, has been operating in this country for more than 60 years.
The company is principally interested in the sale of " packeted " tea throughout India together with small sales of imported tinned milk and also in the export of tea to all parts of the world.
The Lipton, Ltd., does not own any tea gardens in India and has no financial interest in the producing side of the industry.
All the teas which are sold in India or which are exported are purchased from producers in India, either through public auctions in Calcutta and Cochin or by private contract.
It has factories in Calcutta, Allahabad and Conoor in which teas are blended and packed into retail packets for sale throughout India.
It sells tea direct to retail dealers and, with relatively minor exceptions, does not operate through wholesalers.
Dealers are supplied by the company 's own salesmen each of whom has a sales depot at which he maintains stocks of the company 's products.
The salesman sells these teas at the company 's wholesale prices to dealers for cash and remits the cash through banking channels to Calcutta.
The sales Organisation is controlled through six offices, one of which is located at Delhi.
The Delhi office controls the salesmen and other employees employed in the Punjab, Delhi State, Rajasthan and Uttar Pradesh on its.
business; but the Delhi office has no connexion with the export side of the business.
So far as the export business is concerned, it consists of two different types of trade activities.
In some foreign countries the Indian branch sells packet tea under the Lipton label on which it is able to make a profit; these profits appear in the accounts of the Indian branch, which are separately maintained and audited.
This type of trade activity is mostly confined to Burma, Iraq, Iran and certain small Middle East countries.
The greater part of the export trade, however, consists of purchases made at the Calcutta auctions on behalf of overseas buyers, who utilise the services of Lipton 's expert tea tasting staff in Calcutta 155 to buy tea on their account at the auctions and the Indian branch is remunerated for this service by the payment of a commission of one per cent.
The Indian branch has no subscribed capital nor any reserves.
A. W. Samuel, Administrator, Lipton, Ltd., thus explained the position with regard to the capital of the Indian branch in his evidence: " Our Company has no subscribed capital in India nor any reserves.
The capital used in India is money advanced from the company 's fund in England, and the amount of this advance at the balance sheet date is shown as the balance of the current account with the Liptons Ltd., London.
We have also to resort to overdraft on the local banks to meet the working capital demand in India ".
It appears that an account is maintained which is known as the London General Account and the capital which enables the Indian branch to operate in India is recorded as the balance of the current account in the Indian books and to determine the amount of capital employed in India a daily average of the current account has to be taken and the working capital of the Indian branch is the amount by which the fixed current assets exceed the total liabilities.
The Delhi office of the Indian branch employs peons, sweepers, van workers, godown workers, village salesmen, drivers,.
junior clerks, godown keepers, senior clerks, stenographers, divisional salesmen and other categories of workers, details whereof need not be set out in full at this stage.
The case of the Union was that as far back as June, 1951, the workers of the Delhi office had made a representation for an increase in pay; the representation was repeated in April, 1952.
As the management did not accede to their request a union of Lipton employees was formed in September 1953.
This Union framed a charter of demands and submitted it in December, 1953.
The charter of demands consisted of a large number of items and as the management contended that it %,as not in a position to meet the demands, certain conciliation proceedings followed.
They, however, came to nothing and on October 1, 1954, the industrial dispute 156 between the Lipton, Ltd., and the Union was referred to the Additional Industrial Tribunal, Delhi, for adjudication.
The reference set forth in a sub joined schedule the matters upon which adjudication was necessary, and the schedule contained twenty terms of reference out of which the two items with which we are now concerned related to (a) fixation of grades and scales of pay including the question whether the new scales should be given retrospective effect from January 1, 1953, and (b) bonus for each of the years 1951, 1952 and 1953.
After hearing the parties the Tribunal made its award on August 18, 1955.
It disallowed the claim of bonus, but as to the fixation of grades and scales of pay it allowed an increase of about 20 per cent.
to all workers over their present wages and proportionate increase in the dearness allowance, details whereof we shall state at a later stage.
As to overtime payment which was item No. 8 of the terms of reference the Tribunal said: " Since the company is allowed by law to take 48 hours work in a week from its employees, it is only fair that if a worker puts in over time work in any week within a total of 48 working hours, he should be only paid at the single rate for all over time work that he puts in between 39 and 48 hours in the week.
If the over time work done by the worker brings his total working, hours during the week to more than 48 hours, any excess over time work above 48 hours should be paid at double the rate.
I direct accordingly.
" It may be stated here that there was a dispute about the working hours also and the Tribunal changed the working hours from 9 30 a.m. 5 p.m. to 10 a.m.5 p.m. on week days with half an hour 's interval for lunch, and 10 a.m. to I p.m. on Saturdays thus bringing the total to 36 hours in a week,.
The question of over time arose only if a workman was asked to Work in excess of the working hours fixed by the Tribunal.
On October 12, 1955, the Union made an application in which it stated that the figure " 39 " occurring in paragraph 24 of the award relating to over time payment was obviously a mistake for " 36 "; because the 157 learned Tribunal had fixed.
in paragraph 23 of the award that the working hours of a workman should be 36 hours a week.
The learned Tribunal considered this application without any notice to the present appellant and corrected the error by amending the figure 39 to 36.
The Tribunal proceeded on the footing that the mistake was a clerical error due to an accidental slip which could be corrected under r. 23 of the Industrial Disputes (Central) Rules, 1947.
Against the award of the Industrial Tribunal three appeals were taken to the Labour Appellate Tribunal (Lucknow Bench).
The two main appeals before the Appellate Tribunal, namely, No. 272 of 1955 and No. 282 of 1955, were filed by the Lipton, Ltd., and the Union respectively and related to the various items of the terms of reference on which the Industrial Tribunal had given its decision.
The third appeal, No. 327 of 1955, related to the subsidiary matter of over time payment regarding which the Industrial Tribunal had amended its award.
So far as the two items with which in Civil Appeals Nos. 713 and 714 of 1957 we are now concerned, the Labour Appellate Tribunal in its decision dated May 25, 1956, upheld the decision of the Industrial Tribunal as respects fixation of grades and scales of pay comprised in the term of reference numbered 1 (a); it also upheld the decision of the Industrial Tribunal to give retrospective effect to the new scales of pay from January 1, 1954, which was covered by the term of reference numbered I (b).
As to bonus, which was item 4 of the terms of reference, the Appellate Tribunal upheld the decision of the Industrial Tribunal with regard to the years 1952 and 1953 but for 1951 it awarded an extra two months salary as bonus for that year in addition to the bonus of one month 's salary which the Lipton, Ltd., had already granted ex gratia to the workmen.
As to the subsidiary appeal relating to the over time payment, the Appellate Tribunal agreed with the view of the Industrial Tribunal that there was an error in computing the working hours and the error being of a clerical nature, it was open to the Tribunal to correct it.
From the decision of the Labour Appellate Tribunal 158 in the three appeals in question, the appellant obtained special leave to appeal to this Court on June 27, 1956, and in pursuance of the order of this Court granting such special leave, the present appeals have been preferred.
Civil Appeal No. 715 of 1957.
It is now convenient to dispose of Civil Appeal No. 715 of 1957.
We have no doubt in our mind that the error in computing the working hours with regard to over time payment was due to an 'accidental slip in making the calculation; it was nothing but a clerical error which the Industrial Tribunal was entitled to correct even without notice to the appellant.
The learned Attorney General who appeared for the appellant in these three appeals has not pressed Appeal No. 715 of 1957.
This appeal must accordingly be dismissed with costs.
Civil Appeals Nos. 713 and 714 of 1957.
We now turn to the other two appeals, namely, Civil Appeals 713 and 714 of 1957.
We have already stated that the only points which survive for decision are those relating to items 1(a), 1(b) and 4 of the terms of reference.
These items relate to fixation of grades and scales of pay, whether retrospective effect should be given to the new scales of pay, and bonus for 1951.
The other items of the award relating to City compensatory allowance, leave, holidays, etc., have not been challenged before us.
We are, therefore, saying nothing about those items of the award, which must necessarily stand.
It may be made clear, however, at this stage that one of the points taken before the Industrial Tribunal on behalf of the Lipton, Ltd., was that the Industrial Tribunal had no jurisdiction to make an award in respect of employees of the Delhi office who were employed outside the State of Delhi.
This point of jurisdiction was decided against the appellant and the Industrial Tribunal pointed out that all the workmen of the Delhi office, whether they worked in Delhi or not, received their salaries from the Delhi office; they were controlled from the Delhi office in the matter of leave, transfer, supervision, etc., and, therefore, the Delhi State Government was the appropriate Government within the meaning of section 2 of the Industrial 159 Disputes Act, 1947, relating to the dispute which arose between the Lipton, Ltd., and the Union and under section 18 of the said Act the award made by the Tribunal was binding on all persons employed in the Delhi office.
The Appellate Tribunal upheld the decision of the Industrial Tribunal on this point and though this question of jurisdiction was raised in the appeals before us, it was not seriously pressed by the learned AttorneyGeneral.
We are of the view that the Industrial Tribunal had jurisdiction to adjudicate on the dispute between the Lipton, Ltd., and its workmen of the Delhi office.
Now, we go on to the two main points urged on behalf of the appellant.
We take up first the question of bonus.
Item 4 of the terms of reference related to bonus and the claim of the Union was made in two parts.
Item 4 reads thus: " Bonus: (a) Whether every workman be, paid bonus at the rate of 5 months ' salary for each of the years 1951, 1952 and 1953 and what other directions are necessary in this respect ? (b) Whether special bonus equivalent to three months salary should be paid to all workmen in honour of the company 's Diamond Jubilee celebration for the year 1953 ? " Before the Industrial Tribunal the claim of the Union was that the total global profits of the Lipton, Ltd., should be the basis for determining the claim to bonus ; the contention on behalf of the Lipton, Ltd., was that the profits of the Indian business only should be taken into account in assessing any available surplus for the payment of bonus.
The Industrial Tribunal held that as both labour and capital contributed to the earnings of an industrial concern, labour must have its legitimate share of the profits to which it has contributed; since, however, the employees of the Lipton, Ltd., in India do not by any stretch of reasoning contribute to the profits which accrue to the Lipton, Ltd., in respect of its trading activities outside India, the employees in India cannot claim bonus on account of any profits which the Lipton, Ltd., derive from its ex India business.
On this footing the 160 Industrial Tribunal considered the question of bonus and held that for 1951 there was no available surplus for distribution as bonus to the employees in India in accordance with the formula evolved by the Full Bench of the Labour Appellate Tribunal in Millowner 's Association, Bombay vs Rashtriya Mill Mazdoor Sangh (1) generally though not completely approved by this Court in Muir Mills Co ' Ltd. vs Suti Mills Mazdoor Union, Kanpur (2).
For 1952 and 1953 the claim of the Union for bonus, the Industrial Tribunal held, was still weaker, because in those years there was still less available surplus for distribution as bonus to its workers, and so far as the second part of the claim of the Union, namely, Diamond Jubilee bonus, was concerned the Industrial Tribunal rejected it outright.
The Labour Appellate Tribunal substantially affirmed the decision of the Industrial Tribunal and gave several reasons why the global profits of the Lipton, Ltd., could not be taken into account for the payment of bonus to its workers in India.
After having given those reasons, the Labour Appellate Tribunal referred to the auditors ' report dated March 17, 1952, with regard to the profit and loss account and balance sheet of the Indian business as on January 5, 1952.
In that report which related to the year 1951 it was stated that the value of the stocks of tea held at the end of 1951 had been written down below cost by Rs. 9,93,824 5 3.
The auditors ' report then said: " We estimate the net realisable value of the total stocks of tea as on January 5, 1952, to be in excess of their cost and, therefore, in our opinion, such stocks have been undervalued to the extent of the above reduction below cost.
" Relying on this report the Labour Appellate Tribunal added back Rs. 9,93,824 to the available surplus of Rs. 9,66,654 which the profit and loss account of the Indian business for the year 1951 showed.
Adding the two figures the Labour Appellate Tribunal opined that the available surplus at the end of 1951 was Rs. 19,60,478.
After deducting therefrom the (1) (2) ; 161 legitimate prior charges on account of (a) rehabilitation, (b) a four per cent.
return on capital and (c) one month 's bonus already paid to the workers, the Labour Appellate Tribunal came to the conclusion that there was a clear available surplus of Rs. 4,11,478 for distribution of extra bonus over and above the bonus of one month 's salary.
which the Lipton, Ltd., had already paid to its workers.
It has been contended before us, and rightly in our opinion, that the Labour Appellate Tribunal committed a manifest error with regard to the sum of Rs. 9,93,824 and odd.
It is true that the auditors in their report referred to the under valuation of the stock of tea available at the end of 1951 by a sum of Rs. 9,93,824 and odd.
An explanation of such undervaluation was given in the written statement of the Lipton, Ltd., dated February 8, 1955.
It was stated therein: " It is a well recollected fact and the Court will not need evidence in support of this that the tea market dropped rapidly and in a catastrophic fashion to,wards the end of 1951.
As a result of this the Company apprehended severe losses on the stocks which it was carrying and provision for this loss was made in the 1951 accounts by an adjustment to the value of stocks of tea on hand at the end of December, 1951.
The amount of this adjustment was Rs. 9,93,824.
As a result of this, the profits made during 1951 were understated in the company 's accounts and overstated in the accounts for 1952.
It should be noted that the Income tax Department insisted that these profits were made in 1951 and not in 1952 and the Company was taxed accordingly.
" What is worthy of note is that when the Income tax Department insisted that the sum of Rs. 9,93,824 should be treated as the profits of 1951, the said amount was added back in the summarised profit and loss account of the Indian branch and the available surplus of Rs. 9,66,654 was shown therein after having taken into consideration the sum of Rs. 9,93,824.
This is clear from the summarised profit and loss account 21 162 of the Indian branch.
It is clear, therefore, that the 1951 profit and loss account took into consideration the sum of Rs. 9,93,824 and after adding back that sum to the profits of 1951, the available surplus of Rs. 9,66,654 was arrived at.
The Labour Appellate Tribunal was, therefore, manifestly in error in adding back the sum of Rs. 9,93,824; because that amount had already been added back in arriving at the available surplus of 1951.
Thus, the main reason which the Labour Appellate Tribunal gave for its decision to award the payment of extra bonus for 1951 disappears, and it is not disputed that if the available surplus for 1951 was only Rs. 9,66,654, then after making the necessary deduction for prior charges, nothing would be left for payment as extra bonus in 1951 to the workers in India.
So far as the other two years, 1952 and 1953, are concerned, it is unnecessary to consider the profits of those two years, because there is no appeal before us on behalf of the Union.
On behalf of the Union, however, it has been very strongly contended that the bonus for 1951 as awarded by the Labour Appellate Tribunal can be justified, if the global profits of the Lipton, Ltd., are taken into consideration, and it has been argued before us that there is no reason why the Lipton, Ltd., should not be treated as one integrated industry which has trading activities in various countries and, for the purpose of the payment of bonus, why the total global profits of the Lipton, Ltd., should not be taken into consideration.
We do not think that the Union is justified in asking for bonus for a particular year on the basis of the world profits of the Lipton, Ltd. The true nature of a claim for bonus has been the subject of many decisions in Labour Tribunals and Courts.
It has been judicially recognised that bonus is not deferred wage, and the justification for a demand of bonus as an " industrial claim " arises when wages fall short of the living wage and the industry makes sufficient profits to which both labour and capital have contributed.
Substantially, the claim for bonus is a claim which is paid out of the available surplus from the profits of an 163 industrial undertaking, to which both labour and capital have contributed.
This aspect of bonus was considered in.
Muir Mills Co. Ltd. vs Suti Mills Mazdoor Union, Kanpur (1).
It has also been said in some cases that bonus is a temporary and partial filling up of the gap that exists between a living wage and the actual wage paid: where the goal of living wage has been attained, bonus is a mere cash incentive to greater efficiency and production, but where an industry has not the capacity to pay a living wage or its capacity varies or is expected to vary from year to year so that the industry cannot afford to pay a living wage, the payment of bonus may be looked upon as a temporary satisfaction, wholly or in part, of the needs of the employees.
Learned counsel for the Union has emphasised this latter aspect and has contended that there is nothing unfair in considering the global profits of the Lipton, Ltd., in awarding a temporary satisfaction, in part, of the needs of its Indian employees.
We do not think that it is necessary or advisable to lay down any inflexible, general rule as to the basis of a claim for bonus by some of its employees in an industrial undertaking which carries on trade activities in several countries or even in different parts of the same country.
So far as foreign countries are concerned, many considerations such as restrictions on foreign remittances and other trade restrictions may have to be taken into account in determining the question, as in Ganesh Flour Mills vs Employees of Ganesh Flour Mills (2).
There are a number of decisions of Labour Tribunals, most of which were noticed in Ganesh Flour Mills Co. Ltd. vs Employees of Ganesh Flour Mills (2), where a distinction has been made between a parent concern and subsidiary concerns or even between different units of the same concern, and, speaking generally, the test laid down for the payment of bonus in such cases is (1) if the different units are so connected together or integrated that the payment of bonus to one section of employees will violate the principle that all workers should share in the prosperity to which they have jointly contributed, or (2) the (1) ; (2) A.I.R. 1958 S.C. 382.
164 different units are so separated or unconnected that the trade activity of one and the contribution of labour made in the profits thereof has no necessary connexion with the trade activity and profits of the other units.
In the former case the undertaking has been treated as a whole as in Burn and Co., Calcutta vs Their Employees (1); and Baroda Borough Municipality vs Its Workmen(2) ; in the latter, it has been held that each unit must rest its claim for bonus on the profits made by that unit.
Whether a particular case comes under the former category or the latter must depend on its own facts and circumstances, and we may readily agree that the more keeping of separate accounts may not in all cases be the proper criterion for determining whether the different units are integrated or not.
For the purpose of these appeals it is sufficient, however, to state that in view of the findings arrived at by the Tribunals below, it will be unfair and unjust to grant bonus to the Indian workers on the global profits of the Lipton, Ltd. The Tribunals below have clearly found that the Indian workmen do not in any way contribute to the profits which the Lipton, Ltd., derive from its ex India business.
As a matter of fact, even the nature of the trade activity is not quite the same ; tea represents only about 10 per cent.
of the trading activities of the Lipton, Ltd., in the United Kingdom, whereas tea is the main commodity of the trading activity of the Indian branch.
The Indian branch maintains separate accounts which have been audited and accepted by the Income tax authorities as showing the profit and loss of the Indian branch of the business.
The Labour Appellate Tribunal has very clearly found that though, at the relevant time, the Lipton, Ltd., was one legal entity and the capital of the Indian branch came from London, the Indian branch was treated as a separate entity for all practical purposes.
It said: " Lipton, London never interferes with the trading operations of Lipton, India, in India.
Lipton, India buys vast quantity of tea amounting to millions (1) ; (2) ; 165 of tons at auctions in India and sells the same loose or in packets at a profit in the markets of India.
Profits thus made go entirely to the credit of the Indian concern.
No part of the profits is diverted to England.
Lipton, India also purchases tea for export.
Trading results of Lipton, India must be regarded to be restricted to the earning of commission on tea exported and returns on sale of tea loose or in packets in the internal markets in India.
Lipton, India has got ,to pay income tax to the Government of India on the basis of its earnings on those two heads.
Workmen of the Indian Organisation have to work mainly for purchase of tea at auctions in India, for sale of tea at profit in Indian markets and for export of tea on commission to a lesser extent.
Therefore, the returns on these heads are the only things upon which the staff of the Indian Organisation may depend for bonus.
" In the appeals before us the claim for bonus was made really on the basis of an available surplus of profits, and we agree with the Labour Appellate Tribunal that the Indian workers can claim bonus if there is an available surplus of profits out of the Indian business.
In the circumstances in which the Lipton, Ltd., operated in India at the relevant time, it would be unjust to award bonus to the Indian work men on the basis of the global profits of the Lipton, Lid.
It is not disputed that the Lipton, Ltd., is a very big Organisation and has huge reserves which were built up in previous years out of its world profits.
There is no evidence to show to what extent, if any, the Indian business contributed to those profits.
On the finding of the Labour Appellate Tribunal that no part of the profits made in India is diverted to England and on the further finding that the Indian business depends on its own trading results, we are of the view that the Tribunals below correctly held that the global profits of the Lipton, Ltd., could not be the basis for awarding bonus to its Indian workmen.
There was some argument before us as to whether the 1% commission which the Indian branch earned on the export of tea correctly represented the proper remuneration payable to the Indian business.
That, 166 however, is a question which we do not think is open to enquiry in the present appeals.
The Income tax authorities accepted as correct the returns of the Lipton, Ltd., as to their Indian business.
It was not suggested that anything more than 1% was in fact taken as commission by the Indian branch, or that the accounts were " cooked " in that respect.
Whether the 1% commission was the normal market rate of commission for purchases on behalf of overseas buyers was not investigated ; on the contrary, the accounts filed by the Lipton, Ltd., in this respect were accepted as correct.
That being the position, it is not open to the respondent to contend that the available surplus should be determined on mere speculation as to what the Indian branch should have earned in the export side of its business.
On a consideration of all the relevant factors, we are of the view that the Labour Appellate Tribunal was in error in awarding an extra two months ' bonus for 1951 and the decision of the Industrial Tribunal was correct.
Therefore, the award in so far as it directs the payment of extra two months ' bonus for 1951 must be set aside.
We now go to the more difficult question of fixation of grades and wages.
What the Union demanded in the matter of fixation of grades and scales of pay will appear from the terms of reference.
These terms were: " Fixation of grades and scales of pay: 1(a) Whether the following pay scales should be adopted and what directions are necessary in this respect: Peon, Sweeper, Van Mazdurs and God .
60 3 90 4 130 5 155.
own Mazdurs.
Village salesmen.
70 5 120 7 1/2 195 10 245.
Drivers. . .Rs.
90 71/2 150 10 250 15 325.
Junior Clerks, Typ ists, Salesmen and Assistant Godown.
90 71/2 150 10 250 15 325.
Keepers.
Godown Keepers.
120 10 200 12 320 20 460.
167 Senior Clerks, Steno graphers, Compto. .
150 10 250 15 400 20 500.
meter operator and Div.
Salesmen.
(b) Whether pay scales as stated in 'a ' above should come into effect retrospectively from 1 1 53 and what should be the method of adjustments while fixing the actual pay in the revised scale? " The Industrial Tribunal gave an increase of 20% to all workers and set out in tabular form the category of workers, their present grades, and the revised grades which the Tribunal was allowing on the basis of a 20% increase.
It is necessary to set out the tabular form here: "CATEGORY PRESENT REVISED GRADE GRADE Peons, Sweepers, Van Mazdoors and Godown Mazdoors.
27 2 45 35 2 55 Village Salesman.
40 0 50 50 2 60 Drivers.
65 3 95 78 3 114 Junior Clerks and Typists.
70 5 125 84 6 150 Salesman.
50 0 75 60 5 90 Godown Keepers Gr.
1 70 5 130 84 6 150 2 125 8 200 150 9 240 3 195 10 235 230 10 280 Senior Clerks and Comptometer Operators.
120 8 200 140 10 240 Stenographers.
125 8 205 150 10 240 Divisional Salesman 80 0 125 100 10 150.
" As to the date from which the revised grades were to take effect, the Tribunal directed that they should have retrospective effect from January 1, 1954, instead of January 1, 1953, as claimed by the Union.
This direction the Tribunal gave because the Union had presented its demands to the Lipton, Ltd., for the first time towards the end of December, 1953.
The Tribunal also gave certain directions as to how the present employees should be brought into the 168 new scales and what adjustments should be made therefor.
The Tribunal proceeded on the footing that the existing wage structure, though not far below what it called the minimum fair wage, was far below the standard of a living wage, the progressive attainment of which (the Tribunal said) is the aim of all labour laws.
The Tribunal then considered the question of financial capacity of the Lipton, Ltd., to bear a higher wage structure and expressed itself as follows : " Since as remarked before, the existing wage level of the company 's employees cannot be said to be far below the minimum fair wage level obtaining in this country, this wage level can be increased only if it can be found that the company is in a financially sound position to bear the additional burden.
This again brings us face to face with the question whether it is the company 's capacity to pay on an all world basis that should be considered for this purpose or only the prosperity of its Indian branch.
So far as bonus is concerned, since bonus according to the latest theory represents a due share of the labour in the profits of business so largely contributed to by it, profit accruing from foreign business does not come into the picture in distributing bonus.
The same principle cannot be extended to the fixing of the wage level of the workers for all the employees in India are of course employees of the parent company. . . . .
The company 's global resources cannot, therefore, be disregarded in determining its capacity to pay.
At the same time, the company 's overall balance sheet and state of business cannot furnish the sole criterion for the fixing of the upper limit of the fair wage in India, for if a burden is imposed upon the company which is out of all proportion to the income that it derives from the business in India, the company may very well be tempted to close down its business in India and employ the capital thus released elsewhere.
No one can be happy over a situation like this, the company 's employees least of all.
While, therefore, the company 's global capacity to pay cannot be kept 169 out of consideration in fixing the wage level of its Indian employees, any increase in the wages cannot be granted on a level that would not leave it worth while for the company to continue its business in India.
In other words, while the company 's overall prosperity may be considered in fixing the wage level in India, I should see to it that the increase should not be such that it drives the company out of India altogether.
" The Tribunal pointed out that according to the last balance sheet filed in the case the share capital of the Lipton, Ltd., amounted in 1954 to pound 2,75,000 (but the balance sheet however shows pound 2,500,000) while the reserve capital stood at pound 3,60,417.
The Tribunal expressed the view that having regard to its global resources, the Lipton, Ltd., was financially able to bear a slightly higher wage structure in order to bridge the gap, in part at least, between the existing wage structure and the living wage standard.
The Tribunal also referred to the circumstance that though the Lipton, Ltd., had incurred losses in 1949 and 1950, it bad turned the corner in 1951 and the Company having overhauled its system of sales, there was a rea sonable expectation of larger profits in future years.
The Tribunal said that in the course of arguments before it, it put to the parties whether an overall increase of five lakhs of rupees in the wage structure on an all India basis could be borne by the company.
The Tribunal then said: " Mr. Samuel was prepared to accept this additional burden on the condition that in future there will be no liability on the Company to, pay bonus to their workers on an ex gratia basis, which they have been paying so far to their workers every year at the rate of one month 's basic salary." On the aforesaid grounds, the Tribunal came to the conclusion that the Lipton, Ltd., could easily stand an additional burden to the tune of five or six lakhs of rupees over the wages and dearness allowance at present paid to its employees all over India, and as the total annual wage bill of the Indian workmen was 22 170 in the neighbourhood of about twenty lakhs, an increase of 20% allowed to all workers over their present wages and proportionate increase in the dearness allowance would not exceed six lakhs.
On this basis the Industrial Tribunal gave its award.
The Labour Appellate Tribunal substantially affirmed the reasons given by the Industrial Tribunal and said that the two questions which arose for determination were (1) whether the existing scales of pay required revision and (2) whether the revised scales as fixed by the Industrial Tribunal were unwarranted and beyond the financial capacity of the Lipton, Ltd. Both these questions the Appellate Tribunal answered in favour of the respondent workmen.
In the appeals before us, the learned AttorneyGeneral appearing for the Lipton, Ltd., has very strongly contended that the reasons given by the Tribunals below for a revision of the wage structure are unsound in principle and unjustified on facts ; he has particularly laid stress on the contradiction involved in taking the global financial resources of the Lipton, Ltd., in support of an increase in wages while holding that the Indian branch is a separate entity dependent on its own profits for the payment of bonus.
He has also submitted that the financial resources of the Indian branch do not show any capacity to pay higher wages; nor was there, according to him, any reliable evidence to show that the existing wage structure required revision if it was compared to the wage structure in similar industries in the Delhi region.
He pointed out that the Tribunal was wrong in thinking that the Lipton, Ltd., turned the corner in 1951 and that there was a reasonable expectation of larger profits in future years, and in support of his contention, he referred to the appellant 's statement of the case, wherein the appellant stated in the following chart from the profit and loss figures of.
the Indian branch from 1949 to 1957 in the context of its average capital: 171 1949 1950 1951 1952 1953 1954 1955 1956 1957 (in lakhs of rupees) 1 2 year.
Average Capital (re presenting 162 158 167 209 195 235 245 193 165 Head office Current Ac count).
Net Profit (after taxa 8.2 3.6 2.4 6.3 7.08.2 2.8 10.6 6.6 tion) (loss)(loss) (loss) (loss) Percen tage of Net Profit/Loss 5.1 2.3 1.4 3.0 3.6 3.5 1.0 5.5 3.6 to the Aver (loss) (loss) (loss) (loss) age Capital The learned Attorney General then referred to the alleged admission of Samuel as to the capacity of the Lipton, Ltd., to bear an additional burden of about five lakhs and drew our attention to the affidavit of section K. Choudhury, personnel officer of the Lipton Ltd., made before the Appellate Tribunal, in which it was stated that Samuel never agreed that the appellant was able to bear an additional burden of five lakhs in the wage structure.
On these submissions, the learned Attorney General has very strongly contended that the Tribunals below were wrong, in principle as well as on facts, in disturbing the present wage structure.
We think that, in the main, three questions arise for consideration: (1) were the Tribunals below wrong in having regard to the global financial resources of the Lipton Ltd., in fixing the wage structure whereas for the payment of bonus the profits of the Indian branch only were taken into consideration; (2) did the existing wage structure require revision and was there any reliable evidence to show the wage structure of any comparable industry in the same region, on the assumption that the capacity to pay should be gauged on the industry cum region basis; and (3) has Lipton Ltd., financial capacity to bear the additional burden on its Indian resources ? 172 It is necessary first to state that there is a distinction between bonus and wage a distinction to which we had earlier adverted in this judgment.
Bonus comes out of profits and can claim no priority over dividend or other prior charges; bonus is paid if after meeting prior charges, there is an available surplus.
Wages stand on a somewhat different footing; wages primarily rest on contract and are determined on a long term basis and are not necessarily dependent on profits made in a particular year.
The distinction between the two has been adverted to in two recent decisions of this Court: Messrs. Crown Aluminium Works vs Their Workmen (1) and Express Newspapers (Private) Ltd. vs The Union of India (2).
In the Crown Aluminium Works (1) this Court has observed: " The old principle of the absolute freedom of contract and the doctrine of laissez faire have yielded place to new principles of social welfare and common good.
Labour naturally looks upon the constitution of wage structures as affording ' a bulwark against the dangers of a depression, safeguard against unfair methods of competition between employers and a guarantee of wages necessary for the minimum requirements of employees '.
There can be no doubt that in fixing wage structures in different industries, industrial adjudication attempts,.
gradually and by stages though it may be, to attain the principal objective of a welfare state to secure 'to all citizens justice, social and economic To the attainment of this ideal the Indian Constitution has given a place of pride and that is the basis of the new guiding principles of social welfare and common good to which we have just referred.
" In so far as bare minimum wage is concerned, it has been held that no industry has the right to exist unless it is able to pay its workmen at least a bare minimum wage; in other words, minimum wage is the first charge on an industry.
In the later decision of the Express NewsPapers (Private) Ltd. (2) the three concepts of the minimum wage, fair wage and living wage have been examined, and it has been pointed out that (1) ; , 660.
(2) 173 the content of the expressions " minimum wage ", " fair wage " and " living wage " is not fixed and static; it varies and is bound to vary from time to time.
The present case is not one of payment of the minimum wage; it is a case of payment of a fair wage which still falls short of a living wage.
For the payment of a fair wage as for a living wage, the financial capacity of the industry is undoubtedly a relevant consideration.
The question before us is how is the financial capacity of the Lipton, Ltd., to be judged? The question of the capacity of the industry to pay a fair wage has been considered in the Express Newspapers (Private) Ltd. (1) (at p. 89) and the following observations are apposite " The capacity of industry to pay can mean one of three things, viz., (i) the capacity of a particular unit (marginal, representative or average) to pay, (ii) the capacity of a particular industry as a whole to pay or (iii) the capacity of all industries in the country to pay.
The Committee on Fair Wages had said (pp. 13 15 of the report) : " In determining the capacity of an industry to pay, it would be wrong to take the capacity of a particular unit or the capacity of all industries in the country.
The relevant criterion should be the capacity of a particular industry in a specified region and, as far as possible, the same wages should be prescribed for all units of that industry in that region.
" This is known as the industry cum region basis for the fixation of wages.
In the Express Newspapers (Private) Ltd. (1) this Court has laid down the following principles for the fixation of wages (at p. 92): " The principles which emerge from the above discussion are: (1) that in the fixation of rates of wages which include within its compass the fixation of scales of wages also, the capacity of the industry to pay is one (1) 174 of the essential circumstances to be taken into con sideration except in cases of bare subsistence or mini.
mum wage where the employer is bound to pay the same irrespective of such capacity; (2) that the capacity of the industry to pay is to be considered on an industry cum region basis after taking a fair cross section of the industry; and (3) that the proper measure for gauging the capacity of the industry to pay should take into account the elasticity of demand for the product, the possibility of tightening up the Organisation so that the industry could pay higher wages without difficulty and the possibility of increase in the efficiency of the lowest paid workers resulting in increase in production considered in conjunction with the elasticity of demand for the product no doubt against the ultimate background that the burden of the increased rate should not be such as to drive the employer out of business.
" We do not think that it is necessary to decide in the present case whether the Tribunals below were right in having regard to the global resources of the Lipton, Ltd., in the matter of the revision of the wagestructure; because we consider that on an application of the principle of industry cum region, the revision of the wage structure made by the Tribunals below cannot be said to be unjustified on the financial resources of the Lipton, Ltd., as disclosed by its trading results in India.
The learned Attorney General has referred to certain larger considerations: he has suggested that if the global resources of a company like the Lipton, Ltd., which operates in several countries are taken into consideration in determining the wage structure, it way result in disparity of wages in different regions giving rise to industrial unrest and it may also have the effect of stopping new industries in this country and thereby increase unemployment.
These are matters which may require serious consideration in a more appropriate case; but in the present case we may examine the problem from the narrower point of view, namely, the trading results in India if the Lipton, Ltd. We may first.
dispose of a subsidiary but connected 175 point.
In the Industrial Tribunal the case proceeded on the footing that the Lipton, Ltd., had a uniform system of wages in India and if the wage structure of the Delhi employees was revised it would mean revising the wage structure of the employees in other Indian offices as well.
It was further suggested that if the wage structure was uniformly revised at all other places, then the cost of the increase in wages taken along with the cost of other reliefs granted by the Industrial Tribunal, would be much more than five or six lakhs.
We do not think that this would be a good ground for setting aside the award.
The Industrial Tribunal, Delhi, had jurisdiction to make an award in respect of the employees of the Delhi office only ; it had no jurisdiction to make an all India award.
Moreover, if the true principle for fixation of wages is region cum industry, then there is no reason why the Delhi award should automatically apply to all the other regions.
It has not been disputed before us that the existing wage of the Delhi employees is far below the living wage.
The first question is was there any reliable evidence to show that in comparable industries in the same region, the wages were higher and, therefore, the wage structure required revision to the extent allowed by the Industrial Tribunal.
On behalf of the Union evidence was given about the scales of pay of employees in the Delhi office of a number of industrial undertakings, such as the Standard Vacuum Oil Company, Thomas Cook (Continental) Overseas, Burma Shell, Lever Brothers (India) Ltd. and Associated Companies, and Marshall Sons and Co. (India) Ltd.
On behalf of the appellant it has been contended that none of the above are comparable industries; some are oil companies, some engineering concerns and some manufacturing concerns.
On behalf of the Union, it has been pointed out that so far as the drivers, sweepers, peons, clerks, godown keepers, typists, stenogra phers and the like are concerned, and these form the bulk of the employees, their nature of work is about the same in all the aforesaid industries and, therefore, there was a basis for comparison on which the 176 Tribunals below could proceed.
We are of the view that it is impossible to say in this case that there was no evidence on which the Tribunals could proceed to revise the wage structure; on the contrary there was evidence accepted by the Tribunals below which justified a revision of the wage structure.
The Appellate Tribunal also referred to the scales of pay obtaining in Brooke Bond, India, and opined that the appellant 's scales of pay were lower than the Brooke Bond scales.
This opinion of the Appellate Tribunal has been challenged before us; firstly, it has been contended that though Brooke Bond has a similar trading activity in tea, it is not a comparable industry because it owns tea gardens in India; secondly, it has been pointed out that no evidence of the Brooke Bond 's scales of pay was given and the opinion of the Appellate Tribunal was a mere surmise.
It appears that no evidence was given before the Industrial Tribunal about the Brooke Bond 's scales of pay, but some additional evidence was offered at the appellate stage; this was not, however, accepted.
In the circumstances, we do not think that the Brooke Bond 's scales of pay can be taken into consideration.
But as we have earlier said, there was other evidence on which a comparison could be and was made by the Tribunals below.
That comparison justified an increase in the The next question is do the trading results in India of the Lipton, Ltd., show that it has the financial capacity to bear the burden of the wave increase? The statement, in chart form, of the profit and loss figures from 1949 1957 to which we have earlier referred, shows that net profits in 1952 exceeded six lakhs, in 1953 seven lakhs, in 1954 eight lakhs and in 1956 ten lakhs.
We have said earlier that wages do not necessarily come out of the net profits of a particular year, and it cannot be said that a fair wage must inevitably be postponed till a fair return on capital is obtained.
Wages are fixed on a long term basis and depend also on the cost of living and the needs of workmen.
Judging the trading results of the Indian business of the Lipton, Ltd., over a period of years, 177 we cannot say that the Tribunals below committed any error in revising the wage structure.
It is germane to point out here that Samuel 's evidence showed that the managerial staff of the Indian business, recruited in England, receive very high salaries.
Samuel said that the General Manager, who is the Chief Executive Officer of the Indian branch of the Lipton, Ltd., gets a salary of Rs. 5,000 per month.
The next officer is the Administrator whose pay is Rs. 4,250 per month.
The third man, who is the Manager of the Tea Depart ment, gets the same pay as the Administrator.
The fourth is the Accountant of the company and his pay is Rs. 3,800 per month.
The fifth is the Marketing Controller whose pay is Rs. 3,650 per month.
The Factory Manager gets Rs. 3,350 per month.
There are several other officers who also get a very high salary and the total number of covenated Executive Officers consists of 32 Europeans and 17 Indians.
Now, the point taken on behalf of the Union is that the wage structure of the Indian branch is top heavy, in the sense that the higher administrative officers get a salary which is out of all proportion to the wage scale of the employees with whom we are now concerned.
It is further contended that the high salaries paid to the superior Executive show (1) that the wage structure of the lower employees requires revision and (2) that the financial capacity of the Indian branch is not as negligible as the appellant wants to make out.
We think, however, that it is not the duty of a Labour Tribunal or Court to dictate to an industrial concern what salaries should be paid to superior executive officers who are not workmen within the meaning of the Industrial,Disputes Act, 1947.
We have pointed out, however, in the Express Newspapers (Private) Ltd. (1) that " the possibility of tightening up the organisation so that the industry could pay higher wages without difficulty and the possibility of increase in the efficiency of the lowest paid workers resulting in increase in production must be considered in conjunction with the elasticity of demand for the product (1) 23 178 no doubt against the ultimate background that the burden of the increased rate should not be such as to drive the employer out of business ".
This is an aspect of the matter which the Tribunals below had considered and the Industrial Tribunal had particularly said that the increase in the wage structure was not such as would drive the Lipton, Ltd., out of its Indian business.
Our attention has been drawn to the financial implications of the award and it has been pointed out that the total annual cost to the company of the increase in the wage structure of the employees in the Delhi office would be in the neighbourhood of Rs. 49,721 per year; on an all India basis it would be in the neighbourhood of Rs. 2,71,000 and odd.
Having regard to the evidence which Samuel gave it cannot be said that the burden of the increased rate was such as would be beyond the financial resources of the Lip ton, Ltd., on its trading results in India or was such as would drive the Lipton, Ltd., out of India.
Even on the basis of all the reliefs granted by the award, the total cost to the company for the Delhi office would be in the neighbourhood of Rs. 1,15,000 and on an all India basis Rs. 6,34,000.
We have said earlier that the award was not an all India award, and so far as the fixation of wages is concerned, it must be judged on the principle of industry cum region.
So judged, we do not think that the increase is beyond the financial resources of the Lipton, Ltd., as disclosed by its trading results in India.
On behalf of the appellant, it has been submitted that one of the tests for measuring the capacity of the industry to pay the increased wage is, amongst others, the selling price of the product and it has been pointed out that by reason of the imposition in 1953 of an excise duty of three annas per pound of packet tea, there is serious competition from those who sell tea in loose form and any further increase in price will give rise to consumers ' resistance and ultimately result in lesser sale and lesser profits.
In our opinion the industrial Tribunal rightly pointed out that the moderate increase in the wage scale proposed by it would only 179 be a very small fraction of the overall cost of production of a packet of tea and would have very little repercussion in its price.
Lastly, our attention was drawn to an award of the Special Industrial Tribunal, Madras, dated October 15, 1956, between the management of the Lipton, Ltd., Madras and its workers employed in Madras where on more or less similar facts the Industrial Tribunal repelled the argument on behalf of the workmen that the global financial position of the Lipton, Ltd., should be taken into account in considering the capacity of the company to pay higher salaries and dearness allowance, and it was held that the Lipton, Ltd., could not be burdened with any additional liability and the employees must wait for better days.
That award is not the subject of the present appeals and we consider it unnecessary, and indeed inadvisable, to make any pronouncement as to the correctness or otherwise of that award.
The only other point which requires consideration is the question of the date from which the new scales of pay should come into effect.
The Industrial Tribunal fixed January 1, 1954, on the ground that the Union had presented its charter of demands to the appellant for the first time towards the end of December 1953.
We are unable to agree with the Tribunals below that the circumstance that a charter of demands was presented in December 1953 is a good ground for giving retrospective effect to the new scales of pay.
The charter of demands presented by the Union consisted of 20 items and in the matter of the wage scale what the Union demanded was in some cases more than 50 to 75% increase on the existing scales of pay.
Obviously, the demands were exorbitant and the management was justified in refusing to accept the demands in toto.
We are, therefore, unable to agree that retrospective effect should be given to the new scales of pay from January 1, 1954.
The award was made on August 18, 1955, and it was published on October 6, 1955.
We think that it will be more just to bring the new scales of pay with effect from November 1, 1955, and we direct accordingly. ' The other directions given 180 by the Industrial Tribunal to bring the present employees into the new scales of pay will stand subject to the necessary modification that instead of January 1, 1954, the relevant date should be November 1, 1955.
The result, therefore, is as follows: Appeal No. 715 of 1957 is dismissed with costs.
Appeals Nos. 713 and 714 of 1957 are allowed to the extent indicated above.
The order for the grant of bonus for 1951 is set aside and the new scales of pay will take effect from November 1, 1955, instead of from January 1, 1954.
There will be no order for costs in these two appeals.
Appeals Nos. 713 and 714 allowed in part.
Appeal No. 715 dismissed. [/INST] The appellant company was incorporated in the United Kingdom, with its registered office in London and its business in the United Kingdom consisted of stores and groceries, including tea which represented only about 10% of its business there.
Its operations in India were carried on by a branch with its head office in Calcutta, and the business there consisted mainly in the sale of " packeted " tea throughout India.
The Delhi office of its Indian branch controlled the salesmen and other employees employed in the Punjab, Delhi State, Rajasthan and Uttar Pradesh, but had no connexion with the export side of the business.
The Indian Branch had no subscribed capital nor any reserves, and the capital used in India was money advanced from the company 's fund in England.
The dispute between the respondents who were the employees of the Delhi office and the company related, inter alia, to (1) fixation of grades and scales of pay; (2) whether retrospective effect should be given to the new scales of, pay; and (3) bonus for the year 1951.
The respondents contended that the total global profits of the appellant company should form the basis for determining the claim to bonus on the ground that it was an integrated industry which had trading activities in various countries.
The Tribunal found that the Indian workmen did not in any way contribute to the profits which the appellant company derived from its ex India business, that the Indian branch maintained separate accounts which had been audited and accepted by the Income tax authorities as showing the profit and loss of the Indian branch of the business, and that though, at the relevant time, the appellant company was one legal entity and the capital of the Indian branch came from London, the Indian branch was treated as a separate entity for all practical purposes.
The Tribunal also found that for 195 I there was no available surplus for distribution as bonus to the employees in India.
In the matter of fixation of grades and scales of pay, the Tribunal found that the existing scale of wages of the Delhi employees was far below the standard of a living wage, and for fixing the wage level it took into consideration the company 's global capacity to pay and came to the conclusion that having regard to its global 151 resources the company was financially able to bear a slightly higher wage structure.
Accordingly, the Tribunal revised the grades by giving an increase of 20% to all workers.
As to the date from which the revised grades were to take effect, the Tribunal directed that they should have retrospective effect from January 1, 1954, instead of January 1, 1953, as claimed by the Union.
The appellant contended that the Tribunal erred in taking into consideration the global financial resources of the company in support of an increase in wages while holding that the Indian branch was a separate entity for the payment of bonus, that the financial resources of the Indian branch did not show any capacity to pay higher wages, and that, in any case, there was no reliable evidence to show that the existing wage structure required revision if it was compared to the wage structure in similar industries in the Delhi region.
A question was also raised as to whether the Industrial Tribunal, Delhi, had jurisdiction to make an award in respect of employees of the Delhi office who were employed outside the State of Delhi.
Held: (1) that on the finding that the Delhi office controlled all its employees in the matter of appointment, leave, transfer, supervision, etc., whether employed in Delhi State or outside it, the Industrial Tribunal, Delhi, had jurisdiction to adjudicate on the dispute between the appellant company and its workmen of the Delhi office, as the Delhi State Government was the appropriate Government within the meaning of section 2 of the , and under section 18 of the Act the award made by the Tribunal was binding on all persons employed in the Delhi office; (2) that in the circumstances in which the appellant com pany operated in India at the relevant time and on the finding that no part of the profits made in India was diverted to England and that the Indian business depended on its own trading results the global profits of the company could not be made the basis for awarding bonus to Indian workmen, and that the latter can claim bonus only if there was an available surplus of profits of the Indian business; Muir Mills Co. Ltd. vs Suti Mills Mazdoor Union, Kanpur, ; , Ganesh Flour Mills Co. Ltd vs Employees of Ganesh Flour Mills, A.I.R. 1958 S.C. 382, Burn and Co., Calcutta vs Their Employees, ; and Baroda Borough Municipality vs Its workmen; , , referred to.
(3) that in determining the question of a revision of the wage scale, the relevant considerations were : (1) whether the existing wage structure required revision by reason of its being below the standard of living wage, and (2) whether the industry could bear the additional burden of an increase in the wage scale on the basis of industry cum region by reason of its financial resources in India ; that judged by the considerations stated 152 above, it could not be said that the Tribunal erred in revising the wage structure on the basis of the evidence adduced before it ; and that the increase in the wages was not beyond the financial resources of the company as disclosed by its trading results in India.
There is a distinction between bonus and wage.
Bonus comes out of profits and is paid, if after meeting prior charges, there is an available surplus.
Wages primarily rest on contract and are determined on a long term basis and are not necessarily dependent on profits made in a particular year.
Crown Aluminium Works vs Their Workmen, ; and Express Newspapers (Private) Ltd. vs The Union of India, , relied on.
(4) that the new scales of pay should be brought into effect from November 1, 1955, instead of January 1, 1954, as directed by the Tribunal. </s> |
<s>[INST] Summarize the following judgement: ppeal No. 4447 of 1991 From the Judgment and Order dated 24.4.1991 of the Madras High Court in Civil Revision Petition No. 4769 of 1984.
E.C.Agarwala for the Appellant.
Mrs. Jayashree Ahmed for the Respondent.
The Judgment of the Court was delivered by RANGANATH MISRA, CJ.
Special leave granted.
Appellant is the tenant of a premises located in Sivaka si within the State of Tamil Nadu to which the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act apply.
The rental of the premises is Rs. 275 per month.
Respondents initiated action for eviction on the plea that there was "wilful default" in the matter of payment of rent and change of user.
It was contended that the lease was residential but it had been used partly for commercial activity.
The appellant took the stand that rent was not being collected every month since the respondents resided away from the place where the property is situated and every two to three months they used to come and collect rent at land lord 's convenience.
Two receipts were produced to support this stand.
Rent was collected in one case for three months and in the other for two months at a time.
Admittedly at the time of filing of the petition for eviction three months ' rent had fallen due.
So far as the 205 change of user was concerned it was denied by pleading that mixed use was the basis of the tenancy.
The original authority dismissed the petition but that has been reversed in appeal and the reversal has been upheld by the High Court.
Two contentions were raised before us: (i) there is no case of wilful default particularly when the two receipts showed acceptance of rent for periods as pleaded by the tenant without demur and (ii) that the premises had been rented out also for business use and at any rate admittedly from 1973 there has been this change.
Counsel for the respondents does not dispute that from 1973 there has been change of use.
The petition for eviction is of 1980.
It follows that for seven years no objection was raised for change of use and for the first time when evic tion was sought, conversion was made the second ground.
In these circumstances, we are prepared to accept the submis sion advanced on behalf of the appellant that the landlords accepted the user to be also other than residential.
Both parties relied upon a decision of this Court in the case of section Sundaram Pillai & Ors. etc.
V.R. Pattabiraman & Ors.
; , , where default and 'wilful ' default were distinctly treated.
In the several statutes operating in the different States regulating the law relat ing to landlord and tenant 'wilful ' default has been made the ground of eviction while default is not.
We may also refer to a short but suggestive Order dated March 27,1991, of this court in Civil Appeal No. 1367 of 1991 [Premchand Banka vs A. Vasanthrai Khatod & Ors.] to support our conclu sion.
A situation where the landlord had consented to col lect rent for two to three months at a time non payment of rent for three months cannot constitute wilful default.
Since in the present case default was of three months at time of filing of the case, we are prepared on the basis of the evidence on record that it was not a case for wilful default.
Accordingly the conclusion reached in appeal and upheld by the High Court would not be sustainable.
We allow the appeal and reverse the Judgment of the High Court and dismiss the petition for eviction.
We would, however.
like to add that judicial notice can be taken of the fact that rental has escalated everywhere and appropri ate rent in the present case should be raised to Rs. 400 per month from 1.1.1992.
The tenant should have a direction to pay the rent in advance from month to month as stated by him in the Court below and it should be by the end of every month.
There will be no order as to COSTS.
V.P.R. Appeal allowed. [/INST] Appellant was a tenant under the respondents.
Action for eviction against the appellant was initiated on the pleas that there was "wilful default" in the matter of payment of rent and that the lease was residential but it had been used partly for commercial activity.
At the time of filing of the petition for eviction three months ' rent had fallen due.
The appellant 's case was that rent was not being collected every month and every two to three months the respondents landlords used to come and collect rent at their convenience, and that mixed use of the premises was the basis of the tenancy.
The original authority dismissed the petition.
In appeal it was reversed.
The High Court upheld the reversal holding that there was no case of wilful default and that the prem ises had been rented out also for business use.
In the appeal by special leave the tenant appellant contended that there was no case of wilful default and that the premises had been rented out also for business use and the change of user was since 1973.
Allowing the appeal of the tenant, this court, HELD: 1.
In the several statutes operating in the different states regulating the law relating to landlord and tenant 'wilful ' default has been made the ground of eviction while default is not.
[205 E] 204 2.
A situation where the landlord had consented to collect rent for two to three months a time, non payment of rent for three months cannot constitute wilful default.
[205 F] 3.
It is not disputed that from 1973 there had been change of use.
The petition for eviction was of 1980.
It follows that for seven years no objection was raised for change of use and for the first time when eviction was sought, conversion was made the second ground.
In these circumstances the landlords accepted the user to be also other than residential.
[205 C D] section Sundaram Pillai & Ors.
V.R. Pattabiraman & Ors.
; , ; Premchand Banka vs
A. Vasanthrai Khatod & Ors., C.A.No. 1367 of 1991, decided on 27.3.1991, referred to. </s> |
<s>[INST] Summarize the following judgement: Criminal Appeal No. 323 of 1980.
From the Judgment and Order dated 1.5.1979 of the Orissa High Court in Government Appeal No. 38 of 1977.
Raj Kumar Mehta for the Appellant.
S.G. Sambandhan for the Respondent.
The Judgment of the Court was delivered by RAMASWAMY, J.
The respoudent was found to have sold adulterated cumin (Jira) on March 13, 1976 punishable under s.16(1)(a)(i) read with s.7(1) of the , for short 'the Act '.
Both the courts found as a fact that the adulterated cumin was 254 exposed for sale and PW 1, the Food Inspector, purchased the cumin (Jira) under the provisions of the Act and on analysis by the Public Analyst it was found that it contained 9% foreign seeds as against permissible 7.0%; inorganic (dust, stones, lumps of earth etc.) 0.2% and organic (chaff, sterm, stipules, etc.) at 1.8%.
Accordingly it was found to have been adulterated.
The Magistrate and the High Court acquit ted the respondent on the sole ground that his father Appa Rao was the owner of the shop.
Had that fact been brought to the notice of the sanctioning authority under s.20 of the Act, it would not have permitted to prosecute the respond ent, the son of the owner.
Accordingly placing reliance on Jagan Nath Sahu vs Food Inspector, Jaipur Municipality (1973) 2 Cuttack Weekly Reporter 1556 acquitted the accused and was confirmed by the High Court.
The sole question that emerges for consideration is whether it is necessary that the respondent should be the owner of the shop for being prosecuted for the offences under section 16(1)(a)(i) read with s.7(1) of the Act.
Sub sec tion (1) of s.20 of the Act reads thus: "(1) No prosecution for an offence under this Act shall be instituted except by, or with the written consent of the Central Government or the State Government or a local authority or a person authorised in this behalf, by general or special order, by the Central Government or the State Government or a local authority".
Proviso is not necessary.
Hence omitted.
Section 2 of the Act defines 'adulterated ' that if the articles sold by a vendor is not of the nature, substance or quality demanded by the purchaser, who is to purchase, the article is adulterated.
If the quality or variety of the articles fail below the prescribed standard or its constitu ents are present in quantities not within the prescribed limits of variability, is also adulterated.
It would, there fore, be clear that the word 'adulterated ' was used widely.
If the food or article of food is adulterated, if it is not of the nature, substance or quality demanded by the purchas er and sold by the seller and is to his prejudice , or contains any foreign substance in excess of its prescribed limit, so as to effect injuriously, the nature, substance or quality thereof.
In view of the finding of the courts below that cumin (Jira) was adulterated it is a sale by the vendor to the purchaser in terms of the provisions of the Act.
What s.20 envisages is that no prosecution for an offence under the Act should be instituted except by or by the written consent of the Central Government or the State Government or a local authority or a person otherwise authorised in this behalf by general or special order by the Central Government or the State Government or a 255 local authority.
Therefore, grant of sanction to prosecute for an offence under the Act is a condition precedent.
The relevant criteria under s.20(1) is the competence of the Officer to grant the sanction for the offence.
It does not postulate whether the person sold should be the owner or a servant or a person on behalf of the owner (son of the owner).
Section 7 prohibits manufacture, sale of certain articles of food.
No 'person ' shall himself or any person on his behalf manufacture for sale, or store or sell or dis tribute (i) any adulterated food etc.
The phrase "himself or any person on his behalf ' obviously included any other person like servant, son, father, or agent irrespective of the relationship legal or jural etc.
The person so sold during the course of business either the owner or the person that sold the adulterated food or article of food or both are liable to prosecution.
It is not in dispute that the officer that granted the sanction in this case is the competent officer as a delegate on behalf of the local authority.
Undoubtedly, a valid sanction is a condition precedent.
If no valid sanction was granted by the authority, certainly the accused is entitled to the benefit of statutory infraction, though it is techni cal and be acquitted of the offence.
In Sarjoo Prasad vs The State of U.P., [1961] 3SCR 324, it was contended that a servant who sold food on behalf of his employer was not liable unless it was known that he has done it with knowledge that the food was adulterated.
This court held that s.7 of the Act enjoins everyone whether an employer or a servant not to sell adulterated food and anyone who contravenes this provision is punishable under section 16 without proof of mensrea.
This court repelled the argu ment that the legislature could not have intended, having regard to the fact that large majority of servants in the shops which deal in food are illiterate to penalise servants who are not aware of the true nature of the article sold.
The intention of the legislature must be gathered from the words used in the statute and not by any assumption about the capacity of the offenders to appreciate the gravity of the acts done by them.
There is also no warrant for the assumption that the servants employed in shops dealing in food stuff are generally illiterate.
In the interest of the public health, the Act was enacted prohibiting all persons from selling adulterated food.
In the absence of any provi sion, express or necessarily implied from the context, the courts will not be justified in holding that the prohibition was only to apply to the owner of the shop and not to the agent of the owner who sells adulterated food.
This view was reiterated in Ibrahim Haji Moideen & Anr.
vs Food Inspector ' & Anr., (1976) 2 All India Prevention of Food Adulteration Cases 66.
This court held that for the purpose of conviction under charge on which A 2 was tried.
it was immaterial whether he was an agent or a partner of 256 A 1.
Once it is proved that he sold the adulterated arti cles, he was liable to be convicted under section 16(1) read with s.7 of the Act.
The contention that it is only the owner of the shop that could be convicted was held to be wholly an unsustainable contention.
The Act is a welfare legislation to prevent health hazards by consuming adulterated food.
The mensrea is not an essential ingredient.
It is a social evil and the Act pro hibits commission of the offences under the Act.
The essen tial ingredient is sale to the purchaser by the vendor.
It is not material to establish the capacity of the person vis a vis the owner of the shop to prove his authority to sell the adulterated food exposed for sale in the shop.
It is enough for the prosecution to establish that the person who sold the adulterated article of food had sold it to the purchaser (including the Food Inspector) and that Food Inspector purchased the same in strict compliance with the provisions of the Act.
As stated earlier the sanctioning authority has to consider the material place before it whether the offence of adulteration of food was committed and punishable under the Act.
Once that satisfaction is reached and the authority is competent to grant the sanc tion, the sanction is valid.
It is not necessary for the sanctioning authority to consider that the person sold is the owner, servant, agent or partner or relative of the owner or was duly authorised in this behalf.
We have, therefore, no hesitation to hold that the courts below committed manifest error of law causing miscar riage of justice in holding that the sanctioning authority must be apprised of the status of the person that sold the adulterated food article to the Food Inspector or the pur chaser.
Consequently, the acquittal is set aside and the respondent is held liable to be conviction and accordingly convicted under s.16(1)(a)(i) read with s.7(1) of the Act.
But what is the sentence to be imposed? The offence had occurred on March 13,1976 before the Amending Act has come into force.
Under the unamended Act it was not mandatory to impose the minimum sentence.
For reasons to be recorded the Magistrate may impose the sentence, fine or both for the first offence and it was mandatory to impose minimum sen tence for second or subsequent offences.
As stated, 15 years have passed by from the date of the offence and at this distance of time the ends of justice may not serve to send the respondent to imprisonment.
Suffice that he has undergone, all these years, the agony of the prosecution.
But, however, the sentence of fine of a sum of Rs. 500 is imposed upon the respondent and he shall pay the same.
In default he shall undergo the imprisonment for a period of one month.
The appeal is accordingly allowed.
V.P.R. Appeal allowed. [/INST] On 13.3.1976, it was found that the respondent sold adulterated cumin(Jira).
The Food Inspector purchased the Jira under the provisions of the Act and on analysis the Public Analyst found that it was adulterated.
The respondent was charged u/s.16(1)(a)(i) read with section 7(1) of the .
The Trial Court acquitted the respondent on the ground that his father was the owner of the shop and assuming that if that fact had been brought to the notice of the sanction ing authority section 20 of the Act, it would not have permit ted to prosecute the respondent, the son of the owner of the shop and relying on the Jagannath Sahu 's 252 case (1973)(2) Cuttack Weekly Reporter, 1536.
The High Court on appeal confirmed the acquittal order of the trial court.
On the question, whether it was necessary that the respondent should be the owner of the shop for being prose cuted for the offences section 16(1)(a)(i) read with section 7(1) of the Act, allowing the appeal filed by the State, this Court, HELD: 1.
The Act is a welfare legislation to prevent health hazards by consuming adulterated food.
The mens tea is not an essential ingredient.
It is a social evil and the Act prohibits commission of the offences under the Act.
The essential ingredient is sale to the purchaser by the vendor.
It is not material to establish the capacity of the person vis a vis the owner of the shop to prove his authority to sell the adulterated food exposed for sale in the shop.
It is enough for the prosecution to establish that the person, who sold the adulterated article of food had sold it to the purchaser (including the Food Inspector ) and that Food Inspector purchased the same in strict compliance with the provisions of the Act.
[256 BC] 2.
The sanctioning authority has to consider the mate rial placed before it whether the offence of adulteration of food was committed and punishable under the Act.
Once that satisfaction is reached and the authority is competent to grant the sanction, the sanction is valid.
It is not neces sary for the sanctioning authority to consider that the person sold is the owner, servant, agent or partner or relative of the owner or was duly authorised in this behalf.
[256 C D] 3.
Grant of sanction to prosecute for an offence under the Act is a condition precedent.
If no valid sanction was granted by the authority, certainly the accused is entitled to the benefit of statutory infraction, though it is techni cal and be acquitted of the offence.
The relevant criteria under section 20(1) is the competence of the officer to grant the sanction for the offence.
it does not postulate whether the person sold should be the owner or a servant or a person on behalf of the owner (son of the owner).
[255 A] 4.
No 'person ' shall himself or any person on his behalf manufacture for sale, or store or sell or distribute any adulterated food etc.
The phrase "himself or any person on his behalf" obviously included any other person like servant, son, father or agent irre 253 spective of the relationship legal or jural etc.
The person so sold during the course of business either the owner or the person that sold the adulterated food or article of food or both are liable to prosecution.
[255 B C] 5.
If the article sold by a vendor is not of the na ture, substance or quality demanded by the purchaser, who is to purchase, the article is adulterated.
If the quality or variety of the article fall below the prescribed standard of its constituents are present in quantities not within the prescribed limits of variability, is also adulterated.
The food or article of food is adulterated, if it is not of the nature, substance or quality demanded by the purchaser and sold by the seller and is to his prejudice, or contains any foreign substance in excess of its prescribed limit, so as to effect injuriously, the nature, substance or quality thereof.
The word 'adulterated ' was used widely.
[254 F] 6.
As 15 years have passed by from the date of the offence, the ends of justice may not serve to send the respondent to imprisonment.
Suffice that he bas undergone, all these years, the agony of the prosecution.
In the cir cumstances a sentence of fine of a sum of Rs.500 is imposed, in default the imprisonment for a period of one month.
[256 G] Jagannath Sahu vs Food Inspector, Jaipur Municipality, 1973(2) Cuttack Weekly Reporter 1556, overruled.
Sarjoo Prasad vs The State of U.P., [1961] 3 S.C.R. 324; Ibrahim Haji Moideen & Anr.
vs Food Inspector & Ant., 1976 (2) All India Prevention of Food Adulteration Cases 66, referred to. </s> |
<s>[INST] Summarize the following judgement: Criminal Appeal No. 711 of 1991.
From the Judgment and Order dated 28.7.1988 of the Kerala High Court in Crl.
R.P. No. 59 of 1988.
Kapil Sibal and E.M.S. Anam for the Appellant.
A.S.Nambiar and K.R. Nambiar for the Respondent.
The Judgment of the Court was delivered by K. JAGANNATHA SHETTY, J.
We grant special leave and proceed to dispose of the matter.
This appeal against a decision of the Kerala High Court raises an important question concerning the power of the Magistrate to drop proceedings against an accused in a summons case after process is issued.
The facts are simple.
K.M.Mathew appellant is the Chief Editor of Malayala Manorma.
It is a daily newspaper with wide circulation the State of Kerala and seems to be the largest language newspaper in India.
Separate editions of the newspaper are published from different centres,namely, Trivendrum, Kottayam, Cochin and Calicut.
At each of these section there is a separately Editor who is responsible for selection and publication to the items The chief editor is based at Kottayam and he is responsible for the genaral policy of the Daily and various other publicalions of the Manaroma group of publications.
Respondent No. 2 is an case was that the news item published in the Daily.
His case was that the news item was published with the sole object of ridiculing and defaming him.
He lodged a complaint before the court of Addi 367 tional Judicial Magistrate against the Chief Editor, the Printer and Publisher of the newspaper alleging that they have committed an offence punishable under Sections 500 & 34 IPC.
The learned Magistrate examined the complainant on oath and took the complaint on file as CC 496/ 85.
He issued summons to the accused.
The accused upon service entered appearance and pleaded not guilty.
Before the evidence was recorded, the Chief Editor requested the Magistrate to drop the proceedings against him He contended that the complainant has not alleged that the Chief Editor was responsible for selection of the news item and publication thereof.
There was not even an averment in the complaint that the Chief Editor has perused the material or edited before its publication or that it was published with his knowledge or consent.
After hearing the parties the Magistrate accepted the plea of the Chief Editor and dropped the proceedings against him.
To be more precise, the Magis trate directed that the complaint so far as it relates to the Chief Editor could not be proceeded with.
The complainant took up the matter to the High Court in revision.
The High Court allowed the revision and set aside the order of the Magistrate.
The High Court did not examine whether the complainant has or has not made out a case against the Chief Editor.
The High Court rested its conclusion solely on the procedural requirements of the trial of a summons case.
It has been pointed out that in any private complaint triable as a summons case the Magistrate, after taking cognizance of the offence and issuing process, has no jurisdiction to drop proceedings against the accused.
He is bound to proceed under Chapter XX of the Code of Criminal Procedure when the accused enters appearance.
He will have to state the partic ulars of the offence and record the plea of the accused.
When the accused pleads not guilty, he will have to hear the prosecution and take all such evidence produced in support of the prosecution.
Then he will have to hear the accused and take all such evidence produced in support of the de fence.
The High Court went on to state that the question of conviction or acquittal will arise only after recording evidence of the parties.
There is no question of discharging the accused at an intermediate stage.
There is no provision in the Code for dropping the proceedings against any ac cused.
So stating the High Court has directed the Magistrate to proceed with the trial of all the accused.
The High Court seems to be too technical in this regard.
If one reads carefully the provisions relating to trial of summons cases, the power to 368 drop proceedings against the.
accused cannot be.
denied to the Magistrate Section 204 of the Code indicates .
the proceedings before the Magistrate commmences upon taking cognizance of the offence and the issue of summons to the accused.
When the accused enters apperance in response to the summons, the Magistrate has to take proceedings under Chapter .XX of the Code.
But the need to try 'the accused arises ' when they is allegation in the comnplaint that the accused has commited the crime If there is no allegation in the complaint involving the accused.
in the commission of the crime, it i.s implied that the Magistarte has no jurisdlction to proceed against the accused.
It is open, to the accused to plead bfore the Magis tarate that the process against him ought.
no; to have been issued.
The Magistrate may drop the proceedings if he is statisfied on reconsideration of the complaint that there is no offence for which the accuseed could be tried.
It is his judicial desetion .
No specific provision required for the Magistrate t0 drop the proceedings or rescind the proc ess The order issumg the process is an interim order and not a judgment.
It can be varied or recalled.
The fact that the process has already been issued is no bar to drop file proceedings if the complaint on the very face of it does not disclose any offence against the accused In the instant case there is no averment against the Chief Editor except the motive attributed to him.
Even the motive alleged is general and vague.
The complainant seems to rely upon the presumption under Section 7 of the Press and Registration of Books Act, 1867 ( 'the Act '),.
But Sec tion 7 of the Act has no applicability for a person who is simply named as 'Chief Editor '.
The presumption under Sec tion 7 is only against the person whose name is printed as 'editor ' as required under Section 5(1).
There is a mandato ry (though rebuttable) presumption that the person whose name is printed as 'Editor ' is the editor of every portion of that issue of the newspaper of which a copy is produced.
Section 1(1) of the Act defines 'Editor ' to mean 'the person who controls the selection of the matter that is published in a newspaper '.
Section 7 raises the presumption in respect of a person who is named as the editor and printed as such on every copy of the newspaper.
The Act does not recognise any other legal entity for r,rising the presumption.
Even if the name of the Chief Editor is printed in the newspaper.
there is no presumption against him under Section 7 of the Act.
See State of Maharashtra vs Dr. RB.
Chowdhary & Ors., ; U.P. Mishra vs Kamal Narain Sharma & Ors., [1971] 3 SCR 257, Narasingha Charan Mohanty vs Surendra Mohanty, ; and haji C.H. mohamad Koya vs T.K.S.M.A. Muthukoya; , 369 It is important to state that for a Magistrate to take cognizance of the offence as against the Chief Editor, there must be positive averments in the complaint of knowledge of the objectionable character of the matter.
The complaint in the instant case does not contain any such allegation.
In the absence of such allegation, the Magistrate was justified in directing that the complaint so far as it relates to the Chief Editor could not be proceeded with.
To ask the Chief Editor to undergo the trial of the case merely on the ground of the issue of process would be oppressive.
No person should be tried without a prima facie case.
The view taken by the High Court is untenable.
The appeal is accordingly allowed.
The order of the High Court is set aside.
V.P.R. Appeal allowed. [/INST] The appellant the Chief Editor of a leading daily newspaper was arrayed as an accused in the complaint case initated by the respondent no.2, an advocate, who was ag grieved by a news item published in the newspaper before the Additional Judicial Magistrate, sections 500 and 34 I.P.C.
The Magistrate issued summons to the accused appellant, who pleaded not guilty.
The appellant requested the Magis trate to drop the proceedings against him, before the evi dence was recorded, contending that there was no averment in the complaint that he had perused the material or edited before its publications or that it was published with his knowledge or consent.
The Magistrate dropped the proceedings against the appel lant.
The revision, moved by the complainant was allowed by the 365 High Court.
This appeal has been filed by special leave against the order Of the High Court.
Allowing the appeal, this Court, HELD: 1.
The power to drop proceedings against the accused cannot be denied to the Magistrate.
Section 204 of the Code indicates that the proceedings before the Magis trate commences upon taking cognizance of the offence and the issue of summons to the accused.
When the accused enters appearance in response to the summons, the Magistrate has to take proceedings under Chapter XX of the Code.
But the need to try the accused arises when there is allegation in the complaint that the accused has committed the crime.
, If there is no allegation in the complaint involving the ac cused in the commission of the crime, it is implied that the Magistrate has no jurisdiction to proceed against the ac cused.
[368 A C] 2.
It is open to the accused to plead before the Magis trate that the process against him ought not to have been issucd.
Magistrate may drop the proceedings if he is satis fied on reconsideration of the complaint that there is no offence for which the accused could be tried.
It is :his judicial discrction.
[368 C D] 3.
No specific provision required for the Magistrate to drop the proceedings or rescind the process.
The order issuing the process is an interim order: and not a judg ment.
It can be varied or recalled.
The fact that the process has already been issued is no bar to drop the proceedings if the complaint on the very face of its does not disclose any offence against the accused.
[368 D E] 4.
Section 7 of the Press and Registration of Books Act, 1867 has no applicability for a person who is simply named as 'Chief Editor '. 'The presumption under Section7 is only against the person whose name is printed as 'Editor ' as required under Section 5(1).
There is a mandato ry (though rebuttable) presumption that the person whose name is printed as 'editor ' is the editor of every portion of that issue of the newspaper of which a copy is produccd.
The Act does not recognize any: other legal entity for raising the presumption.
Even if the name of the Chief Editor is printed in the newspaper there is no Presumption against him under Section 7 of the Act.
[368 E G] 5.
No person should be tried without a prima ficie case.
For a Magistrate to take congnizance of the offence as against the Chief 366 Editor, there must be positive averments in the complaint of knowledge of the objectionable character of the matter.
The complaint in the instant case does not contain any such allegation.
In the absence of such allegation, the Magis trate was justified in directing that the complaint so far as it relates to the Chief Editor could not be proceeded with.
[369 B, A] State of Maharashtra vs Dr. R.B. Chowdhaty & Ors., ; ; D.P. Mishra vs Kamal Narain Sharma & Ors., [1971] 3 SCR 257; Nara Singh Charan Mohanty vs Suren dra Mohantv; , and Haji C.H.Mohammad Koya vs T.K. S.M.A.Muthukoya, ; , referred to. </s> |
<s>[INST] Summarize the following judgement: ICTION: Civil Appeal No. 3197 98 of 1988.
From the Judgment and Order dated 4.4.1988 of the Calcutta High Court in Appeal Nos. 16 and 438 of 1986.
P.P. Rao, M.K. Ramamurthy, S.S. Ray, Raj Kumar Gupta, V.J. Francis, N.M. PopIi, S.K. Nandy, P.K. Dutta and A.D. Sikri for the appearing parties.
The Judgment of the Court was delivered by RANGANATH MISRA, CJ.
I have had the advantage of perus ing the draft judgments prepared by my learned brethren Punchhi and Ramaswamy, JJ.
While Justice Punchhi has gone by the literal construction of the statute, brother Ramaswamy has tried to find out the spirit of the legislation and with a view to conferring the benefit on the workmen, has adopted a construction different from the reported decision of this ) Court.
I agree with Justice Punchhi that the appeals should be dismissed and the judgment of the Division Bench should be sustained.
At the same time, 1 would like to add that the legislative intention should have been brought out more clearly by undertaking appropriate legislation once this Court took a different view in the decision referred to in brother Punchhi 's judgment.
The legislation is beneficial and if by interpretation put by the Court the intention is not properly brought out it becomes a matter for the legi siatture to attend to.
PUNCHHI, J.
The sole question which falls for determi nation in these appeals is, whether on the facts found, the right of the Principal employer to reject or accept work on completion, on scrutinizing compliance with job require ments, as accomplished by a contractor, the immediate em ployer, through his employees.
is in itself an effective and meaningful "supervision" as envisaged under Section 2(9) of the , 19,;8 (,for short the Act)? The said provision, as it stood at the relevant time, is set out below, as is relevant for our purpose: "2(.9 ') 'employee ' means any person em ployed for wages in or in connection with the work of a factory or establishment to which this Act applies and (i) who is directly employed by the principal employer on any work of, or inciden tal or preliminary to or connected 279 with the work of, the factory or establish ment, whether such work is done by the employ ee in the factory or establishment or else where; or (ii) who is employed by or through an immediate employer on the premises of the factory or establishment or under the supervi sion of the principal employer or his agent on work which is ordinarily part of the work of the factory or establishment or which is preliminary to the work carried on in or incidental to the purpose of the factory or establishment; or (iii) whose services are temporarily lent or let on hire to the principal employer by the person with whom the person whose services are so lent or let on hire has entered into a contract of service; The Calcutta Electricity Supply Corporation (India) Ltd., hereinafter referred to as the C.E.S.C. engages var ious contractors to carry out work of excavation, conversion of overhead electric lines and laying of underground cables under public roads, as well as for repair and maintenance of the aforesaid works.
Subhash Chandra Bose & some others, the private respondents herein, were given such contracts, terms and conditions in respect of each were reduced to writing.
They would be adverted to at the appropriate time common as they are to all.
The C.E.S.C. was on notice alerted by the Regional Director of the Employees State Insurance Corpora tion (for short 'E.S.I.C. ') by means of communication dated 26August,1975 that the employees whose wages were being paid through such a contractor would fall within the scope of Section 2(9) of the Act and for reasons and details men tioned in the communication.
Thereupon the C.E.S.C. on its part engaged in correspondence with the Association of Electrical Contractors of Eastern India, a representative body of the contractors who are parties respondents herein, requiring them to comply with the provisions of the said Act immediately or else it will deduct a lumpsum of 7% from their bills.
The Association questioned the move and strong ly refuted such obligation.
After indulging in some corre spondence on the subject, the C.E.S.C. started making deduc tions from their bills on account of contribution to the Employees State Insurance Fund on and from 1984 and contin ued deducting till 1985 at the rate of 10%.
Some more corre spondence ensued, but in vain.
The electrical contractors then moved the High Court of Calcutta on December 6, 1985 by means of a writ petition under Article 226 of the Constitution against the E.S.I.C. and its officers as also the C.E.S.C. as 280 well as the Union of India so as to have the entire basis of the demand and deductions from bills annulled.
It was the categoric stand of the writ petitioners that for carrying out their contracts they were not supervised by the C.E.S.C., the principal employer, and they were carrying out works allotted to them at sites outside the factory estab lishment of the C.E.S.C.
Claiming that there employees did not come within the definition of the; term 'employee ' in Section 2(9) of the Act, they required of the High Court to determine this jurisdictional fact and issue the asked for writ, direction or order appropriate in the case to have it nipped in the bud.
The matter was enter`ained by the High Court and was heard on affidavits.
The dispute necessarily centred round as to whether the C.E.S.C. exercised any supervision while the contracts were being executed, and as to whether the terms thereof, assuming that they were faith fully observed.
amounted to work being carried out under the supervision and gaze of the C.E.S.C.
The respective parties put in supportive affidavits to their respective stands.
A learned Single Judge of the High Court, when seized of the matter, on March 23, 1984, passed an interim order, giving leave to the C.E.S.C. to respond to the notice issued by the E.S.I.C. and avail of the opportunity of being heard.
as required by law, and till then stayed the realisation of the contribution.
The matter was then thrashed by the Regional Director of the E.S.I.C., who on March 30, 1985, passed an order under Section 45 A of the Act holding that the C.E.S.C. was liable to pay Rs. 16,21,564.05 on account of contribution to the Employees State Insurance in respect of employees of its contractors and askedil to pay the same within the time allotted.
This order of the Regional Direc tor of the E.S.I.C. gave legitimacy to the deductions from the bills of the private electrical contractors already made by the C.E.S.C.
But sinceil was otherwise aggrieved of the foisting of the obligation, it moved another writ petition of its own under Article 226 of the Constitution against the E.S.I.C. and others claiming that it was not obliged to demand contributions on account of insurance in: respect of the employees of the electrical contractors.
These two writ petitions were beard together and were dismissed by a learned Single Judge of the High Court on January 11, 1986.
The learned Single Judge construed the contracts between the electrical contractors and ire C.S.E.C., whereunder the contractors were obliged to super vise on their own the work undertaken, so as to held that in the facts and circumstances of the case the ultimate super vision was that of the E.S.I.C.,and hence the Act was ap plicable.
The learned Single Judge also took the view that the Act being a beneficial piece of legislation, enacted for the protection and benefit of workers, required liberal interepretation, as was held by this Court in M.G. Beedi Works vs Union of India, AIR 1974 SC 1952, and then proceed ed to hold that the contractors as supervisors were in the nature of agents of the C.E.S.C., the principal employer.
The learned 281 Single Judge also took the view that since ultimate energis ing of the transmission lines was invariably effected by the C.E.S.C. after proper checks were effected for laying of cables or other maintenance work, that step by itself was "supervision ' so as to attract the provisions of the Act.
Such finding was based on the fact that even though the agreement specified that work was to be done under the supervision of the electrical contractor the C.ES.C. re tained the ultimate power or supervision and in fact did supervise the work executed by the contractors.
It is then that the learned Single Judge abruptly come to the conclu sion that the principal employer could not escape the li ability for the works of his contractors, as the latter was acting as the agent of the principal, , 'red in sense contin ued the view of the Regional Director of the E.S.I.C. Two appeals were filed against the dismissal of the two writ petitions before the Division Bench of the High Court who, after re considering the matter, reversed the learned Single Judge, which has given cause for these appeals by special leave and the poser of the question mentioned at the outset.
Now it is noteworthy that the Regional Director of the E.S.I.C. drew deductions of facts in his impugned order dated March 30,1985 in this manner: "The job which is performed by these employees engaged through the contractors.
was princi pally maintenance and distribution of elec tricity generated by the C.E.S.C. and also consumers ' service.
It was conceded during the course of hearing that after the work entrust ed to such contractors was completed, it was subject to checking by C.E.S.C. for compliance with their job specifications and the work related to main business of the C.E.S.C.
It cannot therefore be argued that merely because such job was performed outside the factory premises as stated, it did not concern the C.E.S.C.
The definition of the term 'premises ' includes such work site where the job of the factory is being done.
1 cannot agree there fore with the argument that such .job was not done for the factory and/or that there was no supervision of the C.E.S.C. over such job.
It could not but be a fact that ( E. ,section C. was executing its own job through lite agency of the coontractors engaged by them.
The C.E.S.C 's contention that they have acted upon the guidelines as provided in the letter dated 26.8.75 does not hold good as the letter dated 26.8.75, Annexure E, issued by the Regional Director of E.S '.I. Corporation.
does not hold good as the said letter only con 282 tained broad guidelines regarding provisions of the E.S.I. Act and the truth has to be ascertained from the realities of the situa tion".
[underlining ours] In place thereof the Division Bench of the High Court taking stock of the admitted facts opined as follows: "There is no dispute that respondent no.4 (ESIC) is the principal employer in respect of the said work and that the appellants (elec trical contractors) are the immediate employ ers of the said employees in connection with the said work.
There is no dispute that the employees of the appellants are not directly employed by the respondent no.4 (ESlC).
There is also no dispute that the employees of the appellants (electrical contractors) do not carry out the aforesaid work either in the premises or the factory or establishment of respondent No. 4 (E.S.I.C.).
It is also not disputed that the work which is carried out by the employees of the appellants (electrical contractors) can be stated to be work ordi narily part of the work of the respondent no.4 (ESIC) or preliminary or incidental to such work.
The only dispute appears to be whether there is any supervision of the employees of the appellants (electrical contractors) by the respondent no.4 (E.S.I.C.) or its agents." [bracketing ours] Commenting on the impugned order of the Regional Director of the E.S.I.C. dated March 30, 1985 afore extract ed, the Division Bench observed as follows: "It has not been found by the respondent no.2 (Regional Director) as a fact that in carrying out the aforesaid work the employees of the appellants are under the supervision of the respondent no.4 or its agents.
All that has been found is that after the works which are entrusted to the appellants axe completed, the same are checked by the respondent no.4.
From the aforesaid it is obvious that it has not been found by the ESI Authorities that there is actual supervision by the respondent no.4 or its agents of the aforesaid works which are performed by the employees of the appellants.
All that has been found is that after the aforesaid work is completed the respondent no.4 checks the same.
In our view, checking of a work after the same is completed and super vision of the same while the same is being performed are entirely different.
Checking of a work after its completion is always done in every case by the person who ordered the same to be done so that the work 283 can be finally accepted and payment made therefor.
After the work is completed, a further checking cannot mean or imply any or any further supervision.
" Vehemently was it urged on behalf of the appellants that the High Court fell in error in giving a restricted meaning to the word 'supervision ' occurring in Section 2(9) of the Act and in taking out the final act of rejection or accept ance of work from the purview of that word.
Strong reliance was placed on a decision of this Court in Royal Talkies vs
E. S.I. C; , , to project that this Court has spelled out that the main aim of the Act was to insure all employees in factories or establishments against sickness and allied disabilities, but the funding.
to implement the policy of insurance was by contribution from the employers and the employees.
In the same breath it was observed that since the benefits belong to the employees and are intended to embrace as extensive a circle as is feasible, the social orientation, protective purpose and human coverage of the Act were important considerations in the statutory construc tion, more weighty than mere logomachy or grammatical nice ty.
Reliance also was placed on Regional Director, E.S.I.C, Trichur vs Ratnanuja Match Industries, in which it was ruled that beneficial legislation such as the Act is to receive a liberal interpretation.
The Court yet ruled that it could not travel beyond the scheme of the statute and extend the scope of it on pretext of extending statutory benefits to those not covered by the scheme of the statute.
The Act being not meant for universal converage, the negatives in the Act, one of them being that the Act did not apply to factories or establishments with less than 20 employees, was taken into account to rule that liberal construction would not go to hold a partner to be an employ ee as he would be a person who would not answer the defini tion.
A judgment of this Court in M/s. P.M. patel & Sons & Others vs Union of India & Ors., [1986] I SCC 32 rendered in the context of the Employees Provident Fund and Miscellane ous Provisions Act, 1952 was pressed into service on behalf of the appellants to contend that when rolled beedis, pre pared by the worker elsewhere, were placed for acceptance or rejection, conforming to the standards envisaged by the manufacturers, that in itself was held constituting an effective decree of supervision and control.
The benefit of the said Act was extended to beedi workers employed through contractors and the question arose whether such workers came within the definition of 'employee ' in Section 2(f) of the said Act.
The definition of the word 'employee ' provided that it shall include any person employed by or through a contractor, in or in connection with work of the establish ment, which words were held wide enough 284 to include work performed elsewhere than the factory itself, including the dwelling house of a home worker, as also that the manufacturing operation, simple as it was, performed by illiterate workers, young and old, subjecting to rejection and acceptance, was by itself an effective degree of super vision and control, establishing the relationship of master and servant.
In whatever manner the word 'employee ' under Section 2(9) be construed, liberally or restrictedly, the construc tion cannot go to the extent of ruling out the function and role of the immediate employer or obliterating the distance between the principal employer and the immediate employer.
In some situations he is the cut off.
He is the one who stumbles in the way of direct nexus being established, unless statutorily fictioned, between the employee and the principal employer.
He is the one who in a given situation is the principal employer to the employee, directly employed under him.
If the work by the employee is conducted under the immediate gaze or overseeing of the principal employer, or his agent, subject to other conditions as envisaged being fulfilled, he would be an employee for the purpose of sec tion 2(9).
Thus besides the question afore posed with regard to supervision of the principal employer the subsidiary question is whether instantly the contractual supervision exercised by the immediate employer (the electrical contrac tors) over his employee was exercised, on the terms of the contract, towards fulfilling a selfobligation or in dis charge of duty as an agent of the principal employer.
P.M Patel 's case can also be no help to interpret the word 'supervision ' herein.
The word as such is not found employed in Section 2(1) of The Employees Provident Fund and Miscellaneous Provisions Act, 1952 but found used in the text of the judgment.
It appears to have been used as a means to establish connection between the employer and the employee having regard to the nature of work performed.
But what has been done in Patel 's case cannot ipso facto be imported in the instant case since the word 'supervision ' in the textual context requires independent construction.
In the ordinary dictional sense "to supervise" means to direct or over see the performance or operation of an activity and to over see it, watch over and direct.
It is work under eye and gaze of someone who can immediately direct a corrective and tender advice.
In the textual sense 'supervision ' of the priucipal employer or his agent is on 'work ' at the places envisaged and the word 'work ' can neither be construed so broadly to be the final act of acceptance or rejection of work, nor so narrowly so as to be supervision at all times and at each and every step of the work.
A harmonious construction alone would help carry out the purpose of the Act.
which would mean moderating the two extremes.
When the 285 employee 'is put to work under the eye and gaze of the prin cipal employer, or his agent, where he can be watched se cretly, accidently, or occasionally, while the work is in progress, so as to scrutinise the quality thereof and to detect faults therein, as also put to timely remedial meas ures by directions given, finally leading to the .satisfac tory completion and acceptance of the work, that would in our view be supervision for the purposes of Section 2(9) of the Act.
It is the consistency of vigil, the proverbial 'a stitch in time saves nine '.
The standards of vigil would of course depend on the facts of each case.
Now this function, the principal employer, no doubt can delegate to his agent who in the eye of law is his second self, i.e., a substitute of the principal employer.
The immediate employer, instant ly, the electrical contractors, can by statutorily compul sion never be the agent of the principal employer.
If such a relationship is permitted to be established it would not only obliterate the distinction between the two, but would violate the provisions of the Act as well as the contractual principle that a contractor and a contractee cannot be the same person.
The E.S.I.C. claims establishment of such agency on the terms of the contract, a relationship express or implied.
But, as is evident, the creation or deduction of such relationship throws one towards the statutory scheme of keeping distinct the concept of the principle and immediate employer, because of diverse and distinct roles.
The defini tion is well drawn in Halsbury 's Laws of England (Hailsham Edition) Vol. 1 at page 193 as follows: "An agent is to be distinguished on the one hand from a servant, and on the other from an independent contractor.
A servant acts under the direct control and supervision of his master and is bound to conform to all reasona ble orders given to him in this course of his work; an independent contractor, on the other hand, is entirely independent of any control or interference and merely undertakes to produce a specified result, employing his own means to produce that result.
An agent, though bound to exercise his authority in accordance with all lawful instructions which may be given to him from time to time by his princi pal, is not subject to its exercise to the direct control and supervision of the princi pal".
AND this statement of law was used with approval by this Court in ; titled as The .Superintendent of post Offices etc.
vs P.K. Rajamma etc.
Now coming to the subsidiary question the High Court took up one particular contract dated January 20,1984 be tween one of the electrical contractors and the C.E.S.C.
The material portion thereof is as follows: 286 "The said contract relates to laying of new undergound cables and conversion of overcad mains and service to underground system at Barrackpore Trunk Road between Paikpare Junc tion to D.F. 1/6 and from Baranagar P/T to D.FI/67.
Please note that you will have to provide competent supervision while carrying out the work in accordance with the provisions of the Indian Electricity Rules, 1956.
You will also have to provide adequate watch and ward ar rangement for the safe custody of the materi als till such time and complete installation is handed over to us.
You will be required to insure against theft and pilferage of all materials while held in your site godown".
The obligation embodied, as is plain, is for the elec trical contractor to provide competent supervision while carrying out the work.
The electrical contractor is other wise a licensee under the Indian Electricity Act and the Rules made thereunder and the conditions of his licence read as follows: "Mr./Messrs.
Eastern Engineers & Constructions is/are hereby authorised to carry out electri cal installation work in the State of West Bengal.
This licence is issued subject to the compliance with the conditions set out on the reverse, and also to the continued compliance with the conditions set out in Regulation 24 of the Regulations under Rule 45(,1) of the Indian Electricity Rules, 1956.
(1) All electrical installation work coming within the purview of Rule 45 (1) of the Indian Electricity Rules, 1956 undertaken by the holder of this licence, shall be car ried out under the direct supervision of a person holding a valid certificate of compe tency. (2) The holder of this licence shall maintain a register of supervision and workmen in the form below and shall produce the regis ter for inspection on demand by an Electrical Inspector or other person authorised in this behalf the Licensing Board.
(3) On the completion of any electrical installation work coming within purview of rule 45(1) of the Indian Electricity Rules, 1956, a test report in the form prescribed by the Board shall be submitted by the holder of this licence to the Secretary.
The report shall be signed by the supervisor under whose supervision the work has been carried out, 287 and countersigned by the holder of this li cence, who shall be wholly responsible for the due execution of the work.
(4) If the holder of this licence ceases to be in possession of a valid supervisor 's certificate of competency, ceases to retain in his said employment at least one supervisor holding valid certificate of competency, this licence shall be invalid.
(5) If the holder of this licence accepts an employment under any other firm or person for the purpose of carrying out or supervising any electrical installation work coming within the purview of rule 45(1) of the Indian Elec tricity Rules, 1956 this licence shall be invalid and the holder shall return the same to the Secretary for cancellation.
The terms and conditions of the licence postulate the licensee to carry out the installation work of the kind mentioned under the direct supervision of a person holding a valid certificate of competency.
For that purpose the licen see shall maintain a register of supervision.
Such register is open to inspection on demand by an electrical inspector or other person authorised in this behalf by the Licensing Board.
On completion of the installation work of the kind mentioned, a test report shall be submitted by the licensee to the Secretary, which report shall first be signed by the supervisor under whose supervision the work had been carried out and then countersigned by the licensee who shall be wholly responsible for the due execution of the work.
The licence further enjoins the licensee either to retain a valid supervisory certificate of competency or keep one such person retained in his employment failing which the licence can be invalidated.
Same is the position if the licensee accepts employment under any other firm or person for the purpose of carrying out or supervision any electrical in stallation work of the kind mentioned.
In that situation, the license is to be returned to the Secretary for cancella tion.
On the conjoint reading of the contract with the C.E.S.C. and the terms and conditions of the licence, assum ing the terms were to be faithfully obeyed, could it other wise be held that the C.E.S.C. could appoint the electrical contractor as its agent to have the work carried out under the latter 's supervision, in place of C.E.S.C.
As is evi dent, the contract relates to laying of new underground cables, conversion of overhead mains and service and mainte nance to the underground system.
The work being highly sophisticated in nature, requiring special skill and exper tise, is given by the C.E.S.C. to the contractor on the condition that the latter will have to provide competent supervision while the work progresses, in ac 288 cordance with the provisions of the Indian Electricity Rules, 1956, which, in the larger interest of the electrical network and community and its safeguards, require an elec trical contractor obtaining a licence to carry out electri cal installation work of the kind mentioned.
Then the Rules obligate him to take in his services a person holding a valid certificate of competency under whose direct supervi sion the work is required to be carried out, and on comple tion its final report being first signed by the supervisor supervising the work and then countersiged by the holder of the licence, who will be responsible for the due execution of the work.
The licence is capable of being rendered in valid or liable for cancellation due to nonemployment of a supervisor given in the terms and conditions.
Even if, the terms of the contract and the terms and conditions of the licence, the first being at the behest of the C.E.S.C and the second being at the behest of the Government of West Bengal, be suggested to be complementing each other, still these cannot be so interplayed to mean that an agency, express or implied, has been created by the C.E.S.C. in favour of the electrical contrator appointing him to super vise work as envisaged under Section 2(9) of the Act, and thus to have established a direct link between the employee and the C.E.S.C. to the exclusion of the electrical contrac tor.
Section 182 of the defines "agent" as a person employed to d3 any act or to represent another in dealing with third person, the person for whom such act is done, or is so represented is called the "prin cipal".
Section 184 of the said Act further provides that as between principal and the third person any person may become an agent so as to be responsible to his principal.
Now it is to be understood that the agent has an identity distinct from his principal in one sense and a fictional identity with his principal in the other.
The agreement nowhere amalgamates the identity of the electrical contractor with that of the principal (C.E.S.C) by undertaking to provide adequate supervision for the purposes of the Act, on behalf of the C.E.S.C.
The agreement no doubt provides that the electrical contractor would provide adequate supervision while carrying on with the work, the purpose dominant is to safeguard obtaining quality work and safety safeguards, and to conform to the provisions of the Electricity Supply Act.
To the Division Bench of the High Court it was obvious that the Regional Director of the E.S.I.C. had nowhere found that there was actual supervision, either by the C.E.S.C or its duly appointed agents, over works which were performed by the employees of the electrical contractors.
All that has been found is that the said works on completion were checked by the C.E.S.C. and then accepted.
Checking of work after the same is completed and supervision of work while in progress is not the same.
These have different perceptions.
Checking 289 of work on its completion is an activity, the purpose of which is to finally accept or reject the work, on the touch stone of job specifications.
Thereafter, if accepted, it has to be paid for.
Undisputably electrical contractors had to be paid on the acceptance of the work.
This step by no means is Supervision exercised.
Neither can it be the terminating point of an agency when the interests of the so called principal and the so called agent become business like.
Besides, the High Court has found that the work done by employees was under the exclusive supervision of the elec trical contractors or competent supervisors engaged by them trader the terms of the contract and the licence.
By neces sary implication supervision by the C.E.S.C. or its agents stood excluded.
Supervision rested with persons holding valid certificates of competency for which a register of supervision was required under the licence to be maintained.
Under the contracts, the electrical contractors cannot in one breath be termed as agents of the C.E.S.C., undertaking supervision of the work of their employees and innately under the licence to have beforehand delegated that function to the holder of the certificate of competency.
Thus we hold that on the terms of the contract read with or without the terms of the licence, no such agency, factually or legally, stood created on behalf of the C.E.S.C. in favour of the electrical contractors, and none could be, as 'hat would violate the statutory scheme of distinction well marked under Section 2(a) of the Act.
The supervision taken was to fulfil a contractual obligation simplicitor and we leave it at the level.
Thus on both counts, the principal question as well as the subsidiary question must be answered against the ESIC holding that the employees of the electrical contractors, on facts and cricumstances, established before the Division Bench of the High Court, do not come in the grip of the Act and thus all demands made towards ESI contribution made against the C.E.S.C. and the electrical contractors were invalid.
We affirm the view of the High Court in that re gard.
The appeals are accordingly dismissed.
In the circum stances, however, we make no order as to costs.
K. RAMASWAMY, J. From the midst of personal warmth 1 am enjoying with my learned brethren, I have to cool off from the discomfortable breeze generated by the draft judgment of brother Punchhi, J., given my anxious reflections of its consequences and with due respect, 1 express my inability to fail in line with.
The 34 of 1948 (for short 'the Act ') seeks to serve the twin objects namely, social security i.e. medical 290 benefits in case of sickness, maternity and employment injury and other matters relating thereto and to augment the efficient performance of the duty.
The respondents (immedi ate employers) had contracts with the Calcutta Electricity Corporation (India) Ltd. (for short 'the Corporation '), the Principal employer, to carry out excavation, erection of overhead electric lines and laying of underground cables beneath public roads as well as their repairs and mainte nance.
The Act enjoins the employer to contribute his 50% share towards medical reimbursement with a proportionate cut from the wages of the employees and to debit it to the Employees ' State Insurance Corporation fund to render medi cal assistance etc.
to the employees.
In consequence there would be cut, to the extent of 10% or as may be specified from time to time, in the "profit packet" of the immediate employers.
For some time, it was complied with but late assailed their liability under article 226 of the Constitution.
The conflagration of the claims between the immediate em ployers and their employees gave rise to the lis.
The imme diate employers arming themselves with independent contrac tor 's clout summon the services of the "gramarian" and tells him that "our contracts with the Corporation are bilateral untramelled by routine supervision or agency with the Corpo ration under section 2(9) of the Act and tell us whether your "golden rule" does not apply to us? Like Shylock, are we not entitled to prevent inroad into our profit pocket not even a farthing from minimal of 10%, though the workman may give us efficient service on receiving medical treatment ?" The employees request the social engineer to sharpen his foren sic skills of his instruments to provide them social secunty from health and occupational hazards fastering a part of the liability on the immediate employers whom they serve.
Wheth er the social engineer would avoid unjust result like Port jo 's judgment ? Whether the words in the contract would be masters by golden rules ? Whether the words "Supervision" or "agent" in s.2(9) of the Act would be so construed or adopt ed by purposive approach as to do what justice and equity required ? The result of the combat between the granmarian and the social engineer would provide the answer to these searching questions.
Before adverting to angle into their perceptions, it is of utility to keep abreast the brass facts that lie in a short compass.
The Corporation had from the State Govt.
Licensor, licence under s.3 of the Indian Electricity Act 9 of 1910 (for short the 'Electricity Act ') to generate, transmit and supply electrical energy to the consumers of the area.
The Corporation is enjoined to erect electric supply lines and also overhead lines, service lines, under ground cables through which energy is to be supplied to the either distributing main or immediately from the suppliers ' premises etc.
It entered into contracts with the respondents to lay undergound cables, to erect overhead lines, their repairs and maintenance and for execution thereof employed their own employees.
291 The Elecricity Act empowers the Corporation as licensee, under section 12 thereof, to open and break Up the soil etc.
and lay down electricity supply lines and other works, repair, alter or remove the same and do all other acts necessary for due supply of energy.
It also empowers under Sec. 13 to execute new works in compliance of that section.
Under Sec.
14 & 15 it is empowered alteration of the pipes or wires.
10 empowers a licensee to place any overhead lines along or across any street etc.
20 empowers the licen see or "any person duly authorised by a licensee" to enter upon any premises, at reasonable time on prior intimation to the occupier of any premises or land etc.
upon which the electricity supply line or other works have been lawfully placed for the purpose of (a) inspecting, testing, repairing or altering the electricity supply, lines meters, fittings, works and apparatus for the supply of energy belonging to the licensee etc.
Thus, the Corporation, as a licensee, is ordinarily and as an integral scheme, to execute the works or duly authorise on its behalf any other person to execute any of the works enumerated herinbefore or inspection, repair, testing or alteration of the works and maintenance thereof.
A conjoint reading of section section 3 (2) (b) of the Electricity Act and Clause (1) (a) of the Schedule shows that the licen see is required to show to the "satisfaction of the State Government that the Corporation is in a position to fully and efficiently discharge the duties and obligations imposed upon him by the licence throughout the area of the supply.
On its failure, the State Govt.
under section 4 (1) (c) (i) is entitled to revoke the licence.
In terms of section 15(1) "the duly authorised persons" of the licensee is to operate under the Act to lay new electric supply lines or other works etc.
Equally Clause V (1) of the Schedule provides to lay down distributing mains for public lighting of any street on a requisition made by two or more owners of occupiers of the premises.
The Indian Electricity Rules, 1956 (for short 'the Rules ') made under section 37 of the Electricity Act provides the procedure in this regard.
Rule 36 adumberates handling of electric supply lines.
apparatus.
only "by authorised per son" who is required to take safety measures "approved by the electrical Inspector", appointed under section 36 of the Electricity Act.
Sub rule (2) of Rule 36 provided thus: "No person shall work on any live electric supply line or apparatus and no person shall assist such person on such work, unless he is authorised in that behalf and takes the safety measures approved by the Inspector".
Rule 45 provides precautions to be taken by electrical workmen, suppliers etc.
Unless electrical contractor, li censed in this behalf by the 292 State Govt., appoints a person holding a certificate of competency and a permit in this behalf issued or recognised by the State Govt.
, the contractor shall not be entitled to undertake any installation work etc.
Rule 51 provides cer tain safety measures to be taken to the satisfaction of the Inspector so as to prevent danger.
Rule 64 requires an authorised person to carry out the acts mentioned therein subject to the supervision provided in Clause (b) thereof by the Electrical Inspector.
Rule 123(4) speaks of examination of flexible cables by authorised persons and Rule 125(8) enjoins that all apparatus to be operated only by those persons who are authorised for the purpose.
It could, thus, be seen that the Corporation as a licen see is empowered and enjoined to lay the works production, transmission and distribution of electrical energy to the consumers within the area of supply.
It is also authorised to entrust, any person authorised by it in this behalf, to perform the duties of the licensee under the Act and the Rules.
The contractor in turn appoint a qualified supervisor to have works executed and maintained or repaired, subject to inspection and supervision by the Electrical Inspector of the State Govt.
The primary duty and responsibility is that of the Corporation as the Principal employer to have the works etc.
executed, repaired and maintained through its employees.
It duty authorises the contractor to have these works done, repaired or maintained, on its behalf, though the media of contract.
The question emerges whether the respondents are not immediate employers executing the works etc.
under the supervision of the Principal empleyer or as its agents ? From the above backdrop of statutory operation, the scope of section 2(9) is to be gauged which reads thus: "2(9) 'employee ' means any person employed for wages in or in connection with the work of a factory or establishment to which this Act applies and (i) who is directly employed by the principal employer on any work of, or inciden tal or preliminary to or connected with the work of, the factory or establishment, whether such work is done by the employee in the factory or establishment or elswhere; or (ii) who is employed by or through an immediate employer on the premises of the factory or establishment or under the supervi sion of the principal employer or his agent on work which is ordinarily part of the work of the factory or establishment or which is preliminary to the work carried 293 on in or incidental to the purpose of the factory or establishment; or (iii) Whose services are temporarily lent or let on hire to the principal employer by the person with whom the person whose services are so lent or let on hire has entered into a contract of service .
" It encompasses employees employed for wages in or in connection with the work of a factory or establishment to which the Act applies (i) who are directly employed by the principal employer or (ii) employed by or through "an imme diate employers"; and whose services are temporarily lent or let on hire to the principal employer by the person with whom the person is entered into a contract of service.
Clause 2(9)(ii) (applicable to the facts on hand) in turn attracts a person employed by or through an immediate em ployer as an employee of the principal employer provided the following conditions are satisfied, namely, (1) the immedi ate employer employs an employee on the premises of the factory or establishment of the principal employer; (2) "or under the supervision of the principal employer"; (3) this agent on work which is ordinarily part of the work of the factory or establishment or which is preliminary to the work carried out in or incidental to the purpose of the factory or establishment.
Clauses (i) and (iii) of section 2(9) are inapplicable to the facts.
Article 25(2) of Universal Declaration of Human Rights, 1948 assures that everyone has the right to a standard of living adequate for the health and well being of himself and of his family . including medical care, sickness, disa bility . . ,article 7(b) of the International Convention on Economic, Social and Cultural Rights, 1966 recognises the right of everyone to the enjoyment of just and favourable conditions of work which ensure, in particular, safe and healthy work ing conditions.
Article 39(e) of the Constitution enjoins the State to direct its policies to secure the health and strength of workers.
The right to social justice is a funda mental right.
Right to livelihood springs from the right to life guaranteed under Art.21.
The health and strength of a worker is an integral fact of right to life.
The aim of fundamental rights is to create an egalitarian society to free all citizens from coercion or restrictions by society and to make liberty available for all.
Right to human digni ty, development of personality, social protection, right to rest and leisure as fundamental human rights to common man mean nothing more than the status without means.
To the tillers to the soil, wage earners, labourers, wood cutters, rickshaw pullers, scavengers and hut dwellers the civil and political right are 'mere cosmetic ' rights.
Socio economic and cultural rights are their means and relevant to them to realise the basic aspirations of meaningful right to life.
The Universal Declaration of Human Rights, International Conventions of Economic, 294 Social and Cultural Rights recognise their needs which include right to food, clothing, housing, education, right to work, leizure, fair wages, decent working conditions, social security, right to physical or mental health, protec tion or their families as integral part of the right to life.
Our Constitution in the Preamble and Part IV reinforce them compendiously as socioeconomic justice, a bed rock to an egalitarian social order.
The right to social and econom ic justice is thus fundamental right.
In World Labour Report 2, at Chapter 9 (Safety and Health) it is stated that "in every three minutes somewhere in the world one worker dies and in every second that passes at least three workers are injured".
In India on an average every day 1100 workers are injured and three are killed "in industrial establishments" vide (Lawyer Oct. 1987 page 5).
In 26th I L.O. Convention held in Philadephia in April 1944, recommendation No. 69 laid down norms for medical care for workers.
In October 1943, the Government of India appointed Health Survey and Development Committee known as Sir Joseph Bhore Committee which laid emphasis on "Preventive Schemes".
I.L.O. Asian Regional Conference held in Delhi in 3947, resolved that in very scheme for medical care in any Asian country the need for the prevention of disease and the improvement of the general standard of health must be con sidered as of almost importance.
The Act had culminated in its birth of these recommendations providing in a limited area social security to the employees from health and occu pational hazards.
The term health implies more than an absence of sick ness.
Medical care and health facilities not only protect against sickness but also ensures stable man power for economic development.
Facilities of health and medical care generate devotion and dedication to give the workers ' best, physically as well as mentally, in productivity.
It enables the worker to enjoy the fruit of his labour, to keep him physically fit and mentally alert for leading a successful economic, social and cultural life.
The medical facilities are, therefore, part of social security and like gilt edged security, it would yield immediate return in the increased production or at any rate reduce absentecism on grounds of sickness, etc.
Health is thus a state of complete physical, mental and social well being and not merely the absence of disease or infirmity.
In the light of articles 22 to 25 of the Universal Declaration of Human Rights, International Conven tion on Economic, Social and Cultural Rights, and in the light of socio economic justice assured in our Constitution, right to health is a fundamental hUman right to workmen.
The maintenance of health is a most imperative constitutional goal whose realisation requires interaction by many social and economic factors.
Just and favourable condition of work implies to ensure 295 safe and healthy working conditions to the workmen.
The periodical medical treatment invigorates the health of the workmen and harnesses their human resources.
Prevention of occupational disabilities generates devotion and dedication to duty and enthuse the workmen to render efficient service which is a valuable asset for greater productivity to the employer and national production to the State.
Yet in the report of the Committee on Labour Welfare, 1969 in paragraph 5.
77of Chapter 5, reveals that, private employers generally feel that this burden shall not be cast upon them.
" The Act aims at relieving the employees from health and occupational hazards.
The interpretation calls for in this case is of the meaning of the meanings 'supervision ' and 'agent ' in s.2(9) (ii) of the Act.
The legal interpretations is not an activity sui generis.
The purpose of the enactment is the touch stone of interpretation and every effort would be to give effect to it.
The judge acts as a vehicle of communication between the authors and the recipients.
The end result is to promote rule of law and to enliven social order and humane relations.
In Senior Electric Inspector & Others vs Laxmi Narayan Chopra & Ors., ; at p. 156, K. Subba Rao, J. (as he then was) for unanimous Court held thus: "In a modern progressive society it would be unreasonable to confine the intention of a Legislature to the meaning attributable to the word used at the time the law was made, for a modern Legislature making laws to govern a society which is fast moving must be presumed to be aware of an enlarged meaning the same concept might attract with the march of time and with the revolutionary changes brought about in social, economic, political and scientific and other fields of human activity.
Indeed, unless a contrary intention appears, an interpretation should be given to the words used to take in new facts and situations, if the words are capable of comprehending them." In M. Pentiah & Ors.
vs Muddala Veermallappa & Ors., ; at p. 313 in a separate but concurrent judgment, Sarkar, J. held "Where the language of a statue, in its ordi nary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconven 296 ience or absurdity, hardship or injustice, presumably not intended, a construction may be but upon it which modifies the meaning of the word, and even the structure of the sentence".
This court approved the ratio in Seaford Court Estates Ltd. vs
Asher, at 164, Denning, L.J. who said, "When a defect appears a judge cannot simply fold his hands and blame the draftsman.
He must set to work on the constructive task of finding the intention of Parliament . and then he must supplement the written word so as to give "force and life" to the inten tions of the legislature . .
A judge should ask himself the question how, if the makers of the Act had themselves come across 'his ruck in the texure of it, they would have straightened it out ? He must then do as they would have done.
A judge must not alter the material of which the Act is woven, but he can and should iron out the creases".
I conceive it my duty, therefore, so read the new Act, unless I am prevented by the intrac tability of the language used, as to make it carry out the obvious intention of the legis lature".
In Massachusetts Bonding & Insurance Co. vs United States of America, ; ed 2d 189; Frankfurther, J., speaking per himself, joined by Reed, Clark, and Brennan, JJ.
held at headnotes 8 & 9 thus: "On more than one occasion, but evidently not frequently enough, Judge Learned Hand has warned against restricting the mean of a statute to the meaning of its "plain" words.
"There is no surer way to misread any document than to read it literally. " Of course one begins with the words of a statute to ascer tain its meaning, but one does not end with them.
The notion that the plain meaning of the words of a statute defines the meaning of the statute reminds one of T.H. Huxley 's gray observation that at times "a theory survives long after its brains are knocked out.
" One would suppose that this particular theory of statutory construction had had its brains knocked out in Boston Sand & Gravel C.v.
United States; , , 48; , , 177; , The words of this legisla tion are as plain as the Court finds them to be only if the 1947 amendment is read in misleading isolation.
An amendment is not a repeal.
An amendment is part of the legisla tion it amends.
The 1947 amendment to the Federal Tort Claims Act of 1946 must be read to harmonise with the central purpose of the original 297 Act.
The central purpose of the original Act was to allow recovery against the United States on the basis and to the extent of recoveries for like torts committed by private tortfeasors in the State in which the act or omission giving rise to the claim against the United States occurred.
The 1947 amendment filled the gap, a very small gap, that was disclosed in the scheme formulated by the 1946 Act".
In Atma Ram Mittal vs Ishwar Singh Punia, ; , this Court held that the purpose of interpretation in a social amelioration legislation is an imperative irrespec tive of anything else.
It was further held that the con tents, subject matter, the effects and consequences or the spirit and reason of the law shall be taken into account.
The words must be construed with the imagination "of purpose behind them".
(emphasis supplied) Therefore, in an attempt to construe the provisions of the statute construction, as a balancing wheel, should be meaningful so as to make the statute workable and not to render it futile or sterile.
Whenever strict interpretation of the statute gives ' rise to unjust situation or results, the Judges can ensure their good sense to remedy it by reading words in, if necessary, so as to do what Parliament would have done had they had the situation in mind.
The meaning of the same words in a statute may be mended in the laborynth of interpretation and may be enlarged or restrict ed in order to harmonise them with the legislative intention of the entire statute.
The spirit of the statute would prevail over the literal meaning.
The jurisprudence and principle, therefore, in such a situation, would be the contextual interpretation to subserve the constitutional scheme and to alongate the legislative purpose, harmonising the individual interest with the community good so as to effectuate social transformation envisioned in the preamble of the Constitution.
Let me, therefore, consider the arebit of the word 'supervision ' under s.2(9) (ii) of the Act.
In Webster Comprehensive Dictionary (International Edition) the word 'supervision ' has been defined at page 1260 in Vol.
II as "authority to direct or supervise", supervise means have a "general oversight of '.
"In Corpus Juris Secundum", Vol 83 at page 900 it is stated that The word "supervision" is not of the precise import and when not limited by the context is broad enough to cover more than one subject.
It implies oversight and direction, and does not necessarily exclude the doing of all manual labour, but may properly include the taking of an active part in the work".
"Supervision" is defined as meaning "the 298 act of overseeing or supervising; having general oversight of, especially as an officer vested with authority; inspec tion; oversight; superintendence.
" The Words and Phrases, Permanent Edition, Vol.
40A defines that the "Supervision" means oversight, an act of occupation of supervision; in spection.
"Supervision" is an act of overseeing or supervi sion; having general oversight of, especially as an officer vested with authority; inspection; oversight; superintend ence, "Control" is the act of superintending; care and foresight for purpose of directing and with authority to direct; power or authority to check or restrain; restraining or directing influence; regulating power.
Contract of em ployment to "supervise" construction of power plant, steam distribution system held to require time and attention to work needed to see that it was properly and promptly done, regardless of number of hours spent there on.
The word "supervision" is not one of precise import and is broad enough to require either supervisor 's constant presence during work supervised or his devotion thereto if only time necessary to see that it complies with contract specifications, advise as to details, prepare necessary sketches and drawings, etc.
In Owen vs Evans & Owen (Buuilders) Ltd., [1962] 1 Weekly Law Reports 933 the Court of Appeal was called upon to consider the meaning of the words "immediate supervision" under Building (Safety, Health and Welfare) Regulations, 1948.
Whether the presence of the supervisor is necessary at all times? It was held No. Ormerod, L.J. held that in each case the question must be decided how much supervision is re quired in the circumstance of the case being considered? If every move was fraught with danger, then clearly supervision of the most constant kind would be demanded, and the super visor must be there all the time.
On the other hand, there may be certain parts of the work, if not the Whole of it, which do not give rise to any foreseeable danger, and in those circumstances it may well be that the intention of the regulation is that supervision need not be so strict.
Up john, L.J., as he then was, while agreeing held that the real question is whether there was a supervision for the purposes of the regulation and was that a proper or adequate supervision? The regulations are formulated for the protec tion of the workman, but, at the same time, they must be given a practical effect.
The degree of supervision must entirely depend upon the task, and it cannot mean that there must always be a constant supervision throughout.
There may be times during a demolition failing within regulation 79(5) where a particular operation is a dangerous one.
That cannot always be avoided, and it may be that the danger is such that the supervisor must give a constant supervision during that time.
But there will be other times where the particu lar operation is a simple one, involving no danger to a building labourer.
Then the supervisor may properly go away and perform other tasks.
He may answer to the telephone or supervise other groups.
All depends on the fact of each case.
299 In Regional Director, E.S.I.C vs South India Flour Mills (P) Ltd. , this Court held that the defintion of the term 'employee ' under s.2(9) of the Employ ees ' State Insurance Act, 1948 is "very wide and includes within it any person employed on any work incidental or preliminary to or connected with the work of a factory or establishment".
Any work that is conducive to the work of the factory or establishment or that is necessary for the augmentation of the work of the factory or establishment will be incidental or preliminary to or connected within the work of the factory or establishment.
The casual employees shall also be brought within it and held that they are entitled to the benefits under the Act.
The casual labour employed to construct additional buildings for expansion of the factory were held to be employees under the Act.
It was also held that the Act is a piece of social security legis lation enacted to provide for certain benefits to the em ployees in case of sickness, etc.
It was further held that the endeavour of the Court should be to interpret the provi sions liberally in favour of the persons for whose benefits the enactment has been made.
This Court upheld the view taken by A.P., Karnataka and Punjab and Haryana High Courts in A. P. State Electricity Board vs Employee 's State Insur ance Corporation, Hyderabad, AP; Regional Director, Bangalore vs Davangere Cotton Mills, and E.S.I.C, Chandigarh vs Oswal Woolien Mills Ltd., & H) (F.B.).
that casual employees are employees within the meaning of the term "employee" defined in s.2(9) of the Act.
In Birohichand Sharma vs First Civil Judge, Nagpur & Ors., ; this Court considered whether the piece rate worker is a worker within the meaning of s.2(1) of the .
The facts found were that there was no fixed hours.
They made payment to the work done at piece rate.
It was open to the workmen to absent from work without leave.
They were not given any specific work, but the management had "the right to reject" (emphasis supplied) the Bidis prepared by them, if the Bidis do not come upto the proper standard.
On those facts, it was held "the right of rejection is a supervision" connecting the work and the employment.
Accordingly it was held them to be workmen.
The same ratio was followed in D.C. Dewan Mohideen Sahib & Sons vs The Industrial Tribunal Madras.
, ; In Nagpur Electric Light & Power Co. Ltd. vs Regional Director, E.S.I.C [1967] 3 SCR Reprint 92 the employees employed outside the factory or establishment as Cable Jointer.
Mistri, Lineman, Coolies and Vanman for inspection of lines, digging the pits, erection, distribution and service . line were held to be employees within the meaning of s.2(9) (i) of the Act, In Kirloskar Pneumatic Co. Ltd. vs Employees ' State Insur ance Cor 300 poration, a division Bench of the Bombay High Court, speaking through my learned brother P.B. Sawant, J., as he then was, also took the same view and held that the employees engaged for repairs, site clearing, construc tion of buildings, etc.
of the principal employer are em ployees within the meaning of s.2.(9) of the Act.
In Royal Talkies, Hvderabad & Ors.
vs Employees State Insurance Corporation, ; interpreting s.2(9) (ii) of the Act, this Court held that the Cycle Stand or Canteen are for better amenities to the customers and improvements of busi ness in Cinema.
The appellant, as the owner, leased out the Cycle Stand and Canteen under instrument of leases to the contractors, who employed their own employees to run the Canteen and the Cycle Stand.
It was held that vis a vis the employees of the Contractors, the cinema owner was held to be the principal employer.
It was further held that it is enough if the employee does some work which is ancilliary, incidental or has relevance or linked with the job of the establishment, amenities or facilities to the cine goers has connection with the work of the establishment.
The employees of the Canteen and the Cycle Stand were held to have been employed in connection with the work of the establishment.
The case M/s P.M. Patel & Sons & Ors.
vs Union of India & Ors.
, ; though arose under the , the principle laid therein applies on all fours to the facts of the case.
The appellants therein were engaged in the manu facture and sale of Bidis.
The work of rolling Bidis was entrusted to the contractors who in turn got the work pre pared at workers homes, after obtaining materials either directly from the manufacturer or through the contractors.
The contractors treated the workers as their own employees and get their work done at the workers ' premises or contrac tors ' premises.
It was contended that the workers engaged by the contractors were not their workmen under that Act.
This Court by a Bench of three Judges negatived their contention and held that in the context of conditions and the circum stances in which the home workers or manufacturer go about their work including receiving of raw materials, rolling of Bidis at home and delivering them to the manufacturer sub ject to the right of rejection, there is sufficient evidence of the requisite "degree of control and supervision" for establishing relationship of master and servant between the manufacturer and the home workers.
This ratio does support the conclusion that a connecting link between the finished product and the work of the establishment is sufficient; neither the manner of actual performance of the duties decisive nor the actual control or the supervision of the work a material ingredient.
Incidental connection with the ultimate business activities of the manufacturers and right to rejection is the con 301 trol and would be the balancing wheel to attract the provi sions therein.
The extended purposive construction was applied to give effect to the social security provided under the Employees Provident Fund , 'red Miscellaneous Provisions Act, 1952.
In Superintendent of post Office vs P.K, Rajamma, [1977] 3SCR 678 the question was whether the extra departmental agents serving in Post and Telegraph Department were agents or held civil post within the meaning of article 31112) of the Constitution.
This Court while holding that they held civil post attracting Art.311(2) of the Constitution approved the passage from Halsbury 's Laws of England (Hailsham edition) of the distinction between agents, servants or independent contractors.
The contractual relation therein inter se does not apply to the tacts of this case.
The Act does not give its own definition of the word "supervision".
Therefore, it must be construed in the con text the ultimate purpose the Act aims to serve and the object behind the Act, i.e. to extend sickness benefits and to relieve the employee from occupational hazards consistent with the constitutional and human rights scheme.
Under the Electricity Act and the Rules, the Corporation, licencee, is enjoined to performthe acts and duties contemplated thereun der to lay overhead lines, underground cables, their repairs and maintenance thereof, etc.
It authorised, under the contract, the immediate employer to perform, on its behalf, those acts and duties.
The immediate employer would get the work done through their employees employed for that purpose.
It is not a sporadic work but a constant and on going proc ess, so long as the licencee generates, transmits and sup plies electrical energy to the consumers of their supply area.
Had the principal employer performed those acts and duties through its employees, indisputably.
their employees would be covered under the Act, though the work was got done at highways or at places other than the factory or the establishment.
When the principal employer authorises the respondents as its contractors under contracts the need for constant supervi sion is obviated relegating that function to its immediate employers.
Otherwise the need for contracts would be redun dant.
The Corporation retained, under the contract, the power of acceptance or rejection of the work done or super vision effected in maintenance of the work got done by the immediate employer, subject to over all supervision by the Electrical Inspector, on behalf of the State Government.
The supervision in the I,act situation is not the day to day supervision but legal control, i.e. right to accept or reject the work done or maintenance effected.
The exercise of right of acceptance or rejection is the supervision as envisaged in the contract between the principal employer and the immediate employer.
It would supply the needed unifying or connecting 302 thread between the constitutional creed of social justice i.e. social security under the Act and supervision of the acts or duties by the principal employer vis a vis the employees of the immediate employer under the contract who ultimately perform them on behalf of the principal employer.
Undoubtedly in a bilateral contract between the corporation and the respondents qua their rights and liabilities under the contracts, strict interpretation of the words engrafted therein, be of paramount relevance and call for attention as per Contract Act.
But in the context of the statutory inter pretation of "supervision" under the Act of the works under taken under the contract, the interest of the workmen or the welfare schemes for the employees under the Act interposed and call attention to and need primacy.
In its construction the courts must adopt contextual approach to effectuate the statutory animation, namely, social security.
The literal interpretation would feed injustice in perpetuity denying to the employees of sickness benefit etc.
under the Act which should be avoided, lest the purpose of the Act would be frustrated.
The contention that the respondents being independent contractors are not agents of the licencee, corporation, is also devoid of force.
It is seen that under sections 15 & 20 etc.
and the relevant rules the authorisation given by the corpo ration through the media of the contracts enabled the re spondents to step into its shoes to do the acts or perform the duties under the Electricity Act and Rules which are ordinarily of the Corporation.
The contract is an authorisa tion to do those acts on behalf of the principal employer.
The application of the golden rule to the word "agency" under the between the respondents and the corporation, perhaps, does not encompass agency in strict sense under the Act.
But public policy of the Act, the constitutional and human right 's philosophy to provide social security to protect the health and strength of the workers must be kept at the back of the mind to construe the word "agent" under s.2(9) (ii) of the Act, in contra dis tinction with the bilateral stipulations under the contract.
In this regard public policy interposes and plays a vital role to read into the contracts the extended meaning of agency to bring about connecting links between the respond ents and the licencee corporation.
Lest the contract, if intended to deny welfare benefits to workmen, would be opposed to public policy and would become void under s.23 of the .
Such an intention would be avoided by reading into the contract the extended meaning of agency but not fiduciary.
Chitty on Contrac; is, 26th Edition, in paragraph 2502 at page 4 stated of the use of the terms agent and agency.
Some persons who describe themselves or are described by others as agents are not really such in any legal sense of 303 the word, but rather independent merchants, dealers, con sultants or intermediaries.
Others may be agents in the sense that they owe the internal duties of the agent to his principal (mainly the fiduciary duties) .
The substance of the matter prevails over the form and the use of the words "agent" or "agency ", or even a denial that they are applicable, is not conclusive that any particular type of relationship exists.
(emphasis supplied).
In A.G. Guest Anson 's Law of Contract.
26th Edition, at page308 it is stated that the application of cannons of 'public policy to particular instances necessarily varies with the progressive development of 'public opinion and morality, but, as Lord Wright has said extra judicially: Public policy like any other branch of the common law ought to be, and I think is, governed by the judicial use of precedents.
If it is said that rules of.
public policy have to be moulded to suit new conditions of a changing world, that is true; but the same is true of the principles of the common law generally. ' In Prenn vs Simmonds, 1971 (1) Weekly Law Reports 1381 (H.L.) Lord Wilberforce laid the rule that in construing a written agreement evidence of negotiations or of the par ties ' intentions ought not to be received by the court, and that evidence should be restricted to evidence of factual background known to the parties at or before the date of the contract, including evidence of the "genesis" and objective ly the "aim" of the transaction.
The contractors, respondents, knew at the date of the agreements that the Corporation, as Principal employer, is under statutory obligation to execute or keep executed the works and keep them repaired and mainrained as an integral activity of generation, transmission and distribution of the electrical energy to the consumers within their area of supply.
On authorisation, the respondents executed and kept executiug the works and repairs or kept them repaired and the maintenance thereof effected through their employees, which in law is on behalf of the Corporation, principal employer.
The genesis and aim of the transaction was to act on behalf of the Corporation.
The agency of the respondent with the Corporation, thus, springs into being.
The prohibi tion of the qualified supervisors, while in service of the respondents, to disengage themselves with third parties in terms of the contract was only to extract unstinted and exclusive devotion to duty and no further.
It stands as no impediment to construe that the respondents are agents to the Corporation as immediate employers.
Accordingly I hold that the employees working under the respondent perform their duties in execution of the works, repairs and maintenance thereof in connection with the generation, transmission and distribution of 304 the electrical energy by the Corporation ficensee.
The Corporation is the Principal employer The respondents imme diate employers execute the work etc.
under the supervision of the Corporation as its agents.
Their employees, in law, work under the supervision of the principal employer, corpo ration.
They are covered under s.2.(9) (ii) of the Act entitling them to the sickness benefits, etc.
envisaged therein.
and the respondents are liable to make their con tribution to the Employees Insurance Fund.
The appeals are accordingly allowed.
The writ appeal Nos. 16 & 438/86 and matter No.1650 of 1985 dated April 4, 1988 in the Calcutta High Court stand dismissed confirming the order of the learned single Judge dated December 11, 1986, but in the circumstances parties are directed to bear their own costs.
V.P.R. Appeals dis missed. [/INST] The appellant Corporation engaged the respondents con tractors to carry out work of excavation, conversion of over head electric lines and laying of underground cables under public roads and for repair and maintenance.
On 26.8.1975, the Regional Director of the Employees ' State Insurance Corporation noticed the appellant that the employees, whose wages were being paid through the respond ents contractors, would come under the provisions of Section 2(9) of the . 268 The appellant directed the representative body of the contractors respondents ' Association to comply with the provisions of the Act immediately, failing which a lumpsum of 7% would be deducted from their bills.
When the respond ents ' Association refused to carry out such obligation, the appellant started to deduct the E.S.I. contribution amount at the rate of 10% from their bills from 1984 and continued deducting till 1985.
The respondents contractors challenged the deductions from bills by filing a writ petition before the High Court, contending thai for carrying out their contracts, the re spondents were not supervised by the appellant, the princi pal employer and they were carrying out the allotted work under the contracts of sites outside the factory establish ment of the appellant and that the employees of the respond ents did not come within the definition of the term, 'em ployee ' under section 2(9) of the Act.
On 23.3.1984, the Single Judge of the High Court passed an interim order permitting the appellant to respond to the notice issued by the E.S.I.C. and staying the realisation of the E.S.I. contribution from the respondent contractors.
On 30.3.1985, under section 45 A of the Act, the Region al Director, E.S.I.C. held that the appellant was liable to pay the E.S.I. contribution in respect of the employees of its contractors and directed to pay the same.
The appellant challenged that order under Article 226 of the Constitution of India by filing another writ petition.
The Single Judge hearing both the writ petitions togeth er, dismissed them, holding that the ultimate supervision was that of the appellant and hence the Act was applicable.
Following the decision of this Court in M.G. Beedi Works case (AIR 1974 SC 1952), the Single Judge further held that the respondents contractors were agents of the appellant the principal employer, and that the appellant the principal employer could not escape the liability for the works of its agents the respondents contractors.
The Division Bench, in appeal, reversed the judgment of the Single Judge, against which the present appeals by special leave were made to this Court posing the question whether on the facts, the right of the principal employer to reject or accept work on 269 completion, on scrutinizing compliance with job require ments, as accomplished by a contractor, the immediate em ployer, through his employees, is in itself an effective and meaningful 'supervision ' as envisaged under section 2(9) of the E.S.I. Act, 1948?" The appellants contended that the High Court fell in error in giving a restricted meaning to the word, 'supervi sion ', occurring in section 2(9) of the Act and in taking out the final act of rejection or acceptance of work from the purview of that word.
Dismissing the appeals, this Court, HELD: Per Ranganath Misra, CJ. 1.
The legislative intention should have been brought out more clearly by undertaking appropriate legislation once this Court took a different view.
The legislation is benefi cial and if by interpretation put by the Court the intention is not properly brought out it becomes a matter for the legislature to attend to.
[278 E] Per M.M. Punchhi.
In whatever manner the word 'employee ' under Section 2(9) be construed, liberally or restrictidly, the construc tion cannot go to the extent of ruling out the function and role of the immediate employer or obliterating the distance between the principal employer and the immediate employer.
In some situations he is the cut off.
He is the one who stumbles in the way of direct nexus being established, unless statutorily fictioned, between the employee and the principal employer.
He is the one who in a given situation is the principal employer to the employee, directly employed under him.
If the work by the employee is conducted under the immediate gaze or overseeing of the principal employer, or his agent, subject to other conditions as envisaged being fulfilled, he would be an employee for the purpose of sec tion 2(9).
[284 B D] 2.
In the ordinary dictional sense "to supervise" means to direct or over see the performance or operation of an activity and to over see it, watch over and direct.
It is work under eye and gaze of someone, who can immediately direct a corrective and tender advice.
In the textual sense 'supervision ' of the principal employer or his agent is on 'work ' at the places envisaged and the word 'work ' can neither be construed so broadly to be the final act of 270 acceptance or rejection of work, nor so narrowly so as to be supervision at all times and at each and every step of the work.
A harmonious construction alone would help carry out the purpose of the Act, which would mean moderating the two extremes.
[284 G H] 3.
When the employee is put to work under the eye and gaze of the principal employer, or his agent, where he can be watched secretly, accidently, or occasionally, while the work is in progress, so as to Scrutinise the quality thereof and to detect faults therein, as also put to timely remedial measures by directions given, finally leading to the satis factory,completion and acceptance of the work, that would be supervision for the purposes of Section 2(9) of the Act.
It is the consistency of vigil, the proverbial 'a stich in time saves nine '.
The standards of vigil would of course depend on the facts of each case.
[284 H 285 B] 4.
Section 182 of the defines "agent" as a person employed to do any act or to represent another in dealing with third persons, the person for whom such act is done, or is so represented is called the "prin cipal".
Section 184 of the said Act further provides that as between Principal and the third person any person may become a, agent so as to be responsible to his principal.
[288 E] 5.
The agent has an identity distinct from his Princi pal in one sense and a fictional identity with his Principal in the other.
The agreement nowhere amalgamates the identity of the electrical contractor with that of the principal (C.E.S.C.) by undertaking to provide adequate supervision for the purposes of the Act, on behalf of the C.E.S.C.
The agreement no doubt provides that the electrical contractor would provide adequate supervision while carrying on with the work, the purpose dominant is to safeguard obtaining quality work and safety safeguards and to conform to the provisions of the Electricity Supply Act.
[288 E G] 6.
The creation or deduction of principal agent rela tionship throws one towards the statutory scheme of keeping distinct the concept of the principal and immediate employ er, because of diverse and distinct roles.
[285 D] 7.
The electrical contractor is obliged to provide competent supervision while carrying out the work.
The electrical contractor 271 is otherwise a licensee under the Indian Electricity Act and the Rules made thereunder.
[286 C] 8.
The principal employer can not delegate the function of supervision to his agent who in the eye of law is his second self, i.e., a substitute of the principal employer.
The immediate employer can by statutory compulsion never be the agent of the principal employer.
If such a relationship is permitted to be established, it would, not only obliter ate the distinction between the two, but would violate the provisions of the Act as well as the contractual principle that a contractor and a contractee cannot be the same per son.
[285 B C] 9.
Checking of work after the same is completed and supervision of work while in progress is not the same.
These have different perceptions.
Checking of work on its comple tion is an activity, the purpose of which is to finally accept or reject the work, on the touchstone of job specifi cations.
Thereafter if accepted, it has to be paid on the acceptance of the work.
This step by no means is supervision exercised.
It cannot be the terminating point of an agency when the interests of the so called principal and the so called agent become business like.
[288 H 289 B] 10.
Supervision rested with persons holding valid cer tificates of competency for which a register of supervision was required under the licence to be maintained.
[289 C] 11.
Under the contracts, the electrical contractors cannot in one breath be termed as agents of the C.E.S.C. undertaking supervision of the work of their employees and innately under the licence to have beforehand delegated that function to the holder of the certificate of competency.
[289 C D] 12.
Even if, the terms of the contract and the terms and conditions of the licence, the first being at the behest of the C.E.S.C. and the second being at the behest of the Government, be suggested to be complementing each other, still these cannot be so interplayed to mean that an agency, express or implied, has been created by the C.E.S.C. in favour of the electrical contractor appointing him to super vise work as envisaged under Section 2(9) of the Act, and thus to have established a direct link between the employee and the C.E.S.C. to the exclusion of the electrical contrac tor.
[288 C D] 13.
On the terms of the contract read with or without the terms of the licence, no such agency, factually or legally, stood ere 272 ated on behalf of the C.E.S.C. in favour of the electrical contractors, and none could be, as that would violate the statutory scheme of distinction well marked under Section 2(9) of the Act.
The supervision taken was to fulfil a contractual obligation simplicitor.
[289 D] 14.
The employees of the electrical contractors, on the facts and circumstances do not come in the grip of the Act and thus all demands made towards ESI contribution made against the C.E.S.C. and the electrical contractors were invalid.
[289 E F] M.G.
Beedi Works vs Union of lndia, AIR 1974 SC 1952; Royal Talkies vs E.S.I.C, ; ; Regional Director E.S.I.C. Trichur vs Ramanuja Match Industries, ; M/s. P.M. Patel & Sons & Others vs Union of India & Ors.
[1986]1 SCC 32; The Superintendent of Post Offices etc.
etc., vs
P.K. Rajamma etc.
; , , referred to.
Halsbury 's Laws of England (Hailsham Edition) Vol 1 at page 193, referred to.
Per K. Ramaswamy, J. (Dissenting) 1.
The seeks to serve the twin objects namely, social security, i.e., medi cal benefits in case of sickness, maternity and employment injury and other matters relating thereto and to augment the efficient performance of the duty.
[289 H 290 A] 2.
Section 2(9) of the Act encompasscs employees em ployed for wages in or in connection with the work of a factory or establishment to which the Act applies (i) who arc directly employed by the principal employer or (ii) employed by or through "an immediate employer"; and whose services are temporarily lent or let on hire to the princi pal employer by the person with whom the person is entered into a contract of service.
[293 B C] 3.
Clause 2(9)(ii) (applicable to the facts on hand) attracts a person employed by or through an immediate em ployer as an employee of the principal employer provided the f. flowing conditions are satisfied, namely, (1) the immedi ate employer employs an employee on the premises of the factory or establishment of the principal employer; (2) or "under the supervision of the principal employer".
(3) "his agent" on work which is ordinarily part of the 273 work of the factory or establishment or which is preliminary to the work carried out in or incidental to the purpose of the factory or establishment.
[293 C D] 4.
Article 39(2) of the Constitution enjoins the State to direct its policies to secure the health and strength of workers.
The right to social justice is a fundamental right.
Right to livelihood springs from the right to life guaran teed under article 21.
The health and strength of a worker is an integral facet of right to life.
The aim of fundamental rights is to create an egalitarian society to free all citizens from coercion or restrictions by society and to make liberty available for all.
Right to human dignity, development of personality, social protection, right to rest and leisure as fundamcntal human rights to common man mean nothing more than the status without means.
To the tillers of the soil, wage earners, labourers, wood cutters, rickshaw pullers, scavengers and hut dwellers, the civil and politi cal rights are 'mere cosmetic" rights.
Socio economic and cultural rights are their means and relevant to them to realise the basic aspirations of meaningful right to life.
[293 F H] 5.
The Universal Declaration of Human Rights, Interna tional Conventions of Economic, Social and Cultural Rights rccognise their needs which include right to food, clothing, housing, education, right to work, leizure, fair wages, decent working conditions, social security, right to physi cal or mental health, protection of their families as inte gral part of the right to life.
Our Constitution in the Preamble and Part IV reinforce them compendiously as social economic justice, a bed rock to an egalitarian social order.
The right to social and economic justice is thus fundamental right.
[293 H 294 B] 6.
The term 'health ' implies more than an absence of sickness.
Medical care and health facilities not only project against sickness but also ensures stable man power for economic development.
Facilities of health and medical care generate devotion and dedication to give the workers ' best, physically as well as mentally in productivity.
It enables the worker to enjoy the fruit of his labour, to keep him physically fit and mentally alert for leading a success ful, economic, social and cultural life.
The medical facili ties, arc thcrefore, part of social security and like gilt edged security, it would yield immediate return in the increased production or at any rate reduce absenteeism on grounds of sickness, etc.
health is thus a state of complete physical, menial and social well being and nut merely the absence of disease or infirmity.
[294 E G] 274 7.
Right to health is a fundamental human right to workmen.
The maintenance of health is a most imperative constitutional goal whose realisation requires interaction by many social and economic factors.
Just and favourable condition of work implies to ensure safe and healthy working conditions to the workmen.
The periodical medical treatment invigorates the health of the workmen and harnesses their human resources.
Prevention of occupational disabilities generates devotion and dedication to duty and enthuse the workmen to render efficient service which is a valuable asset for greater productivity to the employer and national production to the State.
[294 H 29S B] 8.The aims at relieving the employees from health and occupational hazards.
The interpretation calls for in this case is of the meaning of the meanings 'supervision ' and 'agent ' in s.2(9)(ii) of the Act.
The legal interpretation is not an activity sui gener is.
The purpose of the enactment is the touch stone of interpretation and every effort would be to give effect to it.
The judge acts as a vehicle of communication between the authors and the recipients.
The end result is to promote rule of law and to enliven social order and humane rela tions.
[295 C D] 9.
In an attempt to construe the provisions of the statute, construction, as a balancing wheel, should be meaningful so as to make the statute workable and not to render it futile or sterile.
Whenever strict interpretation of the statute gives rise to unjust situation or results, the Judges can ensure their good sense to remedy it by reading words in, if necessary, so as to do what Parliament would have done had they had the situation in mind.
The meaning of the same words in a statute may be mended in the laborynth of interpretation and may be enlarged or restrict ed in order to harmonise them with the legislative intention of the entire statute.
The spirit of the statute would prevail over the literal meaning.
The jurisprudence and principle, therefore, in such a situation, would be the contextual interpretation to subserve the constitutional scheme and to alongate the legislative purpose, harmonising the individual interest with the community good so as to effectuate social transformation envisioned in the preamble of the Constitution.
[297 D F] 10.
The word "supervision" is not one of precise import and is broad enough to require either supervisor 's constant presence during work supervised or his devotion thereto if only time necessary to see that it complies with contract specifications, advise as to details, prepare necessary sketches and drawings, etc.
[298 C] 275 11.
The does not give its own definition of the word "supervision".
Therefore, it must be construed in the context the ultimate purpose the Act aims to serve and the object behind the Act, i.e. to extend sickness benefits and to relieve the employee from occupa tional hazards consistent with the constitutional and human rights scheme.
Under the Electricity Act and the Rules, the Corporation, licencee, is enjoined to perform the acts and duties contemplated thereunder to lay overhead lines, under ground cables, their repairs and maintenance there of, etc.
It authorised, under the contract, the immediate employer to perform, on its behalf, those acts and duties.
The immediate employer would get the work done through their employees employed for that purpose.
It is not a sporadic work but a constant and an ongoing process, so long as the licencee generates, transmits and supplies electrical energy to the consumers of their supply area.
Had the principal employer performed those acts and duties through its employees, indisputably, their employees would be covered under the Act, though the work was got done at highways or at places other than the factory or the establishment.
When the prin cipal employer authorises the respondents as its contractors under contracts the need for constant supervision is obviat ed relegating that function to its immediate employers.
Otherwise the need for contracts would be redundant.
The Corporation retained, under the contract, the power of acceptance or rejection of the work done or supervision effected in maintenance of the work got done by the immedi ate employer, subject to overall supervision by the Electri cal Inspector, on behalf of the State Government.
The super vision in the fact situation is not the day to day supervi sion but legal control, i.e. right to accept or reject the work done or maintenance effected.
The exercise of right of acceptance or rejection is the supervision as envisaged in the contract between the principal employer and the immedi ate employer.
It would supply the needed unifying or con necting thread between the constitutional creed of social justice i.e., social security under the Act and supervision of the acts or duties by the principal employer vis a vis the employees of the immediate employer under the contract who ultimately perform them on behalf of the principal employer.
Undoubtedly in a bilateral contract between the corporation and the respondents qua their rights and liabil ities under the contracts, strict interpretation of the words cngrafted therein, be of paramount relevance and call for attention as per Contract Act.
[301 C 302 B] 12.
In the context of the statutory interpretation of "supervision" under the Act of the works undertaken under the contract, the 276 interest of the workmen or the welfare schemes for the employees under the Act interposed and call attention to and need primacy.
In its construction the courts must adopt contextual approach to effectuate the statutory animation, namely, social security.
The literal interpretation would feed injustice in perpetuity denying to the employees of sickness benefit etc.
under the Act, which would be avoided, lest the purpose of the Act would be frustrated.
[302 B C] 13.
The application of the golden rule to the word "agency" under the between the respond ents and the corporation, perhaps, does not encompass agency in strict sense under the Act.
But public policy of the Act, the constitutional and human right 's philosophy to provide social security to protect the health and strength of the workers must be kept at the back of the mind to construe the word "agent" under section 2 (9) (ii) of the Act, in contradis tinction with the bilateral stipulations under the contract.
In this regard public policy interposes and plays a vital role to read into the contracts the extended meaning of agency to bring about connecting links between the respond ents and the licencee corporation.
Lest the contract, if intended to deny welfare benefits to workmen, would be opposed to public ' policy and would become void under section 23 of the .
Such an intention would be avoided by reading into the contract the extended meaning of agency but not fiduciary.
[302 E G] 14.
The contractors, respondents, knew at the date of the agreements that the Corporation, as principal employer, is under statutory obligation to execute or keep executed the works and keep them repaired and maintained as an inte gral activity of generation, transmission and distribution of the electrical energy to the consumers within their area of supply.
On authorisation, the respondents execute and keep executed the works and repairs or kept them repaired and the maintenance thereof effected through their employ ees, which in law is on behalf of the Corporation, principal employer.
The genesis and aim of the transaction was to act on behalf of the Corporation.
The agency of the respondent with the Corporation, thus, springs into being.
The prohibi tion of the qualified supervisors, while in service of the respondents, to disengage themselves with third parties in terms of the contract was only to extract unstinted and exclusive devotion to duty and no further.
It stands no impediment to construe that/he respondents are agents to the Corporation as immediate employers.
[303 F H] 277 15.
The employees working under the respondents perform their duties in execution of the works, repairs and mainte nance thereof in connection with the generation, transmis sion and distribution of the electrical energy by the Corpo ration licensee.
The Corporation is the principal employer.
The respondents ' immediate employers execute the work etc.
under the supervision of the Corporation as its agents.
Their employees, in law, work under the supervision of the principal employer, corporation.
They are covered under s.2(9) (ii) of the Act entitling to the sickness benefits, etc.
envisaged therein and the respondents are liable to make their contribution to the Employees ' Insurance Fund.
[304 A B] Senior Electric Inspector & Ors.
vs Laxmi Naravan Chopra Muddala Veeramallapa & Ors., ; at p. 313; Massachusetts Bonding & Insurance Co. vs United States of America, ; , ; Atma Ram Mittal vs Ishwar Singh Punia, ; ; Owen vs Evans & Owen (Build ers) Ltd., 1962(1) Weekly Law Reports 933; Regional Direc tor, E.S.I.C vs South India Flour Mills (P) Ltd., ; A.P. State Electricitv Board vs
E.S.I.C, Hydera bad, ; Regional Director.
E.S.I.C, Bangalore vs Davangere Cotton Mills, ; E.S.I.C Chandigarh vs Oswal Woolien Mills Ltd., &H) (F.B.); Birohichand Sharma vs First Civil Judge, Nagpur & Ors., ; ; D.C Dewan Mohideen Sahib & Sons vs The Industrial Tribunal.
Madras, ; ; Nagpur Electric Light & Power Co. Ltd. vs Regional Director E.S.I.C, [1967] 3 SCR Reprint 92; Kirloskar, Pneu matic Co. Ltd. vs
E.S.I.C, ; Royal Talkies, Hyderabad & Ors.
E.S.I.C; , ; M/S. P.M. Patel & Sons & Ors.
vs Union of India & Ors.
, ; , Superintendent of Post Office vs
P.K. Rajamma; , ; Prenn vs Simmonds, 1971 (1) Weekly Law Reports 1381 (H.L.), referred to.
World Labour Report 2, at Chapter 9 (Safety and Health); Lawyer Oct. ; Report of the Committee on Labour Welfare, 1969 in paragraph 5.77 of Chapter 5; Webster Comprehensive Dictionary (International Edition) at page 1260, in Vol, 1I; Corpus Juris Secundum, Vol. 83 at page 900; The Words and Phrases.
Permanent Edition, Vol.
40A; Halsbury 's Laws of England (Hailsham Edition); Chitty on Contracts, 26th Edition, paragraph 2502 at page 4, A.G.Guest:Anson 's Law of Contract, 26th Edition, at page 308 referred to. </s> |
<s>[INST] Summarize the following judgement: Appeal Nos.4538 39 of 1991.
From the Judgment and Order dated 23.3.1990 of the Hyderabad High Court in C.C.A. Nos. 54 & 55 of 1987.
Ashok K.Gupta for the Appellant.
Ms. Suruchi Agrawal and T.V.S.N.Chari for the Respondents The Judgment of the Court was delivered by RANGANATH MISRA, CJ.
Special leave granted.
By notifica tion dated 12th January, 1973, under Section 4(1) of the Land Acquisition Act, 1894 as modifiednby Notification of 27th July, 1978, 26 acres and 26 gunthas of land located within the Hyderabad District was notified for acquisition for the Bhagyanagar Urban Development Authority.
A similar notification was published on 14th June, 1979 for acquisi tion of two acres and 29 gunthas.
The Land Acquisition Officer made his award for both the properties on 10 th June, 1982 fixing the market value at Rs. 42,000 per acre with five per cent deduction towards development cost.
Being dissatisfied with the awards passed by Land Acquisition Officer, a reference was sought and made under section 18 of the Act.
The Claimants demanded compensation at the rate of Rs. 200 per square yard.
The Civil Court fixed the market value at Rs.200 per sq.yd.
as demanded but directed deduc tion of 20 per cent towards development charges.
The Land Acquisition Officer carried appeals against the escalation of compensation and the present appellants preferred cross objections.
The High Court reassessed the entire evidence and came to hold.
"Today the position of the acquired lands is altogether different.
It is common knowledge that the prices started soaring high from 1980 onwards and this part of Hyderabad, namely, 377 Gaddiannaram started developing from 1980 and today it is undoubtedly one of the important areas in Hyderabad.
But we must consider the position as it stood in 1978 and 1979.
Taking all the circumstances into account, we think it reasonable to fix the market value at Rs. 3 lakhs per acre.
The Civil Court had given a deduction of 20 per cent towards development charges.
The learned Advocate General contended that deduction should be enhanced to 33 1/3 per cent.
We do not think that any interference is called for in this regard.
The lands are abutting the highway.
Evidence shows that there are roads on three sides.
Hence.
we maintain the deduction of 20 per cent and if so done, the market value comes to Rs.2,40,000 which works out at Rs. 50 per sq.yd.
The Trial Court has awarded Rs.200 per sq.yd with a deduction of 20 per cent which comes to Rs. 160 per sq.yd.
We are unable to sustain the order of the Court below on any justifiable grounds.
We accordingly set aside the judgment and decree and determine the market value at the rate of Rs.50 per sq.yd . " It is against this deduction in compensation that the claimants have come to this court in appeal.
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.
We find that the High Court did not go by the percentage of deduction.
In fact, according to the High Court and particu larly as the portion we have extracted above would show the appropriate market value per square yard was Rs. 50 and if a 20 per cent deduction from out of Rs. 3 lakhs per acre was accepted, it worked out that way.
The Judgment of the High Court gives us the impression that in fixing the compensa tion.
the High Court did not go by the percentage of deduc tion but kept in view the market value of the land at the time of the notification under section 4(1) of the Act.
There is clear material and the High Court has accepted it that price went up in the area after 1980.
The notifications are within a range of a year or two from that time.
There fore, the valuation after 1980 is not the guideline.
Having looked into the material accepted by the High Court, we are not in a position to disturb the finding recorded by the High Court.
The appeals are accordingly dismissed.
No costs.
R.P. Appeals dismissed. [/INST] 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] </s> |
<s>[INST] Summarize the following judgement: Special Leave Petition Nos.
16066.
16065 & 16451 of 1991.
From the Judgment and Order dated 28.8.1991,30.8.1991 & 9.10.1991 of the Punjab and Haryana High Court in C.W.P.Nos.
12644, 12485 and 14606 of 1991 respectively.
Kapil Sibal, Ranjit Kumar, J.D. Jain, Mrs. Kawaljit Kocher, Dr. Balram Gupta, Ms. Yasmin Tarapore, J. Lal Kai lash Vasdev, Ms Nandini Sawhney, R.K. Kapoor, A.A. Khan and Anil Verma for the appearing parties.
The following Order of the Court was delivered: In the Union Territory of Chandigarh, 5% of the seats are reserved in favour of sons/daughters/spouses of Mili tary/Para Military personnel.
Orders in this behalf are issued by the Administration in its memo dated 19th May, 1982 which were later modified in memo dated 6.9.1990.
In accordance with the said orders, Punjab Engineering College (a College run by the Chandigarh Administration and affili ated to Punjab University) reserved 15 seats in favour of sons/daughters/spouses of Military/ParaMilitary Personnel.
The College published a prospectus for the session 1991 92.
It contains inter alia the rules governing the admission of stu 326 dents to the said college.
So far as the reservation in favour of children and spouses of Military/Para Military Personnel is concerned, the rule, (printed at pages 23 and 24 of the Prospectus) reads as follows: "Sons/Daughters/Spouses of Military/Para military Personnel etc.
: 3 The Admission of the candidates against the reserved seats under this category will be made on the basis of merit list prepared according to the priorities given below in the descending order: 1.
Sons/Daughters/Spouses of defence personnel who are awardees of gallantry decorations of Paramvir/Mahavir/Vir Chakra in person or posthumously.
OR Sons/daughters/spouses of defence personnel and para military personnel like CRPF, BSF etc.
who are killed or are total incapacitated in action while in service and were wholly dependent on them.
Sons/daughters/spouses of defence person nel and para military personnel like CRPF/BSF etc.
who die while in service and were wholly dependent on them; 3.
Sons/daughters/spouses of defence per sonnel and para military personnel like CRPF/BSF incapacitated while in service and were wholly dependent on them; 4.
Sons/daughters/spouses of exservicemen (military and para military personnel like CRPF/BSF who are wholly dependent on them; 5.
Sons/daughters/spouses of serving de fence personnel and paramilitary personnel like CRPF/BSF who are wholly dependent on them: The candidates claiming admissions under the category 1 above are required to submit the photo copy of citation for the gallantry award, failing which the application will not be considered in this category, The candidates claiming admission under category I are required to submit a certificate from the respective Head quarters regarding death/total incapacitation in action while in service.
The candidates claiming admission under category 2 and 3 are required to submit a certificate from the respective Headquarters regarding death/total incapacitation.while in service.
327 The candidates claiming admission under category 4 are required to submit discharge certificate from sevice and certificate of dependence from the District Magistrate of the district concerned.
The candidates claiming admission under category 5 are required to submit the certificate of dependence from the unit in which parent/spouse is serving.
The candidates who apply for admission against this category will also be considered for admission against the seats allocated for Chandigarh/ General Pool to which they may belong as per their merit.
" A perusal of the rule shows that the five categories are mentioned in the order of priority in the descending order.
There is no allocation of seats as between these five cate gories.
It means that in the first instance, all the quali fied and eligible candidates falling in category 1 will be given admission and if any seats are left unfilled, quali fied candidates failing in category 2 will be admitted.
If there are any seats still left unfilled, qualified candi dates falling in category 3 will be given admission and so on.
In a given year, it may well happen that all the avail able seats reserved for children/spouses of defence person nel are taken away by the candidates in the first or first and second categories.
As a matter of fact, for the year 1990 91, only 6 candidates belonging to sub category 4 out of 90 candidates could be admitted and not the others and category 5 'went unprovided altogether.
It is stated that all candidates obtaining the specified minimum marks in the common entrance test were treated as qualified for being considered for admission.
S.L.P. 16066/91: The first respondent in the S.L.P. applied for admission to Punjab Engineering College under this quota.
He appeared in the common Entrance Test along with other applicants.
The College Authorities considered his case placing him in category 4 since his father was an Ex serviceman.
He could not, however, be given the admission because the 15 seats reserved for children and spouses of Military/ParaMilitary Personnel in this College were allo cated in the following manner: a.
There were three candidates falling in category 1 (i.e., children of Defence Person nel who are awardees of gallantry decoration, Paramvir Chakra/Mahavir Chakra, in person or posthumously).
All the three were given admis sion.
b. There were 5 candidates falling in catego ry 2.
They were admitted.
328 c. Only one candidate falling in category 3 appeared and was given the seat; d. There were 90 candidates failing in category 4.
But only 6 seats were available (nine seats having been taken away by sub categories a to c).
These six seats were allotted on the basis of inter se merit among the candidates failing in this category.
The first respondent being at a fairly lower position in this merit list could not be given the admission.
No seats were left for being allotted to candidates failing in category 5.
Finding that he has not been given admission in this Col lege, the first respondent filed a writ petition in the High Court of Punjab and Haryana being C.W.P. No.12644 of 1991.
His contention was that his father Major Kuldip Singh Malik was awarded Shaurya Chakra for acts of gallantry, that Shaurya Chakra is equivalent to Vir Chakra, in all respects and, therefore, his case ought to have been considered in category 1 and not in category 4.
He submitted that along with his application for admission he had enclosed a copy of the citation awarded by the President of India to his father showing that his father Major Kuldip Singh Malik was awarded Shaurya Chakra for displaying exemplary courage and leader ship in the course of his duties in the Mizo Hills.
He complained that two of the candidates admitted under catego ry 1 have received less marks than he.
The High Court has allowed the Writ Petition on the following reasoning: "According to Regulation 695 of the Defence Services Regulations relating to the Army, issued by the Ministry of Defence, Government of India, Shaurya Chakra is awardable for gallantry and comes after Ashoka Chakra and Kirti Chakra.
Further, according to Regulation 717, in order of precedence, this award of Shaurya Chakra is at number thirteen.
that is immediately below Vir Chakra and Param Vir Chakra is at number two and Maha Vir Chakra is at number seven.
Despite all this, the re spondents, while considering the candidature of the petitioner, did not grant him admission to the Bachelor of Engineering Course in the current session even though he was higher in academic merit as compared to respondent Nos. 3 and 4 who have been granted such admission.
In reply, the respondents have pleaded that no doubt the father of the petitioner was deco rated with Shaurya Chakra award in 329 1969, but it is gallantry award and is not strictly covered by the rules, regulations and the prospectus of the College, though it is admitted that both respondents Nos.3 and 4, who have been granted admission, were lower in merit than the petitioner, so far as the academic record is concerned.
After hearing the learned counsel for the parties, we find that the approach of the respondents in rejecting the candidature of the petitioner is neither legally correct nor just and fair.
However, as respondent Nos.3 and 4 who are lower in academic merit than the petitioner, happen to be the sons of the awardees of Vir Chakra and Maha Vir Chakra respectively, it would be unfair if the admis sion already granted to them by the Chandigarh Administration and the Punjab Engineering College, Chandigarh, is set aside.
Resultantly, we allow this petition and issue a direction to respondent Nos. 1 and 2 to admit the petitioner against the category of sons/daughters of awardees of gallantry deco rations, without disturbing the admission of respondents Nos.3 and 4.
In case no such seat is available for the petitioner, the respond ents shall create a seat for the purpose forthwith.
This shall also be deemed to be a direction to the Punjab University for accord ing necessary approval for the creation of the additional seat.
There shall be no order as to costs.
" The decision of the High Court was rendered on 28th August, 1991.
The present S.L.P. was filed in this court on 7th October, 1991.
In fact, it appears that having waited for one month and not having been admitted in the college in pursuance of the Judgment, the first respondent took pro ceedings for Contempt against the College Authorities.
The first respondent, was admitted in the college on 28th Octo ber, 1991.
It is now stated by his counsel that the first respondent has given up his seat in another college (Jamia Millia), on being admitted to this College.
The writ peti tion came up for final hearing before us on 15.11.1991.
We disposed of the SLPs on that day stating that reasons for our orders will be given today.
S.L.P. No. 16065/91 Respondents 1 and 2 in this S.L.P. also applied for admission to Punjab Engineering College as children of serving Defence Personnel.
They too appeared for the common Entrance Test along with other applicants.
Since the parents of the two respondents were serving Defence Personnel, their case was considered under category 5, As stated herein 330 before, no seats were left for being allocated to candidates falling in category 5.
Respondents I and 2 were, therefore, not given admission in this College whereupon they ap proached the Punjab and Haryana High Court by way of a writ petition being C.W.P. No. 12485 of 1991.
Their case was that the categorisation of Defence Personnel was unjust and unreasonable in as much as while the children and spouses of serving Defence Personnel are placed in category 5, children and spouses of Exserviceman are placed above them in catego ry 4.
According to the respondents.
children of serving Defence Personnel must be preferred over the children of Exservicemen.
In a short order, the High Court allowed the writ petition and directed 'that category 5 should be treated as category 4 and category 4 should be treated as category 5.
The Court directed that admissions for the current year (1991 1992) shall be made accordingly.
The order of High court is a short one and may be set out in its entirity: "After hearing the learned counsel for the parties and having gone through their plead ings, we are of the considered view that sub categories No. 1, 2 and 3 deserve to be re tained at their appropriate present places.
So far as sub categories No.4 and 5 i.e. relating to the sons, daughters and spouses of the exservice personnel ,as well as the sons, daughters and spouses of service Defence personnel are concerned, we find that the ends of justice would be adequately met and the object for which the reservation has been provided would be achieved if the sons, daugh ters and spouses of serving Defence personnel are placed at sub category No.4 i.e. above the category of Exservicemen.
This conclusion has been arrived at by us after considering the circumstances that the wards and spouses of serving Defence personnel are at a disadvan tage in the absence of their guardians serving at far off/distant places defending the coun try vis a vis who have retired from the mili tary and are now living with their wards.
Keeping these considerations in view, we dispose of this writ petition by issuing a direction to the respondent Union Territory Chandigarh and Principal, Punjab Engineering College, to go ahead with the admission of this reserved category.
Therefore, so far as such categories 1,2 and 3 are concerned, there shall not be any change.
However, we direct that so far as sub category No.4 is concerned, persons covered in this shall be considered at No. 5 and those covered in sub category 5 are concerned, shall be considered at No. 4.
The admission, which are going to be finalised tomorrow, shall not be made in accordance with these directions.
A copy of the order be supplied Dasti also to the learned counsel for the parties.
" 331 This order was made on 30th August, 1991 whereas the present SLP was filed in this Court on 7th October, 1991.
These respondents too took proceedings for contempt against the college for not implementing the direction of the High Court.
They were admitted on 28th October, 1991.
These respondents also say that on being admitted to this college they have given up their admission in other colleges.
This SLP was heard alongwith SLP.
No.16066 of 1991 on 15.11.91.
S.L.P. No. 16451 of 1991 This petition for Special Leave is directed against the order dated 9th October, 1991 passed by a Division Bench of the Punjab ,and Haryana High Court dismissing the writ petition filed by the petitioner.
The petitioner (writ petitioner) applied for admission to the Punjab Engineering College for the year 1991 92 under category 4 being the son of an Exserviceman.
By virtue of the directions given by the High Court in its order dated 30.8.1991 in C .W.P.
No. 12485 of 1991, category 4 became category 5 and category 5 became category 4 and admissions were being made on that basis.
The petitioner who fell in category 4 (,as per the prospectus of the College) and which was now converted to category 5 by virtue of the decision of the High Court aforesaid applied to the High Court to consider his case in category 4 itself and grant him admission.
His writ petition was dismissed by the High Court on 9th October, 1991 under a short order which reads thus: "Admissions are being done as per the direc tions issued in Civil Writ Petition No.12485 of 1991, decided by the Division Bench on August 30. 1991.
In view of the said decision, we do not find any merit in the contentions raised by the learned counsel for the peti tioner.
The Writ petitions dismissed.
A copy of this order be given dasti.
" The petitioner is in fact questioning the correctness of the directions given by the High Court in C.W.P.No.12485 of 1991 disposed of on August 30, 91.
Counsel for Chandigarh Administration and the College (petitioners in SLP 's 16066 and 16065 of 1991) contended that the High Court has exceeded its jurisdiction in grant ing the impugned directions.
He submitted that High Court, while exercising the writ jurisdiction conferred upon by Article 226 of the Constitution of India, does not sit as an Appellate Authority over the rule making authority nor can it re write the rules.
If the rule or any portion of it was found to be bad, the High Court could have struck it down and directed the rule making authority to re frame the 332 rule and make admissions on that basis but the High Court could not have either switched the categories or directed that Shaurya Chakra should be treated as equivalent to Vir Chakra By its directions, the High Court has completely upset the course of admissions under this reserved quota and has gravely affected the chances of candidates failing in category 4 by down grading them as category 5 without even hearing them.
These are good reasons for the categorisation done by the Administration which was adopted by the College.
He submitted that while Paramvir Chakra, Mahavir Chakra and Vir Chakra are awarded for gallantry in war, Ashok Chakra, Kirti Chakra and Shaurya Chakra are awarded for gallantry otherwise than in war.
Shaurya Chakra was awarded to the father of the first respondent in SLP.No.
16066 of 1991 for his gallant conduct in counter insurgency operations in Mizo Hills.
It was not a war.
He placed, before us, the true extract of order of precedence of awardees.
It reads thus: "TRUE EXTRACT OF ORDER OF PRECEDENCE OF AWARDS.
Order of Precedence of Awards The order of precedence of various awards is as follows: Bharat Ratna Param Vir Chakra Ashoka Chakra Padma Vibhushan Padma Bhushan Param Vishisht Seva Medal Maha Vir Chakra Kirti Chakra Padma Shri Sarvottam Jeevan Raksha Padak Ati Vishisht Seva Medal Vir Chakra Shaurya Chakra The President 's police and Fire Service Medal for gallantry.
Sena/Nao Sena/Vayu Sena Medal Vishisht Seva Medal The Police Medal for gallantry Uttam Jeevan Raksha Padak Wound Medal The General Service Medal 1947.
Samar Seva Star 1965 Poorvi Star Paschimi Star Raksha Medal 2965." 333 Counsel says that by its directions contained in the two orders impugned herein, the High Court has exercised a jurisdiction, which really did not belong to it.
We are inclined to agree with him.
Counsel for the petitioner in S.L.P.No.
16451 of 1991 supported the aforesaid arguments.
On the other hand, the counsel for respondents (writ petitioners in the High Court) in the first two SLPs.
sup iported the order of the High Court and submitted further that since the said respondents have given up their seats in other colleges and have been admitted in the Punjab Engi neering College any order throwing them out from the Punjab Engineering College, at this juncture would cause them irreparable prejudice.
They submitted that the Chandigarh Administration and the College authorities have been sleep ing over the matter until a contempt petition was filed and that they moved this Court only after they were summoned in the Contempt proceedings.
They should be held dis entitled to any relief on account of laches, submitted the counsel.
We are of the considered opinion that the orders of High Court are wholly unsustainable.
We shall consider both the directions separately.
Let us first consider SLP 16066 of 1991, arising from C.W.P. 12644/91.
The rule as framed by the Chandigarh Administration and as published by the College in its prospectus in the year 1991 92 placed in category I children and spouses of only those Defence Personnel who were awardees of gallantry decorations of Paramvir Chakra, Mahavir Chakra or Vir Chakra in person or posthumously.
It did not include Ashok Chakra, Kirti Chakra or Shaurya Chakra.
The validity of the rule was not expressly questioned before the High Court.
Assuming that it was so questioned and assuming that the High Court was satisfied that the rule was discriminatory and bad for the reason of not including Ashok Chakra etc., the only course open to it was to strike down the offending rule.
It could also have directed the authorities to reframe the rule and to make admissiions accordingly.
High Court however did not choose to do so.
It merely directed that since Shaurya Chakra is immediately below Vir Chakra in the order of precedence and since respondents 3 and 4 in the writ peti tion admitted under sub category I have obtained lesser marks than the writ petitioner, he should be given admission without disturbing the admission given to respondents 2 and 3 in that writ petition.
The entire reasoning of the High Court has been extracted by us herein above.
It shows that absolutely no reason is assigned for granting the said direction.
All that it says is that since Shaurya Chakra is also awardable for gallantry and is placed imme 334 diately below Vir Chakra, the writ petitioner should be granted admission.
If really the High Court was of the opinion that Shaurya Chakra is equivalent to Vir Chakra and should be treated on the same par as Vir Chakra then it should spelt out the position also of Ashok Chakra and Kirti Chakra.
which are above Shaurya Chakra.
According to the Rules notified children/spouses of Ashok Chakra, Kirti Chakra & Shaurya Chakra awardees did not fall under category 1 nor under categories 2 or 3.
They would fail under catego ry 4 or category 5, as the case may be, depending upon whether their parent/spouse was an ex service person or a serving person.
There may have been other candidates who are the children/spouses of Shaurya Chakra awardees and for that matter, Ashok chakra and Kirti Chakra awardees who may have obtained more marks than the writ petitioner (first respond ent in SLP 16066 of 1991) but who did not claim a seat under category 1 nor were considered as such.
They may not have stated the fact of their parent/spouse being a Ashok chakra/Kirli Chakra Shaurya Chakra awardee, nor filed the relevant citation, since it was not relevant as per the published Rules.
Had the proper course been followed, all of them could have applied properly and could have been consid ered.
By saying this we do not mean to say that the Rule is bad.
We do not mean to say so at all.
There may be good reasons for the Rule as published or there may not be.
That is not the issue.
What we are saying is that if the High Court was of the opinion that all the gallantry awar dees (including Ashok, Kirti and Shaurya Chakra) should be placed in category 1, it should have said so, struck down the category and, may be, directed reframing of rule and admissions made on that basis.
Coming to SLP 16065 of 1991, the position appears to been even worse.
Without assigning any reason the High Court has directed that category 4 should be made category 5 and category 5 should be made category 4.
In short, it has switched these two categories.
Again, we must say that if the High Court thought that this categorisation was discrim inatory and bad it ought to have struck down the categorisa tion to that extent and directed the authority to ' re frame the rule.
It would then have been open to the rule making authority either to merge these two categories or delete one or both of them, depending upon/he opinion they would have formed on a review of the situation.
We must make it clear again that we express no opinion on the question of validity or otherwise of the rule.
We are only saying that the High Court should not have indulged in the exercise of 'switch ing ' the categories, and that too without giving any reasons thereafter.
Thereby.
it has practicably assumed the rule of rulemaking authority, or.
at any rate, assumed the role of an Appellate Authority.
That is clearly not the function of the High Court acting under Article 226 of the Constitution of India.
Now, let us notice the implications and consequences of the said 'switching '.
335 By directing that category 4 should be treated as category 5 and conversely category 5 should be treated as category 4, the High Court has prejudicially affected the rights of candidates falling under category 4 without even hearing them.
It must be remembered that these categories are mentioned in the order of priority as emphasised herein before.
A rulemaking authority need not observe the rule of hearing, but the High Court exercising its judicial power cannot dispense with the requirement and that is precisely the grievance of the petitioner in S.L.P. 16451/91 arising from V.W.P. 14606 of 1991.
He was entitled to be considered under category 4 (as per the prospectus) whereas by virtue of the High Court 's order his category has become category 5, the result of which is that no seat may be left for his category, whereas the said category was entitled to some seats at least according to the Rules as framed and pub lished by the Administration and College.
Suffice is to say that the giving the said direction, while the admission were in progress, the situation has been confounded beyond re call.
Article 226 of the Constitution of India empowers the High Court to issue to any person or authority (including the government) directions, orders or writs including writs in the nature of Habeas Corpus, mandamus, Prohibition, quo warrants and certiorari, or any of them for the enforcement of any of the rights conferred by Part III and for any other purpose.
Though the Article itself does not contain any restric tive words, the Courts have, ever the years, evolved certain self constraints though, we are not bound by the procedural technicalities governing these high prorogative writs in English law.
As observed by a Constitution Bench in Bassappa vs Nagappa ; at 256: "In view of the express provisions in our Constitution we need not now look back to the early history or the procedural technicalities of these writs in English law, nor feel op pressed by any difference or change of opin ion, expressed in particular cases of English Judges.
We can make an order or issue a writ in the nature of certiorari in all appropriate cases and in appropriate manner, so long as we keep to the broad and fundamental princi ples that regulate the exercise of jurisdic tion in the matter of granting such writ in English law.
" While this is not the place to delve into or detail the self constraints to be observed by the Courts while exercis ing the jurisdiction under Article 226, one of them, which is relevant herein, is beyond dispute viz. while acting under Article 226, the High Court does not sit and/or act as an Appellate Authority over the orders/actions of the Subor dinate Authori 336 ties/Tribunals.
Its ' jurisdiction is supervisory in nature.
One of the main objectives of this jurisdiction is to keep the government and several other authorities and Tribunals within the bounds of their respective jurisdiction.
The High Court must ensure that while performing this function it does not overstep the well recognized bounds of its own jurisdiction.
Though we are satisfied that the orders and directions made by the High Court are totally unsupportable in law, the subsequent developments dissuade us from allowing these SLPs.
As stated above, the three respondents writ petition ers (first respondent in SLP.
16066/91 and respondents I and 2 in SLP.
16065/91) have been admitted into this college (Punjab Engineering College) on 28th October, 1991, where upon they have given up the seats which they had obtained in other colleges.
This statement of theirs is not disputed either by the Chandigarh Administration or the college authorities.
Depriving the said respondents of their admis sion in this college at this stage would result in grave and irreparable prejudice to them.
We think that the Administra tion and College authorities ought to have acted with more alacrity and approached this Court earlier than they did.
By the time, these SLPs were taken up by us and stay granted, the said respondents were already admitted into the College and, they say, they had given up their seats in the other colleges.
On this score alone, we decline to interfere with the orders in C.W .P. 12644/91 and 12485/91.
Now coming to SLP 16451 of 1991, the situation is this: By virtue of the orders of the High Court, three students who were not entitled to admission according to rules have been given admission against the three vacancies which had arisen since the finalization of the admissions.
The college authorities say that but for the orders of the High Court, these three vacancies would have gone to the first three candidates in the waiting list.
The petitioner in SLP 16451 of 1991 says that he is one such person in the waiting list and he would have obtained admission but for the admission given to the three candidates in pursuance of the High Court orders.
We do not know whether the petitioner 's case is true.
All the same, we think it appropriate to make the following direction: the college authorities shall create three more seats in the said course and admit the first three available students in the waiting list against those seats.
The Chandigarh Administration shall pass the neces sary orders in this behalf.
Action in terms of this direc tion shall be taken forthwith by the Chandigarh Administra tion and the college authorities.
Before we part with this case we wish to make an obser vation.
In matters of this nature where the High court directs students to be admitted in Educational Institutions.
it would be advisable if the High Court stays 337 the operation of its order for a period of about 3 to 4 weeks, if a request therefor is made by the Educational Institution or the State, as the case may be.
SLPs disposed of accordingly.
R.P. Petitions disposed of. [/INST] The Union Territory of Chandigarh, by its Memo dated 19.5.1982 as modifited by another Memo dated 6.9.1990, reserved 5% of seats for children/spouses of military/pars military personnel.
Pursuant thereto the Punjab Engineering College, reserved 15 seats for such candidates.
For the purpose of admission the college categorised in its prospec tus these candidates into 5 sub categories.
These belonging to the respective categories and obtaining qualifying marks in the entrance examination were to be admitted meritwise in the order of priority in descending order: sub category 1 consisted of children/spouses of defence personnel who were awardees of gallantry decorations of Paramvir/Mahavir/Vir Chakra in person or posthumously, or, dependent children/spouses of defence/pars military personnel who were killed or totally incapacitated in action while in service.
Dependent childern/spouses of defence/pars military person nel who died in service were put in sub category 2.
Subcate gory 3 comprised the dependent children/spouses of defence/pars military personnel incapacitated while in service, Dependent children/spouses of Ex servicemen (mili tary and pars military) were 323 placed in sub category 4; and those of serving defence/pars military personnel found place in sub category 5.
For the academic year 1991 92 out of the 15 seats, 9 seats went to all the 9 qualified candidates belonging to sub categories 1 to 3, and remaining seats were allotted to 6 candidates meritwise out of 90 qualified candidates be longing to sub category 4.
Sub category 5 went unprovided.
Respondent no.1 in SLP No.16066/91, who appeared in the entrance examination for the academic year 1991 92 but did not get admission, filed a writ petition before the High Court contending that his father was an awardee of 'Shaurya Chakra ' which was equivalent to Vir Chakra and therefore his case ought to have been considered in sub category 1.
On behalf of the College it was stated that 'Shaurya Chakra ' award was not covered under the rules and regulations and, therefore, respondent no.1, being the son of an Exservice man, could be considered only in sub category 4.
Respondents no.1 and 2 in SLP No.16065/91, the sons of the serving defence personnel, filed another writ petition before the High Court challenging the categorization of defence personnel as unreasonable and contended that chil dren of serving defence personnel should have been preferred over the children of Exserviceman.
The High Court allowed both the writ petitions and directed the College to admit all the three petitioners.
It ordered that subcategory 5 should be treated as sub category 4 and sub categery 4 should be treated as sub category 5, and the admissions should be made accordingly.
The petitioner in SLP No.16451/91, being the son of an serviceman, was initially entitled to be considered under sub category 4 which by the order of the High Court was converted into sub category 5.
He challenged the said con version of categories by yet another writ petition which was dismissed by the High Court.
The Chandigarh Administration and the College filed SLPs No.16066 and 16065 of 1991 against the orders of the High Court allowing the two writ petitions, whereas SLP No. 16451 of 1991 was filed by the petitioner in the third writ peti tion which was dismissed by the High Court.
324 It was contended on behalf of Chandigarh Administration and the College that the High Court exceeded its jurisdic tion in granting the impugned order in as much as in writ jurisdiction the High Court does not sit as an appellate authority over the rule making body nor can it re write the rules.
On 15.11.1991 the three Special Leave Petitions were dis posed of.
Giving reasons in support of its order dated 15.11.1991 this Court, HELD: 1.
While acting under Article 226 of the Constitu tion, the High Court does not sit and/or act as an appellate authority over the orders/actions of the subordinate author ities/tribunals.
Its jurisdiction is supervisory in nature.
[pp. 335 H; 336 A] One of the main objectives of this jurisdiction is to keep the government and several other authorities and tribu nals within the bounds of their respective jurisdiction.
The High Court must ensure that while performing this function it does not overstep the wellrecognised bounds of its own jurisdiction.
[p. 336 A] 2.1 In the instant case, the High Court should not have indulged in the exercise of 'switching ' the categories and that too without giving any reasons therefor.
Thereby, it has practicably assumed the role of rule making authority, or, at any rate, assumed the role of an appellate authority.
That is clearly not the function of the High Court acting under Article 226 of the Constitution of India.
334 G H1 2.2 If the High Court was satisfied that the rule was discriminatory and bad, the only course open to it was to strike down the offending rule.
It could also have directed the authorities to reframe the rule and make admissions accordingly.
[p. 333 F] By directing that category 4 should be treated as cate gory 5 and conversely category 5 should be treated as cate gory 4, the High Court has prejudicially affected the rights of candidates falling under category 4 without even hearing.them, particularly when these categories were men tioned in the order of priority.
[p. 335 A] 3.
A rule making authority need not observe the rule of hear 325 ing, but the High Court exercising its judicial power cannot dispense with the requirement.
[p. 335 AB] 4.
Although the orders and directions made by the High Court were totally unsupportable in law, yet, in view of the subsequent developments, the Special Leave Petitions could not be allowed.
By the time the SLPs were taken up and stay granted, the respondents were already admitted in the Col lege and they gave up their seats which they had obtained in other colleges.
Depriving them of their admission in the College at such a late stage would result in grave and irreparable prejudice to them.
The Administration and the College authorities ought to have acted with more alacrity and approached this court earlier than they did.
[p. 336 B D] 5.
In matters where the High Court directs the students to be admitted in educational institutions it would be advisable if the High Court stays the operation of its order for a period of about 3 to 4 weeks if a request therefor is made by the educational institution or the State as the case may be.
[pp. 336 GH; 337 A] </s> |
<s>[INST] Summarize the following judgement: (Civil) No. 1345 of 1989.
(Under Article 32 of the Constitution of India).
431 WITH WRIT PETITION (Civil) 1110/89, 869/90, 740/90, 1100/90, 194/91, 195/91, 265/90, 327/91, 337/91, 334/91, 333/91, 330/91, 329/91, 322/91, 432/91, 420/91, 431/91, 573/91, 181/91, 316/91, 381/91, 390/91, 238/91, 686/91, 687/91 & 167/91) R.K. Garg, R.K.Jain, Govind Mukhoty, Ved Prakash Gupta, Suresh Chand Garg, Ms. Bharti Sharma, Rani Chhabra, B.S. Chauhan, Gaurav Jain, N.K. Goel, D.B. Vohra, Ms. Abha Jain, Vijay Hansaria, A.K. Tiwari and C.K. Ratnaparkhi for the Petitioners.
Yogeshwar Prasad, Mrs. S.Dixit, G.V.Rao, A.V.Rangam, B.Parthasarthy and Ms. A. Subhashini for the Respondents.
The Judgment of the Court was delivered by KULDIP SINGH, J.
The liberalization for private sector operations in the Road Transport field under Section 80 and other provisions of The has been challenged in these bunch petitions under Article 32 of the Constitution, filed by the existing operators, primarily on the ground that they have been adversely affected in the exercise of their rights under Articles 14 and 19 of the Constitution of India.
It is necessary to notice the statutory provisions operating in the field of motor transport business prior to and after the coming into force of The (hereinafter called 'the Act ') The (hereinafter called 'the old Act was enacted and en forced with the object of having closer control to establish a coordinated system of transport.
The subject of 'Mechani cally Propelled Vehicles ' being in List Ill of the VIIth Schedule to the Constitution, various amendments were made from time to time by several State Legislatures either adding to or modifying the provisions of the old Act.
Chap ter IV of the old Act consisted of sections 42 to 68 provid ing "control of transport vehicles".
Sections 47 and 57, to the relevant extent, are re produced as under: "47.Procedure of Regional Transport Authority in considering application for stage carnage permit (1) A Regional Transport Authority shall, in considering an application for a stage carriage permit, have regard to the following matters, namely: (a) the interest of the public generally; (b) the advantages to the public of the serv ice to be provided, 432 including the saving of time likely to be effected thereby and any convenience arising from journeys not being broken; (c) the adequacy of other passenger transport services operating or likely to operate in the near future, whether by road or other means, between the places to be served: (d) the benefit to any particular locali ty or localities likely to be afforded by the service; (e) the operation by the applicant of other transport services, including those in respect of which applications from him for permits are pending; (f) the condition of the roads included in the proposed route or area, and shall also take into consideration any representations made by persons already pro viding passenger transport facilities by any means along or near the proposed route or area, or by any association representing persons interested in the provision of road transport facilities recognized in this behalf by the State Government, or by any local authority or police authority within Whose jurisdiction any part of the proposed route or area lies; . . . . (3) A Regional Transport Authority may, having regard to the matters mentioned in sub section (1), limit the number of stage carriages generally or of any specified type for which stage carriage permits may be granted in the region or in any specified area or on any specified route within the region.
Procedure in applying for and granting permits. (1) An application for a contract carriage permit or a private carrier 's permit may be made at any time.
(2) An application for a stage carriage permit or a public carrier 's permit shall be made not less than six weeks before the date on which it is desired that the permit shall take effect, or, if the Regional Transport Authori ty appoints dates for the receipt of such applications, on such dates.
(3) On receipt of an application for a stage carnage permit or a public carrier 's permit, the Regional Transport Authority shall make the application available for inspection at the office of the Authority and shall publish the application or the sub ' 433 stance thereof in the prescribed manner to gether with a notice of the date before which representation in connection therewith may be submitted and the date, not being less than thirty days from such publication, on which, and the time and place at which, the applica tion and any representations received will be considered: Provided that, if the grant of any permit in accordance with the application or with modi fications would have the effect of increasing the number of vehicles operating in the re gion, or in any area or any route within the region, under the class Of permits to which the application relates, beyond the limit fixed in that behalf under sub section (3) of Section 47 or sub section (2) of Section 55, as the case may be,, the Regional Transport Authority may summarily refuse the application without following the procedure laid down in this sub section.
The old Act was repealed by the Act which came into force on July 1, 1989.
The Statement of Objects and Reasons appended to the Act is re produced as under: "The (4 of 1939), consolidates and amends law relating to motor vehicleS.
This has been amended several times to keep it up to date.
The need was, however, felt that this Act should now inter alia, take into account also changes in the road trans port technology, pattern of passenger and freight movements, development of the road network in the country and particularly the improved techniques in the motor vehicles management.
Various Committees like National Transport Policy Committee, National Police Commission, Road Safety Committee, Low Powered Two wheel ers Committee, as also the Law Commission have gone into different aspects of road transport.
They have recommended updating, simplification and rationalisation of this law.
Several Members of Parliament have also urged for comprehensive review of the , to make it relevant to the modern day requirements.
A Working Group was, therefore, constitut ed in January, 1984 to review all the provi sions of the and to submit draft proposals for a comprehensive legislation to replace the existing Act.
This Working Group took into account the suggestion and recommendations earlier made by various bodies and institutions like Central Institute of Road 434 Transport Automotive Research Association of India, and other transport organisations including the manufacturers and the general public.
Besides, obtaining comments of State Governments on the recommendations of the Working Group, these were discussed in a specially convened meeting of Transport Minis ters of all States and Union Territories.
Some of the more important modifications so sug gested related for taking care of (a). . . . . (b). . . . . . (c) the greater flow of passenger and freight with the least impediments so that islands of isolation are not created leading to regional or local imbalances; (d). . . . . (e) simplification of procedure and policy liberalization for private sector operations in the road transport field; and (f). . . .
The proposed legislation has been prepared in the light of the above background.
Some of the more important provisions of the Bill provide for the following matters, namely: (a) to (f) . . . . . . (g) liberalized schemes for grant of stage carriage permits on non nationalized routes, all india tourist permits and also national permits for goods carriages. (h) to 1) . . . . .
Chapter V of the Act substitute for Chapter IV of the old Act consisting of Sections 66 to 96, provides for 'co ntrol of transport vehicles '.
Sections 71, 72 and 80, to the relevant extent, are reproduced as under: "71.Procedure of Regional Transport Authority in considering application for stage carriage permit.
(1) A Regional Transport Authority shall, while considering an application for a stage carriage permit, have regard to the objects of this Act: Provided that such permit for a route of fifty kilometers or less shall be granted only to an individual or a State transport undertaking.
435 (2) A Regional Transport Authority shall refuse to grant a stage carnage permit if it appears from any time table furnished that the provisions of this Act relating to the speed at which vehicles may be driven are likely to be contravened: Provided that before such refusal an opportunity shall be given to the applicant to amend the time table so as to conform to the said provisions.
(3)(a) The State Government shall, if so directed by the Central Government having regard to the number of vehicles, road condi tions and other relevant matters, by notifica tion in the Official Gazette, direct a State Transport Authority and a Regional Transport Authority to limit the number of stage car riages generally or of any specified type, as may be fixed and specified in the notifica tion, operating on city routes in towns with a population of not less than five lakhs. . . . (4) A Regional Transport Authority shall not grant more than five stage carriage permits to any individual or more than ten stage carriage permits to any company (not being a State transport undertaking).
(5) In computing the number of permits to be granted under sub section (4), the permits held by an applicant in the name of any other persons and the permits held by any company of which such applicant is a director shall also be taken into account.
Grant of stage carriage permits (1) Subject to the provisions of Section 71, a Regional Transport Authority may, on an appli cation made to it under Section 70, grant a stage carriage permit in accordance with the application or with such modifications as it deems fit or refuse to grant such a permit: Provided that no such permit shall be granted in respect of any route or area not specified in the application.
Procedure in applying for and granting permits, (1) An application for a permit of any kind may be made at any time.
(2) A Regional Transport Authority shall not ordinarily refuse to grant an application for permit of any kind made at any time under this Act: Provided that the Regional Transport Authority may summarily refuse the application if the grant of any permit in 436 accordance with the application would have the effect of increasing the number of stage carriages as fixed and specified in a notifi cation in the Official Gazette under clause (a) of sub section (3) of section 71 or of contract carriages as fixed and specified in a notification in the Official Gazette under clause (a) of sub section (3) of Section 74: Provided further that where a Regional Transport Authority refuses an application for the grant of a permit of any kind under this Act, it shall give to the applicant in writing its reasons for the refusal of the same and an opportunity of being heard in the matter.
" A comparative reading of the provisions of the Act and the old Act make it clear that the procedure for grant of permits under the Act has been liberalised to such an extent that an intended operator can get a permit for asking irre spective of the number of operators already in the field.
Under Sections 57 read with Section 47(1) of the old Act an application for a stage carnage permit was to be published and kept for inspection in the office of the Regional Trans port Authority so that the existing operators could file representations/objections against the said application.
The application, along with objections, was required to be decided in a quasi judicial manner, Section 47(3) of the old Act further permitted the imposition of limit on the grant of permits in any region, area or on a particular route.
It is thus obvious that the main features of Chapter IV "con trol of transport vehicles" under old Act were as under: 1.
The applications for grant of permits were published and were made available in the office of the Regional Transport Authority so that the existing operators could file repre sentations; 2.
The applications for grant of permits along with the representations were to be decided in quasi judicial manner; and 3.
The Regional Transport Authority was to decide the applications for grant of permits keeping in view the criteria laid down in section 47(1) and also keeping in view the limit fixed under Section 47(3) of the Act.
An application for grant of permit beyond the limited number fixed under Section 47(3) was to be rejected summarily.
The Parliament in its wisdom has completely effaced the above features.
The scheme envisaged under Section 47 and 57 of the old Act has been completely done away with by the Act.
The right of existing 437 operators to file objections and the provision to impose limit on the number of permits have been taken away.
There is no similar provision to that of Section 47 and Section 57 under the Act.
The Statement of Objects and Reasons of the Act shows that the purpose of bringing in the Act was to liberalize the grant of permits.
Section 71(1) of the Act provides that while considering an application for a stage carriage permit the Regional Transport Authority shall have regard to the objects of the Act.
Section 80(2), which is the harbinger of Liberalisation, provides that a Regional Transport Authority shall not ordinarily refuse to grant an application for permit of any kind made at any time under the Act.
There is no provision under the Act like that of Section 47(3) of the old Act and as such no limit for the grant of permits can be fixed under the Act.
There is, however, a provision under Section 71(3) (a) of the Act under which a limit can be fixed for the grant of permits in respect of the routes which are within a town having popula tion of more than five lakhs.
The petitioners are existing stage carnage operators on different routes.
They hold permits granted by the Regional Transport Authorities concerned.
Mithlesh Garg, petitioner in Civil Writ Petition No. 1345/89 has stated that he holds a stage carnage permit and plies his vehicles on the Meerut Parikshitgarh Hasifabad Laliana and allied routes under the jurisdiction of the Regional Transport Authority, Meerut.
According to him prior to the enforcement of the Act, 23 permit holders were operating on the said route but thereafter under Section 80 of the Act the Regional Trans port Authority, Meerut has issued 272 more permits in re spect of the same route.
Similar facts have been stated in the other writ petitions.
As mentioned above the petitioners are permit holders and are existing operators.
They are plying their vehicles on the routes assigned to them under the permits.
They are in the full enjoyment of their funda mental right guaranteed to them under Article 19(1)(g) of the Constitution of India.
There is no threat of any kind whatsoever from any authority to the enjoyment of their right to carry on the occupation of transport operators.
There is no complaint of infringement of any of their statu tory rights.
Their only effort is to stop the new operators from coming in the field as competitors.
We see no justifi cation in the petitioners ' stand.
More operators mean healthy competition and efficient transport system.
Over crowded buses, passengers standing in the aisle, persons clinging to the bus doors and even sitting on the roof top are some of the common sights in this country.
More often one finds a bus which has noisy engine, old upholstry, uncomfortable seats and continuous emission of black smoke from the exhaust pipe.
It is, therefore, necessary that there should be plenty of operators on every route to pro vide ample choice to the commuter public to board the vehi cle of their choice and patronize the operator who is 438 providing the best service.
Even otherwise the liberal policy is likely to help in the elimination of corruption and favouritism in the process of granting permits.
Re stricted licensing under the old Act led to the concentra tion of business in the hands of few persons thereby giving rise to a kind of monopoly, adversely affecting the public interest.
The apprehensions of the petitioners, that too many operators on a route are likely to affect adversely the interest of weaker section of the profession, is without any basis.
The transport business is bound to be ironed out ultimately by the rationale of demand and supply.
Cost of a vehicle being as it is the business requires huge invest ment.
The intending operators are likely to be conscious of the economics underlying the profession.
Only such number of vehicles would finally remain in operation on a particular route as are economically viable.
In any case the transport system in a state is meant for the benefit and convenience of the public.
The policy to grant permits Liberally under the Act is directed towards the said goal.
The petitioners who are already in the business want to keep the fresh entrants out of it and as such eliminate the healthy compe tition which is necessary to bring efficiency in the trade.
This Court in Jasbhai Desai vs Roshan Kumar & Ors., ; posed the following questions for its determina tion: "Whether the proprietor of a cinema theater holding a licence for exhibiting cinematograph films, is entitled to invoke the certiorari jurisdiction ex debito justitiae to get a 'No Objection Certificate ', granted under Rule 6 of the Bombay Cinema Rules, 1954 (for short, the Rules) by the District Magistrate in favour of a rival in the trade, brought up and quashed on the ground that it suffers from a defect of jurisdiction, is the principal question that falls to be determined in this appeal by special leave.
" Sarkaria, J. speaking for the Court an swered the question in the following words: "In the light of the above discussion, it is demonstrably clear that the appellant has not been denied or deprived of a legal right.
He has not sustained injury to any legally pro tected interest.
In fact the impugned order does not operate as a decision against him, much less does it wrongfully affect his title to something.
He has not been subjected to a legal wrong.
He has suffered no legal griev ance.
He has no legal peg for a justiciable claim to hang on.
While a Procrustean approach should be avoided, as a rule the Court should not interfere at 439 the instance of 'stranger ' unless there are exceptional circumstances involving a grave miscarriage of justice having an adverse impact on public interests.
Assuming that the appellant is a 'stranger ', and not a busybody, then also, there are no exceptional circum stances in the present case which would justi fy the issue of a writ of certiorari at his instance.
On the contrary, the result of the exercise of these discretionary powers, in his favour, will, on balance, be against public policy.
It will eliminate healthy competition in this business which is so essential to raise commercial morality; it will tend to prepetuate the appellant 's monopoly of cinema business in the town; and above all, it will, in effect, seriously injure the fundamental rights of respondents 1 & 2, which they have under Article 19(1) (g) of the Constitution, to carry on trade or business subject to 'reasonable restrictions ' imposed by law.
The instant case fails well nigh within the ratio of the this Court 's decision in Rice and Flour Mills vs N.T. Gowda, wherein it was held that a rice mill owner has no locus standi to challenge under Article 226, the setting up of a new rice mill by another even if such setting up be in contravention of section 8(3) (c) of the Rice Milling Industry (Regulation) Act, 1958 because no right vested in such an appli cant is infringed.
For all the foregoing reasons, we are of opinion that the appellant had no locus standi to invoke this special jurisdiction under article 226 of the Consti tution.
Accordingly, we answer the question posed at the commencement of this judgment, in the negative.
" We, therefore, see on justification for the petitioners to complain against the liberalised policy for grant of permits under the Act.
Article 19(1)(g) of the Constitution of India guarantees to all citizens the right to practice any profession, or to carry on any occupation, trade or business subject to rea sonable restrictions imposed by the State under Article 19(6) of the Constitution of India.
A Constitution Bench of this Court in Saghir Ahmad vs The State of U.P. and Others, ; held that the fundamental right under Article 19(1)(g) entitles, any member of the public to carry on the business of transporting passengers with the aid of the vehicles.
Mukerjea, J. speaking for the Court observed as under: "Within the limits imposed by State regula tions any member of the public can ply motor vehicles on a public road.
To that extent he can also carry on the business of transporting passen 440 gers with the aid of the vehicles.
It is to this carrying on of the trade or business that the guarantee in article 19(1)(g) is attracted and a citizen can legitimately complain if any legislation takes away or curtails that right any more than is permissible under clause (6) of that article.
" It is thus a guaranteed fight of every citizen whether rich or poor to take up and carry on, if he so wishes, the motor transport business.
It is only the State which can impose reasonable restrictions within the ambit of Article 19(6) of the Constitution of India.
Section 47(3) and 57 of the old Act were some of the restrictions which were imposed by the State on the enjoyment of the fight under Article 19(1)(g) so far as the motor transport business was concerned.
The said restrictions have been taken away and the provisions of Section 47(3) and 57 of the old Act have been repealed from the Statute Book.
The Act provides liberal policy for the grant of permits to those who intend to enter the motor transport business.
The provisions of the Act are in con formity with Article 19(1)(g) of the Constitution of India.
The petitioners are asking this Court to do what the Parlia ment has undone.
When the State has chosen not to impose any restriction under Article 19(6) of the Constitution of india in respect of motor transport business and has left the citizens to enjoy their right under Article 19(1)(g) there can be no cause for complaint by the petitioners.
On an earlier occasion this Court dealt with somewhat similar situation.
The Uttar Pradesh Government amended the old Act by the Motor Vehicle (U.P. Amendment) Act, 1972 and inserted Section 43A.
The new Section 43 A apart from making certain changes in Section 47 of the old A Act also omitted sub section (3) of Section 47 of the old Act) Section 43A provided that in the case of non nationalised routes, if the State Government was of the opinion that it was for the public interest to grant permits to all eligible applicants it might, by notification in the official gazette issue a direction accordingly.
The necessary notification was issued with the result that the transport authorities were to proceed to grant permits as if sub section (3) of section 47 was omitted and there was no limit for the grant of permits on any specified route within the region.
Section 43 A and the consequent notification was challenged by the existing operators before the Allahabad High Court.
The High Court dismissed the writ petitions.
On appeal this Court in Hans Raj Kehar & Ors.
vs The State of U.P. and Ors., ; dismissed the appeal.
Khanna, J.speaking for the Court held as under; "It hardly need much argument to show that the larger number of buses operating on different routes would be for the conven 441 ience and benefit of the travelling public and as such would be in the public interest.
Any measure which results in larger number of buses operating on various routes would neces sarily eliminate or in any case minimise long hours of waiting at the bus stands.
It would also relieve congestion and provide for quick and prompt transport service.
Good transport service is one of the basic requirements of a progressive society.
Prompt and quick trans port service being a great boon for those who travel, any measure which provides for such an amenity is in the very nature of things in the public interest. . . .
The conten tion that the impugned notification is viola tive of the rights of the appellants under article 19(1)(f) or (g) of the Constitution(is equally devoid of force.
There is nothing in the notification which prevents the appel lants from acquiring, holding and disposing of their property or prevents them from practis ing any profession or from carrying on any occupation, trade or business.
The fact that some others have also been enabled to obtain permits for running buses cannot constitute a violation of the appellants ' rights under the above two clauses of article 19 of the Consti tution.
The above provisions are not intended to grant a kind of monopoly to a few bus operators to the exclusion of other eligible persons.
No right is guaranteed to any private party by article 19 of the Constitution of carrying on trade and business without compe tition from other eligible persons.
Clause (g) of article 19(1) gives a right to all citizens subject to article 19(6) to practise any profession or to carry on any occupation, trade or business.
It is an enabling provision and does not confer a right on those already practising a profession or carrying on any occupation, trade or business to exclude and debar fresh eligible entrants from practising that profession or from carrying on that occupation, trade or business.
The said provi sion is not intended to make any profession, business or trade the exclusive preserve of a few persons.
We, therefore, find no valid basis for holding that the impugned provisions are violative of article 19".
The identical situation has been created by Sections 71, 72 and 80 of the Act by omitting the provisions of Section 47(3) of the old Act.
It has been made easier for any person to obtain a stage carriage permit under the Act.
The attack of the petitioner on Section 80 on the ground of Article 19 has squarely been answered by this Court in Hans Raj Kehar 's case (supra).
It has been contended in the writ petitions that differ ent yard sticks have been provided for interregion, intra region and inter State permits 442 under the Act.
According to the petitioners the imposition of limit for grant of inter State permits is permissible under Section 88(5) of the Act whereas no such limit can be imposed in respect of intra region permits.
The contention is that the provisions are discriminatory and are violative of article 14 of the Constitution of India.
We are not impressed by the argument.
The three categories of permit seekers cannot be considered to be belonging to the same class.
Different criteria have been provided under the Act for granting permits in respect of each of the categories.
It is nobody 's case that Section 80 brings about discrimina tion in the matter of grant of permits between applicants belonging to the same class.
The argument on the ground of Article 14 is thus wholly untenable and is rejected.
This question also came for consideration in Hans Raj Kehar 's case (supra) and this Court rejected the contention in the following words: "Argument has also been advanced that the deletion of Section 47(3) would have the effect of removing the limit on the number of permits for intra region routes but that fact would not prevent the imposition of a limit for the number of permits for inter region routes.
This argument has been advanced in the context of the case of the appellants that the impugned provisions discriminate in the matter of issue of permits for intraregion routes and those for inter region routes and as such are violative of article 14 of the Constitution.
We are not impressed by this argument for we find no valid basis for the inference that if there is no limit on the number _of permits for intra region routes,limit on the number of permits for interregional routes would ' have to be imposed.
The object of the impugned notification is to liberalise the issue of permits and we fail to see as to how such a liberal measure can have the effect of intro ducing strictness or stringency in the matter of grant of permits for inter region routes.
Assuming that a different rule is applicable in the matter of inter region routes, the differentiation is based upon reasonable classification.
It is nobody 's case that the impugned provision brings about discrimination in the matter of grant of permits between applicants belonging to the same class.
The argument about the impugned provision being violative of article 14 is wholly trotenable." The learned counsel for the writ petitioners, have relied upon a later decision of this Court in Rameshwar Prasad & Ors., vs State of Uttar Pradesh & Ors., [1983] 2 S.C.C. 195 and have contended that the decision of this Court in Hans Raj Kehars case (supra) no longer holds the 443 field.
There is no force in the contention.
This Court on two occasions interpreted the old Act as amended by the State of Uttar Pradesh at the relevant times.
The provisions of law which were interpreted in Hans Raj Kehar 's case were entirely different than those which were before this Court in Rameshwar Prasad 's ease.
The legal position with which we are faced in these writ petitions is almost similar to that which was considered by this Court in Hans Raj Kehar 's case.
What happened in the State of Uttar Pradesh was that after the U.P. Amendment of 1972 to the old Act, which was subject matter of interpretation before this Court in Hans Raj Kehars ease, it was found that certain anomalies had arisean in the working of the liberal policy of granting permits.
With a view to remedy the situation the U.P. Legislature amended the old Act again by the U.P. Act 15 of 1976 permit ting imposition of limit on the number of permits to be issued.
In spite of the restrictions on grant of permits as provided in the U.P. Act 15 of 1976 the State Government issued notifications permitting grant of permits to all eligible applicants without any upper limit.
This Court held in Ratneshwar Prasad 's ease that the said notifications were inconsistent with the limitation as to the number of permits introduced by the U.P. Amending Act 1976 and as such were bad in law.
Venkataramiah, J. (as he then was) speaking for the Court in Rameshwar Prasad 's ease observed as under: "We may here state that any observations made in Hans Raj Kehar case would be inapplicable so far as these cases presently before us are concerned.
In that case the court was con cerned with sub section (2) of Section 43 A of the Act as it stood then which was a provision enacted by the legislature.
That sub section provided that without prejudice to the gener ality of the power contained in Section 43 A(1) of the Act where the State Government was of opinion that it was in public interest to grant stage carriage permits (except in re spect of routes or areas for which schemes have been published under Section 68 C) or contract carriage permits or public carrier permits to all eligible applicants it may issue appropriate directions as stated there in.
That sub section contained a clear legis lative policy which considered that there could be no public prejudice if all eligible applicants were granted permits.
Without saying anything more on the point, it may be slated that whatever this court may have observed while considering that provision would not apply now as there is a clear depar ture made by the legislature from that policy when it enacted the new sub section (2) of Section 43 A." It is thus obvious that the reliance by the petitioners on the ratio and observations of this Court in Rameshwar Prasad 's case is wholly mis 444 placed.
The Parliament has, under the Act, made a clear departure from the policy and has reverted to the position which was before this Court in Hans Raj Kehar 's case.
Relying on Rameshwar Prasad 's case the petitioners contend that it is in 'public interest ' to limit the grant of permits on intra region routes and while fixing the limit various factors indicated by this Court in the said case are to be taken into consideration.
We do not agree.
The concept of public interest, in relation to motor transport business, as propounded by this Court in Rameshwar Prasad 's case was only in the context of the old Act as amended by the U.P. Act.
We are of the view that the Act having brought in complete change in the policy of granting permits, the observations of this Court in Rameshwar Prasad 's case are not relevant in the present context.
The provisions of law for consideration before this Court in Hans Raj Kehar 's case were almost similar to Section 80 of the Act.
We are, there fore, bound by the law laid down by the four Judges Bench of this Court in Hans Raj Kehar 's case.
The petitioners have further contended that the condi tions of roads, social status of the applicants, possibility of small operators being eliminated by big operators, condi tions of hilly routes, fuel availability and pollution control are some of the important factors which the Regional Transport Authority is bound to take into consideration while taking a decision on an application for grant of permit.
These are the matters which are supposed to be within the comprehension of the transport authorities.
The legislative policy under the Act cannot be challenged on these grounds.
It is not disputed that the Regional Trans port Authority has the power under the Act to refuse an application for grant of permit by giving reasons.
It is for the authority to take into consideration all the relevant factors at the time of quasi judicial consideration of the applications for grant of permits.
The statutory authorities under the Act are bound to keep a watch on the erroneous and illegal exercise of power in granting permits under the liberalised policy.
We, therefore, see no force in any of the contentions raised by the petitioners and as such we dismiss the writ petitions.
The parties are left to bear their own costs.
G.N. Petitions dis missed. [/INST] These Writ Petitions filed before this Court challenged the liberalisation for private sector operations in the Road Transport field, under the .
The petitioners were the existing operators on different routes.
On behalf of the petitioners, it was contended that the issue of more permits on the same route adversely affected their rights guaranteed under Articles 14 and 19 of the Constitution of India.
It was further contended that though imposition of limit for grant of inter State permits was permissible under Section 88(5) of the Act, it was not so in respect of intra region permits and hence it is discrimina tory; that in public interest the grant of intra region permits should be limited.
Dismissing the Writ Petitions, this Court, HELD: 1.1.
Restricted licensing under the old Act led to the 429 concentration of business in the hands of few persons there by giving rise to a kind of monopoly, adversely affecting the public interest.
The apprehensions of the petitioners, that too many operators on a route are likely to affect adversely the interest of weaker section of the profession, is without any basis.
The transport business is bound to be ironed out ultimately by the rational of demand and supply.
Cost of a vehicle being as it is the business requires huge investment.
The intending operators are likely to be con scious of the economics underlying the profession.
Only such number of vehicles would finally remain in operation on a particular route as are economically viable.
In any case the transport system in a State is meant for the benefit and convenience of the public.
The policy to grant permits liberally under the new Act is directed towards the said goal.
[438 A C].
1.2 The petitioners are in the full enjoyment of their fundamental right guaranteed to them under Article 19(1)(g) of the Constitution of India.
There is no threat of any kind whatsoever from any authority to the enjoyment of their right to carry on the occupation of transport operators.
There is no complaint of infringement of any of their statu tory rights.
More operators mean healthy competition and efficient transport system.
Over crowded buses, passengers standing in the aisle, persons clinging to the bus doors and even sitting on the roof top are some of the common sights in this country.
More often one finds a bus which has noisy engine, old upholstery, uncomfortable seats and continuous emission of blacksmoke from the exhaust pipe.
It is, there fore, necessary that there should be plenty of operators on every route to provide ample choice to the commuter public to board the vehicle of their choice and patronise the operator who is providing the best service.
Even otherwise the liberal policy is likely to help in the elimination of corruption and favouritism in the process of granting per mits.
[437 EH; 438 A].
Hans Raj Kehar & Ors.
vs The State of U.P. and Ors., ; , followed.
Jasbhai Desai vs Roshan Kumar & Ors., ; ; ,Saghir Ahmad vs The State of U.P. and Ors., ; , relied on.
Rameshwar Prasad & Ors.
vs State of Uttar Pradesh & 0rs.[1983] 2 SCC 195, distinguished.
It is only the State which can impose reasonable res tric 430 tions within the ambit of Article 19(6) of the Constitution of India.
Section 47(3) and S7 of the old Act were some of the restrictions which were imposed by the State on the enjoyment of the right under Article (19)(1)(g) so far as the motor transport business was concerned.
The said re strictions have been taken away and the said provisions have been repealed from the Statute Book.
The new Act provides liberal policy for the grant of permits to those who intend to enter the motor transport business.
The provisions of the Act are in conformity with Article 19(1)(g) of the Constitu tion of India.
When the State has chosen not to impose any restriction under Article 19(6) of the Constitution of India in respect of motor transport business and has left the citizens to enjoy their right under Article 19(1)(g) there can be no cause for complaint.
[440 B D].
The three categories of permit seekers in respect of interegion, intra region and inter State permits cannot be considered to be belonging to the same class.
Different criteria have been provided under the Act for granting permits in respect of each of the categories.
It is not the case that Section 80 brings about discrimination in the matter of grant of permits between applicants belonging to the same class.
[442 B] Hans Raj Kehar & Ors.
vs The State of U.P. and Ors.
; , relied on.
Matters such as conditions of roads, social status of the applicants possibility of small operators being eliminated by big operators, conditions of hilly routes, fuel availability and pollution control are supposed to be within the comprehension of the transport authorities.
The legislative policy under the Act cannot be challenged on these grounds.
It is not disputed that the Regional Trans port Authority has the power under the Act to refuse an application for grant of permit by giving reasons.
It is for the authority to take into consideration all the relevant factors at the time of quasi judicial consideration of the applications for grant of permits.
The statutory authorities under the Act are bound to keep a watch on the erroneous and illegal exercise of.
power in granting permits under the liberalised policy.
[444 D F] </s> |
<s>[INST] Summarize the following judgement: Appeal No. 4542 1991.
From the Judgment and Order dated 9.1.
1990 of the Central Administrative Tribunal, Madras in O.A. No. 552 of 1989.
P.P.Rao, Narsimha P.S. and Ms. Vijaylakshmi Menon for the Appellants.
Santosh Hegde, A.S. Nambiar, Ms. Sangeeta Garg, P.P.Tripathi, Mrs. Shanta Vasudevan, P.K. Manohar and K.R. Choudhary for the Respond ents.
425 The Judgment of the Court was delivered by VERMA, J.
The Recruitment Rules for the post of Assist ant Engineer in the Public Works Department, Pondicherry, prescribe the educational and other qualifications for appointment by direct recruitment and promotion.
For direct recruits, the qualification prescribed is a Degree in Civil Engineering of a recognised University or Diploma in Civil Engineering from a recognised institution with three years ' professional experience.
For appointment by promotion of Section Officers now called Junior Engineers, the qualifica tion prescribed is as under: "1.
Section Officers possessing a recognised Degree in Civil Engineering or equivalent with three years ' service in the grade failing which Section Officers holding Diploma in Civil Engineering with six years ' service in the grade 50%.
Section Officers possessing a recognised Diploma in Civil Engineering with six years ' service in the grade 50%".
The dispute in the present case is whether a Diploma holder Junior Engineer who obtains a Degree while in service becomes eligible for appointment as Assistant Engineer by promotion on completion of three years ' service including therein the period of service prior to obtaining the Degree or the three years ' service as a Degree holder for this purpose is to be reckoned from the date he obtains the Degree.
The Diploma holders contend that they are entitled to include the earlier period and would be eligible for promotion in this category on obtaining the Degree if the total period of service is three years inclusive of the earlier period.
The Degreeholders contest this position and contend to the contrary.
According to the Degree holders, these are two distinct categories.
In the first category are Degree holders with three years ' service in the grade as Degree holders, the period of three years being subsequent to the date of obtaining the Degree as in the case of the Junior Engineers who join the service with a Degree; and the other category is of Diploma holders with six years ' experi ence.
The Diploma holders went to the Central Administrative Tribunal with this contention and the Tribunals has upheld their claim and directed as under: "In the light of the above, we hold that the applicants are entitled to the relief asked for and accordingly we direct the respondents to consider them for promotion to the post of 426 Assistant Engineer on par with the other Degree ho1ding Junior Engineers, taking due note of their total length of service rendered in the grade of Junior Engineer.
Such a con sideration should be along side other Junior Engineers who might have acquired the neces sary Degree qualification earlier than the applicants, while holding the post of Junior Engineer.
For this purpose, the first three respondents shall take necessary action to convene a review D.P.C. and pass orders on the basis of the recommendations of that D.P.C. within a period of three months from the date of receipt of a copy of this order.
The application is allowed as above".
Hence this petition for grant of special leave by the Degree holders.
Leave is granted.
In our opinion, this appeal has to be allowed.
There is sufficient material including the admission of respondents Diploma holders that the practice followed in the Department for a long time was that in the case of Diploma holder Junior Engineers who obtained the Degree during service, the period of three years ' service in the grade for eligibility for promotion as Degree holders commenced from the date of obtaining the Degree and the earlier period of service as Diploma holders was not counted for this purpose.
This earlier practice was clearly admitted by the respondents Diploma holders in para 5 of their application made to the Tribunal at page 115 of the paper book.
This also appears to be the view of the Union Public Service Commission contained in their letter dated December 6,1968 extracted at pages 99 100 of the paper book in the counter affidavit of re spondents 1 to 3.
The real question, therefore, is whether the construction made of this provision in the rules on which the past practice extending over a long period is based is untenable to require upsetting it.
If the past practice is based on one of the possible constructions which can be made of the rules then upsetting the same now would not be appropriate.
It is in this perspective that the question raised has to be determined.
The Recruitment Rules for the post of Assistant Engi neers in the P.W.D. (Annexure C) are at pages 57 to 59 of the paper book.
Rule 7 lays down the qualifications for direct recruitment from the two sources, namely, Degree holders and Diploma holders with three years ' professional experience.
In other words, a Degree is equated to Diploma with three years ' professional experience.
Rule 11 provides for.
recruitment by promotion from the grade of Section Officers now called Junior Engineers.
There are two catego ries provided therein one is of Degree holder Junior Engi 427 neers with three years ' service in the grade and the other is of Diplomaholder Junior Engineers with six years ' service in the grade, the provision being for 50% from each catego ry.
This matches with Rule 7 wherein a Degree is equated with Diploma with three years professional experience.
In the first category meant for Degree holders, it is also provided that if Degree holders with three years ' service in the grade are not available in sufficient number, then Diploma holders with six years ' service in the grade may be considered in the category of Degree holders also for the 50% vacancies meant for them.
The entire scheme, therefore, does indicate that the period of three years ' service in the grade required for Degree holders according to Rule 11 as the qualification for promotion in that category must mean three years ' service in the grade as a Degreeholder and, therefore, that period of three years can commence only from the date of obtaining the Degree and not earlier.
The serv ice in the grade as a Diploma holder prior to obtaining the Degree cannot be counted as service in the grade with a Degree for the purpose of three years ' service as a Degree holder.
The only question before us is of the construction of the provision and not of the validity thereof and, there fore, we are only required to construe the meaning of the provision.
In our opinion, the contention of the appellants Degree holders that the rules must be construed to mean that the three years ' service in the grade of a Degreeholder for the purpose of Rule 11 is three years from the date of obtaining the Degree is quite tenable and commends to us being in conformity with the past practice followed consist ently.
It has also been so under stood by all concerned till the raising of the present controversy recently by the respondents, The tribunal was, therefore, not justified in taking the contrary view and unsettling the settled practice in the Department.
Consequently, the appeal is allowed.
The impugned order of the Tribunal is set aside resulting in dismissal of the respondents ' application made in the Tribunal.
The Depart ment will now consider the question of promotion in accord ance with this decision.
No costs.
N.P.V. Appeal al lowed. [/INST] The respondents, Diploma holder Junior Engineers in the Public Works Department, pondicherry, approached the Central Administrative Tribunal, with the plea that the period of service rendered by them before they obtained the Degree should be included for reckoning the period of three years ' service prescribed in the Recruitment Rules for promotion to the post of Assistant Engineer in the category of those possessing Degree with three years ' service and if the earlier period was so included, they would be eligible for promotion.
However, Degree holders opposed the respondents ' plea contending that the period of three years prescribed in the Rules was subsequent to the date of obtaining the De gree.
The Tribunal upheld the respondents ' claim and directed that they should be considered for promotion on par with the other Degree holder Junior Engineers, taking due note of their total length of service rendered in the grade of Junior Engineer.
Hence the appeal, by the Special Leave, by the Degree hold ers.
Allowing the appeal, this Court, HELD:1.1 The rules must be construed to mean that the three years ' service in the grade of a Degree holder for the purpose of Rule 11 of the Recruitment Rules, for promotion to the post of Assistant Engineer in the Public Works De partment Pondicherry, is 424 three years from the date of obtaining the Degree by a Diplomaholder.
This is in conformity with the past practice followed consistently.
The Tribunal was not justified in taking the contrary view and unsettling the settled practice in the Department.
[427 D] 1.2 Rule 7 of the Recruitment Rules lays down the quali fications for direct recruitment from the two sources, namely, Degreeholders and Diploma holders with three years ' professional experience.
Thus, a Degree is equated to Diplo ma with three years ' professional experience.
Rule 11 pro vides for recruitment by promotion from the grade of Section Officers, now called Junior Engineers.
There are two catego ries provided therein, viz., (1) Degreeholder Junior Engi neers with three years ' service in the grade and (2) Diplo ma holder Junior Engineers with six years ' service in the grade, the provision being for 50% from each category.
This matches with Rule 7 wherein a Degree is equated with Diploma with three years ' professional experience.
In the first category meant for Degree holders, it is also provided that if Degree holders with three years ' service in the grade are not available in sufficient number, then Diploma holders with six years ' service in the grade may be considered in the category of Degree holders also for the 50% vacancies meant for them.
The entire scheme, therefore, does indicate that the period of three years ' service in the grade re quired for Degree holders according to Rule 11 as the quali fication for promotion in that category must mean three years ' service in the grade as a Degree holder and, there fore, that period of three years can commence only from the date of obtaining the Degree and not earlier.
The service in the grade as a Diploma holder prior to obtaining the Degree cannot be counted as service in the grade with a Degree for the purpose of three years ' service as a Degree holder.
[427 G H, 428 A C] </s> |
<s>[INST] Summarize the following judgement: Appeal No. 4568 of 1991.
From the Judgment and Order dated 30.1.89 of the Punjab & Haryana High Court in LPA No. 1251 of 1987.
WITH CA Nos 4569 4686/91 482 M. Chandra Sekhar, Additional Solicitor General, G.L. Sanghi, Hatbans Lal, Har Dev Singh, S.P. Goyal, Harinder Pal Singh, Ms. Naresh Bakshi, S.M. Sarin, P.N. Puff, M.K. Dua, Ms. Madhu Moolchandani, Manoj Swamp, Dr.(Ms.) Meera Agarwal, R.C. Mishra, M.N. Krislmamam, K.P. Sunder Rao, Attar Singh, S.N. Terdal, Hemant Sharma, T.C. Sharma, N.D. Garg, Ms. Kusum Chowdhary and S.P. Sarin for the appearing parties.
The Judgment of the Court was delivered by KANIA, J.
Leave granted.
Counsel heard.
As the controversy before us is a limited one and relates only to the question of granting of benefit of the provisions of Section 23(1 A) introduced into the Land Acquisition Act, 1894 (hereinafter referred to as "the said Act") by the Land Acquisition (Amendment) Act, 1984, (referred to hereinafter as "the Amendment Act of 1984") only a few facts are necessary for the appreciation of the submissions made before us.
This appeal, arising out of S.L.P. (Civil) No, 14297 of 1990 by Special Leave, is directed against the judgment of a Division Bench of the Punjab and Haryana High Court in Letters Patent Appeal No.1251 of 1987.
The other appeals before us are connected appeals filed by the Union of India or the claimants.
The respondent was the owner of a piece of land in one of the villages in District Bhatinda in Punjab.
Land admeasuring 74375 acres situated in various villages in Bhatinda District including the land of the respondent was acquired by the appellants under the said Act.
The Notifications under Sections 4 and 6 of the said Act were published on May 10,1979 and March 27, 1981, re spectively.
The Special Land Collector made and declared his award of compensation in respect of the acquisition of the said land and several other plots of land on March 31,1981.
Being aggrieved by the said award, the respondent and other landowners filed Reference applications under Section 18 of the said Act which were decided by the learned District Judge concerned in 1985 and 1986.
The land acquired was classified into various grades and compensation awarded accordingly.
In the case before us and several other similar cases the benefits under Section 23(1 A) of the said Act were granted to the land owners.
The State appealed to the High Court.
In several other cases where the land owners were not satisfied with the compensation awarded, including the cases where the benefits conferred by Section 23(1 A) were not awarded the land owners filed appeals before the High Court.
483 What is relevant for our purpose is that a learned Single Judge of the High Court confirmed the grant of bene fits under Section 23(1 A)of the said Act where such bene fits had been granted by the learned District Judge and awarded the same where that had not been done by the learned District Judge.
Letters Patent Appeals were filed by the State being dissatisfied with the judgment of the learned Single Judge.
It was submitted on behalf of the Union of India before the Division Bench deciding the Letters Patent Ap peals that the claimants/land owners were not entitled to the benefit of Section 23(1 A) of the said Act introduced by the said Amendment Act, 1984 as aforestated.
It was submit ted on behalf of the appellants that the right to get addi tional amount at the rate of 12% per annum on the enhanced amount of compensation from the date of Notification under Section 4 of the said Act and till the date of the award of the Collector or the date of taking possession whichever is earlier conferred under the provisions of Section 23(1 A) of the said Act was available only in cases where the Collector made his award after 30th day of April, 1982, being the date of the introduction of the Land Acquisition (Amendment) Bill, 1982 in the House of the People, whereas in the present case, the Collector had made his award on March 31, 1981.
Reliance was placed on the Judgment of a Full Bench of the Punjab and Haryana High Court in State of Punjab vs Krishan Lal, AIR (1987) Punjab and Haryana, 222.
The Divi sion Bench repelled this contention and pointed out that the learned Chief Justice H.N. Seth, who spoke for the Full Bench in Krishan Lal 's case (supra) had explained that judgment in the subsequent decision rendered in Maya Devi and Others vs The Union Territory of Chandigarh, Punjab Law Journal (1988) 189.
and pointed out that the land owner was entitled to the additional amount in terms of Section 23(1 A) of the Amendment Act of 1984 if the proceedings for determination of compensation were decided after September 24, 1984, and since the Regular First Appeal in respect of the proceedings for determination of the compensation was decided after September 24, 1984, the Court while adjudi cating upon the amount of compensation payable to the claim ant was bound to grant the additional amount in terms of Section 23(1 A) of the said Act.
The Division Bench in its impugned judgment gave to the claimant the benefit of the added amount referred to in Section 23(1 A) of the said Act.
The same submissions have been made on behalf of the respective parties before us.
Before discussing the submissions of the respective parties, it would not be out of place to set out the rele vant provisions of the said Act.
The said Act, namely, the Land Acquisition Act, 1894, provides for compulsory acquisition of land.
The term 'Award ' has not been defined in 484 the said Act.
Sub clause (d) of Section 3, the definition section, defines the expression 'Court ' as follows: "(d)the expression 'Court ' means a principal Civil Court of original jurisdiction, unless the appropriate Government has appointed, as it is hereby empowered to do, a special judi cial officer within any specified local limits to perform the function of the Court under this Act. ' Part II of the said Act deals with the question of acquisition of land.
Section 11 of the said Act deals with the enquiry and award of compensation by the Collector.
Section 11 A which was introduced into the said Act by the Land Acquisition (Amendment) Act, 1984 (Act No.68 of 1984) provides for the period within which the award shall be made.
Generally speaking, it prescribes that the period for making the award is limited to two years, and the section provides that, if the award is not made within that period, the entire proceedings for acquisition of land shall lapse.
There is a proviso to the said section and an Explanation, but it is not necessary to consider the same for the purpose of this case.
Sub section (1) of Section 18 which is includ ed in Part III of the said Act runs as follows: "18.
Reference to Court (1) Any person interested who has not accepted the award may, by written application to the Collector, require that the matter be referred by the Collector for the determina tion of the Court, whether his objection be to the measurement of the land, the amount of compensation, the person to whom it is pay able, or the apportionment of the compensation among the persons interested." Section 23 deals with the matters to be considered by the Court for determining the compensation to be awarded for the land acquired under the said Act.
We may mention here that under the general scheme of the said Act, the landowner whose land has been acquired is entitled to be paid the market value of the land acquired as prevailing at the time of the publication of the notification under Section 4 issued together with the solatium at the prescribed rate in consideration of the compulsory nature of the acquisition.
Prior to the coming into effect of the Amendment Act of 1984 solatium was fixed at the rate of 15 per centum.
Sub section (1 A) which was introduced into Section 23 of the said Act by the Amendment Act of 1984 runs as follows: "In addition to the market value of the land, as above provided, the Court shall in every case award an amount calcu 485 lated at the rate of twelve per centum per annum on such market value for the period commencing on and from the date of the publi cation of the notification under Section 4, subsection (1), in respect of such land to the date of the award of the Collector or the date of taking possession of the land, whichever is earlier.
" By the said Amendment Act of 1984 the expression "thirty per centum" was substituted in place of the expression "fifteen per centum" in sub section (2) of Section 23 of the said Act.
Sub section (2) of Section 23 now runs as follows: "(2) In addition to the market value of the land, as above provided, the Court shall in every case award a sum of thirty per centum on such market value, in consideration of the compulsory nature of the acquisition." .lmo
These amendments were effected in the Land Acquisition Act (the said Act) by the Land Acquisition (Amendment) Act, 1984, ("the Amendment Act of 1984") as set out earlier.
Sub sections (1) and (2) of Section 30 of the Amendment Act of 1984 run as follows: "30 Transitional Provisions: (1) The provisions of sub section (1 A) of Section 23 of the principal Act, as inserted by Clause (a) of Section 15 of this Act, shall apply, and shall be deemed to have applied, also to, and in relation to, (a) every proceedings for the acquisition of any land under the principal Act pending on the 30th day of April, 1982 the date of intro duction of the Land Acquisition (Amendment) Bill, 1982, in the House of the People, in which no award has been made by the Collector before that date; (b) every proceeding for the acquisition of any land under the principal Act commenced after that date, whether or not an award has been made by the Collector before the com mencement of this Act.
(2) The provisions of sub section (2) of Section 23 and Section 28 of the principal Act, as amended by Clause (b) of Section 15 and Section 18 of this Act respectively shall apply, and shall be deemed to have applied, also to, and in relation to, any award made by the Collector or Court or to any order passed by the High Court or Supreme Court in appeal against 486 any such award under the provisions of the principal Act later the 30th day of April, 1982, the date of introduction of the Land Acquisition (Amendment) Bill.
1982, in the House of the People and before the commence ment of this Act.
" (emphasis supplied by us) On behalf of the appellants reliance was placed by learned Counsel on the decision of this Court in Union of India and Others vs Filip Tiago De Gama of Vedem Vasco De Gama, [1990] 1 SCC 277.
The respondent, on the other hand, placed strong reliance on the decision of a Full Bench of the Bombay High Court in Jaiwant Laxman P. Sardesai and etc.
vs Government of Goa, Daman Diu and Another etc, AIR 1987 Bombay 214.
On the basis of the aforesaid judgment of the Bombay High Court it was submitted by the respondent/claim ant that a wide and liberal interpretation should be given to the provisions of sub section (1 A) of section 23 and the amount calculated as set out in the said sub section awarded in all cases where any proceeding was pending in any court including the High Court or this Court in connection with the determination of compensation for the land acquired.
We may mention that both the parties referred us to the deci sion of a Constitution Bench of this Court in Union of India and Another etc:.
vs Raghuvir Singh (dead) by Lrs etc; , We propose to discuss these decisions a little later but before doing so, we propose to analyse the relevant provisions of the said Act and the effect thereof.
A perusal of the provisions of sub section (1 A) of Section 23 makes it clear that the said sub section deals with substantive rights and it confers a substantive right to claim the additional amount calculated as set out in the said sub section in the circumstances set out therein.
Similarly, sub section (2) of Section 23 also confers a substantive right on the claimant to a higher solatium.
Under the well settled rules of interpretation, the said provisions of the said Act, being substantive in nature, can have only prospective application unless the language in which the provisions are couched, read in the context, shows that the intention of the legislature was to give retrospec tive effect to them.
The language of sub section (lA) of Section 23 shows that a duty is cast on the court tO award an amount calculated as stated therein in addition to the market value of the land acquired for the period commencing from the date of the publication of the Section 4 Notifica tion to the date of the award of the Collector or the date of taking possession, whichever is earlier.
(Emphasis supplied) The expression "award" used in section 23 (I A) suggests that the 487 intention of the legislature was to make the provisions of the said subsection applicable to cases where the Collector had yet to make his award or the Trial Court heating the Reference under Section 18 of the Land Acquisition Act had still to make its award after the coming into force of the said sub section on September 30, 1984.
The expression "award" is to be distinguished from the expression "decree" and hence, it appears that in the absence of any contrary or inconsistent provision in the said Act the provisions of sub section would not come into play where the award had been made by the Collector earlier as well as by the Refer ence Court but ton the date of coming into effect of the said sub section, an appeal from the said award might have been pending in a court.
In that case, the Court would not be "awarding" any amount but would be making a "decree" for an amount.
By reason of the provision of section 30(1)(a) of the Amendment Act of 1984 the provisions of section 23(1 A) of the said Act were, by a deeming provision, made also ap plicable to every proceeding for the acquisition of land under the said Act where the Collector had not made his award by April 30,1982.
On a correct interpretation of the provisions of section 23 (1 A) read with section 30(1)(a) of the Amendment Act of 1984, an additional amount calculated in the manner indicated in section 23(1 A) is also payable in those cases where the Collector had not made his award on or before April 30, 1982, even in cases where the court might have made its award before September 24, 1984.
It is true that the aforesaid construction we are giving to the provisions of Section 23(1 A) and Section 30(1)(a) will, in a sense, limit the benefits strictly conferred by Section 30(1)(a) to only those cases where the Collector as well as the Court have made their respective awards between April 30, 1982 and September 24, 1984 but, in our view, that cannot be helped as that is the result of the plain grammatical construction of the clear language used in the relevant provisions.
We are of the opinion that we would not be justified in giving an unduly restricted meaning to the provisions of Section 23(1 A) unwarranted by the plain language of that sub section as appears to have been done in the case of Union of India and Others vs Filip Tiago De Gama of Vedem Vasco De Gama discussed more particularly hereinaf ter, in order to give a wider meaning of the provisions of Section 30(1)(a).
Section 23(1 A) refers clearly to the duties of the Court.
As we have already pointed out, the court is defined by Section 3(d) as the principal court of original jurisdiction, except in the circumstances set out in the said sub section, which would be the court having jurisdiction to decide the reference under Section 18 of the said Act.
There, is therefore, no warrant to read in the place of the word 488 "Court" in Section 23(1 A) the word "Collector".
Moreover, the decision of such a court determining compensation is regarded as an award under the said Act.
In the light of these provisions, there is no warrant to give an unduly restricted meaning to Section 23(1 A) of the said Act, as pointed out above.
Coming now to the decisions cited before us we find that in the case before the Full Bench of the Bench of the Bombay High Court in Jaiwant Laxman P. Sardesai and etc.
vs Govern ment of Goa, Daman and Diu and Another etc.
(AIR 1987 Bombay 214) the facts were that the Notification under Section 4 of the said Act was published on October 3, 1969, in the Gov ernment Gazette of the Government of Goa.
The Notification under Section 6 was published on June 10, 1971 The Land Acquisition Officer declared his award on August 2, 1972.
All these events undoubtedly occurred prior to April 30, 1982.
However, on a Reference made under Section 18 of the said Act on December 24, 1973, the Civil Court investigated the claim and gave its award on June 24, 1985.
The award was, therefore, made by the Court not before April 30, 1982, but after September 30, 1984, when the provisions of the Land Acquisition (Amendment) Act, 1984, had already come into effect.
It was, therefore, strictly speaking, not necessary for the court to make any observation regarding the legal position in a case where both the Collector as well as the Court in a Reference under Section 18 had made their respective awards before April 30,1982.
Moreover, we find that the judgment appears to proceed on a somewhat unwarranted assumption.
This is clear from the following observations which appear at paragraph 5 of the aforesaid Report (p 217): "It is not in dispute that where on the date of the commencement of the amending Act any proceedings for determination of compensation were pending before the Collector under Sec tion 11 of the Act or before the Court under reference under Section 18 of the Act or before the High Court in appeal under Section 54 of the Act, then the amended section 23 (I A) would be applicable to such proceedings, in absence of subsection (1) of Section 30.
" In our view, it was erroneously taken as undisputed that had the provisions of sub section (1) of Section 30 not been in existence, the provisions of the amended section 23(1 A) would have applied to a case where the Collector as well as the Court had already made their award before April 30, 1982, but an appeal was pending in the High Court on April 30, 1982, or on the commencement of the Land Acquisition (Amendment) Act.
As we have already pointed out, the cor rectness of this as 489 sumption is very much in dispute before us.
In these circum stances, we find ourselves unable to accept as correct the view taken by the Full Bench of the Bombay High Court to the extent that it extends the operation of the provisions of section 23(1 A) even to cases where the Collector as well as the Reference Court had made their awards before April 30, 11982, in the case before the Full Bench of the Bombay High Court in Jaiwant Laxman P. Sardesai and etc.
vs Government of Goa, Daman and Diu and Another etc., AIR 1987 Bombay 214.
As far as the decision of a Division Bench comprising two learned Judges of this Court in Union of India and Others vs Filip Tiago De Gama of Vedem Vasco De Gama [1990] 1 S.C.C. 277 strongly relied upon by the appellants is concerned, we find that in that case the Land Acquisition Officer made his award determining the compensation on March 5, 1969.
On a reference under Section 18 the Civil Court made its award on May 28, 1985, that is, even after Septem ber 24,1984, when the Amendment Act of 1984 came into ef fect.
The view taken by the Division Bench is that, as the Collector had made his award before April 30, 1982, then the additional amount referred to in section 23 (1 A) could not be awarded.
This view has been taken on the basis that sub section (1)(b) of Section 30 of the said Act provides that the provisions of section 23(1 A) shall be applicable to every acquisition proceeding commenced after April 3 O, 1982, irrespective of the fact whether the Collector has made the award on or before September 24, 1984, and that sub section (1) of Section 30 does not refer to court award and the court award is used only in sub section (2) of Section 30.
(See para 21 of the said report).
We find that on the plain language of section 23(1 A) itself, which we have set out earlier, the duty was cast on the Court to award an additional amount calculated as prescribed therein which would mean that it is directed to be awarded by the court, namely, the Reference Court, in all cases which are pending before that court on September 1,1984.
Sub section (1)(a) of Section 30 undoubtedly lays down that the provi sions of section 23(1 A) of the Act are also made applicable to all proceedings for the acquisition of any land under the said Act pending on April 30, 1982, where no award had been made by the Collector before that date.
At first glance this would appear to suggest that the additional amount referred to in section 23 (1 A) could not be awarded where the Col lector had made his award before April 30, 1982.
But this provision cannot be allowed to cut down the benefits avail able to the claimants on a plain reading of section 23(1 A).
This is clear from the use of the word "also" in the opening pan of section 30(1).
In our opinion, the view taken by the Bench comprising two learned Judges of this Court in that case cannot be accepted as correct as it is too narrow and unduly cuts down the operation of the benefit conferred under the 490 plain language of section 23 (1 A) of the said Act.
As far as the provisions of section 30(2) are concerned, we do not feel that we are called upon to interpret the same in this decision.
In our view, therefore, the said decision cannot be accepted as good law in so far as it lays down that in order to bring the provisions of section 23(1 A) of the said Act into play the Collector must have made his award after April 30, 1982.
Coming to the decision in Union of India and Another vs Raghuvir Singh (dead) by Lrs.
(Supra) referred to earlier, we find that it mainly concerned itself with the provisions of section 30(2) of the said Amendment Act with which we are not directly concerned here and in that connection, the Constitution Bench of this Court has made the following observations (p. 779): "In construing section 30(2), it is just as well to be clear that the award made by the Collector referred to here is the award made by the Collector under Section 11 of the parent Act, and the award made by the Court is the award made by Principal Civil Court of Original Jurisdiction under Section 23 of the parent Act on a reference made to it by the Collector under Section 19 of the parent Act.
There can be no doubt that the benefit of the enhanced solatium is intended by section 30(2) in respect of an award made by the collector between April 30, 1982, and September 24, 1984, Likewise the benefit of the enhanced solatium is extended by section 30(2) to the case of an award made by the Court between April 30, 1982, and September 24, 1984, even though it be upon reference from an award made before April 30, 1982.
" The Court went on to point out that (p.780): "Section 30(2) of the Amendment Act extends the benefit c. the enhanced solatium to cases where the award by the Collector or by the Court is made between April 30, 1982, and September 24, 1984, or to appeals against such awards decided by the High Court and the Supreme Court whether the decisions of the High Court or the Supreme Court are rendered before September 24, 1984, or after that date.
All that is material is that the award (empha sis supplied) by the Collector or by the Court should have been made between April 30, 1982, and September 24, 1984.
We find ourselves in agreement with the conclusion reached by this Court in K. Kamalajammanniavaru vs Special Land Acquisition Officer, and 491 find ourselves unable to agree with the view taken in Bhag Singh vs Union Territory of Chandigarh ; The expanded meaning given to section 30 (2) in the latter case does not, in our opinion, flow reasonably from the language of that sub section.
It seems to us that the learned Judges in that case missed the significance of the word 'such ' in the collocation 'any such award ' in section 30(2).
Due significance must be at tached to that word, and to our mind it must necessarily intended that the appeal to the High Court or the Supreme Court, in which the benefit of the enhanced solatium is to be given, must be confined to an appeal against an award of the Collector or of the Court rendered between April 30, 1982, and September 24, 1984.
" We find that this decision which was rendered by a Constitution Bench of this Court comprising 5 learned Judges runs in no way counter to the view which we have taken and, in fact, it leads some support to the view which we are taking.
In the case before us, as the Reference Court has made its award after September 24, 1984 the benefit of the provisions of section 23(1 A) was clearly available to the claimant as held in the impugned judgment.
In the result, the appeal arising out of Special Leave Petition (Civil) No.14297 of 1990 in Union of India vs Zora Singh must be dismissed with costs.
As far as the other appeals filed by the Union of India which have been heard together with the Zora Singh 's case are concerned, learned Counsel for the Union of India has not drawn our attention to any material difference in the relevant facts therein from the facts in Zora Singh 's case.
In fact, the arguments proceeded on the footing that all the relevant facts were the same as in the case of Zora Singh.
In a result, all these appeals must also be dismissed, however, with no order as to costs.
As far as the appeals before us which have been filed by the claimants are concerned, the same will have to be placed before appropriate Benches of this Court for disposal in the light of this decision.
V.P.R. Appeals dis missed. [/INST] The lands of the respondent and other land owners were acquired under the Land Acquisition Act, 1894.
Notifications under sections 4 and 6 of the Act were published on 10.5.1979 and 27.3.1981 respectively.
The respondent and other land owners filed Reference Applications u/s 18 of the Act against the award before the District Judge.
The District Judge classifying the acquired land into various grades awarded compensation and also granted bene fits u/s 23(1 A) of the Act to the respondent and other land Owners.
Hence, the State appealed to the High Court.
Those land owners, who were not satisfied with the compensation awarded and those to whom benefit u/s 23(1 A) were not granted, also appealed to the High Court.
The Single Judge of the High Court confirmed the grant of benefits u/s 23(1 A) of the Act and also granted such benefits to those cases, where such benefits were not given by the District Judge.
The State preferred the Letters Patent Appeals before the Division Bench of the High Court, contending that the respondent and 479 other land owners were not entitled to the benefit of sec tion 23(1 A) of the Act; that the section 23(1 A) was intro duced by the Land Acquisition(Amendment) Act, 1984; that as the Collector had made his award on 31.3.1981 the provisions of section 23(1 A) of the Act was not applicable to the cases of the respondent and other land owners.
The Division Bench of the High Court dismissed the Letters Patent Appeals of the State.
Hence the present appeals by special leave were filed by the State before this Court.
The parties before this Court made the same submissions which were made before the High Court.
Dismissing the appeal, (CA No.4568 of 1991) this Court, HELD: 1.
A perusal of the provisions of sub section(1 A) of section 23 makes it clear that the said sub section deals with substantive rights and it confers a substantive right to claim the additional amount calculated as set out in the said sub section in the circumstances set out therein.
Similarly, sub section(2) of Section 23 also confers a substantive right on the claimant to a higher solatium.
[486 E F] 2.
The provisions of the Act, being substantive in nature, can have only prospective application unless the language in which the provisions are couched, read in the context, shows that the intention of the legislature was to give retrospective effect to them.
The language of sub section(1 A) of section 23 shows that a duty is cast on the court to award an amount calculated as stated therein in addition to the market value of the land acquired for the period commencing from the date of the publication of sec tion 4 of the Notification to the date of the award of the Collector or the date of taking possession, whichever is earlier.
[486 F G] 3.
The expression "award" used in section 23(1 A) suggests that the intention of the legislature was to make the provisions of the said sub section applicable to cases where the Collector had yet to make his award or the Trial Court hearing the Reference under Section 18 of the Land acquisition Act has still to make its award after the coming into force of the said sub section on September 30, 1984.
[486 H 487 A] 480 4.
The expression "award" is to be distinguished from the expression "decree" and hence, it appears that in the absence of any contrary or inconsistent provision in the Act the provisions of subsection(1 A) of section 23 would not come into play where the awards had been made by the Collec tor earlier as well as by the Reference Court but on the date of coming into effect of the said sub section, an appeal from the said award might have been pending in a court.
In that case, the court would not be "awarding" any amount but would be making a "decree" for an amount.
[487 B C] 5.
By reason of the provision of section 30(1)(a) of the Amendment Act of 1984 the provisions of section 23(1 A) of the Act were, by a deeming provision, made also applica ble to every proceeding for the acquisition of land under the Act where the Collector had not made his award by.
April, 30,1982.
On a correct interpretation of the provisions of section 23(1 A) read with section 30(1)(a) of the Amendment Act of 1984, an additional amount calculated in the manner indicated in section 23(1 A) is also payable in those cases where the Collector had not made his award on or before April 30,1982, but the Court might have made its award before September 24,1984.
[487 D E] 6.
The construction that is being given to the provi sions of section 23(1 A) and section 30(1)(a) will, in a sense, limit the benefits strictly conferred by section 30(1)(a) to only those cases, where the Collector as well as the Court have made their respective awards between April 30,1982 and September 24, 1984.
That cannot be helped, as that is the result of the plain grammatical construction of the clear language used in the relevant provisions.
[487 E F] 7.
The Court would not be justified in giving an unduly restricted meaning to the provisions of section 23(1 A) unwarranted by the plain language of the sub section.
[487 F] 8.
Section 23(1 A) refers clearly to the duties of the court.
The court is defined by section 3(d) as the principal court of original jurisdiction, except in the circumstances set out in the said subsection, which would be the court having jurisdiction to decide the reference under section 18 of the Act.
There, is therefore, no warrant to read in the place of the word "Court" in Section 23(1 A) the word "Collector".
Moreover, the decision of such a court deter mining compensation is regarded as an award under the Act.
In the light of the provisions, there is no warrant to give an unduly restricted meaning to section 23(1 A) of the Act.
[487 G 488 A] 481 9.
On the plain language of section 23(1 A) itself, the duty was cast on the court to award an additional amount calculated as prescribed therein which would mean that such amount is directed to be awarded by the court, namely, the Reference court, in all cases which are pending before that court on September 1, 1984.
Sub section (1)(a) of Section 30 lays down that the provisions of section 23(1 A) of the Act are also made applicable to all proceedings for the acquisi tion of any land under the said Act pending on April 30,1982, where no award had been made by the Collector before that date.
At first glance this would appear to suggest that the additional amount referred to in section 23(1 A) could not be awarded where the Collector had made his award before April 30,1982.
But this provision cannot be allowed to cut down the benefits available to the claimants on a plain reading of section 23(t A).
This is clear from the use of the word "also" in the opening part of section 30(1).
[489 E H] 10.
In the present case as the Reference court has made its award after September 24,1984 the benefit of the provi sions of Section 23(1 A) was clearly available to the claim ant.
[491 D] Jaiwant Laxman P.Sardesai etc.
vs Government of Goa, Daman and Diu and Another etc., AIR 1987 Bombay 214(F.B.) and Union of India & Others vs Filip Tiago De Gama of lied era Vasco De Gains, [1990] 1 SCC 277, overruled.
State of Punjab vs Krishan Lal, AIR 1987 Punjab and Haryana 222(F.B.); and Maya Devi and Others vs The Union Territory of Chandigarh, , ap proved.
Union of India and ,Another etc.
vs Raghuvir Singh (dead) by Lrs.
; , ; K. Kamala Jammannia varu vs Special Land Acquisition Officer, [1985] I SCC 582 and Bhag Singh vs Union Territory of Chandigarh, ; , referred to. </s> |
<s>[INST] Summarize the following judgement: Contempt Petition Nos.23640/91 & 263/91.
IN Special Leave Petition Nos. 11699, 11700, 11098, 11654, 10190/90 and 429 of 1988.
From the Judgment and Order dated 11.8.1989 of the Patna High Court in C.W.J.C.Nos.
1014, 1013,227,1365 ,red 1363 of 1988.
Prashant Bhushan for the Petitioner, P.D. Sharma for the Respondent.
The Judgment of the Court was delivered by A.S. ANAND, J.
Shorn of details the circumstances giving rise to the filing of these petitions seeking certain direc tions and initiation of contempt proceedings against the respondents are as follows: The petitioners were at the relevant time working as primary school teachers in the State of Bihar.
Services of some of the teachers were terminated.
The orders of termina tion were ' questioned before the High Court of Patna and a Division Bench of that Court vide judgment dated 11.8.1989 accepted the position that the services of the teachers had been terminated on account of improper and illegal recruit ment by the State.
The High Court was, however, of the opinion that the petitioners were not in any way responsible for the improper recruitment.
The Division Bench 418 gave a direction to the State to screen appropriately the cases of the petitioners and to recruit those who satisfy the requirements.
The Division Bench noticed as follows: "On the facts of this case, we observe that persons who are qualified for appointments deserve a consideration and appointment, accordingly on such posts for which they are qualified in preference to other candidates who may be qualified.
We, accordingly, direct the respondents to proceed to take up the appointments of the teachers in the Elementary Schools of Santhal Pargana and Deoghar by inviting applications from the petitioners and other persons who have been removed because they were illegally recruited by the District Superintendent of education and selected if they satisfy the eligibility conditions and appoint them.
In doing so the Respondent State must relax the age limit in case of any of the petitioners found to have become over age during the period of service on stipend and removal.
The petitioners and/or any other candidate who may be appointed in the vacancy so created on account of removal of the peti tioners and other persons appointed by the District Superintendent of Education shall however not claim any benefit of the appoint ment illegally given to them by the District Superintendent of Education but shall receive emoluments and other benefits by dint of their selection and appointment in accordance with law.
" The Court also found that the orders served on the petitioners were violative of principles of natural justice.
However, the Court did not quash the orders of termination but directed that in future selections, preference would be given to the petitioners.
The petitioners filed special leave petitions seeking quashing of the termination orders.
In the special leave petitions certain directions came to be issued by this Court on 7.2.1991.
The State of Bihar was directed that it should carry out the selection process for the retention of the services of those teachers who were qualified at the time of their appointment and that such of the teachers who were found qualified were to be taken back in the employment and were to be given full benefit of continued service irrespective of any break in service on account of the termination of the services.
This court also noticed that the direction of the High Court to the State to hold fresh selections and the methodology to be adopted therefor had become final against the State in as much as the State had not called in question the order of the Divi sion Bench and those directions of the 419 High Court did not require interference.
The Court gave three months to the State for completion of the selection process in accordance with the directions of the High Court.
The outside limit during which the process was required to be completed was fixed as 30th June, 1991.
The Court ob served: "In considering the suitability for selection the Rules which were in force at the time the Teachers were recruited should be taken into account and disqualification shall not be imposed on the basis of any altered Rule.
It will also be open to the State to consider the claim of Teachers who came after the altered Rules in terms of the Rules in force.
The bar of age, we reiterate the direction of the High Court, shall not be used against the Teachers for their selection.
Those of the Teachers who have served in the past but there has been a break in service on account of termination shall have the credit of past service both in regard to the payment of salary as also seniority and other service benefits.
" It transpires that consequent upon the order of this Court dated 7.2.1991, the Commissioner cum Secretary, Human Resources Department, Government of Bihar, made an order on 28.6.1991 determining the categories out of the dismissed teachers, who were eligible for reappointment.
The Commis sioner took the view that under the executive directions/regulations only trained teachers were eligible for appointment in both the categories while the untrained teachers, in exceptional circumstances, could be appointed against the reserved categories of Scheduled Castes, Sched uled Tribes, Urdu and Sanskrit only.
In other words, the Commissioner concluded that those untrained teachers who did not belong to any of the aforesaid four categories but belonged to the general category were not eligible for appointment.
Thus, out of the untrained dismissed teachers numbering about two thousand, only about eighty one teach ers, it is alleged, were found to be qualified and their services were retained.
The petitioners allege that the order of the Commissioner is completely contrary to the executive directions and is also in clear contravention of the order of this Court dated 7.2.1991.
Shri Shanti Bhushan, learned Senior Advocate, appearing for the petitioners submitted that the Commissioner had given a completely wrong interpretation to the executive directions/regulations relating to the appointment of pri mary and middle school teachers in the State of Bihar and had deliberately contravened the orders of this Court dated 7.2.1991.
420 Shri B.B. Singh, learned counsel appearing for the State of Bihar, in reply submitted that there had been no contra vention of the order of this Court dated 7.2.1991 and that the Commissioner had placed a correct interpretation on the executive directions/regulations and had construed the judgment of this Court in the light of that interpretation and, therefore, he had committed no contempt.
Learned coun sel submitted that the interpretation placed by the Commis sioner deserved acceptance.
We have gone through the executive directions/regula tions issued in the form of office letters/orders etc.
concerning the working of The Bihar Non Government Primary School (Taking over of control) Ordinance 1976 and, in particular, the directions relating to the "preparation of waitinglist and appointment of teachers" (para 1) and "the qualifications of candidate for appointment and waiting list" (para 2).
The directions, inter alia, provide that while appointing the teachers I.Sc.
trained will be appoint ed on the basis of I.Sc.
trained and only matric with science trained will be appointed on the basis of matric trained.
Where candidates of the aforesaid qualifications are not available in required number, the candidates having qualifications more than those stated above may also be appointed.
The names of the candidates, in each category, will be written yearwise in the following manner: ". first of all matric trained, then I.A, 1.
trained and thereafter graduate trained, on the basis of marks obtained in educational and training courses and their appointments will be made accordingly.
" Sub clause (d) of Para 2, however, provides: "After the names of trained candidates the names of untrained candidates, of each catego ry will be written in sequence of marks ob tained and qualification." Sub Clause (f) of Para 2 reads thus: "Untrained candidates of different educational qualification may be appointed in reserved category under special circumstances when trained candidates are not available." Sub Clause (1) of Para 2 reads as follows: "Untrained candidates having the qualification of matric or more than it may be appointed in the preliminary pay scale Matric untrained (Middle Trained)." 421 A conjoint reading of the executive orders/directions shows that the untrained candidates are also capable of being appointed in each category but only when the trained teachers are not available in the particular category.
The trained teachers in the order of sequence would indeed get preference over the untrained teachers.
The interpretation placed by the Commissioner, there fore, is not correct and if that interpretation is accepted it would efface the very effect of the order of this Court dated 7.2.1991 and defeat the object of that order which was aimed at providing that all the schools must have teachers.
The Court had taken note of the situation that there was an acute shortage of teachers in primary schools of Santhal Parganas of Bihar due to which most of the schools had been closed down and therefore to tide over the situation the directions extracted above, were given.
The Court had reit erated the directions of the High Court that while making fresh selections the bar of age should not be used against the teachers.
The order of the Court applied to untrained teachers for all the categories also.
The Commissioner has made an order which, in our opinion, is not in conformity with the directions given by this Court and the Division Bench of the High Court.
The directions of the Court, in the peculiar facts and circumstances of the case arising out of closure of a number of schools for want of teachers, provid ed inter alia that even the untrained teachers were entitled to be selected and appointed not only in the reserved cate gories but also in the other categories, provided trained teachers are not available and the untrained teachers are otherwise qualified, without putting the bar of age against them.
From the material on record and after hearing learned counsel for the parties, we are not satisfied that it is a case in which it can conclusively be said that the respond ents have wilfully or deliberately or contemptuously flouted or disobeyed the orders of this Court dated 7.2.1991.
It appears to us to be a case of misinterpretation of the executive directions and order of this Court dated 7.2.1991 and is, therefore, not a fit case in which contempt proceed ings need to proceed any further.
We, accordingly, drop the contempt proceedings and discharge the Rule issued against the respondents.
Since the Court has found entitlement of the untrained teachers in all the categories to appointment provided they are otherwise qualified and trained teachers are not avail able, we direct the respondents to properly comply with the orders of this Court dated 7.2.1991 and select and appoint untrained teachers who are otherwise qualified for appoint ment in all categories without putting the condition of training or age bar against 422 them where trained teachers are not available.
The State must conclude the process of fresh selection in the light of the observations made in this order expeditiously and, in any case.
not later than three months from today.
The petitions are disposed of accordingly.
R.P. Petitions dis posed of. [/INST] The Bihar Non Government Primary School (Taking over of Control) Ordinance, 1976 provided by Para 1 and Para 2 that while appointing teachers, I.Sc. trained will be appointed on the basis of I. Sc trained and only Matric with Science trained will be appointed on the basis of Matric trained, and where such candidates were not available the candidates having qualifications more than these would also be appoint ed.
The petitioners were untrained primary school teachers in the State of Bihar.
Later on their services were termi nated.
They filed writ petitions before the High Court which held that their services had been terminated because of improper and illegal recruitment by the State for which they were not responsible, and that the termination orders were violative of principle of natural justice, but did not quash the orders of termination, and directed the State Government to recruit those dismissed teachers who satisfied the re quirements, and to relax the age limit in case of those who meanwhile became overage.
On the special leave petitions filed by the petitioners this Court by its order dated 7.2.1991, directed the State Government to carry out the selection process to take back in the employment the teachers who were found qualified under the Rules in force at the time of 416 their initial appointment, and to give them full benefit of continued service irrespective of any break in service on account of the termination.
In the special circumstances of the case arising out of closure of a number of schools for want of teachers, the Court held that in the event of non availability of trained candidates even untrained candidates could be appointed, and gave time till 30.6.1991 to complete the selection process in accordance with the directions of the High Court.
Consequent there to the Commissioner cum Secretary, Human Resources Department, Government of Bihar made an order determining eligible categories for reappointment out of the dismissed teachers and hold that under the executive directions/regulations only trained teachers were eligible for appointment while untrained teachers, in exceptional circumstance could be appointed against the reserved catego ries of Scheduled Castes, Scheduled Tribes, Urdu and San skrit only, and held that those untrained teachers who did not belong to any of these categories were not eligible for appointment.
The petitioners filed contempt petitions contending that the Commissioner gave a completely wrong interpretation to the relevant executive directions/regulations and had delib erately contravened this Court 's order dated 7.2.1991.
On behalf of the respondents it was contended that the Commis sioner had correctly interpreted the executive orders/regu lations and did not contravenes this court 's order and, therefore, he committed no contempt.
Disposing of the contempt petitions, this Court, HELD: 1.
(1) The directions of the Court provided that even the untrained teachers were entitled to be selected and appointed not only in the reserved categories but also in the other categories, provided trained teachers were not available and the untrained teachers were otherwise quali fied without putting the bar of age against them.
[p.421D E] 1.2 The interpretation placed by the Commissioner, was not correct and if that interpretation be accepted, it would efface the very effect of the order of this Court dated 7.2.1991 and defeat the object of that order which was aimed at providing that all the schools must have teachers.
The Commissioner 's order was not in cOnformity with the direc tions given by this Court and the High Court.
[p. 421 B D] 417 2.
It appears to be a case of misinterpretation of the executive directions and order of this Court dated 7.2.1991 and was, therefore, not a fit case in which contempt pro ceedings need to proceed any further.
It could not conclu sively be said that the respondents wilfully or deliberate ly or contemptuously flouted or disobeyed the orders of this Court dated 7.2.1991.
[p 421 E F] 3.
The respondents should properly comply with the orders of this Court dated 7.2.1991 and select and appoint untrained teachers who are otherwise qualified for appoint ment in all categories without putting the condition of training or age bar against them where trained teachers are not available.
The process of fresh selection must be con cluded expeditiously and, in any case, not later than three months from the date of the order.
[pp 421 G H; 422 A] </s> |
<s>[INST] Summarize the following judgement: ivil Appeal No. 11 of 1950.
Appeal from the judgment and decree of the High Court of Bombay (Bhagwati and Dixit JJ.) dated 16th December, 1948, in Second Appeal No. 1226 of 1945 confirming a judg ment and decree of the District Judge of Dharwar in Appeal No. 123 of 1943.
The facts of 404 the case and the arguments of the counsel appear in the judgment.
B. Somayya and Sanjiva Rao Naidu (N. C. Shaw, with them) for the appellant.
M.C. Setalvad, Attorney General for India, (V. N. Lokur, with him) for the respondents Nos. 1 and 2.
M.C. Setalvad, Attorney General for India, (G. N. Joshi, with him) for respondent No. 3 (the State of Bombay.) 1952.
January 30.
Judgment was delivered by BOSE J. PATANJALI SASTRI C.J. and DAS J. agreed with Bose J. Bose J.
The plaintiff appeals.
The suit relates to a Saranjam estate in the State of Bombay.
The plaintiff claims to be the sole Saranjamdar and seeks certain declarations and other reliefs appropriate to such a claim.
The first and second defendants are members of the plaintiff 's family while the third defendant is the State of Bombay (Province of Bombay at the date of the suit).
The only question is whether the suit is barred by section 4 (a) of Bombay Act X of 1876 (Bombay Revenue Juris diction Act).
The following genealogical tree will show the relation ship between the parties: Bhujangrao Appasaheb (British grantee) Daulatrao I (died 24 7 1864) Bhujangrao I Malojirao Yeshwantrao alias (died 1881 ) : Annasaheb : : : (widow) Krishnabai Daulatrao III Bhujangrao II Daulatrao II (Del. 1) (Def. 2) (died 8 5 1931) : Bhujangrao III (Plaintiff) 405 The facts are as follows.
A common ancestor of the present parties was given the Gajendragad estate as a Saran jam some time before the advent of the British.
When they arrived on the scene they decided, as far as possible, to continue such Saranjams, jagirs and inams as had been grant ed by the earlier rulers, and accordingly they framed rules under Schedule B, Rule 10 of Bombay Act XI of 1852 (The Bombay Rent Free Estates Act of 1852) to regulate the mode of recognition and the succession and conditions of tenure to Saranjams, which are analogous to jagirs.
In compliance with this, the common ancestor shown at the head of the genealogical tree set out above was recognised by the Brit ish Government as the Saranjamdar of the Gajendragad estate.
He may for convenience be termed the British Grantee.
The Register exhibit P 53 shows that the estate consisted of 26 villages.
We do not know the date of the British recognition but the nature of the tenure is described as follows : "Continuable to all male legitimate descendants of the holder at the time of British conquest, viz., Bhujangrao Appasaheb, the first British Grantee, son of Bahirojirao Ghorpade.
" On the death of the British Grantee (Bhujangrao Appa saheb) he was succeeded by his son Daulatrao I who died on the 24th of July, 1864.
This Daulatrao I left three sons, Bhujangrao I, Yeshwantrao and Malojirao.
In the year 1866 Bhujangrao I and his brother Yesh wantrao alias Annasaheb sued Malojirao for possession of this Saranjam.
A question of impartibility was raised but the Bombay High Court declared that the property in British India was partible.
They further declared that Bhujangrao I was the head of the family and as such was entitled to a special assignment which was not to exceed a quarter share, for the expenses and duties which might devolve on him by virtue of his position, and that after this had been set aside each of the three brothers was entitled to an equal one third Share in the landed property in India.
This judgment 406 is reported in The duties enumerated at page 170 included the "keeping up of armed retainers for the fort of Gajendragad, and for the improvement of that vil lage, which was the chief seat of this branch of the Ghor pade family, and also to enable him to distribute on ceremo nial occasions the customary presents to the junior members of the family.
" The judgment is dated the 12th of October, 1868.
As a consequence a division of the property was ef fected.
Malojirao separated himself from his brothers and was allotted seven villages.
The other two brothers continued joint and took the remainder.
But this was only with respect to property situate in British India.
The parties also had property in the State of Kolhapur.
That was left undivided.
Bhujangrao I died in 1881 and his younger brother Yesh wantrao (alias Annasaheb) claimed to succeed as the sole heir.
The Political Department of the Government of India refused to recognise this claim and permitted Bhujangrao I 's widow Krishnabai to adopt a a boy from the family and recog nised him as the heir in respect of that portion of the estate which lay within the Principality of Kolhapur.
This was on the 3rd of February, 1882.
The Bombay Government followed a similar course regarding the property in British India.
On the 26th of April, 1882, they passed a Resolution embodying the follow ing decision: (1) The adoption was to be recognised and the adopted son was to occupy the same position as his adoptive father, that is to say, he was to get one third of the property plus the assignment given to him as head of the family.
(2) Malojirao who had already taken his share of the estate was to continue in possession.
(3) Yeshwantrao (alias Annasaheb) was given the option of remaining joint with the adopted boy or separating.
Finally, the Resolution Concluded 407 ``The two brothers will hold their respective shares as their private property in virtue of the decree of the High Court and the Jahagir will henceforth be restricted to the portion awarded by the High Court to Bhujangrao which the adopted son will now inherit.
It should however be clearly understood that the decision of the High Court is not to be held as a precedent and that no partition of the Jahagir Estate to be continued to the adopted son will ever be allowed.
" This position was emphasised by Government in the same year on the 22nd August, 1882.
Krishnabai, who had been allowed by Government to adopt Daulatrao II, asked that her husband 's one third share in the estate be also treated as private property in the same way as the shares of the other two brothers.
This prayer was refused and Government stat ed: "It should be plainly understood that Government allow the adoption to be made by her only in consideration of Bhujangrao 's one third share as well as the portion assigned to him as head of the family being continued to the adopted son as indivisible Jahagir Estate descending in the line of male heirs in the order of primogeniture and subject to no terms whatsoever as to the enjoyment of the same by Krishna bai during her lifetime.
" The position was re examined by Government in 1891 and its decision was embodied in the following resolution dated the 17th of March, 1891: "It appears to Government that the whole Gajendragad Estate is a Saranjam continuable as hereditary in the full est sense of the word as interpreted by the Court of Direc tors in paragraph 9 of their Despatch No. 27 dated 12th December, 1855.
It is continuable to all male legitimate descendants of the holder at the time of the British con quest; and should Government ever sanction an adoption the terms of sanction would be those applicable to Saranjamdars.
The property should be dealt with like Other Saranjams in the Political Department.
" 53 408 In the year 1901 the adopted son Daulatrao II sued Yeshwantrao 's son Bhujangrao II for partition.
It will be remembered that in the litigation of 1866, which ended in the Bombay High Court 's judgment reported in 5 Bom.
H.C.R. 161, Malojirao alone separated and the other two brothers continued joint.
The litigation of 1901 put an end to that position.
High Court 's judgment dated the 12th of March, 1908, makes it clear that as Government was not a party to that litigation its rights against either or both of the parties were not affected.
But as between the parties inter se they were bound by the previous decision and so the adopted son was entitled to partition and separate posses sion of such properties as might fall to his share.
After this decision was given the two partitioned the property between themselves amicably.
In or about the year 1930 a Record of Rights was intro duced in fourteen of the villages in the Gajendragad Jaha gir and a dispute arose again between the three branches of the family.
The District Deputy Collector, after inspecting the records, found that "the name of the Khatedar Saran jamdar alone has found place in the village Inam register, in the Saranjam list and the land alienation register," while in the other village records the various members of the family were entered according to the "actual wahivat or enjoyment." After due consideration he thought that the interest of Government and the Saranjamdar would be sufficiently safeguarded by allowing the same position to continue.
He ordered the entries to be made accordingly.
The order also discloses that the matter had been referred to the Legal Remembrancer to the Bombay Government.
In the meanwhile, on the 5th of May, 1898, a set of Rules framed under Schedule B, Rule 10, of the Bombay Rent Free Estates Act of 1852 were drawn up and published in the Bombay Gazette.
These Rules were republished, probably with some modification, in the Gazette of 8th July, 1901.
The portions applicable here were as follows: 409 "I. Saranjams shall ordinarily be continued in accordance with the decision already passed by Government in each case.
A Saranjam which has been decided to be hereditarily continuable shall ordinarily descend to the eldest male representative, in the order of primogeniture, of the senior branch of the family descended from the first British Gran tee or any of his brothers who were undivided in interest.
But Government reserve to themselves their rights for suffi cient reason to direct the continuance of the Saranjam to any other member of the said family, or as an act of grace, to a person adopted into the same family with the sanction of Government.
V. Every Saranjam shall be held as a life estate.
It shall be formally resumed on the death of the holder and in cases in which it is capable of further continuance it shall be made over to the next holder as a fresh grant from Gov ernment, unencumbered by any debts, or charges, save such as may be specially imposed by Government itself.
No Saranjam shall be capable of sub division.
Every Saranjamdar shall be responsible for making a suitable provision for the maintenance of. "(certain members of the family enumerated in the Rule).
If an order passed by Government under Rule VII is not carried out, Government may, whatever the reason may be, direct the Saranjam, or a portion of it, to be resumed. .
Provision for the members of the Saranjam dar 's family entitled to maintenance shall then be made by Government out of the revenues of the Saranjam so resumed.
" After the District Deputy Collector 's orders were passed on the 20th of May, 1930, Daulatrao II died on the 8th of May, 1931, and the matter was again taken up by Government.
This time it passed the following 410 Resolution on the 7th of June, 1932.
The Resolution was headed, "Resumption and regrant of the Gajendragad Saranjam standing at No. 91 of the Saranjam List.
" It reads "Resolution : The Governor in Council is pleased to direct that the Gajendragad Saranjam should be formally resumed and regranted to Bhujangrao Daulatrao Ghorpade eldest son of the deceased Saranjamdar Sardar Daulatrao Bhujangrao Ghorpade and that it should be entered in his sole name in the accounts of the Collector of Dharwar with effect from the date of the death of the last holder.
The Collector should take steps to place the Saranjamdar in possession of the villages of the Saranjam estate which were in possession of the deceased Saranjamdar.
The Governor in Council agrees with the Commis sioner, Southern Division, that the assignments held by the Bhaubands as potgi holders should be continued to them as at present.
" The Bhujangrao mentioned in the Resolution is the plain tiff who is shown as Bhujangrao III in the genealogical tree.
The defendants were evidently aggrieved by this, for they filed Suit No. 23 of 1934 against the present plaintiff and the Secretary of State/or India in Council praying inter alia "that the properties in that suit, viz., the villages allotted to their shares, were their independent and private properties and in case they were held to be Saranjam proper ties, they be declared as independent Saranjams, separate and distinct from the one held by the present plaintiff.
" This suit was withdrawn with liberty to bring a fresh suit on the same cause of action against the present plain tiff but not against the Secretary of State for India in Council.
According to defendants 1 and 2, this was pursuant to an arrangement between the Government and themselves that Government would issue a fresh Resolution in terms of the earlier Resolution dated the 17th of March, 1891.
411 This was done.
On the 25th of February, 1936, Government passed the following Resolution : "Resolution : After careful consideration the Governor in Council is pleased to confirm the decision in Government Resolution (Political Department) No. 1769 dated the 17th of March, 1891,and to declare that the whole of the Gajendragad Estate shall be continuable as an inalienable and impartible Saranjam on the conditions stated in the said Resolution.
Having regard, however, to the manner in which different portions of the estate have been held by different branches of the family, the Governor in Council, in modification of the orders contained in Government Resolution No. 8969 dated the 7th June, 1932, is pleased to direct that the portions of the said estate held by Sardar Bhujangrao Daulatrao Ghorpade, Daulatrao Malojirao Ghorpade and Bhujangrao Yeshwantrao Ghorpade, respectively, shall henceforth be entered in the Revenue Records as de facto shares in the said estate held by the said persons as representatives, respectively, of three branches of the Ghorpade family.
Each of the said de facto shares shall be continuable hereditarily as such as ii it were a separate Saranjam estate in accordance with the rules made for the continuance of Saranjams by the Governor in Council in exercise of the powers referred to in the rules framed under the Bombay Rent Free Estates Act, 1852, and section 2 (3) of the Bombay Summary Settlement Act (VII of 1863) and such special orders as the Governor in Council may make in regard to the Gajendragad Estate as a whole or in regard to the said share.
The recognition of the aforesaid shares and their entry in the Revenue Records as separate shares shall not be deemed to amount to a recognition of the estate of Gajendragad as in any manner partible or alienable and shall not in any way affect the right of Government to treat the said estate as an entire impartible and inalien able Saranjam estate.
The Governor in Council further directs that the aforesaid shares shall in no case be capable of 412 sub division and shall not in any way be alienated or encum bered except in accordance with the rules and orders re ferred to above. " The present suit is an attack on the action of Govern ment in passing this Resolution.
The first and second defendants are the present representatives of the other branches of the family and the third defendant is the Prov ince of Bombay (now the State of Bombay).
The plaint states "9.
Government can have no jurisdiction to deprive the plaintiff at any rate during his lifetime of the full bene fit of all the rights and privileges appertaining to the holder of a Saranjam.
The Order of Government of the 8th February, 1936 is, therefore, ultra vires and in no way binding on the present plaintiff. 10.
Defendants 1 and 2, therefore, are not entitled to any rights or privileges claimable by the holder of a Saran jam which according to the G.R. is continuable 'as an inali enable and impartible Saranjam ', such as for example in the matter of appointment of the village officers in any of the 27 villages appertaining to the Gajendragad Saranjam.
The cause of action arose in April 1938 and the resolution and the entry being ultra vires is not binding. 12.
As this is a suit claiming for relief primarily against defendants 1 and 2, defendant 3 is made a party to the suit in order to enable Government (defendant 3) to give proper effect to the decision of Government of the 17th March, 1891, and of 7th June, 1932, as against defendants 1 and 2 who have no right to the position which they claim. " The reliefs prayed for are "(a) That it be declared that defendants 1 and 2 have no right to go behind the order of the Government as per Reso lution No. 8969 of 7th June, 1932, under which plaintiff is entitled to be recognised as the sole Saranjamdar in the Revenue Records, and that the assignments held by defendants 1 and 2 are held by them as mere potgi holders.
413 (b) That in consequence of his position of a sole Saran jamdar the plaintiff alone at any rate during his lifetime has the sole right to the rights and privileges appertaining to the post of a sole Saranjamdar, to wit, to be consulted in the appointment of the village officers in all the villages appertaining to the Saranjam estate, but assigned to defendants 1 and 2 for potgi. (c) Defendants 1 and 2 be restrained from doing any acts or taking any steps in contravention of the aforesaid right of the plaintiff.
(d) That it be declared that defendant 3 (Government) have no right to change the Resolution No. 8969 of 7th June, 1932, and at any rate during the lifetime of the plaintiff.
" The first Court dismissed the plaintiff 's claim on the merits holding that Government had the right to amend its Resolution in the way it did.
The lower appellate Court also dismissed the suit on three grounds: (1) that the two previous decisions of 1868 and 1908 operate as res judicata, (2) that the impugned Resolution is intra vires and (3) that section 4 (a) and (d) of the Revenue Jurisdiction Act bars the jurisdiction of the Court.
In second appeal the High Court only considered the question of jurisdiction and, agreeing with the lower appel late Court on the point, dismissed the appeal but it granted the plaintiff leave to appeal to this Court.
The only question we have to consider is the one of jurisdiction.
Section 4 of the Bombay Revenue Jurisdiction Act, 1876 (Bombay Act X of 1876), runs Subject to the exceptions hereinafter appearing, no Civil Court shall exercise jurisdiction as to (a). claims against the Crown relating to lands. held as Saranjam. " It was strenuously contended that this is not a claim against the Crown but one against the first and second defendants.
That, in my opinion, is an idle contention in view of paragraphs 9 and 12 of the plaint and reliefs (a)and (d).
In any event, Mr. Somayya was asked whether he would strike out the third defendant 414 and those portions of the plaint which sought relief against it.
He said he was not prepared to do so.
I cannot see how a plaintiff can insist on retaining a person against whom he claims no relief as a party.
I am clear that this is a suit against the "Crown" within the meaning of section 4(a).
The next question is whether, assuming that to be the case, it is also one "relating to lands held as Saranjam.
" So far as the reliefs sought against Government are concerned, that is clearly the case.
Paragraph 9 of the plaint challenges Government 's jurisdiction to deprive the plaintiff of the full benefit of all rights and privileges appertaining to the holder of a Saranjam.
These rights cannot exist apart from the lands which form part of the Saranjam estate and the implication of the prayer is that Government has, for example, no right to resume the Saranjam either under Rule V on the death of the last Saran jamdar or under Rule IX during his lifetime.
It is to be observed that a resumption under Rule IX can only be of the land because the rule directs that when the Saranjam is resumed Government itself shall make provisions for the maintenance of those entitled to it "out of the revenues of the Saranjam so resumed.
" These revenues can only come out of the land.
Relief (d) in the prayer clause seeks a declaration that Government has no right to change Resolution No. 8969 dated the 7th of June, 1932.
That Resolution directly relates to the land because it directs that the Gajendragad Saranjam be resumed and the Collector is directed to take steps to place the Saranjamdar in possession of the villages of the Saran jam estate etc.
It is impossible to contend that this is not a claim relating to lands held as Saranjam.
It was next argued that if that be the case the claim against Government can be dismissed and the plaintiff can at least be given the reliefs claimed against the other two defendants.
These, it was contended, do not relate to land and in any event are not claims against the "Crown".
415 In my opinion, this is not a suit in which the rights claimed against the other defendants can be divorced from the claim against Government and considered separately.
That is evident enough from paragraph 10 of the plaint.
In para graph 9 the power of Government to deprive the plaintiff of the rights he claims is challenged and in paragraph 10 the plaintiff explains that "therefore" the first and second defendants are not entitled to any of the rights and privileges of the Saranjamdar.
One of those rights, as we have seen from Rules VII and IX, is to take the revenues of the entire estate in order that he might fulfil his obligation regarding the payment of maintenance to certain members of the family; and if the defendants claim to hold their lands under the orders of Government and the plaintiff insists on retaining Government as a party in order that it may be bound by the decree he wants against the other defendants it is obvious that his claim against these defendants cannot be separated from his claim against the Government.
In any event, if the claim against Government is to be ignored it can only be on the basis that its orders cannot be challenged and if the orders stand it is evident that the plaintiff can have no hope of success because both sides hold their respective properties on the basis of those orders.
There are two decisions of the Bombay High Court which have taken this view.
Basalingappagouda vs The Secretary of State for India(1) was a Watan case.
Government had recog nised the second defendant as the Watandar.
Plaintiff sued Government and the second defendant and sought a declaration and injunction.
On being faced with the dilemma that the suit against Government did not lie because of section 4 (a) (3) of the Bombay Revenue Jurisdiction Act of 1876, he asked the Court, as here, to leave the Government out of consider ation and decree his claim against the second defendant alone.
The learned Judges held that that would amount to striking out the main relief sought against both the defend ants and would entirely (1) 28 Born.
L.R. 651.
54 416 change the character of the suit and added that "as long as the Secretary of State is a party to the suit, such a decla ration could not be granted.
" In the other case, Basangauda vs The Secretary State(1), Beaumont C.J. and Baker J. took the same view.
They said "Mr. Gumaste, who appears for the appellant, says that his claim is not a claim against the Government but in that case he ought to strike out the Government.
He is not pre pared to strike out the Government, because if he does they will not be bound by these proceedings and will follow the decision of their revenue tribunals.
Therefore, he wants to make the Government a party in order that they may be bound.
But, if they remain a party, it seems to me that there is a claim against them relating to property appertaining to the office of an hereditary officer, although no doubt it is quite true that the appellant does not desire to get any order against the Government as to the way in which the property should be dealt ' with or anything of the sort, and he only wants a declaration as to his title which will bind Government." They held that the jurisdiction of the courts was oust ed.
It was next contended, on the strength of a decision of the Judicial Committee of the Privy Council reported in Province of Bombay vs Horrnusji Manekji(2).
that the courts have jurisdiction to decide whether Government acted in excess of its powers and that that question must be decided first.
In my opinion, this decision does not apply here.
Their Lordships were dealing with a case falling under section 4 (b) of the Bombay Revenue Jurisdiction Act of 1876.
That provides that ". no Civil Court shall exercise jurisdiction as to. . (b) objections to the amount or incidence of any assess ment of land revenue authorised by the Provincial Govern ment.
" (1) (2) 74 I A. 103 417 As pointed out by Strangman K.C., on behalf of the plaintiff respondent, "authorised" must mean "duly autho rised," and in that particular case the impugned assessment would not be duly authorised if the Government Resolution of 11 4 1990 purporting to treat the agreement relied on by the respondent as cancelled and authorising the levy of the full assessment was ultra vires under section 211 of the Land Revenue Code.
Thus, before the exclusion of the Civil Court 's jurisdiction under section 4 (b) could come into play, the Court had to determine the issue of ultra vires.
Consequently, their Lordships held that that question was outside the scope of the bar.
But the position here is different.
We are concerned here with section 4 (a) and under that no question about an authorised act of Government arises.
The section is general and bars all "claims against the Crown relating to lands. held as Saranjam.
" That is to say, even if the Government 's act in relation to such lands was ultra vires, a claim impugning the validity of such an act would fall within the scope of the exclusion in clause (a) provided it relates to such land.
There is a difference of opinion in the Bombay High Court as to whether section 4 is attracted if the only relief sought against Government is a declaration.
One set of decisions holds that that does not amount to a "claim against Government.
" Dattatraya Vishwanath vs The Secretary of State for India(1) is typical of that view.
On the other hand, Daulatrao vs Government of bombay(2), a case relating to the Gajendragad estate, took the other view.
In my opin ion, the latter view is correct.
In my opinion, the decision of the High Court was right and I would dismiss the appeal with costs.
PATANJALI SASTRI C.J. I agree.
S.R. DAS J. I agree.
Appeal dismissed.
Agent for respondents Nos. 1 & 2: M.S.K. Sastri.
Agent for respondent No. 3; P.A. Mehta.
(1)I.L.R. 1948 Born.
809 at 820. [/INST] The position of the Gajendragad estate which had been recognised by the British Government as a saranjam and which had been declared by the Bombay High Court in 1868 to be partible, was re examined in 1891 and Government passed a Resolution in 1891 that "the whole of the Gajendragad estate was a saranjam continuable as hereditary in the fullest sense of the word.
It is continuable to all male legitimate descendants of the holder at the time of the British con quest." In 1932 by another Resolution Government formally resumed the grant and re granted it to the plaintiff who belonged to the first branch of the family of the original grantee with a direction that it should be entered in his sole name in the accounts of the Collector.
The other two branches felt aggrieved and in 1936 Government passed anoth er Resolution which confirmed the Resolution of 1891 and modified the Resolution of 1932, by declaring that the portions of the 403 estate held by the branches shall be entered as de facto shares and that each share shall be continuable hereditarily as if it were a separate saranjam estate.
The plaintiff instituted a suit impleading the representatives of the other two branches as defendants 1 and 2, and the Province of Bombay as the 3rd defendant, alleging that the Resolution of 1936 was ultra vires and praying (A) for a declaration (i) that the defendants 1 and 2 had no right to go behind the Resolution of 1932 under which the plaintiff was recog nised as the sole saranjamdar and that the assignments held by defendants were held by them as mere potgi holders, (ii) that the plaintiff had the sole right to all privileges appertaining to the post of saranjamdar, and (iii) that the Government had no right to change the Resolution of 1932, and (B) for restraining the defendants 1 and 2 from doing any acts in contravention of the aforesaid right of the plaintiff.
Held, (i) that the suit was a suit "against the Crown" and also a suit "relating to lands held as saranjam" within the meaning of sec.
4 of the Bombay Revenue Jurisdiction Act, 1876, and the Civil Courts had no jurisdiction to entertain the suit; (ii) that the plaintiff could not be given even the reliefs claimed against defendants 1 and 2 alone, as the rights claimed against these defendants could not be di vorced from the claim against the Government and considered separately; (iii) in any event if the claim against the Government was to be ignored it can only be on the basis that its orders could not be challenged and if the orders stood, the plaintiff could not succeed because both sides held their respective properties on the basis of those orders.
Basalingappagowda vs Secretary of State (28 Born.
L.R. 651) and Basangauda vs Secretary of State (32 Bom.
L.R. 1370) approved.
Province of Bombay vs Hormusji Maneklal (74 I.A. 03) distinguished.
Held also, that see.
4 of the said Act would apply even if the only relief claimed in the suit against the Govern ment was a declaration.
Dattatreya Viswanath vs Secretary of State for India (I.L.R. disapproved.
Daulatrao vs Government of Bombay approved. </s> |
<s>[INST] Summarize the following judgement: Appeal No. 2355 of 1991.
WITH Civil Appeal Nos. 2356 66/91, 2366A 69/91, S.L.P.(C) Nos.
9755/ 91, 9830/91 & 10235 43 of 1991.
From the Judgment and Order dated 27.2.91 of the Punjab & Haryana High COurt in C.W.P. Nos.
8872/89, 10463, 10462/89, 15085/90, 17092/ 89, 11381/90, 15599/90, 12573/89, 14551/89, 10951/90 and 195 of 1991.
D.S.Tiwatia, Anil Mauriya, A.K.GoeI, Mrs. Sheela Goel and B.Y.Kulkarni for the Appellants.
G.Ramaswami Attorney General, G.L.Sanghi, Sudhir Walia, S.Murlidhar and Y.P.Rao for the Respondents.
The Judgment of the Court was delivered by YOGESHWAR DAYAL, J.
These appeals raise a question of the scope and effect of failure of compliance with Section 7 and/or Section 12 of the (hereinafter referred to as 'the Act ').
The question involved is that if the principal employer does not get registration under Section 7 of the Act and/or the Contractor does not get a licence under Section 12 of the Act whether the persons so appointed by the principal employer through the contract would be deemed to be the direct employees of the principal employer or not.
404 There is a direct conflict between the decisions of the High Courts of Punjab, Kerala on the one hand and the deci sions of Madras, Bombay, Gujarat and Karnataka High Courts on the other.
The view of the Punjab and Kerala High Courts is that the only consequence of non compliance either by the principal employer of Section 7 of the Act or by the con tractor in complying with Section 12 of the Act is that they are liable for prosecution under the Act; whereas the view of the High Courts of Madras, Bombay, Gujarat and Karnataka is that in such a situation the contract labour becomes directly the employee of the principal employer.
For the sake of convenience we deal with the facts of Civil Appeal No. 2355 of 1991.
This appeal arises from the decision of a Division Bench of the Punjab & Haryana High Court dated 27th February, 1991 passed in writ petition No. 8872 of 1989.
The Division Bench while deciding a batch of writ petitions followed its earli er decision in the case of Gian Singh & Ors.
F. CI., Patent Appeal No. 1215 of 1990) which has since been reported in The Division Bench in the aforesaid case of Gian Singh held that if the principal employer does not get registration as required under Section 7 of the Act and/or the Contractor does not get the licence under section 12 of the Act, the persons who are appointed by the principal employer through the contrac tor, the only consequence is the penal provisions contained in sections 23 and 24 of the Act and that the principal employer or contractor can be prosecuted under those sec tions, but the Act nowhere provides that such employees employed through the contractor would become the employee of the principal employer.
In the High Court judgment, under appeal, reliance was placed on behalf of the workmen on the views of the High Courts of Karnataka, Madras, Gujarat and Bombay in the cases reported as FCI.
Loading and Unloading Workers Union vs Food Corporation of India , The Workmen of Best & Crompton Industries Ltd. vs The Management of Best & Crompton Engineering Ltd., Madras and Ors., (1985) (1) Lid 492; Food Corporation of India Workers Union vs Food Corpo ration of India and Others and United Labour Union and Others vs Union of India and Others, but the High Court took the view that it was not applicable.
To appreciate the correctness of one view or the other.
it will be necessary to go through the object and the scheme of the Act.
The object; of the Act were dealt with by the Supreme Court in the case of M/s 405 Gammon India Ltd. and Others vs Union of India and Others, (1974) 1) SCC 596 in paragraph 14 at page 600 as follows: "The Act was passed to prevent the exploita tion of contract labour and also to introduce better conditions of work.
The Act provides for regulation and abolition of contract la bour.
The underlying policy of the Act is to abolish contract labour, wherever possible and practicable, and where it cannot be abolished altogether, the policy of the Act is that the working conditions of the contract labour should be so regulated as to ensure payment of wages and provision of essential amenities.
That is why the Act provides for regulated conditions of work and contemplates progres sive abolition to the extent contemplated by Section 10 of the Act, Section 10 of the Act deals with abolition while the rest of the Act deals mainly with regulation.
The dominant idea of Section 10 of the Act is to find out whether contract labour is necessary for the industry, trade, business, manufacture or occupation which is carried on in the estab lishment.
" As the long title and the preamble of the Act shows that it is an Act to regulate the employment of contract labour in certain establishments and to provide for abolition in certain circumstances and for matters connected therewith.
The Statement of Objects and Reasons mentions that the system of employment of contract labour has tended itself to various abuses and the question of its abolition had been under consideration of the Government for a long time.
The Planning Commission had made certain recommendations in the Second Five Year Plan viz. it undertook a study in this behalf on improvement of service conditions of contract labour where the abolition was not possible.
The general consensus thereafter was that the contract labour system should be abolished wherever possible and practicable and further that in a case where the system could not be abol ished altogether, the working conditions of contract labour should be regulated so as to ensure payment of wages and provision of essential amenities.
The above objects have been brought into the Act which was enacted in 1970.
Section 2 gives the definition of various words while section 3 deals with the constitution of Central Advisory Board and section 4 deals with the consti tution of State Advisory Board.
These boards are empowered to constitute various committees as mentioned in section 5.
Chapter III is important and deals with 'registration ' of establishment employing contract labour while Chapter IV deals with 'licensing ' of 406 contractors employed by these establishments.
Section 7 deals with registration of certain establishment notified by the Government and these establishments are obviously the principal employers as defined in section 2(g).
Section 8 provides for revocation of registration in certain cases and section 9 deals with the effect of non registration.
Under Section 9 no principal employer of an establish ment, to which the Act applies shall; (a) in case of an establishment required to be registered under Section 7, but which has not been registered within the time fixed for the purpose under that section (b) in the case of an establish ment the registration in respect of which has been revoked under Section 8 employ contract labour in the establishment after the expiry of the period referred to in clause (a) or after the revocation of registration referred to in clause (b), as the case may be.
Section 10 deals with the prohibi tion of employment of contract labour which reads as fol lows: "10.
Prohibition of employment of contract labour ( 1 ) Notwithstanding anything con tained in this Act, the appropriate Government may, after consultation with the Central Board or, as the case may be, a State Board, prohib it, by notification in the Official Gazette, employment of contract labour in any process, operation or other work in any establishment.
(2) Before issuing any notification under sub section (1) in relation to an establish ment, the appropriate Government shall have regard to the conditions of work and benefits provided for the contract labour in that establishment and other relevant factors, such as .lm18 (a) whether the process, operation or other work is incidental to, or neces sary for the industry, trade, business, manufacture or occupation that is carried on in the establishment; (b) whether it is of perennial nature, that is to say, it is of sufficient duration having regard to the nature of industry, trade, business, manufacture or occupation carried on in that establish ment; (c) whether it is done ordinarily through regular workmen in that establish ment or an establishment similar theretO; (d) whether it is sufficient to employ considerable number of whole time workmen." Chapter IV deals with the licensing of contractors.
Sub clause (1) of 407 Section 12 states that w.e.f.
such date as the appropriate Government may, by notification in the Gazette, appoint, no contractor to whom this Act applies shall undertake or execute any work through the contract labour except under and in accordance with the licence issued in that behalf by the Licensing Officer.
Sub clause (2) of Section 12 provides that subject to the provisions of the Act, a licence in sub section (1) may contain such conditions including, in particular, conditions as to hours of work, fixation of wages and other essential amenities in respect of the labour contract as the appropriate Government may deem fit to impose in accordance with the rules, if any, made under Section 35 and shall be issued on payment of such fees and on the deposit of such sum, if any, as security for due performance of the conditions as may be prescribed.
Section 14 provides for revocation, suspension and amendment of the licences while Section 15 provides for an appeal.
Chapter VI deals with the penalties and procedures.
Section 22 deals with the obstructions.
Section 23 deals with contravention of provisions regarding employment of contract labour and Sections 24 and 25 deal with other offences and offences by companies.
Chapter VII makes certain miscellaneous provi sions and Section 30 provides that laws and agreements inconsistent with the provisions of the Act shall be void except where such agreements or contracts or standing orders afforded more favourable facilities to the employees than provided under the Act.
We shall also refer to Rule 25 of the Rules which mentions the conditions subject to which licence could be issued to a contractor under Section 12.
The said rule inter alia provides that a licence issued to a contractor shall not be transferable, that contractors cannot employ workmen in excess of the number specified therein and that rate of wages payable to the workmen shall be the rate prescribed under the .
Clause (v)(a) of the Rule 25(2) is important and reads as follows: "In cases where the workmen employed by the contractor perform the same or similar kind of working as the workmen directly employed by the principal employer of the establishment, the wage rates, holidays, hours of work and other conditions of service of the workmen of the contractor shall be the same as applicable to the workmen directly employed by the prin cipal employer of the establishment on the same or similar kind of work. ' Rule 25(2) further provides for accommodation for women and children and for the times of work of females.
From the above provisions it is clear that the Act serves two fold purposes (1) regulation of the conditions of service of the workers employed by the contractor who is engaged by a principal employer and; (2) 408 also provides for the appropriate Government abolishing contract labour altogether, in certain notified processes, operation or other works in any establishment.
Neither the Act nor the Rules flamed by the Central Government or by any appropriate Government provide that upon abolition of con tract labour, the said labour would be directly absorbed by the principal employer.
The question arises when the Act does not provide for such a measure, but contents itself by merely regulating the conditions of service of the contract labour, can the Court in proceedings under Article 226 of the Constitution, where the principal employer or the licence contractor violates the provisions of Section 9 or 12 respectively, direct that the contract labour so employed would become directly the employee of the principal employer.
The view of the Bombay High Court in the case of United Labour Union and Others vs Union of India (supra) was really concerned with the appropriate Government for purposes of notification being issued under Section 10(1) of the Act.
It took the view that the Central Government was the appropri ate Government in relation to Air India Corporation but after analysing the provisions of Section 2(ii)(b), 7,8,12,20,21 and 29 the Bombay High Court took the view "The combined effect of these provisions makes it clear that for a valid employment of con tract labour, two conditions must be ful filled, viz., (1) every principal employer of an establishment must be registered and (2) the contractor must have valid licence.
In other words, the mere registration by the principal employer or the holding of licence by contractor alone will not enable the man agement to treat the workmen as contract labour.
Whilst considering the provisions of the Act, it must be kept in mind that this Act is a piece of beneficial legislation.
The aim of the Act is to regulate conditions of serv ice of contract labourers and to abolish contract labour under certain circumstances.
It is therefore meant for securing proper conditions of service to under contract la bour.
It is not the purpose of the Act to render workmen jobless.
The interpretation which must be given is one which would further these objects and not one which results in greater hardship.
It must be noted that there is no provision which states that the rela tionship of principal employer and workmen comes to an end on the abolition of contract labour.
On the contrary as already stated there is a deemed contract labour only if the two conditions of registra 409 tion and licence are fulfilled.
In such a case i.e., where either or both the conditions are not fulfilled, the necessary implication would be that the workmen remain workmen of the principal employer.
It must be remembered that on a failure of the contractor to provide amenities or to pay wages the principal em ployer remains liable for the same.
The same would be the position on a failure by reason of there being no valid contract labour.
Mr. Dhanuka, however, submitted that the Act provides certain penal consequences for non registration.
He submits that there no such provision in the Act, the same cannot be implied.
He submits that in the absence of any such provision the Court cannot give any direction to that effect.
In my view, the penal provisions are provided to dissuade employers from attempting to commit a breach of the provisions of the Act and the Rules made thereunder.
They do not detract from the position that there can be no deemed contract labour if the two conditions are not satis fied.
If the protection or right given by reason of a deeming provision is not available then the natural consequence must follow in addition to the penal consequence, unless there is a provision to the contrary.
As already stated, in the Act there is no provi sion that the services of the workmen, qua the principal employer, stand terminated on the contract labour becoming invalid and/or abol ished".
(emphasis supplied) The question arising before us directly came up for consideration before a division bench of the Gujarat High Court in the case of Food Corporation of India Workers Union vs Food Corporation of India and Others (supra) which ob served : It is evident that (,i) the principal employer should obtain a Certificate of Regis tration and (ii) the workmen can be employed on contract labour basis only through licensed contractor.
The Certificate of Registration is required to be obtained by the principal employer, issued by the appropriate Government under the provisions of Section 7 of the Act.
The licence is to be obtained by the contrac tors under the provisions of Section 12 of the Act.
The workmen can be employed as contract labour only through licensed contractor.
Unless both these conditions are complied with, the provisions of the would not be 410 attracted.
Both these conditions are required to be fulfilled, if one wishes to avail of the provisions of the Act.
Even if one of the conditions is not complied with, the provi sions of the Contract Labour (Regulation & Abolition) Act, 1970 would not be attracted.
Therefore, in a situation wherein either of these two conditions is not satisfied, the position would be that a workman employed by an intermediary would be deemed to have been employed by the principal employer.
In the result it is declared that during the period when the two conditions of obtaining registra tion under Section 7 by the principal employer and of holding licence by the contractor are not complied with and the workmen are employed by contractor, the workmen can claim to be direct employees of the principal employer.
" The decision of the Madras High Court in The Workmen of Best & Crompton Industries Ltd. vs The Management of Best & Compton Engineering Ltd., Madras and Ors., really arose out of an award given by the Labour Court in an industrial dis pute.
The industrial dispute had been raised by the workmen of the principal employer.
They challenged the termination of service of workmen by the Management as the Management did not requisition the service of 75 workmen after 16th October, 1978 on the ground that they were employed by the licensed contractor.
This led to an industrial dispute and on a reference made of the said industrial dispute, the Labour Court rejected the contention of the Management and held that the so called contractor was a mere name lender and did not hold licence under the Act and directed the reinstatement of the workmen with backwages and other bene fits.
This award of the Labour Court was challenged before the High Court by the Management by a writ petition.
The learned Single Judge of the Madras High Court took the view that the conclusion of the Labour Court that the labour contractor was not early a labour contractor, but lie was merely acting as a tool in the hands of the Management is not supported either by the pleadings of the parties or by the evidence.
According to the learned single Judge there was absolutely nothing to displace the weighty documentary evidence in favour of the Management and therefore, he characterised the finding entered by the Labour Court to the contrary as being perverse and vitiated The division bench in Letters Patent Appeal reversed this finding of the learned Single Judge.
The High Court observed at page 497 "In order to enable the Management to have the benefit of the contract labour, the Act has now legalised the employment of 411 such contract labour, provided the intermedi ary contractor holds, a valid licence and provided the Management also holds a valid licence as principal employer.
This is subject to the prohibition contemplated under section 10.
There is no need for us to examine the content of S.10 in this case.
In order to regulate the employment of contract labour and to provide for abolition in certain circumstances, the said Act came to be passed.
According to section 7: "Provided that the registering officer may entertain any such application for registra tion after expiry of the period fixed in this behalf, if the registering officer is satis fied that the applicant was prevented by sufficient cause from making the application in time.
(2) If the application for registration is complete in all respects, the registering officer shall register the establishment and issue to the principal employer of the estab lishment a certificate of registration con taining such particulars as may be prescribed".
Under S.12 of the Act, no contractor to whom this Act applies, shall undertake or execute any work through con tract labour except under and in accordance with a licence issued in that behalf by the licensing officer.
Sub s.(2) of section 12 provides: "Subject to the provisions of this Act, a licence under sub section
(1) may contain such conditions including in particular conditions as to hours of work, fixation of wages and other essential amenities in respect of con tract labour as the appropriate Government may deem fit to impose in accordance with the rules, if any, made under S.35 and shall be issued on payment of such fees and on the deposit of such sum, if any, as security for the due performance of the conditions as may be prescribed".
The combined effect of these two provi sions in our view makes it clear that for a valid employment of "(1)Every principal employer of an establish ment to which this Act applies shall, within such period as the appropriate Government may, by notification in the Official Gazette, fix in this behalf with respect to establishments generally or with respect to any class of them, make an application to the registering officer in the prescribed manner for registra tion of the 412 establishment; contract labour, two conditions should be satisfied, viz., not only the prin cipal employer but also the contractor should possess the requisite licence.
In other words, the holding of licence by one alone will not enable the management to treat the workmen as contract labour." The High Court of Kerala in the case of P. Karunakaran vs The Chief Commercial Superintendent and Others, took the same view as was taken by the Punjab & Haryana High Court in the judgment under appeal.
A similar view was expressed by the Delhi High Court in the case of New Delhi General Mazdoor Union vs Standing Conference of Public Enterprises (Scope) & Another, (1991) 2 Delhi Lawyer 189.
The reference to the Labour Court/Industrial Tribunal could be as to whether it is necessary for the Management to employ contract labour directly or indirectly; a question can as well be referred whether the engagement of contract labour was bona fide or it was a camouflage.
In appropriate cases in industrial adjudication appropriate directions can be given to the principal employer in this behalf.
This has been the subject matter of decisions by the Tribunals/Labour Courts and by this Court also.
The case of Standard Vacuum Refining Co. vs Their Workmen is a case on this point.
It was a case where the workmen employed by an oil refinery demanded that the contract system of labour adopted by the company for cleaning mainte nance of the refinery belonging to the company should be abolished and the said demand was referred for adjudication.
It was found that the work for which the contract was given is incidental to the manufacturing process and is necessary for it and of a perennial nature which must be done every day and in these circumstances the Industrial Tribunal directed the Company to abolish the contract system of labour with effect from a particular date and to have the said work done through workmen engaged by itself.
This direction was given in view of the fact that the work was of a permanent nature and the labour employed through contrac tor was receiving much less wages than the unskilled workmen of the company and they were not having any other benefits and amenities like provident fund, gratuity, bonus, privi lege leave etc.
On the award of the Industrial Tribunal the Supreme Court gave the finding that it was an industrial dispute as defined under Section 20c) of the Industrial Disputes Act.
In dealing with the question whether the Tribunal was justified in giving the directions for abolish ing the contract system the Supreme Court noted that indus trial adjudication generally does not encourage employment of contract labour in modern times and it would be necessary to examine the merits of the dispute apart from gen 413 eral consideration that contract labour should not be encouraged; and that n any case the decision should rest not merely on theoretical or abstract objections to contract labour but also on the terms and conditions of the contract labour and the grievance made by the workmen thereof.
On facts the Supreme Court observed: "It may be accepted that the contractor in the present case is an independent person and the system is genuine and there is no question of the company carrying on this work itself and camouflaging it as if it was done through contractors in order to pay less to the work men.
But the fact that the contract in this case is a bona fide contract would not neces sarily mean that it should not be touched by the industrial tribunals.
If the contract had been mala fide and a cloak for suppressing the fact that the workmen were really the workmen of the company, the tribunal would have been justified in ordering the company to take over the entire body of workmen and treat it as its own workmen.
But because the contract in this case was bona fide, the tribunal has not ordered the company to take over the entire body of workmen.
It has left to it to decide for itself how many workmen it should employ and on what terms and has merely directed that when selection is being made preference should be given to the workmen employed by the present contractor.
" The Supreme Court also noticed that the industrial dispute was confined to the cleaning maintenance of the plant; the work was incidental to manufacturing process and the work is necessary for it and was of a perennial nature which must be done every day and such work is generally done by workmen in the regular employment of the employer and there would be no difficulty in having regular workmen for this kind of work.
It noted that the matter would be differ ent if the work done was of an intermittent or temporary nature or was so little that it would not be possible to employ full time workmen for the purpose.
It would be noticed that after the aforesaid observa tions of the Supreme Court in the case of Standard Vacuum Refining Company (supra) the Parliament while giving power to the appropriate Government to prohibit employment of contract labour in any process or operation or other work in any establishment gave the guidelines in clauses (a),(b),(c) and (d) of sub section (2) of Section 10, as noticed earli er, and guidelines are practically based on the guidelines given to the Tribunals in the aforesaid case of Standard Vacuum Refining Coral)any by this court.
The Act as can 414 be seen from the scheme of the Act merely regulates the employment of contract labour in certain establishment and provides for its abolition in certain circumstances.
The Act does not provide for total abolition of contract labour but it provides for abolition by the appropriate Government in appropriate cases under Section 10 of the Act.
In the present case and the other connected Special Leave Petitions no notification has been issued by the appropriate Government under Section 10 of the Act vis a vis the type of establishment with which we are concerned.
It is not for the High Court to inquire into the ques tion and decide whether the employment of contract labour in any process, operation or in any other work in any estab lishment should be abolished or not.
It is a matter for the decision of the Government after considering the matter, as required to be considered under Section 10 of the Act.
The only consequences provided in the Act where either the principal employer or the labour contractor violates the provision of Sections 9 and 12 respectively is the penal provision, as envisaged under the Act for which reference may be made to Sections 23 and 25 of the Act.
We are thus of the firm view that in proceedings under Article 226 of the Constitution merely because contractor or the employer had violated any provision of the Act or the rules, the Court could not issue any mandamus for deeming the contract labour as having become the employees of the principal employer.
We would not like to express any view on the decision of the Karnataka High Court or of the Gujarat High Court (supra) since these decisions are under challenge in this court, but we would place on record that we do not agree with the aforequoted observations of the Madras High Court about the effect of non registration of.the principal employer or the non licensing of the labour contractor nor with the view of Bombay High Court in the aforesaid case.
We are of the view that the decisions of the Kerala High Court and Delhi High Court are correct and we approve the same.
In the result C.A.2355 of 1991 fails and is dismissed and in view of the observations in C.A. 2355 of 1991, C.A.Nos.2356 66/91, 2366A 69/91 and S.L.P.(C) Nos.
9755/91, 9830/91 & 10235 43/91 are also hereby dismissed.
In the circumstances of the case, parties are left to bear their own costs of the present proceedings. [/INST] Following its earlier decision in 1991(1) P.L.R.I. the High Court held that the principal employer and the Contrac tor were liable for prosecution under the , if they made non compliance of section 7 and section 12 of the Act, respec tively.
Further, it was held that the employee employed through the contractor did not become the employees of the principal employer.
C.A.No. 2335 of 1991 arose by special leave from the decision of the High Court.
The point involved in other appeals is common.
This Court, on the question, if the principal employer did not get registration under section 7 of the Act and/or the contractor did not get a licence under Section 12 of the Act, whether the person so appointed by the principal employer through the contractor would be deemed to the direct employees of the principal employer or not, dismissing the appeals, HELD: 1.
The long title and the preamble of the Con tract Labour (Regulation and Abolition) Act, 1970 show that it is an Act to regulate the employment of contract labour in certain establish 402 ments and to provide for abolition in certain circumstances and for matters connected therewith.
The Statement of Ob jects and Reasons mentions that the system of employment of contract labour has tended itself to various abuses and the question of its abolition had been under consideration of the Government for a long time.
[405 E] 2.
The serves two fold purpose (1) regulations of the conditions of service of the workers employed by the contractor who is engaged by a principal employer; and (2) also provides for the appropriate Government abolishing contract labour alto gether, in certain notified processes operation or other works in any establishment.
Neither the Act nor the Rules framed by the Central Government or by any appropriate Government provide that upon abolition of contract labour, the said labour would be directly absorbed by the principal employer.
[407 H 408 A] 3.
The Act as can be seen from the Scheme of the Act merely regulates the employment of contract labour in cer tain establishment and provides for its abolition in certain circumstances.
The Act does not provide for total abolition of contract labour but it provides for abolition by the appropriate Government in appropriate cases under Section 10 of the Act.
[413 H 414 A] 4.
In the present case and the other connected Special Leave Petitions no notification has been issued by the appropriate Government under Section 10 of the Act.
[414 B] 5.
It is not for the High Court to inquire into the question and decide whether the employment of contract labour in any process, operation or in any other work in any establishment should be abolished or not.
It is a matter for the decision of the Government after considering the matter, as required to be considered under Section 10 of the Act.
[414 C D] 6.
In proceedings under Article 226 of the Constitution merely because contractor or the employer had violated any provision of the Act or the Rules, the court could not issue any mandamus for deeming the contract labour as having become the employees of the principal employer.
[414 E] M/s Gammon India Ltd. and Others vs Union of India, [1974] 1 SCC 596; Standard Vacuum Refining Co vs Their work men, ; F.C.I. Loading and Unloading Workers Union vs Food Corpora 403 tion of India ; Food Corporation of India Workers Union vs
Food Corporation of India and others. , referred to.
Gian Singh & Others vs F.C.I., 1991(1) PLR 1 (Punjab and Haryana); The Workmen of Best & Crompton Industries Ltd. vs The Management of Best & Crompton Engineering Ltd. Madras and Ors, 1985(1) LLJ 492 (Madras); and United Labour Union and Others vs Union of india and Others, 1990(60) FLR 686 (Bombay), over ruled.
P. Karunakaran vs The Chief Commercial Superintendent and Others, 1988(2) LIC 1346 (Kerala) and New Delhi General Mazdoor Union vs Standing Conference of Public Enterprises (Scope) & Another, 1991(2) Delhi Lawyer 189, approved. </s> |
<s>[INST] Summarize the following judgement: Civil Appeal No. 233 of 1991 etc.
From the Judgment and Order dated 21.6.1988 of the Central Administrative Tribunal, Bombay Bench in O.A. No. 58 of 1988.
V.C. Mahajan, S.N. Terdal, A.K. Srivastava, C.V, Subba Rao, S.K. Gambhir, Dr. B. L. Wadhera, Sudarshan Menon, P. Parameshwaran and G.D. Gupta for the appearing parties.
The Judgment of the Court was delivered by K. JAGANNATHA SHETTY, J.
To cater to the educational needs of children of persons employed in the ordnances factory at Ambazari the Central Government has sanctioned and is running a Primary School from classes I to V.
In the same premises, the employees 687 of the ordance factory, by their own arrangement are also having a Secondary School with classes VI to X.
They have appointed the respondents as teachers in the Secondary School.
They are paid honorarium and not full salary.
Their honorarium is paid out of fees from the children and other donations received by the school.
the respondents, however, approached the Central Administrative Tribunal seeking regularisation of their services and demanding equal pay for equal work.
The Tribunal has allowed their claim with certain directions to the appellants including the Union of India.
The directions issued by the Tribunal are as follows: "(i) The respondents will immediately take up an assessment of the needs of the school to carry on its activities at their present level and the number of additional teachers required for this purpose; (ii) After assessing the number of teachers needed, the respondents will proceed to create a sufficient number of posts to be filled up on a regular basis; (iii) After completing the above exercise respondents will take steps to fill up the newly created posts in accordance with recruitment rules to be framed for the purpose.
the applicants who have worked as teachers in past should be first considered for the posts and only if they are found unsuitable should candidates from sources like the Employment Exchange be considered; (iv) Once the procedure outlined above is completed all persons selected should be appointed on a regular basis and on remuneration admissible to the regular teachers of the primary school; (v) Similar procedure should also be followed in respect of posts of peon giving Shri Tadas an opportunity of competing for regular appontment; (vi) Till the exercise outlined above is completed which we hope will be done before the academic year 1989 90 commences the present procedure may continue and such of the applicants as are selected for appointment will be subject to the same conditions of service as before.
" The Union of India and the officers of the ordnance factory have challenged the validity of these directions in Civil Appeal No. 233/1991.
The respondents who have not been recruited as per the directions of the Tribunal have preferred Civil Appeal No. 480/1989.
We have considered the submissions of counsel on both sides in the light of the material on record.
At the outset we may point out that 688 there is no evidence that the respondents were appointed as teachers on honorarium by or on behalf of the Central Government.
There is also no evidence that the respondents were initially appointed in the Primary School and latter they were shifted to the Secondary School.
The fact, however, remains that when the respondents moved the Tribunal for relies they were only teaching in the Secondary School.
It is undisputed that the Central Government has not sanctioned the Secondary School nor created any posts thereto.
the Central Government has only sanctioned the Primary School and the posts connected therewith.
Those posts are being occupied by regularly recruited teachers.
The Tribunal, however, has directed the Central Government immediately to take up an assessment of the needs of the School to carry on its activities at the present level and to create a sufficient number of posts to be filled up on a regular basis.
The Tribunal has further directed the Central Government to take steps to fill up the newly created posts in accordance with the recruitment rules to be framed for the purpose.
These directions are indeed amazing.
It has compelled the Government to sanction the Secondary School, create adequate number of posts and fill up the posts after framing the recruitment rules for the purpose.
There is no law requiring the Central Government to sanction the Secondary School.
the Central Government has taken a decision that it will not involve itself in sanctioning or running classes beyond the Primary School level.
It is a policy matter involving financial burden.
No Court or the Tribunal could compel the Government to change its policy involving expenditure.
The Tribunal therefore, could not have, could not have, issued the directions as it did to compel the Central Government to assess the needs of the school and create the necessary posts without support of law.
Secondly, the respondents are not paid by the Central Government.
They are not holding any appointment under the Central Government.
There is no relationship of master and servant between the Central Government and the respondents.
The respondents are employed in the Secondary School by local arrangement made by the officers of the ordnance factory.
It is not proved that how the Central Government is accountable to such arrangement made by the local officers.
Thirdly, Section 14 of the confers no jurisdiction, power and authority on the Tribunal to deal with the service matters of the employees like the respondents.
689 In any view of the matter, the respondents cannot claim the pay scale admissible to the Government school teachers much less regularisation of their services by the Central Government.
The directions issued by the Tribunal therefore, cannot be sustained.
They are apparently injustified and without authority of law.
In the result we allow the Civil Appeal No. 233/1991, and set aside the order of the Tribunal.
the Civil Appeal No. 480/1989 is dismissed.
In the circumstances of the case, however, we make no order as to costs.
S.B. CA No. 233/91 allowed and CA No. 480/89 dismissed. [/INST] The appellant i.e. the Central Government sanctioned primary school from classes I V to cater to the educational needs of children of persons employed in the ordance factory at Ambazari.
The employees on their own in the same premises opened a secondary school with classes VI to X.
The respondents are teachers in the Secondary School and are being paid out of fees and other donations received by the school, They approached the Central Administrative Tribunal seeking regularisation of their service and demanded equal pay for equal work.
The Tribunal allowed their claim with certain directions to the appellants including the Union of India i.e. directing the Central Government immediately to take up an assessment of the needs of the School to carry on its activities at the present level and to create a sufficient number of posts to be filled up on a regular basis.
The Tribunal further directed the Central Government to take steps to fill up the newly created posts in accordance with recruitment rules to be framed for the purpose.
Allowing Civil appeal No. 233 of 1991 of the Union of India, and setting aside the order of the Tribunal dismissing Civil Appeal No. 480 of 1989 of the respondents who have not been recruited as per direction of the Tribunal, the Court.
HELD: 1.
There is no evidence in record that respondents were appointed as teachers on honorarium by or on behalf of the Central Government.
There is no evidence that they were initially appointed in primary School and later shifted to the Secondary School.
It is undisputed 686 that the Central Government has not sanctioned the Secondary School nor created any posts thereto.
It had only sanctioned the Primary School and the posts connected therewith which are being occupied by regularly recruited teachers.
[688A B] 2.
The directions of the Tribunal are indeed amazing compelling the Central Government to sanction the Secondary School.
The Central Government has taken a decision that it will not involve itself in sanctioning or running classes beyond the Primary School level.
It is a policy matter involving financial burden.
No court or the Tribunal could compel the Government to change its policy involving expenditure.
[688D E] 3.
The respondents are not paid by the Central Government.
There is no relationship of master and servant between the Central Government and the respondents.
The respondents are employed by the local officers so how the Central Government is accountable.
[688G] 4.
Even section 14 of the Administrative Tribunal Act, 1985 confers no jurisdiction, power or authority on the Tribunal to deal with the service matters of the employees like the respondents.
the respondents cannot claim the pay scale admissible to the Government school teachers and much less regularisation of their services by the Central Government.
[688H 689A] 5.
The directions of the Tribunal are apparently unjustified and without authority of law so cannot be sustained.
[688F] </s> |
<s>[INST] Summarize the following judgement: on (Civil) No. 860 of 1991.
(Under Article 32 of the Constitution of India).
Petitioner in person G. Ramaswamy, Altar Ahmad, Anil Katiyar, A.M. Khanwilkar and M.P. Sarawala for the Respondents.
The following Order of the Court was delivered: This application is in public interest and has been filed by a practising advocate of this Court who has consistently been taking interestin matters relating to environment and pollution.
The reliefs claimed in this application under Article 32 of the Constitution are for issuing appropriate directions to cinema exhibition halls to exhibit slides containing information and messages on environment free of cost: directions for spread of infor mation relating to environment in national and regional languages and for broadcast thereof on the All India Radio and exposure thereof on the television in regular and short term programmes with a view to educating the people of India about their social obligation in the matter of the upkeep of up the environment in proper shape and making them alive to their obligation not to act as polluting agencies or fac tors.
" There is also a prayer that environment should be made a compulsory subject in schools and colleges in a graded system so that there would be a general growth of awareness.
We had issued notice to the Union of India on the petition and the Central Government has immediately responded.
Until 1972, general awareness of mankind to the impor tance of environment for the well being of mankind had not been appropriately appreciated though over the years for more than a century there was a growing realisation that mankind had to live in tune with nature if life was to be peaceful, happy and satisfied.
In the name of scientific development, man started distancing himself from Nature and even developed an urge to conquer nature.
Our ancestors had known that nature was not subduable and, therefore.
had made it an obligation for man to surrender to nature and live in tune with it.
Our Constitution underwent an amendment in 381 1976 by incorporating an article (51A) with the heading "Fundamental Duties".
Clause (g) thereof requires every citizen to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures.
Soon after the internation al conference on environment the Water Pollution Control Act of 1974 came on the statute book; the Air Pollution Control Act came in 1981 and finally came the Environment Protection Act of 1986.
Law is a regulator of human conduct as the professors of jurisprudence say, but no law can indeed effectively work unless there is an element of acceptance by the people in society.
No law works out smoothly unless the interaction is voluntary.
In order that human conduct ,nay be m accordance with the prescription of law it is necessary that there should be appropriate awareness about what the law requires and there is an element of acceptance that the requirement of law is grounded upon a philosophy which should be fol lowed.
This would be possible only when steps are taken in an adequate measure to make people aware of the indispens able necessity of their conduct being oriented in accordance with the requirements of law.
There has been an explosion of human population over the last 50 years.
Life has become competitive.
Sense of ideal ism in the living process has systematically eroded.
As a consequence of this the age old norms of good living are no longer followed.
The anxiety to do good to the needy or for the society in general has died out, today oblivious of the repercussions of one 's actions on society, everyone is prepared to do whatever is easy and convenient for his own purpose.
In this backdrop if the laws are to be enforced and the malaise of pollution has to be kept under control and the environment has to be protected in an unpolluted state it is necessary that people are aware of the vice of pollution and its evil consequences.
We are in a democratic polity where dissemination of information is the foundation of the system.
Keeping the citizens informed is an obligation of the Government.
It is equally the responsibility of society to adequately educate every component of it so that the social level is kept up.
We therefore, accept on principle the prayers made by the petitioner.
We are happy to find that the learned Attorney General who appeare for the Union of India has also appreci ated the stand of the petitioner and has even cooperated to work out the procedure by which some of the prayers could be granted.
We dispose of this writ petition with the following direc tions 382 (1) Respondents 1, 2, & 3 shall issue appropriate direc tions to the State Governments and Union Territories to invariably enforce as a condition of license of all cinema hails, touring cinemas and video parlours to exhibit free of cost atleast two slides/messages on environment in each show undertaken by them.
The Ministry of Environmental should within two months from now come out with appropriate slide material which would be brief out efficiently carry the message home on various aspects of environment and pollu tion.
This material should be circulated directly to the Collectors who are the licensing authorities for the cinema exhibition halls under the respective slate laws for compli ance without any further direction and helping the cinema halls and video parlours to comply with the requirements of our order.
Failure to comply with our order should be treat ed as a ground for cancellation of the licence by the appro priate authorities.
The material for the slides should be such that it would at once be impressive, striking and leave as impact on every one who sees the slide.
(2) The Ministry of Information and Broadcasting of the Government of India should without delay start producing information films of short duration as is being done now on various aspects of environment and pollution bringing out the benefits for society on the environment being protected and the hazards involved in the environment being polluted.
Mind catching aspects should be made the central theme of such short films.
One such film should be shown, as far as practicable.
in one show every day by the cinema hails and the Central Government and the State Government are directed to ensure compliance of this condition from February 1, 1992.
(3) Realising the importance of the matter of environ ment and the necessity of protecting it in an unpolluted for as we had suggested to learned Attorney General to have a dialogue with the Ministry of Information and Broadcasting as to the manner the All India Radio and Doordarshan can assist this process of education.
We are happy to indicate that, learned Attorney General has told us that five to seven minutes can be devoted every day and there could be, once a week, a longer programme.
We do not want to project an impression that we are authorities on the subject, but we would suggest to the programme controlling authorities of the Doordarshan and the All India Radio to take proper steps to make interesting programmes and broadcast the same on the radio and exhibit the same on the television.
The national network as also the State Doordarshan Centres should immedi ately take steps to implement this direction so that from February 1, 1992, regular compliance can be made.
383 (4) We accept on principle that through the medium of education awareness of the environment and its problems related to pollution should be taught as a compulsory sub ject.
Learned Attorney General pointed out to us that the Central Government is associated with education at the higher levels and the University Grants Commission can monitor only the under graduate and post graduate studies.
The rest of it, according to him, is a State subject.
He has agreed that the University Grants Commission will take appropriate steps immediately to give effect to what we have said, i.e., requiring the Universities to prescribe a course on environment.
They would consider the feasibility of making this a compulsory subject at every level in college education.
So for as education up to the college level is concerned, we would require every State Government and every Education Board connected with education up to the matricu lation or stage even intermediate colleges to immediately take steps to enforce compulsory education on environment in a graded way.
this should be so done that in the next aca demic year there would be compliance of this requirement.
We have not considered it necessary to hear the State Governments and the other interested groups as by now there is a general acceptance through out the world as also in our country that protection of environment and keeping it free of pollution is an indispensable necessity for life to survive on earth.
If that be the situation, every one must 'turn his immediate attention to the proper care to sustain environment in a decent way.
We dispose of the matter with the aforesaid direction but give liberty to Mr. Mehta to apply to the Court from time to time for further directions, if necessary.
S.B. Petition dis posed of. [/INST] This application is in public interest seeking relief for issuing appropriate directions of this Court to Cinema, exhibition hails to exhibit slides containing information and messages on environment free of cost.
Further directions for spread of information relating to environment in nation al and regional languages vide broadcast thereof on the All India Radio, exposure thereof on television in regular and short term programmes with a view to educating the people of India about their social obligation in the matter of the upkeep of the environment in proper shape and making them alive to their obligation not to act as polluting agencies or factors.
It is further prayed that environment should be made a compulsory subject in schools and colleges in a graded system so that there would be a general growth of awareness.
Till 1972 general awareness of mankind to the environ ment for the well being of mankind had not been appropriate ly appreciated.
In 1975 the Constitution underwent an amend ment by incorporating an Article 51A with the heading "Fundamental Duties" Clause (g) thereof requires every citizen to protect and improve the natural environment including forests, lakes, rivers and wild life and to have compassion for every living creature.
In 1974 Water Pollu tion Central Act came on the statues book.
In 1981 Air Pollution (Central Act) and finally in 1986 the Environment Protection Act were enacted.
Law is a regulator of human conduct but no law can indeed effectively work unless there is an element of ac ceptance by the people in society.
379 There has been an explosion of human population, over the last 50 years.
Life has become competitive so the age old norms of good living are no longer followed.
It has therefore, become necessary that people be made aware of vice of pollution and its level of consequenceS. Keepingg the citizen informed is an obligation of the Government as well as the responsibility of society to adequately educate every component of it so that social level is kept up.
Disposing of the matter, the Court, HELD The principle on which the praayer is made is accepted and the following directions are issued 1.
That the Cenaral Governmeent, the State Government and Union Tcrritories should invariably enforce as a condi tion of license of all cinema halls, touring Cinemas and video parlours to exhibit.
free of cost at feast two slidcs/messages on environment in each show undertaken by them.
The Ministry of Environment should within two months from.
now come out with appropriate slide material on var ious aspect of environment and pollution.
This material should be circulated to the collectors who arc the licensing authori ties for compliance without any further directions and failure to comply with the Court order should be treated as a ground for.
cancellation of the licence by the appro priate authorities.
[382 A C] 2.
The Ministry of Information and Broadcasting of the Government of India should without delay start pronouncing information films of short duration on various aspects of environment and pollution bringing out the benefits for society on the environment protection and hazardous involved in environment pollution.
[382 D] 3.
The national network, the State Door Darshan Cen tres, All India Radio, Television should take proper steps to exhibit such films and interesting programmes on the subject.
There should be regular compliance of these direc tions be followed from February 1, 1992.
[382 G H] 4.
The principle that through the medium of educational awareness of the environment and its pollution problems should be taught as a compulsory subject at every level of education.
University Grants Commission should prescribe a course on environment in a graded manner as a compulsory subject in college education.
The compliance of this re quirement be done in the next academic year.
[383 A C] 380 Since there is a general acceptance throughout the world as also in our country that protection of environment keeping free of pollution is an indispensable necessity of life to survive on earth so everyone must turn his immediate attention to the proper care to sustain environment in a decent way. </s> |
<s>[INST] Summarize the following judgement: No 1 IN C.A. No 4444 of 1990 etc.
From the Judgment and Order dated 25.5.90 of the Alla habad High Court in CWP No. 5267 of 90.
Yogeshwar Prasad, Gopal Subramanium, S.K. Mehta, Dhruv Mehta, Arvind Verma, Aman Vachher, Pradeep Misra and R.B. Misra for the appearing parties.
The following order of the Court was delivered: The dispute in these cases relates to admission in post graduate courses of the medical wing.
There are seven medical colleges in the State of Uttar Pradesh.
Sometime back in a fake writ petition the High Court of Allahabad made an order that admission could be effected on the basis of the MBBS results.
That can counter to the decision of this Court and on being looked into it transpired that the proceedings before the High Court were totally fraudulent and no one by the name given in the petition as petitioner could really be identified.
This Court at that stage had clearly indicated that the prescription by this Court has been that there should be a selection test for post graduate admission as admission has become very competitive and to have compliance of Article 14 of the Constitution a broad based arrangement should be made.
On that account this Court had clearly indicated that no admission should be permitted on the basis of the MBBS results.
In view of the fact that the Allahabad High Court 's order has already been reversed, nothing more need be done.
387 SLP (C) . . of 1990 This petition is directed against the order of the learned Single Judge of the Allahabad High Court dated 25.5.1990.
U.P. Junior Doctors ' Action Committee in their special leave petition which has not yet been numbered challenge the order referred to above where the petitioner could not be identified and challenge was to the decision of the High Court dated 25.5.1990 which permitted admission on the basis of MBBS results.
Since we have already clarified the position and reiterated the requirement of a selection test the order of the High Court must be taken to have already been vacated.
11 is not necessary to entertain this special leave petition.
CA in SLP 15354/91 Special leave granted.
In this appeal by special leave Principal of the Agra Medical college along with some others is the appellant.
The High Court by the impugned order required provisional admis sion in M.S. (Surgery) and in M.D. (Medicine) to be given to respondents 1 and 2 respectively in the Medical College of Agra while the writ petition was yet to be heard.
The con ten tion raised before us is that grading admission at an interlocutory stage in a pending proceeding even by styling it as provisonal create lot of adderse consequences and leads to indicipline in the system of imparting education, Admission into post graduate degrees in the medical wing through out the country has become very competitive and it has become clear thatstrict regulation is necessary.
This Court by its judgement in Dr. Pradeep, Jain & Ors.
vs Union of India & Ors [1984] 3 sec 654 indicated that admis sion for 25 percent of the seats in post graduate courses should be regulated on the basis of all India selection and in regard to the remainder 75 per cent of the States were left to decide the procedure for admission.
Appropriate knowledge and expertise are a prerequisite for a person to be allowed to register himself as a medical practitioner.
Very often, health problems require expert treatment.
If anyone is authorised in society to practise medicine or undertake medical care without the appropriate qualification, society exposes itself to health hazards.
The prescriptions by the Indian Medical Council and the attempts made by Government for regulating the medical study are for establishing basically uniform knowledge to be imparted to the students before they can be entrusted with the nation 's medicare.
Unless there is a sincere and thorough educational discipline to be gone through as a precondition to the grant of the requisite certificate the lives of citizens would be at peril.
388 The Indian Medical Council has prescribed a reasonable period of study on expert advice and upon taking into con sideration the experience over the years as to how much study is necessary for the requisite qualification to be gathered.
This Court has also indicated the dates of admis sion and commencement of the courses of study.
These are prescriptions for a purpose and are not intended to be empty formalities to be violated.
One of the prescriptions of the Medical Council is also the ratio between the teachers and the students.
That again is a factor which cannot be brushed aside.
It is a well known rule of practice and procedure that at interlocu .
tory stage a relief which is asked for and is available at the disposal of the matter is not granted.
The writ petitioners wanted admission into postgraduate course as the main relief in the writ petition.
To have it granted at the threshold creates a lot of difficulties.
In a case where the petitioner ultimately loses in a case of this type a very embarrassing situation crops up.
If he has by then read for two to three years, there is a claim of equity raised on the plea that one cannot reverse the course of time.
In a case of this type equities should not be claimed or grained. 'Faking an overall picture of the matter we are of the view that unless there is any special reason to be indicated in clear terms in an interlocutory order as a rule no provisional admission should be granted and more so into technical courses.
On the basis of what we have said the order of the High Court should be reversed but we are not doing so on account of the fact that nine similarly placed medical graduates have already been given admission pursuant to such interloc utory orders by the respondents without even raising a challenge.
The order was made as early as in February, 1991 and for all these nine months no steps have been taken by the appellants to comply with the order and they are in fact facing a contempt proceeding.
While on principle we indicate that such provisional admission should not be granted.
We dismiss this special leave petition and sustain the order not on merits but for the reason indicated.
The interlocuto ry application in the civil appeal need not be further dealt with in view of what we have said above.
We had issued notice to the Principals of the seven medical colleges.
They have appeared and have given a writ ten undertaking to the Court by way of affidavit that there was some misunderstanding in regard to the requirement of a selection test for post graduate admission.
There were two year and three year courses running simultaneously for some period and some confusion was there as to whether the two year course 389 students were covered by the direction of this Court.
Though we are of the view that there was hardly any scope for being misled, we are prepared to give the benefit of doubt to the Principals.
The contempt proceedings are withdrawn but the undertaking are kept on record.
G.N. Appeals dismissed. [/INST] These matters relate to admission in post graduate courses in the Medical Colleges in Uttar Pradesh.
On a Writ Petition, which later turned out to be fake, the High Court had ordered that admission could be effected on the basis of the MBBS Examination.
This has been disputed in appeal before this Court.
In another Writ Petition, pending hearing, the High Court directed that provisional admission be given to two candidates, one in MS (Surgery) and another in MD (Medicine).
The Principal of the Medical college and others preferred an appeal against the High Court 's order.
It was contended that granting admission, though provi sional, at an interlocutory stage in a pending proceeding creates a lot of adverse consequences and indiscipline in the system of imparting education.
Dismissing the matters, this Court, 385 HELD: 1.1 It transpires that the proceedings before the High Court were totally fraudulent and no one by the name given in the petition as petitioner could really be identi fied.
This Court had clearly indicated that no admission should be permitted on the basis of the MBBS results.
Noth ing survives now, as the High Court 's order has already been reversed.
[386 F,G] 2.1 It is already settled that admission for 25 per cent of the seats in post graduate courses should be regulated on the basis of all India selection and in regard to the re mainder of 75 per cent the States were left to decide the procedure for admission.
[387 E] 2.2 Unless there is a sincere and thorough educational discipline to be gone through as a precondition to the grant of the requisite certificate the lives of citizens would be at peril.
The Indian Medical Council has prescribed a rea sonable period of study, on expert advice, and upon taking into consideration the experience over the years as to how much study is necessary for the requisite qualification to be gathered.
This Court has also indicated the dates of admission and commencement of the courses of study.
These are prescriptions for a purpose and are not intended to be empty formalities to be violated.
[387 G, H; 388 A] Dr. Pradeep Jain & Ors.
vs Union of India & Ors.
, [1984] 3 S.C.C. 654, relied on.
It is a well known rule of practice and procedure that at an interlocutory stage, a relief which is asked for and is available at the disposal of the matter, is not (generally) granted.
To have it granted at the threshold creates a lot of difficulties.
In a case where the petition er ultimately loses in a case of this type a very embarrass ing situation crops up.
If he has by then read for two to three years, there is a claim of equity raised on the plea that one cannot reverse the course of time.
In a case of this type, equities should not be claimed or granted.
Unless there is any special reason to be indicated in clear terms in an interlocutory order, as a rule no provisional admis sion should be granted and more so into technical courses.
[388 C, D] 4.1 The order of the High Court in the instant case should be reversed but this is not being done so, on account of the fact that nine similarly placed medical graduates have already been given admission pursuant to such interloc utory orders by the respondents 386 without even raising a challenge.
The order was made as early as in February, 1991 and for nine months no steps have been taken by the appellants to comply with the order and they are in fact facing a contempt proceeding.
[388 F] 4.2 Notice had been issued to the Principals of the seven medi cal colleges who have appeared and given written undertakings to the Court by way of affidavit that there was some misunderstanding in regard to the requirement of a selection test for post graduate admission.
Though there was hardly any scope for being misled, the benefit of doubt is being given to the Principals.
The contempt proceedings are discharged, but their undertakings are kept on record.
[388 G, H; 389 A] </s> |
<s>[INST] Summarize the following judgement: l Appeal No. 138 of 1992 From the Judgment and Order dated 30.8.1991 of the Central Administrative Tribunal,Principal Bench, New Delhi in O.A.No.
1177 of 1987.
G.D. Gupta and Ashok K. Mahajan for the Appellant.
K.T.S. Tulsi, Hemant Sharma and Vijay K.Mehta for the Respondents.
The Judgment of the Court was delivered by AHMADI, J.
Special leave granted.
Heard counsel on both sides.
The facts giving rise to this appeal, briefly stated, are as under : One MR.Jaisani, a direct recruit, was holding the post of Assistant Director General (prevention of Food Adulteration) in the Ministry of Health and Family Welfare of the Government of India.
On his passing away sometime in july 1989, a vacancy arose which was required to be filled under the extant recruitment rules.
The recruitment rules which were then in operation provided for the said post being filled in by direct recruitment only.
A requisition was sent to the Union Public Service Commission (Commission ' hereafter) sometime in November, 1989, for selection of a candidate for filling in the vacancy in question.
However, before the Commission could advertise the post, the Union Government informed the Commission by letter dated December 29, 1989 received by the Commission on January 1, 1990 not to proceed with the process of selection it was examining the question of opening up an avenue for promotion from Assistant Secretary to the post in question Notwithstanding the said communication, the commission advertised the post in January 1990, The appellant applied for the same and was called for an interview on December 13,1990.
Thereupon the first respondent, Mrs. Debi Mukherjee,who was then serving as Assistant Secretary, and was hoping to be promoted as Assistant Director General on the amendment of 4 the recruitment rules approached the Central Administrative Tribunal.
New Delhi and obtained an interim order staying the process of selection initiated by the Commission.
It may here be mentioned that in the meantime two further layers above that of Assistant Secretary came to be created providing for higher pay scales by an amendment of the rules pursuant to the directions given by this Court in Writ petition No. 1118/89 read with the directions in the Contempt Petition No. 5/90 dated May 4, 1990.
The two layers thus created provided for higher pay scales but no separate designations.
The question regarding the appointment to the vacancy created on the demise of Jaisani, however, had still to be dealt with.
The appellant who was affected by the Tribuanl 's Order approached for impleadment/intervention but the Tribunal did not allow the same although we are told that the Tribunal gave a hearing to the counsel for the appellant.
The Tribunal ultimately disposed of the petition with a direction to the concerned Ministry to provide promotional avenues to the applicant who had functioned in the post of Assistant Secretary for several years and had held the charge of Assistant Director General as and when the occasion arose.
Three months ' time was granted to the concerned Ministry to carry out the directions.
The failure to carry out the directions had led to the filing of a Contempt Application also.
The grievance of the appellant is two fold.
Firstly, he contends that once the process for selection had started it was not open to the Government as well as the Tribunal to freeze the process and the Commission was entitled to complete the selection.
The second point urged was that the fact of the creation of tow layers by the amendment of the relevant rules had been totally over looked by the Tribunal even though its attention was drawn to the same by counsel for the appellant.
In support of the first contention, strong reliance was placed on the decision of this Court in N.T. Devin Katti & Ors.
vs Karnataka Public Service Commission & Ors.
; In that case this Court observed that a candidate who is eligible and otherwise qualified in accordance with the relevant rules and the terms of the advertisement acquires a vested right of being considered for selection in accordance with the rules as they existed at the date of advertisement.
He cannot be deprived of that limited right on the amendment of rules during the pendency of selection unless the amended rules are retrospective in nature.
While making these observations, it was made clear that a candidate on making an application for a post pursuant to an advertisement does not acquire any vested right of selection or of appointment to the post in question.
This is obvious from the ratio of this Court 's decision in Jatinder Kumar & Ors., In that case, it was clarified that an independent body like the 5 Commission is established to ensure selection of best available talent for appointment to the post in question to avoid arbitrariness and nepotism in the matter of appointment.
The selection has to be made by the Commission and on the basis thereof the Government has to fill up the post adhering to the order of merit drawn up by the Commission.
This Court emphasised that the selection by the Commission is only recommendary in nature and the final authority for appointment is the Government, and if the Government declined to accept the recommendation the Constitution enjoins the Government to place on the table of the legislature its reasons and report for so doing.
Thereby the Government is made answerable to the elected representatives under the Constitution.
This however, does not clothe the selectee with any right to appointment that is to say that he cannot force the Government to accept the recommendation of the Commission but the Government has to make the appointment strictly in accordance with the recruitment rules and merits as determined by the Commission and it cannot disturb the list at its sweet will.
Nor can the Government appoint a person whose name does not appear in the list.
It is obvious from the ratio of these two decisions to which our attention was pointedly drawn that if the Commission issued an advertisement at the behest of the Government and pursuant thereto calls a candidate for interviews, the candidate has a right to be considered for selection but not a right to be selected or to appointment to the post in question.
The right to selection crystalises only after the candidate is called for interview pursuant to the advertisement.
But in the instant case the question is whether the Government can withdraw the requisition sent to the Commission for initiating the process of selection because at the point of time no right had crystalised in anyone for being considered for selection.
If the Government is at a given point of time considering the question of amending the recruitment rules with a view to providing for promotion to the post in question, the Government can before an advertisement is issued by the Commission and the process of selection is under way request the Commission to withdraw the same till it decides on the question of amending the rules.
The decision of the Government to withdraw the requisition sent to the Commission in NOVEMBER 1989 before the issuance of the advertisement does not interfere with any vested right of selection because that stage had yet not reached.
In the instant case, that is exactly what happened.
Therefore, before the appellant acquired a right to be considered for selection the Government had already intimated that it was examining the question of amending the recruitment rules with a view to providing for appointment by promotion to the post in question.
Once this decision was communicated to the Commission before it had set the process of selection in motion by issuing an advertisement, it was not open to the Commission to insist that it will go ahead with the selection process as the extant rule provided for 6 promotion by direct recruitment and the Government could amend the recruitment rules retrospectively, if it so desired, with a view to providing for appointment by promotion.
Such an exercise by the Commission would be an exercise in futility, waste of public time and money and hardship to candidates who seek appointment.
Whether to provide for promotion as a mode of appointment to the post in question is a matter of policy left to the Government to decide and if it desired that the selection process should be held in abeyance till the question was examined and a final decision was taken thereon, it was not open to the Commission to ignore the communication of the Government in that behalf and proceed to set the selection process in motion.
We think the action of the Commission was somewhat hasty and unjustified.
The appellant, therefore, cannot claim any vested right as urged by his learned counsel.
Nor can the Tribunal 's omission to notice that two new layers were created have a bearing on the Government 's decision to place the process of selection in hibernation till a final decision is taken on the proposal to provide for promotion to the post.
For the above reasons, we are of the opinion that the decision reached by the Tribunal does not require any interference at our hands in exercise of the power under Article 136 of the Constitution.
Hence, the appeal fails and is accordingly dismissed with no order as to costs.
R.P. Appeal dismissed. [/INST] The Union government sent a requisition to the Union Public Service Commission for selection of a candidate to post of Assistant Director General (Prevention of Food Adulteration)in the Ministry of Health and Family Welfare which, under the extant rules, was to be filled in only by direct recruitment.
However, before the Commission could advertise the post,the Government informed it not to proceed with the process of selection as it was examining to fill up the post by promotion of Assistant Secretary.
But inspite of this,the commission Advertised the post and the appellant was called for an interview where upon Respondent No.1, an Assistant Secretary who was expecting her promotion to the post on amendment of the rules,obtained an interim order from Central Administrative Tribunal, staying the process of selection initiated by the Commission.
The appellant, feeling affected by the said order, unsuccessfully moved the Tribunal for impleadment.
Meanwhile two further layers above that of Assistant Secretary, though in higher pay scales but with no separate designations, were created by an amendment of rules in pursuance of this Court 's direction, The Tribunal disposed of the application directing to provide promotional avenues to Respondent No.1 who, while functioning as Assistant Secretary, had also occasionally held the charge of Assistant Director General.
Aggrieved, the appellant preferred the appeal by special leave to this Court.
It was contended by the appellant that once the process for selection had started, it was not open to the Government as well as to the Tribunal to freeze the process and the Commission was entitled to complete the selection; and that the fact of creation of two layers by the amendment of the rules was wrongly overlooked by the Tribunal.
Dismissing the appeal, this Court, 2 HELD : 1.1 If the Government is at a given point of time considering the question of amending the recruitment rules with a view to providing for promotion to a particular post, it can, before an advertisement is issued by the Commission and the process of the selection is under way, request the Commission to withhold the same till it decides on the question of amending the the rules.
(p.5E F) 1.2 Whether to provide for promotion as a mode of appointment to the post in question is a matter of policy left to the government to decide.(p.6AB) 1.3 Once the decision of the Government to withdraw the repuisition was communicated to the Commission before it had set the process of selection in motion by issuing an advertisement, it was not open to the Commission to go ahead with the selection process as the Government could amend the recruitment rules retrospectively, if it so desired, with a view to providing for appointment by promotion .Such an exercise by the Commission would be one in futility, waste of public time and money and hardship to candidates who seek appointment.(pp.5GH;6A) The action of the Commission was somewhat hasty and unjustified.(p.6B) 2.1 If the Commission issues an advertisement at the behest of the Government and pursuant thereto calls a candidate for interview, the candidate has a right to be considered for selection but not a right to be selected or to appointment to the post in question.
The right to selection crystalises only after the candidate is called for interview pursuant to the advertisement.(p.5 C D) N.T. Devin Katti & Ors.
vs Karnataka Public Service Commission & Ors.(1990) 3 SCC 157 and Jatinder Kumar & Ors.v.
State of Punjab & Ors.
(1985)1 SCR 899, referred to.
2.2 In the instant case, the decision of the Government to withdraw the requisition sent to the Commission before the issuance of the advertisement dose not interfere with any vested right of selection because that stage had yet not reached.(p.5F) 2.3 Before the appellant acquired a right to be considered for selection the Government had already intimated that it was examining the question of amending the recruitment rules with a view to providing for appointment by promotion to the post in question.
(p.5G) 3 2.4 The appellant, therefore, cannot claim any vested right.
Nor can the tribunal 's omission to notice that two new layers were created have a bearing on the Government 's decision to place the process of selection in hibernation till a final decision is taken on the proposal to provide for promotion to the post.
(p.6BC) </s> |
<s>[INST] Summarize the following judgement: Appeal No. 4916 of 1991 From the Judgment and Order dated 5.4.1991 of the Alla habad High Court in Second Appeal No. 3395 of 1978.
Manoj Swarup and Ms. Lalita Kohli for the Appellants.
571 B.S. Nagar for Goodwill Indeevar for the Respondent.
The Judgment of the Court was delivered by VENKATACHALIAH, J.
Special leave 'is granted and the appeal taken up for final hearing and disposed of by this judgment.
We have heard Sri Manoj Swamp, learned counsel for the Appellant and Shri Goodwill Indeevar for the Respondent.
Appellant was Defendant in a suit for specific performance.
He seeks special leave to appeal to this Court from the judgment and order dated 5.4.1991 of the High Court of Allahabad in Second Appeal No.3395 of 1978 decreeing, in reversal of the decrees of dismissal entered by the two courts below, specific performance of an agreement for sale of land. 3.
On 3.7.1973 Respondent Natthu Singh sold Plot No.195 measuring 5 bighas and 18 biswas and Plot No.196 measuring 9 bighas and 8 biswas of Gulistapur Village, Pargana Dadri to the appellant for a consideration of Rs. 15,000.
On the very day, i.e., 3.7.1973, another agreement was entered into between the parties whereunder Appellant agreed to reconvey the said properties to the Respondent against payment of Rs. 15,000/ within two years.
On 2.6.1975, well within the period of two years stipulated for the performance of the agreement to re sell, Respondent instituted the suit for specific performance alleging that despite offer of performance and tendering the price, Appel lant, with the dishonest intention of appropriating the properties to himself refused reconveyance.
The Appellant contested the suit principally on the ground that Respondent was never ready and willing to perform the contract and that Respondent himself was in breach.
The trial court framed the necessary and relevant issues stemming from the pleadings and on its own apprecia tion of the evidence on record came to find against the Respondent that he was ready and willing to perform the contract; and that the agreement, being one of reconveyance, time was of its essence.
The suit was accordingly dismissed.
Respondent 's first appeal before the learned IInd Additional District Judge, Bulandshahar was also unsuccessful.
However, in Respondent 's second appeal, the High Court reversed the findings of the two courts below and allowing the appeal held that Respondent Plaintiff was ready and willing to perform the contract; that the Appellant was the party in breach; and that, therefore, Respondent was entitled to a decree.
This decree is assailed in this ap peal.
572 6.
Sri Manoj Swarup appearing in support of the appeal urged two contentions; the first is that the High Court was in error in embarking upon a re appraisal of the evidence in a second appeal to distrub concurrent findings of fact that Respondent was not willing and ready to perform the con tract.
The second contention is that contract itself became incapable of specific performance in view of the fact that during the pendency of second appeal the State had initiated proceedings for compulsory acquisition of the suit proper ties and the subject matter of the suit itself ceased to be available.
Counsel says the power to give compensation as an alternative to specific performance did not extend to a case in which the relief of specific performance had itself become impossible.
On the first question, as to the readiness of the Respondent to perform his obligations, the High Court no ticed that on 30th January, 1974 even before institution of the suit Respondent and his brother had sold another proper ty belonging to them for a price of Rs. 30,000 and that Respondent had the necessary wherewithal to perform his part of the bargain.
The High Court held: ".
Thus, the plaintiff admittedly had re ceived Rs. 15,000/ on 30.1.
1974 and soon thereafter the first notice was issued to the defendant asking him to indicate a date for executing the saledeed and also expressing his readiness and willingness.
There is no evi dence on the record that between 30.1.1974 and the date of suit or thereafter the plaintiff had parted with this money.
" The High Court also noticed that the two notices dated 23.3. 1974 and 6.5.
1975 respectively issued by the Respond ent to the Appellant before the suit contained the averments that he was ready and willing to perform the contract.
The notices were, no doubt, not actually served on the appellant as they had come back unserved upon the alleged refusal by the appellant to accept them.
The High Court relied upon the averments in the notices which could be treated as a part to the plaint having been referred to and relied upon therein.
In our opinion, the High Court was right in its view.
The notices must be presumed to have been served as contemplated by Section 27 of the General .Clauses Act.
As to the jurisdiction of the High Court to reappreciate evi dence in a second appeal it is to be observed that where the findings by the Court of facts is vitiated by non considera tion of relevant evidence or by an essentially erroneous approach to the matter, the High Court is not precluded from recording proper findings.
We find no substance in the first contention.
573 9.
The second contention is, however, not without its interesting aspects.
During the pendency of the second appeal, the properties were acquired by the State for a public purpose.
This is not disputed.
It would appear that a compensation of Rs. 4 lakhs or thereabouts has been deter mined.
That sum, along with the generous solatium and the rates of interest provided by the statute would now be a much larger amount.
Before the High Court, Appellant sought to rely upon the decision of this Court in Piarey Lal vs Hori Lal, [1977] 2 S.C.R. 915.
That was a case where in proceedings of consolidation the subject matter of an agree ment to sell was allotted to a person other than the vendor, the relief of specific performance was held not to survive.
The High Court rightly held that pronouncement was distin guishable and inapplicable to the present controversy.
As to the relief available to a plaintiff where the subject matter was acquired during the pendency of a suit for specific performance the High Court said: ".
The learned counsel for the respondent has vehemently urged that after the land has been acquired its corpus has ceased to exist and no decree for specific performance can now be granted.
In my opinion with the acquisition of)the land plaintiffs rights do not get extinguished in totality.
The appellate court always suitably mould the relief which the circumstances of the case may require or permit.
The power in this regard is ample and wide enough.
However, in the present case the property has not been totally lost.
What happens in the case of the acquisition is that for the property compensation payable in lieu there of is substituted. " The High Court issued these consequential directions: "If the decree for specific performance of contract in question is found incapable of being executed due to acquisition of subject land, the decree shall stand suitably substi tuted by a decree for realisation of compensa tion payable in lieu thereof as may be or have been determined under the relevant Act and the plaintiff shall have a right to recover such compensation together with solatium and inter est due thereon.
The plaintiff shall have a right to recover it from the defendant if the defendant has already realised these amounts and in that event ' ;the defendant shall be further liable to pay interest at the rate 574 of twelve per cent from the date of realisa tion by him to the date of payment on the entire amount realised in respect of the disputed land.
" We are afraid the approach of the High Court is perhaps somewhat an over simplification of an otherwise difficult area of law as to the nature of relief available to a plain tiff where the contract becomes impossible of specific performance and where there is no alternative prayer for compensation in lieu or substitution of specific perform ance.
While the solution that has commended itself to the High Court might appear essentially just or equitable, there are certain problems both of procedure and of substance in the administration of the law of specific relief particular ly in the area of award of an alternative relief in lieu or substitute of specific performance that require and compel consideration, especially in view of some pronouncements of the High Courts which have not perceived with precision, the nice distinctions between this branch of the law as adminis tered in England and in India.
Section 21 of the corre sponding to Section 19 of 1877 Act enables the plaintiff in a suit for specific performance also to claim compensation for its breach either in addition to or in substitution of, such performance.
Sub sections (2), (4) and (5) of Section 21 are material and they provide: "(2).
If, in any such suit, the Court decides that specif ic performance ought not to be granted, but that there is a contract between the parties which has been broken by the defendant, and that the plaintiff is entitled to compensa tion for that breach, it shall award his such compensation accordingly.
(3) [ Omitted as unnecessary.] (4) In determining the amount of any compensation awarded under this section, the Court shall be guided by the princi ples specified in Section 73 of the , 9 of 1872.
(5) No compensation shall be awarded under this section unless the plaintiff has claimed such compensation in his plaint: Provided that where the plaintiff has not claimed any such compensation in the plaint, the Court shall, at any stage of the proceeding, allow him to amend the plaint on such terms as may be just, for including a claim for such compensation.
Explanation The circumstance that the contract has become 575 incapable of specific performance does not preclude the Court from exercising the jurisdiction conferred by this section." (emphasis added) So far as the proviso to sub section (5) is concerned, two positions must be kept clearly distinguished.
If the amendment relates to the relief of compensation in lieu of or in addition to specific performance where the plaintiff has not abandoned his relief of specific performance the court will allow the amendment at any stage of the proceed ing.
That is a claim for compensation failing under Secion 21 of the and the amendment is one under the proviso to sub section (5).
But different and less liberal standards apply if what is sought by the amend ment is the Conversion of a suit for specific performance into one for damages for breach of contract in which case Section 73 of the Contract Act is invoked.
This amendment is under the discipline of Rule 17 Order 6, C.P.C. The fact that sub section (4), in turn, invokes Section 73 of the for the principles of quantification and assessment of compensation does not obliterate this distinc tion.
The provisions of Section 21 seem to resolve certain divergencies of judicial opinion in the High Courts on some aspects of the jurisdiction to award of compensation.
Sub section (5) seeks to set at rest the divergence of judicial opinion between High Courts whether a specific claim in the plaint is necessary to grant the compensation.
In England Lord Cairn 's (Chancery Amendment) Act, 1858 sought to confer jurisdiction upon the Equity Courts to award damages in substitution or in addition to specific performance.
This became necessary in view of the earlier dichotomy in the jurisdiction between common law and Equity Courts in the matter of choice of the nature of remedies for breach.
In common law the remedy for breach of a contract was damages.
The Equity Court innovated the remedy of specific perform ance because the remedy of damages was found to be an inade quate remedy.
Lord Cairn 's Act, 1858 conferred jurisdiction upon the Equity Courts to award damages also so that both the reliefs could be administered by one court.
Section 2 of the Act provided: "In all cases in which the Court of Chancery has jurisdiction to entertain an application for specific performance of any covenant, contract or agreement it shall be lawful for the same Court if it shall think fit to award damages to the party injured either in addi tion to or in substitution for such specific performance and such damages may be assessed as the Court shall direct.
" 576 This is the historical background to the provisions of Section 21 of the and its prede cessor in Section 19 of the 1877 Act.
In Mohamad Abdul Jabbar & Others vs Lalmia &Others.
A.I.R (34) 1947 Nagpur 254 specific performance of an agree ment of sale dated 16th January, 1934, was sought by the institution of a suit on 15th January, 1937.
During the pendency of the suit, on 20th April, 1937, the provincial Government started land acquisition proceedings respecting the subject matter of the suit and the same was acquired.
The High Court upheld the dismissal of the suit for specific performance and referred an amendment for award of damages.
On the obvious impermissibility of specific performance the Nagpur High Court said: "We accordingly conclude that specific per formance is now impossible and we cannot decree it for "equity like nature does nothing in vain.
" We cannot hold the plaintiffs appel lants entitled to the compensation money into which the property was converted because they had no right or interest in that property. " Refusing the amendment for the relief for payment of money the High Court held: "We would not allow amendment also because on the facts found by the trial Court (with which we see no reason, whatever, to differ) we would have refused specific performance, and the claim for damages on this account would also have been negatived because damages could have been awarded only if specific performance could rightly have been claimed.
The appeal, therefore, fails and is dismissed with costs." .llm0
Support for these conclusions was sought from the oft quoted, but perhaps a little misunderstood, case of Ardeshir H. Mama vs Flora Sassoon A.I.R. 1928 Privy Council 208.
The passage in Sassoon 's case relied upon by the Nagpur High Court is this: "In a series of decisions it was consistently held that just as its power to give damages additional was to be exercised in a suit in which the Court had granted specific perform ance, so the power to give damages as an alternative to specific performance did not extend to a case in which the plaintiff had debarred himself from claiming that form of relief, nor to a case in which that relief had become impossible.
577 The case of 52 Bombay 597 fell within the first category of cases described above under the alternative relief of damages.
This case fails within the second part where the relief of specific performance has become impossible." (emphasis supplied) The second part of the observation of the Nagpur High Court, with great respect to the learned Judges proceeds on a fallacy resulting from the non perception of the specific departure in the Indian law.
In Lord Cairn 's Act.
1858 damages could not be awarded when the contract had, for whatever reason, become incapable of specific performance.
But under the Indian law the explanation makes a specific departure and the jurisdiction to award damages remains unaffected by the fact that without any fault of the plain tiff, the contract becomes incapable of specific perform ance.
Indeed, Sassoon 's case is not susceptible of the import attributed to it by the Nagpur High Court.
Sassoon 's case itself indicated the departure made in Indian Law by the Explanation in Section 19 of the 1877 Act, which is the same as the Explanation to Section 21 of the 1963 Act.
The Judicial Committee, no doubt, said that Section 19 of the 1877 Act "embodies the same principle as Lord Cairn 's Act and does not, any more than did the English Statute enable the court in a specific performance suit to award 'compensa tion for its breach ' where at the hearing the plaintiff debarred himself by his own action from asking for a specif ic decree" ', But what was overlooked was this observation of Lord Blanesburgh, "except as the case provided for in the expla nation us 10 which there is introduced an express divergence from Lord Cairn 's Act as expanded in England" (emphasis supplied ) Indeed the following illustration of the Explanation appended to Section 19 of makes the position clear" "Of the Explanation A, a purchaser, sues B, his vendor, for specific performance of a contract for the sale of a patent.
Before the hearing of the suit the patent expires.
The Court may award A compensation for the non performance of the contract, and may, if necessary, amend the plaint for that purpose When the plaintiff by his option has made specific performance impossible, Section 21 does not entitle him to seek damages.
That position is common to both Section 2 of Lord Cairn 's Act, 1858 and Section 21 of the .
But in Indian Law where the contract, 578 for no fault of the plaintiff, becomes impossible of per formance section 21 enables award of compensation in lieu and substitution of specific performance.
We, therefore, hold that the second contention of Sri Manoj Swarup is not substantial either.
Learned counsel were not specific on the point whether the Respondent had actually asked for compensation in lieu of specific performance.
We may assume that it was not so specifically sought.
In order that formality in this behalf be completed, we permit the amendment here and now so that complete justice is done.
The measure of the compensation is by the standards of Section 73 of the Indian Contract.
Here again the English Rule in Bain vs Fothergill, (1874) L.R. 7 House of Lords 158 that the purchaser, on breach of the ,contract, cannot recover, for the loss of his bargain is not applicable.
In Pollock & Mulla on Contract (10th Edn.) the law on the matter is set out thus : "Where, therefore, a purchaser of land claims damages for the loss of his bargain, the question to be decided is whether the damages alleged to have been caused to him 'naturally arose in the Usual course of things from such breach '; and in an ordinary case it would be difficult to hold otherwise." [p. 663] Learned Authors adopt the following observation of Farran C.J. in Nagardas vs Ahmedkhan, : "The Legislature has not prescribed a differ ent measure of damages in the case of con tracts dealing with land from that laid down in the case of contracts relating to commodi ties" In the present case there is no difficulty in assessing the quantum of the compensation.
That is ascertainable with reference to the determination of the market value in the land acquisition proceedings.
The compensation awarded may safely be taken to be the measure of damages subject, of course, to the deduction therefrom of money value of the services, time and energy expended by the appellant in pursuing the claims of compensation and the expenditure incurred by him in the litigation culminating in the award.
We accordingly confirm the finding of the High Court that Respondent was willing and ready to perform the con tract and that it was the 579 Appellant who was in breach.
However, in substitution of the decree for specific performance, we make a decree for compensation, equivalent to the amount of the land acquisi tion compensation awarded for the suit lands together with solatium and accrued interest, less a sum of Rs.1,50,000 (one lakh fifty thousand only) which, by a rough and ready estimate, we quantify as the amount to be paid to the appel lant in respect of his services, time and money expended in pursuing the legal claims for compensation.
We may here notice one other submission of Sri Manoj Swarup.
He found fault with the operative part of the judg ment of the High Court, Which, according to Sri Manoj Swa rup, had not even provided for the payment to the appellant of Rs. 15,000 the stipulated consideration for reconveyance.
There is this apparent omission in the operative part of the High Court 's judgment.
But this is only a technicality.
The operative part granting relief should be read with the relevant prayers in the plaint itself.
But that is not of any practical significance here in as much as we have also taken this amount of Rs. 15,000 into account in somewhat generously quantifying the litigation expenses at Rs. 1,50,000 as payable to the appellant out of the sums awarded for the acquisition.
Therefore, there is no need for Re spondent to pay the sum of Rs. 15,000 additionally.
In the result there will be a decree awarding 10 the Respondent compensation in lieu and substitution of one for specific performance which but for the acquisition Respond ent would have been entitled to the quantum and the measure of the compensation being take entire amount of compensation determined for take acquisition of the suit.
properties to gather with all the solatium, accrued interest and all other payments under the law authorising the acquisition, less a sum of Rs. 1,50,000 (Rupees one lakh fifty thousand only) which shall go to the Appellant towards his services, time and amounts spent in pursuing the claims for compensa tion as well as the consideration stipulated for reconvey ance .
The sum of Rs.1,50,000 is allowed to be. paid to the Appellant on his assurance that he has not received any part of the compensation earlier.
If any amount has been received by the Appellant out of compensation awarded for the acqui sition, such sums shall go in reduction of the sum of Rs.1,50,000, the difference being for the benefit of and be paid to the Respondent additionally.
This order shall be sufficient authority for the land acquistion authorities or the Courts wherever the matter may be pending for the apportionment and payment of the compen sation for the acquisition of the suit 580 property between the Appellant and the Respondent in the manner indicated above.
These directions shall, of course, not affect or prejudice the claim of other claimants, if any, whose claims are to be determined in the said land acquistion proceedings, the assumption implicit in this apportionment being.
that there are no other claimants in the land acquisition proceedings.
If such apportionment and withdrawal is not possible, the decree in terms of this judgment shall be worked out in execution proceedings.
The decree under appeal is modified accordingly.
No costs.
T.N.A. Decree modified. [/INST] By an agreement dated 3.7.1973 the respondent sold two plots to the appellant for a consideration of Rs. 15,000.
By another agreement, entered into between the parties on the same day, the appellant agreed to reconvey the said proper ties to the respondent against payment of Rs. 15,000 within two years.
Within the stipulated period the respondent (Plaintiff) instituted a suit for specific performance alleging that despite offer of performance and tendering the price, the Appellant (Defendant) refused reconveyance of the properties.
The Trial Court dismissed the suit by holding that the Respondent was not ready and willing to perform the con tract, and 568 that the time was essence of the reconveyance agreement.
The first Appellate Court dismissed the respondent 's appeal.
The respondent preferred second appeal before the High Court.
Relying upon the two notices issued by the Respondent to the appellant before filing of the suit which contained the averments that he was willing and ready to perform the contract, the High Court reversed the findings of the two courts below and allowed the appeal and held that Respond ent Plaintiff was willing to perform the contract and that the Appellant was the party in breach.
Accordingly it passed a decree of specific performance of an agreement for sale of land.
During the pendency of the Second Appeal, suit proper ties were acquired by the State for public purposes and the High Court rejected the plea that after the land has been acquired by the State corpus of the Land had ceased to exist and no decree for specific performance can be granted.
In defendant 's appeal to this Court it was contended on his behalf (1) that the High Court erred in reappreciating the evidence in second appeal and in disturbing the concur rent findings of fact that Respondent was not willing and ready to perform the contract; (2) that in view of the acquisition of the suit properties the contract itself became incapable of specific performance and to such a case the power to give compensation as an alternative to specific performance did not extend.
Modifying the decree of the High Court, this Court, HELD:1.
Where the findings by the Court of facts are vitiated by non consideration of relevant evidence or by an essentially erroneous approach to the matter, the High Court is not precluded from recording proper findings.
[572 H] 1.1 The notices issued by the respondent to the appel lant containing the averments that he was ready and willing to perform the contract which were not actually served on the appellant because of his refusal to accept them must be presumed to have been served as contemplated by Section 27 of the General Clauses Act.
Therefore the High Court was right in relying upon the averments in the notices which could be treated as part to the plaint.
Accordingly the finding of the High Court that Respondent was willing and ready to 569 perform the contract and that it was the Appellant who was in breach is accordingly confirmed.
[572 F G, 578 H, 579 A] 2.
Section 21 of the enables the Plaintiff in a suit for specific performance also to claim compensation for its breach either in addition to or in substitution of, such performance.
However, when the plaintiff by his option has made specific performance impos sible, Section 21 does not entitle him to seek damages.
That position is common under the English and Indian Law namely under Section of Lord Cairn 's Act, 1858 and Section 21 of the .
But under the Indian Law the explanation to sub section (5) of Section 21 makes a specif ic departure and the jurisdiction to award damages remains unaffected by the fact that without any fault of the plain tiff, the contract becomes incapable of specific perform ance.
[574 D, 577, H C] Piarey Lal vs Hori Lal, [1977] 2 S.C.R. 915, distin guished and held inapplicable.
Mohamad Abdul Jabbar & Ors.
vs Lalmia & Ors., A.I.R. (34) 1947 Nagpur 254, disapproved.
Ardeshir H. Mama vs Flora Sessoon, A.I.R. 1928 Privy Council 208, explained.
However, so far as the proviso to sub section (5) of Section 21 is concerned, two positions must to kept clearly distinguished.
If the amendment relates to the relief of compensation in lieu of or in addition to specific perform ance where the plaintiff has not abandoned his relief of specific performance the Court will allow the amendment at any stage of the proceeding.
That is a claim for compensa tion failing under section 21 of the and the amendment is one under the proviso to sub section (5).
But different and less liberal standards apply if what is sought by the amendment is the conversion of a suit for specific performance into one for damages for breach of contract in which case Section 73 of the Contract is invoked.
This amendment is under the discipline of Rule 17, Order 6, C.P.C. The fact that sub section (4), in turn, invokes Section 73 of the Indian Contract Act for the prin ciples of quanlification and assessment of compensation does not obliterate this distinction.
[575 B C] 570 3.1 In the instant case, assuming that the Respondent had not specifically sought for compensation in lieu of specific performance the amendment is permitted in order that complete justice is done.
[578 B] 3.2 The measure of the compensation is by the standards of Section 73 of the Indian Contract Act.
Here the English Rule in Bain vs Fothergill that the purchaser, on breach of the contract, cannot recover for the loss of his bargain is not applicable.
[578 C] Bain vs Fothergill, 1874 L.R. 7 House of Lords 158, held inapplicable.
Pollock & MuHa on Contract (10th edn.) p.663; Nagardas vs Ahmedkhan, , referred to. 3.3 In the instant case, the quantum of the compensation is ascertainable with reference to the determination of the market value in the land acquisition proceedings.
The com pensation awarded may safely be taken to be the measure of damages subject, of course, to the deduction therefrom of money value of the services, time and energy expended by the appellant in pursuing the claims of compensation and the expenditure incurred by him in the litigation culminating in the award.
[578 G] 4.
Accordingly there will be a decree awarding to the Respondent compensation in lieu and substitution of one for specific performance which but for the acquisition Respond ent would have been entitled to; the quantum and the measure of the compensation being the entire amount of compensation determined for the acquisition of the suit properties to gether with all the solatium, accrued interest and all other payments under the law authorising the acquisition less a sum of rupees one lakh fifty thousand only which shall go to the Appellant towards his services, time and amounts spent in pursuing the claims for compensation as well as the consideration stipulated for reconveyance.
[579 E F] </s> |
<s>[INST] Summarize the following judgement: ivil Appeal No. 3552 of 1989.
From the Judgment and order dated 24.11.87 of the Allahabad High Court in Second Appeal No. 2719 of 1987.
J.P. Goyal, R.C. Verma, M.R. Bidsar and K.K. Gupta (NP) for the Appellants.
O.P. Rana and Girish Chandra for the Respondent.
The Judgment of the Court was delivered by KASLIWAL, J.
This appeal by special leave is directed against the Judgment of Allahabad High Court dated 24.11.1987.
The plaintiff respondent filed a suit on the ground that the land purchased through 4 sale deeds dated 10.6.1968, 21.6.1968, 17.1.1976 and 23.6.1977 were purchased by him alone and he was the real owner of said land.
The name of the defendants/appellants were included in the said sale deeds only as benamidar.
The defendants appellants took the plea that they had paid their part of the sale consideration and the land was jointly purchased in the name of both the parties.
It may be noted that the defendant appellant Om Prakash and plaintiff respondent Jai Prakash are brothers and defendant appellant NO.
2 Smt.
Satyawati is the wife of appellant Om Prakash.
It has come on record that the appellant NO. 1 Om Prakash was in Government service ever since 1953 and the plaintiff respondent was looking after the entire agricultural property in the village.
Consolidation proceedings also took place in the village and during the consolidation operation partition had been effected in the revenue records and chaks had been carved out in accordance with the share of the parties.
At that time no dispute was raised by the plaintiff respondent that he was owner of the entire property and the names of defendants appellants were wrongly mentioned as benami.
The learned trial court arrived at the conclusion that the names of the defendants appellants in the sale deeds were not mentioned as benamidars and further held that the claim of the plaintiff respondent could not be accepted as no objection had been taken by him even during the consolidation proceedings.
The suit as such was dismissed by the trial court by Judgment dated 24.1.1987.
The plaintiff aggrieved against the judgment of 19 the trial court, filed an appeal.
The first appellate court reversed the Judgment and decree of the trial court and decreed the suit in favour of the plaintiff.
The second appeal filed by the defendants was dismissed by the High Court.
The defendants aggrieved against the Judgment and decree of the High Court filed special leave petition before this Court on 15th March, 1988.
During the pendency of the special leave petition, the Benami Transactions (Prohibition of the right to recover property) Ordinance, 1988 was promulgated by the President of India on 19.5.1988.
The said ordinance was replaced by the Benami Transactions (Prohibition) ACt, 1988 (Hereinafter called the `Benami Act ').
The Act received the assent of the President of India on 5.9.1988.
The defendants filed an application on 1.5.1989 for allowing them to take additional grounds made available on the basis of the aforesaid `Benami Act '.
Thereafter special leave was granted by this court by order dated 21.8.1989 and it was directed that printing of record is dispensed with and appeal will be heard on the special leave petition paper books.
The parties were given liberty to file additional documents if any within four weeks and the appeal was directed to be listed on 13.12.1989 for hearing.
Pending disposal of the appeal, the parties were directed to maintain status quo as existing on that day.
In the above circumstances, the matter came up for hearing before us.
Though there is no specific order of this Court allowing the application dated 1.5.1989 filed by the appellants for raising additional grounds, the same shall be deemed to have been allowed as the special leave petition was granted subsequently on 21.8.1989 after hearing both the parties.
In any case, we further make it clear that we had permitted the defendants/appellants to argue additional grounds made available to them under the `Benami Act ', which admittedly came into force after the filing of the special leave petition in this Court.
Learned counsel appearing on behalf of the defendants appellants had contended that the suit filed by the plaintiff respondent was not maintainable and barred under Section 49 of the U.P. Consolidation of Holdings Act, 1954 as the point regarding the land in question being benami was never raised by the plaintiff respondent during consolidation proceedings and the chaks were allowed to be recorded in the name of the defendants appellants.
So far as this objection under Section 49 of the U.P. Consolidation of Holdings Act is concerned, no foundations were laid in the written statement nor any issue was raised.
The High Court was thus right in holding that in the facts of this case, no foundation had been laid for the applicability of Section 49 of U.P. Consolidation of Holdings Act.
We see no error in the order of the High Court in taking the aforesaid view and we also hold that the defendants 20 appellants cannot be allowed to take such plea for which no foundation was laid in the pleadings.
The next important and formidable question which arises for consideration is whether any suit relating to benami transactions can be decreed after the coming into force of the Benami Act.
This Court in Mithilesh Kumari and Anr.
vs Prem Behari Khare, J.T. , has already held that the expression "shall lie" in Section 4 (1) and "shall allow" in Section 4 (2) of the Benami Act are prospective and shall apply to present (future stages) and future suits, claims or actions only.
The expression "any property held benami" is not limited to any particular time, date or duration.
In a suit for recovery of benami property if any appeal is pending on the date of coming into force of Section 4, the appellate court can take into account the subsequent legislative changes.
Section 4 of the Benami Act reads as under: "(1) No suit, claim or action to enforce any right in respect of any property held benami against the person in whose name the property is held or against any other person shall lie by or on behalf of a person claiming to be the real owner of such property.
(2) No defence based on any right in respect of any property held benami, whether against the person in whose name the property is held or against any other person, shall be allowed in any suit, claim or action by or on behalf of a person claiming to be the real owner of such property.
" In the case of Mithilesh Kumar this Court considered the 1/30th report of the Law Commission submitted to the Government on August 14, 1988.
Benami Transaction (Prohibition) Bill, 1988 was drafted after getting the report and the Bill was introduced in the Rajya Sabha on 31st August, 1988 and then the Bill was passed.
The Law Commission devoted several pages to justify retrospective legislation and its view was that the legislation replacing the Ordinance should be retrospective in operation and that no locus penitentia need be given to the persons who had entered in the benami transaction in the past.
Learned counsel appearing for the respondent was unable to convince us to take a different view from that already taken by this Court in Mithiledsh kumari 's case.
It was vehemently contended by the learned counsel for the plaintiff respondent that even if the ratio of Mithilesh Kumari 's case is applied, it can be made available only in a case where appeal was pending before the higher Court.
It was contended that in the present case, only special leave petition 21 filed on 15th March, 1988 was pending at the time when the Benami Act came into force.
It was pointed out that the Ordinance was promulgated on 19.5.1988 and the Benami Act received the assent of the President on 5.9.1988.
It was thus contended that no appeal was pending on 19.5.1988 or 5.9.1988 as the special leave was granted much after on 21.8.1989 and thus no advantage can be taken by the defendants appellants of Section 4 of the Benami Act as no appeal was pending on the date when the benami Act came into force.
We find no force in the above contention of the learned counsel for the plaintiff respondent.
Special leave petition was filed against the Judgment of the High Court on 15.3.1988 and special leave was granted on 21.8.1989 after hearing both the parties.
In the present case the defendants having lost in High Court could have approached this Court only through a special leave petition under article 136 of the Constitution and it is only after the grant of such special leave that the appeal could be heard.
Though the special leave might have been granted subsequently on 21.8.1989 but it is a fact that the Judgment and decree of the High Court had already been challenged by the defendant appellants and it cannot be said that no appeal was pending before this Court simply on the ground that only special leave petition was pending when the Benami Act came into force.
There is a clear prohibition under Section 4 of the benami Act that no suit, claim or action to enforce any right in respect of any property held benami against the person in whose name the property is held or against any other person shall lie by or on behalf of a person claiming to be the real owner of such property.
It is well settled that an appeal is a continuation of suit and in the present case the appeal was pending before this Court.
There is no manner of dispute that the present suit had been filed by the plaintiff respondent claiming that he was the real owner of the property and the names of the defendants appellants were mentioned in the sale deeds as benami.
In our view, Section 4 of the Benami Act is a total prohibition against any suit based on benami transaction and the plaintiff respondent is not entitled to get any decree in such suit or in appeal.
As a result of the above discussion, we allow this appeal, set aside the Judgment and decree of the High Court and dismiss the suit.
In view of the fact that the suit is dismissed on account of legislative change brought about during the pendency of the appeal in this Court, there would be no order as to cost.
V.P.R. Appeal allowed. [/INST] The defendant appellant No. 1 and plaintiff respondent were brothers and defendant appellant No. 2 was the wife of appellant No. 1.
The appellant No. 1 was in Government service ever since 1953.
The plaintiff respondent was looking after the entire agricultural property in the village.
Partition was effected during consolidation proceedings and entered in the revenue records and chaks were carved out in accordance with the share of the parties in the consolidation proceedings.
During the consolidation operation, the plaintiff respondent did not raise any dispute that he was owner of the entire property and the names of defendants appellants were wrongly mentioned as benami.
Later, the plaintiff respondent filed a suit on the ground that the suit land was purchased by him alone through 4 sale deeds dated 10.6.1968, 21.6.1968,17.1.1976, and 23.6.1977 wherein the names of the defendants appellants were included only as benamidar and he was the real owner of the land.
The defendants appellants contended that they had paid their part 16 of the sale consideration and the land was jointly purchased in the name of both the parties.
The trial court dismissed the suit holding that the names of the defendants appellants in the sale deeds were not mentioned as benamidars and that the plaintiff respondent did not take any objection in the consolidation proceedings.
When the plaintiff respondent filed an appeal before the first appellate court, it reversed the judgment and decree of the trial court and decreed the suit in favour of the plaintiff respondent.
The second appeal filed by the defendants appellants was dismissed by the High Court.
The defendants filed a special leave petition before this Court on 15th March 1988.
During the pendency of the special leave petition the Benami Transactions (Prohibition of the Right to Recover Property) Ordinance,1988 was promulgated on 19.5.1988.
The ordinance was replaced by the Benami Transactions (Prohibition) Act, 1988, which received the President 's assent on 5.9.1988.
The defendants filed an application on 1.5.1989 for allowing them to take additional grounds made available on the basis of the aforesaid `Benami Act '.
Thereafter special leave was granted by order dated 21.8.1989 and the parties were given liberty to file additional documents, if any, within four weeks.
The defendants appellants contended that the suit filed by the plaintiff respondent was not maintainable and barred under Section 49 of the U.P. Consolidation of Holdings Act, 1954 as the point regarding the land in question being benami was never raised by the plaintiff respondent during consolidation proceedings and the chaks were allowed to be recorded in the name of the defendant appellants.
The plaintiff respondent contended that if the ratio of Mithilesh Kumari 's case, JT.
1989(1) SC 275, was applied, it could be made available only in a case where appeal was pending before the higher Court and that no advantage could be taken by the defendants appellants, of Section 4 of the Benami Act, as no appeal was pending on the date when the Benami Act came into force.
17 On the question, whether any suit relating to benami transactions can be decreed after the coming into force of the Benami Act, this Court, allowing the appeal of the defendants, HELD : 1.01.
In a suit for recovery of benami property if any appeal is pending on the date of coming into force of Section 4, the appellate court can take into account the subsequent legislative changes.
[20C] 1.02.
The Law Commission 's view was that the legislation replacing the ordinance should be retrospective in operation and that no locus penitentia need be given to the persons who had entered in the benami transaction in the past.
[20G] 1.03.
In the present case the defendants, having lost in High Court, could have approached this Court only through a special leave petition under article 136 of the Constitution and it is only after the grant of such special leave that the appeal could be heard.
Though the special leave might have been granted subsequently on 21.8.89 but it is a fact that the Judgment and decree of the High Court had already been challenged by the defendant appellants, and it cannot be said that no appeal was pending before this Court simply on the ground that only special leave petition was pending when the Benami Act came into force.
[21C E] 1.04.
An appeal is a continuation of suit and in the present case, the appeal was pending before this Court.
The suit had been filed by the plaintiff respondent claiming that he was the real owner of the property and the names of the defendants appellants were mentioned in the saledeeds as benami.
[21E F] 1.05.
Section 4 of the Benami Act is a total prohibition against any suit based on benami transaction and the plaintiff respondent is not entitled to get any decree in such suit or in appeal.
[21F] Mithilesh Kumari and Anr.
v Prem behari Khare, J.T. , referred to . 2.01.
The expression "shall lie" in Section 4(1) and "shall allow" in Section 4(2) of the Benami Act are prospective and shall apply to present (future stages) and future suits, claims or actions only.
[20B] 2.02.
The expression "any property held benami" is not limited to any particular time, date or duration.
[20C] 18 3.
No foundations were laid in the written statement nor any issue was raised by the defendants appellants, on the question of applicability of Section 49 or th U.P. Consolidation of Holdings Act.
The defendants appellants cannot be allowed to take such plea.
[19H 20A] </s> |
<s>[INST] Summarize the following judgement: Criminal Appeal No. 722 of 1991.
From the Judgment and Order dated 21.12.1990 of the Kerala High Court in Criminal Appeal No. 425 of 1989.
B.R.L. lyanger, R. Mohan, V. Krishnamurthy and V. Bala chandran for the Appellants.
P.S. Poti, T.T. Kunhikannan, E.M.S. Anam, Ms. Indira Sawlmey, P. Parmeswaran, Ms. Sushma Suri, K. Ram Kumar and Y.P. Rao for the Respondents.
The Judgment of the Court was delivered by YOGESHWAR DAYAL, J.
Special leave granted.
This order will dispose of six matters namely, Crl.
Appeal Nos.
553/ 89, 283/91,284/91, Civil Appeal Nos.
3708 13/89, 1897/91 and Criminal Appeal arising out of S.L.P. (Crl.) No. 2647/91.
FACTS Crl.
A. No. 553/89 This appeal arises from the judgment of the learned Single Judge of the High Court of Kerala dated 6th June, 1988 whereby the learned Single Judge declined to quash the prosecution of the petitioner therein under Section 482 of the Code of Criminal Procedure.
The petitioner therein has been prosecuted for selling adulterated "Ashoka special supari" on the basis of a certificate issued by the Director of Central Food Laboratory showing that the article of Food purchased from the accused contained 2000 mgs/kg.
saccharin and that the sample does not conform to the Prevention of Food Adulteration Rules, 1955, (hereinafter referred to as the Rules).
The High Court took the view the report prima facie goes to show that accused has sold adulterated article of food and consequently declined to quash the prosecution under Section 482 of the Code.
A. No. 283/91 This appeal is directed against the order of the Kerala High Court dared 22nd January, 1991 accepting the appeal against the order of 394 acquittal passed by the Chief Judicial Magistrate, Palakkad, in S.T No. 36 of 1988.
The appeal was filed against the acquittal of accused Nos. 2 and 3 therein and out of whom N. Raja Mohammed, the Joint Managing Director of M/S N.V.K. Mohammed Sultan Rawther (P) Ltd., is the appellant before us.
The High Court confirmed the acquittal of second accused but sentenced the appellant before us under Section 16(1)(a)(i) of the Prevention of Food Adulteration Act to undergo simple imprisonment for six month and to pay a fine of Rs. 1,000 with a default sentence of simple imprisonment for two more months.
284/91.
This appeal is filed against the order dated 21st Decem ber, 1990 passed by the learned Single Judge of the Kerala High Court dismissing the revision petition whereby accused No. I therein was sentenced to pay Rs. 1,000 as fine and the two other accused were sentenced to simple imprisonment for six months each and Rs. 1,000 as fine and in default of payment of fine to undergo simple imprisonment for a period of one month more.
Their conviction were recorded under Section 7(i) and (v) read with Section (16) (1) (a) (ii) of the Prevention of Food Adulteration Act for having sold Roja Sungandha Suparit with admixture of saccharin.
The sample was taken on 22nd December, 1986.
Civil Appeal Nos.
3708 13/89 These appeals are filed by the Union of India against the judgment of the Division Bench of the High Court of Andhra Pradesh dated 16th June, 1986 whereby the Division Bench following the judgment of a learned Single Judge in Crl.
Petition No. 1569 of 1984 allowed the writ peti tions.
A batch of writ petitions were filed for a declara tion that the admixture of saccharin in Anjali Sugandhi Supari; Roja Scented Betelnut; Nizam Supari; A.R.R. Saugan tha Supari and Ajantha Sugandhi Supari is in accordance with Rule 44 of the Rules and restraining the respondents/ appel lant herein from interfering with the business of sale of Supari with such an admixture.
Civil Appeal No. 1897/91 This appeal is directed against the order of the Divi sion Bench of the Kerala High Court dated 22nd November, 1990 whereby the learned Division Bench was inclined to take the view that the learned Single Judge should have declined jurisdiction for the reason that the relief claimed 395 is of a general character for a declaration that the admix ture of saccharin in Roja Scented Betelnut is not a blanket ban under Rule 47 read with Appendix B of the Prevention of Food Adulteration Rules, 1955.
Appeal at, sing out of SLP (Crl.) No. 2647/91 This appeal is directed against the order of the High Court of Kerala dated 21st December, 1990 setting aside the order of acquittal passed by the trial court and remanding the matter to the trial court for fresh disposal according to law.
The trial court had inter alia taken the view that the sample of Supari in question was taken contrary to Rule 22 A of the Rules.
The High Court took the view that the sample was properly taken.
On a plea being raises that the article of Supari was not adulterated as saccharin could be added to Supari, the High Court did not agree with the submission and held that saccharin could not be added to Supari and consequently the High Court remanded the matter to the trial court for fresh disposal according to law.
The case inter alia involves interpretation of Rule 44 (g) of the Rules before its deletion with effect from 15th April, 1988 and the amendment of Rule 47 by Notification No. GSR 454 (E) dated 15.4.1988 (with effect from 15.4.1989) as covered by GSR 1157 (E) dated 9.12.1988.
Rules 44(g) and 47 as they originally stood and as they stood modified at the relevant time of taking of the sample, figured during the arguments and they are extracted hereunder with comments : "44.Sale of certain admixtures prohibited Notwithstanding the provisions of Rule 43, no person shall either himself or by any servant or agent sell (g) any article of food which contains any artificial sweetener, except Saccharin, or in the preparation of which any such artificial sweetener has been used".
" "47.
Addition of Saccharin to be mentioned on the label.
Saccharin may be added to any food if the container of such food is labelled with an adhesive declaratory label.
which shall be in the form given below : This . . (name of food) . . contains an admixture of Saccharin".
These Rules held the field from November 24, 1956 until August 24, 1968 when they were further amended.
The Preven tion of Food Adulteration (Third Amendment) Rules 1968, redrafted Rules 44 (g) and 47.
and it 396 is these Rules which were extant at the time of the alleged offence.
It is proper at this stage to reproduce these two Rules: "44.
Sale of certain admixtures prohibited Notwithstanding the provisions of Rule 43 no person shall either by himself or by any servant or agent sell (g) any article of food which contains any artificial sweetener except where such artifi cial sweetener is permitted in accordance with the standards laid down in Appendix 'B '.
"47.Addition of artificial sweetener to be mentioned on the label Saccharin or any other artificial sweetener shall not be added to any article of food, except where the addi tion of such artificial sweetener is permitted in accordance with the stand ards laid down in Appendix 'B ' and where any artificial sweetener is added to any food the container of such food shall be labelled with an adhesive declaratory label which shall be in the form given below: This . . (name of food) . . contains an admixture . . (name of the artificial sweetener)".
The Supreme Court in its decision Pyarali K. Tejani vs Mahadeo Ramchandra Dange and Others, ; took the view that at the relevant time the article like saccha rin could not be added to the Supan in view of the amended Rules 44(g) and 47 of the Rules.
It will be noticed that till date no standard has been prescribed in Appendix 'B ' to the Rules so far as the Supari is concerned.
Therefore under Rule 44(g) there was a total prohibition of use of saccha rin, which is an artificial sweetener, to any article of food including Supari and regarding saccharin it was specif ically provided in Rule 47 that it shall not be added to any article of food, except where the addition of such artifi cial sweetener is permitted in accordance with the standards laid down in Appendix 'B '.
Therefore, under Rule 47 again so far as saccharin is concerned and for which no standards have been prescribed in Appendix 'B ' there was total prohi bition of adding the same in any article of food.
This was the view taken in the aforesaid case of Pyarali K. Tejani.
For the period relevant for the Tejani 's case the Rules permitted saccharin to be added in case of carbonated water in item 5(B) A 1.01.01 only but no such permission was noticed by the Supreme Court in the case of Supari.
Thus the Supreme Court had settled the law, as far as the Rules between August 24, 1968 and 15th April, 1988 are concerned.
We may mention that w.e.f. 15.4.
1988 Rule 44(g) was omitted and Rule 47 was substituted by new Rules.
397 However, it appears that with effect from 26th May, 1971 for the first time a standard was prescribed for Saccharin Sodium as item No. A.07.10 in Appendix 'B ' to the Rules.
After the provision of standard for Saccharin Sodium in Appendix 'B ' to the Rules, the Bombay High Court in the case of State of Maharashtra vs Ranjitbhai Babubhai Suratwalla, distinguished the judgment of the Supreme Court in Tejani 's case (supra) and took the view that because standards; have been prescribed for saccharin, Rule 47 permitted its user in article of food.
This view was followed by Single Judge of the Andhra Preadesh High Court in the case reported as Thummalapudi Venkata Gopala Rao vs The State, (1986)Cr1 LJ 1699.
Asimilar view was taken by another Single Bench of the Madras High Court in the case M/s. Wahab and Co., a Proprietory concern represented by its proprietor M. A Wahab son of N. Mohamed Sheriff vs Food Inspector, Tiruchirappalli Municipal corparation Trichy; (1990)L.W.(CrI.)437 with out noticing the earlier cotract view of the same High Court reported as State by Public Prosecutor vs K. R. Balakrishnan, (1986) (I) FAC 384.
The Rajasthan High Court also took the same view in the case reported as Kailash vs The State of Rajasthan, (1985) (I) FAC 282.
The Gauhati High Court in the case reported as State of Assam vs Rant Karani and Others (1987) (3) All India Prevention of food Adulteration Journal 153 following some of the aforesaid decisions also look the view that addition of artificial sweetener like saccharin in Supari or Pan Ka Masala, if it conforms to the standard laid down in clause A.07.10 of the Appendix 'B ' of the Rules, did not violate Rule 44(g) read with Rule 47 of the Rules.
The Madhya Pradesh High Court in the case reported as Ujjain Municipal Corporation, Ujjain vs Chetan Das, (1985) (I) FAC 46. followed the view of the Bomaby High Court in the case reported as Ranjitbhai Babubhai Suratwalla (supra).
On the other banal the High court of Kerala, Allahabad and another earlier Single Bench of the Madras High Court took the view that prescription of standard of saccharin in Appendix 'B ' to the Rules could not alter the interpretation of Rule 44(g) nor help could be taken from interpretaion of Rule 47.
The Kerala High Court in the case reported as Food Inspector vs Usman, noticed the view of the Bombay High Court in Ranjitbhai Babubhai Suratwalla 's case (supra) and dissented from it and held: "Rule 47 of the Prevention of Food Adultera tion Rules provides that saccharin or any other artificial sweetener shall not be added to any article of food, except where the addi tion of 398 such artificial sweetener is permitted in accordance with the standards laid down in Appendix 'B ' and where any artificial sweeten er is added to any food, the container of such food shall be labelled with an adhesive de claratory label to that effect.
That means unless and to the extent in accordance with the standards prescribed in Appendix 'B ' saccharin or any other artificial sweetener are prohibited material in food articles.
For pan supari no standard is fixed in Appendix 'B '.
That means addition of artificial sweet ener is not permitted by the standards laid down in Appendix 'B ' and the prohibitions under Rule 47 operates as an absolute prohibi tion against addition of saccharin or other artificial sweetener so far as pan supari is concerned.
Whether addition of artificial sweetener is injurious to health or life is not a matter for consideration when its addi tion is prohibited".
Following the decision of the Supreme Court in Tejani 's case the Court set aside the acquittal of accused No. 1 and sentenced him.
A Division Bench of the Allahabad High Court in Krishna Chandra (in Jail,) vs State of Uttar Pradesh, (1990) (I) F.A.C. 35 differed with the earlier decision of the Single Bench in Ibrahim Hussain vs ,State of Uttar Pradesh and also differed with the view of the Bombay High Court in Ranjitb hai Babubhai Suratwallas case and declined to distinguish the Tejani 's case as held by this court and took the view that the prescription of the standard of saccharin is not at all relevant to the inquiry and saccharin could not be added to any article of food unless permitted by standard pre scribed in Appendix 'B ' to the Rules and purported to the decision of this Court in Tejani 's case.
Before us also Mr. B.R.L. lyengar, who appeared for the accused, made submission that on the construction of Rule 44(g) it permits sale of article of food which contains artificial sweetener with the standard as laid down in Appendix 'B ' to Rules.
We are unable to accept the submis sion.
We are also unable to accept the decisions of the High Courts supporting that view.
Rule 44 (g) indicates that sale of any article of food which contains artificial sweetener is banned.
The ban is lifted only if such artificial sweetener is permitted to be added to the article of food for which standards have been laid down in Appendix 'B ' to the Rules.
Admittedly no stand ard has been laid down for Pan Masala or Supari.
It is this article of food which was being sold.
No standard was pre scribed for this article of food.
Therefore, the exception permitted by clause (g) has no application 399 and no relevance.
The article which was being sold should contain a standard and the standard should permit artificial sweetener to be added.
Again Rule 47 in other form specifi cally bars saccharin or any other article of artificial sweetener to be added in any article of food, except where the addition of such artificial sweetener is permitted in accordance with the standards laid down in Appendix 'B '.
Therefore both Rules 44(g) and 47 constitute a total blanket ban on the addition of any artificial sweetener including saccharin to any article of food unless standards for that article of food is prescribed which authorises the use of such an artificial sweetener.
The argument that since the standards of saccharin have been provided for in the Appen dix 'B ' to the Rules and therefore, it could be added in view of the language of Rule 44(g) is fallacious.
What one has to see is the article of food in which the artificial sweetener is sought to be added.
If the standards for that article of food is provided in Appendix 'B ' to the Rules and such standards permit the addition of saccharin or any other artificial sweetener, then and then only saccharin or any other artificial sweetener could be added and not otherwise not.
It appears that the Bombay High Court and the other High Courts which have taken the opposite view seem to have fallen into errors while interpreting Rule 44(g1.
They have assumed as if once the standards of saccharin or the artifi cial sweetener have been prescribed it could be freely added to any article of food.
It is necessary to point out that the prescription of standard of saccharin or any artificial sweetener in Appendix 'B ' is really irrelevant.
What was emphasised in Tejani 's case is the standard of food and the standard should permit saccharin or any artificial sweetener to be added.
It is not the question of standard being pre scribed for saccharin which is relevant; what is relevant is the standard being prescribed in Appendix 'B ' of the article of food which is being sold and which standard permits user of saccharin.
This is the real intention of the legislature while enacting Rule 44(g) of the Rules.
For Supari and Pan Masala, it is undisputed that there is no standard pre scribed.
In this view of the matter, we agree with the decisions of the Kerala High court in Food Inspector vs Usman ; Allahabad High Court in Krishna Chandra, (in Jail) vs State of Uttar Pardesh, 1990 (I) F.A.C. 35 and Madras High Court in State by Public Prosecutor vs K.R. Balakrishnan, The decisions in: State of Maharashtra vs Ranjitbhai Suratwalla, the Bombay High Court; Thummalapudi Venkata Gopala Rao vs The State.
(1986) Crl.
L.J. 1699 of the Andhra Pradesh High Court; M/s. Wahab and Co., a Proprietory concern represented by its proprietor M.,A. Wahab son of N. Mohammed Sheriff vs Food Inspec 400 tor, Tiruchirapalli Municipal Corporation, Trichy, (1990) L.W. (Crl.) 437 of the Madras High Court; Kailash vs The State of Rajasthan, 1985 (I) F.A.C. 282 of the Rajasthan High Court; The State of Assam vs Ram Karani and Others, 1987 (3) All India Prevention of Food Adulteration Journal 153 of the Gauhati High Court and Ujjain Municipal Corpora tion, Ujjain vs Chetan Das, 1985 (I) F.A.C. 46 of the Madhya Pradesh High Court cannot be said to have been correctly decided and are hereby overruled.
The result is that civil Appeal Nos.
3708 13 of 1989 are accepted and the impugned judgment of the Andhra Pradesh High Court dated 16th June, 1986 is set aside Crl.
Appeal Nos.
553/89, 283/91,284/91, Civil Appeal No. 1897/91 and the appeal arising out of S.L.P. (Crl.) No. 2647/ 91 are dis missed.
T.N.A. Appeals dis posed of. [/INST] The appellant (in Criminal Appeal No. 553/89) was prose cuted for selling adulterated supari with admixture of saccharin.
He filed a petition in the Kerala High Court under section 482 of the Criminal Procedure Code for quash ing the criminal proceedings which was dismissed by a single judge.
Against the decision of the single judge an appeal was filed in this Court.
The appellant (In Criminal Appeal No. 283/91) was also prosecuted for selling adulterated Supari but was acquitted by the Chief Judicial Magistrate, Palakkad.
On appeal the Kerala High Court set aside his acquittal and convicted him under section 16(1) (a) (i) of the Prevention of Food Adul teration Act and sentenced him to imprisonment for 6 months and a fine of Rs.1000.
Against the order the Kerala High Court an appeal was filed in this Court.
The appellant (In Criminal Appeal No. 284/91) was con victed ruder section 7(i) and (v) read with sections 16(i) (a) (ii) of the prevention of Food Adulteration Act for sale of adulterated supari with admixture of saccharin.
He filed a Revision Petition in the Kerala High Court and a Single Judge dismissed the same.
Against the order of the Single Judge an appeal was filed in this Court.
The facts in the connected civil appeal (Nos. 3708 13/89) are that a batch of writ petitions was filed in the Andhra Pradesh High 391 Court for a declaration that the admixture of saccharin in supari was in accordance with Rule 44 of the Prevention of Food Adulteration Rules, 1955 and for restraining the re spondents from interfering with the business of sale of supari.
A Division Bench of the High Court allowed the writ petitions.
Against the decision of the Division Bench Union of India has filed appeals in this Court.
Civil Appeal No. 1897/91 is directed against the order of the Division Bench of the Kerala High Court which held that the learned Single Judge should have declined jurisdic tion for the reason that the relief claimed was of a general character for a declaration that the admixture of saccharin in Roja Scented betelnut is not a blanket ban under Rule 47 read with Appendix 'B ' of the Prevention of Food Adultera tion Rules, 1955.
Criminal Appeal No. 722/91 is directed against the order of the High Court of Kerala setting aside the order of acquittal passed by the trial court and remanding the matter to the trial court for fresh disposal according to law.
The High Court did not agree with the submission that the arti cle of Supari was not adulterated as saccharin could be added to Supari.
Accordingly it held that saccharin could not be added to supari and consequently remanded the matter to the trial court for fresh disposal according to law.
In appeals to this court it was contended on behalf of the accused that on the construction of Rule 44(c) it per mits sale of Article of food which contains artificial sweetener with the standard as laid down in Appendix 'B ' to Prevention of Food Adulteration Rules, 1955.
Disposing the appeals, this Court, FIELD: 1.
Rule 44(g) of the Prevention of Food Adultera tion Rules, 1955 indicates that sale of any article of food which contains artificial sweetener is banned.
The ban is lifted only if such artificial sweetener is permitted to be added to the article of food for which standards have been laid down in Appendix 'B ' to the Rules.
Rule 47 in other form specifically bars saccharin or any other article of artificial sweetener to be added in any article of food, except where the addition of such artificial sweetener is permitted in accordance with the standards laid down in Appendix ' 'B '.
Thus both Rules 44(g) and 47 constitute a total blanket ban on the addition of any artificial sweeten er including saccharin to any article of food 392 unless standards for that article of food is prescribed which authorises the use of such an artificial sweetener.
[398 G, 399 A B] 2.
The prescription of standard of saccharin or any artificial sweetener in Appendix 'B ' is really irrelevant.
It is not the question of standard being prescribed for saccharin which is irrelevant what is relevant is the stand ard being prescribed in Appendix 'B ' of the article of food which is being sold and which standard permits user of saccharin.
This is the real intention of the legislature while enacting Rule 44(g) of the Rules.
[399 E F] 3.
What one has to see is the article of food in which the artificial sweetener is sought to be added.
The article which was being sold should contain a standard and the standard should permit artificial sweetener to be added.
If the standards for that article of food is provided in Appen dix 'B ' to the Rules and such standards permit the addition of saccharin or any other artificial sweetener, then and then only saccharin or any other artificial sweetener could be added and not otherwise.
[399 A C] 4.
Admittedly no standard has been laid down for Pan Masala or Supari i.e. the article of food which was being sold.
Therefore, the exception permitted by clause (g) of Rule 44 has no application and no relevance.
[398 H, 399 A] Pyarali K. Tejani vs Mahadeo Ramchandra Dange and Ors., ; , explained and applied.
State of Maharashtra vs Ranjitbhai Babubhai Suratwalla, ; Thummalapudi Venkata Gopala Rao vs The State.
, M/s Wahab and Co. a proprie tary concern represented by its ' proprietor N.A. Wahab son of N. Mohammad Sheriff vs Food lnspector.
Tiruchirappalli Municipal Corpn., Trichy.
[1990] L.W. (Crl.) 437; Kailash vs The ,State of Rajasthan, ; State of Assam vs Ram Karani anti Ors., (1987) 3 All India Prevention of Food Adulleration Journal 153; Ujjain Municipal Corpn.
, Ujjain vs Chetan Das, (1985) I F.A.C. 46, overruled.
State by public prosecutor vs
K.R. Balakrishnan, ; Food Inspector vs Usman. ; Krishna Chandra (In jail) vs State of Uttar pradesh, , approved. </s> |
<s>[INST] Summarize the following judgement: Appeal No. 3012 of 1990.
From the Judgment and Order dated 13.3.1900 of the Calcutta High Court in Appeal No. 266 of 1987 WITH Civil Appeal Nos.
3117.3118, and 3738 of 1990 and SLP No. 8081 of 1990.
K.K. Venugopal.
Dr. Shankar Ghosh, Kapil Sibal, Ajay K. Jain, Pramod Dayal, Vivek Gambhir, Surinder Kamail and S.K. Gambhir for the Appellants.
Aruneshwar Gupta and Ms. Sushma Suri for the Respondents.
The Judgment of the Court was delivered by section MGHAN, J.
All these matters can be dealt with under a common judgment since the question which arises for con sideration is the scope of Section 633 of the .
It is enough if we refer to the facts in Civil Appeal No. 3012 of 1990.
The short facts are as follows: Eastern Manufacturing Company Ltd. ("The Company" in short) is the owner of a jute mill in West Bengal.
The appellants were appointed 343 Directors between 10.4.1981 and 15.6.1984.
There was a lock out in 'the Jute Mill on 2.6.1982.
By a notification dated 26.10.
1983, Government of West Bengal declared the said jute mill as a relief undertaking under the provisions of West Bengal Relief Undertaking (Special Provisions) Act, 1972.
However, on 24.11.
1983, the lock out was lifted.
Thereafter the mill resumed its manufacturing operation between 16.1.1984 and 8.4.1984.
There was a strike in the Jute Industry throughout West Bengal.
Between 7.3.1985 and 3.8.1985 there was a lock out due to labour unrest.
As a result of all these the company defaulted in the payment of the provident fund dues.
On 28.1.
1986, a petition was moved on behalf of the appellants under Section 633 of the Compa nies Act, 1956 (hereinafter referred to as 'the Act ') for being relieved of liability for delayed as well as non payment of the provident fund dues and other ancillary dues.
On 21.8.
1986 a consent order was passed by the learned Single Judge allowing the outstanding provident fund dues to be paid in monthly instalments of Rs. 50,000 commencing from April, 1986, until the entire liability is paid off.
Since this course was accepted by the provident fund authorities it was not considered necessary to serve summons on the Registrar of Companies because what was sought to be recovered were the dues under the Provident Fund Act.
It was further ordered concerning Prayer B that an injunction shall issue restraining the respondents from initiating any crimi nal proceedings against the appellants or any of them for non payment or delayed payment of the provident fund.
Aggrieved by this order, the first respondent before us, namely, the Regional Provident Fund Commissioner filed appeal No. 286 of 1987.
The Division Bench which heard the matter rendered its impugned judgment on 13.3.
The sole point which came up for determination was, whether the learned Single Judge was right in granting relief under Section 633 of the Act in respect of offences committed under the Employees Provident Fund and Miscellaneous Provi sions Act of 1952 (hereinafter referred to as "The Provident Fund Act").
It was argued on behalf of the appellants that the relief under Section 633 of the Act could be granted only in respect of offences committed under the and not in respect of offences under any other law.
It is also submitted that in respect of violations of the provisions of the Act, it is the Registrar of Companies or any one autho rised on his behalf who could initiate criminal cases.
On the contrary, in respect of offences committed under the Provident Fund Act the appropriate authority to initiate such action would be the Regional Provident Fund Commission er.
On an elaborate consideration with reference to decided cases, it 344 was held that any proceeding referred to in Section 633 of the Act would mean only under the provisions of the Act.
Reference was also made to Section 14A of the Provi dent Fund Act inserted by Amending Act 37 of 1953 and it was concluded: "If the contention that Section 633 applies in respect of liabilities arising also under the provisions of any Act other than the said Act, is accepted, then and in that case a peculiar situation will arise, a person who is otherwise liable in view of the provisions of Section 14 A would be entitled to relief under Section 633 if he is employed by or connected with a company which is covered both by Provident Fund Act and the but a person shall .not be so entitled to such relief if he is not an employee of a body corporate covered by the though he is an employee of a company within the meaning of explanation to Section 14A.
Besides if that contention that all proceedings would include proceedings under other Act also all the statutory provisions made for the welfare of weaker sections of the community stand modified automatically to the extent sepecified in Section 633 for all time to come, even for all future legislation.
This would frustrate the object of welfare legisla tions.
" Accordingly it was held that Section 633 of the Act has no application in respect of any liability under any other Act.
In the result, the order of the learned Single Judge was set aside and the application under Section 633 was dismissed.
We do not think worthwhile to refer to certain preliminary objections raised by the Division Bench in relation to maintainability as that is not argued before us.
It is against this judgment that the appeal by special leave has been preferred.
An application was moved before the Company Court claiming relief under Section 633 and the same was dismissed applying judgment of Civil Appeal No 286 of 1987.
Similar application was dismissed by the learned Single Judge by order dated 24.4.1988 in Civil Appeal Nos.
3117 & 3118 of 1990.
In Civil Appeal No. 3738 of 1990 Company Petition No. 312 of 1989 for relief under Section 633 too was dismissed.
In Special Leave Petition No. 8081 of 1990 also the Company Petition for similar relief has been dismissed.
Mr. Venugopal, learned Counsel for the appellants urged that Section 633 is very wide in its amplitude and there is no justification to 345 restrict its application to only proceedings arising under the Act.
He draws our attention to Sections 420 and 423 and submits that when proceedings are taken in relation to breach of trust, for instance, which is an offence under Indian Penal Code, against an officer of a company it would be open to him to go before the concerned Magistrate and plead a defence that he has acted honestly and reasonably.
In such a case should the Court come to a conclusion he ought fairly to be excused.
the Court will relieve him.
While this is the submission as far as sub section (1) is concerned, under sub section (2) it is maintained to be an anticipatory action.
The High Court also exercises a similar power as that Court is exercising power under sub section (1).
Otherwise if it is restricted only in respect of any liability under the then the protection extended under Section 633 is lost.
Under the of 1913 the corresponding provi sion was Section 281.
Though certain categories of persons were catalogued under sub section (3) of the said section, presently Section 633 has employed the words "an officer of a company ' the object is to see the Directors or a Director who rarely takes part in the affairs of the Company are not unduly harassed for offences which may arise under other acts, of which these Directors may not have any knowledge at all.
He also draws our attention to Section 32 of the Indus trial Disputes Act, which talks of offences by Companies under the said Act.
That is a sweeping provision where the burden is upon the person concerned to prove that the of fences were committed without his knowledge or consent and but for that proof, the statute deems him to be guilty.
If under Section 633 the protection is not so afforded against such a provision like Section 32 of the the entire purpose of Section 633 is rendered nugatory.
The result of the Division Bench .judgment of the Calcutta High Court referred to in the impugned judgment will be that these directors (the appellants) are exposed to prosecution; certainly that could not have been the intention of the law maker.
Mr. Kapil Sibal, learned counsel appearing for the appellants in Civil Appeal No. 3117 refers to Section 2(11) of the Act and submits that the definitions of "Court" contemplates with respect to any matter relating to a compa ny.
The Court having respective jurisdiction as provided under Section 2(11) is with respect to any offence under the Act, the Court of a Magistrate of the First class or, as the case may be, a Presidency Magistrate, having jurisdiction to try such offence.
346 This section will show that where like the appellants they are not working directors, they cannot be subject to prosecution.
That is where Section 633 steps in and affords protection, even if it is a liability arising under any other Act, for instance, like delayed payment or non payment of provident fund.
In other respects, he adopts the argu ments of Mr. Venugopal.
Learned counsel for the Regional Provident Fund Commis sioner would urge that any proceeding occurring under Sec tion 633 cannot relate to a proceeding other than one aris ing out of .
If the arguments of the appellants are accepted it would amount to treating Section 633 as a panacea for all the ills for offences committed in respect of various other enactments.
It might even include not only the existing enactments but enactments which are yet to come.
Insofar as each one of the other Acts not only defines penalty but also lays down the penalty; therefore merely because the appellants are officers of the company it cannot mean Section 633 could be availed of.
This provision is in pari materia with Section 448 of the English Companies Act, 1948, However, as on today Companies Act of 1985 has incor porated a similar provision under Section 727 In a leading case reported in 1981 (2) All Eng.
Law Reportes 697, (Cus toms and Excise Commissioners vs Hedon Alpha Ltd. & Ors), the scone of Section 448 of the 1948 Act came up for con sideration.
It was held that although Section 448 (1) of the 1948 Act was expressed in wide terms, in ' its true construction the only proceeding for which relief under Section 448 could be claimed were proceedings against a director by, on behalf of or for the benefit of his company for the breach of his duty to the company as a director or penal proceedings against a director for breach of the 1948 Act.
It was this line of reasoning which found favour with the Division Bench of the Calcutta High Court which view is commended for acceptance by this Court.
Otherwise the conse quences will be disastrous.
The penal provision of all other Acts would be rendered ineffective by the interpretation pressed for an acceptance.
The further submision of learned counsel is if one looks at Section 14 of the that lays down the penalty for offences of companies and is dealt with in Section 14 A.
The explanation to the said Section also talks of as to what a company would mean for the pur pose of this Section.
Therefore, where an elaborate proce dure is conternplated under those sections for recovery of these dues and the provident Fund Act being a social welfare legislation that cannot be rendered illusory by extending the benefit under Section 633 of the Companies Act.
Similar ly under Employees State Insurance Act, Section 86 talks of prosecution which came to be introduced by Amending Act of 1989 also deals with Companies.
The explanation under that Section specifically states as 347 to what would be a company or Director lot the purpose of that section.
Hence it is submitted that no mterference is called for.
Having regard to the above arguments, the only ' point that arises for determination is as to the scope of Section 633.
The Companies Act was enacted in the year 1956.
As the Preamble itself says it is an Act to cossolidate and amend a law relating to companies and certain other associations.
As to definition of Company, it is found under Section 3(1)which consists of the (i) Company (ii) Existing Company (iii) Private Cornpany (iv) Public Company Section 664 of this Act reads as follow 's: The enactments mentioned in Schedule XII are hereby repealed".
Schedule XII that is referred to under the Section refers to previous Companies Act of 1913 also under certain other Acts by way of ordinance or amendments.
Section 281 office old Act of 1913 which talks of power of the Court to ,,rant relief in certain cases reads as under: "281: Power of Court to grant relief in cer tain cases: (1) if in any proceedings tot negligence, defaul breach of duty or breach of trust against a person to whom this Section applies, it appears to the Court hearing the case that that person is or may be liable in respect of the negligence, defaut breach of duty or breach of trust, but that he has acted honestly and reasonably, and that having regard to all the circumstances of the case, including (hose connected with his appoint ment, he ought fairly to be excused for the negligence, default, breach of duty or breach of trust, that Court may relieve him either wholly or partly, from his liability on such terms as the Court may think fit.
(2) Where any person to whom this section applies has reason to apprehend that any claim will or might be made against him m respect of any negligence, default breach of duty or breach 348 of trust, he may apply to the Court for relief.
and the Court on any such application shall have the same power to relieve him as under this Section it would have had if it had been a Court before which proceedings against that person for negligence, default, breach of duty or breach of trust had been brought.
(3) The persons to whom this section applies are the following: (a) directors of a company; (b) managers and managing agents of a company; (c) officers of a company; (d) persons employed by a company as auditors whether they are or are not officers of the company? ' With this background of law, we will go on to Section 633 of the .
It reads thus: 633: Power of Court to grant relief in certain cases: (1) If any proceeding for negligence, default, breach of duty, misfeasance or breach of trust against an officer of a company,it appears to the Court hearing the case that he is or may beliable in respect of the negli gence, default, breach of duty, misfeasance or breach of trust, but that he has acted honestly and reasonably, and that having regard to all the circumstances of the case, including those connected with his appointment, he ought fairly to be excused, the Court may relieve him, either wholly or partly, from his liability on such terms as it may think fit: Provided that in a criminal proceeding under this sub section, the Court shall have no power to grant relief from any civil liability which may attach to an officer in re spect of such negligence, default, breach of duty.
misfea sance of breach of trust.
(2) Where any such officer has reason to apprehend that any proceeding will or might be brought against him in respect of any negligence, default.
breach of duty, misfea sance or breach of trust, he may apply to the High Court for relief and the High Court on such application shall have the same power to relieve him as it would have had if it had been a Court before which a proceeding against that officer for negligence, default, breach of duty, misfeasance or breach of trust had been brought under sub section(1).
349 (3) No Court shall grant any relief to any officer under subsection (1) or sub section (2) unless it has, by notice served in the manner specified by it, required the Registrar and such other person, if any, as it thinks necessary, to show cause why such relief should not be granted".
On a comparison of the two sections two important features emerge to be noticed.
The Court under Section 633 has no power to grant relief from any civil liability.
Under sub section (3) of Section 281 only four categories of persons were entitled to seek relief while under Section 633 it will be an officer of the Company.
Under the of 1956 (similarly under the Old Act of 1913) various duties and liabilities have been im posed; equally offences have been created for the non per formance of such duties.
These offences are offences in relation to the performance of certain duties under the Act.
the various offences are mentioned under Sections 59, 62, 63, 68, 142, 162, 207, 218,272, 374,420,423,538 to 545 & 606.
The expression 'any proceeding ' occurring under Section 633 cannot be read out of context and treated in isolation.
It must be construed in the light of the penal provisions.
Otherwise what will happen is the penal clauses under the various other Acts would be rendered ineffective by applica tion of Section 633.
Again, if parliament intended Section 633 to have a coverage wider than the Act, it would have specifically provided for it as, otherwise, it is a sound rule of Construction to confine the provisions of a statute to itself.
We are also of the view while referring to any proceed ing under sub section (2) the Parliament intended to re strict it only to the proceeding arising out of negligence, default, breach of trust, misfeasance or breach of duty in respect of the duties prescribed under the provisions of the .
Further examining the sub section with refer ence to the context and the placement of the sub section the only conclusion that is possible is the proceedings for which relief under this sub section could be claimed or the proceedings against the officer of a company for breach of the provisions of the .
Sub section (2) cannot apply to proceedings instituted against the officer of the company to enforce the liability arising out of violation of provisions of other statutes.
Reference could also be made to sub section (3) where notice is required to be given to the Registrar of Companies.
This is an indication that the powers under sub section (2) must be restricted in respect of proceedings arising out of the violation of the . 350 We will now refer to the corresponding provisions in English Law.
Section 448 of the Companies Act, 1948 is replaced by Section 727 of the Companies Act, 1985.
Section 727 reads thus: "727: Power of Court to grant relief in cer tian cases: (1) If in any proceeding for negligence, default, breach of duty or breach of trust against an officer of a company or a person employed by a company as auditor (whether he is or is not an officer of the company) it appears to the court hearing the case that that officer or person is or may be liable in respect of the negligence, default, breach of duty or breach of trust, but that he has acted honestly and reasonably, and that having regard to all the circumstances of the case (including those connected with his appoint ment) he ought fairly to be excused for the negligence, default, breach of duty or breach of trust, that court may relieve him either wholly or partly, form his liability on such terms as it thinks fit.
(2) If any such officer or person as above mentioned has reason to apprehend that any claim will or might be made against him in respect of any negligence, default, breach of duty or breach of trust, he may apply to the Court for relief; and the court on the appli cation has the same power to relieve him as under this section it would have had if it had been a court before which proceedings against that person for negligence, default, breach of duty or breach of trust Had been brought.
(3) Where a case to which sub section (1) applies is being tried by a Judge with a Jary, the Judge, after hearing the evidence, may, if he is satisfied that the defendant or defender ought in pursuance of that sub section to be relieved either in whole or in part from the liability sought to be enforced against him withdraw the case in whole or in part from the Jury and forthwith direct judgment to be entered for the defendant or defender on such terms as to costs or otherwise as the Judge may think proper".
Halsbury 's Laws of England (Fourth Edition) 7 (1) Companies, para 652 on this aspect states as follows: "POWER OF COURT TO GIVE RELIEF AGAINST LIABIL ITY: If in any procedings for negligence, default, breach of duty or breach of trust against an officer of a company or a person 351 employed by the company as auditor (whether or not he is an officer of the company), it appears to the Court hearing the case that that officer or person is or may be liable in respect of the negilgence, default, breach of duty or breach of trust, but that he has acted honestly and reasonably, and that having regard to all the circumstances of the cases, including those connected with his appoint ment, he ought fairly to be excused for the negligence, default, breach of duty or breach of trust, that court may relieve him, either wholly or partly, from his liability on such terms as the court thinks fit.
The power to grant relief applies to personal breaches of duty; it does not extend to claims by third parties.
Where a case within the above provision is being tried by a judge with a jury, the judge, after hearing the evidence, may if he is satisfied that the defendant ought to be re lieved either in whole or in part from the liability sought to be enforced against him, withdraw the case in whole or in part from the jury and forthwith direct judgment to be entered for the defendant on such terms as to costs or otherwise as the judge may think proper.
If any such officer or person has reason to apprehend that any claim will or might be made against him in respect of any negligence, default, breach to duty or breach of trust, he may apply to the court for relief; and the court on any such application has the same power to relieve him as it would have had if it has been a court before which proceedings against that person for negligence, default, breach of duty or breach of trust had been brought.
The application to the court is made by way of petition.
The application is made to the court having jurisdiction to wind up the company.
In cases in the High Court of Justice the .pro ceedings are assigned to the Chancery Divi sion.
The petition and all affidavits, notices and other documents in the proceedings under it must be entitled in the matter of the company in the matter of the Companies Act, 1985.
Under the above provisions a director may be relieved against liability in respect of a transaction wholly ultra rites the company or against the penalties imposed by the Act where he has acted without obtaining or after ceas ing to hold his qualification shares.
352 The leading decision on Section 448 is reported in Customs and Excise Comrs.
vs Hedon Alpha Ltd. , , CA.
That related to the interpretation to be placed on Section 448 of the Companies Act of 1948.
In that case a Director of a company was carrying on business as a bookmaker.
The liability of the Director for general betting duty was not paid by the company.
The Director was acting honestly and reasonably, and, therefore, was found not guilty of misconduct.
Under these circumstances, the question arose whether the Director was entitled to relief from claim for civil liability by a stranger to the company.
Claim to recover betting duty would amount to default against Director within the meaning Of Section 448.
Stephen son, LJ stated on this aspect as follows: "Furthermore, the language of Section 448 was apt to describe the area in which a company director might be in breach of his duties to the company, and the ambit and concern, the context or matrix, of the section was company law and the relation of the officer or auditor of a company to the company and not to third persons.
The proceedings which qualified for the statutory relief were claims made by companies, or on their behalf or for their benefit by, e.g. liquidators, the Board of Trade, private prosecutors including penal proceedings for the enforcement of the Compa nies Act, but not proceedings for the recovery of debts or the enforcement of civil liability to strangers.
" Griffiths, LJ. was of the following view: "In my judgment section 448 has no application to the present claim.
Although the section is expressed in wide language it is in my view clearly intended to enable the court to give relief to a director who, although he has behaved reasonably and honestly, has neverthe less failed in some way in the discharge of his obligations to his company of their share holders or who has infringed one of the numer ous provisions in the Companies Acts that regulate the conduct of directors.
" It requires to be stated that though Stephenson, LJ referred to Palmer 's Company Law, he also made reference to Pennington 's Company Law (4th Edn., It is stated thus: "Under the statutory provision relief can be given against any of the criminal penalties imposed by the Companies Act, 1948 and 1976, but not, it would seem, against civil liabili ty to 353 anyone other than the company and so apparent ly no relief may be given in the rare cases where a member or auditor of a company has a personal right to sue its directors.
" We will now refer to Palmer 's Company Law.
23rd Edn. 1982 Vol. 1 page 881.
It is stated thus: "Statutory relief (S.448), Section 448 (which is referred to in Section 205, proviso (b) is a protective section for directors on lines similar to that accorded to trustees.
It provides that in any proceedings against.
inter alia, a director for negli gence, default, breach of duty or breach of trust, if a director who is or may be liable has in the opinion of the Court acted honestly and reasonably, and if having regard to all the circumstances of the case, including those connected with his appointment, he ought fairly to be excused, the Court may wholly or partly relieve him from his liability; the court has a discretion in the matter, and may impose terms (Section 448) (1).
In spite of the wide words of the section it has been held that the section applies only to actions brought by or on behalf of the company against its directors for breach of duty and to penal proceedings for the enforcement of the Com paines Act .
" The 5th Edn. of Pennigton 's Company Law, 1985 at page 679 and 680 contains the follow ing observations: "However, if a director is sued for breach of any of his duties, he may apply to the Court for relief from liability, and if the Court is satisfied that he acted honestly and reasona bly, and that in all the circtumstances he ought fairly to be excused, it may relieve him from liability on such terms as it thinks fit.
This provision is identically worded to the provision in the Trustees Act, 1925 which enables the court to relieve defaulting trus tees, and the Courts, jurisdiction wilt proba bly be exercised in the same way as under that Act.
The Court is reluctant to relieve remu nerated trustees and will only do so if they show that they have taken all reasonable steps and to make good their breach of trust; the same criterion has been applied when a de faulting liquidator sought relief, and it would no doubt also be applied in the case of a director.
On the other hand, the court can give relief, even though the director has used the company 's money for ultra vires purposes, and even though the members oppose relief being given. 354 Under the statutory provision, relief can be given against any of the criminal penalties imposed by the Companies Act, 1985, but not against criminal liability under any other statute, or against civil liability to anyone other than the company whether the liability arises by stat ute or otherwise, and so apparently no relief may be given in the rare cases when a member or creditor of a company has a personal right to sue its directors.
Reference was made to the Court of Appeal decision." (emphasis supplied) Thus we are clearly of the view that under Section 633 of the Act relief cannot be extended in respect of any liability under any Act other than the Act.
May be the under Section 32 contains a stringent provision but that is no answer to hold that Section 633 of the companies Act could be invoked for offences under Section 32 of the .
We are dealing with a case arising under Employees Provident Fund Act.
The total arrears dues for the Company are Rs. 1,77,22,000.
Section 14 of the Employees Provident Fund Act specifically provides for penalties with reference to con travention of the provisions of the Act.
Section 14A speaks of offences by the companies.
We will now extract that section "14 A :(1) If the person committing an offence under this Act, the Scheme or the Family Pension Scheme or the Insurance Scheme is a company, every person who at the time the offence was committed was in charge of, and was responsible to, the company for the con duct of the business of the company.
as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly: Provided that nothing contained in this sub section shall render any such person liable to any punishment, if he proves that the offence was commited without his knowledge or that he exercised all due diligence to prevent the commission of such offence.
355 (2) Notwithstanding anything contained in sub section (1), where an offence under this Act, the Scheme or the Family Pension Scheme or the Insurance Scheme has been committed by a company and it is proved that that the oiffence has been committed with the consent or connivance of, or is attributable to, any neglect on the part of, any director or manag er, secretary or other officer of the company, such director, manager secretary or other officer shall be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly .
" The authority to take action trader Provident Fund Act as seen from Section 14 is a Commissioner while the proce dure so far as the Companies Act is concerned under Section 621 is on a complaint in writing of the Registrar or 'of a shareholder of a company or of an officer authorised by the Central Government in this behalf action can be taken.
As already noted under sub section (3) of Section 633, the Court has to give notice to the Registrar of Companies or on such other person, if any, as it thinks necessary .There fore, giving of notice is mandatory.
That being so, if Section 633 is interpreted as to include proceedings under Acts other than the Companies Act it will be open to the Court to give such relief under Section 633 without giving notice to the authority competent to prosecute in respect of liabilites under the other laws or upon giving notice to other concerned and not the Registrar.
Thus the mandatory requirement of subsection (3) of Section 633 can easily be bye passed.
Then again under Section 14A of the Provident Fund Act.
officers who are talked of under this section would be deemed to have cormmitted the offence because subsection (1) states that every person who was responsible to the company as well as the company shall be deemed to be guilty of the offence.
If therefore, the relief under Sec tion 633 is extended.
such officers or persons who are otherwise liable for such offence would get the benefit of Section 633 and escape the rigour of Section 14A.
The expla nation arise makes it abundantly clear that all compaines covered by the Companies Act would be companies within the meaning of explanation.
On the contrary, those companies falling under the explanation to Section 14A would not be companies under the Companies Act.
To put it in other words, a company failing under the explanation to Section 14A of the Provident Fund Act which does not come within the pur view of the Companies Act, the liability of the persons would be governed only by Section 14A (1) and (2) of the Provident Fund Act.
They will not be entitled to any relief under Section 633.
The benefit available under a social welfare legislation namely the Employees Provident Fund Act cannot be defeated in this manner.
We may also add if the interpretation suggested by the appellants 356 is accepted it would cover not only ,the existing.
laws but all legislations to be enacted in future.
In the result we find no merit in this appeal and it is dismissed.
In view of the dismissal of appear No. 3012 of 1990 the other appeals and the special leave petition where the same question arose, are so dismissed.
However, looking to the 'facts and circumstances of the case, there will be no order as to costs.
Appeals dismissed. [/INST] The appellants in Civil Appeal No.3012 of 1990 were Directors of a Company, which was owning a Jute mill.
Due to lock out and strike in the Jute industry, the Company de faulted in the payment of the provident fund dues.
The appellants applied under Section 633 of the for being relieved of liability for delayed as well as non payment of the provident fund and other ancillary dues.
A Single Judge of the High Court passed a consent order, allowing the outstanding provident fund dues to be paid in monthly instalments of Rs.50,000 each until the entire liability was paid oH. As the Provident Fund authorities accepted this course, summons were not served on the Regis trar of Companies, since what was sought to be recovered were the dues under the Provident Fund Act.
The Single Judge also granted an injunction restraining the respondents from initiating any criminal procccdings against 339 the appellants or any of them for non payment or delayed payment of the provident fund.
On appeal by the Regional Provident Fund Commissioner, the Division Bench held that any proceeding referred to in section 633 of the Act would mean only under the provisions of the Act, and that section 633 of the Act had no applica tion in respect of any liability under any other Act.
Hence the appeal.
Applications claiming relief under section 633 were dismissed in the connected cases also, resulting in the appeals, and Special Leave Petition, being filed before this Court.
On behalf of the appellants in Civil Appeal No. 3012 of 1990, it was contended that section 633 was very wide in its amplitude and there was no justification to restrict its application to only proceedings arising under the Act, that when proceedings were taken in relation to breach of trust, which was an offence under Indian Penal Code, against an officer of a company, it would be opentn him to plead before the concerned Magistrate that he had acted honestly and reasonably, and if the Court came to the conclusion that he should fairly be excused it would relieve him; that under sub section (2), it was an anticipatory action, and the High Court also exercised a similar power as it was exercising power under subsection (1), and if it was restricted only in respect of any liability under the , then the protection extended under section 633 was last, and that similarly, under section 32 of the , which dealt with offences by Companies under that Act the burden was upon the person concerned to prove that the offences were committed without his knowledge or consent and, but for that proof, the statute deemed him to be guilty; therefore, if protection was not afforded against such a sweeping provision, the entire purpose of Section 633 would be rendered nugatory.
On behalf of the appellants in one of the connected appeals it was contended that the definition of "Court" contemplated with respect to any matter relating to a compa ny, and that the Court having respective jurisdiction as provided under Section 2(11) was with respect to any offence under the Act, the Court of a first class Magistrate or, as the case may be, a Presidency Magistrate having jurisdiction to try such offence, that this section would show that where like the appellants they were not working directors, they could not be subject to prosecution and that was where Section 633 stepped in and afforded protection, even if it were a liability arising 340 under any other Act, for instance, like delayed payment or nonpayment of provident fund.
On behalf of the respondent Regional Provident Fund Commissioner it was contended that any proceeding occurring under Section 633 could not relate to a proceeding other than one arising out of , that each one of the other Acts not only defined penalty but also laid down the penalty, and therefore, merely because the appellants were officers of the company, it could not mean that section 633 could be availed of; otherwise, the consequences would be disastrous and the penal provision of all other Acts would be rendered ineffective, that Section 14 of the laid down the penalty for the offences of companies and was dealt with in Section 14 A, and the explanation to the said sec tion also talked of as to what a company would mean for the purpose of the section, and, therefore, where an elaborate procedure was contemplated under those sections for recovery of the dues and the Provident Fund Act, being a social welfare legislation, that could not be rendered illusory by extending the benefit under Section 633 of the ; similarly, Section 86 of the Employees ' State Insurance Act, providing for prosecution also dealt with Companies, and, the explanation under that Section specifically stated as to what would be a Company or Director for the purpose of that section and hence, no interference was called for.
Dismissing the cases, this Court, HELD: 1.1 Under Section 633 of the , relief cannot be extended in respect of any liability under any Act other than the .
[354 C] 1.2 The expression 'any proceeding ' occurring under Section 633 cannot be read out of context and treated in isolation.
It must be construed in the light of the penal provisions.
Otherwise, the penal clauses under the various other Acts would be rendered ineffective by application of Section 633.
Again, if Parliament intended Section 633 to have a coverage wider than the Act, it would have specifi cally provided for it.
Moreover, it is a sound rule of construction to confine the provisions of a statute to itself.
[349 D E] 1.3 While referring to any proceeding under sub section (2) of Section 633 the Parliament intended to restrict it only to the proceeding arising out of negligence, default, breach of trust, misfeasance or breach of duty in respect of dutics prescribed under the provi 341 sions of the .
Further, examining the sub section with reference to the context and the placement of the sub section, the only conclusion that is possible is the proceedings for which relief under this sub section could be claimed or the proceedings against the officer of a company for breach of the provisions of the .
Sub section (2) cannot apply to proceedings instituted against the officer of the company to enforce the liability arising out of violation of provisions of other statutes.
[349 F G] 1.4 Sub section (3) requires notice to be given to the Registrar of Companies.
This indicates that powers under sub section (2) must be restricted in respect of proceedings arising out of the violation of the Companies Act 1349 H] 1.5 Merely because section 32 of the contains a stringent provision, it cannot be held that Section 633 of the Companies Act could be invoked for of fences under Section 32 of the Industrial Disputes Act.
1354 D] Customs and Exicise Comrs.
vs Hedon Alpha LId.
, 2 ALL ER 697 CA.
referred to.
Halsbury 's Laws of England, (Fourth Edition) 7(1) Companies, para 652; Pennington 's Company law.
4th Edn., 1979, P.548, 23rd Edn. 1982, Vol.
I p. 881 and 5th Edn.
1985 p.679 680, referred to.
2.1 The authority to take action under the Provident Fund Act as seen from Section 14 of the said Act is a Com missioner while the procedure so far as the Companies Act is concerned, under Section 621 it is on a complaint in writing of the Registrar or of a shareholder of a company, or of an officer authorised by the Central Government in this behalf that action can be taken.
Since ii is mandatory for the Court to givc notice to the Registrar of Companies or such other person, if any, as it thinks necessary.
as required under sub section (3) of Section 633, if Section 633 is interpreted so as to include proceedings under Acts other than the Companies Act it will be open to the Court to give such relief under this Section without giving notice to the authority competent to prose cute in respect of liabilities under the other laws or upon giving notice to other concerned and not the Registrar.
Thus, the mandatory requirement of sub section (3) can easily be bye passed.
Further, if relief under Section 633 is extended, officers who would be deemed to have committed the offence under Section 14 A of the 342 Provident Fund Act, because sub section (1) states that every person who was responsible to the company as well as the company shall be deemed to be guilty of the offence and liable for such offence would get the benefit and escape the rigour of Scction 14 A.
The explanation also makes it abun dantly clear that all companies covered by the Companies Act would be companies within the meaning of explanation.
On the contrary, those companies failing under the explanation to Section 14 A would not be companies under the Companies Act.
[355 C F] 2.2 Thus in the case of a company falling under the explanation to Section 14 A of the Provident Fund Act which does not come within the purview of the Companies Act, the liability of the persons would be governed only by section 14A(1) and (2) of the Provi dent Fund Act.
They will not be entitled to any relief under Section 633.
The benefit avail able under a social welfare legislation, namely, the Employ ees ' Provident Fund Act cannot be defeated in this manner.
1355 G HI </s> |
<s>[INST] Summarize the following judgement: ivil Appeal Nos.
2309 & 2310 of 1989 etc etc.
From the Judgment and Order dated 23.9.1988 of the Jammu & Kashmir High Court in Writ Petition No. 87/81 and C.M.P. No. 2519 of 1988.
K. Parasaran, D.D. Thakur, M.H. Beg, Raja Ram Agrawal, M.L. Verma, Prashant K. Goswami, Anil B. Divan, Pramod Kohli, P.H. Parekh, Hari Khanna, J.P.Pathak, Sandeep Thakral, S.M.Thakral, B.V. Desai, Ms. Vinita Ghorpade, E.C. Aggarwala, N.N. Bhatt, Dhiraj Singh and Ashok Mathur for the appearing parties.
The Judgment of the Court was delivered by V. RAMASWAMI, J.
Civil Appeal No. 2309 of 1989 arises out of an order made by the High Court of Jammu & kashmir in Writ Petition No.87 of 1981 dismissing the Writ Petition filed by M/s. Pine Chemicals Ltd., which is a public limited company manufacturing Rosin, Turpentine and Rosin Derivatives and carrying on business at Bari Brahmana, Jammu Tawi.
The appellants had prayed in the writ petition for quashing the order of assessment dated 20th January, 1981 made by the Assessing Authority, Incharge Sales Tax Circle, Jammu under the for the year ending 30.6.1980 and the penalty order made on February 2, 1981 under Section 10 of the in respect of the same period.
They had also prayed for a declaration that they are entitled to exemption from payment of tax under the and the Jammu & Kashmir General Sales Tax Act, 1962, on the finished goods produced by them for a period of five years commencing from 8th November, 1979, when the Company went into commercial production.
This main relief had been prayed for on the grounds that the appellant were exempt from payment of sales tax in terms of the Government Orders No. 159 Ind. dated 25.3.1971 as amended by Government Order No. 414 Ind.
dated 25th August, 1971 read with section 8(2A) of the .
Their further case was that the Government represented and announced a package of incentive for large and medium scale industries including grant of exemption from sales tax both on the raw materials purchased by the industries and the scale of their finished products, that acting upon such representation and assurances, appellants set up their factory at Bari Brahmana on the land allotted by the State Industrial Development Corporation and that therefore the Government is estopped from charging sales tax on the doctrine of promissory estoppel.
The High Court was of the view that 190 the two Government orders referred to above were only declarations of an intention to exempt from payment of sales tax and that they are not exemption notifications under sections 5 of the General Sales Tax Act.
The High Court was also of the view that the appellant have failed to prove the necessary factual foundation for invoking the principle of promissory estoppel and that, therefore, they are not entitled to any relief under that doctrine.
In that view the writ Petition was dismissed.
It may be mentioned that Civil Appeal No. 2310 of 1985 is against an order made in a Civil Misc.
Petition No. 2519 of 1988 which was also dismissed on 23.9.1988 along with the writ petition.
This miscellaneous petition was filed after the judgment in the writ petition was reserved for permission to file reply affidavit on the ground that the assessment files produced at the time of hearing contained certain documents needing certain explanation by the appellants.
Both on the ground that it was belated and on the ground that the judgment in the writ petition was delivered only relying on the material placed on record and therefore there was no need for giving an opportunity to the writ petitioners to file a reply statement, the learned judgment dismissed this miscellaneous petition also.
Civil appeals 3140 50 of 1989 have been filed by M/s. K.C. Vanaspati, a firm of partnership manufacturing Vanaspati Ghee at Bari Brahmana, Jammu Tawi.
They filed writ petition 52 of 1982 praying to quash a sales tax assessment order dated 16.1.1982 assessing them to sales tax for the period from 2nd September, 1981 till the end of the month under the Jammu & Kashmir General Sales Tax Act.
They also prayed for a mandamus directing the Government and the Assessing officer not to assess them to sales tax or recover any amount on account of sales tax from them for a period of five years from 2nd September, 1981 when their industry started commercial production.
This relief was prayed again on the ground that Government Order 159 Ind.
dated 26.3.1971 as amended by Government Order 414 Ind.
dated 25.8.1971 exempted the sales of their finished product of Vanaspati Ghee from sales tax and also on the ground that in any case the Government is estopped from collecting tax on the principle of promissory estoppel.
When this writ petition was pending as assessment order was made on 14.11.1984 for the assessment year ending 30th September 1982 including the period 2nd September to 30th September, 1981 which was the subject matter of the earlier assessment order and which was questioned in writ petition No. 52 of 1982.
The validity of this assessment order was the subject matter of writ petition No. 822 of 1984 filed by the appellants.
The relief prayed for and the grounds on which the relief prayed for were almost identical as that in writ petition No. 52 of 1982 except that 191 on the question of promissory estoppel, more detailed facts were mentioned in this writ petition.
The respondents filed their counter affidavits contending that the said Government orders were not exemption orders under Section 5 of the General Sales Tax Act and that there is no factual foundation for the plea of promissory estoppel.
Since we will be dealing with contentions in detail at the appropriate place we are not setting out contentions of the petitioners and the replies of the Government in the writ petitions in details.
During the pendency of the writ petitions certain other Government orders came to be passed and certain assessment orders for the subsequent periods were also sought to be made and questioning these actions M/s. K.C. Vanaspati filed Writ petition No. 711 of 1987 for a writ of prohibition restraining the Assessment Officer and Government from recovering any sales tax at any point of sale in the series of sales in respect of Vanaspati Ghee manufactured by them for a period of 10 years from 2nd September, 1981 when their factory went into commercial production and also for a declaration that SRO 448 dated 22nd October, 1982 issued by the Government of Jammu & Kashmir (which will be referred to later) was illegal and unconstitutional.
They had also prayed for a mandamus directing the respondents to refund the sales tax already recovered from them with interest and damages.
In this writ petition also they contended that Government Order No. 159 Ind. dated 26.3.1971 and Government Order 414 Ind.
dated 25.8.1971 were exemption orders referable to section 5 of the General Sales Tax Act.
They have also referred elaborately to the representations, declarations and promises of the Government in support of the plea of promissory estoppel.
The respondents had filed a counter affidavit refuting these contentions of the appellants.
The High Court dismissed all these three writ petitions by a common order dated 22nd February, 1989.
Civil Appeals 3148 50 of 1989 have been filed against this common order.
Civil Appeal No. 3151 of 1989 has been filed by M/s. Kashmir Vanaspati Ltd. against the judgement of the High Court in Writ Petition No.5 of 1989 in which they had prayed for the writ of certiorari to quash certain notices issued to the appellants, their selling agents and the owner of the premises where they have their sale depots, issued under section 17 of the General Sales Tax Act and for a declaration that the Vanaspati Ghee manufactured by the appellants is exempt from payment of tax at all stages upto January, 1992 i.e. for a period of 10 years from the date from which they have started their commercial production.
In this writ petition also the appellants had relied on Government Order 159 Ind.
dated 26.3.1971 and Government Order No. 414 Ind.
dated 25th August, 1971 as orders exempting their goods from sales tax under Section 5 of the General Sales Tax Act.
They have also relied on certain statement of Government as commitments 192 to continue the incentives and exemptions from sales tax for a period of 10 years on the principle of promissory estoppel.
The respondents had filed their counter affidavit.
This writ petition was also dismissed on 17th March, 1989 almost on the same grounds as in earlier two cases.
The first common question that arises for consideration in all these appeals therefore is whether Government Order No. 159 Ind.
dated 26.3.1971 and the amending Government Order No. 414 Ind.
dated 25.8.1971 are orders of exemption referable to section 5 of the General Sales Tax Act, 1962.
The said Government Orders are extracted below : GOVERNMENT OF JAMMU AND KASHMIR INDUSTRIES AND COMMERCE DEPARTMENT Sub: Grant of incentives to large and Medium Scale industries in the Jammu & Kashmir State Ref: Cabinet Decision No. 101 dated 26.3.1971 Government Order No. 149 Ind.
of 1971 dated 26.3.1971 Sanction is accorded to the grant of the following incentives and facilities to Large and Medium Scale Industries in the State of Jammu & Kashmir : 1.
Land: As provided in Government Order No. 206 Ind. of 1968 dated 5.7.1968.
However, such land. include a reasonable amount of land for the establishment of residential colonies required to house the workers of Large and medium scale Industries and would be granted on the terms and conditions defined in the Government Order No. 206 Ind.
of 1968 dated 5.7.1968.
Grant of exemption from the State Sales Tax both on raw materials and finished products for the period of five years from the date the unit goes into production.
Grant of exemption from levy of additional surcharge on Toll Tax for an initial period of five years from the date the unit goes into commercial production with respect to raw materials and finished goods.
The question of grant of exemption from this levy for further periods would be reviewed thereafter in every 193 individual case and further grant of this concession would only be considered in deserving individual cases.
Grant of exemption from the levy of Urban Immovable Property Tax on the lands and buildings belonging to such industries would be available as admissible under the Urban Immovable Property Taxation Rules.
By order of the Government of Jammu and Kashmir.
Sd/ G.R.Renzu, Secretary to Government" This order was partially modified in G.O. 414 Ind. dated 25.8.1971 which read as follows: " GOVERNMENT OF JAMMU AND KASHMIR INDUSTRIES AND COMMERCE DEPARTMENT Sub: Grant of incentives to the Large and Medium Scale Industries in the Jammu & Kashmir State Ref: Director Industries and Commerce 's letter No. SSI J/455/2251 52 dated 22 7 1971 Government Order No. 414 Ind.
of 1971 dated 25.8.1971 In partial modification of Government Order No. 159 Ind.
of 1971 dated 26.3.1971, item 2 may be read as under: 2.
Grant of exemption from the sales tax both on raw materials and finished products.
The State Sale Tax paid by Large and Medium Scale Industries on the raw materials procured by them for the initial 5 years of the production would be refunded to such industries.
Similarly such industries will be granted exemption from the payment of any state sales tax on their finished products for a period of five years from the date the unit goes into production.
194 By order of the Government of Jammu and Kashmir.
Sd/ Secretary to Government".
It may be noted at this stage itself that the amending Order G.O. 414 Ind.
dated 25th August, 1971 was also published in the Government Gazette.
Section 5 of the General Sales Tax Act, 1962 empowers the State Government to grant exemption from taxation and that section reads as follows: "Exemption from taxation: The Government may subject to such restrictions and conditions as may be prescribed, including conditions as to licence and licence fees, by order exempt in whole or in part from payment of tax any class of dealers or any goods or class or description of goods.
" The Government orders were made implementing the Cabinet decision No. 101 of the same date.
There is no ambiguity about the class of persons or dealers to whom the Government orders apply, no ambiguity about the class or description of goods and the transactions of sale which are exempt from tax.
It has been duly authenticated in terms of Section 45 of the Constitution of Jammu and Kashmir.
It is well settled that if power to do an act or pass an order can be traced to an enabling statutory provision, then even if that provision is not specifically referred to, the act or order shall be deemed to have been done or made under the enabling provision.
Thus the Government orders satisfy all the requirements of the provisions of Section 5 of local Act.
The section also does not talk of any notification: it only talks of a Government order exempting in whole or in part from payment of tax.
This is very insignificant, if contrasted with Section 4(1) and 4(5) of the local Act relating to the fixation of the taxable point refers to a notification by the Government.
The Act itself thus makes a distinction requiring a notification to be made for certain purposes and the making of a Government order in respect of certain other purposes.
Moreover, since there is no form prescribed in this behalf if the particular order in effect is an exemption order, whether it takes the form of an order or notification makes no difference.
But we may note from the various orders produced before us that normally in the case of grant of tax exemptions as an incentive to industry the exemption orders have generally taken the form of Government order rather than a notification.
But in the 195 case of other exemptions though they are also under section 5 of the local Act they have taken the form of notification.
Thus the pattern followed in Jammu & Kashmir seems to be that in respect of exemptions from payment of taxes following Cabinet decision on policy matters and incentive they have taken the form of Government order.
It is necessary to refer this aspect because in later modifications while superseding the earlier order or notifications, the Government have followed the specific pattern and have used the word `orders ' in cases of grant of incentive and the word `notifications ' in the other cases.
It may also be pointed out that the Government orders 159 and 414 were also understood and treated as such exemption orders as seen from the publicity given them by the Government while inviting entrepreneurs to establish industries in Jammu & Kashmir and certain other communications to the parties.
The booklet published by the Government in December, 1975 under the heading "Incentives to Development of Industries in Jammu & Kashmir" contained incentives available for small scale industries as also large and medium scale industries.
The above said two Government Orders were reproduced in this booklet as the orders relating to incentives available to large and medium scale industries.
Another brochure issued in March, 1978 under the heading `The State Marches Towards Industrial Development ' after noting the efforts made by the Government to invite industrial enterprises from outside the State to locate the industries in Jammu & Kashmir and the response by the industrialist, listed the package of incentives under the heading `Incentives Available to help you establish your beautiful industrial ventures in the J & K State '.
Item 5 of this list related to `exemption from certain taxes '.
This was followed by the Finance Minister 's Budget Speech for the year 1978 79 in which the Finance Minister stated: "We have to continue a consistent policy of support and protection to industry and attract as many new units as we can, both in order to increase the employment opportunity and to achieve better economic growth.
It is as such proposed to continue the grant of exemption from payment of sales tax on the goods manufactured by new units for a period of ten years from the date the unit goes into production.
" Subsequent to this speech of the Finance Minister another Brochure was published by the Government on the 7th September, 1978 which referred to the sustained efforts made by the Government to involve successful and experienced entrepreneurs from all over the country in 196 setting up the industries in J & K and incentives available to the industries.
In page 14 of this Brochure "Exemption from Sales Tax and toll tax for 10 years and exemption from CST" is listed as one of the incentives available in the State.
Obviously these announcements, references and statements relating to exemption from sales tax refer to G.O. 159 Ind.
dated 26.3.1971 and G.O. 414 Ind.
dated 25.8.1971.
No other Government order of notification relating to exemption from payment of sales tax by large and medium industries were bought to our notice as relating to these references in the Brochures and speeches.
Thus on a plain reading there could be no doubt that the two Government orders are referable to the power of the Government under Section 5 of the General Sales Tax Act and are exemption orders falling within the scope of that provision.
In this connection, we may also refer to three decisions of this Court cited at the Bar wherein similar orders of Government without specifying the source of power under which they were made and also not in the form of a notification, were considered to be orders granting exemption.
In Pournami Oil Mills & Ors.
vs State of Kerala & Anr., [1986], Supp.
SCC 728, this Court had occasion to consider almost identical Government orders as those we are concerned with in these appeals.
The first was a Government Order dated 11th April, 1979 and the relevant portion of the same reads as follows: "The Government has considered the recommendations and suggestions of the Committee in detail and they are pleased to approve the following package of measures for promoting industrial development in Kerala: SMALL SCALE INDUSTRIES: Sales Tax Concessions: New industrial units under small scale industries set up after April, 1979, will be exempted from the payment of sales tax for a period of five years from the date of production.
The second was a notification dated 21st October, 1980 made under Section 10 of the Kerala General Sales Tax Act which read as follows: "In exercise of the power conferred by Section 10 of the Kerala 197 General Sales Tax (15 of 1963) the Government of Kerala have considered it necessary in the public interest so to do, hereby make an exemption in respect of the tax payable under the said Act on the turnover of the sale of goods produced and sold by the new industrial units under the small industries for a period of five years from the date of commencement of sale of such goods by any such units by way of tax on their sales shall be paid over to Government and that the sales tax, if any, already paid by such units to Government shall not be refunded.
Provided that such units shall produce proceedings of the General Manager, District Industries Centre, declaring the eligibility of the units for claiming exemption from sales tax.
Provided further that the cumulative sales tax concessions granted to a unit at any point of time within this period shall not exceed 90 per cent of the cumulative gross fixed capital investment of the unit.
Explanation For the purpose of this notification new industrial unit under the Small scale Industries shall mean undertakings set up on or after April 1, 1979 and registered with the Department of Industries and Commerce as a small scale industrial unit.
This notification shall be deemed to have come into force with effect from April 1, 1979.
" Section 10 of the Kerala General Sales Tax Act empowered the Government if they consider it necessary in the public interest, by notification in the Gazette, to make an exemption or reduction in rate either prospectively or retrospectively in respect of any tax payable under the Act.
It may be seen that the first Government Order dated 11th April, 1979 did not refer to any statutory power under which that order was made and it was generally in the nature of an order approving package of measures and incentives for promoting industrial development in Kerala and not in the form of a notification, while the second notification was made specifically in exercise of the statutory powers under section 10 of the Kerala Act.
It may also be seen that the first Government Order gave more tax exemption while the second notification did not give any exemption relating to purchase tax and also confined the exemption from sales tax to the limits specified in the proviso to the notification.
Two main questions were 198 considered by this Court.
The first was whether the first Government Order dated 11th April, 1979 was an exemption order referable to the powers of the Government under section 10 of the Kerala Act.
On this issue this Court held that it was an exemption order and that since there was an enabling provision in the statute empowering the Government to give exemption, though the Government Order did not refer to the statutory provision conferring such powers the order should be deemed to have been made under the said enabling provision and that therefore both the orders were made in exercise of the powers under section 10 of the Kerala Act.
The second important point that was decided was that the second notification was prospective in operation and that industries set up on or after Ist April, 1979 and before the 21st October, 1980 would be entitled to the benefit of the whole exemption under the first Government order for the full period of five years from the date they started production and that right could not have been curtailed by the second notification dated 21st October, 1980.
As the Govt. was bound by the rule of estoppel from taking away the right which had accrued to them under the first Government order.
Only new industries set up after the 21st October, 1980 would have the restricted benefit as provided in the second notification.
In Bakul Oil Industries & Anr.
vs State of Gujarat & Anr.
, ; , the effect of two exemption notifications made in exercise of the Government 's power under section 49(2) of the Gujarat Sales Tax Act, 1960 was considered.
Under the first notification dated 29.4.1970 certain exemption from payment of sales tax or purchase tax was given in respect of certain specified classes of sales and purchases described in the Schedule to that notification without any specification of period.
The second notification dated 11.11.1970 amended the first notification by adding a new entry in the Schedule exempting a manufacturer who established a new industry from the whole of purchase tax and sale tax for a period of five years from the date of commissioning of the industry .
This second notification stated that for the benefit of claiming the exemption the industry shall have been commissioned at any time during the period from Ist April, 1970 to 31st March, 1975.
The assessee in that case had commissioned his plant on the 17th May, 1970 and when the Industries Commissioners refused to give him the eligibility certificate for claiming exemption he filed a writ petition under Article 226 before the Gujarat High Court.
During the pendency of the writ petition the State Government issued another notification dated 17th July, 1971 amending the definition of `new industry ' and excluding among others decorticating, expelling, crushing, roasting, parching, frying of oil, seeds and colouring, decolouring and scenting of oil, from the purview of the exemption notification.
This Court 199 held that under the first notification dated 9.4.1990 the exemption granted was general and did not stipulate as to how long the exemption would remain in operation and that would mean that the exemption granted under the notification was to have operative force till such time that exemption was allowed to remain before being withdrawn by a subsequent notification.
Though the second notification dated 11.11.1970 gave exemption for a period of five years from the date of commissioning of the industry this Court was of the view that, that exemption cannot be invoked by the assessee in that case for claiming the benefit of tax exemption for five years because the second notification was prospective in operation and would apply only to those new industries which were commissioned subsequent to the issue of that notification and since the assessee in that case commissioned the Mill on 17.5.1970 before the second notification he was not eligible for the benefit of second notification.
However, the learned counsel for the respondents relied on the observation in the first paragraph at page 192 of the Bakul Oil Industries case (supra) wherein the learned Judges have held that the State Government was under no obligation in any manner known to law to grant exemption and that it was fully within its powers to revoke the exemption by means of a subsequent notification.
These observations will have to be understood in the light of the earlier statement that the second notification dated 11.11.1970 was prospective; that is to say if the industry had been commissioned subsequent to 11.11.1970 the assessee would have been entitled to the exemption for the full period of five years.
These observations are apposite only to the notification dated 9.4.1970 which was the one which the assessee was entitled to.
In correctly understanding the ratio of this judgment we have to keep in mind that the date of commissioning of the industry was the relevant factor to the entitlement of the relief.
Therefore this is an authority only for the proposition that if the exemption notification did not stipulate as to how long the exemption would remain in operation it would be open to the Government to withdraw the same at any time by a subsequent notification.
But the learned Judges did not stop with that but make a further observation that if the exemption notification gave exemption from payment of tax for a particular period and an industry was commissioned after the date of the exemption order but before the exemption was withdrawn, the said industry would be entitled to the benefit of exemption for the period specified in the exemption order though the exemption was withdrawn before the expiry of that period if the industry could rely on any estoppel.
This is also clear as the learned Judges themselves have observed that the industry commissioned subsequent to the notification could also plead estoppel and observed: "We must, however, observe that the power of revocation or 200 withdrawal would be subject to one limitation viz. the power cannot be exercised in violation of the rule of Promissory Estoppel.
In other words, the Government can withdraw an exemption granted by it earlier if such withdrawal could be done without offending the rule of Primissory Estoppel and depriving an industry entitled to claim exemption from payment of tax under the said rule.
If the Government grants exemption to a new industry and if on the basis of the representation made by the Government an industry is established in order to avail the benefit of exemption, it may then follow that the new industry can legitimately raise a grievance that the exemption could not be withdrawn except by means of legislation having regard to the fact that Primissory Estoppel cannot be claimed against a statute.
" The Government Order which was considered by this Court in Assistant Commissioner of Commercial Taxes (Asstt.).
Dharwar & Ors.
vs Dharmendra Trading Company and Ors., ; read as follows: "Consequently, the Governor of Mysore is pleased to sanction the following incentives and concessions to the entrepreneurs for starting new industries in Mysore State: (1) Sales Tax A cash refund will be allowed on all sales tax paid by a new industry on raw material purchased by it for the first (five) years from the date the industry goes into production, eligibility to the concessions being determined on the basis of a certificate to be issued by the Department of Industries and Commerce. " Though this again was in the form of a Government order giving incentives and concessions, this Court held that since there is a power to grant an exemption or concessions under the Statue the mere fact that it did not specify the power under which it was issued will make no difference and that the assessee would be entitled to the benefit of this order.
The High Court was of the view that the Government orders are, as such, not exemption orders but only a policy decision.
The learned Judges observed that Section 5 of the General Sales Tax Act "does not speak of general order of exemption as the power to grant exemption is related to 201 a class of dealers or goods and that too subject to restrictions and conditions as may be prescribed.
So there could no general order of exemption and hence the need for specific order in favour of the petitioner is quite obvious.
" On this interpretation the High Court held that the appellant has to first establish that he had set up an industry in the State which conforms to the intent of 1971 order and thereafter ask for an exemption and that on being satisfied the Government will have to make an order of exemption under section 5 of the General Sales Tax Act.
We are unable to agree with this reasoning of the learned Judges on the interpretation of section 5 of the General Sales Tax Act.
We are of the view that the High Court was in error in thinking that the exemption order should be specific in favour of the appellant.
The exemption as can be seen from the provisions of section 5 of the General Sales Tax Act could be in respect of any class of dealers of any goods or class or description of goods.
There could be an exemption in an individual also but the power of exemption is not restricted to such cases alone.
It may refer to transactions of sale of a particular type of goods or class or description of goods or in respect of any class of dealers or a combination of both.
Of course even as an order of exemption the appellant will have to show that he had set up the industry in conformity with the intent of 1971 order and entitled in terms thereof to the exemption in respect of the goods manufactured by him.
But that is not to say that after he establishes those facts the Government will have to make a separate order of exemption in relation to him.
When the appellants sought to rely on the decision of this Court in Pournami Oil Mills case (supra) the learned Judges of the High Court sought to distinguish the same on the ground that the Government order in Pournami Oil Mills case (supra) used the words `will be exempted ' whereas in the Government orders now under consideration the words used are `will be granted exemption. ' According to the learned Judges there is a vast difference between the two expressions.
Whereas the expression `will be exempted ' is in the nature of an order the expression `will be granted exemption ' clearly implies a declaration of intention which could result in an order of exemption being issued by taking further follow up action.
We have carefully considered this reasoning of the learned Judges.
The Government orders follow an earlier Cabinet decision to give incentives to large medium scale industries.
The intention was clear that they wanted to attract entrepreneurs from all over the country to come and establish industries in the State of Jammu and Kashmir.
It is not with reference to any particular industrialist or industry that the order was intended to be operative.
The subject in both the Government orders show that it is grant of incentives.
In the light of the context in which expressions came to be used we are 202 of the view that `will be granted exemption ' has the same meaning as `will be exempted ' and does not in any way show that it requires a further follow up action.
Even in Pournami Oils Mills case (supra) under the Government order dated 11th April, 1979 the industries which are to be benefited are those which are to be set up on or after 1st of April, 1979.
The exemption is thus with are to be set up on or after 1st of April, 1979.
The exemption is thus with reference to an industry which is to be established subsequent to the Government order.
Therefore in that sense both expression mean the same.
It was then pointed out by the learned Judges of the High Court that this Government Order No. 159 dated 26.3.1971 dealt with to grant four different types of facilities and incentives and three out of them are covered by different legislative enactments and, therefore, it was futile to contend that without any follow up action the said order can be treated as notification of exemption under the different statutes.
We are unable to agree with this reasoning of the learned Judges also.
As we have already pointed out there is no prescribed form for granting exemption under section 5 of the General Sales Tax Act.
There is also no prohibition against reference to any other matter or matter in exemption orders under section 5 of the General Sales Tax Act.
If the incentives related also to other benefits or rights merely because they are included in the same Government Order does not make it any the less an exemption order so far as the exemption related to payment of Sales Tax.
In fact it appears to be that factually the submission of the learned counsel for the State that follow up action was taken in pursuance of the Government order in respect of exemption from the levy of Urban immovable property tax and the exemption from levy of an additional surcharge on toll tax is not correct.
Mr. Verma, learned senior counsel appearing for the State of Jammu & Kashmir in two of the appeals referred to what he called as a follow up action in relation to the exemption from payment of tax under the Urban Immovable Property Act, a notification issued on the 3rd of June 1971 in SRO 214 of that date, in exercise of the powers conferred by section 23 of the Jammu and Kashmir Urban Immovable Property Tax Act, 1962 amending the Immovable Property Tax Rules, 1962 by inserting Rule 20A.
The relevant portion of this Rule 20A stated that under the provisions of clause (f) of sub section (1) of section 4 of the Act "all buildings and lands owned by proprietors of a factory and used by him for the purposes thereof shall be exempted from the levy of tax etc. ".
It is true that this notification was subsequent to GO 159 Ind.
dated 26.3.1971.
But it is seen from the notification itself that the same was previously published on 25.3.1971 in the Government Gazette under section 23(1) for information of all persons likely to be affected thereby informing that notice is given thereby that it 203 will be taken up for consideration on 7.4.1971 and any objection or suggestion which may be received in the Finance Department from any person with respect to the said draft before the said date will be considered by the Government.
It is by reason of the fact that this draft rule has been published calling for objection the GO 159 Ind. itself stated that the grant of immovable property tax exemption would be available "as admissible under the Urban Immovable Property Taxation Rules." Thus on the day when the Government order was made there was already the draft amendment rules, and therefore, it could not be stated that the amendment was a follow up action in pursuance of the Government order.
Rather the Government order refers to the draft and says as per the amendment they will be entitled to the exemption.
So far as the toll tax is concerned the notification dated 18.7.1977 relied on by the learned counsel for the respondents only extended the benefit of exemption to large and medium scale industries in respect of additional toll leviable `till the construction phase is completed ' that is in respect of tax on construction materials and it did not relate to the grant of exemption of additional surcharge on toll tax.
But it is significant to note that this notification itself stated that `the raw materials brought into the stage for the purpose of manufacturing and finished products marketed outside the State by the said industries shall remain exempt from payment of additional toll for a period of ten years in respect of all the units from the date of commencement of production by them." (emphasis supplied).
This definitely shows that there is already an exemption from payment of additional toll in respect of raw materials brought and finished product marketed and the Government order related only to an extension of exemption benefit in respect of the construction phase as well.
These notifications under the Immovable Property Tax Act and Toll tax act rather reinforce thus contention of the learned counsel for the appellant that the Government orders themselves are exemption orders under section 5 of the General Sales Tax Act and no follow up action was intended under those orders and the said orders operate as exemption orders.
Thus there could be no doubt the Government Order 159 Ind.
dated 26.3.1971 and the amending Government Order 414 dated 25.8.1971 are orders of exemption from payment of sales tax issued under section 5 of the General Sales Tax Act.
Though the learned counsel for M/s Kashmir Vanaspati Limited and the learned counsel appearing tr M/s K.C. Vanaspati strenuously argued that the exemption from payment of tax was extended from 5 years to 10 years and the Government was bound to give the exemption for 10 years on the ground of promissory estoppel.
We think there is absolutely no factual foundation for such a plea.
The only reference to 10 years was in 204 the Finance Minister 's speech and in the Brochure dated September, 1978.
The Brochure only lists the concessions and incentives available generally.
It does not refer to any Government decision or Cabinet decision or any order of the Government.
No decision of the Government, let alone a Cabinet decision, or any Government order extending the period of exemption was produced before us.
It is not clear on what basis the Brochure mentioned 10 years.
Further the reference in the Brochure is not for sales tax alone, but also refers to toll tax and central sales tax.
It is noticed that so far as toll tax is concerned there are Government orders exempting the industries covered by the notifications for a period of 10 years.
The Finance Minister 's statement made in March, 1978 only refers to a proposal to continue the grant of exemption from payment of sales tax for a period of 10 years.
This statement also is not unambiguous.
It may mean that the benefits under the Government Orders 159 and 414 may be continued for another 10 years without withdrawing the same.
This is merely a budget proposal which could give rise to no right to the appellants.
As no decision order or notification is produced extending the period of exemption in relation to sales tax it is not possible to consider the claim of the appellants for exemption for 10 years on the ground of promissory estoppel.
In exercise of the powers under section 4(7) of the General Sales Tax Act the Government notified that "In supersession of all the previous notifications on the subject, the Government hereby specify, in column 3 of the Schedule appended thereto, the point of tax on the turnover in the series of sales of goods specified in column 2 of the said schedule.
"This was notified and published as SRO 195 dated 31.3.1978.
The schedule in column 2 gave the description of the goods and the column 3 point of tax.
This schedule was amended by SRO 448 dated 22nd October, 1982 the relevant portion of which read as follows: "SRO 448 .
In exercise of the powers conferred by sub section (7) of section 4 of the Jammu & Kashmir General Sales Tax Act, 1962 (XX of 1962), the Government hereby direct that in notification SRO 195 dated 31.3.1978, the following amendments shall be made namely : (1) Sub item (C) in column 2 under the heading "Goods manufactured in the State" appearing against serial No. 2 shall be numbered as sub item (d) and before sub item (d) as so numbered the following shall be inserted as sub item (c) (c) Vanaspati and edible Oils.
205 (i) When sale is made by 2nd sale in the State manufacturer to another i.e. Sale is made by dealer in the State for such dealer who purchases re sale.
goods from the manufact urer.
(ii) When sale is made by Ist sale in the State i.e. manufacturer to when sale is made by the consumer direct.
manufacturer.
By order of the Government of Jammu & Kashmir.
" Before the High Court the vires of SRO 448 was questioned on various grounds.
However, the High Court rejected all those contentions and held that it is valid and that it has superseded the exemption, if any, granted under G.O. 159 and 414.
Mr. Thakur, the learned counsel for M/s Kashmir Vanaspati and Mr. Beg, learned senior counsel for M/s. K.C. Vanaspati, apart from contending that SRO 448 was ultra vires also contended on merits that this had no effect of superseding exemption granted under the said orders.
Since we are agreeing with the learned counsel that this SRO did not and could not supersede the exemption granted under the said Government orders we are not going into the question of vires of the same.
As may be seen from SRO 195 dated 31.3.1978 the notification was made by the Government in exercise of the power under section 4(7) of the State Act which related to the power to fix a point of sale for purposes of taxation in the series of sales of goods.
In fact the notification specifically stated that it is made in supersession of all previous notifications on the subject and specified the point of tax on the turnover in the series of sales of goods specified in column 2 of the Schedule (emphasis supplied).
The said notification therefore could not have and did not supersede the exemption notification SRO 448 dated 22nd October, 1982 that vanaspati and edible oils are taxable at the point specified therein it only means that those vanaspati and edible oils which are not exempted are taxable at the points specified in the Schedule.
It may be noted that the Government order gave exemption only for five years from the date of commencement of the industry and those industries who had been manufacturing for more than that period and also those industries who were not entitled to the benefit of the said Government order would be liable to pay sales tax on the vanaspati manufactured by them and the said goods were 206 liable to tax at the point specified in the Schedule.
In the Scheme of levy of single point taxation, there could be no doubt, the Government could fix and point in the series of sales for the Government have fixed the sale by the dealer, that if the second sale, as the taxable point no exception can be taken.
In that sense no question of vires on the ground of lack of power would arise.
Under Section 4(1) of Jammu & Kashmir General Sales Tax Act the goods are taxable only once, that is it could be taxed only at one point of sale.
We have already held that the Government Orders 159 and 414 are exemption orders and exempt the sale by appellants of their manufactured products.
The exemption would not arise unless the goods are taxable at the point of their sale.
Thus the effect of exempting their sale is that the said goods manufactured by them could not be taxed at the second or subsequent sales also as that would offend section 4(1) which provides for single point levy.
In case where there are no exemption orders and the state fixed the second or subsequent sale as point of taxation the first or prior or subsequent sales are not exempted sales but are not taxable sales.
Therefore, SRO 448 fixing the sale of vanaspati ghee by a dealer would not be applicable to vanaspati ghee manufactured by the appellant which are exempt under the said Government orders.
No question of vires of SRO 448 thus arises in these cases.
Thus we are not called upon to decide the vires of SRO 448 on the ground of discrimination as in our view the goods manufactured by the appellants are exempt under Government Orders 159 and 414 and that exemption covers entire series of sales of that very goods.
As already noticed in the case of Pine Chemicals the assessment orders related to their liability for tax under the in respect of their interstate sales.
The High Court has not considered their claim for exemption under section 8 (2 A) of the .
They seem to have proceeded on the assumption that if Government orders 159 and 414 above referred to are exemption orders or if the dealers were entitled to exemption under the State Act on the principle of promissory estoppel they would automatically be entitled to the benefit of section 8 (2 A) of the .
However, probably since the High Court was of the view that the said Government orders are not exemption orders and that the appellant had not laid the factual foundation for claiming the benefit of promissory estoppel, the question of consideration of the applicability of section 8 (2 A) of the did not arise and was not considered.
In fact the appellants in the special leave petition after claiming that the Government orders above referred to are exemption orders 207 and that in any case on facts they have established their case of promissory estoppel and the Government is bound to give exemption, stated as a ground that in the High Court the Advocate General made a concession to the effect that "he was not disputing that if the appellants were entitled to exemption in respect of finished goods under section 5 of the Jammu & Kashmir Sales Tax Act they would automatically be exempted under section 8 (2 A) of the in respect of interstate transaction.
" On the basis of this concession it appears that the appellants have also filed a review petition against certain observations made in the judgment of the High Court.
However, in the reply filed by the State in the special leave petition in this Court of the Government have denied that any concession was made by the Advocate General of the State in the High Court and that in any case the concession referred to related to a question of Law and that the State is entitled to press that point in this Court.
In these circumstances we have permitted the State to raise the question that even if the said Government orders were exemption orders under section 5 of the General Sales Tax Act the appellants are not eligible for exemption in respect of their interstate sales under section 8 (2 A) of the .
Under section 6(1) of the every dealer who sells goods in the course of interstate trade or commerce shall be liable to pay tax under that Act.
A sale of goods shall be deemed to take place in the course of interstate trade or commerce if the sale occasions the movement of goods from one state to another or if effected by a transfer of documents of title to the goods during their movement from one State to another.
The rate of tax on sales in the course of inter state trade of commerce is fixed under section 8 of the .
The tax payable by any dealer under the Act shall be collected in the State from which the movement of the goods commenced by the assessment officers of that State on behalf of the Government of India in accordance with the provisions of section 9(2) of the .
The learned Advocate General of Jammu & Kashmir contended that even if the sale of a particular commodity is exempted from payment of tax under the local Act the dealer selling the same in interstate trade or commerce would be liable to pay central sales tax under the provisions of section 6(1A) of the .
His further submission was that if section 6(1A) of the is applicable to a particular transaction of sale section 8 (2A) of the would not be applicable to that transaction.
Section 6(1A) of the Act reads as follows: 208 "(1 A) A dealer shall be liable to pay tax under this Act on a sale of any goods effected by him in the course of inter state trade or commerce notwithstanding that no tax would have been leviable (whether on the seller or the purchaser) under the sales tax law of the appropriate State if that sale had taken place inside that State.
" In other words the liability of a dealer to pay Central Sales Tax on his interstate transactions of sale will not be affected merely on the ground that if the same dealer had sold the goods locally he would not have been liable to pay tax under the local Sales Tax Act.
This is part of the general provisions of Section 6 of the making a dealer liable to tax on inter state sales.
The rate of tax payable on inter state sale is fixed at 4% in the case of sales to a registered dealer of goods of the description coming under section 8 (2) of the or where the sale is to a Government and at 10% under Section 8 (2) (b) of the in the case of goods other than declared goods.
In respect of declared goods under section 8(2) (a) of the shall be payable at twice the rate applicable to sale or purchase of such goods inside the appropriate State.
In view of the provisions of Section 15 the State law can impose tax on sale of declared goods only at a rate not exceeding four per cent of the sale price and such tax also shall not be levied at more than one stage.
If the tax has been levied under the State Law on declared goods and such goods are sold in the course of inter state trade and tax has been paid under the Central Sales Tax the tax levied under the State law shall be reimbursed to the person making such sale in the course of inter state trade.
Section 8 (2A) of the is in the nature of an exception to these general provisions.
That sub section reads as follows: "8(2 A) Notwithstanding anything contained in sub section (1 A) of section 6 or in sub section (1) of this section, tax payable under this Act by a dealer on this turnover in so far as the turnover or any part thereof relates to the sale of any goods, the sale of, as the case may be, the purchase of which is, under the sales tax law of the appropriate State, exempt from tax generally or subject to tax generally at a rate which is lower than four per cent (whether called a tax or fee or by any other name), shall be nil or, as the case may be, shall be calculated at the lower rate.
Explanation For the purpose of this sub section a sale or 209 Purchase of any goods shall not be deemed to be exempt from tax generally under the sales tax law of the appropriate State if under that law the sale or purchase of such goods is exempt only in specified circumstances or under specified conditions or the tax is levied on the sale or purchase of such goods at specified stages or otherwise than with reference to the turnover of the goods".
It may be seen from these provisions that Section 8 (2 A) of the does not have any overriding affect on the scheme of taxation relating to inter state sale of declared goods.
There is also scope for the applicability of Section 6 (1 A) of the when the inter state sale takes place when the goods are in transit and is effected by transfer of documents of title to the goods during their movement from one State to another.
There may be other instances also which may not affect the levy under section 6(1A) of the as in case where Section 8(2 A) of the was not applicable though the transaction was not taxable under the State law.
Suffice it to say that only certain cases which would have been covered by Section 6(1 A) of the have been carved out for the purpose of exemption subject to the applicability of section 8 (2 A) of the .
Section 6 (1 A) of the has not become otiose by reason of inclusion of that section in the non obstante clause in section 8(2 A).
Both provisions, therefore, operate and they should not be read so as to nullify the effect of one another.
On a plain reading of section 8(2 A) of the it deals with the liability of a dealer to pay tax under the Act on his inter state sales turnover relating to any goods on the turnover relating to such goods if the sale had taken place inside the State is exempt from payment of sales tax under the sales tax law of the appropriate State.
It provides that if an intra state sale or purchase of a commodity by the dealer is exempted from tax generally or subject to tax generally at a rate which is lower than 4 per cent then his liability to tax under the when such commodity is sold on inter state trade would be either nil or as the case may be shall be calculated at the lower rate.
Explanation states as to when the sale or purchase shall not be deemed to be exempt from tax generally under the sales tax law.
That is to say an intra state sale or purchase of a commodity shall not be deemed as exempt from State tax generally if the exemption is given only (1) in specified circumstances or under specified conditions or (2) the tax is leviable on the sale or purchase of such goods at specified stages or (3) otherwise than with reference to the turnover of 210 the goods.
These conditions or limitations are therefore with reference to the transaction of sale or purchase.
The main clause deals with the turnover of `a dealer ' which the term would include `any dealer ' or `any class of dealers '.
The existence or otherwise of the three limitations under the explanation above referred to on claiming exemption under section 8(2 A) of the will therefore, have to be tested with reference to the transaction of sale or purchase as the case may be of the dealer who claims the transaction of sale or purchase as the case may be of the dealer who claims the exemption in respect of his intra state sale of purchase of the same goods.
Thus the specified circumstances and the specified conditions referred to in the explanation should be with reference to the local turnover of the same dealer who claims exemption under section 8(2 A) of the .
The learned Advocate General for the state contended that the conditions that the industry should have been set up and commissioned subsequent to the Government orders 159 and 414 above referred to and the commodity sold by him in order to claim the exemption under the said Government order, shall be those manufactured by that industry are conditions or specified circumstances within the meaning of the explanation and, therefore, the dealer (Pine Chemicals) is not entitled to any exemption under section 8 (2 A) of the .
We are unable to agree with this submission of the learned counsel for the state.
The facts which the dealer has to prove to get the benefit of the Government orders are intended only to identify the dealer and the goods in respect of which the exemption is sought and they are not conditions or specifications of circumstances relating to the turnover sought to be exempted from payment of tax within the meaning of those provisions.
The specified circumstances and the specified conditions referred to in the explanation should relate to the transaction of sale of the commodity and not identification of the dealer or the commodity in respect of which the exemption is claimed.
These conditions relating to identity of the goods and the dealer are always there in every exemption and that cannot be put as a condition of sale.
We have already held that not only sale by the manufacturer to dealer that is exempt under the Government orders but since the General Sales Tax Act had adopted only a single point levy, even the subsequent sales would be covered by the exemption order.
Therefore, the question whether the tax is leviable on the sale or purchase at "specified stages" does not arise for consideration.
This is not also a case where the exemption is with reference to some thing other than the turnover of the goods.
In this connection we may refer to two decisions of this Court reported as Indian Aluminium Cables Ltd. & Anr.
vs State of Haryana (38 211 STC 108) and Industrial Cables India Ltd. vs Assessing Authority.
[1986] sup.
SCC 695.
The question for consideration in this case was whether the transaction of sale which would be covered by section 5 (2)(a) (iv) of the Punjab Sales Tax Act could be said to be exempt from tax generally within the meaning of section 8(2)(a) of the .
Section 5 (2A) in effect provided that in determining the taxable turnover of a dealer his turnover on "(iv) sales to any undertaking supplying electrical energy to the public under a licence or sanction granted or deemed to have been granted under the Indian Electricity Act, 1910(IX of 1910), of goods for use by it in the generation or distribution of such energy" is to be deducted.
That is to say that the transaction covered by this clause are exempt from Punjab Sales Tax Act.
As may be seen from the provision the two conditions relate to the purchaser company being a licensed undertaking supplying electrical energy to the public and the goods sold are for use by the said undertaking in generation or distribution of such energy.
This court rejected the contention of the dealer that they are descriptive of the goods and not conditions and held that they are conditions under which exemption is granted and that therefore section 8(2A) of the was not attracted.
As may be seen, the two conditions are attached to the sale of the dealer who is liable to pay sales tax.
The description of the person who is to be the purchaser is not intended to identify the seller but relate to a condition of the sale being to a person of that description.
The condition that the goods sold are for use by the licensed undertaking in the generation or distribution of electrical energy is again a condition attached to the sale and not identification of the goods .
The goods are already identified.
If the same goods had been sold to a person who is not a licensed undertaking and/or not for purposes of use in the generation or distribution of electrical energy the transaction would be liable to levy of tax under local Sales Tax Law.
If the conditions specified are satisfied then that transaction which would have otherwise formed part of the taxable turnover is allowed to be deducted from the total taxable turnover.
Clearly, therefore, they are specified circumstances or specified conditions within the meaning of the explanation to section 8(2A) of the and therefore cannot be treated as exempted from tax generally.
There is also another judgment of this Court, namely, International Cotton Corporation (P) Ltd. vs Commercial Tax Officer & Ors., (35 STC 1) wherein they have generally considered the scope of section 8 (2A) of the .
After a consideration of the arguments the learned Judges observed: 212 "Reading section 6(1 A) and section 8(2A) together along with the explanation the conclusion deducible would be this: Where the intra state sales of certain goods are liable to tax, even though only at one point, whether of purchase or of sale, a subsequent inter state sale of the same commodity is liable to tax, but where that commodity is not liable to tax at all if it were an intra state sale the inter state sale of a particular commodity is taxable at a lower rate than 3 per cent then the tax on the inter state sale of tax commodity will be at that lower rate.
A sale or purchase of any goods shall not be exempt from tax in respect of inter state sales of those commodities if as an inter state sale the purchase or sale of those commodities is exempt only in specific circumstances or under specified conditions or is leviable on the sale or purchase at specified stages.
On this interpretation section 6(A) as well as section 8 (2A) can stand together." In view of the pronouncement of this Court in above decisions and on our interpretation we do not consider it necessary to refer to the decisions of the High Courts cited at the bar.
In the result we hold that the dealer "Pine Chemicals" is entitled to claim the benefit of exemption under G.O. 159 dated 26.3.1971 and G.O. 414 Ind. dated 25.8.1971 in respect of his turnover on inter state sales and the benefit of exemption is available for a period of five years from the commencement of commercial production.
Mr. Verma learned counsel appearing for the State Government then contended that the said Government orders were superseded by SRO 80 dated 12.3.1982 (hereinafter referred to as SRO 80/82) and Vanaspati Ghee has been made liable to tax at the rate of eight per cent.
The goods manufactured by M/s. Pine Chemicals are also made taxable as falling under the residuary item at the rate of 8 per cent.
S.R.O. 80 dated 12th March, 1982 reads as follows: "In exercise of the powers conferred by sub section (1) of section 4 of the Jammu & Kashmir General Sales Tax Act, 1962 (XX of 1962) and in supersession of all the previous notifications issued on the subject, the Government hereby direct that the tax on the taxable turnover shall be payable at the rates specified in schedule A 1 to A XI annexed hereto : Further the Government, in exercise of the powers conferred by section 5 of the said Act and in supersession of all the previous notifications issued on the subject, hereby direct that the goods, 213 persons and classes of persons as specified in Schedule "B" annexed hereto shall be exempt from payment of tax leviable under said Act.
Explanation: Nothing contained in schedule `B ' shall be deemed to exempt any goods specified in Schedule A I to A XI (both inclusive).
This notification shall come into force with effect from 1 4 1982.
By order of the Government of Jammu & Kashmir.
" It then sets out the description of the goods and the rates at which they are taxable in Schedule A, Annexures I to XI.
Items 1 to 3 schedule "A" Annexures IV, reads: SCHEDULE A IV Goods chargeable to tax at 8% 1.
Hydrogenated vegetable oil (Vanaspati) and palm oil of all sorts.
Lubricants.
All goods other than items (1) & (2) above and those specified in other Schedules.
x x x" In Schedule B goods except under section 5 of the General Sales Tax Act are set out.
Vanaspati Ghee is not one of the items of goods exempted under Schedule B.
The learned counsel for the appellants contended that the second paragraph in the SRO only superseded the `notification ' under Section 5 of the General Sales Tax Act made earlier and did not supersede and did not have the effect of superseding the Government orders made, in pursuance of policy decisions taken by the Cabinet, exempting from payment of tax as an incentive to the industries.
In any case the exemption for five years granted under the said Government orders could not be withdrawn so far as the appellants are concerned both on the ground that SRO 80/82 was prospective in operation and also on the ground of promissory estoppel.
214 There could be no doubt that SRO 80/82 was prospective in operation.
We have noticed in the earlier part of this judgment that the Government seems to have been following as a pattern that is in the case of incentives to industries the exemption orders had taken the form of a Government order.
Government order 159 and 414 were also in pursuance of a Cabinet decision.
SRO 80/82 though a Government notification under the Business Rules it is issued by the Ministry concerned.
In the circumstances we have also a serious doubt whether the said incentives could have been superseded by the said SRO 80/82.
In this connection we may also refer to Government order No. 54 Ind. of 1983 dated 26.2.1983 again an order made in pursuance of Cabinet decision which reads as follows: "CIVIL SECRETARIAT INDUSTRIES & COMMERCE DEPARTMENT GOVERNMENT OF JAMMU AND KASHMIR Incentives for development of Large/Medium/Small Scale and Tiny Sector Industries in Jammu & Kashmir.
Cabinet Decision No. 57 dated 5.2.1983 GOVERNMENT ORDER NO.
54 IND OF 1983 Dated 26 2 1983 In supersession of all previous orders it is ordered that the package of incentives as per Annexure to this order will now be applicable to the existing and new Large Medium/Small Scale and Tiny Industrial Units.
Such of the Industrial Units which have partly availed of the package of incentives, sanctioned under Government Order No. 391 Ind.
of 1972 dated 21.6.1972 and subsequent orders issued in amplification thereof, as well as such units which have become entitled to the availment of the earlier package of incentives, shall have the option to get benefit under the new package of incentives, sanctioned hereunder, for the remaining period of their entitlement.
215 3.
X X X 4.
X X X 5.
X X X 6.
X X X By order of the Government of Jammu & Kashmir.
J.A. Khan Secretary to Government Industries and Commerce Department.
" The annexures to this order contain the incentives, benefits privileges and priorities given to large, medium and small scale industries and tiny industries.
So far as sales tax payable by large and medium scale industries which is relevant for our purpose paragraph XII/XIII states as follows: "XII/XIII.
GST/CST/Additional Toll Tax on SSI Units and Medium/Large Units: (i) No GST shall be charged on any raw material purchased by any industrial units except on items brought on a negative list.
(ii) X X X (iii) X X X (iv) An equivalent amount of loan would be granted interest free to Medium and Large Units for a period of 10 years against GST/CST paid in the State, each installment of loan shall be recoverable in 7 years after a moratorium of 3 years, the total amount of tax loan at any point of time not to exceed 33% of capital investment or Rs. 25 Lakhs whichever is less.
Penal rate of interest may be prescribed for delay in repayment of loan.
(v) X X X (vi) X X X" 216 It may be seen that paragraph I of this order refers to `supersession of all previous orders ' and then speaks of package of incentives and then states as applicable to existing large and medium scale industries also.
If SRO 80/82 had superseded G.O. 159 and 414 does it mean that this Government order has superseded SRO 80/82 and if that is so what are incentives available after SRO 80/82 to the existing industries? This Government order is thus consistent with the pattern followed and deals only with incentives to industries.
In the second paragraph an option has been given to the industry which has not utilised the full benefit of the earlier exemption either to continue to enjoy the earlier exemption given by way of incentive or to opt for the scheme of incentive under the new Government order.
Thus all, these provisions are consistent with the case of the appellants that neither SRO 80/82 superseded GO 159 and 414 nor Government order 54 dated 26.2.1983 took their right to continue to enjoy the exemption benefit for the total period of five years as provided in the said Government orders.
The learned counsel for the appellants also contended that they are entitled to enjoy the benefit for the full period of five years both on law as also on the ground of estoppel.
We have already noticed that in Bakhul Oil case (supra) this Court held that in the case of a grant of exemption without specifying any period for which the exemption is available the Government could withdraw the same at any time.
Though in that case on facts no further question can arise since it was held that the dealer was not entitled to the benefit of the subsequent notification giving the exemption for a period of five years on the ground that the notification was prospective in operation and therefore not applicable to the dealer in that case, this Court made certain further observations to the effect that even in the case of exemption for a particular period it could be withdrawn at any time subject of course to the plea of estoppel.
In Pournami Oil Mills case also the learned Judges appear to have given the benefit of exemptions for the full period even after the withdrawal on the basis that the industry was set up in pursuance of some representation made by the Government amounting to estoppel.
In the present appeals also there are lot of materials to show that the Government made representations to industry that they would give tax exemptions and other incentives and invited entrepreneurs to establish their industries in J. & K. Relying on those representations each of these appellants have set up their industries.
It is not necessary to set out these factual details in the judgment.
Suffice it to say that we have carefully considered all the materials and are of the view that the appellants acting on the representations had set up their industries.
Therefore they are entitled to claim the benefit of the exemption for the entire period of five years calculated 217 as per the terms of the Government orders, even if it were to be held that SRO 80/82 superseded the earlier exemption orders.
It was then contended by Mr. Verma learned counsel appearing for the State that in the assessment order relating to Assessment Year 1981 82 for the period from 1.9.1981 to 30.8.1982 in the case of K.C. Vanaspati there is a finding that the assessee had collected sales tax in respect of their sales turnover for which the exemption is now claimed and that under section 8 B of the J&K General Sales Tax Act the said amount is refundable to the Government.
As has already been seen there was an assessment order for the period covering from 2nd September, 1981 to 30th September, 1981 which was the subject matter of Writ Petition No. 52 of 1982.
The same period merged in the assessment order 1.9.1981 to 30.8.1982 and consolidated assessment order was made and that was subject matter of Writ Petition No. 882 of 1984.
Both these assessment orders were regular assessment orders and they are not section 8 B orders of the Local Act.
They were made on the findings that Government Orders 159 and 414 above referred to are not exemption orders and the assessee could not be said to have acted upon any representation by the Government that they are exemption orders on the ground that if they had relied on those orders as exemption orders they would not have collected any tax in respect of their sales and that therefore the Government was not precluded by any principle of promissory estoppel from assessing their sales turnover.
The assessees had challenged these assessment orders mainly on the ground that the Government orders were exemption orders and that in any case the State is precluded from levying any sales tax on the ground of promissory estoppel.
The learned Judges of the High Court held, as already stated that, the said Government orders were not exemption orders but were only in the nature of declaration of intention to exempt the said industries from payment of sales tax and that the assessee had also not established any right for non payment of tax on any ground of promissory estoppel.
For holding that the assessees could not be said to have relied on any representation from the Government that they would be exempted from payment of tax the learned Judges relied on the facts that the assessees had collected sales tax or the sales tax element had gone into the fixation of price of Vanaspati Ghee showing thereby that the appellants had not relied on any representation from the Government that their sales are exempt from payment of tax.
Since the assessment orders were regular assessment orders on the ground that their sales are taxable sales the question of applicability of section 8 B of the local Act does not arise.
That question arises in view of our finding that their sales turnover are exempt but still under section 8 B of the Local Tax they are liable to refund any money collected "by way of a tax".
Since 218 neither the High Court had any occasion to decide this question of applicability of section 8 B of the Local Act on the basis that the sales turnover were exempt from payment of tax nor the assessing authorities had any opportunity to decide or made any order under section 8 B of the Local Act separately, we think that the entire question relating to the applicability of section 8 B of the Local Act and even the question whether there was any collection of sales tax will have to be left open.
The learned counsel Mr. Verma strenuously contended that there is a finding in the assessment orders that the appellants had collected tax and that finding had not been either challenged or set a side by the High Court and that therefore they should be directed to refund the amount collected.
We are not able to agree with this contention of the learned counsel.
As already stated the assessment order itself was questioned in the writ petitions filed by the assessees.
The High Court had proceeded on the basis that the Government orders are not exemption orders and that the Government also was not precluded from collecting tax on any ground of promissory estoppel and that therefore the question of applicability of section 8B of the Local Act did not arise before the High Court.
It may be mentioned it is not the case of the State that they had collected any amount in excess of the percentage of sales tax i.e. collectable in respect of taxable Vanaspati sales.
In the light of our findings that the sales were exempt the question now arises whether the assessees had collected any tax and whether the amount was collected by way of tax and whether any element of sales tax has merged in the fixation of the price and that amounts to collection of sales tax.
These questions will have to be decided if the State considers that the assessees had collected sales tax, in separate proceedings that may have to be initiated under Section 8 B of the Local Act or when the State demands payment of the money under section 8 B of the Local Act.
Suffice it so say that we are unable to agree with the observations of the learned Judges of the High Court that merely because in the balance sheet a reserve fund is made for payment of sales tax or on basis of a letter of Kashmir Vanaspati giving a break up of the sales price of Rs. 238 it can be said to be conclusively established that sales tax had been collected.
Any way we do not want to say anything because the matter will have to be considered by the authorities concerned in case they want to invoke Section 8 B of the Local Act on the basis that the said government orders gave exemption from payment of sales tax in respect of these assessees for a period of five years as we have held.
In this view we are also not going into the question as to the validity of section 8 B of the Local Act and we leave open that question which was outlined before us.
Thus interpretation of section 8 B of the Local Act and the question of fact of collection and the liability to refund all have to wait till a demand is made by the competent authority for refund of the amounts 219 in exercise of their power under section 8 B of the Local Act.
The assessees have made some deposits in pursuance of interim orders made by this Court pending the appeals.
It is also stated that during the pendency some other amounts were also paid by the assessees in addition to the amounts paid as per the directions given by the Court.
The refunds of this money and the liability of the State Government to pay any interest while refunding the deposits will all have to await the demand, if any, that may be made by the Government under section 8 B of the Local Act.
However, we make it clear that the stay of refund of money collected as aforesaid will be only for a period of six months by which time the Department should initiate proceedings, if any, under Section 8 B of the Local Act, if so advised.
To sum up : G.O. 159 Ind dated 26.3.1971 and G.O. 414 dated 25.8.1971 are exemption from payment of sales tax orders referable to the powers of the Government under Section 5 of the J & K General Sales Tax Act and that exemption covers the entire series was available only for a period of five years from the date of commissioning of the industries and not for ten years.
The benefit of the exemption under the said Government orders are also available in respect of the inter State sales of the same commodities for a period of five years from the commencement of the commercial production.
The appeals are accordingly allowed to the extent mentioned above.
However, there will be no order as to costs.
V.P.R. Appeal allowed. [/INST] The appellant a public limited company was manufacturing Rosin, Turpentine and Rosin Derivatives and was carrying on business at Bari Brahmana and Jammu Tawi.
On 20.1.1981, the Assessing Authority assessed the appellant company under the , for the year ending 30.6.80.
On 22.2.1981 an assessment order under section 10 of the Act was made.
A penalty order was also made.
The appellants challenged the order of the Assessing Authority before the High Court filing Writ Petition No. 87 of 1987, contending that they were exempt from payment of sales tax under the and the Jammu & Kashmir General Sales Tax Act, 1962, on the finished goods produced by them for a period of five years commencing from 8th November, 1979, in terms of the Government Orders No. 159 Ind.
dated 26.3.1971 as amended by Government Order No. 414 Ind.
dated 25th August, 1971 read with Section 8(2A) of the ; that the Government represented and announced a package of incentives for large and medium scale industries grant of exemption from sales tax both on the raw materials purchased by the industries and the sale of their finished products; and that the Government was estopped from charging sales tax.
The High Court dismissed the Writ Petition holding that the two Government Orders were only declarations of an intention to exempt 181 from payment of sales tax and that they were not exemption notifications under section 5 of the General Sales Tax Act and that the appellants failed to prove the factual foundation for invoking the principle of promissory estoppel.
Against the High Court 's decision by special leave C.A. No. 2309 of 1989 was filed by the appellant company.
C.A. No. 2310 of 1989 The appellant company had filed a miscellaneous petition, after the judgement in the W.P.No. 87 of 1987 (the writ petition of the High Court against which C.A.No. 2309 of 1989 was filed) for permission to file reply affidavit on the ground of that the documents produced at the time of hearing needed explanation.
The High Court dismissed the Misc.
Petition as it was belated and the judgement in the writ petition was delivered relying on the materials placed on record.
C.C.No.
3148 50 of 1989 The appellant partnership firm was manufacturing Vanaspati Ghee.
It was assessed for the period from 2.9.1981 till 30.9.1981 under the Jammu & Kashmir General Sales Tax Act.
The appellants moved the High Court in a writ petition (W.P.No. 52 of 1982) to quash the assessment order, contending that the Government order 159 Ind.
dated 26.3.1971 as amended by Government Order 414 Ind.
dated 25.8.1971 exempted the sales of the finished product of Vanaspati Ghee from sales tax and that the Government was estopped from collecting tax.
When the Writ Petition (W.P.No. 52 of 1982) was pending an assessment order was made on 14.11.1984 for the assessment year ending 30th September, 1982, including the period 2nd September to 30th September, 1981 (which was questioned in W.P.No. 52 of 1982).
The assessment order dated 14.11.1984 was challenged by the assessees appellants in the writ Petition No. 822 of 1984.
During the pendency of the writ petitions certain other Government Orders were passed and certain assessment orders for the subse 182 quent periods were passed and those were questioned in the Writ Petition No. 711 of 1987.
The assessees contended that Government Order No. 159 Ind. dated 26.3.1971 and Government Order 414 Ind.
dated 25.8.1971 were exemption orders referable to section 5 of the Jammu & Kashmir General Sales Tax Act.
The respondents contended that the said Government orders were not exemption orders section 5 of the General Sales Tax Act and that there was not factual foundation for the plea of promissory estoppel.
The High Court dismissed all the three writ petitions by a common order, against which Civil Appeals 3148 50 of 1989 were filed.
C.A.No. 3151 of 1989 : The appellant assessee filed a writ petition praying to quash certain notices issued under section 14 of the and for a declaration that the Vanaspati Ghee manufactured by them was exempt from payment of tax upto January, 1992, i.e., for a period of 10 years from the date from which they started their commercial production as per the Government Order 159 Ind.
dated 26.3.1971 and Government Order No. 414 Ind.
dated 25th August 1971 as orders exempting their goods from sales tax under Section 5 of the Jammu & Kashmir General Sales Tax Act.
The Writ Petition was also dismissed against which C.A.No. 3151 of 1989 was filed by special leave.
The assessee contended that the exemption from payment of tax was extended from 5 years to 10 years and the Government was bound to give the exemption for 10 years on the ground of promissory estoppel; that SRO 448 which superseded the exemption granted under the Govt.
Orders was ultra vires and that the SRO 448 had no effect of superseding exemption granted under the G.O. 159 and 414; and that the exemption for 5 years granted under the Government Orders could not be withdrawn on the ground that SRO 80/82 was prospective in operation and also on the ground of promissory estoppel.
The State contended that even if the sale of a particular commod 183 ity was exempted from payment of tax under the local Act, the dealer selling the same in inter state trade or commerce would be liable to pay Central Sales Tax under the provisions of Section 6(1A) of the ; that if Section 6(1A) of the was applicable to a particular transaction of sale, Section 8(2 A) of the General Sales Tax Act would not be applicable to that transaction; that the conditions that the industry should have been set up and commissioned subsequent to the Government Orders 159 and 414 and the commodity sold in order to claim the exemption under the Government Orders, should be those manufactured by that industry were the conditions or specified circumstances within the meaning of the Explanation and, therefore, the appellants in C.A.Nos.
2309, 2310/89 were not entitled to any exemption under Section 8(2 A) of the ; that the Government Orders were superseded by SRO 80/82 and Vanaspati Ghee was made liable to tax at the rate of 8 per cent; that the goods manufactured by the appellants in C.A.Nos.
2309, 2310/89 were also made taxable as falling under the residuary item at the rate of 8 per cent; that in the assessment order relating to Assessment Year 1981 82 for the period from 1.9.1981 to 30.8.1982 in the case of appellants in C.A. Nos.
3148 3150 of 1989 there was a finding that the assesses collected sales tax in respect of their sales turnover for which the exemption was now claimed and that under Section 8 B of the J&K General Sales Tax Act the said amount was refundable to the Government.
As the questions, arose in these appeals were common, appeals were heard together and allowing the appeals of the assessees by a common judgment, this court, HELD :1.
If power to do an act or act or pass an order can be traced to an enabling statutory provision, then often if that provisions is not specifically referred to, the act or order shall be deemed to have been done or made under the enabling provision.
[194D] 2.1 Normally in the case of grant of tax exemption as an incentive to industry the exemption orders have generally taken the form of Government Order rather than a notification.
But in the case of other exemptions though they are also under section 5 of the local Act (J&K General Sales Tax Act, 1962) they have taken the form of notification.
[194G H] 2.2 The pattern followed in Jammu & Kashmir is that in respect 184 of exemptions from payment of taxes following Cabinet decision on Policy matters and incentive they have taken the form of a Government order.
[194H 195A] 2.3 The Jammu & Kashmir General Sales Tax Act, 1962 itself makes a distinction requiring a notification to be made for certain purposes and the making of a Government order in respect of certain other purposes.
Since there is no form prescribed in this behalf, if the particular order in effect is an exemption order, whether it takes the form of an order or notification makes no difference.
[194F G] 2.4 From the publicity given to the Government Orders 159 and 414 by the Government, while inviting entrepreneurs to establish industries in Jammu & Kashmir and certain other communications to the parties, it is be understood that the Government orders 159 and 414 were treated as exemption orders satisfy all the requirements of the provisions of section 5 of the local Act.
[195B C, 194E] 2.5 Even as an order of exemption the appellant will have to show that he had set up the industry in conformity with the intent of 1971 order and entitled in terms thereof to the exemption in respect of the goods manufactured by him.
But that is not to say that after he establishes those facts the Government will have to make a separate order of exemption in relation to him.
[201C D] 2.6 There is no prescribed form for granting exemption under section 5 of the Jammu & Kashmir General Sales Tax Act.
There is also no prohibition against reference to any other matter or matters in exemption orders under section 5 of the General Sales Tax Act.
If the incentives related also to other benefits or rights merely because they are included in the same Government Order does not make it any the less an exemption order so far as the exemption related to payment of sales tax.
[202C D] 2.7 The High Court was in error in thinking that the exemption order should be specific in favour of the appellant.
The exemption as can be seen from the provisions of section 5 of the Jammu & Kashmir General Sales Tax Act could be in respect of any class of dealers or any goods or class or description of goods.
There could be an exemption to an individual also but the power of exemption is not restricted to such cases alone.
It may refer to transactions of sale of a particular type of goods or class or description of goods or in respect of any class of 185 dealers or a combination of both.
[201B] 3.1 `Will be granted exemption ' has the same meaning as `will be exempted ' and does not in any way show that it requires a further follow up action.
[201G H] 3.2 The exemption is with reference to an industry which is to be established subsequent to the Government order.
Therefore in that sense both expressions mean the same.
[202A] 4.
The notification issued on the 3rd of June 1971 in SRO 214 under section 23 of the Jammu & Kashmir Urban Immovable Property Tax Act, 1962, amending the Immovable Property Tax Rules, 1962 by inserting Rules 20 A was subsequent to GO 159 Ind. dated 26.3.1971.
It was published on 25.3.1971 in the Government Gazette under section 23(1) for information of all persons likely to be affected thereby and any objection or suggestion which may be received in the Finance Department from any person with respect to the said draft before the said date will be considered by the Government.
It is by reason of the fact that this draft rule has been published calling for objection the GO 159 Ind. itself stated that the grant of immovable property tax exemption would be available "as admissible under the Urban Immovable Property Taxation Rules".
Thus on the day when the Government Order was made there was already the draft amendment rules, and, therefore, it could not be stated that the amendment was a follow up action in pursuance of the Government order.
The Government order refers to the draft and says as per the amendment they will be entitled to the exemption.
[202E 203B] 5.1 The only reference to 10 years was in the Finance Minister 's speech and in the Brochure dated September 1978.
The Brochure only lists the concession and incentives available generally.
It does not refer to any Government decision or Cabinet decision or any order of the Government.
[203G H] 5.2 The Finance Minister 's statement made in March 1978 only refers to a proposal to continue the grant of exemption from payment of sales tax for a period of 10 years.
This statement also is not unambiguous.
It may mean that the benefits under the Government Orders 159 and 414 may be continued for another 10 years without withdrawing the same.
This is merely a budget proposal which could 186 give rise to no right to the appellants.
As no decision order or notifications is produced extending the period of exemption in relation to sales tax it is not possible to consider the claim of the appellants for exemption for 10 years on the ground of promissory estoppel.
[204 B C] 6.1 The SRO No. 195 dated 31.3.1978 did not and could not supersede the exemption granted under the Government orders 159, 414.
[205D] 6.2 When it stated in the amending notification SRO 448 dated 22nd October, 1982 that vanaspati and edible oils are taxable at the point specified therein it only means that those vanaspati and edible oils which are not exempted are taxable at the points specified in the Schedule.
The Government order gave exemption only for five years from the date of commencement of the industry and those industries who had been manufacturing for more than that period and also those industries who were not entitled to the benefit of the said Government order would be liable to pay sales tax on the vanaspati manufactured by them and the said goods were liable to tax at the point specified in the Schedule.
[205F G] 7.1 In the scheme of levy of single point taxation, the Government could fix any point in the series of sales for the Government have fixed the sale by the dealer, that if the second sale, as the taxable point no exception can be taken.
In that sense no question of vires on the ground of lack of power would arise.
[205H 206A] 7.2 Under section 4(1) of Jammu & Kashmir General Sales Tax Act the goods are taxable only once, that is it could be taxed only at one point of sale.
The government orders 159 and 414 are exemption orders and exempt the sale by appellants of their manufactured products.
The exemption would not arise unless the goods are taxable at the point of their sale.
Thus the effect of exempting their sale is that the said goods manufactured by them could not be taxed at the second or subsequent sales also as that would offend section 4(1) which provides for single point levy.
In cases where there are no exemption orders and the State fixed the second or subsequnt sale as point of taxation the first or prior or subsequent sales are not exempted sales but are not taxable sales.
Therefore SRO 448 fixing he sale of vanaspati ghee by a dealer would not be applicable to vanaspati ghee manufactured by the appellants which are exempt under the Government orders.
[206B D] 187 7.3 The goods manufactured by the Appellants are exempt under Government Orders 159 and 414 and that exemption covers entire series of sales of that very goods.
[206D] 8.1 Under section 6(1) of the every dealer who sells goods in the course or inter state trade or commerce shall be liable to pay tax under that Act.
A sale of goods shall be deemed to take place in the course of inter state trade or commerce if the sale occasions the movement of goods from one state to another or if effected by a transfer of documents of title to the goods during their movement from one State to another.
[207D E] 8.2 In view of the provisions of Section 15 the State Law can impose tax on sale of declared goods only at a rate not exceeding four per cent of the sale price and such tax also shall not be levied at more than one stage.
If the tax has been levied under the State Law on declared goods and such goods are sold in the course of inter state trade and tax has been paid under the Central Sales Tax the Law levied under the State law shall be reimbursed to the person making such sale in the course of inter state trade.
[208C E] 8.3 Section 8(2 A) of the does not have any over riding effect on the scheme of taxation relating to inter State sale of declared goods.
There is also scope for the applicability of section 6(1 A) of the when the inter state sale takes place when the goods are in transit and is effected by transfer of documents of title to the goods during their movement from one State to another.
[209B C] 8.4 Only certain cases which would have been covered by section 6(1 A) of the have been carved out for the purpose of exemption subject to the applicability of section 8(2 A) of the .
Section 6(1 A) of the has not become otiose by reason of inclusion of that section in the non obstante clause in section 8(2 A).
Both provisions, therefore, operate and they should not be read so as to nullify the effect of one another.
[209C E] 9.
The facts which the dealer had to prove to get the benefit of the Government orders are intended only to identify the dealer and the goods in respect of which the exemption is sought and they are not conditions or specifications of circumstances relating to the turnover sought 188 to be exempted from payment of tax within the meaning of those provisions.
The specified circumstances and the specified conditions referred to in the explanation should relate to the transaction of sale of the commodity and not identification of the dealer or the commodity in respect of which the exemption is claimed.
The conditions relating to identity of the goods and the dealer are always there in every exemption and that cannot be put as a condition of sale.
[210D F] 10.1.
SRO 80/82 was prospective in operation.
The Government seems to have been following as a pattern that is in the case of incentives to industries the exemption orders had taken the form of a Government order.
Government orders 159 and 414 were also in pursuance of a Cabinet decision.
SRO 80/82 though a Government notification under the Business Rules it is issued by the Ministry concerned.
In the circumstances there is also a serious doubt whether the said incentives could have been superseded by the SRO 80/82.
[213H 214B] 10.2.
In the case of a grant of exemption without specifying any period for which the exemption is available the Government could withdraw the same at any time.
The appellants acting on the representations of the Government had set up their industries.
Therefore they are entitled to claim the benefit of the exemption for the entire period of five years calculated as per the terms of the Government orders, even if it were to be held that SRO 80/82 superseded the earlier exemption orders.
[216D E, 216G 217A] 11.
Since the assessment orders were regular assessment orders on the ground that their sales are taxable sales the question of applicability of Section 8B of the local Act does not arise.
That question arises in view of the finding that their sales turnover are exempt but still under section 8B of the Local Act, they are liable to refund any money collected "by way of tax".
[217G H] Pournami Oil Mills & Ors.
vs State of Kerala & Anr.
, [1986] Supp.
SCC 728; Bakul Oil Industries & Anr.
vs State of Gujrat & Anr.
, ; ; Assistant Commissioner of Commercial Taxes (Asstt), Dharwar & Ors.
vs Dharmendra Trading Company and Ors., ; ; Indian Aluminium Cables Ltd. & Anr.
vs State of Haryana, 38 STC 108; Industrial Cables India Ltd. vs Assessing Authority, [1986] Supp.
SCC 695; International Cotton Corporation (P) Ltd. vs Commercial Tax Officer & Ors., 35 STC 1; referred to. 189 </s> |
<s>[INST] Summarize the following judgement: Appeals Nos. 384 and 385 of 1957.
Appeal by special leave from the Order dated November 28, 1952, of the Income tax Appellate 303 Tribunal (Calcutta Bench) in I.T.A. No. 4067 and E.P.T. Appeal No. 391 of 1951 52.
N. C. Chatterjee, B. Sen Gupta and B. P. Maheshwari, for the appellant.
K. N. Rajagopala Sastri, R. H. Dhebar and D. Gupta, for the respondents.
March 2.
The Judgment of the Court was delivered by KAPUR, J.
These two appeals pursuant to special leave are brought against two orders of the Incometax Appellate Tribunal (Calcutta Bench) dated November 28, 1952, passed in appeal No. 1.
T. A. 4067 of 1951 52 in respect of income tax assessment for the assessment year ending 31st March, 1944, and in appeal No. E. P. T. A. 391 of 1951 52 in respect of Excess Profits tax assessment of the appellant for the chargeable accounting period ending March 31, 1943.
The original assessee was R. B. Seth Teomal who was the manager of a Hindu undivided family.
On Seth Teomal 's death on May 30, 1944, Seth Ottanmal became the manager.
He is now the appellant representing the Hindu undivided family.
He will be termed as the appellant in these appeals.
Seth Teomal was carrying on the businesss of a railway contractor at Lalmonirhat in the district of Rangpur which is now in Pakistan.
In April 1943 a notice was served on him under section 22(2) of the Income tax Act (hereinafter called the Act).
He filed the return on February 28, 1944.
The Income tax Officer,Rangpur, served notices on him under sections 22(4) and 23(2) for production of books, etc.
It appears that assessment proceedings continued before the Income tax Officer Rangpur, but no final assessment was made.
According to an affidavit which has now been filed in this Court the Central Board of Revenue by an order passed under sub section
(2) of section 5 of the Act assigned the appellant 's case along with some other assessment cases to the Commissioner of Income tax (Central), Calcutta.
The order contains the following endorsements which give an indication of the reason for the case being assigned to the Commissioner of Income.
tax (Central): 304 " Copy forwarded to (1). . . . . . . . . . (2) Commissioner of Income tax (Central), Calcutta.
These cases are reported to have E. P. T. liabilities ".
Thus the appellant 's case which was before an incometax Officer within the area in charge of the Commissioner of Income tax, Bengal (Mofissil) was withdrawn from him and was assigned to the Commissioner of Income tax (Central), Calcutta.
On February 11, 1948, the Income tax Officer District N C (I. T. cum E.P.T.) to whom it appears the appellant 's assessment case was assigned issued notice again under sections 22(4) and 23(2) of the Act.
That officer after making the usual enquiries made the assessment order on March 15, 1948.
The order for Excess Profits Tax assessment was made on March 30,1948.
Against these orders two appeals were taken to the Appellate Assistant Commissioner on April 30, 1948.
In the appeal against income tax assessment the appellant inter alia raised the following two grounds in regard to the jurisdiction of the Income tax Officer, Calcutta: " 5.
For that the petitioner is not aware of any order passed for the transfer of the case from Rangpur to Calcutta and it is submitted that without such an order and communication of such order the assessment is challengeable for want of jurisdiction ".
For that the appellants challenge the jurisdiction as there was no proper order of transfer and the business was carried on outside Calcutta and assessments had never before been made in Calcutta".
But no such ground was taken in the appeal against Excess Profits Tax assessment.
The Appellate Assistant Commissioner dismissed both these appeals.
In regard to jurisdiction he held: " It however appears from records on band that the principal place of business of the concern was at Rangpur and as the income attracted E. P. T. liability the case was transferred to Calcutta under Orders of C. B. R.
Hence there is no substance in the contention of the learned Advocate which fails 305 The appellant then took two appeals to the Incometax Appellate Tribunal.
In the appeal against incometax assessment he took two objections in regard to jurisdiction : " For that the objection taken before the learned A. A. C. on jurisdiction should not have been summarily disposed of by passing reference to an order of transfer of the case from Rangpur to Calcutta without at the same time discussing when the question of jurisdiction was seriously raised and how and under what circumstances and to, whom was the case transferred and for what purpose " 2.
For that the appellant begs leave to repeat that transfer was not legal or proper and was not made by any proper authority to legalise such transfer ".
In the Excess Profits Tax appeal also this time an objection was taken as to jurisdiction : " For that the assessment is bad in law having been made without jurisdiction ".
The Appellate Tribunal held against the appellant in a short paragraph: " So far as the first objection is concerned, in our opinion, it is not within our jurisdiction to go into this matter.
The objection relates to the place of assessment.
As held in Brothers, & Co. Ltd vs Commissioner of Income tax, Bombay, Sind and Baluchistan, Federal Court) the question as to the proper place of assessment is not one for adjudication by a Court or by any Appellate Authority.
Consequently we overrule the first contention of the Assessee.
" The Tribunal thus held that as the objection related to the place of assessment the Tribunal was not competent to go into that question.
Upon this the appellant applied for a reference to be made under section 66(1) of the Act and prayed for five questions to be referred.
The two questions relating to jurisdiction were: (1)" Had the Income tax Officer (Non Companies Income tax cum Excess Profits Tax ' District, Calcutta, jurisdiction to make the assessment ? 39 306 (2)Was the Income tax Appellate Tribunal correct in the circumstances in holding that it has no jurisdiction to determine the competence of the Income tax Officer in making the assessment ?" In the " facts of the case " attached to the grounds of Appeal it was stated that the accounts were produced before the Income tax Officer, Calcutta, under protest because the jurisdiction of that officer was being challenged.
In reply to this the Commissioner after referring to Wallace Brothers ' case (1) stated that it did not appear from the assessment record that the assessee ever raised any objection to the jurisdiction of the Income tax Officer and if it had been taken the matter would have been referred by the Income tax Officer to the Commissioner as required by law.
This application under section 66(1) was dismissed on the ground that the question of jurisdiction could not arise out of the order of Tribunal and reliance was placed on Wallace Brothers ' case (1) and Seth Kanhaiyalal vs Commissioner of Income tax (2 ).
The appellant applied to the High Court under section 66 (2) of the Act and prayed for the following two questions and some others to be referred : (i)" Had the Income tax Officer (N. C. 1.
T. Cum E. P. T. District Calcutta) jurisdiction to make the assessment ? (ii)Was the Income tax Appellate Tribunal correct in the circumstances in holding that it had no jurisdiction to determine the competence of the Income tax Officer in making the assessment?" The High Court dismissed this application on July 23, 1954.
No appeal has been filed in this Court against the order of the High Court but an appeal has been filed against the order passed by the Income tax Appellate Tribunal.
On behalf of the Revenue a preliminary objection was taken that as no appeal had been filed against the order of the High Court that order had become final and this Court, therefore, should not entertain the appeal against the order of the Tribunal and reliance was placed on the observations of Venkatarama (1) ; (2) 307 Aiyar, J., in Govinda Rajulu Mudaliar vs Commissioner of Income tax (1).
At p. 810 it was observed: " The present appeal is against the decision of the Tribunal itself It is no doubt true that this Court has decided in Dhakeswari Cotton Mills Ltd. vs Commissioner of Income tax, West Bengal (2) that an appeal lies under article 136 of the Constitution of India to this court against a decision of the Appellate Tribunal under the Indian Income tax Act.
But seeing that in this case the appellant had moved the High Court and a decision has been pronounced adverse to him and this has become final, obviously it would not be open to him to question the correctness of the decision of the Tribunal on grounds which might have been taken in an appeal against the judgment of the High Court.
All the points urged before us were taken in the reference under section 66 (2) of the Indian Income tax Act.
It would therefore follow that these grounds are not open to the appellant".
But counsel for the appellant relied on Dhakeswari Cotton Mills Ltd. vs Commissioner of Income tax (2) where the scope of appeals under article 136 were set out by the learned Chief Justice.
In this case however it is not necessary to go into this question because in our opinion there is little substance in the appeal itself.
Counsel for the appellant has urged two grounds in support of his appeal: (1) that his place of business was Lalmonirhat and under section 64 (1) and (2) of the Act he was entitled to be assessed by the Income tax Officer of that area and (2) that assessment by the Income tax Officer of Calcutta was an illegal assumption of jurisdiction and therefore he was entitled to have the order of assessment quashed.
In order to decide these questions reference has to be made to the scheme.
of the Act.
The provisions relevant to the issue of jurisdiction are sections 5 and 64.
The former is headed " Income tax authorities " and the latter " Place of assessment ".
Assessment is made by the Income tax Officer under section 23 (3).
Against an order of assessment or the liability to be assessed an appeal (1) , 810.
(2) ; , 949.
308 lies under section 30 to the Appellate Assistant Commissioner and a further appeal to Income tax Appellate Tribunal under section 33 of the Act.
And then a reference can be made by the Tribunal to the High Court under section 66 (1) of the Act and if the Tribunal does not make such reference the High Court can under section 66 (2) be moved and it can then direct that such reference be made.
The heading of section 64 is " Place of assessment ".
Sub section (1) of section 64 provides that the assessee shall be assessed by the Income tax Officer of the area in which he carries on his business.
Sub section (2) lays down that in all other cases an assessee shall be assessed by the Income tax Officer of the area in which he resides.
Under these two sub sections therefore the appellant, because he was carrying on business at Lalmonirhat, had to be assessed by the Income tax Officer of that area, i.e., by the Income tax Officer of Rangpur.
Sub section (3) of that section provides that if a question as to the place of assessment arises, it is to be determined by the Commissioner of Income tax or by Central Board of Revenue according as the case may be.
Under the first proviso to this sub section before the question as to the place of assessment is determined the assessee has to have an opportunity of representing his views and under the second proviso the place of assessment cannot be called into question by the assessee if he has made a return in response to the notice under sub section
(1) of section 22 and has stated therein the principal place where he carries on his business or if he has not made such a return, the time specified in the notice has expired.
The third proviso to this subsection is: " Provided further that if the place of assessment is called in question by an assessee the Income Tax Officer shall, if Dot satisfied with the correctness of the claim, refer the matter for determination under this sub section before assessment is made ".
Thus under section 64(3) the question of determination as to the place of assessment only arises if an objection is taken by the assessee and the Income Tax Officer has any doubts as to the matter.
But the determination 309 is to be by the Commissioner of Income Tax or the Central Board of Revenue.
The Act does not 'contemplate any other authority.
It was contended on behalf of the assessee that he produced his accounts before the Income Tax Officer at Calcutta under protest.
There is no mention of this protest in the assessment file and that is what was stated by the Commissioner of Income Tax in his reply which he gave on March 3, 1953, before the Income tax Appellate Tribunal and which has been set out above.
If such an objection had been raised the question would have been referred by the Income tax Officer to the Commissioner as required under section 64(3).
That stage never arose because the objection does not seem to have been taken at the stage when it should have been taken, i.e., before the Income tax Officer, Calcutta.
But it is contended by counsel for the appellant that in the present case there is an illegal assumption of jurisdiction as the officer who made the assessment had no jurisdiction at all to make the assessment.
It was also contended that if the Central Board of Revenue wanted to transfer the assessment proceedings from the Income tax Officer, Rangpur, to the Income tax Officer at Calcutta, it could only exercise that jurisdiction by making an order under section 5(7A) and not under section 5(2) of the Act.
He relied on Taylor vs Taylor (1) where it was held that if a mode of exercise of power is laid down in the statute it has to be exercised in that way and no other.
He also relied on Nazir Ahmad vs The King Emperor (2).
He further contended that this was not a case which fell under section 5(2) of the Act.
Section 5(7A) gives to the Central Board of Revenue the power to transfer any case from one Income tax Officer to another which can be mad6 at any stage of the proceedings and does not necessitate the reissuing of a notice under section 22(2) if it had already been issued by the Income tax Officer from whom the case is transferred and in the explanation the word ' case ' in relation to any person whose name is specified in the order of transfer means (1) , 431 (2) (1936) L.R. 63 I.A. 372.
310 all proceedings under the Act which may be pending on the date of the transfer and includes all proceedings which may be commenced after the date of the transfer.
Section 5 although headed I Income tax authorities ' also gives to the Central Board of Revenue and the Commissioners of Income tax certain powers in regard to withdrawing of cases from one area into other and from one Income tax Officer to another.
Sub section (2) of this section gives power to the Central Government to appoint as many Commis sioner 's of Income tax as it thinks fit and they have to perform their functions in respect of different areas, persons and bases or classes thereof.
The relevant portion of the sub section is as follows: S.5(2) " The Central Government may appoint as many Commissioners of Income tax as it thinks fit and they shall perform their functions in respect of such areas or of such persons or classes of persons or of such incomes or classes of incomes or of such cases or classes of cases as the Central Board of Revenue may direct. . . ." In the present case there are more than one Commissioner of Income tax in Bengal and the Central Board of Revenue assigned certain cases including the case of the appellant to the Commissioner of Income tax (Central) at Calcutta for the exercise of his functions as Commissioner.
Now this is a power which the Central Board of Revenue did possess under sub section
(2) of section 5.
As to which Income tax Officer was to deal with that case was for the Commissioner of Incometax to designate.
Sub section 7A of section 5 confers on the Central Board of Revenue the power to transfer any case from one Income tax Officer to the other which can be done at any state of the proceedings.
This sub section is not a provision which in any way modifies or cuts down the power given to the Central Board of Revenue under section 5(2).
The two sub sections are complementary and operate in two separate spheres.
Sub section (2) is for the purpose of specifying as to which of the Commissioners would perform functions in respect of 311 different areas, persons, incomes or cases or classes thereof.
It was argued that section 7A is a special provision and it necessarily excludes the operation of sub section
(2) but as we have said above the two sections are not mutually exclusive.
They operate in two different spheres, their areas of operation are different and therefore the power which the Central Board of Revenue exercised in the present case cannot be said to be illegal .
It was not transferring the appellant 's case from the Income tax Officer, Rangpur, to the Income tax Officer, Calcutta.
It directed the Commissioner of Incometax (Central), Calcutta, to exercise his functions in respect of certain cases including the case of the appellant and that falls under section 5(2) and not under section 5(7A).
Reference was made to Pannalal Binjraj vs Union of India (1).
But that was a case in which the question raised was of constitutional validity of sub section
7A of section 5 and it was held that it was a measure of administrative convenience and was valid and neither infringed the fundamental rights under article 14 nor under article 19(1)(g).
There are no observations in that case which militate against the view that sub sections (2) & (7A) operate in different areas nor did that question arise in that case.
The contention there raised was that sub section
7A conferred arbitrary and uncontrolled powers of transfer and was discriminatory and violative of the provisions of article 14 and imposed an unreasonable restriction on the right to carry on trade or business in contravention of article 19 (1)(g).
Counsel referred to Bidi Supply Co. vs Union of India (2) But that case also does not deal, with the matter now before us.
The simple question to be decided is whether the Income tax Officer, Calcutta, could make the assessment in the appellant 's case.
The submission that there was illegal assumption of jurisdiction by the Income tax Officer of Calcutta is not well founded.
If the Central Board of Revenue had the power to direct the Commissioner of Incometax (Central), Calcutta, to exercise his functions in (1) ; , 266.
(2) ; 312 respect of several cases including the appellant 's mentioned in the order dated November 29, 1946, as indeed it had under section 5(2), then neither that order could be challenged nor the power of the Income tax Officer, Calcutta, to make the assessment.
After an order by the Central Board of Revenue under section 5(2) of the Act the provisions of sub sections
(1) and (2) of section 64 have no application because of sub section
(5a) of section 64 which is as follows : Sub section
5 " The provisions of sub section (1) and subsection (2) shall not apply and shall be deemed never at any time to have applied to any assessee (a)on whom an assessment or reassessment for the purposes of this Act has been, is being or is to be made in the course of any case in respect of which a Commissioner of Income tax appointed without reference to area under sub section (2) of section 5 is exercising the functions of a Commissioner of Income tax".
In view of this provision no objection can be taken on the ground of sub sections (1) and (2) of section 64.
Counsel for the appellant relied on a judgment of the Bombay High Court in Dayaldas Kushiram vs Commissioner of Income tax (Central) (1), where it was held that section 64 was intended to ensure that as far as practicable the assessee should be assessed locally, i. e., by the Income tax Officer of the area in which the assessee carries on business and there must, so far as the exigencies of the case allow, be some reasonable relation to the place where the assessee carries on business or resides.
In that case the assessee was carrying on business in C Ward and the proper officer under section 64 to assess him was the Income tax Officer of that Ward.
As a result of the coming into force of section 5(2) the Commissioner of Income tax (Central) was created without reference to the area.
The case of the assessee on whom the notice had been served but had not been assessed in due course assigned to the Commissioner of Income tax (Central) who designated an Income tax Officer for assessment of the assessee.
The assessee thereupon made an application under section 45 of (1)[1939] 313 the Specific Relief Act and prayed for direction to the Commissioner of Income tax (Central) and the Incometax Officer to whom his case had been assigned to forbear from continuing the proceedings on the grounds that the Income tax Officer had no jurisdiction having regard to section 64 of the Act.
It was held that the Income tax Officer was not the Income tax Officer of the area in which the assessee was carrying on business.
It was also held that in spite of the insertion of section 5(2) of the Act such assessment was without jurisdiction because there was no amendment of section 64.
As a result of this judgment Ordinance IX of 1939 was promulgated which subsequently was enacted as subs.
5 of section 64.
After the Ordinance the assessee Dayaldas Kushiram was assessed by the same Officer and after unsuccessful appeals to the Commissioner of Income tax and the Appellate Tribunal he made an application under section 66(1) on three questions: (1) Whether the order passed by the Commissioner of Incometax deciding the place of assessment of the assessee could be the subject matter of appeal to the Incometax Appellate Tribunal; (2) Whether the Tribunal had the power to entertain an appeal on the question as to the place of assessment of an assessee even in the absence of the order of Commissioner of Income tax and (3) whether the question ,as to the place of assessment is a question of law arising out of the order of the Appellate Tribunal.
It was held that the order of the Commissioner was made under section 5(2) and not under section 64(3) and as the Ordinance had retrospective effect these questions did not arise and that the assessment of the assessee was validly made by the Income tax Officer and the Ordinance removed the invalidity of the orders made prior to the passing of the Ordinance so far as they related to the assessee.
Beaumont, C. J., held that the Income tax Act did not determine the place of assessment but the officer who had to assess and that there could be no appeal under the Act against the order of the Commissioner as to the place of assessment, but only against the order of assessment of the Income tax Officer.
40 314 Counsel for the appellant also relied 'on the judgment of the Allahabad High Court in Dina Nath Hem Raj vs Commissioner of Income tax (1).
In that case the assessee was carrying on business at Calcutta and he was sought to be assessed at Kanpur and an objection was taken to the Income tax Officer, Kanpur, making the assessment.
The Income tax Officer did not proceed in accordance with section 64(3) and therefore it was held that assessment made by him was without jurisdiction.
In the present case no question has been raised as to the jurisdiction of the Income tax Officer who made the assessment and apart from that the order was made by the Central Board of Revenue under section 5(2) of the Act and section 64(5) becomes operative and sub sections
(1) and (2) of section 64 are inoperative.
See also Seth Kanhaiyalal vs Commissioner of Incometax (2).
The question then arises whether the objection as to the place of assessment, i. e., by the Income tax Officer of Calcutta could be challenged in appeal to the Appellate Assistant Commissioner and then before the Appellate Tribunal.
In our opinion it could not be.
The scheme of the Act shows that no appeal in regard to the objection to the place of assessment is contemplated under the Act.
Under section 64(3) of the Act a question as to the place of assessment, when it arises, is determined by the Commissioner.
Any such order cannot be made a ground of appeal to the Appellate Assistant Commissioner under section 30 of the Act which provides for appeals against orders of assessment and other orders enumerated in section 30 but no appeals is there provided against orders made under section 64(3).
Similarly appeals to the Appellate Tribunal which lie under section 33 of the Act also do not provide for any appeal on the question of the place of assessment.
In Wallace Brothers ' case (3) at p. 79 Spens, C. J., after referring to section 64(3) and the proviso thereto said: " These provisions clearly indicate that the matter is more one of administrative convenience than of (1) All. 616.
(2) (.3) 315 jurisdiction and in any event it is not one for adjudication by the Court. . .
This confirms us in the view that the scheme of the Act does not contemplate an objection as to the place of assessment being raised on an appeal against the assessment after the assessment has been made.
As we have already pointed out, the objection was not raised in the present case even before the Appellate Income tax Officer but only before the Appellate Tribunal ".
There is nothing in the Bidi Supply case (1) which in any way detracts from the efficacy of the decision of the Federal Court in Wallace Brothers ' case (2).
We have already said that Bidi Supply case (1) deals with the vires of section 5(7A).
In this view of the matter the question as to the place of assessment does not arise out of the order of the Income tax Appellate Tribunal and therefore no question of law could be referred nor could the High Court make such order under section 66(2).
In our opinion, the High Court rightly dismissed the appellant 's application for directing the case to be stated under section 66(2) of the Act.
The appeals therefore fail and are dismissed with costs.
In the circumstances of the case there will be only one set of costs.
Appeals dismissed. [/INST] The appellant was carrying on the business of a railway contractor in a place in the district of R.
In April 1943, the Income tax Officer of R which was under the charge of the Commissioner of Income tax, Bengal (Mufassil), served a notice under section 22(2) of the Indian Income tax Act, 1922, on the appellant who in pursuance of the notice filed the return on February 28, 1944.
The Income tax Officer then served notices on him under SS.
22(4) and 23(2) Of the Act for the production of books, etc., but before the final assessment was made, the Central Board of Revenue by an order passed under section 5(2) of the Act, transferred the appellant 's case along with some other assessment cases, to the Commissioner of Income tax (Central), Calcutta.
On February 11, 1948, the Income tax Officer, Calcutta, to whom the appellant 's case was assigned, issued notices again under SS.
22(4) and 23(2) of the Act and after making the usual enquiries made the assessment order on March 15, 1948.
The appellant 's appeals to the Appellate Assistant Commissioner and then to the Appellate Tribunal raising objections to the legality of the transfer of his case to Calcutta and to the jurisdiction of the Income tax Officer, Calcutta, were dismissed.
The Appellate Tribunal held that as the objection related to the place of assessment it was not competent for the Tribunal to go into that question.
The appellant then made an application to the Commissioner of Income tax for reference under section 66(1) of the Act, but this was dismissed on the ground that the assessee never raised any objection before the Income tax Officer to his jurisdiction and that, in any case, the question of jurisdiction could not arise out of the order of the Tribunal.
An application filed by the appellant to the High Court under section 66(2) of the Act was dismissed and though the order of dismissal was not taken up on appeal, the appellant filed an appeal to the Supreme Court against the order of the Appellate Tribunal.
It was contended for the appellant that under section 64(1) and (2) of the Act he was entitled to be assessed by the Income tax Officer of the area within which the place of his business was situate, that the 302 assessment by the Income tax Officer of Calcutta was illegal assumption of jurisdiction and that, in any case, the order of transfer by the Central Board of Revenue under section 5(2) of the Act was not valid because, if it wanted to transfer the assessment proceedings from the file of one Income tax Officer to another it could be done only under section 5(7A) and not under section 5(2).
Held : (1) Sub section (7A) of section 5 which confers on the Central Board of Revenue the power to transfer any case from one Income tax Officer to another is not a provision which in any way modifies or cuts down the power given to the Central Board of Revenue under sub section 2 of section 5 which enables it to specify as to which of the Commissioners would perform functions in respect of different areas, persons, incomes or cases or classes thereof.
The two sub sections are complementary and operate in two separate spheres.
Pannalal Binjraj vs Union of India, ; and Bidi Supply Co. vs Union of India, ; , distinguished.
In the present case, the Central Board of Revenue directed the Commissioner of Income tax (Central), Calcutta, to exercise his functions in respect of certain cases including the case of the appellant and that fell under section 5(2) and not under section 5(7A).
The order of transfer was, therefore, valid.
(2)The jurisdiction of the Income tax Officer, Calcutta, to make the assessment on the appellant cannot be challenged, in view of sub section 5(a) of section 64 of the Act, under which sub sections
(1) and (2) of section 64 have no application to an assessee in respect of whom anorder has been made by the Central Board of Revenue under S.5(2) of the Act.
(3) Objections as to the place of assessment cannot be raised in appeal either before the Appellate Assistant Commissioner or before the Appellate Tribunal.
Wallace Brothers & Co. Ltd. vs Commissioner of Income tax, Bombay, Sind and Baluchistan, and Seth Kanhaiyalal vs Commissioner of Income tax, [1936] 5 I.T.R. 739, relied on.
Dayaldas Kushiram vs Commissioner of Income tax (Central), and Dina Nath Hem Raj vs Commissioner of Income tax, All. 616, distinguished.
Consequently, as the question as to the place of assessment could not arise out of the order of the Appellate Tribunal no such question of law could be referred to the High Court. </s> |
<s>[INST] Summarize the following judgement: Civil Appeal No.655 of 1986.
From the Judgment and Order dated 23.4.1984 of the Delhi High Court in Letters Patent Appeal No.25 of 1984.
M.K.Ramamurthy, Ms section Pappuh, B.P.Singh, Rishi Kesh, Raj Birbal, Sanjeev Sabharwal, B.R.Sabharwal and M.M. Kashyap for the appearing parties.
S.S.Harlakha appeared in person.
S.S.Onkarmal appeared in person for the Intervener.
The Judgment of the Court was Delivered by K. Ramaswamy, J.
In this appeal by special leave, by way of additional grounds with leave, the appellant impugnes Rule 5 of the Orissa Insurance Co operative Society Ltd. Service Rules (for short "the Rules") as unconstitutional and void offending Article 14 of the Constitution of India.
The material facts relevant to the point are that while the appellant was working as Divisional Manager at Delhi, the general insurance business was nationalised and its management was taken over by the Central Government under General Insurance (Emergency Provisions) Ordinance, 1971 replaced by Act 57 of 1972 (for short "the Act") and vested in the custodian of the New India Assurance Co. Ltd., the management of Orissa Insurance Co operative Society Ltd.
By operation of s.7 of the Act, the services of the appellant and others stood transferred and vested with the custodian.
Under the Act, the Board of Directors was empowered to terminate the service of the officer/employee of the insurer.
The appellant was kept under suspension from August 9,1973 pending investigation into the embezzlement, Explanation was called for on October 16, 1973.
in response thereto the appellant submitted his reply on december 7, 1974.
While dropping the 223 proceeding, the appellant was served with termination order dated April 17,1975 issued by the respondent.
The appellant challenged it in a writ petition in Delhi High Court which was dismissed by a learned Single Judge on November 11, 1983 and was confirmed by the Division Bench in Letter Patent Appeal No.351/1984 dated April 23, 1984.
Section 7 of the Act provides that every whole time officer or other employee of an existing insurer employed in connection with his General Insurance business, immediately before the appointed day, shall become an officer/employee of the Indian Insurance Co. in which the undertaking of the insurer to which the service of the officer relates has vested and would hold his office on the same terms and conditions and with the same rights to pension, gratuity and other matters as would have been admissible to him, if there had been no such vesting and shall continue to do so unless and until his appointment is terminated.
Section 16(1) in Chapter V provides that if the Central Govt.
is of the opinion that for the more efficient carrying on of General Insurance business, it is necessary to do so, it may by notification, frame one or more schemes providing for all or any of the following matter; (e) the rationalisation or revision of pay scales and other terms and conditions of service of officers and other employees wherever necessary.
Pursuant thereto, the central Govt.
framed the New India Assurance Co. Ltd Merger Scheme, 1973 with effect from December 31, 1973.
Thereunder by Rule 3, the undertaking was transferred to the respondent; under Rule 5 the existing whole time officer etc.
became the officer of the transferee company (New Indian Assurance Co. Ltd) and could hold his office on the same terms and conditions as would have been admissible to him if there had been no such transfer, as referred to in paragraph 3.
He shall continue to remain an officer unless and until his employment, in the transferee company is terminated or the terms and conditions are duly altered by any other scheme framed under the Act.
By notification dated April 29, 1976 the Central Govt.
also framed the scheme called the General Insurance (Rationalisation of pay scales and other Conditions of Service of Development Step) Scheme, 1976 which came into force on May 1, 1976, the details of which are not material for the reason that service of the appellant was terminated , in terms of the existing rule 5 of the Rules.
Suffice to state that pursuant to the nationalisation under the Act and Scheme, the appellant became the officer of the respondent.
Rule 5 read thus: Termination of Service: 224 "An employee whether permanent or temporary shall not leave or discontinue his service in the Society without first giving 30 days notice in writing of his intention to do so, to the Principal Officer, Failure to do so will entail forfeiture of the pay of the month.
In the event of the Society not having any further need of any employee 's service whether permanent or temporary, which shall be decided by the Board, the Principal Officer shall give 30 days ' notice in writing for termination of his service or in lieu thereof pay such employee a sum equivalent to his one month pay including allowance upto the termination of the period of notice by way of compensation provided that nothing in these rules shall affect the rights of the society to dismiss an employee under Rule 8 for misconduct etc.
without any notice or salary in lieu of notice, in the manner prescribed in these rules.
An employee shall ordinarily retire from the Society 's services on completion of his 55th year unless the Board reserves to continue him in office of such period as may be determined from time to time.
" It is thus manifest that an employee, whether permanent or temporary, has an option to leave or discontinue by giving 30 days ' notice in writing of his intention to do so.
His failure thereof shall entail forfeiture of the pay of the month.
The employee ordinarily would be superannuated on completion of his 55th year unless the Board continues him for an extended period as may be determined from time to time.
Equally in the event of the Society not having any further need of the employee 's service, whether permanent or temporary, which should be decided by the Board, the Principal Officer shall give 30 days ' notice in writing for termination of his service or in lieu thereof, pay one month 's salary including allowances upto the period of termination.
The respondent also has the right to dismiss an employee, under Rule 8, for misconduct in the manner prescribed in the Rules.
Admittedly, though action was initiated against the appellant for the charges of embezzlement etc.
which are misconduct, the charges were dropped.
Taking aid of Rule 5 and without conducting an enquiry or giving an opportunity, the appellant 's service was terminated by tendering one month 's salary in lieu of notice and also a direction to pay all the allowances upto that date including the period of his suspension.
It is not necessary to go into the grounds taken in the High Court assailing the invalidity of the termination order as they are not pressed before us.
Sri Ramamurthy, the learned Senior counsel for the appellant placing reliance on the ratio of the majority view in D.T.C. vs D.T.C Mazdoor Congress & Ors., 225 Judgment today contended that Rule 5 is ultra vires of Article 14 of the Constitution.
Shyamala Pappu, the learned Senior counsel for the respondent contended that unlike Rule 9 in D.T.C 's case Rule 5 provides guidelines.
The Board of Directors have to take a decision, whether the need to continue the employee 's service subsists which would be based on the relevant material.
Thereby, there would be objective consideration before taking a decision, not only regarding the need to continue the post but also the services of the officer or the employee.
Though the rule does not provide for prior notice, post decisional opportunity would be read into the rule.
If so read, the rule is not ultra vires Article 14.
In our view the ratio in D.T.C. 's case has no application.
Rule 9 of the rules of Delhi Transport Corporation Service Regulation gives naked power to terminate the services of a permanent employee by giving one month 's notice or pay in lieu thereof.
It was not the contention therein, that the rule was capable of two constructions.
It is settled law that there is a presumption of constitutionality of the rule.
The court ought not to interpret the statutory provisions, unless compelled by their language, in such a manner as would involve its unconstitutionality, Since the legislature of the rule making authority is presumed to enact a law which does not contravene or violate the constitutional provisions.
Therefore, there is a presumption in favour of constitutionality of a legislation or statutory rule unless ex facie it violates the fundamental rights guaranteed under Part III of the constitution.
If the provisions of law or the rule is construed in such a way as would make it consistent with the constitution and another interpretation would render the provision or the rule unconstitutional, the court would lean in favour of the former construction.
In view of this settled legal position, the question emerges whether the language in Rule 5 would be capable to be construed consistent with the fundamental rights in Part III.
As stated earlier, the phrase "in the event of the Society not having any further need of any employee 's service whether permanent or temporary which shall be decided by the Board" is susceptible of two interpretations.
The one interpretation put up by Sri Ramamurty is that the Board may unilaterally and arbitrarily decide that there is no need for the services of a particular employee, in given facts and circumstances, though the post which the employee is occupying may continue and would be put to an end by giving one month 's notice or pay in lieu thereof.
In that event the rule per se is arbitrary offending Article 14.
The other view capable to be construed from the language employed would be that the Board of Management may form an objective opinion, on the basis of the material, that the post which the officer or the employee is occupying no longer is in need.
Thereby, the post would be abolished.
This would be a policy decision depending on the exigencies.
In consequences the service of the employee also would become 226 redundant or surplus.
In that event his service would no longer be needed.
The officer or employee may be permanent or temporary but the absence of the need for the continuance of the post would necessitate to terminate the service of an employee or officer.
It must not be a pretext or a rouse to get rid of the service of an inconvenient officer or of an employee.
If that be so.
it would become colourable exercise of power and would be liable to be quashed as offending Article 14.
Once the Board reaches a decision to abolish the post, in consequence the service of the officer/ employee occupying couched in Rule 5 also is capable of that interpretation.
In that light we are of the opinion that Rule 5 does not become arbitrary.
unreasonable or void offending Article 14.
Accordingly, we hold that the rule is valid.
But from the facts, it is clear that the Board of Management did not abolish the post but put an end to the service of the appellant.
Obviously due to loss of confidence as his honesty and integrity became suspicious and his continuance in service was felt inexpedient and not in the interest of the business of the respondents.
But Rule 8 was available for taking action for misconduct but was not availed.
Therefore, the impugned order terminating the services of the appellant is illegal.
What would be the consequence? Normally the appellant is entitled to reinstatement but in our view the ends of justice would be met by directing the respondent to pay him Rs. 1,00,000 as compensation, instead of reinstatement and further continuance in service.
The compensation awarded would be staggered between the year 1973 till date for the purpose of income tax and given the appropriate relief.
In this view it is not necessary to deal with other contentions or decisions cited across the bar.
Before parting with the case it is necessary to mention that march of service jurisprudence necessitates the respondent to recast the rules in tune with the constitution and the law.
The appeal is allowed but without cost.
The intervention application filed by Sri S.S. Onkarmal Harlalka is dismissed.
S.B. Appeal allowed. [/INST] While the appellant was working as Divisional Manager at Delhi, the general insurance business was nationalised and its management was taken over by the Central Government under General Insurance (Emergency Provisions) Ordinance, 1971 which was replaced by Act 57 of 1972 and vested in the Custodian of the New India Assurance Co. Ltd. the management of Orissa Insurance Co operative Society Ltd. By operation of Section 7 of the Act the services of the appellant and others stood transferred and vested with the custodian.
The appellant was kept under suspension from August 9,1973 pending investigation into charges of embezzlement.
Explanation was called for on October 16,1973 and the appellant submitted his reply on December 7, 1974, While dropping the proceeding, the appellant was served with a termination order dated april 17, 1975 issued by the respondent.
The appellant challenged the aforesaid termination order in a writ petition in Delhi High Court which was dismissed by a Single Judge on November 11,1983 and this judgment was confirmed by the division Bench in a Letter Patent Appeal.
In the appeal to this Court it was contended on behalf of the 221 appellant placing reliance on the majority view in D.T.C vs D.T.C Mazdoor Congress & Ors.
judgment Today 1990(3) SC 725 that Rule 5 of the Orissa Insurance Co operative Ltd. services Rules is ultra vires of Article 14 of the Constitution.
On behalf of the respondent it was contended that unlike Rule 9 involved in D.T.C 's case, Rule 5 in the instant case provided guidelines, and that the Board of Directors had to take a decision, whether the need to continue the employee 's service subsists which would be based on relevant material and thus there would be objective consideration before taking a decision, not only regarding the need to continue the post but also the services of the Officer or the employee, and if so construed the rule is not ultra vires of article 14.
Allowing the appeal, this Court, HELD: Rule 5 of the Orissa Insurance Co operative Society Ltd. is capable of the interpretation that the Board of management may form an objective opinion, on the basis of material, that the post which the officer or the employee is occupying is no longer in need and that the post would be abolished.
This would be a policy decision depending on the exigencies.
Once the Board reaches such a decision to abolish the post, in consequence the service of the officer/employee occupying the post could be terminated.
Viewed in that light the said rule does not become arbitrary, unreasonable or void offending Article 14 and therefore the rule is valid.
[225G 226 B] There is a presumption in favour of constitutionality of a legislation or statutory rule unless ex facie it violates the fundamental rights guaranteed under Part III of the constitution.
If the provisions of a law or the rule is construed in such a way as would make it consistent with the Constitution and another interpretation would render the provision or the rule unconstitutional, the Court would lean in favour of the former construction.
[225 E] It is clear in the instant case, that the Board of Management did not abolish the post but put an end to the service of the appellant, obviously due to loss of confidence as his honesty and integrity became suspicious and his continuance in service was felt inexpedient and not in the interest of the business of the respondents.
But rule 8 was available for taking action for misconduct but was not availed.
Therefore, the order terminating the services of the appellant is illegal.
[226 C] 222 Normally the appellant is entitled to reinstatement but the ends of justice would be met by directing the respondents to pay him Rs. 1,00,000 as compensation, instead of reinstatement and further continuance in service.
The compensation awarded would be staggered between the year 1973 till date for the purpose of income tax and given the appropriate relief.
[226D E] March of service jurisprudence necessitates that the respondent recast Rule 5 in tune with the Constitution and the law.
[226 E] </s> |
<s>[INST] Summarize the following judgement: Civil Appeal No. 378 of 1992.
From the Judgment dated 31.7.1991 of the Karnataka High Court in Writ Appeal No. 1224 of 1990.
Santosh N. Hegde and P.Mahale for the Appellants.
A.K. Subbiah, Ranji Thomas, K.V. Mohan, M Veerappa and K.H. Nobin Singh for the Respondents.
290 The Judgment of the Court was delivered by AHMADI, J.
Special leave granted.
This appeal is directed against the judgment of the High Court of Karnataka dated 31 st July, 1991, whereby the Division Bench allowed the Writ Appeal setting aside the decision of the learned Single Judge and held, relying on the judgment in Writ Appeal No. 2564 of 1987 decided on 28th May, 1991, that Section 4 (2) of the Karnataka Zila Parishads, Taluk, Panchayat Samithis, Mandal Panchayats and Nyaya Panchayats Act, 1983 (hereinafter referred to as `the Act ') does not confer any power in the Deputy Commissioner to change the headquarter of any Mandal.
It is this view taken by the Division Bench of the High Court that is put in issue in the present appeal.
For the purpose of disposal of this appeal we may notice a few relevant facts.
The Act came into force w.e.f. 14 'th August, 1984.
Thereafter, on 16th January, 1986 a notification was issued by the Deputy Commissioner in exercise of power conferred by Section 4 (1) of the Act constituting a Mandal, named Mudiyannur Mandal, and located its headquarter at Mudiyannur.
However, the Divisional Commissioner changed the headquarter to Uthanpur while exercising power under Section 4 (3) of the Act.
Thereupon a writ petition was filed on 14th December, 1987, being Writ Petition No. 7685/86, challenging the said decision of the Divisional Commissioner.
That Writ petition was dismissed by the High Court observing: if the Mandal so desires it may pass a resolution to change the headquarter from the existing place to another place whereupon it will be open to the Deputy Commissioner to consider if he would like to exercise power under Section 4 (2) of the Act.
Pursuant thereto a fresh resolution was passed whereupon the Deputy Commissioner issued a notification under Section 4 (2) of the Act for change of headquarter which was published in the Government Gazette of 20th January, 1988.
On the issuance of the said draft notification respondents Nos. 1 to 10 filed a writ petition, being Writ Petition No. 1888/88, challenging the said draft notification.
That writ petition was also dismissed by the High Court.
The Deputy Commissioner after considering the resolution of the Mandal and the objections received in response to the draft notification from respondents Nos 1 to 10 passed an order declaring Mudiyannur as the headquarter of the Mandal.
To give effect to his decision, a notification under Section 4 (2) of the Act was issued on 23rd July, 1988 whereby the headquarter was changed from Uthanpur to Mudiyannur.
Once again the respondent Nos 1 to 10 challenged that notification by a revision application filed under Section 4 (3) 291 of the Act.
The Divisional Commissioner exercising power under the said provision dismissed the revision application whereupon a Writ Petition no 77 of 1989 was taken to the High Court.
A learned Single Judge of the High Court dismissed the writ petition.
An appeal was carried to the Division Bench of the High Court.
the Division Bench allowed the appeal by the impugned judgment dated 31 st July, 1991 following an earlier decision in Writ Appeal No. 2564 of 1987 rendered on 28th May, 1991.
It is the correctness of this decision which we are called upon to examine.
Section 4 (1) as it stood before its amendment on 4th October, 1985 empowered the Deputy Commissioner to declare any area comprising a village or group of village having the required population to be a Mandal for the purposes of the Act.
That sub section did not carry a provision empowering the Deputy Commissioner to specify the headquarter of the Mandal.
By the amendment brought about in that provision by Act 3 of 1986 w.e.f. 4th October, 1985, this power was specifically conferred on the Deputy Commissioner.
The amended Section 4 (1) reads as under : "(1) Subject to the general or special orders of the Government, the Deputy Commissioner, if in his opinion, it is expedient to declare any area comprising a village or group of village having a population of not less than eight thousand and not more than twelve thousand to be a Mandal, may, after previous publication, declare such area as a Mandal for the purposes of this Act and also specify its headquarter.
" On a plain reading of this provision, it becomes obvious that the Deputy Commissioner was empowered not only to declare a village or group of villages as a Mandal but also to specify its headquarter.
We then come to sub section (2) which empowers the Deputy Commissioner, at the request of the Mandal concerned, or otherwise, to increase or decrease the area of any Mandal, by including within or excluding from such Mandal any village or group of villages or alter the name of any Mandal or declare that any area shall cease to be a Mandal after previous publication of the proposal by a notification in the Gazette.
This sub section confers power on the Deputy Commissioner to increase or diminish the area of any Mandal and to alter the name of any such Mandal but it does not in so many words confer power to specify the headquarter of such reconstituted Mandal.
Sub section (3) of section 4 empowers the Commissioner either on an application made within thirty days from the date of the notification by an aggrieved party or in exercise of suo moto power after giving a reasonable opportunity of being heard to the applicant or the Mandals 292 concerned, revise the orders of the Deputy Commissioner passed under sub section (1) or sub section (2), as the case may be, and may also, if he considers necessary, modify it as provided in the third proviso to subsection (1) Every order so passed revising or modifying the order of the Deputy Commissioner shall be published in the Official Gazette.
We are not concerned with the third proviso to sub section 4.
Sub section (1) of Section 4, therefore, empowers the Deputy Commissioner to declare any village or group of villages as a Mandal and to specify its headquarter.
After the constitution of the Mandal and on the headquarter being specified under this sub section, if any change, is to be effected in the area of the Mandal either by increasing or reducing its size, the power has to be exercised under sub section (2) of Section 4 of the Act.
That sub section also empowers the Deputy Commissioner to alter the name of the Mandal.
It was submitted by the counsels for the respondents that while this sub section in terms empowers the Deputy Commissioner to alter the name of the Mandal, it does not empower him to alter the headquarter of the Mandal because the headquarter once specified under sub section (1) of Section 4 must remain unaltered since the Act designedly does not confer any power on any authority whatsoever to change the headquarter once specified under sub section (1) of Section 4.
This submission was countered by the learned counsel for the appellant by inviting our attention to Section 14 of the Karnataka (hereinafter called `the '.
that provision reads as under: "Where by any Mysore or Karnataka Act made after the commencement of this Act, any power is conferred then that power may be exercised from time to time as occasion requires.
" Counsel for the appellant submitted that once the power to specify the headquarter is conferred on the Deputy Commissioner by sub section (1) of Section 4 of the Act it can be exercised from time to time by virtue of the said Section 14 if the occasion so requires.
He, therefore submitted that this Court should construe the scheme of Section 4 of the Act with the aid of Section 14 in such a manner as not to leave a vacuum for the exercise of power if need arises for a change of headquarter.
He submitted that if, the view taken by the High Court is approved, a situation may arise when even after a change takes place in the size of the Mandal area there would be no power vested in any authority whatsoever for changing of specifying the headquarter of the reconstituted Mandal which vacuum may lead to avoidable complications.
He, therefore, submitted that once the legislature has invested the Deputy Commissioner with the power to 293 specify the headquarter under sub section (1) of Section 4, subject to the modification which the Commissioner may choose to make under sub section (3) of Section 4, the power to alter the headquarter of a Mandal from time to time if the occasion so requires must be read into it.
We think there is a considerable force in this submission.
As pointed out earlier, Section 4(1) empowers the Deputy Commissioner to do two things, namely, (i) to declare an area as a Mandal, and (ii) to specify its headquarter.
The word `also ' preceding the words `specify its headquarter ' cannot be understood to convey that the power once exercised would stand exhausted.
Such a construction sought to be placed by counsel for the respondent does not accord with the language of the provision.
It merely conveys that when the Deputy Commissioner constitutes a Mandal for the first time it will be necessary for him to specify its headquarter also.
This power to specify the headquarter conferred on the Deputy Commissioner can be exercised from time to time as occasion requires by virtue of Section 14 of the .
The attention of the High Court was not drawn to the provision in Section 14 when it disposed of the Writ Appeal No. 2564 of 1987 and Writ Petition No 375 of 1989 on 28 th May, 1991.
It is true that the power conferred by sub section (2) of Section 4 can be exercised where there is a change in the area of the Mandal either by addition or reduction in the area.
Under clause (c) of sub section (2) of Section 4 the Deputy Commissioner is also invested with the power to alter the name of any Mandal.
The scheme of subsection (2) would, therefore, show that when there is any increase or decrease in the area of any Mandal, the Deputy Commissioner may, after the previous publication of the proposal by notification, exercise that power and rename the Mandal, if so required.
The absence of the power in sub section (2) of section 4 to specify the headquarter afresh does not necessarily mean that once the initial constitution of the Mandal takes place and the headquarter is specified the power is exhausted, notwithstanding section 14 of the .
If such an interpretation is placed on the scheme of section 4 of the Act neither the Deputy Commissioner nor any other authority will thereafter be able to alter and specify any other place as the Mandal 's headquarter.
Such a view would create a vacuum and even when a genuine need for specifying any other headquarter arises, the authorities will not be able to exercise power for want of a specific provision in the Act and that may lead to avoidable hardship and complications.
It is, therefore, essential that we read the provision of the Act in a manner so as to ensure that such a vacuum does not arise and the power is retained in the concerned authority which can be exercised should a genuine need arise.
In J.R. Raghupathy & Ors.
vs State of A.P. others; , this Court observed that the ultimate decision as 294 to the place or location of Mandal headquarter is left to the Government to decide and conferment of discretion upon the concerned authority in that behalf must necessarily leave the choice to the discretion of the said authority and it would not be proper for the courts to interfere with the discretion so exercised.
This is not to say that the discretion can be exercised in an arbitrary or whimsical manner without proper application of mind or for ulterior or malafide purpose.
If it is shown that the discretion was so exercised it would certainly be open to the Courts to interfere with the discretion but not otherwise.
We are, therefore, of the opinion that if the situation so demands and there is justification for altering the place of headquarter, it would be open to the Deputy Commissioner to exercise power under Section 4(1) of the Act read with section 14 of the to meet the situation.
We, therefore, allow this appeal, set aside the impugned order of the Division Bench of the High court and restore the order of the learned Single Judge directing that the writ petition, which gave rise to the writ appeal, shall stand dismissed.
However, in the facts and circumstances of the case there will be no order as to costs.
V.P.R. Appeal allowed. [/INST] On 16.1.1986, the Deputy Commissioner issued a notification constituting a Mandal under section 4 (1) of the Karnataka Zila Parishads, Taluk Panchayat Samithis, Mandal Panchayats and Nyaya Panchayats Act, 1983 and located the headquarter of the Mandal at Mudiyannur.
Later on exercising powers under section 4 (3) of the Act he changed the headquarter to Uthanpur.
On 14.12.1987 a writ petition (W.P.No. 7685/86) was filed challenging the decision of the Deputy Commissioner.
The High Court dismissed the petition holding that on passing a resolution my Mandal to change the headquarter from the existing place to another place, the Deputy Commissioner was to consider if he would like to exercise power under section 4(2) of the Act.
The Mandal passed a fresh resolution and thereupon the Deputy Commissioner issued a notification under section 4 (2) of the Act for change of headquarter and on 20.1.1988 the draft notification was published in the Gazette.
The respondents 1 to 10 filed a writ petition (W.P. No 1888/88) 287 before the High Court challenging the draft notification.
The writ petition was dismissed.
Considering the resolution and the objections to the notification, the Deputy Commissioner issued another notification under section 4 (2) of the Act and the headquarter of the Mandal was changed from Uthanpur to Mudiyannur.
The respondents challenged the notification by filing a revision application under section 4 (3) of the Act which was dismissed by the Divisional Commissioner.
The respondents moved the High Court in W.P. No. 77 of 1989 challenging the order of the Deputy Commissioner.
The Single Judge of the High Court dismissed the petition, against which an appeal was filed before the Division Bench of the High Court.
The Division Bench allowed the appeal following an earlier decision of the High Court in Writ Application No. 2564 of 1987 dated 28.5.1991.
The correctness of the decision of the Division Bench of the High Court was challenged in this appeal by special leave.
The appellant contended that once the power to specify the headquarter was conferred on the Deputy Commissioner by Section 4 (1) of the Act, it could be exercised from time to time by virtue of section 14 of the Karnataka General Clauses Act,1897; that the scheme of section 4 of the Act should be construed with the aid of section 14 of the General Clauses Act in such a manner as not to leave a vacuum for the exercise of power for a change of headquarter; that if the High Court 's view was approved, there could be no power vested in any authority whatsoever for changing or specifying the headquarter of the reconstituted Mandal which vacuum might lead to avoidable complications; and that once the legislature invested the Deputy Commissioner with the power to specify the headquarter under section 4 (1), subject to the modification by the Commissioner under section 4 (3), the power to alter the headquarter of the Mandal from time to time, if the occasion so required, must be read into it.
288 The respondents submitted that while sub section (2) of Section 4 of the Act in terms empowered the Deputy Commissioner to alter the headquarter of the Mandal because the headquarter once specified under section 4(1) should remain unaltered; that the act designedly did not confer any power on any authority whatsoever to change the headquarter once specified under section 4 (1).
Allowing the appeal, this Court, HELD : 1.01 Section 4 (1) empowers the Deputy Commissioner to do two things, namely (i) to declare an area as a Mandal, and (ii) to specify its headquarter.
[293 B] 1.02 The power conferred by sub section (2) of Section 4 of the Karnataka Zila Parishads, Taluk Panchayat Samithis, Mandal Panchayats and Nyaya Panchayats Act, 1983 can be exercised where there is a change in the areas of the Mandal either by addition or reduction in the area.
Under clause (c) of sub section (2) of Section 4, the Deputy Commissioner is also invested with the power to alter the name of any Mandal.
[293 D E] 1.0 The scheme of sub section (2) of Section 4 would show that when there is any increase or decrease in the area of any Mandal, the Deputy Commissioner may, after the previous publication of the proposal by notification, exercise that power and rename the Mandal, if so required.
[293 E] 1.04 If the situation so demands and there is justification for altering the place of headquarter, it would be open to the Deputy Commissioner to exercise power under section 4 (1) of the Act read with Section 14 of the General Clauses Act to meet the situation.
[294 C] 1.05 The word `also ' preceding the words `specify its headquarter ' cannot be understood to convey that the power once exercised would stand exhausted.
Such a construction sought to be placed by counsel for the respondent does not accord with the language of the provision.
It merely conveys that when the Deputy Commissioner constitutes a Mandal for the first time it will be necessary for him to specify its headquarter also.
[293 B C] 1.06 The power to specify the headquarter conferred on the Deputy Commissioner can be exercised from time to time as occasion 289 requires by virtue of section 14 of the General Clauses Act.
[293 C D] 1.07 The ultimate decision as to the place or location of Mandal headquarter is left to the Government to decide and conferment of discretion upon the concerned authority in that behalf must necessarily leave the choice to the discretion of the authority and it would not be proper for the courts to interfere with the discretion so exercised.
This is not to say that the discretion can be exercised in an arbitrary or whimsical manner without proper application of mind or for ulterior or malafide purpose.
If it is shown that the discretion was so exercised it would certainly be open to the courts to interfere with the discretion but not otherwise.
[293 H; 294 A B] 2.
The absence of the power in sub section (2) of Section 4 to specify the headquarter afresh does not necessarily mean that once the initial constitution of the Mandal takes place and the headquarter is specified, the power is exhausted, notwithstanding section 14 of the General Clauses Act.
If such an interpretation is placed on the scheme of section 4 of the Act neither the Deputy Commissioner nor any other authority will thereafter be able to alter and specify any other place as the Mandal 's headquarter.
Such a view would create a vacuum and even when a genuine need for specifying any other headquarter arises, the authorities will not be able to exercise power for want of a specific provision in the Act and that may lead to avoidable hardship and complications.
It is, therefore, essential that the provision of the Act be read in a manner so as to ensure that such a vacuum does not arise and the power is retained in the concerned authority which can be exercised should a genuine need arise.
[293 F H] J.R. Raghupaty & Ors.
vs State of A.P. & Ors.
, ; , referred to. </s> |
<s>[INST] Summarize the following judgement: Civil Appeal No. 4134 of 1991.
From the Judgment and Order dated 30.8.1991 of the Bombay High Court in Writ Petition No 3580 of 1991.
J.P.Pathak and P.H. Parekh for the Appellants.
A.M. Khanwilkar and S.K. Parshankar for the Respondents.
The Judgment of the Court was delivered by 229 KASLIWAL, J.
This appeal by grant of special leave is directed against the judgment of the Bombay High Court dated 30th August, 1991 in a suit for possession under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as the Act).
The suit was dismissed by the 7th Additional Small Causes Judge.
On appeal the learned 10th Additional District Judge, Pune by Judgment dated 25.4.1991 set aside the order of the trial court and decreed the plaintiff 's suit for possession.
The tenants filed the writ petition in the High Court challenging the order of the Additional District Judge, But the same was dismissed and the decree for possession passed by the Additional District Judge was affirmed.
The trial court held that the service of notice dated 7.8.1980 on the defendant tenants was not held proved.
The plaintiffs were unable to prove that the postal acknowledgement Exhibit 51 Contained the signatures of defendant no 2 or 3.
It was held that on the point of service of notice the case of the plaintiff was rather confusing and not clear.
It was held that even assuming that the notice had been served yet the case did not fall under Section 12(3) (a) of the Act.
The trial court also held that the case did not fall under Section 12(3) (b) of the Act as the defendants had paid Rs. 55,800 on 16.1.1984 and thereafter made regular payment of Rs. 600 every month.
According to the learned trial court the issues were framed on 26.8.1985 and before that the defendants had made full payment as demanded in the notice and as such no decree can be passed under Section 12(3)(b) of the Act.
Learned Additional District Judge reversed the above finding of the trial court and held that the evidence of the plaintiff showed that the copy of the notice was sent to all the defendants by registered post.
The postal receipts have been filed as exhibits 52, 53 and 54.
Learned Additional District Judge further held that when the notices are sent by registered post it is presumed to have been served and mere denial by the tenants had no value, unless they proved some extraordinary happenings or events which prevented following of usual course of business.
Learned Additional District Judge further held that the notice was sent on the address given in the plaint and it was admitted by the defendant in his statement that it contained the correct address.
A presumption of service of notice was drawn under Section 27 of the General Clauses Act and Section 114 of the Evidence Act.
Learned additional District Judge though affirmed the finding of the trial court that the case is not covered under section 12(3)(a) of the Act, but the plaintiffs were entitled to a decree under Section 12(3) (B) of the Act.
In this regard learned Additional District Judge recorded the finding that the entire arrears of rent amounted to Rs. 71,088 but the defendant tenant only 230 deposited Rs 66.000 till the first date of hearing and thus remained in arrears of Rs. 5,088.
It was also held that the provisions of 12(3)(b) of the Act are mandatory provisions and those are required to be strictly complied with by the tenants during the pendency of the suit and also appeal when the landlord claims possession of the suit premises on the ground of Section 12(3)(b) of Act.
The defendant tenant did not deposit the entire arrears on the first date of hearing and did not deposit the further rent during the pendency of the appeal.
Thus the defendant persistently committed defaults during the pendency of the suit and also the appeal in paying the rent.
We have heard learned counsel for the parties and have thoroughly gone through the record.
It is important to note that M/s Kulkarni Patterns Pvt. Ltd/. (defendant No.1) Was the tenant, defendant No 2 Shri D G. Kulkarni was the Chairman of the company and defendant No 3 Mrs M.D. Kulkarni was the wife of defendant No 2 and Director of defendant No 1.
The plaintiffs sent a notice dated 7.8.1980 to all the defendants vide postal receipts Exhibit 52,53 and 54.
Exhibit 51 is only one acknowledgement receipt which has been produced on record.
It has been contended on behalf of the appellants that the learned Additional District Judge was wrong in drawing presumption of service of service of notice in the facts of the present case.
It was submitted that the plaintiff initially stated that the acknowledgement receipt Exhibit 51 contained the signatures of defendant NO.3, but subsequently admitted that it contained the signature of defendant No. 2.
It was further argued that defendant No.2.
had appeared in the witness box and clearly denied his signatures on Exhibit 51.
It was thus contended that the presumption of service of notice was rebutted and thereafter the burden lay on the plaintiffs to prove the service of notice by examining the postman or by other evidence and the plaintiffs having failed to do so, the service of notice having not established, the suit was liable to be dismissed.
Reliance in support of the above contention was placed on a decision of this Court to which one of us was a party in Green view Radio Service vs Laxmibai Ramji And Another.
, Reliance was placed on the following observations made in the above case.
"In this connection, we may also point out that the provisions of section 106 of the Transfer of Property Act require that notice to quit has to be sent either by post to the party or be tendered or delivered personally to such party or to one of his family members or servants at his residence or if such tender or delivery is not practicable, affixed to a conspicuous part of the 231 property.
The service is complete when the notice is sent by post.
In the present case, as pointed out earlier, the notice was sent by the plaintiff 's advocate by registered post acknowledgement due.
The acknowledgement signed by the party was received by the advocate of the plaintiff.
Thus in our view the presumption of service of a letter sent by registered post can be rebutted by the addressee by appearing as witness and stating that he never received such letter.
If the acknowledgement due receipt contains the signatures of the addressee himself and the addressee as a witness states that he never received such letter and the acknowledgement due does not bear his signature and such statement of the addressee is believed then it would be a sufficient rebuttal of the presumption drawn against him.
The burden would then shift on the plaintiff who wants to rely on such presumption to satisfy the court by leading oral or documentary evidence to prove the service of such letter on the addressee.
This rebuttal by the defendant of the presumption drawn against him would of course depend on the veracity of his statement.
The court in the facts and circumstances of a case may not consider such denial by the defendant as truthful and in that case such denial alone would not be sufficient.
But if there is nothing to disbelieve the statement of the defendant then it would be sufficient rebuttal of the presumption of service of such letter or notice sent to him by registered post.
" In the present case the plaintiffs had sent a copy of the notice to all the three defendants by registered post.
Three postal receipts Exhibits 52, 53 and 54 have been filed in the present case and Exhibit 51, one acknowledgement receipt.
As regards Exhibit 51, the defendant No.2 has appeared in the witness box and has denied his signatures.
However, it has not been shown that this acknowledgement receipt was related to which of the three notices sent vide postal receipts Exhibits 52,53 and 54.
The plaintiffs have clearly proved that three notices were sent by registered post and which is clearly born out from the three postal receipts.
Admittedly the premises were taken on rent in the name of the defendant No.1 namely Kulkarni Patterns.
Pvt. Ltd. and it is proved that one of the notices by registered post was also sent to the company.
It has been admitted by the defendant No.2 in his statement that the notice was sent on the correct address.
The defendant No.2 in his statement has nowhere stated that no notice has bee received by the company.
The only denial is in respect of the acknowledgment receipt Exhibit 51 and the only inference which could legitimately be drawn is that in respect of one notice, it was not proved as 232 to who acknowledged the receipt of the notice.
We do not approve the following statement of law made by the learned Additional District Judge "that the evidence of the defendant did not show any extraordinary happenings or the events which prevented the following of usual course of business and thus, his mere denial has no value".
However, in the present case three notices were sent by registered post and one of which was sent in the name of the defendant company who was the tenant, a presumption can legitimately be drawn that the notice dated 7.8.1980 had been served on the company.
There is no rebuttal on behalf of the defendant as regards the notice served on the company and in the facts and circumstances of the present case we hold that notice dated 7.8.1980 sent by registered post was served on the defendant company, In Green View Radio Service (supra) it was held that the acknowledgement due receipt contained the signature of the addressee himself and the addressee as a witness stated that he never received such letter and the acknowledgement due did not bear his signature and such statement of the addressee if believed then it would be a sufficient rebuttal of the presumption drawn against him.
The burden will then shift on the plaintiff who wants to rely on such presumption to satisfy the court by leading oral or documentary evidence to prove the service of such letter on the addressee.
Even applying this statement of law in the facts of the present case, the rebuttal, if any, made by defendant No.2 can be related only with regard to Exhibit to Exhibit 51 for one notice but not with regard to all the three notices sent by registered post vide exhibits 52 to 54 Thus, in the facts of the case in hand before us we are fully convinced that the service of notice shall have to be presumed so far as defendant company is concerned and there is no rebuttal to such presumption by the defendant appellants.
The requirement of sending notice under Section 12(2) of the Act is to be done in the manner prescribed under paragraph two of Section 106 of the Transfer of Property Act which reads as under.
"Every notice under this Section must be in writing signed by or on behalf of the person giving it and either be sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such party, or to one of his family or servants, at his residence, or (if such tender or delivery is not practicable ) affixed to a conspicuous part of the property." The reading of the above provision clearly shows that the notice can be sent by post to the party who is intended to be bound by it.
Thus, the notice sent by registered post in the name of the defendant company who 233 is the tenant is fully in accordance with the requirement of section 106 of A the Transfer of Property Act.
So far as the finding recorded by the learned Additional District Judge that the defendants were defaulter in the payment of rent and full amount of rent was not paid or deposited on the first date of hearing and no rent was paid month by month during the pendency of the appeal could not be assailed by the learned counsel for the appellants.
Thus, the learned Additional District Judge as well as High Court was right in passing a decree for possession under section 12(3)(b) of the Act.
As a result of the above discussion and findings recorded by us, we find no force in this appeal and the same is dismissed with costs.
Y.L Appeal dismissed. [/INST] The Respondents landlords filed a suit for possession of the suit premises against the appellants on the ground of default in payment of rent, amongst other, The 7th Additional Small Causes Judge, dismissed the suit holding that the service of notice dated 7 8 1980 on the defendants terminating the tenancy was not proved, even though one out of the three acknowledgments due, had been received duly signed.
As regards the question of default in payment of rent, the learned Judge took the view that the case did not fall under Section 12(3)(b) of the Act, as the defendants had paid Rs. 55,800 on 16.1.1984 and thereafter made regular payment of Rs. 600 every month.
On appeal by the respondent landlords, the learned additional District Judge reversed the findings of the trial Court and decreed the suit.
The learned Additional District Judge held that when the notices are sent by registered post, it is presumed to have been served and mere denial by the tenants had no value, unless they proved some extraordinary happenings or events which prevented following of usual course of business.
On the question of default in payment of rent the learned Judge held that as the defendants did not deposit the entire arrears on the first date of hearing and did not deposit the further rent during the pendency of the appeal, they persistently committed defaults during the pendency of the suit and also the appeal.
The appellants thereupon filed a writ petition in the High Court challenging the validity of the aforesaid order of the learned Additional District Judge.
The High Court dismissed the writ petition and affirmed the order passed by the learned Additional District Judge.
Hence this appeal by the appellants, after obtaining special leave.
Dismissing the appeal, this Court, 228 HELD: The notice under Section 106 T.P. Act can be sent by post to the party who is intended to be bound by it.
Thus the notice sent by registered post in the name of the defendant company who is the tenant is fully in accordance with the requirement of section 106 of the Transfer of Property Act.[232H 233A] The plaintiffs had sent a copy of the notice to all the three defendants by registered post.
Three postal receipts Exhs.
52,53 and 54 have been filed in the present case Exh. 51, one acknowledgment receipt.
As regards Exh. 51, the defendants No.2 has appeared in the witness box and has denied his signatures.
However, it has not been shown that this acknowledgment receipt was related to which of the three notices sent vide postal receipts Exhs. 52,53 and 54.
[231E F] The rebuttal, if any, made by defendant No.2 can be related only with regard to Exh.
51 for one notice but not with regard to all the three notices sent by registered post vide Exhs.
52 to 54.[232D] The service of notice shall have to be presumed so far as defendant company is concerned and there is no rebuttal to presumption by the defendant appellants.
[232E] The finding recorded by the learned Additional District Judge that the defendants were defaulter in the payment of rent as full amount of rent was not paid or deposited on the first date of hearing and no rent was paid month by month during the pendency of the appeal could not be assailed.
[233B] Green View Radio Service vs Laxmibai Ramji and Anr., , referred to. </s> |
<s>[INST] Summarize the following judgement: vil Appeal No. 1306 of 1988.
From the Judgment and Order dated 2.4.1987 of the Allahabad High Court in Writ Petition No. 1818 of 1984.
H.N. Salve, P.P.Tripathi, Manoj Swarup and K.J. Johan for the Appellants.
B.Sen, Gopal Subramaniam, Prashant Kumar and Mrs. section Dikshit for the Respondents.
The Judgment of the Court was delivered by RANGANATHAN, J.
There was a time when, in almost every State in India, people were invited to avail of the supply of the electric energy produced in the State and offered special concessions when they agreed to 158 do so in bulk under long term contracts.
A situation, however, has since developed when the demand for the energy increased so rapidly that, despite the quantity of available electric energy also having gone up tremendously the rates of supply agreed upon became uneconomical.
The State and its instrumentalities, who were supplying the energy, found themselves without power to revise the rates to meet the altered situation until the legislature came to the rescue.
It is this situation in the case of Kanoria Chemicals and Industries Ltd. (hereinafter referred to a `the appellant ') which has given rise to these appeals.
The , (hereinafter referred to as `the 1948 Act ') entrusted the control over the generation and distribution of electric energy to Electricity Boards constituted under the Act.
In the State of Uttar Pradesh, the U.P. State Electricity Board (hereinafter referred to as `the Board,) was constituted on 1.4.1959.
At that time, the State Government (hereinafter referred to as `the State ') was in the process of establishing the Rihand Hydro Electric Generating Plant, which become operational w.e.f. 1.2.62, and attained an ultimate installed capacity of 300 M.W.
The control of this remained with the State till 31.3.1965.
Since the supply of electrical energy was then available in abundance and only the eastern area of the State was served by the plant, the State considered it expedient to enter into contracts with bulk purchasers both with a view to ensure maximum utilisation of the electricity available and with a view to the industrialisation of the eastern areas of the State.
In particular the State was keen on the industrial development of the district of Mirzapur, which was considered to be an extremely backward area.
The State was keen that power intensive units be set up in close proximity of Rihand so that electricity could be supplied to these units from the Rihand power plant.
One feature of the supply of electricity from Rihand was that the metering was done at the point of generation so that transmission and distribution losses and costs could be borne by the consumers of electricity.
The appellant set up an industry for manufacture of caustic soda at Renukoot sometime in 1964.
According to the appellant, this industry involved the use of electricity as the main raw material, the other raw material needed being salt.
It is said that there were considerable disadvantages in setting up the proposed caustic soda unit in the district of Mirzapur, principally due to its distant location from areas from which salt had to be transported.
The appellant, it is said, could easily have set up its factory in some other State with greater facilities and advantages but it was induced to set up the caustic soda plant at Pipri in the district of Mirzapur on account of the assurance given by the State that it will supply hydro electric 159 power to the assessee from the Rihand power plant on a long term basis at a cheap rate.
It is claimed that, but for this promise, the appellant would never have chosen Pipri or the district of Mirzapur for the location of this plant.
After elaborate discussions between the State Government and the promoters of the appellant company, the plant was set up at Pipri and a contract was entered into between the State Government and the appellant on 30.9.1963 ensuring the supply of electricity from the point of generation to the appellant for a period of 25 years from 1.4.64.
The supply, to the extent of 6.5 MW.
was to be from Rihand hydel station at a fixed rates of 2.5 paise per unit.
An additional supply of 1.5 MW was also promised from an inter connection at the rate of 5 N.P. per unit.
The rates could be revised after the first sixteen years but any enhancement in rates was not to exceed 10 per cent of the rates agreed upon.
The State agreed further to supply 4.5 MW to the appellant from the Obra Hydro Electric Project on such rates as would be fixed subsequently.
It may be mentioned that this clause gave rise to disputes which were referred to arbitration.
An award was made by justice D.P. Madan, a retired judge of this Court, which was made a decree of this Court by an order dated 1.4.1987.
Under the award, the rate of supply was fixed at 8.69 paise per unit.
The State 's grievance is that it incurred a loss of Rs. 10.55 crores by supplying electricity from Rihand between 1.4.64 and 19.5.83 at concessional rates instead of applying the uniform tariff applicable to other "bulk power" consumers, briefly referred to as "HV 2 rates.
" It says also that it likewise suffered a loss of 12.4 crores due to the supply at 8.69 paise instead of normal rates, from Obra between 1.4.71 and 31.3.89, when the agreement, came to an end by efflux of time.
Obviously, it was not economical to continue supplying energy at the preposterously low rates to which the State had committed itself in 1963 on account of the conditions that prevailed at the time of the agreement.
The powers of the State or the Boards to revise contractual rates unilaterally were examined by this Court in Indian Aluminium Company Ltd. vs Kerala State Electricity Board [1976] 1 SCR 70.
It is sufficient to say that, after considering the provisions of section 49 and 59 of the Supply Act, the Court held that the Electricity Board were not entitled to enhance charges in derogation of stipulations contained in agreement entered into between parties.
This decision led to the provisions of the Supply Act being amended by various States.
The State of Karnataka, Orissa and Rajasthan brought in amendments enabling the Electricity Board to supersede contracts and 160 revise the rates contained in earlier agreements.
The U.P. Government, also enacted the Electricity Laws (Uttar Pradesh Amendment), Act, 1983, to vest the State 's agreement with the Board and to enable the Board to revise the contractual rates.
The Act came into force from 20.5.1983.
Section 7 of the said Act amended Section 60 of the Supply Act, 1948 by inserting the following sub sections (3) to (5) with retrospective effect from April 1, 1965 : (3) All expenditure which the State Government may, not later than two months from the commencement of the Electricity Laws (Uttar Pradesh Amendment) Act, 1983, declare to have been incurred by it on capital account in connection with the purposes of this Act in respect of the Rihand Hydro Power System shall also be deemed to be a loan advanced to the Board under section 64 on the date of commencement of this sub section and all assets acquired by such expenditure shall vest in the Board with effect from such commencement.
(4) The provisions of the sub sections (1) and (1 A) shall, subject to the provisions of sub section (5) apply in relation to the debts and obligations incurred, contracts entered into and matters and things obliged to be done by, with or for the State Government in respect of the Rihand Hydro Power system after the first constitution of the Board and before the commencement of this sub section as they apply in relation to debts and obligations incurred, contracts entered into, matters and things engaged to be done by, with or for the State Government for any of the purposes of this Act before the first constitution of the Board.
(5) All such contracts entered into by the State Government for supply of electrical energy based on or connected with the generation of electricity from the Rihand Hydro Electric Generating Station to any consumer and any contract entered into by the Board on or after April 1, 1965 for the supply of electrical energy to such consumer shall operate subject to the modifications specified in the following clauses, which shall have effect from the date of the commencement of the Electricity Laws (Uttar Pradesh Amendment) Act, 1983 (hereinafter referred to as the said date): 161 (a) the rates to be charged by the Board for the energy supplied by it to any consumer under any contract for which the payment will be due for the first time on or after the said date shall be such as may with the previous approval of the State Government be fixed by the Board, having due regard to the geographical position of the area of supply, the nature of the supply and purpose for which supply is required and any other relevant factor.
(b) If the State Government directs the Board under Section 22 B of or under any other law for the time being in force to reduce the supply of energy to a consumer and thereupon the Board reduces the supply of energy to such consumer accordingly, the consumer concerned shall not be entitled to any compensation for such reduction, and if the consumer consumes energy in excess of the reduced limit fixed under the said section 22 B or any other law for the time being in force as the case may be, then the Board shall have the right to discountinue the supply to the consumers without notice ,and without prejudice to the said right of the Board, the consumer shall be liable to pay for such excess consumption at double the normal rate fixed under clause (a); (c) Any arbitration agreement contained in such contract shall be subjects to the provisions of this sub section.
Parliament also, at about the same time, amended section 59 of the Act by Act 18 of 1983.
The amended section 59(1), which is sufficient for our purpose reads thus : 59.
General principles for Board 's finance (1) The Board shall, after taking credit for any subvention from the State Government under Section 63, carry on its operation under this Act and adjust its tariffs so as to ensure that the total revenues in any year of account shall, after meeting all expenses properly chargeable to revenues, including operating, maintenance and management expenses, taxes (if any) on income and profits depreciation and interest payable on all debentures, bonds and loan, leave such surplus as is not less than three per cent, or such higher percentage, as the State Government may, by notification in the official Gazette, specify in this behalf, of the value of the fixed assets of the Board in service at the 162 beginning of such year.
Explanation For the purposes of this sub section.
"value of the fixed assets of the Board in service at the beginning of the year" means the original cost of such fixed assets as reduced by the aggregate of the cumulative depreciation in respect of such assets calculated in accordance with the provisions of this Act and consumer 's contributions for service lines.
It has been pointed out to us that the U.P. State amendment is somewhat different from those of the other States.
The Karnataka legislature amended section 49 of the 1948 Act and the Orissa and Rajasthan legislatures inserted section 49A in the said Act.
These provisions enabled the Boards ' to prescribe tariffs and these rates were to prevail over those specified in the agreement.
The latter two amendments actually declare the relevant clauses in the agreement void from inception.
The U.P. amendment.
however, retains the effectiveness of the earlier contracts and only reads into them the rates that may be prescribed by the Board.
This is the first difference.
The second is that while the other legislations affect all agreements entered into before a specified date, the U.P. amendment is restricted to contracts for supply of electricity from the Rihand Hydro Electric Generating Station.
We are informed that, when the above amendment was sought to be effected, the only outstanding contract of the State for the supply of electricity from the Rihand Hydro Electric Generating Station was the contract with the appellant on the 30th of September, 1963.
There had been two agreements entered into for supply of electricity from this power station but the other one with Hindustan Aluminium Company had become ineffective since that company gave up its claim to supply from the above power plant in 1975 76 having been successful in putting up a power plant for its captive use.
Thus, though the Act purports to be one of general application, it was really intended to enable the State and the Board to modify the rates of supply of electricity to appellant under the contract of 30.9.1963.
At this stage it may be useful to refer also to the terms of section 49 of the Act.
It reads thus : (1) Subject to the provisions of this Act and or regulations, if any, made in this behalf, the Board may supply electricity to any person not being a licensee upon such terms and conditions as the Board thinks fit and may for the purposes of such supply frame uniform tariffs.
163 (2) In fixing the uniform tariffs the Board shall have regard to all or any of the following factors, namely : (a) the nature of the supply and the purposes for which it is required : (b) the co ordinated development of the supply and distribution of electricity within the State in the most efficient and economical manner, with particular reference to such development in areas not for the time being served or adequately served by the licensee: (c) the simplification and standardisation of methods and rates of charges for such supplies : (d) the extension and cheapening of supplies of electricity to sparsely developed areas.
(3) Nothing in the foregoing provisions of this section shall derogate from the power of the Board, if it considers it necessary or expedient to fix different tariffs for the supply of electricity to any person not being a licensee, having regard to the geographical position of any area, the nature of the supply and purpose for which supply is required and any other relevant factors.
(4) In fixing the tariff and conditions for the supply of electricity, the Board shall not show undue preference to any person.
After the statute was thus amended, the Additional Chief Engineer of the Board wrote to the appellant on 6.2.1984 stating that, though the bills were being drawn on the basis of the agreement, the rates were subject to revision with effect from May 20, 1983 with the approval of the State Government and that a supplementary bill would be sent for the arrears as and when the rates were revised in pursuance of section 60(5) (a).
On 5th April, 1984, the appellant filed Writ Petition No. 1818 of 1984 in the High Court of Allahabad assailing the validity of section 7 of the amending Act and the right of the Board to enhance the rates.
While admitting the writ petition, the High Court passed an interim order to the effect that the State Government should provide an opportunity of hearing to the appellant before bringing about any change in the terms and conditions of the Agreement or tariff rates and that no revised rates shall be charged from the 164 appellant till it is heard, and the matter decided, by the State Government.
On June 11, 1984, the Law Officer of the Board wrote to the appellant requesting it to give in writing the points which they wanted to urge before the rates were approved by the State Government.
According to the appellant, this was not sufficient compliance with the court 's order and it moved the High Court for amending its petition and made further applications to the Court.
It may be mentioned that the stand taken up by the Board in the writ petition was that the writ petition was premature as the State 's approval had not been obtained and no injury had been caused to the appellant.
But, suddenly, on 31.1.85, the Board wrote to the appellant informing it that the State Government had approved the levy of rates as per Schedule HV 2 (as defined in the U.P. Gazette Notification dated 29th October, 1982) applicable to heavy power consumers in substitution of the rates mentioned in the agreement of 20th September, 1963.
It was stated curiously enough that the approval of the State Government had been given on 28.9.1983.
The effect of the revision was to oblige the petitioner to pay 57.71 paise per unit for 1983 84 and 61.60 paise per unit for 1984 85.
An idea of the magnitude of the revision can be had by pointing out that supplementary bills raised on the basis of the revision for the period 20.5.83 to 31.12.1984 were to the tune of Rs. 3.07 crores.
The appellant 's allegation is that no such approval had been given and it is asserted that the internal correspondence between Board and State would show that the legal Department of the Board had raised certain objections to the levy of HV 2 rates on the appellant, and that consequently Board had sent a fresh proposal in December 1983 seeking approval of the State Government for imposing a flat rate in respect of supplies to the appellant in place of earlier proposal.
It is also stated no proposal was made, or approval sought, for imposing the revised rates w.e.f. 20.5.1983.
The Board, however, proceeded to make demands against the appellant on the basis of the revised rates.
According to the Board, reference was made to a resolution dated 30.1.85 to the withdrawal on that date of the proposal for a flat rate in place of HV 2 rates.
Thus, demands on the basis of HV 2 rates were sought to be sustained.
The demands amounted to several crores of rupees and disconnection was threatened in case of nonpayment.
The appellant obtained certain interim orders from High Court (which have been subsequently considered and modified from time to time by this court during the pendency of these appeals).
It is, however, not necessary to refer to these interim orders as the final liability of the appellant will have to be decided on the basis of the orders of this Court on the appeals.
165 The writ petition was heard by a Bench of two judges.
Both judges repelled the challenge to the validity of the Amendment Act but differed on some of the points which came up for their consideration.
Srivastava, J. was of the opinion that the intention and purpose of the Amendment Act was to revise the existing contractual rate of energy charges and charge higher rates upto the extent of uniform tariff rates for the supply of electricity to the consumers whose contract stood modified by the said statute.
The rates so fixed had to be dependent upon the factors enumerated in section 60(5).
According to him, the material on record showed that the factors enumerated in section 60(5) had not been taken into account by the Board before fixing the rates or by the State Government in according its approval to the same.
The Board and the Government appeared to have acted upon a consideration of the factors mentioned in section 49(2) of the Act of 1948 while framing a uniform tariff but this was not sufficient compliance with the provisions of section 60(5).
On the other hand, Mathur.
J. was of the opinion that the move for amendment of the Act and enforcement of HV 2 tariff was initiated by the Board and that the notings contained a detailed justification for enforcing the said tariff.
It also appeared from the statement of objects and reasons of the amending bill that the supply of electricity at concessional rates despite losses and the desirability of replacing the said rate by uniform tariff came up for discussion in the State Legislature and that the Board did not act wrongly or illegally if it felt that it had no option but to apply uniform rates in view of the statement contained in the objects and reasons of the bill and the discussion in the State Legislature.
He was also of the opinion that the factors contemplated by section 60(5) (a) were similar to those envisaged by section 49(2), and since consideration had been given to the latter factors while farming the uniform tariff, no consideration of factors relevant to individual consumers was called for.
The two learned judges thus differed on the following two points : (a) Whether the language of section 60 (5) (a) of U.P. Act No. 12 of 1983 required consideration of factors prescribed in section 60 (5) (a) viz., geographical position of the area of supply, the nature of supply and purpose for which supply is required and other relevant factors with reference to petitioner company for revising the existing contractual rate of H.C. tariff? (b) Whether the factors mentioned in section 49(2) of , having already been considered at the time of farming uniform tariff no fresh consideration of any factors mentioned in section 60(5)(a) of U.P. Act No. 12 of 1983 was required when the uniform tariff itself was being fixed while 166 revising the rate ? The difference of opinion was, therefore, referred to a third Judge, Mehrotra, J.
This learned Judge answered that question referred to him as follows : (a) The language of section 60(5)(a) of U.P. Act 12 of 1983 requires consideration of factors prescribed in it with reference to the petitioner company for revising the existing contractual rate; and (b) Fresh consideration of the factors mentioned in section 60(5)(a) was required irrespective of the fact that factors mentioned in section 49(2) of the had already been considered at the time of framing of the uniform tariff which was being fixed for the petitioner company while revising the rates.
Consequent on the opinion of this learned Judge the writ petition was allowed and a writ of certiorari was issued quashing the approval dated 28.9.1983 given by the State Government to the new rates and the consequent resolutions, sanctions, bills and demands of the Board and the State Government.
A writ of mandamus was also issued commanding the respondents not to charge the uniform tariff rate for the period beginning from 20th May, 1983 till the rates were fixed in accordance with section 60(5) (a) of U.P. Act No. 12 of 1983.
The Order disposing of the Writ petition finally is dated 2.4.1987.
Immediately the judgement was pronounced the State Electricity Board and the State Government sought a certificate of fitness for preferring an appeal to this Court and the High Court granted the certificate, as prayed for.
This appeal has not been numbered on account of delay.
Though the High Court had quashed the revision of the rates, it had left it to the board and State to fix revised rates afresh.
That apart, the appellant had also a grievance that, in applying the HV 2 rates which were applicable to other consumers, the Board and the State had not taken into account the special factors relevant to the supplies made to it.
The appellant also, therefore, filed S.L.P. No. 13967 of 1987 for leave to appeal from the judgement dated 2.4.1987.
Leave has been granted by this Court on 8.4.1988 and the appeal of the company had been registered as C.A. 1306 of 1988.
In the meantime the Board and State were, apparently carrying on an 167 exercise for the revision of the rates afresh as directed by the High Court and, on 28.3.1988, the Board purported to fix the following revised rates for the supply from 20th May, 1983.
Period Rate (Paise per unit) 20.5.1983 to 31.3.1984 70.21 1.4.1984 to 31.3.1985 74.93 1.4.1985 to 31.3.1986 85.14 1.4.1986 to 31.3.1987 88.60 It will be observed that rates thus fixed, and said to have been approved by the State Government, were much higher than the HV 2 rates fixed earlier, objected to by the appellant and quashed by the High Court.
Having done this, this Board sought leave to withdraw the appeal preferred by it.
So far the appellant 's appeal was concerned, it was contended that the appellant 's remedy was to challenge the revision of 28.3.1988, if so advised, in fresh proceedings.
This was the position when these appeals came to be heard by us on April 10, 1991.
We heard the appeals at length and reserved orders.
In doing so we passed the following order : "The appeals pertain to the fixation of tariff rates for supply of electricity to the appellants caustic soda plant at Renukoot.
The appellants originally came to court challenging the levy of the electricity charges on the basis of HV II rates applicable generally to consumers drawing supply from the U.P. State Electricity Board.
However, the High Court held that the rates applicable to the appellants should be determined having regard to the individual circumstances of the appellants.
This was by a majority judgement in the High Court.
Subsequently, the Electricity Board had proposed, and the State Government has approved, certain rates for the period from 20.5.1983 to 31.3.1987 which are somewhat higher than the HV II rates originally approved.
This is the bone of controversy between the parties.
We find that the State Government and Board have filed no counter affidavits in regard to the challenge by the appellants to the revision of rates effected subsequent to the High Court 168 judgment.
In the circumstances, before we pronounce our judgment we think that, in the interests of justice, it would be proper to direct the State Board and the State Government to reconsider the fixation effected by them on the basis of the following directions : 1.
Within a period of three weeks from today, the appellants will file before the State Electricity Board (with a copy to the State Government) a representation setting out what, according to them, are the individual factors which should be taken into account in fixing the rates applicable to them within the meaning of section 60(5)(a), 1948 as amended in 1983.
The State Electricity Board will consider this representation and make appropriate recommendations to the State Government.
However, before doing so, and particularly if the Board intends to take into account any factors other than those mentioned in the appellants ' representation, they should indicate the factors which they so wish to take into account, in their recommendations to the State Government.
A copy of the recommendations should be forwarded to the appellants within seven weeks from today.
On receipt of the recommendations made by the Board, the appellants may submit to the State Government, if they so desire, any representation which they wish to make regarding the recommendations within a period of three weeks thereafter.
The State Government will consider the recommendations of the State Board as well as the representations made by the appellants to the Board as well as to themselves and approve of the rates which they consider proper in the circumstances of the case by a reasoned order, giving a board indication of the factors which they have taken into account in fixing the rates.
This decision should be arrived at within a period of four weeks from the date of the receipt of the representation of the appellants.
As indicated above, since the High Court has decided that in fixing the rates the individual circumstances of the appellants should be taken into account, the State Board as well as the State Government should take into consideration the special 169 circumstances of the appellants in fixing the rates.
The Government 's order may also, in case different rates for different periods are fixed, indicate the respective dates from which the several rates will come into operation.
The rates and dates so fixed by the Government, will naturally be subject to the decision on these appeals.
" Subsequent to our order, the appellant made a representation to the Board on 29.4.91.
The Board made its recommendations thereon to the State Government on 26.6.91.
Thereafter the appellant made its representation to the State Government on 22.7.91.
The State Government has subsequently passed an order on 31.8.91 and submitted the same to us.
It is perhaps sufficient to extract the concluding paragraphs of the order. "After analysing the contentions of Kanoria Chemicals and the State Electricity Board, the State Govt. comes to the conclusion that M/s. Kanoria Chemicals and Industries Ltd. has taken benefit of establishing this unit in a backward area for the last 19 years and there is no justification in giving this benefit in continuously future also because this area has been developed in comparison to earlier years.
The request of M/s. Kanoria Chemicals and Industries Ltd. that the factors shown by State Electricity Board should be limited to Rihand Hydel Power Station, is without justification since at present, they are getting supply from U.P. Grid and not from Rihand Power Station.
Hence, the point of view of the State Electricity Board is justifiable.
After due consideration of representation dated 24.2.91 and 22.7.91 of M/s. Kanoria Chemicals and Industries Ltd. and the recommendations of the State Electricity Board dated 26.6.91, the State Govt.
comes to the conclusion that M/s. Kanoria Chemicals and Industries Ltd. has failed to indicate any fact which comes under the provisions of Sec.
60(5)(a) of the and which has not been considered by the State Electricity Board while fixing the rates in March 88 has kept in mind the decision of Hon.
High Court of Allahabad and 170 complied with the provisions of sec.
60(5)(a) of the .
Since keeping in view the factors enumerated in sec.
60(5)(a) of the , the Rules were revised in March, 1988 in the following manner, hence there appears no necessity to change these rates : S.No.
Period Rate 1.
20.5.83 to 31.3.84 70.21 paise/unit 2. 1.4.84 to 31.3.85 74.93 paise/unit 3. 1.4.85 to 31.3.86 85.14 paise/unit 4.
1.4.86 to 31.3.87 88.60 paise/unit In other words, the State and Board adhere to the rates fixed on 28.3.88.
It may be interesting to set out a comparative table of the revisions effected by the Board originally (which was quashed by the High Court) and the rates now approved : Period HV 2 rate Revised rate Paise/unit paise/unit 20.5.83 to 31.3.84 55.71 70.21 1984 85 59.86 74.93 1985 86 63.89 85.14 1986 87 80.88 88.60 *1987 88 84.64 88.60 *1988 89 93.39 88.60 * The revised rates for 1987 88 and 1988 89 are stated to be provisional but so far till today no fresh rates have been fixed in respect of these periods.
171 The resultant position is that the appellant is now facing huge demands in respect of the period since 20.5.1983 and till 31.3.1989 when the agreement expires, at rates which will be higher than the HV 2 rates which had been sought to be applied in the first instance.
The appellant vehemently challenges the fixation of rates on 28.3.88 and 31.8.91.
A good part of the argument before us in these appeals, in the first instance, was addressed on the question whether the State Government was obliged to give a hearing to the consumer before revising the rates under section 60(5) and whether the factors relevant under s.60(5) can be said to have been taken into account on the ground that they had already been taken into account while fixing uniform rates under s.49.
In this context, reference was made to several decisions and contentions where canvassed in regard to the nature of the process of fixation of rates of charges for supply of electricity.
It is, however, unnecessary to go into all these aspects because, in pursuance of the directions of this Court dated 10.4.1991, the matter has been re considered by the Board and the State Government and fresh rates have been fixed along with the respective dates of operation after hearing the appellant 's representatives.
Broadly two principal submissions have been addressed before us at this stage on behalf of the appellants.
The first is that the fixation of rates as on 31.8.1991 is not valid as the respondents have not complied with the directions given by this Court in the order dated 10.4.1991.
It is argued that the respondents have neither disclosed the factors based on which the rates were revised in March 1988 nor have they indicated the monetary incidence or impact of the factors taken into account, though a specific request was made in this regard by the appellant to the Board and to the State Government.
The appellant, it is said, has been gravely prejudiced and handicapped, in the absence of any such disclosure, in making any effective representation.
Further in the final order dated 31.8.91, the State Government has stated that the fixation of rate by the State Government was based upon the consideration of facts and data communicated by the Board to the State Government in March 1988 but, admittedly, no facts, data or basis had been placed before this court at the time of the original writ petition on the basis of which the State Government had fixed the rates in March, 1988 compelling this Court to remand the matter for fresh consideration.
Suddenly the Board, while concluding its recommendation to the State Government on 26.9.91 reminded the State Government that prior approval of the State Government for the rates had already been obtained in March 88 and persuaded the State Government to mechanically uphold the pre determined rates.
Finally, it is contended that even in this process of re fixation of the 172 rates there was no genuine exercise to consider relevant factors in determining the rate under section 60(5)(a).
We do not think that there is any force in these contentions.
By the time the matter came up before us for hearing in the first instance the State Government had already passed its order of revision dated March 28, 1988.
The rates which had been recommended by the State Electricity Board and approved by the State Government were within the knowledge of the appellant.
It was of course necessary and equitable that, before giving effect to these rates (if not even before they were recommended), the consumer should have had no opportunity of placing before the Electricity Board and the State Government its side of the picture.
This opportunity has, however, been provided by to the appellant.
The appellant has also filed its representation.
After considering the representation, the Board made its recommendations to the State Government and a copy of these recommendations were also available to the appellant.
The appellant also had full opportunity to meet the various points set out in the recommendations of the Board.
The comments of both the Board and the appellant have been taken into account by the State Government before finally approving of the rates proposed by the Board.
The grievance of the appellant seems to be that the Board has not set out anywhere the precise manner in which the rates recommended by them were arrived at and that this has considerably handicapped any effective representation being made by it to the Board and to the State Government.
We do not think the proceedings are vitiated for this reason.
It is true that the actual computations of the rates were not set out by the Board in its recommendations made in 1983 or 1985 or 1988 but the proper approach to the issue is not the one adopted by the petitioner.
The section does not require the Board or the State Government to explain each and every step in its calculation.
All that the State Government has to do is to take into consideration the factors relevant under section 60(5) and propose rates for fixation to the State Government.
It is in order to ensure that these recommendations take into account all relevant factors that an opportunity has been provided to the consumer to satisfy the Board as well as the State Government that the fixation has not taken into account certain relevant factors.
We, therefore, think the appellant must be held to have been given a fair opportunity under section 60(5)(a) so long as it had an opportunity to explain to the Board and the State Government the factors individual to its case and also as to how and why the rates recommended by the Board need modification.
Moreover, the issue here was in a narrow compass for the following reason.
On the passing of the Amendment Act, the Board decided to substitute the contract rates by the HV 2 rates.
But this was rendered infructuous because of the terms of section 60(5)(a) which, it was said, were 173 different from those of section 49.
If the factors under section 49 were alone to be taken into account then the consumers, one and all, would have been liable to pay for the electricity at the tariff rates.
The claim of the appellant was that in applying these rates certain factors individual to it had not been taken into account.
If one compares the two provisions, one will find that most of the elements are common to the two provisions.
Both under section 49 and section 60 the authorities have to take into account the geographical position of any area, the nature of supply and purpose for which supply is required and any other relevant factor.
The only difference between the two provisions is that since section 49 deals with a general fixation while section 60(5) deals with a fixation for a particular individual case, there may be some special factors to be taken into account which may or may not be germane while fixing the general tariff under section 49.
Hence the only point which needed to be considered, when the matter was reexamined pursuant to our directions, was whether, having regard to the factors prevailing in the case of the appellant the rates to be fixed should be higher or lower than the HV 2 rates or whether they should be the same.
It was open to the petitioner to contend, as it in fact did, that there are special features in its case which make it legitimate to fix some concessional rates as compared to other consumers.
On the other hand, it is equally open to the State Electricity Board to contend that having regard to the prevalence of certain circumstances, the rates to be fixed should be higher than the tariff rates applicable generally.
This is a short aspect on which both parties have made their positions clear.
Apart from the general factors which have been taken into account in fixing the general tariff rates, the Board has, in making its recommendations, taken into account the purpose for which supply was required by the petitioner along with the factor of recurring losses incurred by the Board year after year and its statutory requirements to maintain a minimum surplus of 3 per cent as required under section 59 of the Supply Act, 1948.
We are, therefore, satisfied that the appellant had full opportunity to place all its special features before the Board and the State Government and that all aspects have been fully considered by the authorities.
The fixation of rates on 31.8.1991 is not, therefore, vitiated for the reasons urged by the appellant.
The only other aspect that requires consideration is regarding the maintainability of the rates as now fixed by the Board and the State.
Three questions arise in regard to this : (i) Can the Board fix rates higher than HV 2 rates in respect of bulk consumers like the company for whom a concessional rate had been granted on special considerations ? 174 (ii) Can the Board determine rates in 1991 and make them retrospective w.e.f. 1983? (iii)Was there material for the Board to fix rates which they have eventually fixed? We find that the answer to the first two questions posed only be in the affirmative.
On the first issue, there are no obstacles, statutory or theoretical, standing in the way of the Board fixing rates for the company which will be higher than the rates applicable to bulk consumers.
The provision in s.60(5)(a) is intended to enable the Board and State to cut off the shackles cast by an ancient contract entered into at a time when conditions were totally different.
It confers an absolute and unrestricted enabling power to revise the rates in an appropriate manner and contains no restriction of the nature suggested for the appellant.
In doing this, the only limitation which the statute requires the authorities to keep in mind are the factors mentioned in the section.
Whether the revised rates for the consumer governed earlier by the contract should be higher or lower than, or equal to, the tariff rates would depend on a large number of considerations, in particular, the basis on which, and the point of time at which, those general rates were fixed.
In principle, it is quite conceivable that, in an appropriate case, a consideration of the relevant factors may justify even a rate higher than the general tariff rates intended for the particular category of consumers.
We shall examine later whether this was justified in the present case.
At the moment, all we are concerned with is the legality of fixing such higher rates and we see no difficulty in this either on the language of the Statute or on other considerations.
A retrospective effect to the revision also seems to be clearly envisaged by the section.
One can easily conceive a weighty reason for saying so.
If the section were interpreted as conferring a power of revision only prospectively, a consumer affected can easily frustrate the effect of the provision by initiating proceedings seeking an injunction restraining the Board and State from revising the rates, on one ground or other, and thus getting the revision deferred indefinitely.
Or, again, the revision of rates, even if effected promptly by the Board and State, may prove infructuous for one reason or another.
Indeed, even in the present case, the Board and State were fairly prompt in taking steps.
Even in January 1984, they warned the appellant that they were proposing to revise the rates and they did this too as early as in 1985.
For reasons for which they cannot be blamed this proved ineffective.
They revised the rates again in March 1988 and August 1991 and, till today, the validity of their action is under challenge.
In this 175 state of affairs, it would be a very impractical interpretation of the section to say that the revision of rates can only be prospective.
The language of the section also supports this view.
Slightly rearranging the syntax of the clause to facilitate easier understanding, what it provides is that the revised rates fixed by the Board shall be the rates to be charged by the Board for the energy supplied by it to any consumer for which the payment will be due for the first time on or after the 20th May, 1983.
In other words, the rates eventually fixed will, by force of statute, apply to all supply of electricity for which the charges become payable in terms of the contract, after 20.5.1983.
There are three objections suggested against this interpretation.
The first is that it precludes the Board and State, where they choose to do so, from revising the rates prospectively or with effect from such dates, after 20.5.1983, which they may consider appropriate.
We think this consequence does not flow from the language of the provision.
The mandate is only that the rates to be charged on supplies for which payment becomes due after 20.8.83 shall be as fixed by the Board.
The powers of the Board in fixing the rates including the dates from which they will be operative are not restricted in any manner.
The Board is at complete liberty to fix different rates from different dates and that scheme of fixation will be read with the contract.
Only the Board cannot revise the rates in respect of supplies for which payment under the contract, fell due before 20.5.83.
The second objection, which is a follow up of the first, is that if the power u/s 60 is held exercisable more than once, the interpretation will permit successive revisions, each superseding the earlier one, a position that could lead to immense harassment.
We have no doubt the power u/s 60 is exercisable more than once.
All the same, the answer to the appellant 's objection is that, while this could be a basis of substantial harassment if repeated revisions are automatically dated back to 20.5.83 (as argued, on the first point, for the assessee), it loses all force on our interpretation leaving it open to the Board and State to fix the dates with effect from which revisions will be effective.
In view of this, one can take in that, while making a subsequent revision, the authorities will not normally tamper with an earlier revision (s) or alter the dates of effectiveness fixed for the earlier revision (s) without a valid reason to do so.
If this is done, it will be open to a court to examine the basis thereof and sustain it only where the earlier fixation was based on an error or misconception or the like and called for modification.
The third objection is that the Hindi version of the Amendment Act is differently worded and does not contain the words "for the first time" found in the English version.
Reliance is placed on the decision of a Bench of seven judges of the Allahabad High Court in Mata Badal Pandey vs Board of Revenue, (1974) U.P.T.C. 570 to 176 the effect that, where there appears a doubt or ambiguity on a plain reading of the English words as to the true intention of the legislature and the Hindi version is conflicting or different.
the Hindi text will be the key for finding the answer.
We do not think the Hindi version really alters the position; actually it is the presence of the words "for the first time" in the English version that create an ambiguity.
Without these words, the clause clearly provides that all supply of electricity, for which payment is to be made after 20.5.83, will be charged at the rates to be fixed by the Board.
We, therefore, reject the appellant 's contention and hold that the fixation by the Board of rates from 20.5.83 and, at different rates for different periods of time, is unexceptionable.
This takes us to the real and crucial question in the case as to whether rates to be fixed in the present case should, on proper consideration, be less than, equal to or higher than the general HV 2 rates.
The appellant contends that it should be charged at the cost of generation plus a reasonable margin of profit or at the rate at which the supply is made to the Madhya Pradesh State Electricity Board.
At any rate, it is said, the rates charged to the appellant should be less than HV 2 rates.
For this it relies on: (a) the special circumstance that the appellant, at great detriment to itself, agreed to set up a caustic soda plant in a backward area at the request of the State Government and in public interest only because of a promised concession in rates of electricity supply; (b) the fact that the supply to the appellant is metered at the point of generation with the result that the transmission and distribution losses, in so far as the appellant is concerned, are borne by the appellant and not by the Board as in the case of other consumers and (c) the important fact that electricity, in the case of the appellant, is one of the only two raw materials needed for its business.
On the other hand, for the Electricity Board, it is contended that the appellant should be called upon to pay higher than HV 2 rates for the following reasons : (i) The appellant has been having substantial supplies of electricity at nominal rates of 2.5 paise and 2.75 paise per unit between 1963 and 1983.
(ii) The supply to the assessee is being made only from the State Grid and there is no reason why it should draw the supply at lower rates than others : (iii) The Board had been incurring heavy losses over the years.
This is to a considerable extent due to the spiraling demand for electricity, the Board 's responsibilities under the statute to co 177 ordinate development of the supply of energy throughout the State and the necessity to supply energy at concessional rates to certain sectors such as the agricultural sector.
(iv) The Board is also entitled, under s.59 of the 1948 Act, to take into account the necessity of building up a surplus, statutorily fixed, in the fixation of rates of supply to all or any of its consumers.
We have given careful thought to the considerations urged before us and we are of opinion that there is no material to justify any departure from the HV 2 rates in the case of the appellant.
We find no force in the contentions put forward on behalf of the appellant to reduce the rates applicable to the appellant below HV 2 level.
The special circumstances pleaded have lost their importance with the passage of time.
It is obvious that the conditions that prevailed in 1963 are not valid and the appellant has had the benefit of concessional rates for twenty years.
No doubt the benefits would have continued for five more years but for statutory intervention.
But the statute permits a reconsideration of the situation as in May 1983 and it is unarguable, it seems to us, that the rate of 2.75 p. should continue even after 1983 or that the appellant should be entitled to any special concession.
The consideration that electricity is a "raw material" in the assessee 's business is, again, irrelevant for it can mean nothing more than that the appellant needs substantial quantities of the energy and there is no reason why it should not pay for it at the normal market rates.
The point regarding take off of supply at the generating point will no doubt have some relevance on the question of rates and we shall refer to this aspect later in the context of the pleas put forward by the Board.
We are, therefore, of the view that the appellant has no valid justification for staking a claim to less than the HV 2 rates.
Equally, it seems to us, the authorities have no case for seeking to raise the rates beyond the HV 2 rates.
They are supplying energy to the appellant from the grid since 1968 and they cannot justifiably seek to demand higher rates from the appellant than from the HV 2 consumers.
This is sought to be justified on the basis of the huge losses that the Board has been incurring and the statutory justification for escalation in the rates keeping in view the necessity to build up a surplus.
This, however, is an aspect of working which should affect all the consumers equally.
May be the Board can, in appropriate circumstances, seek to make up for a part of the losses by hiking up the rates to one particular category of consumers but that would not be justified here as the transmission and distribution losses 178 in respect of the supply to the appellant are borne by it and, in the absence of some special vital reason, it would not be equitable to fix the rates of supply to the appellant above the rates applicable to other HV 2 consumers.
Some reference was made to the difficulties in completely fitting the scheme of computations for determining the HV_2 rates into the scheme under the appellant 's contract.
It is, however, unnecessary to go into that aspect as we are only on the question of rates and holding that there is no justification for charging more than HV 2 rates from the appellant.
Moreover, the appellant has been paying for the Obra supply at HV 2 rates since 1989.
We have also been informed that in 1972 the appellant took a further additional supply of 8 MW and agreed to pay therefor at HV 2B rates as applicable to other Bulk Power Consumers in the State.
In these circumstances, we have reached to the conclusion that there is no justification to charge more than HV 2 rates from the appellant.
We, therefore, allow this appeal in part, quash the determinations of 1988 and 1991 and direct that the appellants should be charged from 20.5.83 to 31.3.89 at the HV 2 rates applicable to other consumers.
The appeal of the appellant is partly allowed to the above extent.
The Board 's appeal has not yet been numbered as it is delayed by a few days.
It was, however, stated that the Board wishes to withdraw its appeal because of the subsequent developments.
For these reasons and also in view of our above conclusion the Board 's appeal also stands dismissed.
In the circumstances, we direct each party to bear its own costs.
T.N.A. C.A. 1306/88 Partly allowed.
C.A. 128/92 dismissed. [/INST] The appellant company set up a caustic soda industry at Renukoot involving the use of electricity as the main raw material.
On 30.9.63 it entered into a contract with the State of Uttar Pradesh for supply of electricity for the period of 25 years from 1.4.64, to the extent of 6.5 NW from the Rihand Hydel station at a fixed rate of 2.5 paise per unit and an additional supply of 1.5 NW from an inter connection at the rate of 5 NP per unit.
The terms of the contract provided that the transmission and distribution losses were to be borne by the company and that the rates could be raised after sixteen years but any enhancement in rates was not to exceed 10 per cent of the rates agreed upon.
Subsequently, the UP Government enacted the Electricity Laws (Uttar Pradesh Amendment) Act, 1983 which came into force from 152 20.5.1983.
Section 7 of the said Act amended section 60 of the Electricity Supply Act, 1948 by inserting sub section (3) to (5) with retrospective effect from April 1, 1965.
The Amended Act enabled the State and the Board to modify the rates of supply of Electricity to appellant under the contract of 30.9.63.
Simultaneously the Parliament also amended Section 59 of the Electricity Supply Act by the Act 18 of 1983 enabling the Electricity Board to fix the tariff in such a way so as to build up a statutory surplus fixed by the State Government.
On the passing of the Amendment Act, the Electricity Board informed the appellant company that the rates were proposed to be revised and later it informed the appellant company that on 28.9.83 the State Government, by its Gazette Notification dated 29th October, 1982, had approved the levy of HV 2 rates (i.e. uniform tariff applicable to `Bulk power ' consumers) in substitution of the rates mentioned in the agreement of 30th September, 1963.
The effect of the revision was to oblige the appellant company to pay 57.71 paise per unit for 1983 84 and 61.60 paise per unit for 1984 85.
Accordingly, supplementary bills were raised demanding Rs. 3.07 crores from the appellant company.
The appellant filed a writ petition in the High Court of Allahabad assailing the Validity of section 7 of the amending Act and the right of the Board to enhance the rates.
By its order dated 2.4.87 the High Court allowed the writ petition and quashed the approval dated 28.9.83 given by the State Government to the new rates and the consequential demands of the Electricity Board but left it to the Board and State to fix revised rates afresh by directing the respondents (1) not to charge the uniform tariff rate for the period beginning from 20th May, 1983 till the rates were fixed in accordance with section 60(5) (a); and (ii) that the rates applicable to the appellants should be determined having regard to the individual circumstances of the appellant.
The Electricity Board and the State Government preferred an appeal to this Court.
Aggrieved by the fact that in applying the HV 2 rates the Board and the State had not taken into account the special factors relevant to the supplies made to it, the appellant also filed an appeal in this Court.
In the meantime, pursuant to the directions of the High Court the Board fixed the revised rates on 28.3.88 for the supply from 20th May, 1983 which were much higher than the HV 2 rates fixed earlier and 153 quashed by the High Court.
The appeals came to be heard by this Court on April 10, 1991 when this Court directed that the appellant should make a representation to the State Electricity Board setting out the individual factors which should be taken into account in fixing the rates applicable to them within the meaning of section 60(5) (a) of the 1948 Act and that the State Government should reconsider the fixation after considering the recommendations made by the Board as well as the representations of the appellant.
Accordingly the State reconsidered the matter and by its order dated 31.8.92 approved the rates fixed by the State Government on 28.3.88.
The appellant challenged the validity of the rates fixed contending that (i) the fixation of rates as on 31.8.1992 was not valid because (a) the respondents have not complied with this court 's directions dated 10.4.1991 as they have neither disclosed the factors based on which the rates were revised in March 1988 nor indicated the monetary incidence or impact of the factors taken into account; (b) in the process of refixation of the rates there was no genuine exercise to consider relevant factors in determining the rate under section 60 (5) (a); (c) that the Board had not set out anywhere the precise manner in which the rates recommended by them were arrived at; (ii) Section 60 cannot be interpreted so as to give power to the Board to fix rates retrospectively because (a) such an interpretation precludes the Board and the State from revising the rates prospectively; (b) if the power is held exercisable more than once, it will permit successive revisions each superseding the earlier one, a position that could lead to harassment; (c) that the Hindi version of the Amendment Act is differently worded and does not contain the words "for the first time" found in the English version and in case of a conflicting version between Hindi and English version the Hindi text should be the key to find out the true intention of the Legislature; and (iii) in view of a facts (a) that the company established its industry in a backward area at the request of the State and in public interest; (b) the transmission and distribution losses are borne by the appellant and (c) electricity is one of the raw materials needed for its industry the appellant should be charged less than the HV 2 rates.
On behalf of the Electricity Board it was contended that the 154 demand of rates higher than HV 2 rates was justified because (a) the Company has been getting substantial supplies of electricity at nominal rates from 1963 to 1983; (b) The Board has incurred heavy losses over the years by supplying electricity at concessional rates; and (c) there was a necessity to build up a statutory surplus prescribed by section 59.
Allowing the Company 's appeal in part and dismissing the Electricity Board 's appeal, this Court, HELD: 1.The fixation of revised rates is not vitiated.
[173 E] 2.
Section 60 does not require the Board or the State Government to explain each and every step in its calculation.
All that the Electricity Board has to do is to take into consideration the factors relevant under section 60(5) and propose rates for fixation to the State Government.
It is in order to ensure that these recommendations take into account all relevant factors that an opportunity has been provided to the consumer to satisfy the Board as well as the State Government that the fixation has taken into account certain relevant factors.
Therefore, the rate revision proceedings were not vitiated for the reason that the Board has not set out the precise manner in which the rates recommended by them were arrived at.
[172 D E, 172 C] 2.1 Apart from the general factors which have been taken into account in fixing the general tariff rates, the Board has, in making its recommendations, taken into account the purpose for which supply was required by the appellant along with the factor of recurring losses incurred by the Board year after year and its statutory requirements to maintain a minimum surplus of 3 per cent as required under section 59 of the Supply Act, 1948.
[173 D] 2.2 The rates recommended by the State Electricity Board and approved by the State Government were within the knowledge of the appellant company.
The appellant company filed its representation.
After considering the representation, the Board made its recommendations to the State Government and a copy of the recommendations were also available to the appellant.
The appellant had full opportunity to meet the various points set out in the recommendations of the Board.
The comments of both the Board and the Appellant were taken into account by the State Government before finally approving of the rates proposed by the Board.
Therefore, the appellant company had full opportunity to place all its special feature before the Board and the 155 State Government.
[171H, 172A,B, 173E] 2.3 If one compares the two provisions viz. sections 49 and 60 one will find that most of the elements are common to the two provisions.
Both under section 49 and section 60 the authorities have to take into account the geographical position of any area, the nature of supply and purpose for which supply is required and any other relevant factor.
The only difference between the two provisions is that since section 49 deals with a general fixation while section 60(5) deals with a fixation for a particular individual case, there may be some special factors to be taken into account which may or may not be germane while fixing the general tariff under section 49.
[172H, 173 A] Indian Aluminium Company Ltd. vs Kerala State Electricity Board, ; ; cited.
A retrospective effect to the revision of rates is clearly envisaged by section 60.
One can easily conceive a weighty reason for saying so.
If the section were interpreted as conferring a power of revision only prospectively, a consumer affected can easily frustrate the effect of the provision by initiating proceedings seeking an injunction restraining the Board and thus getting the revision deferred indefinitely.
Or, again, the revision of rates, even if effected promptly by the Board and State, may prove infructuous for one reason or another.
Therefore, it would be a very impractical interpretation of the section to say that the revision of rates can only be prospective.
[174E G] 3.1 The mandate of section 60 is only that the rates to be charged on supplies for which payment becomes due after 20.8.83 shall be as fixed by the Board.
The powers of the Board in fixing the rates including the dates from which they will be operative are not restricted in any manner.
The Board is at complete liberty to fix different rates from different dates and that scheme of fixation will be read with the contract.
Only the Board cannot revise the rates in respect of supplies for which payment under the contract fell due before the Amendment Act came into force.
[175 B C] 3.2 The power under section 60 is exercisable more than once.
However, while making a subsequent revision, the authorities will not normally tamper with an earlier revision or alter the dates of effectiveness fixed for the earlier revision without a valid reason to do so.
If this is done, it will be open to a court to examine the basis thereof and 156 sustain it only where the earlier fixation was based on an error or misconception or the like and called for modification.
[175D E] 3.3 Although the Hindi version of the Amendment Act is differently worded and does not contain the words "for the first time" found in the English version, the Hindi version does not really alter the position; actually it is the presence of the words "for the first time" in the English version that create ambiguity.
Without these words, the clause clearly provides that all supply of electricity, for which payment is to be made after 20.5.83, i.e. coming into force of the Amendment Act, will be charged at the rates to be fixed by the Board.
Therefore, the fixation by the Board of rates from 20.5.83, and, at different rates for different period of time, is unexceptionable.
[175F H, 176 A] Mata Badal Pandey vs Board of Revenue, (1974) U.P.T.C. 570; referred to. 4.
There are no obstacles, statutory or theoretical, standing in the way of the Board fixing rates for the company which will be higher than the rates applicable to bulk consumers.
The provision in section 60(5)(a) is intended to enable the Board and State to cut off the shackles cast by an ancient contract entered into at a time when conditions were totally different.
It confers an absolute and unrestricted enabling power to revise the rates in an appropriate manner.
[174 A] While revising rates, the only limitation which the statute requires the authorities to keep in mind are the factors mentioned in the section.
Whether the revised rates for the consumer governed earlier by the contract should be higher or lower than, or equal to, the tariff rates would depend on a large number of considerations, in particular, the basis on which, and the point of time at which, those general rates were fixed.
In principle, it is quite conceivable that, in an appropriate case, a consideration of the relevant factors may justify even a rate higher than the general tariff rates intended for the particular category of consumers.
[174B D] 4.1 However, there is no material to justify any departure from the HV 2 rates in the case of the appellant.
The special circumstances pleaded by the appellant company have lost their importance with the passage of time.
The conditions that prevailed in 1963 are not valid and the appellant has had the benefit of concessional rates for twenty years.
The consideration that electricity is a "raw material" in the assesee 's 157 business is, again irrelevant for it can mean nothing more than that the appellant needs substantial quantities of the energy and there is no reason why it should not pay for it at the normal market rates.
Therefore, the appellant has no valid justification for staking a claim to less than the HV 2 rates.
[177B D] 4.2 Equally, the authorities have no case to raise the rates beyond the HV 2 rates.
The huge losses that the Board has been incurring and the statutory justification for escalation in the rates keeping in view the necessity to build up a surplus is an aspect of working which should affect all the consumers equally.
May be the Board can, in appropriate circumstances, seek to make up for a part of the losses by hiking up the rates to one particular category of consumers but that would not be justified here as the transmission and distribution losses in respect of the supply to the appellant are borne by it and, in the absence of some special vital reason, it would not be equitable to fix the rates of supply to the appellant above the rates applicable to other HV 2 consumers.
Therefore, there is no justification to charge more than HV 2 rates from the appellant.
[177EG, 178 B] 4.3 The determination of 1988 and 1991 are quashed.
The State Electricity Board is directed to charge the appellant Company from 20.5.83 to 31.3.89 at the HV 2 rates applicable to other consumers.
[178 B] </s> |
<s>[INST] Summarize the following judgement: N: Criminal.
Appeal No. 330 of 1980.
From the judgement and Order dated 3.4.1980 of the Madras High Court in Crl.
Appeal No. 360 of 1974.
Hardev Singh and Ms. Madhu Moolchandani for the Appellants.
V.C. Mahajan, B. Parthasarthi and Ms. A. Subhashini for the Respondents.
The Judgment of the Court was delivered by KULDIP SINGH, J.
The appellant N.M. Parthasarathy is the sole proprietor of a firm called "Elector technik".
He was formerly working as Inspector of Industries.
He along with an Inspector of Industries, was prosecuted on the allegations that between February, 1967 and February, 1969 they entered into a criminal conspiracy to obtain Small Scale Industries Registration Certificate for additional lines of manufacture, Essentiality Certificate and import licences on false representations made to the Director of Industries, Assistant Director of Industries, Joint Chief Controller of Imports/Exports and the Iron and Steel Controller.
The first 251 charge framed against both of them was for an offence of conspiracy punishable under section 120 B read with section 420 IPC and section 5(1) (b) read with section 5(2) of the Prevention of Corruption Act, 1947.
Charges 2, 4 and 6 framed against him were for offence of cheating punishable under section 420 IPC.
Charges 3, 5 and 7 were framed against the second accused for abetment of cheating punishable under section 420 read with section 109 IPC.
The 8th charge was also against the second accused under section 5 (1) (b) read with section 5 (2) of the Prevention of Corruption Act, 1947.
The trial court acquitted both of them on all the charges.
The State went in appeal against the judgment of acquittal and the High Court on re appreciation of evidence set side the acquittal and convicted both of them on all the counts.
The appellant was sentenced to undergo rigorous imprisonment for two years under Section 120 B IPC and rigorous imprisonment for two years for each of the three counts of cheating under section 420 IPC.
The sentences were to run concurrently.
We have heard Mr. Hardev Singh, learned counsel for the appellant and Mr. V.C. Mahajan, Senior Advocate for the respondents.
Mr. Hardev Singh has taken us through the judgment of the trial court and that of the High Court.
Mr. Hardev Singh has primarily argued that the High Court has grossly erred in reversing the judgment of acquittal rendered by the trial court.
According to him even if two views were possible the High Court was not justified in taking a different view than the trial court and reversing the acquittal.
This precise argument was raised before the High Court on behalf of the appellant.
The High Court rejected the same as under: "In the circumstances, I am of the opinion that this is not a case where, on the evidence available on record, two conclusions are possible and therefore this Court could not interfere with the acquittal of the accused by the learned Special Judge.
I am of the opinion that only one conclusion is possible on the evidence on record and that it is that the accused are guilty of all the charges framed against them and that interference with the acquittal of the accused by the learned Special Judge is called for in this case.
" We are of the view that the High Court was justified in reaching the above conclusion.
The High Court examined the evidence on the record in detail and rightly came to the conclusion that the guilt against the appellant was established beyond reasonable doubt.
The High Court on re appreciation of the evidence, independently reached the following findings: 252 "Thus it is established by Exhibit D 36 as well as the evidence of P.Ws 3 and 6 that the first accused had only a single phase domestic supply of electricity at his premises in Katpadi Extension even in August, 1969, that he could not have used that supply of electricity validly for any non domestic purposes and that it would not have been possible to produce any industrial machinery with that single phase power.
" "The evidence of P.W.s 6, 13, 15 and 19 shows that the machinery found in the premises of Electro technic during their inspections were worth only about Rs. 9,200 or Rs. 10,000 and not of the value of Rs. 94,000 as represented by the first accused in the list submitted by him along with his application, Exhibit P 18." "It has already been found that with the 230 Volts domestic supply he could not have produced any of the new end products.
The additional machinery required for producing these new end products had not been installed in the first accused 's factory.
It is hardly likely that all the alleged additional machinery could have been installed in the factory whose dimensions are only 18 feet by 12 feet." "It is made clear by the evidence that the second accused had made false statements in Exhibit P 96 about the alleged installation of the additional items of machinery in the first accused 's factory.
For the reasons stated above I find that the prosecution has proved charges 2 and 3 satisfactorily, beyond all reasonable doubt." "The first accused has succeeded in obtaining the Essentiality Certificate, Exhibit P.5, by making these false representations and the 2nd accused has induced P.W.5 to recommend in Exhibit P.24 the issue of the Essentiality Certificate and P.W.12 to issue the Essentiality Certificate and Exhibit P 14 by making the false representations Exhibit P 22 and P 23, as in Exhibit P 19, which have been found to be false in the earlier part of his judgment.
Therefore, I find that the prosecution has proved these two charges 4 and 5 against the accused satisfactorily and beyond all reasonable doubt." "In the present case both the accused have acted in concert in the first accused obtaining the S.S.I. registration certificate, Exhibit P 20 as amended by Exhibit P 21, the Essentiality Certificate, Exhibit P 5 and the import licenses, Exhibits P 6 and P 7, and the second accused enabling him to obtain the 253 same by his recommendations, Exhibits P 19, P 22 and P 23 which contain false particulars.
This would show that both the accused have acted in concert for committing these offences and that they would not have done so if there had been no conspiracy.
In these circumstances I find that the prosecution has established the charge of conspiracy framed against both the accused satisfactorily and beyond reasonable doubt.
" We agree with the above quoted reasoning and the conclusions reached by the High Court.
We, therefore, uphold the conviction and sentence awarded by the High Court.
While upholding the judgment of the High Court, we are inclined to agree with the learned counsel for the appellant that this is fit case where benefit of section 360, Criminal Procedure Code be extended to the appellant.
The occurrence in this case relates to the period between February, 1967 and February, 1969.
The Special Judge, Madras by his judgment dated July 23, 1973 acquitted the appellant.
The High Court on April 3, 1980 reversed the trial court and convicted the appellant.
This Court granted bail to the appellant on April 29, 1980.
Mr. Hardev Singh has placed before us documents showing several achievements of the appellant in the industrial field since then.
The appellant 's industry has manufactured the largest Hot Air Kiln in India for Ministry of Railways, largest Degreasing plant for Nuclear Fuel Complex, Sintering Furnace for anti tank missiles and various other items for the Ministry of Defence and other Departments of the Government of India.
The appellant claims that he has set up 100 per cent export unit with Rs. 75 crores export per annum.
For all these reasons we are of the view that it is expedient that the appellant be released on probation.
We, therefore, direct that he be released on his entering into a bond to the satisfaction of the Special Court, Madras.
The Special Court shall pass an order in terms of Section 360, Criminal Procedure Code, 1973 to its satisfaction.
A copy of this order be sent to the Special Court, Madras immediately.
The appellant is directed to appear before the Special Court, Madras within two months from today to enable the Special Court, Madras to pass an order as directed by us.
In the event of appellant 's failure to present himself before the Special Court as directed he shall undergo the original sentence awarded by the High Court.
The appeal is disposed of in the above terms.
T.N.A Appeal disposed of. [/INST] The appellant, (first accused), a former Inspector of Industries, alongwith an Inspector of Industries, (second accused), was prosecuted under section 120 B read with section 420 IPC, sections 5(1) (b) and 5(2) of the Prevention of Corruption Act, 1947 on the ground that both the accused entered into a criminal conspiracy and acting in concert, the first accused obtained the Small Scale Industries Registration Certificate for additional lines of manufacture, Essentiality Certificate and Import Licences on false representations while the second accused enabled him to obtain the same by his false recommendations.
The Trial Court acquitted both of them on all the charges.
The State filed an appeal before the High Court which on re appreciation of evidence held that the prosecution has established conspiracy beyond doubt and that only one conclusion was possible on the evidence that the accused are guilty of all the charges.
Accordingly it set aside the acquittal and convicted both the accused on all the counts and sentenced the appellant to imprisonment for two years under section 120 B, and for two years under section 420 IPC.
In appeal to this Court it was contended on behalf of the 250 appellant accused that: (i) the High Court erred in reversing the judgment of acquittal passed by the High Court; and (ii) the benefit of probation under section 360 of the Code of Criminal Procedure should be extended to the appellant.
Disposing the appeal, this Court, HELD: The High Court was right in coming to the conclusion that the guilt against the appellant was established beyond doubt.
Accordingly, the conviction and the sentence awarded by the High Court is upheld.
[251 G 253 B] The occurrence relates to the period between February, 1967 and February, 1969.
The Trial Court acquitted the appellant while High Court reversed the acquittal and convicted them.
This Court granted bail to the appellant in 1980.
Since then the appellant has several achievements to his credit in the industrial field.
Therefore, this is a fit case where benefit of probation under section 360 of the Code of Criminal Procedure, 1973 should be extended to the appellant.
[253 C E] </s> |
<s>[INST] Summarize the following judgement: RISDICTION: Criminal Appeal No. 47 of 1992.
From the Judgment and Order dated 13/14.8.1991 of the Bombay High Court in Crl.
W.P.No. 597 of 1991.
WITH Writ Petition (CRL.) No. 1247 of 1991.
238 (Under Article 32 of the Constitution of India) Dr. Y.S. Chitale and V.B. Joshi for the appellants/Petitioners.
Altaf Ahmed, Addl.
Solicitor General, S.M. Jadhav and A.S. Bhasme for the Respondents.
The Judgment of the Court was delivered by Dr. A.S. ANAND, J.
Leave is granted in SLP(Crl) No. 3227 of 1991.
Writ Petition No. 1247 of 1991 filed under Article 32 of the Constitution of India is also taken up for disposal along with the aforesaid appeal, which is directed against the judgment of the Division Bench of the Bombay High Court in Criminal Writ Petition No. 597 of 1991, since it is the same order of detention which has been called in question in both the cases.
Both the appeal and the Writ Petition have been filed by the wife of on Harvinder Singh @ Kukku, who has been detained vide order of detention, dated 26th February 1991, issued under the provisions of Section 3(1)n of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers and Drug Offenders Act, 1981 (hereinafter referred to as the `Act ', The appellant had questioned the detention of her husband through Criminal Writ Petition No. 597 of 1991 before the Bombay High Court on carious grounds.
The High Court, however, did not find any merit in the challenge and being of the opinion that there was no infirmity in the order of detention dismissed the Writ Petition.
Appellant has filed an appeal by Special Leave against the High Court judgment and has also questioned the order of detention through a petition under Article 32 of the Constitution.
The facts leading to the detention of the detenu as reflected in the grounds of detention are as follows: 3.
The Police personnel, attached to Matunga Police Station, where maintaining a watch on vehicles passing near the fish market with a view to check transportation of illicit liquor.
On 9th September 1991, a black Fiat Car, bearing registration No. BLD 1674, was seen coming from the direction of Chembur at about 0845 hrs.
The police party signalled the driver to a stop.
Instead of stopping the car, the detenu, who was driving the car, accelerated the car and drove it straight towards the police party that they were likely to be run over and to save themselves they jumped on the foot path.
While so driving the car towards the police party, the detenu also hurled abuses at them and shouted that he would kill them.
The detenu kept driving the car recklessly 239 and then dashed against a pedestrian causing him injury and even at that time instead of stopping the car shouted that whosoever would come in his way would be killed.
The detenu kept on driving the car recklessly and dashed the car against a stationery taxi damaging it.
As a result of the collision the car came to a stop.
As soon as the car stopped, the police party, with a view to apprehend the detenu and the other persons sitting in the car rushed towards them.
The detenu and two other persons sitting inside the car jumped out and escaped.
A police case came to be registered with the Matunga Police Station against the detenu and two unknown persons for offences under Section 307, 324 read with Section 34 of the Indian Penal Code.
The detenu made himself scarce and could not be immediately arrested.
He was eventually traced and arrested on 13th September, 1990, when he made a statement admitting that he was engaged in transporting illicit liquor on 9.9.1990 and also admitted his escape after hitting the pedestrian and the stationery taxi after driving the car towards the police party which signalled to stop him.
The detenu was produced before the Metropolitan Magistrate on 14.9.1990.
and was released on bail on the condition that he should attend the police station between 6.00 to 8.00 p.m. everyday till 24.9.1990.
However, the detenu failed to carry out the condition which led to the cancellation of his bail on 24.9.1990 and he was taken into custody.
The detenu then moved the Sessions Court against cancellation of his bail.
His application was accepted and he was admitted to bail.
The motor car of the detenu,bearing registration No. BLD 1674, was seized by the police and from the dicky of the car, 12 rubber tubes and from the rear seat of the car 13 rubber tubes, each containing about 40 litres of illicit liquor were recovered.
Samples of the seized illicit liquor were sent to the Chemical Analyst whose report, dated 10th of January 1991, indicated that the samples contained ethyl alcohol 34% v/v in water.
During the investigation of the case, the police recorded statements of four witnesses who were, however, willing to make statements only on the condition of anonymity, fearing retaliation from the detenu in case they deposed against him.
Keeping in view the activities of the detenu and the fact that he had been enlarged on bail, the detaining authority on being satisfied that unless an order of detention was made against the detenu, he was likely to indulge in activities prejudicial to the maintenance of `public order ' in future also, made an order of detention on 26th February 1991.
The grounds of detention were served on the detenu.
The order of the detention was confirmed by the State Government after considering the report of the Advisory Board constituted under 240 Section 12(1) of the Act.
The order of detention was questioned before the High Court, as already noticed through Criminal Writ Petition No. 597 of 1991, unsuccessfully.
Two basic arguments have been raised by Dr. Chitale before us to question the order of detention.
The thrust of the first argument is that the activities of the detenu could be said to be prejudicial only to the maintenance of "law and order" and not prejudicial to the maintenance of "public Order".
Learned counsel stressed that the activities, which had been attributed to the detenu, howsoever reprehensible they may be, had no impact on the general members of the community and therefore could not be said to disturb the even tempo of the society and as such his detention for acting in a manner prejudicial to `public order ' was unjustified.
The second argument of the learned counsel is based on the proviso to Section 3(2) of the Act, which according to the learned counsel, prohibited the State Government to make an order of detention, in the first instance exceeding three months and since the order of detention in the instant case was for a period exceeding three months, it was categorised as bad in law and invalid.
No other contention was pressed.
"Public Order" or "Law and Order" are two different and distinct concepts and there is abundance of authority of this Court drawing a clear distinction between the two.
With a view to determining the validity or otherwise of the order of detention, it would be necessary to notice the difference between the two concepts.
In Ram Manohar Lohia vs State of Bihar, ; speaking for the majority, Hidayatullah J. pointed out the distinction in the following words: "One has to imagine three concentric circles.
Law and order represents the largest circle within which is the next circle representing public order and the smallest circle represents security of State.
It is then easy to see that an act may affect law and order but not public order just as an act may affect public order but not security of the State.
In Arun Ghosh vs State of West Bengal, [1970] 1SCC 98 again Hidayatullah J. speaking for the Court, pointed out that what in a given 241 situation may be a matter covered by law and order, on account of its impact on the society may really turn out to be one of `public order '.
It was observed: "Take the case of assault on girls.
A guest at a hotel may kiss or make advances to half a dozen chambermaids.
He may annoy them and also the management but he does not cause disturbance of public order.
He may even have a fracas with the friends of one of the girls but even then it would be a case of breach of law and order only.
Take another case of a man who molests women in lonely places.
As a result of his activities girls going to colleges and schools are in constant danger and fear.
Women going for their ordinary business are afraid of being waylaid and assaulted.
The activity of this man in its essential quality is not different from the act of the other man but in its potentiality and in its effect upon the public tranquility there is a vast difference.
The act of the man who molests the girls in lonely places causes a disturbance in the even tempo of living which is the first requirement of public order.
He disturbs the society and the community.
His act makes all the women apprehensive of their honour and he can be said to be causing disturbance of public order and not merely committing individual actions which may be taken note of by the criminal prosecution agencies.
" [p.100] 9.
A Constitution Bench in Madhu Limaye vs Ved Murti, again dealt with the question and it was observed: "In our judgment, the expression `in the interest of public order ' in the Constitution is capable of taking within itself not only those acts which disturb the security of the State or act within order publique as described but also certain acts which disturb public transquillity or are breaches of the peace.
It is not necessary to give the expression a narrow meaning because, as has been observed, the expression `in the interest of public order ' is very wide." [p. 756] 10.
In Kanu Biswas vs State of West Bengal, [1972] 3 SCC [p.756] 831, this Court opined: "The question whether a man has only committed a breach of law and order or has acted in a manner likely to cause a disturbance of the public order,. is a question of degree and the extent of the reach of the act upon the society .
Public order is what the French 242 call "ordre publique" and is something more than ordinary maintenance of law and order.
The test to be adopted in determining whether an act affects law and order or public order, as laid down in the above case, is: Does it lead to disturbance of the current of life of the community so as to amount to a disturbance of the public order or does it affect merely an individual leaving the tranquility of society undisturbed?" [p. 834] 11.
In Ashok Kumar vs Delhi Administration, this Court re examined the question and observed: "The true distinction between the areas of `public order ' and `law and order ' lies not in the nature of quality of the act, but in the degree and extent of its reach upon society.
The distinction between the two concepts of `law and order ' and `public order ' is a fine one but this does not mean that there can be no overlapping.
Acts similar in nature but committed in different contexts and circumstances might cause different reactions.
In one case it might affect specific individuals only and therefore touch the problem of law and order, while in another it might affect public order.
The act by itself therefore is not determinant of its own gravity.
It is the potentiality of the act to disturb the even tempo of the life of the community which makes it prejudicial to the maintenance of public order." [pp. 409 10] 12.
In Subhash Bhandari vs District Magistrate, Lucknow, ; , a Division Bench of this Court has held: "A solitary act of omission or commission can be taken into consideration for being subjectively satisfied, by the detaining authority to pass an order of detention if the reach, effect and potentiality of the act is such that it disturbs public tranquility by creating terror and panic in the society or a considerable number of the people in a specified locality where the act is alleged to have been committed.
Thus it is the degree and extent of the reach of the act upon the society which is vital for considering the question whether a man has committed only a breach of law and order or has acted in a manner likely to cause disturbance to public order." [pp. 686 87] 243 13.
It is not necessary to multiply the authorities on this point.
From the law laid by this Court, as noticed above, it follows that it is the degree and extent of the each of the objectionable activity upon the society which is vital for considering the question whether a man has committed only a breach of `law and order ' or has acted in a manner likely to cause disturbance to `public order '.
It is the potentiality of the act to disturb the even tempo of life of the community which makes it prejudicial to the maintenance of `public order '.
Whenever an order of detention is questioned, the courts apply these tests to find out whether the objectionable activities upon which the order of detention is grounded fall under the classification of being prejudicial to "public order" or belong to the category of being prejudicial only to `law and order '.
An order of detention under the Act would be valid if the activities of a detenu affect `public order ' but would not be so where the same affect only the maintenance of `law and order '.
Facts of each case have, therefore, to be carefully scrutinised to test the validity of an order of detention.
Dr. Chitale did not dispute that if the activities of the detenu have the potential of disturbing the even tempo of the society or community, those activities would be prejudicial to maintenance of `public order ', he however, relied upon certain judgment to urge that "bootlegging" activity of the detenu in the instant case, could not affect public tranquillity and did not have any potential of affecting public order to justify his detention.
Reliance was placed on Om Prakash vs Commissioner of Police & Ors., [1989] Supp.
2 SCC 576; Rashidmiya vs Police Commissioner, Ahmedabad & Anr., [1989] 3 SCC 321 and Piyush Kantilal Mehta vs Commissioner of Police, Ahmedabad City and Anr., [1989] Supp. 1 SCC 322 and it was urged that in these cases an activity of "bootlegging" was not held to fall within the mischief of being prejudicial to `public order '.
Indeed, in Piyush Kantilal Mehta, Om Prakash and Rashidmiya cases (supra), the Court found that the activities of the detenu, a bootlegger in those cases, as detailed in the grounds of detention, were of a general and vague nature and those activities did not adversely affect the maintenance of `public order ' under Section 3(4) of the Gujarat Prevention of Anti Social Activities ' Act, 1985.
The Bench in Rashidmiya and Om Prakash 's cases (supra) relied upon the judgment in Piyush Kantilal Mehta 's case and on the facts of those cases quashed the order of detention.
In Piyush Kantilal Mehta 's case (supra), the allegations, in the ground of detention, were that the detenu was a bootlegger, who was indulging in the 244 sale of foreign liquor and that he and his associates were also using force and violence and beating innocent citizens creating a sense of terror.
The detenu was caught possessing English liquor with foreign markings as well as foreign liquor.
The Court found that the detenu was only a bootlegger and he could not be preventively detained under the provisions of the Gujarat Prevention of Anti Social Activities ' Act, 1985 unless as laid down in sub Section (4) of Section 3 of that Act, his activities as a bootlegger had the potential of affecting adversely or were likely to affect adversely, the maintenance of `public order ' and on the peculiar facts of the case, it was found that the alleged activities of the detenu did not affect `public order ' but created only a law and order problem.
Dr. Chitale then placed reliance on State of U.P. vs Hari Shankar Tewari; , ; Ahmedhussain Shaikhhussain vs Commissioner of Police, Ahmedabad and Anr. ; ; T. Devaki vs Government of Tamil Nadu & Ors., ; ; Ashok Kumar vs Delhi Administration and Ors.
, ; but none of these judgments lay down tests different than the ones which we have culled out from the judgments of this court referred to earlier.
Those cases were decided on their peculiar facts.
The courts were very much alive to the conceptual difference between activities prejudicial to law and order and those prejudicial to public order and since on facts it was found that the activities of the detenu were not prejudicial to `public order ', the orders of detention were quashed.
Crime is a revolt against the whole society and an attack on the civilization of the day.
Order is the basic need of any organised civilized society and any attempt to disturb that order affects the society and the community.
The distinction between breach of `law and order ' and disturbance of `public order ' is one of degree and the extent of reach of the activity in question upon the society.
In their essential quality, the activities which affects `law and order ' and those which disturb `public order ' may not be different but in their potentiality and effect upon even tempo of the society and public tranquility there is a vast difference.
In each case, therefore, the courts have to see the length, magnitude and intensity of questionable activities of a person to find out whether his activities are prejudicial to maintenance of `public order ' or only `law and order '.
There is no gain saying that in the present state of law, a criminal can be punished only when the prosecution is able to lead evidence and prove the case against an accused person beyond a reasonable doubt.
Where the prosecution is unable to lead evidence to prove its case, the case fails, though that failure does not imply that no crime had been committed.
Where the 245 prosecution case fails, because witnesses are reluctant on account of fear of retaliation to come forward to depose against an accused, obviously, the crime would go unpunished and the criminal would be encouraged.
In the ultimate analysis, it is the society which suffers.
Respect for law has to be maintained in the interest of the society and discouragement of a criminal is one of the ways to maintain it.
The objectionable activities of a detenu have, therefore, to be judged in the totality of the circumstances to find out whether those activities have any prejudicial affect on the society as a whole or not.
If the society, and not only an individual, suffers on account of the questionable activities of a person, then those activities are prejudicial to the maintenance of `public order ' and are not merely prejudicial to the maintenance of `law and order '.
The Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers and Drug Offenders Act, 1981 was enacted to provide for preventive detention of slumlords, bootleggers and drug offenders for preventing their dangerous activities prejudicial to the maintenance of `public order '.
Section 2(a) defines the meaning of the expression "acting in any manner prejudicial to the maintenance of public order" and reads as follows: "acting in any manner prejudicial to the maintenance of public order" means (i) in the case of a slumlord, when he is engaged, or is making preparations for engaging, in any of his activities as a slumlord, which affect adversely, or are likely to affect adversely, the maintenance of public order; (ii) in the case of a bootlegger, when he is engaged, or is making preparations for engaging, in any of his activities as a bootlegger, which affect adversely, or are likely to affect adversely, the maintenance of public order; (iii) in the case of drug offender, when he is engaged or is making preparations for engaging, in any of his activities as drug offender, which affect adversely, or are likely to affect adversely, the maintenance of public order; Explanation: For the purpose of this clause (a), public order shall be deemed to have been affected adversely, or shall be deemed 246 likely to be affected adversely, inter alia, if any of the activities of any of the persons referred to in this clause, directly or indirectly, is causing or calculated to cause any harm, danger or alarm of a feeling of insecurity, among the general public or any section thereof or a grave or widespread danger to life or public health;" 20.
The explanation to Section 2(a) (supra) brings into effect a legal fiction as to the adverse affect on `public order '.
It provides that if any of the activities of a person referred to in clause [ (i) (iii) ] of Section 2(a) directly or indirectly causes or is calculated to cause any harm, danger or alarm or a feeling of insecurity among the general public or any Section thereof or a grave or a wide spread danger to life or public health, then public order shall be deemed to have been adversely affected.
Thus, it is the fall out of the activity of the "bootlegger" which determines whether `public order ' has been affected within the meaning of this deeming provision or not.
This legislative intent has to be kept in view while dealing with detentions under the Act.
Let us now consider the facts of the instant case.
The substance of the grounds on which detention has been ordered is that the detenu is bootlegger and in furtherance of his activities and to escape from the clutches of law, he even tried to run over, by his speeding vehicle, the police party, which tried to signal him to a stop, exhorting all the time that he would kill anyone who would come in his way.
He continued to drive in a reckless speed and dashed against a pedestrian causing injuries to him, where again he had exhorted that anyone who would come in his way would meet his death.
Four witnesses A,B,C,D, who agreed to give statements to the police on conditions of anonymity, clearly stated that they would not depose against the detenu for fear of retaliation as the detenu had threatened to do away with anyone who would depose against him.
The evidence of these witnesses show that the detenu was indulging in transporting of illicit liquor and distributing the same in the locality and was keeping arms with him while transporting liquor.
The activities of the detenue, therefore, were not merely "bootlegging" as was the position in Om Prakash, Rashidmiya and Piyush Kantilal Mehta 's cases (supra) but went further to adversely affect the even tempo of the society by creating a feeling of insecurity among those who were likely to depose against him as also the law enforcement agencies.
The fear psychosis created by the detenu in the witnesses was aimed at letting the crime go unpunished which has the potential of the society, and not merely some individual, to suffer.
The activities of the detenu, therefore, squarely fall within the deeming provision enacted in the explanation of Section 2(a) of the Act, and it therefore, follows as a logical consequence that the activities of 247 the detenu were not merely prejudicial to the maintenance of `law and order ' but were prejudicial to the maintenance of "public order".
The first argument raised by Dr. Chitale against the order of detention, therefore, fails.
Coming now to the second argument of Dr. Chitale to the effect that proviso to Section 3(2) of the Act, prohibited the State Government to make an order of detention in the first instance, exceeding three months, and since the order of detention in the instant case had been made for a period exceeding three months, it was vitiated.
Section 3 reads as follows: "Power to make orders detaining certain persons.
(1) The State Government may, if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the maintenance of public order, it is necessary so to do, make an order directing that such person is detained.
(2) If, having regard to the circumstances prevailing or likely to prevail in any area within the local limits of the jurisdiction of a District Magistrate or a Commissioner of Police, the State Government is satisfied that it is necessary so to do, it may, by order in writing, direct, that during such period as may be specified in the order such District Magistrate or Commissioner of Police may also, if satisfied as provided in sub section (1), exercise the powers conferred by the said sub section: Provided that the period specified in the order made by the State Government under this sub section shall not, in the first instance, exceed three months but the State Government may, if satisfied as aforesaid that it is necessary so to do, amend such order to extend such period from time to time by any period not exceeding three months at any one time.
(3) When any order is made under this section by an officer mentioned in sub section (2), he shall forthwith report that fact to the State Government, together with the grounds on which the order has been made and such other particulars as, in his opinion, have a bearing on the matter, 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." 248 A plain reading of the Section shows that the State Government under Section 3(1), if satisfied, with respect to any person that with a view to preventing him from acting in a manner prejudicial to the maintenance of "public order", it is necessary so to do , make an order of detention against the person concerned.
Sub section (2) of Section 3 deals with the delegation of powers by the State Government and provides that if the State Government is satisfied, having regard to the circumstances prevailing in any area within the local limits of the jurisdiction of a District Magistrate or a Commissioner of Police, it is necessary to empower District Magistrate or the Commissioner of Police, as the case may be to exercise the powers of the State Government to order detention of a person as provided by sub Section (1), then the State Government may, by an order in writing direct that during such period as may be specified in the order, the District Magistrate or the Commissioner of Police may also if satisfied as provided in sub section (1), exercise the powers of the State Government as conferred by sub Section (1).
The proviso to sub Section (2), only lays down that the period of delegation of powers, specified in the order to be made by the State Government under sub section (2), delegating to the District Magistrate or the Commissioner of Police the powers under sub section (1) shall not in the first instance exceed three months.
The proviso, therefore, has nothing to do with the period of detention of a detenu.
The maximum period of detention is prescribed under Section 13 of the Act which lays down that a person may be detained in pursuance of any detention order made under the Act, which has been confirmed under Section 12 of the Act.
It is, therefore, futile to contend that the order of detention in the instant case was vitiated because it was for a period of more than three months.
The second argument, therefore, also fails.
We are, in the facts and circumstances of the case, satisfied that the Division Bench of the Bombay High Court rightly dismissed the Criminal Writ Petition No. 597 of 1991 and that order does not call for any interference.
The Appeal fails and is dismissed.
Writ Petition No. 1247 of 1991 also fails and is hereby dismissed since the order of detention does not suffer from any infirmity.
G.N. Appeal/Petition dismissed. [/INST] With a view to check transportation of illicit liquor, the Police were maintaining a watch and the speeding car driven by the detenu, husband of the appellant/petitioner was signalled to stop.
Instead,the detenu accelerated the car and drove straight towards the Police party.
They had to jump on to the foot path to save themselves.
The detenu hurled abuses and threatened to kill the Police officers.
He kept on driving the car recklessly, dashed against a pedestrian thereby injuring him.
Ultimately the car collided with a stationary taxi and stopped.
The Police rushed to apprehend the detenu and two others in the car, but they jumped out of the car and escaped.
Police seized the motor car and recovered illicit liquor therefrom.
A police case was registered against the detenu and two other unknown persons for offences under Sections 307,324 read with Section 34 IPC.
The detenu made himself scarce and could not be arrested immediately.
However, after a few days he was arrested and he admitted the incident including his escape.
He was produced before the Magistrate and was released on bail on the condition that he should report to the police daily.
Since the detenu failed to carry out the condition, bail was cancelled and he was taken into custody.
The detenu then moved the Sessions Court against the cancellation of his bail, which was admitted and he was granted bail.
During the investigation of the case, Police could record statements 235 from four witnesses, who deposed only on condition of anonymity as they feared retaliation from the detenu.
The detaining authority on being satisfied that the detenu was likely to indulge in activities prejudicial to the maintenance of "public order" passed an order of detention and the grounds of detention were served on the detenu.
The said order was confirmed by the State Government on the report of the Advisory Board.
The wife of the detenu challenged the detention order before the High Court.
The High Court having dismissed the Writ Petition she has filed the present appeal by special leave, as also a Writ Petition before this Court, challenging the detention order passed against her husband.
On behalf of the appellant/petitioner, it was argued that the activities of the detenu had no impact on the public and therefore could not be said to have disturbed the even tempo of the society and as such his detention for acting in a manner prejudicial to the "public order" was unjustified.
It was further contended that Section 3(2) of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers and Drug Offenders Act, 1981 prohibited the State Government to make an order of detention in the first instance, exceeding three months, and since in the present case the detention order was for more than three months, it was invalid.
Dismissing the matters, this Court, HELD: 1.1.
Crime is a revolt against the whole society and an attack on the civilization of the day.
Order is the basic need of any organised civilized society and any attempt to disturb that order affects the society and the community.
The distinction between breach of `law and order ' and disturbance of 'public order ' is one of degree and the extent of reach of the activity in question upon the society.
In their essential quality, the activities which affect "law and order" and those which disturb "public order" may not be different but in their potentiality and effect upon even tempo of the society and public tranquility there is a vast difference.
In each case, therefore, the courts have to see the length, magnitude and intensity of the questionable activities of a person to find out whether his activities are prejudicial to maintenance of "public order" or only "law and order".
[244E G] 1.2 Respect for law has to be maintained in the interest of the society and discouragement of a criminal is one of the ways to maintain it.
The 236 objectionable activities of a detenu have, therefore, to be judged in the totality of the circumstance to find out whether those activities have any prejudicial affect on the society as a whole or not.
If the society.
and not only and individual, suffers on account of the questionable activities of a person, then those activities are prejudicial to the maintenance of "public order" and are not merely prejudicial to the maintenance of "law and order".
An order of detention would be valid if the activities of a detenu affect "public order" but would not be so where the same affect only the maintenance of "law and order".[245B C] Ram Manohar Lohia vs State of Bihar.
; ; Arun Ghosh vs
State of West Bengal, ; Madhu Limaye vs Ved Murti, [1970]3 SCC 738; Kanu Biswas v State of West Bengal, ; ; Ashok Kumar vs Delhi Administration, ; Subhash Bhandari vs District Magistrate, Lucknow; , , relied on.
State of U.P vs Hari Shankar Tewari, [1987] 2SCC 490; Ahmedhussain Shaikhhussain vs Commissioner of Police, Ahmedabad & Anr, [1989]4 SCC 751; T.Devaki vs Government of Tamil Nadu & Ors.
[1990] 2SCC 456; Referred to 2.1 The explanation to Section 2(a) of the Maharashtra Prevention of Dangerous Activities of Slumords, Bootleggers and Drug offenders Act, 1981 brings into effect a legal fiction as to the adverse affect on `public order '.
It provides that if any of the activities of a person referred to in clauses ( (i) (iii) of Section 2(a) directly or indirectly causes or is calculated to cause any harm, danger or alarm or a feeling of insecurity among the general public or any section thereof or a grave or a wide spread danger to life or public health, then public order shall be deemed to have been adversely affected.
Thus, it is the fall out of the activity of the `bootlegger ' which determine whether `public order ' has been affected within the meaning of deeming provision or not.
This legislative intent has to be kept in view while dealing with detentions under the act.
[246 B, C] 2.2 In the instant case, the substance of the grounds on which detention has been ordered is that the detenu is a bootlegger and in furtherance of his activities and to escape from the clutches of law, he even tried to run over, by his speeding vehicle, the police party, which tried to signal him to a stop, exhorting all the time that he would kill anyone who would come in his way.
He continued to drive in a reckless speed and dashed against a pedestrian causing injuries to him, where 237 again he had exhorted that anyone who would come in his way would meet his death.
Four witnesses A, B, C, D, who agreed to give statements to the police on conditions of anonymity, clearly stated that they would not depose against the detenu for fear of retaliation as the detenu had threatened to do away with anyone who would depose against him.
The evidence of witnesses shows that the detenu was indulging in transporting of illicit liquor and distributing the same in the locality and was keeping arms with him while transporting liquor.
The activities of the detenu, therefore, were not merely `bootlegging ' but went further to adversely affect the even tempo of the society by creating a feeling of insecurity among those who were likely to depose against him as also the law enforcement agencies.
The fear psychosis created by the detenu in the witnesses was aimed at letting the crime go unpunished which has the potential of the society, and not merely some individual, to suffer.
The activities of the detenu, therefore, squarely fall within the deeming provision enacted in the explanation to Section 2(a) of the Act.
It, therefore, follows that the activities of the detenu were not merely prejudicial to the maintenance of `law and order ' but were prejudicial to the maintenance of `public order '.
[246D H, 247 A] Om Prakash vs Commissioner of Police & Ors., [1989] Supp.
(2) SCC 576; Rashidmiya vs Police Commissioner, Ahmedabad & Anr., [1989] 3 SCC 321; Piyush Kantilal Mehta vs Commissioner of Police, Ahmedabad City and Anr., [1989] Supp.
(1) SCC 322, referred to.
The maximum period of detention is prescribed under Section 13 of the Act which lays down that a person may be detained in pursuance of any detention order made under the Act, which has been confirmed under Section 12 of the Act.
Therefore, the order of detention in the instant case, though it was for a period of more than three months, is not vitiated since the order is in conformity with the said provisions.
[248D, E] </s> |
<s>[INST] Summarize the following judgement: DICTION: Writ Petition NO.
844 OF 1991.
(Under Article 32 of the Constitution of India) WITH S.L.P.NOS. 16475 & 17635 of 1991.
N.S. Hegde, Amrendra Bal and J.R. Das for the Petitioners.
Soresh Roy, Ms. Kirti Mishra and P.N. Mishra for the Respondents.
The Judgment of the Court was delivered by KANIA, CJ.
We have already dismissed the writ petition and special leave petitions by our order dated 5.12.1991.
We would, however, like to make a suggestion to the authorities for their consideration that some preference might be given to in service candidates who have done five years of rural service.
In the first place, it is possible that the facilities for keeping up with the latest medical literature might not be available to such in service candidates and the nature of their work makes it difficult for them to acquire knowledge about very recent medical research which the candidates who have come after freshly passing their graduation examination might have.
Moreover, it might act as an incentive to doctors who had done their graduation to do rural service for some time.
Keeping in mind the fact that the rural areas had suffered grievously for non availability of qualified doctors giving such incentive would be quite in order.
Learned counsel for the respondents has, however, drawn out attention to the decision of a Division Bench of two learned judges of this Court in Dr. Dinesh Kumar & Ors.
vs Motilal Nehru Medical College, Allahabad & Ors., [1986] 3 SCC page 727 at 740.
It has been observed there that merely by offering a weightage of 15 per cent to a doctor for three years rural service would not bring about a migration of doctors from the urban to rural areas.
They observed that it you want to produce doctors who are MD or MS, particularly surgeons, who are going to operate upon human beings, it is of utmost importance that the selection should be based on merit.
Learned Judges have gone on to observe that no weightage should be given to a candidate for rural service rendered by him so far as admissions to post graduate courses are concerned (see para 12 at pate 741).
In our opinion, this observation certainly does not constitute the ratio of the decision.
The decision is in no way dependent upon these 337 observations.
Moreover, those observations are in connection with All India Selection and do not have equal force when applied to selection from a single State.
These observations, however, suggest that the weightage to be given must be the bare minimum required to meet the situation.
In these circumstances, we are of the view that the authorities might well consider giving weightage upto a maximum of 5 per cent of marks in favour of in service candidates who have done rural service for five years or more.
The actual percentage would certainly have to be left to the authorities.
We also clarify that these suggestions do not in any way confer any legal right on in service students who have done rural service nor do the suggestions have any application to the selection of the students upto the end of this year. [/INST] The writ petition and the SLPs were dismissed by this Court 's order dated 5.12.1991.
Taking judicial notice of the fact that the rural areas had suffered for non availability of qualified doctors, this Court suggested that some preference might have to be given to in service candidates who have done five years of rural service.
HELD: 1.01.
The authorities might well consider giving weightage upto a maximum of 5 per cent of marks in favour of in service candidates who have done rural service for five years or more.
The actual percentage would certainly have to be left to the authorities.
[327 B] 1.02.
This might act as an incentive to doctors who had done their graduation to do rural service for some time.
[326 E] 1.03.
The observation in Dr. Dinesh Kumar and Others vs Motilal Nehru Medical College, Allahabad and others, [1986] 3 SCC page 727 at 740 to the effect that no weightage should be given to the candidate for rural service rendered by him so far as admissions to post graduate courses are concerned is not the ratio of the judgment but a mere observation.
[336 H 337 A] 1.04.
The suggestions do not in any way confer any legal right on in service students who have done rural service nor do they have any application to the selection of the students upto the end of the year.
[337 B] Dr Dinesh Kumar & Ors.
vs Motilal Nehru Medical College, Allahabad & Ors., ; at page 740, distinguished. </s> |
<s>[INST] Summarize the following judgement: ivil Appeal No. 3087 of 1991.
From the Judgment and Order dated 23.11.
1990 of the Delhi High Court in F.A.O. (O.S.) 123 of 1989.
Kapil Sibal, D.D. Thakur, Ms. Lira Goswamy, A.K. Mahajan, A.S. Chandhoik, Ms. Meera Chibar and Dinesh Agnani for the appearing parties.
414 The Judgment of the Court was delivered by K. JAGANNATHA SHETTY, J.
We grant special leave and proceed to dispose of the appeal.
The General Electric Technical Services Company (`GET SCO ') had entered into a contract with Indian Airlines which included, inter alia, the construction and fabrication of air craft testing centre/engine repair centre in Delhi.
The GETSCO in turn entered into a contract with M/s Punj Sons (P) Ltd. respondent 1 for getting that work done for Indian Airlines.
As per the contract respondent I was required to provide performance bond equal to 30 per cent of the total value of contract price which was to be split up into two performance bonds partly to be released on completion of the project, and the balance upon the expiration of the warran ty.
The respondent I was also required to furnish a bank guarantee to secure the mobilisation advance of 25 per cent of the contract value.
On 28 October, 1986 respondent 1 furnished the bank guarantee to secure the mobilisation advance of Rs. 1,86,00,000.
The guarantee was furnished by Hongkong & Shanghai Bank ( 'the Bank ') respondent 2.
Respondent I instead of furnishing the two performance bonds, as agreed upon, wrote a letter dated 3 September, 1987, as follows: ". .
Sub: Jet Engine Test & Repair Centre at Palam Finance September 3, 1987 Dear Sir, In terms of above contract we have to submit two separate Bonds for Mobilisation advance & performance guarantee & 25% and 30% of the Contract value.
Bank Guarantee for mobilisation advance has already been submit ted and we have not to submit the Performance Bonds for 30% of the Contract value.
Since the amount of Performance Bond shall be progres sively utilised over the contract period, in order to reduce Bank charges and marginal money, we would like to suggest alternative proposals to meet with your requirements: 415 AA.
We propose to submit performance guaran tees for 30% of the contract value duly signed by two directors in their personal capacity and countersigned by Punj Sons (Pvt) Ltd. This Performance bond shall include identical terms & conditions, as desired in your format.
Similar Bond has already been accepted by M/s Hindustan Petroleum Corporation Ltd. Bombay for their Bombay Pune Pipeline Project valued at Rs.7.05 crores.
Alternatively, we would suggest submission of a Composite Bank gurantee where amount vacated by Mobilisation advance shall be utilised by Performance Bank Guarantee amount.
This Guarantee shall at any time be valid for equivalent to 30% of the contract value, to cover unrecovered mobilisation advance and Performance Guarantee amount of the work certified.
We have submitted similar Bonds to a number of our customers to their entire satis faction.
May we request you to look into the above arrangement and allow us to submit the above Bond or Composite Bank Guarantee under this Contract.
Thanking you and assuring you of our best services at all times. " GETSCO has accepted the revised proposal contained in the aforesaid letter.
Consequently, on 25 January 1988, the Bank furnished a composite bank guarantee for Rs.2, 12,25,000.
Out of this composite bank guarantee 15 per cent being Rs. 1,06,12,500 would remain in force until 30 June, 1988 and the balance 15 per cent would remain valid till final acceptance certificate i.e. till 30 June 1989.
It seems respondent 1 failed to complete the project within the stipulated time as per contractual specifications despite repeated opportunities to rectify defects and defi ciencies prior to August 1988 and thereafter.
GETSCO termi nated respondent 1 's right to continue the project and wrote a letter dated 17 April 1989 to the Bank seeking encashment of the bank guarantee dated 25 January 1988 for Rs. 1,06, 12,500.
On the same day the bank issued a cashier 's order No. 2605 for Rs. 1,06, 12,500 in favour of GETSCO.
On 18 April 1989 the respondent 1 filed a suit for injunction against GETSCO and the Bank in the High Court and obtained an ex parte injunction at the residence 416 of learned Single Judge restraining the Bank and GETSCO from encashing the bank guarantee.
On 11 July 1989 the ex parte injunction was vacated.
On the same day respondent 1 preferred an appeal to the Division Bench of the High Court and obtained stay of encashment of he bank guarantee.
On 23 November 1990, the Division Bench allowed the appeal, set aside the order of learned Single Judge and stayed the encashment of the bank guarantee till the disposal of the respondent 's suit.
It seems to us that the Division Bench of the High Court has misconstrued the terms of the bank guarantee and the rights and liabilities of the parties thereunder.
The first bank guarantee dated 28 October, 1986 is in these terms: "1.
In consideration of General Electric Technical Services co. Inc. Cincinnati, Ohio, U.S.A. C/o M/s P.L. Jaitly & co. IE/12, Jhandewalan Extension, New Delhi (hereinafter called the owner) having agreed to grant mobilisation advance of Rs.18,600,000 [Rs. Eighteen million six hundred thousand only] to M/s Punj Sons Pvt. Ltd., Industrial Area, Kalkaji, New Delhi 110019 (hereinafter called Contractor) under the terms and conditions of Tender No. HB 040 I made by and between, owner and Contractor for Indian Airlines Jet Engine Repair and Test Facilities Phase II Construc tion being undertaken at the Indira Gandhi International Airport, New Delhi (here in called the Agreement) on the production of Bank Guarantee for Rs.18,600,000 [Rupees eighteen million six hundred thousand only] we, Hongkong & Shanghai Banking Corporation, 28 Kasturba Gandhi Marg, New Delhi 110001 (hereinafter called Bank) do hereby undertake to pay to the Owner an amount not exceeding Rs. 18,600,000 [Rs. eighteen million six hundred thousand only], against any loss or damage caused to or suffered or would be caused to or suffered by the owner by reason of any breach by the Contractor of the terms and conditions contained in the Agreement.
We, the Bank do hereby undertake to pay the amount due and payable under this Guarantee with demur, merely on demand from the owner stating that the amount claimed is due by way of loss or damage caused to or would be caused to or suffered by the owner by reason of any breach 417 by the Contractor of any of the terms or conditions contained in the Agreement or by reason of the Contractor 's failure to perform the Agreement.
Any such demand made on the Bank shall be conclusive, as regards the amount due and payable by the Bank under this Guarantee.
However, our liability under this Guarantee shall be restricted to an amount not exceeding Rs.18,600,000 [Rupees eighteen million six hundred thousand only].
We, the Bank further agree that the Guaran tee herein contained shall remain in force and effect during the period that would be taken for the performance of the Agreement and that it shall continue to be enforceable till all the due of the owner under or by virtue of the Agreement have been fully paid and its claims satisfied or discharged or till the owner certifies that the terms and conditions of the Agreement have been tully and properly carried out by the Contractor and accordingly dis charges the Guarantee.
Unless a demand or claim under this Guarantee is made on us in writing on or before the date (named in the Agreement as the end of the warrant/mainte nance period) we shall be discharged from all liability under this Guarantee thereafter.
We, the Bank further agree with the Owner that the owner shall have the fullest liberty without our consent and without affecting in any manner our obligations hereunder to vary any of the terms and conditions of the Agree ment or to extend time of performance by the Contractor from time to time or to postpone for any time or from time to time any of the powers exercisable by the owner against the Contractor and to forbear or enforce any of the terms and conditions relating to the Agreement and we shall not be relieved from our liability by reason of any such variation, or extension being granted by the owner or any indulgence by the owner to the Contractor or by any such matter or thing whatsoever which under the law relating to sureties would but for this provision have effect of so relieving us.
We, the Bank lastly undertake not to revoke this Guarantee during its currency except with the previous consent of the owner in writing.
418 Notwithstanding anything stated above, our liability under this Guarantee is restricted to a sum of Rs. 18,600,000 [Rs. eighteen million six hundred thousand only].
Our Guar antee shall remain in force until the (date named in the Agreement as the end of the warrant/maintenance period).
Unless a demand is lodged with us on or before that date 13 day of February 1988, all your rights under the said guarantee shall be forfeited and we shall be relieved and discharged from all liabilities thereafter.
" The relevant terms of the second composite bank guarantee dated 25 January 1988 are as follows: "Bank Guarantee No. 86 NDH 918 dt.
28.10.1986 for Rs. 1,86,00,000 favouring M/s General Electric & Technical Services Co. Inc. Under the instructions from our clients M/s Punj Sons (Pvt) Ltd. M 13, Connaught Place, New Delhi 110001, we hereby enhance the value of the above Bank Guarantee upto Rs.21,225,000 [Rupees twenty one million two hundred twenty five thousand only] being 30% of the revised Lumpsum Contract value of Rs.70,750,000 [Rupees seventy million seven hundred fifty thousand only].
This Bank Guarantee shall act 'Composite Bank Guarantee ' for Mobilisation Advance and Performance Bond where in Bank Guarantee, to the extent of amounts of Mobilisation Advance so recovered, shall be utilised towards Two Performance Bonds of 15% of the Contract value each valid upto 30th June, 1988 and 30th June, 1989, respectively.
All the other terms and conditions of the original Guarantee will remain unchanged.
We, the Hongkong & Shanghai Banking Corpora tion, 28, Kastruba Gandhi Marg, New Delhi 110001, hereby undertakes not to revoke the Guarantee during the currency except with the previous consent of the General Electric 419 and Technical Services Company Inc. Notwithstanding, anything contained herein before our liability under this Guarantee is restricted to Rs.21,225,000 [Rupees Twenty One Million Two Hundred Twenty five thousand only] and the recovery of Mobilisation advance from Running Bills Account will be in accordance with the contract, the Guarantee against such amounts of Mobilisation Advance as so recov ered shall be treated towards performance Guarantee with the intent that after recovery of Mobilisation Advance in full, the Guarantee shall operate against the full value of Per formance Bond.
Out of the said guarantee amount, the Bank Guarantee amount of Rs.10,612,500 [Rupees ten million six hundred twelve thousand & five hundred only] being the 15% of lumpsum value of the contract shall remain in force till the completion of the Project i.e. upto 30th June 1988 and the Bank Guarantee for the balance amount i.e. Rs.10,612,500 [Rupees ten million six hundred twelve thousand five hundred only] being 15% amount shall remain in force till final ac ceptance certificate till 30th June, 1989.
NOTWITHSTANDING anything contained hereinbe fore our liability under this Guarantee will be restricted to Rs.21,225,000 [Rupees twenty one million two hundred twenty five thousands only] until 30th June 1988 and will automati cally stand reduced from Rs.21,225,000 to Rs.10,612,500 (Rupees ten million six hundred twelve thousand and five hundred only) on 30th June, 1988 without further reference to you.
Our liability will continue only to the extent of the balance amount of Rs.10,612,500 [Rupees ten million six hundred twelve thousand and five hundred only] after 30th June, 1988 and will be conditional upon a claim being filed with us in writing on or before 30th June 1989.
Thereafter our liability under this guarantee shall stand extinguished and we shall be relieved and discharged from all liabilities thereunder.
" The second bank guarantee with which we are concerned makes a reference to the first guarantee.
It states that the guarantee is a composite bank guarantee for mobilisation of advance and performance bond.
It further states that all the other terms and conditions of 420 the original Guarantee will remain unchanged.
The liability of the Bank shall automatically reduce from Rs.2,12,25,000 to Rs. 1,06, 12,500 on 30 June 1988, which will continue even after 30 June, 1988 and will be condi tional upon a claim being filed with the Bank in writing on or before 30 June 1989.
In the first guarantee, the Bank has undertaken to pay to GETSCO the amount guaranteed without any demur merely on demand stating that the amount is due by way of loss or damage caused to or would be caused to or suffered by GETSCO by reason of any breach committed by the respondent on any of the terms or conditions contained in the agreement or by reason of respondent 's failure to per form the agreement.
It is also provided that any such demand by GETSCO made on the Bank shall be conclusive as regards the amount due and payable by the Bank under the guarantee.
The GETSCO has only sought to enforce the bank guarantee for the balance amount of Rs. 1,06, 12,500 on a complaint that respondent 1, has failed to perform the contract as per the terms and conditions.
The Bank has undertaken to pay this sum of money and it is a commitment of the Bank.
The Bank must honour its commitment when demand is made.
Indeed, the Bank was prepared to pay and has in fact issued the Cash ier 's order as per demand from GETSCO, but the Court has directed the Bank not to pay under the guarantee.
The question is whether the Court was justified in restraining the Bank from paying to GETSCO under the bank guarantee at the instance of respondent 1.
The law as to the contractual obligations under the bank guarantee has been well settled in a catenae of cases.
Almost all such cases have been considered in a recent judgment of this Court in U.P. Cooperative Federation Ltd. vs Singh Consultants and Engineers (P) Ltd., wherein Sabyasachi Mukherji, J., as he then was, observed (at 189) 'that in order to restrain the operation either of irrevocable letter of credit or of confirmed letter of credit or of bank guar antee, there should be serious dispute and there should be good prima facie case of fraud and special equities in the form of preventing irretrievable injustice between the parties.
Otherwise, the very purpose of bank guarantees would be negatived and the fabric of trading operations will get jeopardised '.
It was further observed that the Bank must honour the bank guarantee free from interference by the Courts.
Otherwise, trust in commerce internal and interna tional would be irreparably damaged.
It is only in excep tional cases that is to say in case of fraud or in case of irretrievable injustice, the Court should interfere.
In the concurring opinion one of us (K. Jagannatha Shetty, J.) has observed that whether it is a 421 traditional bond or performance guarantee, the obligation of the Bank appears to be the same.
If the documentary credits are irrevocable and independent, the Bank must pay when demand is made.
Since the Bank pledges its own credit in volving its reputation, it has no defence except in the case of fraud.
The Bank 's obligations of course should not be extended to protest the unscrupulous party, that is, the party who is responsible for the fraud.
But the banker must be sure of his ground before declining to pay.
The nature of the fraud that the courts talk about is fraud of an "egre gious nature as to vitiate the entire underlying transac tion".
It is fraud of the beneficiary, not the fraud of somebody else.
The High Court has observed that failure on the part of GETSCO to make a reference to mobilisation advance in the letter seeking encashment of the bank guarantee would be tantamount to suppression of material facts, in the sense that the mobilisation advance was, under the contract to be recovered from the running bills.
It was further observed that disclosure of such facts would have put the bank to further inquiry as to what was the amount covered by those bills and what was the corresponding amount of the mobilisa tion advance and to what extent the amount covered by the bank guarantee remained payable.
In any event, the High Court said, that GETSCO could not demand full amount of the bank guarantee on 17 April 1989.
It seems to us that the High Court has misconstrued the terms of the bank guarantee and the nature of the inter se rights of the parties under the contract.
The mobilisation advance is required to be recovered by GETSCO from the running bills submitted by the respondent.
If the full mobilisation advance has not been recovered, it would be to the advantage of the respondent.
Secondly, the Bank is not concerned with the outstanding amount payable by GETSCO under the running bills.
The right to recover the amount under the running bills has no rele vance to the liability of the Bank under the guarantee.
The liability of the Bank remained intact irrespective of the recovery of mobilisation advance or the non payment under the running bills.
The failure on the part of GETSCO to specify the remaining mobilisation advance in the letter for encashment of bank guarantee is of little consequence to the liability of the Bank under the guarantee.
The demand by GETSCO is under the Bank guarantee and as per the terms thereof.
The Bank has to pay and the Bank was willing to pay as per the undertaking.
The Bank cannot be interdicted by the Court at the instance of respondent 1 in the absence of fraud or special equities in the form of preventing irre trievable injustice between the parties.
422 The High Court in the absence of prima facie case on such matters has committed an error in restraining the Bank from honouring its commitment under the bank guarantee.
In the result, we allow the appeal, set aside the im pugned judgment and order of the High Court.
The appellant is entitled to costs in this Court.
S.L.P. (Civil) No. of 1991 (In CC 13 153/91) Since we have set aside the order of the Division Bench of the High Court this Special Leave Petition does not survive and is accordingly dismissed.
No costs.
V.P.R. Appeal allowed. [/INST] The appellant 's contract with Indian Airlines included the construction and fabrication of air craft testing cen tre/engine repair centre in Delhi.
For getting that work done, the appellant entered into a contract with the re spondent 1.
As per the contract, respondent 1 was required to provide performance bond equal to 30 per cent of the total value of contract price, which was to be split up into two performance bonds partly to be released on completion of the project, and the balance upon the expiration of the warran ty, and to furnish a Bank guarantee to secure the mobilisa tion advance of 25 per cent of contract value.
Respondent II, instead of furnishing the two perform ance bonds, wrote a letter for a revised proposal, which was accepted by the appellant.
As the respondent 1 failed to complete the project within the stipulated time, as per contractual specifica tions, despite repeated opportunities, the appellant termi nated respondent 1 's right to continue the project and sought for encashment of the Bank guarantee for Rs. 1,06,12,500, which was issued to the appellant by the Bank.
The respondent I filed a suit for injunction against the appellant and the Bank in the High Court and obtained an ex parte injunction from the Single Judge, restraining the Bank and the appellant from encashing the Bank guarantee.
When the ex parte injunction was vacated, respondent I preferred an appeal to the Division Bench of the High Court.
The Division 413 Bench allowed the appeal, staying the encashment Of the Bank guarantee till the disposal of the respondent 's suit.
On the question, whether the Court was justified in restraining the Bank from paying the appellant under the Bank guarantee at the instance of respondent I, allowing the appeal of the appellant company, this Court, HELD: 1.
In the instant case, the High Court has miscon strued the terms of the Bank guarantee and the nature of the inter rights of the parties under the contract.
The mobili sation advance is required to be recovered by the appellant from the running bills submitted by the respondent.
If the full mobilisation advance has not been recovered, it would be to the advantage of the respondent.
Secondly, the Bank is not concerned with the outstanding amount payable by the appellant under the running bills.
The right to recover the amount under the running bills has no relevance to the liability of the Bank under the guarantee.
The liability of the Bank remained intact irrespective of the recovery of mobilisation advance or the non payment under the running bills.
The failure on the part of the appellant to specify the remaining mobilisation advance in the letter for encash ment of Bank guarantee is of little consequence to the liability of the Bank under the guarantee.
The demand by the appellant is under the Bank guarantee and as per the terms thereof.
The Bank has to pay and the Bank was willing to pay as per the undertaking.
The Bank cannot be interdicted by the Court at the instance of respondent I in the absence of fraud or special equities in the form of preventing irre trievable injustice between the parties.
The High Court in the absence of prima facie case on such matters has commit ted an error in restraining the Bank from honouring its commitment under the bank guarantee.
[421E 422A] U.P. Cooperative Federation Ltd. vs Singh Consultants and Engineers (P) Ltd., , Followed. </s> |
<s>[INST] Summarize the following judgement: : Criminal Appeal No. 36 of 1979.
From, the judgement and Order dated 17.11.1978 of the Madhya Pradesh High Court in Criminal Appeal No. 477 of 1973.
A.N. Mulla, Dhruv Mehta, Aman Vachher and S.K. Mehta for the Appellants.
B.Y. Kulkarni and Uma Nath Singh for Respondents.
The Judgment of the Court was delivered by section RATANAVEL PANDIAN, J.
The two appellants, namely, Chandra Mohan Tiwari and Ram Pal Singh Sengar have filed this criminal appeal challenging the correctness and legality of the judgment and order dated 17th of November 1978 of the High Court of Madhya Pradesh at Jabalpur rendered in Criminal Appeal No. 477 of 1973, whereby the High Court has allowed the appeal preferred by the State by setting aside the order of acquittal passed by the Trial Court and convicted the first appellant under Section 302 IPC and the second appellant under Section 302 read with 34 IPC and sentenced each of them to imprisonment for life.
The matrix of the case which has led to the filing of this appeal briefly stated is as follow: PW 6 Ahiwaransingh was at the material time, a compounder in the Veterinary Hospital, Budhni.
He was residing in one of the quarters situated in the compound of the Veterinary Hospital.
On the opposite side of compound there are Government quarters.
One of which was occupied by appellant Ram Pal Singh (Appellant No. 2), who was serving as Gram Sevak in the Block Development office.
He is married and distantly related to PW 6.
The first appellant Chandra Mohan Tiwari was wielding high influence in that locality and was well known to the members of the family of PW 6.
It appears that he contested the election to the Legislative Assembly from Budhni constituency.
The members of the family of PW 6 included PW 5, the Deceased Saroj aged about 16 years, who are PW 6 's wife and eldest daughter respectively.
PW 6 had settled the marriage of his daughter Saroj at Dahiyapur, Etawah District (U.P.).
On 24.5.1970 he along with his deceased daughter, Saroj, left Budhni for Bhopal enroute to Dahiyapur.
At Bhopal he stayed with his relative by name Arjun Singh.
On 25.5.1970 at 318 about 11.00 A.M. PW 6 had gone to the market leaving Saroj alone in the house.
According to the prosecution, the second Appellant came to the house of PW 6 and told Saroj that her father wanted her presence for selection of clothes.
Saroj believing the words of second appellant and without entertaining any doubt on the representation of the second appellant accompanied him in a jeep which was driven by the first appellant.
Then she was taken to a house where she was wrongfully confined for about two and a half months.
During this period both the appellants are stated to have forcibly committed sexual intercourse with Saroj.
PW 6 lost his nerve on the sudden disappearance of his daughter, but he instead of lodging a report with the police, which evidently he thought would adversely affect the future life of his daughter and her impending marriage and also bring the family in disrepute, unsuccessfully made a frantic and intensive search for his daughter.
Then he lodged a report exhibit P/10 on 3.8.1970 at the Police Station of Mangalwara, alleging that he had reason to believe that Saroj might have been kidnapped by both the appellants.
The police did not take any prompt action on the report.
By that time, the appellants, on coming to know of the lodging of the report, devised a plan fore stall any action being taken against them.
The second appellant took Saroj in a taxi to Hoshangabad and left her near the police station with an instruction to lodge a false complaint at the police station that she was kidnapped from Bhopal on 25.5.1970 by one Ramnath and Indrasen and was wrongfully confined by them.
She was also threatened that the appellants would be keeping a watch over her and that in case she divulged the truth, serious consequences would follow.
As instructed by the second appellant, Saroj lodged a complaint exhibit D/15 on 9.8.1970 at Hoshangabad Police Station.
However, when she was taken to the Police Station, Mangalwara in connection with the report, lodged by her father (PW 6) she told the entire truth to the police and her parents.
Even then no progress was made in the investigation on the report of PW 6 at Mangalwara.
So PW 6 made a fervent plea to the then Chief Minister of the State and requested him to take action in the matter.
It was only thereafter, on the instructions of the higher authorities wheels of investigation started moving on.
The police after completing the investigation filed the charge sheet before the Additional District Magistrate (Judicial) Bhopal against both these two appellants for offences punishable under Section 363, 366 and 376 IPC.
The victim Saroj, when examined before the Magistrate on 12.7.1971 stated in her statement exhibit P/25 that she was kidnapped by both the appellants and wrongfully confined and also subjected to sexual inter course and that she lodged the false report exhibit D/15 at the Hoshangabad police station under duress and as instructed by the second appellant 319 herein.
The Magistrate discharged the first appellant, and committed the second appellant alone to take his trial.
On a revision preferred against the order of discharge of the first appellant both the appellants were put up for trial before the third Additional Sessions Judge, Bhopal in Sessions Case Nos. 66 and 95 of 1972 for offences punishable under sections 363, 366 and 376 IPC.
During the said trial both appellants were on bail.
The case was fixed for recording evidence from 21.8.1972 on which date the victim Saroj was to be examined as a prosecution witness.
While the matter stood thus, according to the prosecution, on 20.6.72 Saroj lodged a report exhibit P/7 at Budhni Police Station complaining that the second appellant had forcibly entered into the backyard of her house, but took to his heels when she raised a hue and cry.
In the above background, the present occurrence had occurred on the intervening night of 20/21st August 1972.
The prosecution case is that on that fateful night the first appellant armed with a pistol and the second appellant with a `farsa ' entered into the house of PW 6 through the main door which was kept ajar by PW 5 who went out of the house of answer call of nature inside the compound and that the first appellant fired a shot which hit on the chest of the victim Saroj, who was then in her bed and caused her instantaneous death.
Both PWs 5 and 6 identified the appellants as the assailants.
PW 6 tried to chase the appellants, but he stumbled near the gate of the compound and could not apprehend them.
The distress cries of PWs 5 and 6 attracted the neighbours to the scene.
PW 6 narrated the incident to PWs 1 and 2 by mentioning the name of the appellants as the assailants and requested PW 1 to lodge a report at the police station.
Accordingly, PW 1 lodged the First Information Report exhibit P/1 at 1.30 A.M. PW 18, the investigating officer took up the investigation during the course of which he inspected the scene of the occurrence, held in quest and then sent dead body to the hospital for necropsy.
On the next day i.e. on 21.8.72 both the appellants were arrested when they had come to attend the hearing of the case of kidnaping and rape.
After completing the investigation both the appellants were put up for trial.
The Sessions Judge of Indore found both appellants not guilty of the offence of murder and consequently acquitted them.
Feeling aggrieved by the judgment of the Trial Court, the State preferred the appeal before the High Court, which for the detailed discussion made in its judgment held that the prosecution has satisfactorily established the guilt of both appellants beyond all reasonable doubts, allowed the appeal by setting aside the judgment of the Trial Court acquitting the appellants and convicted the first appellant under section 302 and the second appellant under Section 302 read with Section 34 IPC and sentenced each of them to undergo imprisonment for life.
Hence the present appeal is preferred by the appellants on being aggrieved by the impugned judgment of the High Court.
320 Mr. A.N. Mulla, the learned Sr. Counsel appearing on behalf of the appellants after taking us in detail through the judgment of the courts below, evidence of the prosecution as well as the defence witnesses and in particular exhibit D/15, the First Information Report dated 9.8.70 relating to the offence of kidnaping and rape registered on the basis of the complaint given by the deceased Saroj at Hoshangabad Police Station, vehemently submitted that the prosecution has miserably failed to prove the motive for the occurrence.
The learned counsel perfervidly advanced his argument inter alia contending that the High Court has erred in reversing the judgment of the Trial Court based on well reasoned and considered findings of fact, ignoring the settled principles of law as laid down by this Court as regards the scope of interference of the High Court in an appeal preferred against an order of acquittal, that the evidence of PWs 5 and 6 who had developed rancur and were inimically disposed towards the appellants ought not to have been accepted and implicitly relied upon as their testimony is highly tainted with interestedness, that the contents of exhibit D 15 whereby the deceased had implicated Ram Nath Singh and one Indra Sen as assailants of kidnaping belie the version of PWs 5 and 6 and negative the prosecution story as far as the motive is concerned, that the evidence of PWs 5 and 6 suffers from the vice of discrepancies and incongruities, that the non recovery of any `lota ' (a small vessel) from the place where PW 5 was easing as well as the non marking of the place where the said vessel was kept in the site plan falsify the evidence of PW 5 that she opened the door and went near the compound wall to answer call of nature , that the recovery of two bullets from the scene is an indication of the fact that there should have been two shots, that there was delay in laying the complaint, that the unchallenged claim of the appellants that they were in Bhopal clearly shows that the appellants would not have come to Budhni from Bhopal that too at the odd hours with an anticipation that the door of the scene house would be kept open.
The learned counsel further submits that had the appellants come to the scene house to assassinate the victim Saroj, they would not have exposed themselves without covering their faces so that their identity could not be established and that the life of the girl might have been put to an end by inmates of the said house, particularly her father on account of some conspiracy since the victim girl wanted to have the case of kidnaping and rape not to be proceeded with.
Before adverting to the contentions, urged by the learned counsel, we would like to briefly state the legal position regarding the right of appeal of an accused person sentenced to imprisonment for life by the High Court after reversing the order of acquittal and the scope of interference in such appeal by this court.
The present appeal is under Section 379 321 of the Code of Criminal Procedure of 1973 (hereinafter referred to as the `code ') and Section 2(a) of the of 1970 (hereinafter referred to as `the Act of 1970 ') Section 379 of the Code contemplates that where the High Court has, on appeal, reversed an order or acquittal of an accused person and convicted him and sentenced him to death or to imprisonment for life or to imprisonment for the term of ten years of more, that person may appeal to the Supreme Court.
This section in newly introduced in the Code of 1973 (Act 2 of 1974) on the recommendation of the Law Commission of India in its 41st Report.
Article 134 (1) (a) of the Constitution envisages that an appeal shall lie to the Supreme Court from any judgment, final order or sentence in a criminal proceeding of the High Court in the territory of India if the High Court has on appeal reversed an order of acquittal of an accused person and sentenced him to death.
To say in other words under Article 134 (1) (a) the absolute right of appeal to the Supreme Court is restricted only to cases where the High Court reverses an order of acquittal passed by the Trial Court and awards the sentence of death.
The right of appeal is also extended under Article 134 (1) (b) to cases where the High Court has withdrawn for trial before itself any case from any court subordinate to its authority and has in such trial convicted the accused person and sentenced him to death, which type of cases are rare and infrequent occurrence.
Under clause (c) of the above said Article an appeal lies to the Supreme Court on a certificate under Article 134 A by the High Court certifying that the case is a fit one for appeal to the Supreme Court but, of course, subject to the proviso to Article 134 (1).
In this connection, it is pertinent to note that the Government of Madras (as then called) expressed its view that the limited right of appeal now conferred in case of the persons sentenced to death by clauses (a) and (b) of Article 134 (1) should be enlarged and that in all cases in which the accused persons are sentenced to death, there should be a right of appeal to the Supreme Court without the need of a certificate from the High Court.
This view was rejected by the Law Commission of India in its 14th Report stating that even in cases not covered by clauses (a) and (b) of Article 134 (1) the High Court has the power to certify the case as a fit one for appeal to the Supreme Court under Clause (c) and further there is also the safeguard provided by the wide powers of the Supreme Court under Article 136 which confers a discretionary power on the Court to interfere by granting special leave to appeal in suitable cases including cases where the High court has refused to grant Certificate for appeal under Article 134 (A).
See the decision of the constitution Bench in Tarachand vs State of Maharashtra ; = ; and the later decision in Krishan and others vs State of Maharashtra.
322 To avoid proliferation we are not citing all the decisions on this aspect.
The reason, given by the Law Commission in its 14th Reports (Volume I at page 52) for rejecting the view of the Government of Madras is as follows: "We are not inclined to accept this view.
For over a century such cases have been dealt with by the High Courts subject to the superintendence of the Privy Council under its special leave jurisdiction and there is no reason why the High Courts should not continue to deal with such cases in the same manner.
" In 1968 a Private Member 's Bill was introduced in Parliament which proposed that the limited jurisdiction of the Supreme Court contemplated under Article 134 (1) (a) and (b) should be enlarged to cover cases where the High Court has, after reversing an order of acquittal, sentenced a person to imprisonment for life or for 10 years or more.
Be that as it may in its 41 st Report, the Law Commission expressed its view that the limitation of the right of appeal under Article 134 (1) (a) and (b) applies only to cases of death but not to cases of imprisonment for life awarded by the High Court or appeal against acquittal and that limitation "is too stringent and not easily justifiable and that the convicted persons ought to have a right of appeal in such cases".
The Law Commission, at the same time, was not in favour of extending this right of appeal in which the High Court has on appeal against acquittal sentenced a person to imprisonment for a term of 10 years or more, and proposed a new Section 417 B restricting such appeal to the Supreme Court only in cases of sentence of imprisonment for life.
While so, the Joint Select Committee by its report dated 4th December, 1972 drafted clause 379 (original clause 389) of the Code of Criminal Procedure Bill 1970 (page xxvi) which reads thus: "The amendment has been made to bring the provision of the clause in line with the provisions of the .
Vide the 14th Report of the Law Commission (at page 52) and the 41st Report of the Law Commission (paragraphs 31.65 to 31.69 at pages 281 283).
Section 2 of the Act of 1970 reads thus : 2.
Enlarged appellate jurisdiction of Supreme Court in regard to criminal matters.
Without prejudice to the powers conferred on the Supreme Court by clause (1) of article 134 of the Constitution, an appeal shall lie to the Supreme Court from any judgment, final order of sentence in a criminal proceeding 323 of a High Court in the territory of India if the High Court (a) has an appeal reversed an order of acquittal of an accused person and sentenced him to imprisonment for life or to imprisonment for a period of not less than ten years ; (b) has withdrawn for trial before itself any case from any court subordinate to its authority and has in such trial convicted the accused person and sentenced him to imprisonment for life or to imprisonment for a period of not less than ten years.
" The right of appeal under the above Section to the Supreme Court is an addition to those provided under Article 134 (1) of the Constitution.
In cases which do not come under clauses (a) and (b) of Article 134(1) or under the Act of 1970 or Section 379 of the Code an appeal does not lie as of right to the Supreme Court against any order of conviction by the High Court.
In such cases, appeal will lie only if a certificate is granted by the High Court under sub clause (c) of Article 134 (1) certifying that the case is a fit one for appeal to the Supreme Court or by way of special leave under Article 136 when the certificate is refused by the High Court.
See Mahebub Beg and others vs State of Maharashtra, (S.C.) CR.
A 120/64 dated 19.3.1965 reported in and Babu vs State of U.P. ; = ; The resultant position of law from the conjoined reading of the above provisions of the Constitution, the Act of 1970 and the Code of Criminal Procedure is as follows: (1) Under sub clause (a) of Article 134(1) an appeal lies as of right to the Supreme Court in a case where the High Court has reversed an order of acquittal of an accused person and sentenced him to death.
(2) Under sub clause (b) of Article 134 (1) an appeal lies as of right to the Supreme Court in a case where the High Court has withdrawn the case for trial before itself from any court subordinate to its authority and sentenced him to death.
(3) Under Section 2 (a) of the Act of 1970 an appeal lies as of right to the Supreme Court in a case where the High Court has reversed an order of acquittal of an accused person and sentenced him to imprisonment for life or imprisonment for a period of not less then 10 years 324 (4) Under Section 2 (b) of the Act of 1970 an appeal lies as of right to the Supreme Court in a case where the High Court has withdrawn for trial before itself any case from any court subordinate to its authority and has in such trial convicted the accused person and sentenced him to imprisonment for life or imprisonment for a period of not less than 10 years.
(5) Under Section 379 of the Code, which is now newly introduced in line with the Constitutional provisions of Article 134 (1) (a) and (b) and with Section 2 of the Act of 1970, an appeal lies as of right to the Supreme Court in a case where the High Court has on appeal reversed an order of acquittal of an accused person and convicted and sentenced him either to death or to imprisonment for life or imprisonment for a term of 10 years or more.
(6) In cases not covered by Article 134 (1) (a) and (b) or Section 2 (a) and (b) of the Act of 1970 or by Section 379 of the Code of Criminal Procedure an appeal will lie only either on a certificate granted by the High Court under Article 134 (1) (c) or by grant of special leave to appeal by the Supreme Court under Article 136.
The right of appeal given under Section 379 of the Code is in line with Article 134 (1) (a) and (b) and Section 2 (a) and (b) of the Act of 1970.
This Court in Podda Narayana and others vs State of Andhra Pradesh ; = [1975] (Supp) SCR 8 had an occasion to examine the scope of Section 2 of the Act of 1970 and held thus : "As the High Court had awarded the sentence of life imprisonment after reversing the order of acquittal passed by the Additional Sessions Judge the appeal to the Supreme Court lies even on facts and as a matter of right under Section 2 of the ".
M.H. Beg, J. as he then was, speaking for the Bench in Ram Kumar Pande vs The State of Madhya Pradesh, ; = ; observed as follow. "Strictly speaking, no certificate of the High Court is required for such an appeal where an acquittal has been converted into a conviction under section 302/34 I.P.C. and a sentence of life imprisonment imposed upon an accused person.
The appeal in, such a case, lies as a matter of right to this Court under the Act of 1970.
" 325 This Court in Rajendra Prasad vs State of Bihar, ; = ; while disposing of an appeal preferred under Section 2(a) of the Act of 1970 laid down the following dictum: "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 and unrealistic as to entitle the High Court to interfere with the same.
" In Kishore Singh and another vs The State of Madhya Pradesh, AIR 1977 S.C. 2267 = ; the following view similar to the one taken in Ram Kumar Pande 's case was reaffirmed and it read thus : "The High Court is not right in holding that a certificate is necessary under Article 134 (1) (c) of the Constitution if the appellants have a right of appeal under Section 2 of the Act." In Ram Kumar Pande 's case, the jurisdiction of the Supreme Court to interfere in a judgment of the High Court reversing the acquittal of the Trial Court and convicting the accused person and sentencing him to life imprisonment, in respect of which an appeal to the Supreme Court lies as of right was examined and the following maxim has been laid down.
"The well settled rule of practice in a case of an appeal against an acquittal is that the appellate Court should not interfere with the acquittal merely because it can take one of the two reasonably possible views which favours conviction.
But, if the view of the Trial Court is not reasonable sustainable, on the evidence on record, the Appellate Court will interfere with an acquittal.
If the Appellate Court sets aside an acquittal and convicts, we have to be satisfied, after examining the prosecution and defence case and the crucial points emerging for decisions from the facts of the case, that the view taken by the Trial Court, on evidence on record, is at least as acceptable as the one taken by the High Court, before we could interfere with the High Court 's judgment.
" Kailasam, J. speaking for the Bench in Bhajan Singh and others vs State of Punjab, ; dealing with the scope of the appeal before the Supreme Court filed under Section 2 (a) of the Act of 1970 observed thus : "as a court of appeal this Court has got to go into all the 326 questions of fact and law and decide the case on its merit.
After a right of appeal has been provided under the said section, the question, whether the High Court interfered on sufficient ground or not, will not be material, as this Court has to decide the case on its own merits.
The decisions, regarding the scope of appeal against an acquittal, the powers of the High Court to interfere in an appeal against acquittal by the State, which may be relevant when the Supreme Court is acting under Article 136, are not material in deciding an appeal by a person, whose acquittal has been set aside by the High Court, and who is entitled to prefer an appeal to this Court.
" In Dinanath Singh & others vs State of Bihar, AIR 1980 S.C. 1199 = , an appeal under Section 2 (a) of the Act of 1970 was directed against the judgement of the Patna High Court convicting the appellants therein under Section 302 read with 34 IPC and sentencing them to imprisonment for life by reversing the order of acquittal of the Trial Court.
While disposing the appeal Fazal Ali.
J. speaking for the Bench pointed out thus: "It is now well settled by the long course of decisions of this Court that where the view taken by the trial court in acquitting the accused is reasonably possible, even if the High Court were to take a different view on the evidence, that is no ground for reversing the order of acquittal." This court while disposing an appeal filed under Section 379 of the Code in Pattipati Venkaiah vs State of Andhra Pradesh, affirmed the order of conviction passed by the High Court on the ground that the judgment of the Trial court acquitting the accused was extremely perverse and no other reasonable view was possible than the guilt of the accused.
Reference also may be had to Sita Ram and Others vs State of U.P. [1979] 2 SCC 656 and Rajput Ruda Meha and Others vs State of Gujarat, This Court in a catena of decisions have dealt with the power of the High Court to review evidence and reverse order of acquittal and laid down the guidelines in exercising that power.
Though it is not necessary for us in the present case to deal with all those decisions, the following may be referred to : 327 Roop Singh and others vs State of Punjab. ; = ; ; Dargahi and others vs State of U.P., AIR 1973 S.C. 2695 = ; Barati vs State of U.P., AIR 1974 S.C.839 = ; ; G.B. Patel vs State of Maharashtra; , = ; ; and Kanwali vs State of U.P.
Having regard to the above principle of law, we shall now carefully scrutinize the entire evidence adduced by the prosecution and examine the contentions advanced by Mr. Mulla and decide the case on its merit, independent of the views expressed by the High Court in its impugned judgment : Motive for the murder: There is overwhelming evidence both oral and documentary in clearly establishing a strong motive for the appellants/accused to put an end to the life of the deceased Saroj, who when examined before the Magistrate on 12.7.1991 had deposed under exhibit P/25 that she was kidnapped by both the appellants, wrongfully confined and subjected to sexual intercourse, though she initially lodged a report under exhibit D 15 on 9.8.70 at the Hoshangabad police station against some other persons exculpating these two appellants.
Earlier to her examination before the Magistrate the deceased lodged a report exhibit P 7 on 20.6.1972 at Budhni police station complaining that the second appellant had forcibly entered into the backyard of her house and on her raising a cry he took to his heels.
The trial of the case against both the appellants before the Additional Sessions Judge, Bhopal in Sessions Case Nos. 66 and 95 of 1972 under Sections 363, 366 and 376 IPC was fixed for recording the evidence of the victim in that case, namely, the deceased herein from 21.8.1972.
Both the appellants were on bail in the case of kidnaping and rape during the period of the occurrence in question which occurred on the intervening night of 20/21st August 1972.
The learned counsel for the appellants has submitted that PWs 5 and 6 had sufficient motive to implicate both the appellants in this heinous crime of murder as these two appellants according to both PWs had spoiled the future career of their daughter, deceased Saroj by kidnaping and committing rape on her even if the identity of the real assailant/assailants was or were not known and further there was every possibility of PW 6 falsely implicating these two appellants on strong suspicion.
As stated by Fazal Ali, J. in State of Punjab vs Pritam Singh, "when the motive was equally balanced, the Court had to look to surrounding circumstances in order to find out the truth.
" 328 This is not a case solely based on circumstantial evidence, but on the other hand there are two eye witnesses to the occurrence, namely, PWs 5 and 6.
The several impelling circumstances attending the case namely, the prior incident of kidnaping and rape, the conduct of the deceased Saroj in giving her statement under exhibit P. 25 supporting the case of the prosecution registered on the complaint given by PW 1 at the instance of PW 6, the lodging of the complaint under exhibit P 7 by Saroj on 20.6.72 against the second appellant and lastly the posting of the case for recording the evidence of Saroj on 21.8.72 when taken in conjuction with the evidence of PWs 5 and 6, unevasively and unerringly show that these two appellants had strong motive to snap the life thread of the victim so that she could not give evidence on the next day in the case of kidnapping and rape.
The contents of exhibit D 15 cannot be said to have whittled down the veracity of the prosecution case as regards the motive for the occurrence.
On the other hand, the subsequent statement made by the deceased under, the exhibit P/25 explaining under what circumstances she was forced to give exhibit D 15 would also serve as a corroborating piece of evidence in establishing the motive for the occurrence.
Ocular Testimony : As per the prosecution, due to the above motive the appellants have resorted in perpetrating this dastardly and heinous crime, PWs 5 and 6 though the parents of the victim, are the natural and probable eye witnesses as the incident had occurred in the odd hours inside their house wherein these two witnesses and their 4 daughters including the deceased Saroj were the inmates.
According to these two witnesses by about 12 or 12.30 mid night PW 5 went out of the house by opening the main door to answer call of nature within the compound.
Besides moon light, there was electric light within the compound.
Added to that there was also electric light burning in the residential quarter of Doctor Sahib shedding light inside the compound of the scene house.
PW 5 sighting the two appellants yelled out.
She found the appellant Chandra Mohan Tiwari having a small gun and the second appellant Rampal Singh being armed with a farsa.
On hearing the cry of PW 5, Saroj woke up.
PW 6 who had earlier been awakened by his wife (PW 5) saw both the appellants entering into his house with their respective weapons.
The deceased Saroj on seeing the two appellants hardly uttered `Babaji '.
Suddenly the first appellants fired a shot which hit Saroj.
On receipt of the injury Saroj fell down on her cot.
Thereafter both the appellants fled away.
PW 5 witnessed both the appellants entering into the room and heard the sound of a gun shot and the 329 appellants thereafter running out of the house.
While PW 5 yelled out, PW 6 ran after the appellants up to the compound shouting that the appellants had fired a gun shot at Saroj.
On coming out of the compound, PW 6 fell down.
PWs 1, 2 and others who rushed to the scene on hearing the shrieks and shouts of PWs 5 and 6 lifted PW 6 and brought him inside the house.
PWs 1, 2 and others asked PW 6 as to what had happened.
PW 6 told them that the first appellant had fired a shot at his daughter Saroj and thereafter both the appellants had fled away from the scene.
The victim Saroj by that time was struggling for breathing and gasping.
PW 1 has testified to the fact that he arrived at the scene on hearing the shouting of PW 6 "killed, killed ' and found PW 6 lying down outside the main gate of his compound, that PW 1 and others lifted PW 6 and brought him inside the house, that on being asked PW 6 informed PW 1 and others that Sengar and "Tiwari (referring to both appellants) had shot at his daughter and that PW 6 requested him to lay a complaint at Budhni Police Station.
The Trial Court for the reasons given in its judgment observed that the evidence of PW 5 as regards to the identity of the appellants is "totally unreliable" and that of PW 6 appears to be "absurd and fantastic" and finally concluded thus: ". .
I find the two accused persons had no motive to perpetrate the crime in question, that one Gungasingh and possibly the father of the girl Ahivaransingh might have had stronger motive for perpetrating the murder, that it was impossible for the accused persons to have been present at Budhni at 12.30 that night and that it is most likely that they have been falsely implicated in the murder by the political rivals of the accused Chandra Mohan Tiwari and with the motive of preventing the accused Ram Pal Singh over getting married to Saroj." The entire prosecution as indicated ibid mainly rests on the evidence of PWs 5 and 6 who are the unfortunate parents of the victim and who speak about the motive of the occurrence and give a full detailed account of the entire incident.
In addition to the ocular testimony of PWs 5 and 6 the prosecution also relies upon the evidence of PWs 1 and 2, who came to the scene spot immediately after the occurrence and learnt from PWs 5 and 6 that the appellants were the perpetrators of the crime.
No doubt, it is true that the evidence of PWs 5 and 6 is that of the interested party in that both of them are the parents of the victim and that they had animus towards the appellants.
As dexterously emphasised by the 330 Supreme Court on many occasions that interested witnesses are not necessarily false witnesses though the fact that those witnesses have personal interest of stake in the matter must put the Court on its guard, that the evidence of such witnesses must be subjected to close scrutiny and the Court must assess the testimony of each important witness and indicate the reasons for accepting or rejecting it and that no evidence should be at once disregarded simply because it came from interested parties.
Vide Siya Ram Rai vs State of Bihar, ; Sarwan Singh vs State of Punjab, ; Birbal vs Kedar, AIR 1977 S.C.1 = ; ; Gopal Singh vs State of U.P. AIR 1979 S.C.1822 = ; Hari Obulla Reddy & Others vs State of Andhra Pradesh, [1981]3 SCC 675; and Anvaruddin & Ors.
vs Shakoor & Ors.
[1990]2 Judgements Today S.C. 83.
After carefully scanning the evidence of PWs 5 and 6, we unreservedly come to the conclusion that their evidence cannot be thrown overboard simply on the ground that their evidence is of the interested party because when the occurrence had taken place inside the house, that too at dead of night, it would be futile to expect of the prosecution to produce independent outsiders as witnesses.
It was contended by Mr. Mulla that PWs 5 and 6 could not have identified the assailants since according to PW 6 both assailants had covered their faces so that faces behind the mask could never be known to others and remain mystery for ever.
But a careful reading of the evidence of PW 6 in our opinion does not support the conclusion sought to be arrived at by the learned defence counsel.
What PW 6 had admitted in the cross examination is that both the appellants had tied a towel on their heads, but their identity was visible.
It transpired from the evidence of PWs 1, 2 and 6 that PWs 1 and 2 who immediately came to the scene of the occurrence were informed by PW 6 that the assailants were the two appellants.
The spontaneous declaration to Pws 1 and 2 by PW 6 without premeditation or any deliberation or artifice by naming the appellants as assailants can be admitted as resgestae and acted upon.
It is significant to note in this connection that PW 1 who laid the First Information Report Ex P 1 within an hour from the time of the occurrence has mentioned the names of these two appellants as having been given by PW 6 at the scene immediately after the occurrence.
The FIR has been lodged without any loss of time though it has been hesitatingly stated that there was a delay.
The chronology of events narrated and the factual conspectus recounted by PWs 5 and 6 are unshakable and the intrinsic quality of the evidence of these two witnesses compel 331 this Court to implicitly rely on their testimony and to accept the same.
In spite of the fact that these two PWs have been subjected to intensive and incisive cross examination, nothing tangible has been brought for discarding their testimony.
No doubt, the earlier conduct of the appellants in kidnaping and forcibly raping their daughter, the victim should have inflicted deeper wounds in the minds of these two witnesses, but that cannot in any way destroy the value of their evidence which is cogent and trustworthy.
PWs 3 and 4 who were examined by the prosecution to speak about the movements of the appellants near the scene at or about the time of the occurrence have resiled from their earlier statements and have not supported the prosecution case.
The evidence of Pws 5 and 6 which is corroborated by various other circumstances would in our opinion suffice of record a conviction against the appellants.
The Trial Court appears to have gone wrong in jettisoning the entire evidence in a very scanty and unsatisfactory manner with unsound reasoning.
The non recovery of `lota ' (a small vessel for taking water) and the non marking of the place where the said vessel was kept in the site plan are too tenuous and they do not in any way belittle the veracity of the prosecution case.
The recovery of the pellets below the dead body and the cork, usually fixed on cartridges from the chest of the girl under the Memo exhibit P 4 as spoken by PWs 1 and 18 amply corroborate the evidence of PW 6 and support the prosecution case that the girl was shot dead in close range while she was on her bed.
Being the parents of the victim, they would be the least disposed to falsely implicate the appellants or substitute them in place of the real culprits.
In our considered opinion, whilst the conclusion arrived at by the Trial Court abjuring the unimpeachable and reliable evidence of PWs 5 and 6 on speculative reasons and unreasonable grounds, the contrary conclusion of the High Court based on the evolution of the evidence does not suffer from any illegality or manifest error on perversity nor is it erroneous.
Further, on our independent analysis of the evidence we see absolutely no substantial and compelling reasons to brush aside the testimony of these two eye witnesses and to take a contrary finding to that of the High Court.
Based on the evidence of DW 1, an advocate at Bhopal, who defended the appellants herein in the kidnaping case and who had deposed that on the night of 20.8.72 the first appellant was with him from 9/9.30 P.M. to 12 mid night and who had filed exhibit P30, and application before the court stating that the first appellant was with him, an argument was advanced that the appellants could not have gone to the scene village 332 Budhni from Bhopal, when the distance between the two places is about 40 miles and committed the offence of murder.
In support of the evidence of DW 1 reliance has been placed on the testimony of DWs 2 to 4 of whom DW 3 was the Proprietor of Chetna Lodge, who had testified to the effect that the first appellant was in his lodge from 18th to 21st August as borne out from the entry in exhibit
A similar contention of alibi was also raised before the High Court on the basis of the evidence of the defence witnesses and the High Court after discussing and deeply examining the testimony of the defence witnesses made the following observations: 1.
"It is with regret that we have to say that the testimony of this witness (PW 1) does not inspire any confidence.
"It is surprising that the learned trial Judge should have placed reliance on the testimony of DW 2 Ramakant and D.W.7 Durgaprasad and come to the conclusion that accused Rampalsingh could not have been at the scene of occurrence as he was at Bhopal, forty miles away from the scene of occurrence, at the relevant time.
" Further the High Court was correctly rejected the finding of the Trial Court as an unreasonable one holding: ". .it is most likely that they have been falsely implicated in this murder by the political rivals of the accused Chandramohan Tiwari and with the motive of preventing the accused Rampalsingh ever getting married to Saroj.
" We also after going through the evidence of the defence witnesses are unable to accept the plea of alibi and are in total agreement with the reasons given by the High Court for rejecting not the plea of alibi but also the defence that these appellants were implicated on account of political rivalry.
Medical Evidence: PW 17 who conducted autopsy on the dead body of the deceased found a lacerated wound on the chest just left the mid line at the level of nipple over the third, fourth and fifth inter costal space.
The wound was slightly oval shaped measuring 1 1/2" x 2" deep and opening into thoraic cavity.
The surrounding skin was ecchymost, but no tattooing of gun powder was noticed.
The wound as described by the Doctor is a slit like small lacerated wound on the medial end of clavicle.
On internal examination PW 17 he found comminuted fracture of sternum and second, 333 third ribs of left side chest.
There was a punctured wound on the medial border of left lung near its appex.
He found one rounded pellet (which has been recorded as bullet, but has been clarified in the further chief examination as pellet which receives support from the evidence of PW 19, the ballistic expert) in the left cavity of the chest, embedded in the posterior wall of chest at scapular region at the level of second and third ribs.
The Medical Officer is of the opinion that the death was due to severe fatal injuries to vital organs like left lung and heart resulting in profuse bleeding and shock.
PW 19 after examining the two pellets and two wads marked as Ex.
P1 and P 2 and W1 and W2 respectively gave his opinion that the holes, found on the saree, chader (bed sheet) and the blouse were gun shot holes and there was presence of blackening surrounding the holes on the chader and that the distance of firing should have been within one yard.
The evidence of the Medical Officer (PW 17) and of the Ballistic expert (PW 19) amply corroborates the testimony of PWs 5 and 6 that the assailants whomsoever they had been should have entered into the room and shot at the victim standing within a close range.
Mr. Mulla advanced an argument that the recovery of the two pellets and two wads from the scene place is an indicative of the fact that there would have been two shots, and that the presence of only one injury on the body of the deceased as per the evidence of PW 17 falsifies the present prosecution case that the victim was shot at only once.
The presence of the pellets and two wads, of course, indicate that there ought to have been two shots, but it does not necessarily follow that both the shots, should have hit the victim, probably one of the shots must have missed target.
From the mere absence of two injuries on the body of the deceased, no conclusion would be arrived at that the entire prosecution case is liable to be rejected.
The further submission of the learned counsel that the appellants should not have come at the odd hours anticipating that the main door of the house would have been kept open does not appeal to us.
Probably, the appellants who came there with the intention of putting an end to the life of the victim by any other design should have taken this opportunity to enter into the house and shot at the deceased.
Lastly a feeble argument was put forth by the defence stating that the father of the deceased and other inmates of the house on being aggrieved at the conduct of the victim should have put an end to the life of the girl by conspiring together.
This submission has to be mentioned for 334 simply rejecting the same because had the father and other inmates of the house had already conspired to murder the girl, they would not have waited for such a long time and ultimately killed her by shooting at her chest.
No father, however grave be the provocation at the hands of his daughter would resort, in the normal course to kill his daughter or participate in any conspiracy to murder her.
Moreover, there is no circumstance in the present case even feebly or remotely indicating that the inmates of the house were responsible for the cause of the death of the deceased.
In spite of our best efforts and great deal of pondering over the matter, we find absolutely no reason, much less compelling reason to disagree with the conclusion of the High Court since the organic synthesis of the events, circumstances and facts of the case lead only to one conclusion, namely, that the prosecution has established that this preplanned and cold blooded murder, executed in very cowardly and dastardly manner at a helpless and defenceless young girl was perpetrated by the appellants.
We, quite apart from the reason of the High Court, even on our independent assessment and evaluations of the evidence hold that the finding of the Trial Court is not reasonably sustainable and that the prosecution has satisfactorily proved the guilt of the accused beyond any shadow of doubt and consequently the judgment of the High does not call for any interference.
In the result, the impugned judgment of the High Court is affirmed and the appeal is dismissed.
T.N.A Appeal dismissed. [/INST] The appellants were alleged to have kidnapped, wrongfully confined and raped S, the daughter of PWs 5 and 6.
They were prosecuted for offences punishable under section 363, 366 and 376 of the Indian Penal Code.
S was examined before the Magistrate where she stated that because of the threat given by the appellants and as instructed by them she lodged a false report at the police station implicating some other persons, whereas infact she was kidnapped, wrongfully confined and raped by the appellants.
The Magistrate, discharged the first appellant, and committed the second appellant alone to take his trial.
On a revision preferred against the order of discharge of the first appellant both the appellants were 314 put up for trial before the third Additional Sessions Judge, Bhopal.
During the said trial both appellants were on bail.
The case was fixed for 21.8.1972 on which date the victim S was to be examined as a prosecution witness.
While the matter stood thus S lodged a report at the Police Station complaining that the second appellant had forcibly entered into the backyard of her house, but took to his heels when she raised a hue and cry.
However, it was alleged that on the night of 20.8.72, i.e. immediately before the day when the case was fixed and victim S was to be examined as a prosecution witness, the first appellant armed with a pistol and the second appellant with a `farsa ' entered into the house of S and the first appellant fired a shot causing instantaneous death of section The appellants were prosecuted for murder.
The Sessions Judge acquitted both the appellants.
The State preferred an appeal before the High Court.
The High Court allowed the appeal, set aside the acquittal order and convicted the first appellant under Section 302 and the second appellant under section 302, read with Section 34 IPC and sentenced each of them to undergo imprisonment for life.
The appellants preferred an appeal to this Court under section 379 of the Code of Criminal Procedure and Section 2 (a) of the and it was contended on their behalf (i) that the High Court erred in reviewing the evidence and reversing the order of acquittal; (ii) that the prosecution has failed to prove the motive of the crime; (iii) the victim 's parents were inimical towards the appellants and their evidence cannot be relied upon because they were interested witness.
Dismissing the appeal, this Court, HELD : 1.
The Trial Court was wrong in jettisoning the entire evidence in a very scanty and unsatisfactory manner with unsound reasoning.
Whilst the Trial Court 's conclusion was arrived at by abjuring the unimpeachable and reliable evidence of parents of the deceased on speculative reasons and unreasonable grounds, the contrary conclusion of the High Court based on the evolution of the evidence does not suffer from any illegality or manifest error or perversity nor is it erroneous.
Further, independent analysis of the evidence by this Court shows that there are absolutely no substan 315 tial and compelling reasons to brush aside the testimony of these two eye witnesses and to take a contrary finding to that of the High Court.
[331 C D; F G] 1.1 The organic synthesis of the events, circumstances and facts of the case lead only to one conclusion, namely, that the prosecution has satisfactorily proved the guilt of the accused beyond any shadow of doubt and consequently the judgment of the High Court does not call for any interference.
[334 C D E} Tarachand vs State of Maharashtra, ; = ; ; Kishan and Ors.
vs State of Maharashtra.
; ; Mahebub Beg and Ors.
vs State of Maharashtra, (S.C.) ; Babu vs State of UP.
, ; 2 S.C.R. 771; Podda Narayana and Ors.
vs State of Andhra Pradesh, ; [1975] Supp.
S.C.R. 84; Ram Kumar Pande vs The State of Madhya Pradesh, ; 3 S.C.C. 815; Rajendra Prasad State of Bihar A I R SC 10 59 = = [1977]3 SCR 68; Kishore Singh and Anr.
vs The State of Madhya Pradesh, A.I.R. 1977 S.C. 2267 = [1978] 1.S.C.R. 635; Bhajan Singh and Ors.
vs State of Punjab, [1978] 4 S.C.C. 77; Dinanath Singh & Ors.
vs State of Bihar, A.I.R. 1980 S.C. 1199 = ; Pattipati Venkaiah vs State of Andhra Pradesh ; Sita Ram and Ors.
vs State of U.P., [1979] 2 S.C.C. 656; Rajput Ruda Meha and Ors.
vs State of Gujarat, ; referred to.
Roop Singh and ors.
vs State of Punjab; , = ; ; Dargahi and ors.
vs State of U.P., A.I.R. 1973 S.C. 2695 = ; Barati vs State of U.P., ; = [1974] 3 S.C.R. 570; G.B. Patel vs State of Maharashtra, A.I.R. 1979 S.C. 135 = ; ; Kanwali vs State of U.P. ; referred to. 2.
There is overwhelming evidence both oral and documentary in clearly establishing a strong motive for the appellants to put an end to the life of the deceased.
The several impelling circumstances attending the case namely, the prior incident of kidnapping and rape, the conduct of the deceased in giving her statement supporting the case of the prosecution, the lodging of the complaint by S against the second appellant and lastly the posting of the case for recording the evidence of S when taken in conjunction with the evidence of parents of the victim unevasively and unerringly show that these two appellants had strong motive to snap the life thread 316 of the victim so that she could not give evidence on the next date in the case of kidnaping and rape.
[327 C D E; 328 A D C] State of Punjab vs Pritam Singh. ; relied on.
Interested witnesses are not necessarily false witnesses though the fact that those witnesses have personal interest or stake in the matter must put the court on its guard, that the evidence of such witnesses must be subjected to close scrutiny and the Court must access the testimony of each important witness and indicate the reasons for accepting or rejecting it and that no evidence should be at once disregarded simply because it came from interested parties.
[330 A B] Siya Ram Rai vs State of Bihar, ; Sarwan Singh vs State of Punjab, ; Birbal vs Kedar, ; = ; ; Gopal Singh v State of U.P. A I R 1979 S.C.1822=[1978] 3 S.C.C. 327; Hari Obulla Reddy & Ors.
vs State of Andhra Pradesh, ; Anvaruddin & Ors.
vs Shakoor & Ors., [1990] 2 Judgments today S.C. 83; relied on.
3.1 The evidence of parents of the deceased cannot be thrown over board simply on the ground that their evidence is of the interested party because when the occurrence had taken place inside the house, that too at dead of night, it would be futile to expect of the prosecution to produce independent outsiders as witnesses.
The parents of the victim are the natural and probable eye witnesses as the incident had occurred in the odd hours inside their house.
Being the parents of the victim, they would be the least disposed to falsely implicate the appellants or substitute them in place of the real culprit.
[330 D; 328 E; 331 E] 3.2 The chronology of events narrated and the factual conspectus recounted by the parents of the deceased are unshakable and the intrinsic quality of the evidence of these two witnesses compel this Court to implicitly rely on their testimony and to accept the same.
In spite of the fact that these two witnesses have been subjected to intensive and incisive cross examination, nothing tangible has been brought for discarding their testimony.
No doubt, the earlier conduct of the appellants in kidnapping and forcibly raping their daughter, the victim should have inflicted deeper wounds in minds of these two witnesses, but that cannot in any way destroy the value of their evidence which is cogent and trustworthy.
[330 H; 331 A B] 317 </s> |
<s>[INST] Summarize the following judgement: Civil Appeal No. 752 of 1984 etc.etc.
From the Judgment and Order dated 1.8.983 of Andhra Pradesh Administrative Tribunal, Hyderabad in Representation Petition No. 799 of 1977.
K. Madhava Reddy, T.V.S.N. Chari, Ms. Manjula Gupta, B. Kanta Rao, D. Prakash Reddy, B. Rageshwar Rao, Vimal Dave, K. Ram Kumar, Y. Prabhakara Rao, K.R. Nagaraja, Krishan Kumar and G. Prabhakara for the appearing parties.
The Judgment of the Court was delivered by K. JAYACHANDRA REDDY, J.
The questions involved in these matters being common they are being disposed of by a common judgment.
All these matters arise out of a common order of the A.P. Administrative Tribunal passed in Representation Petitions Nos.
799/77, 548/79 and 140/81.
S.L.P. (Civil) No. 5218/85 is filed against a separate order of the Tribunal in R.P. No. 1473/80.
The dispute is regarding the inter se seniority between the Supervisors who are upgraded as Junior Engineers and the degree holders who are directly appointed as Junior Engineers.
All of them belong to the different branches in the A.P. Engineering Subordinate Service.
First we shall state the relevant facts in each of the appeals and then formulate the points that arise for consideration.
For convenience sake we shall refer to the parties as arrayed before the Tribunal.
CIVIL APPEAL NOS.
752 AND 754/84 : These two appeals are filed against the order in R.P. No. 799/77.
The first one is filed by the State of A.P. and the other one by upgraded Supervisors Junior Engineers.
The petitioners before the Tribunal are all Junior Engineers in 300 Irrigation and Power Department.
They were initially appointed as temporary Junior Engineers in the year 1969/70.
Later they appeared in a special qualifying test (`SQT ' for short) held by the Public Service Commission and on the basis of the result of the test their services were regularised in the post of Junior Engineers with retrospective effect from the date of the temporary appointment subject to the maintenance of the order of ranking given by the Public Service Commission in the test.
The respondent Nos. 3 onwards in these R.Ps. are also Junior Engineers in the same department but they were appointed as Supervisors and on acquiring the degree they have been redesignated as Junior Engineers.
Several G.O.Ms were issued by the Government and the important one is G.O.Ms.
No. 559 (I & P) Department dated 18.7.77.
The post of Junior Engineers was made Gazetted post.
The case of the petitioners is that the respondents acquired degree qualification after 28.2.72 therefor they were not entitled to be appointed as regular Gazetted Junior Engineers and at any rate they cannot be treated as seniors on the basis of reckoning their seniority from the date of acquiring degree qualification and that the seniority of these graduate Supervisors should be reckoned from the date of their actual appointment as Junior Engineers and not from the date of acquiring degree qualification.
The respondent Supervisors, on the other hand contended that they are entitled to upgradation and weightage of service from the date of their appointment as Supervisors.
CIVIL APPEAL NO.
753/84 : This appeal is filed against the order in R.P. No. 548/79.
The petitioners in this R.P. are all Supervisors who graduated after 28.2.72.
Their contention was that they were appointed much before the respondents namely the directly recruited Junior Engineers and the services of the respondents Junior Engineers should not be regularised in such a way so as to effect the seniority of the petitioners and that the seniority of the petitioners should be reckoned from the notional date of appointment.
CIVIL APPEAL NO.
755/84 : This appeal is filed against the order in R.P. No. 140/81.
The sole petitioners before the Tribunal, who is a respondent here, questioned G.O.Ms.
No. 466 Transport, Roads and Building and sought a declaration that he should be declared as senior to respondent Nos. 3 and 5 and promote him to the post of Assistant Engineer.
The petitioner before the Tribunal was directly recruited Junior Engineer.
He also passed the SQT held in the year 1975.
The respondents before the Tribunal were upgraded Supervisors who acquired the graduate qualification.
G.O. Ms. No. 466 was issued 301 directing that the respondent before the Tribunal namely the upgraded Supervisors should be treated seniors to all the directly recruited Junior Engineers whose services were regularised on the basis of the SQT.
The Tribunal held that the findings in the other R.Ps.
799/77 and 548/79 apply to the facts of this case also and accordingly directed to prepare an inter se seniority list in the Transport, Roads and Buildings Department on the lines indicated therein.
R.P. was disposed of with those observations.
The upgraded Supervisors Junior Engineers who were the respondents before the Tribunal have filed this appeal.
These matters were heard together by the Tribunal.
After considering the various G.O.Ms.
and the arguments the Tribunal held that there was no bar to the retrospective regularisation of the services of the directly recruited Junior Engineers from the dates of their initial appointments.
It also held that the action of the Government in giving the benefit of the notional date of appointment to the upgraded Junior Engineers and the benefit of the date of regularisation of their services from the dates of their notional appointments subject to maintenance of order of ranking given by the Public Service Commission is justified.
The Tribunal further held that the order of ranking given by the Public Service Commission in respect of directly recruited Junior Engineers has to be maintained and each of them will have to be treated as being entitled to count his seniority from the date on which his service has been regularised or from the date of the regularisation of the service of the person immediately below him in the order of ranking given by the Public Service Commission, whichever is earlier.
In paragraph 23 of the Order the Tribunal specifically held thus: "23.
We are of the opinion that once the dates from which the directly recruited Junior Engineers can claim seniority are thus fixed on the basis of this formula, it should not be difficult to fix their inter se seniority vis a vis the upgraded Junior Engineers on the basis of the notional dates of appointment given to the latter.
In this connection we would like to point out that, whereas in the case of an upgraded Junior Engineer who acquired degree qualification before 28.2.1972, seniority will have to be fixed by putting him below all the regular Junior Engineers including directly recruited Junior Engineers who are entitled to claim seniority from any date during the year in which such upgraded Junior Engineer has been given the notional date of appointment, this practice cannot be followed in case of an upgraded junior Engineer who has acquired degree qualification after 28.2.1972, in view of the fact that the provision for fixing his seniority below other Junior Engineers 302 of the particular year (as was made in G.O. Ms. No. 893 dated 15.6.72) was not made in the amended Rule as issued under G.O.Ms.
No. 54 dt.
15.2.1983 His seniority will, therefore have to be fixed on the basis of the specific notional date of appointment given to him by interspersing his name among the regular Junior Engineers as arranged in chronological order of dates from which such regular Junior Engineers (including directly recruited Junior Engineers) are entitled to count their seniority.
" It is this part of the Order that has given rise to all these appeals before us.
The State of A.P. being aggrieved by this Order filed C.A. No. 752/84 and both petitioners and respondents namely the Junior Engineers directly recruited and upgraded Supervisors as Junior Engineers are the main respondents before us.
Civil Appeal Nos. 753 54 are filed by the upgraded Supervisors Junior Engineers.
In these two matters the Junior Engineers directly recruited are the respondents.
Thus in all these matters the Junior Engineers directly recruited are the respondents.
It is contended on behalf of State of A.P. that the direction given by the Tribunal particularly interspersing is not workable.
Learned counsel for the State, however, pointed out that the upgraded Supervisors have put in long years of service and they have been discharging the same duties as directly recruited Junior Engineers and that this fact also has to be borne in mind in fixing the notional date of appointment of the two categories officers and in fixing their inter se seniority.
Shri B.Kanta Rao, learned counsel appearing for all the upgraded Supervisors Junior Engineers contended that in G.O. Ms. No. 559 it is specifically laid down that Supervisor who have acquired graduate qualification may be appointed as Junior Engineers after 28.2.72 and the weightage of four years should be reckoned from the date of acquiring the degree qualification i.e. 28.2.72 or thereafter.
He also contended that the seniority of the upgraded Supervisor Junior Engineers should not be fixed from the date of the Order of appointment dated 8.8.77.
On behalf of the directly recruited Junior Engineers Shri K.Madhava Reddy, learned counsel submitted that the upgraded Supervisors can under no circumstances be treated as seniors to the directly recruited Junior Engineers.
According to him appointment of Junior Engineers was suspended for some time and in view of the exigencies the degree holders were appointed on temporary basis and they have served for a number of years.
Later the Government decided to make regular appointments and accordingly a Special 303 Qualification Test was held and such of those temporary Junior Engineers who were degree holders got qualified and were given the appointments and a seniority list strictly on the basis of performance in the test and on merit was prepared by the Public Service Commission and a retrospective effect was given.
His further submission was that so far as the upgraded Supervisors are concerned all the relevant G.O.Ms.
make it clear that the crucial date has to be reckoned on the basis of the actual date of appointment and not on the date of acquiring the degrees.
For appreciating these rival contentions it becomes necessary to refer to some of the G.O.Ms.
particularly with a view to arrive at the ("crucial date") in respect of each of these categories for the purpose of fixation of the seniority.
In respect of upgraded Supervisors who acquired a degree, certain G.O.Ms. were issued from time to time.
In the year 1972 G.O.Ms.
No. 893 dated 15.6.72 was issued amending the special rules for the A.P. Engineering Subordinate Service.
The same provided that Supervisors who while in service acquire B.E./A.M.I.E. degree qualification, shall be entitled to count 50% of the service rendered as Supervisors prior to the acquisition of such qualification subject to a maximum limit of four years.
This was subject to certain conditions.
One of the conditions was that they should be considered to have been placed below the last of the Junior Engineer of the year after giving such weightage.
In the year 1976 another G.O.Ms No. 451 (I & P) dated 10.6.76 ordered that the Supervisors who acquire the graduate qualification while in service should be appointed as Junior Engineers with immediate effect.
On 8.11.76 G.O.Ms. No.815 (I & P) was issued.
Clause 4 of the Conditions stipulated in G.O.Ms.
No.893 was amended and the benefit of the weightage was directed to be given effect only to those who acquired the aforesaid degree qualification prior to 28.2.72.
Then came the important G.O.Ms.
No. 559 (I & P) dated 18.7.77.
Relying on the contents of the above G.O.Ms.
the upgraded Supervisors claimed that the weightage of four years should be reckoned from the date of acquiring the qualification and not from the date of actual appointment.
The directly recruited Junior Engineers also based their claim on G.O. Ms. Ms. Nos. 451 and 559 and they further contended that the upgraded Supervisors should be treated as regularly appointed only with effect from the date of their appointment.
It may not be necessary for the purpose of this case to extract the entire contents of the G.O. Ms. that preceded G.O. Ms. Nos. 451 and 559.
It would suffice if we just give the gist of those respective G.O.Ms.
Under G.O.Ms.
No. 787 dated 9.6.71 the Government declared that posts of 304 Junior Engineers would be filled in by graduate Engineers which will be made a separate category and they will be made gazetted.
Therefore G.O.Ms. No.240 dated 28.2.72 was issued.
Under the said G.O.Ms. 1870 posts of Supervisors in Public Works Department were declared to constitute a category of Junior Engineers and similarly in the Roads and Buildings Department 620 posts were declared to constitute as a category of Junior Engineer as distinct from Supervisors and both these categories were made gazetted with effect from that date.
The G.O.Ms. also provided for temporary appointments in the case of qualified Junior Engineers being not available for filling up all such gazetted posts, and all these posts of Junior Engineers in both the Departments were declared to be within the purview of the A.P. Public Service Commission and the method of recruitment to the post of Junior Engineer should be by direct recruitment.
Then came the G.O. Ms. No. 893 dated 15.6.72 amending the special rules for the A.P. Engineering Subordinate Service under which the Supervisors who acquired the qualification were declared to be entitled to count 50% of their service subject to a maximum limit of four years for the purpose of promotion to the post of Assistant Engineer from Junior Engineer.
G.O. Ms. No. 782 dated 3.5.74 was issued permitting the Junior Engineers recruited during emergency on temporary basis to apply for SQT held by the Public Service Commission.
Accordingly the Rules were amended as per G.O. Ms. No. 786 dated 7.8.74 and the adhoc rules were framed enabling the computation of period of two years with or without break in the service rendered by such degree holders Junior Engineers who appeared in the SQT held by the Public Service Commission and were declared to be selected and thus their services were regularised retrospectively giving them the benefit of the service of two years rendered prior to the actual selection.
In conformity with the same Rule 33A was also relaxed for the purpose of fixing their inter se seniority.
The next important G.O.Ms.
with which we are concerned is G.O.Ms.
No. 451 dated 10.6.76.
It reads as under: "GOVERNMENT OF ANDHRA PRADESH ABSTRACT Establishment Irrigation and Power Department Appointment of Supervisors who have acquired Graduate Qualification as Junior Engineers Orders Issued.
Irrigation and Power (Ser.II) Department G.O. MS.
No. Dated: 10 6 1976 ORDER: Consequent on the declaration of the posts of Junior 305 Engineers as Gazetted with effect from 28.2.1972, the upgradation of Supervisors who acquired Graduate Qualification while in service, as Junior Engineers, ceased.
Since then representations have been made to Government by several Associations that the benefit of upgradation should be extended also to Supervisors who acquired the Graduate qualification on or after 28.2.1972.
On a reconsideration of the matter, the Governement are of the view that some consideration should be shown to the Supervisors who have acquired the Graduate qualification while in service.
Accordingly the Government have decided that the Supervisors in P.W. (Irrigation) Department who have acquired Graduate qualification while in service should be appointed temporarily as Junior Engineers (Prospectively) with immediate effect.
The Chief Engineer (General) is requested to take action accordingly, Orders regarding other consequential matters will issue separately.
(BY ORDER AND IN THE NAME OF THE GOVERNOR OF A.P.) M. GOPALAKRISHNAN, SECRETARY TO GOVERNMENT " Under this G.O. Ms. it is proposed to extend the benefit of upgradation to Supervisors who acquired the graduate qualification on or after 28.2.72 but the second para makes it clear that they should be appointed temporarily as Junior Engineers and that too prospectively only.
The next and the important G.O.Ms.
is No.559 dated 18.7.77 which reads as under: "GOVERNMENT OF ANDHRA PRADESH ABSTRACT ESTABLISHMENT Irrigation & Power Department Appointment by transfer of Supervisors who have acquired Graduate qualification from 28.2.1972 onwards as Junior Engineers Further orders Issued.
306 IRRIGATION & POWER (SERVICE III) DEPARTMENT G.O. Ms. No.559 Dated 18th July, 1977 Read the following: G.O. Ms. No.451, Irrigation & Power (Ser.
III) Department, dated 10.6.76.
ORDER: It was ordered in the G.O., cited that the Supervisors in the Public Works (Irrigation) Department, should be appointed temporarily as Junior Engineers (Prospectively) with immediate effect.
It was also indicated therein that orders regarding other consequential matters would issue separately.
Accordingly, matters relating to weightage, seniority, etc., have been examined by the Government and the following orders are issued: (i) Supervisors who acquire Graduate qualification may be appointed as Junior Engineers on or after 28.2.1972, subject to the availability of vacancies in the cadre of Junior Engineers.
They will not be entitled for appointment as Junior Engineers automatically from the date of acquisition of degree qualification; (ii) A Supervisor, who is appointed as Junior Engineer, shall be entitled to count 1/3rd of the service rendered by him as Supervisor, before his appointment as Junior Engineer, subject to a maximum of four years, for the purpose of computing the service as Junior Engineer, which will render him eligible for consideration for promotion as Assistant Engineer.
(iii) The seniority of the Supervisors, who are appointed as Junior Engineers, shall be fixed with reference to the notional date arrived at after giving weightage of service; (iv) A Supervisor, who is appointed as Junior Engineer, shall put in a minimum service of one year as Junior Engineer to become eligible for promotion as Assistant Engineer; (v) No Supervisor shall ordinarily be eligible for appointment as Junior Engineer unless he has put in a minimum service of three years as Supervisors.
A Supervisor with less than three years of service, who is appointed as Junior Engineer for any special reason, shall not be entitled to any weightage for his past service.
307 3.
Necessary amendment to the Special Rules for the Andhra Pradesh Engineering Service will be issued separately.
The Transport, Roads & Building/Panchayati Raj/Housing, Municipal Administration & Urban Development Department will issue amendments to the Special Rules with which they are concerned in accordance with the above decisions in consultation with the Andhra Pradesh Public Service Commission.
The cadre strength of Junior Engineers was last fixed in G.O.Ms.
No. 240, Public Works (VI) Department, dated 28.2.1972.
Since then a large number of posts of Junior Engineers/Supervisors have been sanctioned by Government.
The Chief Engineer (General) is requested to submit proposals for suitably enhancing the strength of the two orders.
(BY ORDER AND IN THE NAME OF THE GOVERNOR OF A.P.) M. GOPALAKRISHNAN, SECRETARY TO GOVERNMENT.
" G.O. Ms. No. 451 is referred to in this G.O.Ms.
and in the Preamble it is clearly noted that the appointments of the upgraded Supervisors as Junior Engineers should be temporary and prospectively only.
In Paragraph 2 (i) it is also made abundantly clear that they will not be entitled for appointment as Junior Engineers automatically from the date of acquisition of degree qualification.
Coming to the weightage it is clarified in paragraph 2 (ii) to the effect that a Supervisor who is appointed as Junior Engineer shall be entitled to count 1/3rd of the service rendered by him as Supervisor, before his appointment as Junior Engineer, subject to a maximum of four years and the same would be taken into account to render the appointee eligible for consideration for promotion as Assistant Engineer.
Paragraph 2 (iii) is very important regarding the seniority and the same has to be fixed with reference to the notional date arrived at after giving weightage of service, Paragraph 2 (v) gives a clue that the weightage could be from the date of appointment.
The Government, however, issued proceedings dated 8.8.77 and fixed the seniority of these upgraded Supervisors who acquired the degree qualification from the date of acquiring the degree.
We have already noted that vide G.O. Ms. No. 893 the special rules were amended.
After the G.O. Ms. No. 559 was issued, representations were made by the Association of Andhra Junior Engineers as well as from the Diploma holders Engineers Association.
Having considered these representations, the Government came out with another G.O. Ms. No. 593 dated 29.7.77 and clarified that the rules only refer to the date of appointment and does not refer to selection and that the seniority of an individual or a class or category has to be fixed according to the date of his first 308 appointment and not with reference to the date of selection and the Chief Engineer (General) was requested to fix the seniority accordingly.
The Chief Engineer (General) Vide proceedings No. Rc.
MI/58062/74 75 dated 8.8.77 fixed the seniority.
But in doing so he has taken the date of passing the examination by the upgraded Junior Engineers as the date of appointment.
As already noted this fixation of seniority was questioned before the Tribunal.
From the above resume of all the G.O.Ms.
it is clear that an interpretation of G.O. Ms. No. 559 would be decisive in the these matters.
In our view the G.O. Ms. No. 559 makes it abundantly clear that the appointments of these upgraded Supervisors who acquired the graduate qualification while in service, would be prospective only and that they would be entitled to the weightage of four years of service rendered before the appointment.
The G.O. Ms. does not anywhere indicate that the weightage should be from the date of acquiring the degree qualification.
It must be borne in mind that it is only after acquiring such degree qualification that a Supervisor is appointed as Junior Engineer and having regard to the service rendered by him the Government as a policy decided to give weightage of four years for the purpose of considering the eligibility for promotion as Assistant Engineer.
In this context it is pertinent to note that the degree holders were appointed temporarily because of a ban and later the Government again as a policy decision decided to make regular appointments by direct recruitment but enabled the degree holders who are in temporary service to appear in a SQT.
Again as a matter of policy the Government decided to give some weightage to the service rendered by them before the appointment by selection.
It can thus be seen that the Government in fixing the seniority for the purpose of future promotion of the appointees both the upgraded as well as those selected by the Public Service Commission in SQT has taken into account the past service rendered by them.
In the case of upgraded Junior Engineers weightage of four years ' service is given and in the other case two years ' weightage is given.
In this context it is contended on behalf of the upgraded Junior Engineers that the regularisation of the direct Junior Engineers retrospectively that is with effect from two years prior to the date of their appointments is unwarranted.
In this context the Tribunal has rightly pointed out that under Rule 23 A of the A.P. State and Subordinate Service Rules, 1962 if a person having been appointed temporarily under Rule 10 to a post borne on the cadre is subsequently appointed in the service in accordance with the rules he shall commence his probation from such subsequent date or the earlier date as the appointing authority may determine.
We agree with the Tribunal that there is no bar to the retrospective regularisa 309 tion of the service of the direct Junior Engineers.
However, in the instant case, it was a special selection by SQT restricted to the directly recruited Junior Engineers who had put in two years of service and the objective was to regularise their services.
As stated supra as a matter of policy the Government gave weightage to both the categories.
In Devi Prasad and others vs Government of Andhra Pradesh and others.
AIR 1980 SC 1185, G.O. Ms. No.893 referred to above was questioned on the ground of unreasonableness in the matter of giving weightage to the upgraded supervisors.
This Court held that in the light of their experience there is nothing unreasonable in giving them limited benefit or weightage.
It was further observed as under: "Ultimately; it is a matter of Government policy to decide what weightage should be given as between two categories of Government servants rendering somewhat similar kind of service.
In the present case, there may be truth in the case of the appellants that they are hit hard because of the new rule.
Dr. Chitale tried to convince us of the hardship that his clients sustain consequent on this rule and weightage conferred thereby.
But mere hardship without anything arbitrary in the rule does not call for judicial intervention, especially when it flows out of a policy which is not basically illegal.
However, Government must be interested in keeping its servants specially in strategic areas like engineering contended and efficient.
In so producing contentment, it may have to evolve a flexible policy which will not strike a group as inflicting hardship on them.
A sense of justice must permeate both the groups." However, the upgraded Junior Engineers who having got the benefit of four years ' service cannot be heard to say that similar weightage cannot be given to the direct recruits who prior to the selection were working on temporary basis.
Shri Kanta Rao, learned counsel relied on the decisions of this Court in Smt.
M.Nirmala and other vs State of Andhra Pradesh and others etc., [1986]3 SCC 647; Ashok Gulati and others vs B.S. Jain and others.
, [1986] Supp. SCC597; Direct Recruit Class II Engineering Officers ' Association vs State of Maharashtra and others, [1990] 2SCC 715 and Masood Akhtar Khan and others vs State of Madhya Pradesh and others, and contended that both the categories were discharging the same duties and there should not be any discrimination.
Learned counsel also relied on some unreported judgments of the Andhra Pradesh High Court in writ Petitions Nos.
1929, 1006 and 2387/ 310 73 and also Writ Petitions Nos.
3897/72.
We have perused all these judgments and we are of the view that such a question did not arise in these cases.
The question to be considered is from which date the weightage of four years ' service should be given to the upgraded Junior Engineers namely the Supervisors.
Is it the date of acquiring the degree qualification or the date of their appointment? Having given our earnest consideration and for the reasons stated above we hold that the weightage can be given only from the date of their appointment.
The Tribunal in the course of its order, however, observed that in accordance with the existing rules the appointments of these Junior Engineers from the notional date have to be cleared by the Public Service Commission and the appointments cannot be held to be regular appointments as long as they are not approved by the Public Service Commission.
Having referred to the Rules, the Tribunal in paragraph 18 observed thus: "We thus find that the appointment of the upgraded JEs as well as the direct JEs to the Gazetted posts have not been made strictly in accordance with the Rules and, hence, it is necessary for the Government to issue specific orders after following the procedure laid down in the Rules, in regard to their appointment to the Gazetted post of `Junior Engineers.
" Having so observed the Tribunal suggested some working formula in the meanwhile.
In evolving this formula the Tribunal further held thus.
"Thus, after having examined the points raised for and against the action taken by the Government in giving the upgraded Junior Engineers the benefit of the notional dates of appointment given to them and in giving the direct Junior Engineers benefit of the dates of the regularisation of their services from the dates of their initial appointment subject to the maintenance of the order ranking given by the P.S.C., we feel that the Government action in this respect was quite justified.
" Towards the end the Tribunal, however, observed that the seniority of the upgraded Junior Engineers who acquired the degree qualification before 28.2.72 will have to be fixed by putting them below all the regular Junior Engineers.
Likewise those who have acquired the degree qualification after 28.2.72 their seniority have to be fixed on the basis of notional date of appointment by "interspersing" among the regular Junior Engineers.
The learned counsel for the State of A.P. submitted that this exercise of "interspersing" becomes impossible at this stage.
311 Having given our careful consideration particularly to the fact that this litigation has been pending for the last so many years, about two decades.
We feel that it is high time a finality has to be reached by resolving the controversies and in this context we are of the view that the approval of the Public Service Commission in respect of these appointments need not be sought, if the Government has not already obtained the approval of the Public Service Commission.
To sum up, our conclusions are as under: (i) The weightage of four years in respect of upgraded Junior Engineers as provided in G.O. Ms. No. 559 has to be reckoned from the date of appointment and not the date of their acquiring the degree qualification; (ii) On the basis of that notional date, their inter se seniority has to be fixed; (iii) The regularisation of the degree holder Junior Engineers who passed the SQT by giving retrospective effect cannot be held to be illegal, and their seniority among themselves shall be subject to the order of ranking given by the Public Service Commission on the basis of the SQT; (iv) The Government shall prepare a common seniority list of the degree holders Junior Engineers and the upgraded Junior Engineers on the above lines and that list shall be the basis for all the subsequent promotions.
Promotions, if any, already given shall be reviewed and readjusted in accordance with the said seniority list; and (v) The approval of the Public Service Commission in respect of these appointments and their seniority thus fixed need not be sought at this distance of time.
Accordingly Civil Appeal Nos. 752 55/84 are disposed of as per the directions given above.
There will be no order as to costs.
S.L.P.(C) No. 5218/85: This Special Leave Petition arises out of a separate order passed by the A.P. Administrative Tribunal in R.P. No. 1473/80.
The petitioners before the Tribunal belong to A.P. Panchayati Raj Engineering Department in Zone No. 1.
They are all graduates in Civil Engineering and were temporarily appointed as Junior Engineers originally in the Public Works Department in 1969.
Their services were terminated for want of vacancies.
However, during the year 1973 they were again appointed in the A.P. Panchayati Raj Engineering Department.
They also appeared in the Spe 312 cial Qualifying Test and they were selected by the Public Service Commission and they were appointed as regular Junior Engineers.
They commenced their probation.
The respondents before the Tribunal were appointed as Supervisors and after they acquired the degree qualification they were designated as Junior Engineers.
The grievance of the petitioners was that the respondents could not have been put above the petitioners in the matter of seniority and their seniority should have been reckoned from the date of their acquiring the graduate qualification.
G.O. Ms. No. 422 issued by the Department declaring them as seniors to the petitioners, was specifically questioned before the Tribunal.
The Tribunal held that the impugned G.O.Ms. is vitiated firstly on the ground that the principles of natural justice have not been observed and secondly that the petitioners before the Tribunal who were the direct recruits and who were selected by the Public Service Commission after holding the SQT, are entitled to count their service in the ranking of Junior Engineers from the date of their appointment subject to the order regarding the maintenance of ranking given by the Public Service Commission.
The said order of Tribunal is questioned in this Special Leave Petition by the upgraded Junior Engineers who were the respondents before the Tribunal.
In this petition also the grounds raised are the same as in Civil Appeal Nos. 752 55/84.
The conclusion reached by us in the above matters also govern the points in this petition.
Accordingly this Special Leave Petition is disposed of in terms of the directions given in Civil Appeal Nos. 752 55/84.
There will be no order as to costs.
W.P. (C) No. 3566/85: This Writ Petition is filed under Article 32 of the Constitution of India.
The petitioners are all upgraded Junir Engineers of A.P. Panchayati Raj Engineering Service.
They have questioned G.O.Ms.
No. 376/84 under which some promotions were made on the basis of the inter se seniority list of the direct recruits and upgraded Junior Engineers.
The conclusions reached by us in Civil Appeals Nos.
752 55/84 also govern the points raised in this Writ Petition.
Accordingly the Writ Petition is disposed of in terms of the directions given in Civil Appeals Nos. 752 55/84.
There will be no order as to costs.
G.N. Matters disposed of. [/INST] The A.P. Engineering Subordinate Service Rules were amended in 1972 by way of Government order.
It provided that supervisors who acquired B.E./A.M.I.E. degree while in service would be entitled to count 50 % of the services rendered as Supervisors prior to acquiring the said qualification subject to a maximum of four years.
However, this was subject to certain conditions, the Chief among them was that they should be considered to have been placed below the last of the Junior Engineer of the year, after giving such weightage.
Order dated 10.6.76 required that the Supervisors who acquire the degree qualification while in service would be appointed, as Junior Engineers with immediate effect.
The abovesaid order was amended on 8.11.76 giving benefit of the weightage to only those who acquired the degree qualification prior to 28.2.72.
In 1977, by another order of the State Government, the post of Junior Engineer was made Gazetted post.
In separate petition before the Andhra Pradesh Administrative Tribunal, the Supervisors upgraded as Junior Engineers including those who acquired the degree qualification after 28.2.72, as well as the State of A.P. agitated the issue regarding inter se seniority between the upgraded Junior Engineers and the direct recruit Junior Engineers.
The Tribunal heard all the matters together and gave a finding that there was no bar to the retrospective regularisation 296 of the directly recruited Engineers from the dates of their initial appointments.
The Tribunal also upheld the action of the Government in giving the benefit of the notional date of appointment to the upgraded Junior Engineers and the benefit of the date of regularisation of their services from the dates of their notional appointments subject to maintenance of order or ranking given by the Public Service Commission.
The Tribunal also ordered that the ranking given by the Public Service Commission in respect of directly recruited Junior Engineers his to be maintained and each of them would be entitled to count has seniority from the date on which his service has been regularised or from the date of regularisation of the service of the person immediately below in the order of ranking given by the Public Service Commission, whichever was earlier.
In respect of upgraded Junior Engineers who acquired degree qualification after 28.2.1972, the Tribunal gave a specific direction that their seniority has to be fixed on the basis of specific notional date of appointment given to them by interspersing their names among regular Junior Engineers as arranged in chronological order of dates from which such regular Junior Engineers are entitled to count their seniority.
Aggrieved against the Tribunal 's order, the State Government and the supervisors upgraded as Junior Engineers, preferred the present appeals.
On behalf of the State, it was contended that the direction of the tribunal particularly interspersing was not workable, since the upgraded Junior Engineers have put in long years of service and were discharging the same duties as the directly recruited Junior Engineers and this factor should be taken into account in fixing the notional date of appointment and inter se seniority.
On behalf of the upgraded Junior Engineers, it was contended that in G.O. Ms No.559 it is specifically laid down that Supervisors who have acquired graduate qualification may be appointed as Junior Engineers after 28.2.75 and the weightage of four years should be reckoned from the date of acquiring the degree qualification i.e.28.2.72 or thereafter; and their seniority should not be fixed from the date of the order of appointment.
On the order hand, the direct recruit Junior Engineers contended that the upgraded Junior Engineers can under no 297 circumstances be treated as seniors to the directly recruited Junior Engineers for the appointment of Junior Engineers was suspended for some time and in view of the exigencies the degree holders were appointed on temporary basis and they have served for a number of years; the Government decided to make regular appointments and accordingly a Special Qualifying Test was held in which they qualified and they were given the appointments; and a seniority list strictly on the basis of performance in the test and on merit was prepared by the Public Service Commission and a retrospective effect was given.
It was further contended that so far as the upgraded Junior Engineers are concerned all the relevant G.O.Ms.
make it clear that the crucial date has to be reckoned on the basis of the actual date of appointment and not on the date of acquiring the degree.
Disposing of the matters, this court, HELD: 1.1.
The weightage of four years in respect of upgraded Junior Engineers as provided in G.O.Ms.
No.559 has to be reckoned from the date of appointment and not the date of their acquiring the degree qualification.
On the basis of that notional date, their inter se seniority has to be fixed.
[311 B C] 1.2.G.O.
Ms. No. 559 makes it abundantly clear that the appointments of the upgraded Junior Engineers who acquired the graduate qualification while in service, would be prospective only and that they would be entitled to the weightage of four years of service rendered before the appointment.
It does not anywhere indicate that the weightage should be from the date of acquiring the degree qualification.
It is only after acquiring such degree qualification that a Supervisor is appointed as Junior Engineer and having regard to the service rendered by him, the Government, as a policy, decided to give weightage of four years for the purpose of considering the eligibility for promotion as Assistant Engineer.
[308 C D] 2.1.The regularisation of the degree holders Junior Engineers who passed the Special Qualifying Test by giving restrospective effect cannot be held to be illegal, and their seniority among themselves shall be subject to the order of ranking given by the Public Service Commission on the basis of the Special Qualifying Test.
[311 D] 2.2.
The degree holders were appointed temporarily because of a ban and later the Government again, as a policy decision, decided 298 to make regular appointments by direct recruitment but enabled the degree holders who were in temporary service to appear in a Special Qualifying Test.
Here again, as a matter of policy, the Government decided to give some weightage to the service rendered by them before the appointment by selection.
Thus, the Governement, in fixing the seniority for the purpose of future promotion of the appointees both the upgraded Junior Engineers as well as those selected by the Public Service Commission in the Special Qualifying Test has taken into account the past service rendered by them.
[308 E F] 3.
In the case of upgraded Junior Engineers weightage of four years service was given and in the other case two years, weightage was given.
As a matter of policy, the Government gave weightage to both the categories discharging the same duties.
The upgraded Junior Engineers who having got the benefit of four years` service, therefore, cannot say that similar weightage should not be given to the direct recruits who, prior to the selection, were working on temporary basis.
B, F] Devi Prasad and Ors.
vs Government of Andhra Pradesh and Ors.
, AIR 1980 SC 1185, relied on.
M. Nirmala and Ors.
vs State of Andhra Pradesh and Ors.
; , ; Ashok Gulati and Ors.
vs B.S.Jain and Ors., [1986] Sup.
SCC 597; Direct Recruit Class II Engineering Officers Association vs State of Maharashtra and Ors.
, ; ; Masood Akhtar Khan and Ors.
vs State of Madhya Pradesh and Ors., , referred to.
The Tribunal has rightly pointed out that under Rule 23 A of the A.P State and Subordinate Service Rules, 1962 if a person having been appointed temporarily under Rule 10 to a post borne on the cadre is subsequently appointed in the service in accordance with the rules, he shall commence his probation from such subsequent date or the earlier date as the appointing authority may determine.
The Tribunal was also right in holding that there was no bar to the retrospective regularisation of the service of the direct recruit Junior Engineers.
[308 G H; 309 A] 5.
In the light of this Judgment, the State Government shall prepare a common seniority list of the degree holder Junior Engineers and the upgraded Junior Engineers and that list shall be the 299 basis for all the subsequent promotions.
Any promotion already given shall be reviewed and readjusted in accordance with the said seniority list.
[311 D E] 6.
Since this litigation has been pending for about two decades, it is high time a finality has to be reached by resolving the controversies and in this context the approval of the Public Service Commission in respect of these appointments need not be sought, if the Government has not already obtained the approval of the Public Service Commission.
[311 A B] </s> |
<s>[INST] Summarize the following judgement: Appeal No. 361 of 1958.
Appeal by special leave from the judgment and order dated December 11, 1957, of the Mysore High Court in Civil Revision No. 702 of 1956, against the judgment and order dated August 10, 1956, of the Court of the Second Extra Assistant Judge, Belgaum, in Misc.
Appeal No. 36 of 1955, arising out of the order dated September 1, 1955, of the 1st Joint Civil Judge, Junior Division, Belgaum, in Regular Civil Suit No. 197 of 1955.
M. M. Gharekhan and I. N. Shroff, for the appellant.
D. D. Chawla and G. Gopalakrishnan, for the respondent.
B. Sen and T. M. Sen, for the intervener (Attorney General of India).
February 13.
The Judgment of the Court was delivered by SARKAR, J.
This is an appeal from the judgment passed by the High Court at Bangalore on a petition in revision.
The question is whether a certain suit should be stayed under section 34 of the . 214 The appellant carries on business as a supplier of electrical energy in Belgaum.
It obtained a licence from the Government under section 3 of the , authorising it to supply the energy in that area.
The respondent, who is the plaintiff in the suit, obtained supply of electricity from the appellant.
The respondent felt that he was being overcharged by the appellant for the electricity so supplied.
He thereupon filed a suit in the Court of the Civil Judge, Belgaum, on or about the 8th of June, 1955, claiming a refund of the amount paid in excess of what he thought was the legitimate charge.
The appellant then applied under section 34 of the for a stay of the suit on the ground that the matter was referable to arbitration under the provisions of the .
The application was dismissed by the Civil Judge and his decision was confirmed by the Extra Assistant Sessions Judge on appeal and lastly, by the High Court in revision.
The appellant has now come to this Court.
The appellant contends that this matter is referable to arbitration under the provision contained in cl.
XVI of the Sixth Schedule of the Act of 1948.
A few of the provisions of these Acts will now have to be referred to.
Under the Act of 1910 the business of supplying electrical energy can be carried on only with the sanction of the Government.
Section 3 of that Act makes provision for the grant of a licence for supplying electrical energy.
The appellant obtained a licence in 1932.
A form of the licence is set out in the rules framed under the Act of 1910 and that form prescribes the maximum limit which a licensee is entitled to charge a consumer for the electrical energy supplied.
The Act of 1948 made a somewhat different provision with regard to these charges.
It provided by section 57 as follows: "section 57.
(1) The provisions of the Sixth Schedule and the Table appended to the Seventh Schedule shall be deemed to be incorporated in the licence of every licensee, not being a local authority, from the date of the commencement of the licensee 's next succeeding 215 year of account, and from such date the licensee shall comply therewith accordingly and any provisions of, such licence or of the , or ' any other law, agreement or instrument applicable to the licensee shall, in relation to the licensee, be void and of no effect in so far as they are inconsistent with the provisions of this section and the said schedule and Table.
(2). . . . . . . . . .
This section had therefore the effect of incorporating in the licence the terms of these two Schedules and provided that they would prevail over the terms of any previously granted licence or the provisions of the Act of 1910, or any other law, agreement or instrument inconsistent with these Schedules.
The Sixth Schedule made new provisions about the charges that a licensee was entitled to realise for the current supplied.
Clause XVI of that Schedule contains a provision for arbitration and it is on that that the appellant relies.
That clause is in these terms: Any dispute or difference as to the interpretation or any matter arising out of the provisions of this Schedule shall be referred to the arbitration of the Authority.
" The appellant contends that the dispute covered by the respondent 's suit is one of the kind mentioned in this clause and therefore must be referred to arbitration under its terms.
We will assume that the dispute is of the kind mentioned in cl.
XVI of the Sixth Schedule.
We are however unable to see that it is a dispute which is referable to arbitration under that clause.
It is not the appellant 's case that el.
XVI is a clause in any contract between it and the respondent.
That being so, the only other way in which it is possible for the appellant to contend that the respondent is bound to refer the dispute to arbitration under this clause is by showing that it is a statutory provision for arbitration.
No doubt if it were so, then in view of the provisions of section 46 of the the 'appellant would be entitled to apply for a stay of the suit under section 34 of that Act.
We are however wholly unable to agree that cl.
XVI is such a statutory provision.
The only 216 statutory provision that we find on the subject is that contained in section 57 and its effect is that the terms of cl.
XVI and the other clauses in the Sixth Schedule are to be deemed incorporated in a licence granted by the Government under section 3 of the Act of 1910 and the licensee is to comply with the terms of that Schedule.
Therefore all that we get is that the licence which is granted by the Government to a supplier of electricity, like the appellant, is to contain a clause that certain disputes would be referred to arbitration.
The licence is an 'engagement between the Government and the licensee, binding the parties to it to its provisions.
It is unnecessary to decide whether this engagement is contractual or statutory, for, in either case it is between the two of them only.
An arbitration clause in an instrument like this can only be in respect of disputes between the parties to it.
Such an arbitration clause does not contemplate a dispute between a party to the instrument and one who is not such a party.
We are unable to read section 57 as making cl.
XVI in the Sixth Schedule a statutory provision by which certain disputes between any and every person have to be referred to arbitration.
It was said on behalf of the appellant that the licence is a statutory document ' That, in our view, is a loose way of putting the thing.
By that the utmost that can be meant is that it is issued under the terms of a statutory provision and must comply with the provisions thereof.
But that cannot convert it into a statutory provision for reference to arbitration of disputes irrespective of the parties between whom the disputes may exist.
In our view, therefore, cl.
XVI of the Sixth Schedule of the Act of 1948 contains no provision for arbitration, statutory or otherwise, for reference of the dispute of the nature we have before us, between a licensed supplier of electricity and a consumer of it from him.
In the result, this appeal fails and is dismissed with costs.
Appeal dismissed. [/INST] The arbitration clause incorporated by section 57(1) of the , in a licence granted by the Government for the supply of electrical energy to the consumers is not available for adjudicating upon a dispute between the licensee and the consumer, for the licence is an engagement between the licensee and the Government and the arbitration clause in it refers only to disputes between them.
Section 57(1) does not make the arbitration clause a statutory provision by virtue of which disputes between any and every person may be referred to arbitration. </s> |
<s>[INST] Summarize the following judgement: ivil Appeal No. 1351 of 1976.
From the Judgment and Order dated 24.11.
1975 of the Andhra Pradesh High Court in A.S. No. 691 of 1972.
T.V.S.N. Chari for the Appellant.
A. Subba Rao and A.D.N. Rao for the Respondents.
The Judgment of the Court was delivered by K. RAMASWAMY, J.
This appeal by special leave arises against the Division Bench judgment dated November 24, 1975 in A.S. No. 691 of 1972 of the A.P. High Court fixing the market value @ Rs. I0 per square yard.
The facts lie in a short compass are stated thereunder.
By notification under section 4(1) of the Land Acquisition Act 1894 (in short 'the Act ') was published in the State Gazette on November 21, 1963 to acquire 5 acres 589 1/3 sq. yards in T.S. No. 981, Block No. 34 of Waitair Ward, Vishakapatnam for a housing scheme.
The Collector 475 awarded at Rs. 1.58 per sq. yard and on reference, the Civil Court enhanced the compensation to Rs. 10 per sq. yard with solatium at 15 per cent and interest at 4 per cent.
The respondent claimed @ Rs. 12 per sq. yard.
On appeal and cross appeals the High Court confirmed the award and dis missed the appeal as well as cross objections for enhance ment to Rs. 12 per sq. yard.
Two contentions have been raised by Shri Narsimahachari, the learned counsel for the appellant.
Under exhibit B. 6 dated August 3, 1961; under exhibit B 7 dated Sept. 5, 1961 and exhibit B 8, dated Sept. 8, 1961 the respondent purchased one acre 1936 sq.
yards in each docu ments in the same T.S. No. 981 @ 0.42 p. per sq. yard.
He sold on January 24, 1963 in an extent of one acre under exhibit B. 10 @ Rs.5 per sq. yard.
Therefore, ' the aforesaid sale deeds, exhibit B. 6, B. 7, B. 8 and B. 10 will reflect the prevailing market value of the land in question.
The Trial Court and the High Court committed grievous error in placing reliance on a decision of the High Court in A.S. No. 191 of 1967 dated November 11, 1970 awarding @ Rs. 10 per sq. yard in respect of 6,209 sq. yards in T.S. No. 1008, Block No. 39, Waitair Beach Road which was acquired under a notifica tion dated March 19, 1961 for the purpose of Caltex Oil Refinery.
The price fixed therein does not reflect the correct market value while the bona fide sale deed of pur chase and sale by the respondents relating to the acquired land are available on records and form correct basis.
The courts below committed grave error of law in completely excluding those sale transactions and relying upon that judgment.
We find force in the contention, though Shri Subba Rao, learned counsel for the respondent vehemently resisted, it.
It is settled law by catena of decisions that the market value postulated in section 23(1) of the Act designed to award just and fair compensation for the lands acquired.
The word "market value" would postulate price of the land prevailing on the date of the publication of the notification under section 4(1).
This Court repeatedly laid the acid test that in determining the market value of the land, the price which a willing vendor might reasonably expect to obtain from a willing purchaser would form the basis to fix the market value.
For ascertaining the market rate, the Court can rely upon such transactions which would offer a reasonable basis to fix the price.
The price paid in sale or purchase of the land acquired within a reasonable time from the date of the acquisition of the land in question would be the best piece of evidence.
In its absence the price paid for a land pos sessing similar advantages to the land in the neighbourhood of the land acquired in or about the time of the notifica tion would supply the data to assess the market value.
It is not necessary to cite all the decisions suffice to state that in a recent judgment in Periya & Pareekanni Rubbers Ltd. vs State of Kerala, [1990] Supp. 1 SCR 476 362 a bench of this Court, to which one of us K.R.S., J., was a member surveyed all the relevant precedents touching the points.
In the light of the settled legal position let us consider whether the High Court and the Civil Court are justified in excluding the sale deeds completely and to place reliance on another judgment of the Division Bench of the High Court of A.P.
Admittedly, the claimant is a vendee in exhibit B. 6 to B. 8 @ 0.42 paise.
In a span of one year and four months, they sold @ Rs.5 per sq. yard; It is common knowledge that proposal for acquisition would be known to everyone in the neighbourhood, in particular, to the owners of the property and it is not uncommon that sale transac tions would be brought into existence before the publication of section 4(1) notification so as to form the basis to lay higher claim for compensation.
We do assume that exhibit B. 10 is a genuine and bona fide sale transaction.
In respect of one acre of the land in the self same land when sold at Rs.5 per sq. yard, would it fetch in a short period of nine months, double the market value, namely. @ Rs. 10 per sq. yard.
We have no doubt that it would not get that price for 5 acres and odd area.
It is undoubted that in respect of a notification of 1961 in which another T.S. number in the locality, namely, T.S. No. 1008, ultimately, the High Court awarded @ Rs. 10 per sq. yard.
Perhaps had there been no bona fide or genuine sale transaction relating to the self same land, the reliance placed on that judgment may be justified but exclusion of bona fide and genuine sale trans actions in respect of the same land under acquisition and to place reliance on the award of some other land is obviously illegal.
When the claimants themselves sold as a willing seller of an acre of land @ Rs.5 per sq.
yard large extent of five acres and odd under acquisition, if it is offered to be sold as a block, it would not fetch higher rate but surely be negotiated for a lesser rate if not the same market value @ Rs.5 due to time lag of nine months.
No attempt was made by the respondent to explain under what circumstances they came to sell their lands @ Rs.5 per sq. yard when they expect higher value @ Rs. 10 per sq. yard.
May be the payment of Rs. 10 per sq. yard, be wind fall to the owner of the land in T.S. No. 1008 Taking the totality of the facts and circumstance, we hold that the High Court committed grave error to completely ignore the sale transac tions of the lands under acquisition.
In view of the time lag we have no hesitation to conclude that the prevailing market value of the land as on the date of the notification would be Rs.6 per sq. yard.
It is next contended by Shri Narsimahachari that when a large extent of land was acquired for a housing scheme, at least 1/3 of the land should be deducted towards laying the roads, setting up parks, 477 drainage and other amenities.
The High Court committed manifest error in omitting to deduct 1/3 of the land.
Shri Subba Rao, the learned counsel for the respondent contended that the High Court had noted this contention of the appellant and considered that the market value of the land would be Rs. 12 per sq. yard and after giving the deduction of 1/3 it would come to Rs. 10.
The reasoning of the High Court is proper and warrants no interference.
In support thereof he placed reliance in Spl.
Tehsildar, Visha kapatnam vs Rednam Dharma Rao & Ors., C.A. No 4187 of 1982, dated July 17, 1990 wherein this Court had upheld the deduc tion of 1/5 from the market value towards developmental charges.
It is settled law that the High Court and the Reference court when made wrong application of a principle or important points effecting valuation has been over looked or misapplied, this Court would under article 136 correct the same, vide The Spl.
Land Acquisition Officer, Bangalore vs
T. Adinarayan Setty, [1959] Suppl.
1 S.C.R. 404; Dattatrayaya Shankarbhat Ambalgi and Ors.
vs The Collector of Sholapur and Anr., AiR 3 S.C.C. 431; The Dollar Co., Madras vs Collector of Madras, [1975] Supp.
SCC 403 and Padma Uppal Etc.
vs State of Punjab & Ors.
, ; In Tribeni Devi & Ors.
vs Collector of Ranchi, ; at 2 13, this Court held that "in order to devel op that area at least the value of 1/3 of the land will have to be deducted for roads, drainage and other amenities".
On this basis the value of the land at Rs.2,08,135.70 per acre would, after the deduction of 1/3 come to Rs. 1,38,757 per acre.
In Smt.
Kaushalya Devi Bogre & Ors.
vs The Land Acquisition Officer, Aurangabad; , this Court held that deduction of 1/3 was held to be reasonable.
In Vijay Kumar Motilal vs State of Maharashtra, 19 i/3rd was deducted towards developmental charges in undeveloped area.
In Vijaysingh Liladhar vs Special Land Acquisition Officer, the deduction of i/4th by the High Court which was not challenged in this court was upehld.
In Spl.
Land Acquisition Officer, Bangalore vs T. Adinarayan Setty, supra, deduction of 25 per cent was held to be reasonable.
It is to be noted that in building Regula tions, setting apart the lands for development of roads, drainage and other amenties like electricity etc.
are condi tion precedent to approve lay out for building colonies.
Therefore, based upon the situation of the land and the need for development the deduction shall be made.
Where acquired land is in the midst of already developed land with ameni ties of roads, drainage, electricity etc.
then deduction of 1/3 would not be justified.
In the 478 rural areas housing schemes relating to weaker sections deduction 1/4 may be justified.
On that basis, this court in R. Dharma Rao 's case upheld deduction of 1/5 because the owner while obtaining the lay out had already set apart lands for road and drainage.
Therefore, deduction of 1/3 would be reasonable.
In fact in The Tehsildar, Land Acquisi tion, Vishakapatnam vs
P. Narasing Rao & Ors., , a Division Bench of the High Court surveyed judgments of the High Court relating to housing schemes of Vishakapatnam upholding deduction of 1/3 to be reasonable.
Accordingly we hold that 1/3 of the market value should be deducted for development of the lands.
The High Court com mitted greivous error in giving a curious reasoning of valuing at Rs. 12 and upholding Rs. I0 to be the market value after deduction, though *.he market value was deter mined at Rs. 10.
Accordingly the appeal is allowed.
The market value is determined at Rs.6 per sq. yard and after deducting 1/3 the market value is Rs.4 per sq. yard.
The respondents are entitled to 15 per cent Solatium on market value and 4 per cent interest thereon from the date of dispossession.
But in the circumstances parties are directed to pay and receive their own costs.
N.P.V. Appeal al lowed. [/INST] The respondent 's land admeasuring 5 acres 589 1/3 Sq. yards was acquired by the State Government in 1963 for a housing scheme and compensation at Rs.1.58 per Sq. yard was awarded.
On reference, the Civil Court enhanced the compen sation to Rs. 10 per Sq. yard with solatium at 15 per cent and interest at 4 per cent.
On appeal and cross appeals, the High Court confirmed the award.
In the appeal before this Court, on behalf of the De partment, it was contended that the respondent had purchased the land in question in 1961 in three documents at Rs.0.42 p. per sq. yard and sold in 1963 one acre of the land at Rs.5 per sq. yard and, therefore, the deeds under which the transactions took place reflected the prevailing market value of the land in question, and courts below committed grave error in relying on a decision of the High Court awarding Rs. 10 per sq. yard in respect of another land acquired under a Notification of 1961, and that when a large extent of land was acquired for a housing scheme, at least 1/3 of the land should be deducted towards laying the roads, setting up parks, drainage and other amenities.
Allowing the appeal, this Court, HELD: 1.1 The market value postulated in Section 23(1) of the Land Acquisition Act, 1894 is designed to award just and fair compensation for the lands acquired.
The word "market value" would postulate price of the land prevailing on the date of the publication of the notifica 473 tion under Section 4(1).
In determining the market value of the land, the price which a willing vendor might reasonably expect to obtain from a willing purchaser would form the basis.
For ascertaining the market rate, the Court can rely upon such transactions which would offer a reasonable basis to fix the price.
The price paid in sale or purchase of the land acquired within a reasonable time from the date of the acquisition of the land in question would be the best piece of evidence.
In its absence the price paid for a land pos sessing similar advantages to the land in neighbourhood of the land acquired in or about the time of the notification would supply the data to assess the market value.
[475E G] Periya & Pareekanni Rubbers Lief.
vs State of Kerala, [1990] Supp. 1 SCR 362, referred to. 1.2 In the instant case, admittedly, the claimant pur chased land at Rs.0.42 p. and in a span of one year and four months, sold at Rs.5 per sq yard.
When the claimants them selves sold as a willing seller of an acre of land @ Rs.5 per sq.
yard, if a large extent of five acres and odd under acquisition is offered to be sold as a block, it would not fetch higher rate but surely be negotiated for a lesser rate, if not the same market value of Rs.5 due to time lag of nine months.
May be the payment of Rs. 10 per sq yard to the owner of another land acquired in 1961 was a windfall.
Taking the totality of the facts and circumstances, the High Court committed grave error in completely ignoring the sale transactions of the lands under acquisition.
In view of the time lag, the prevailing market value of the land as on the date of the notification would be Rs.6 per sq. yard.
[476B, E G] 1.3 In Building Regulations, setting apart the lands for development of roads, drainage and other amenities like electricity etc.
are condition precedent to approve lay out for building colonies.
Therefore, based upon the situation of the land and the need for development, the deduction shall be made.
Where acquired land is in the midst of al ready developed land with amenities of roads, drainage, electricity etc.
then deduction of 1/3 would not be justi fied.
In the rural areas housing schemes relating to weaker sections, deduction of 1/4 may be justified.
[477G H, 478A] Spl.
Tehsildar, Vishakapatnam vs Rednam Dharma Rao & Ors., CA No. 4187 of 1982 decided on July 17, 1990; Tribeni Devi & Ors.
vs Collector of Ranchi, ; at 213; Smt.
Kaushalya Devi Bogre & Ors.
vs The Land Acquisi tion Officer, Aurangabad; , ; Vijay Kumar Motilal vs State of Maharashtra, ; Vijay singh Liladhar vs Special Land Acquisition Officer, 760; Spl.
Land Acquisition Officer, Bangalore vs
T. Adinaray an Setty, [1959] Sppl.
1 SCR 404 and The Tehsildar, Land Acquisition, Vishakapatnarn
P. Narasing Rao & Ors., , relied on. 1.4 In the instant case, 1/3 of the market value should be deducted for development of the lands.
[478B] 1.5 The market value is determined at Rs.6 per sq. yard and after deducting 1/3 for development of lands, it would be Rs.4 per sq. yard.
[478C] 2.
It is settled law that when wrong application of a principle has been made or important points affecting valua tion have been overlooked or misapplied by the High Court or Reference Court, this Court would, under Article 136 of the Constitution, correct the same.
The Spl.
Land Acquisition Officer, Bangalore vs
T. Adina rayan Setty, [1959] Suppl.
1 SCR 404; Dattatrayaya Shankarb hat Ambalgi and Ors.
vs The Collector of Sholapur and Anr., ; The Dollar Co. Madras vs Collector of Madras, and Padma Uppal etc.
vs State of Punjab & Ors.
, ; , relied on. </s> |
<s>[INST] Summarize the following judgement: ition (Civil) No. 873 of 1990.
(Under Article 32 of the Constitiution of India) WITH Contempt Petition No. 6 of 1991.
AND Civil Appeal Nos.
309 to 373 of 1992.
R.K. Garg, Kapil Sibal, V. Lakshmi Narayanan, D.K. Garg and P. Mahale for the Petitioners.
R.N. Narasimhamurthy, Kh.
Nobin Singh and M. Veerappa for the Respondents.
The Judgment of the Court was delivered by R.M. SAHAI, J.
Teachers appointed temporarily for three months or less, by privately managed degree colleges receiving cent per cent grant in aid, controlled administratively and financially by the Educational Department of the State of Karnataka, seek regularisation of their services by invoking principle of equitable estoppel arising from implied assurance due to their continuance, as such, for years with a break of a day or two every three months.
Another basis for direction to regularise is founded on denial of similar treatment by the State as has been extended to contract teachers and local teachers appointed in government or vocational colleges.
Payment of fixed salary instead of regular emoluments for eight months in a year and that too for number of years is yet another grievance.
Ad hoc appointments, a convenient way of entry usually from back door, at times even in disregard of rules and regulations, are comparatively recent innovation to the service jurisprudence.
They are individual problem to begin with, become a family problem with passage of time and end with human problem in court of law.
It is unjust and unfair to those who are lesser fortunate in society with little or no approach even though better qualified, more meritorious and well deserving.
The infection is 401 widespread in government or semi government departments of State financed institutions.
It arises either because the appointing authority resorts to it deliberately as a favour or to accommodate someone or for any extraneous reason ignoring the regular procedure provided for recruitment as a pretext under emergency measure or to avoid loss of work etc.
Or the rules or circulars issued by the department itself empower the authority to do so as a stop gap arrangement.
The former is an abuse of power.
It is unpardonable.
Even if it is found to have been resorted to as a genuine emergency measure the courts should be reluctant to grant indulgence.
Latter gives rise to equities which have bothered courts every now and then.
Malady appears to be widespread in educational institutions as provisions for temporary or ad hoc appointments have been exploited by the managements of private aided colleges to their advantage by filling it, on one hand, with persons of own choice, at times without following the procedure, and keeping the teachers exposed to threat of termination, on the other, with all evil consequences flowing out of it.
Any institution run by State fund but managed privately is bound to suffer from such inherent drawbacks.
In State of Karnataka it is basically State created problem due to defective rule and absence of any provsions to effectively deal with such a situation.
What is surprising is that till today the State has not been able to bring out a comprehensive legislation on such an important aspect as education and the appointment, selection, promotion, transfer, payment of salary etc.
of teachers is regulated by government orders issued from time to time.
Since 1980 it is governed by an order issued by Educational and Youth Services Department of the State of Karnataka on 3rd October, 1981.
Clause 5 of the Order reads as under: "Any appoinment for a period of three months or less in a College shall be made, subject to approval of the Director within one month from the date of appointment by the Management or such authority as the Management by Order, may specify in that behalf.
Such temporary appointments may, however, be continued for a further period of not more than three months, with one day 's break when selection through the Selection Committee is likely to take time.
The Director may, for reasons to be recorded in writing refuse approval for the said appointment and the services of the person so appointed shall be terminated forthwith.
" Appointments for more than three months is to be by a regularly constituted selection committee under clause 4 of the order.
But if is for three months or less than the appointment could be made by the 402 Management under clause 5 subject to approval by the Director.
It could be continued for further period of three months if there was delay in regular appointment.
But the direction to re appoint with one day 's break is not understandable.
If the intention was to differentiate between appointments for more than three months and others it was a futile exercise.
That had already been achieved by providing two different methods of selection one by Selection Committee and ohter by Management.
Distinction between appointment against temporary and permanent vacancies are well known in service law.
It was unnecessary to make it appear crude.
If the purpose was to avoid any possible claim for regularisation by the temporary teachers then it was acting more like a private business house of narrow outlook than government of a welfare State.
Such provisions cannot withstand the test of arbitrariness.
That is why the High Court, while disposing of CMW 6232 of 1990 B.R. Parineeth & Ors.
vs The State of Karnataka & Others, along with many other petitions by its order dated 3rd July, 1990, criticised such practice as pernicious.
The rule making authority lost sight of fact that such policy was likely to give dominance to vested interests who leave no opportunity to exploit the educated youth who have to survive even at cost of one meal a day.
That is apparent from continuance of these teachers for 8 to 10 years with sword of termination hanging on their head ready to strike every three months at the instance of either the management or the Director.
Provision of stop gap appointments might have been well intended and may be necessary as well but their improper use results in abuse.
And that is what has happened on a large scale.
The helplessness expressed by the State in the counter affidavit that the managements went on continuing such teachers without holding regular selections despite orders of educational authorities may be true but not convincing.
It sounds like surrender in favour of private managements.
Another obnoxious part is the emoluments that have been paid to the temporary teachers.
The order provides that the teacher shall be paid a fixed salary which is ten rupees less than the minimum payable to regular employee.
This method of payment is again beyond comprehension.
An appointment may be temporary or permanent but the nature of work being same and the temporary appointment may be due to exigency of service, non availability of permanent vacancy or as stop gap arrangement till the regular selection is completed, yet there can be no justification for paying a teacher, so appointed a fixed salary by adopting a different method of payment than a regular teacher.
Fixation of such emoluments is arbitrary and violative of Article 14 of the Constitution.
The evil inherent in it is that apart from the teachers being at the beck and call of the management are in danger of being exploited as has been done by the management 403 committees of State of Karnataka who have utilized the services of these teachers for 8 to 10 years by paying a meagre salary when probably during this period if they would have been paid according to the salary payable to a regular teacher they would have been getting much more.
Payment of nearly eight months ' salary, by resorting to clause 5, and, that too fixed amount, for the same job which is performed by regular teachers is unfair and unjust.
A temporary or ad hoc employee may not have a claim to become permanent without facing selection or being absorded in accordance with rules but no discrimination can be made for same job on basis of method of recruitment.
Such injustice is abhorring to the constitutional scheme.
While deprecating direction by the government to break service for a day or two and paying fixed salary to temporary employees we must condemn the practice of management of not making regular selection utmost within six months of occurrence of vacancy.
Nor the helplessness of government can be appreciated as expressed in the counter affidavit that despite orders the management continued with it.
If the government could not take effective measure either by superseding the management or stopping grant in aid then either it was working under pressure from Management of the private aided institutions or it was itself interested in continuing such unfortunate state of affairs.
In either case the equities have been created because of doing of state itself, therefore, it should resolve it.
One such method was adopted by the High Court in invididual petitions filed by the teachers by directing the Director of Education to hold selection.
In pursuance of it some of the teachers have been regularised.
But substantial number still remain due to State 's going back on its agreement before the court by creating obstacles in implementation of the order.
Many of them who have have faced selection and have secured higher marks and are in zone of selection are being denied the benefit because it is claimed that such regularisation would be contrary to reservation policy of the State.
The policy is under challenge in another proceedings in the Court.
Without entering into validity of the policy which according to petitioner results in cent per cent reservation we are of opinion that such practice should be put an end to, therefore, following directions are necessary to be issued: (1) Provision in clause 5 of one day 's break in service is struck down as ultra vires.
(2) Orders for payment of fixed salary to temporary teachers is declared invalid.
But it shall operate prospectively.
A teacher appointed temporarily shall be paid the salary that is admissible to any teacher appointed regularly.
404 (3) Any teacher appointed temporarily shall be continued till the purpose for which he has been appointed exhausts or if it is in waiting of regular selection then till such selection is made.
(4) Management shall take steps, whenever necessary, to fill up permanent vacancies in accordance with rules.
Delay in filling up the vacancies shall not entitle the management or Director to terminate the services of temporary teachers except for adequate reasons.
But it shall entitle the government to take such steps including supersession of management or stopping grants in aid if permitted under law to compel the institutions to comply with the rules.
So far these petitioners and teachers similarly situated are concerned, it could not be disputed that many of those teachers who appeared for selection in pursuance of the High Court order secured sufficiently high marks but they could not be regularised because the vacancies are said to be reserved.
But what has been lost sight of is that petitioners are seeking regularisation on posts on which they have been working and not fresh appointments, therefore, they could not be denied benefit of the High Court 's order specially when no such difficulty was pointed out and it was on agreement by the respondents that the order was passed.
No material has been brought on record to show that any action was taken prior to decision by the High Court against any institution for not following the reservation policy.
To deny therefore the benefit of selection held on agreement by the respondents is being unjust to such selectees.
Further the State of Karnataka appears to have been regularising services of adhoc teachers.
Till now it has regularised services of contract lecturers, local candidates, University lecturers,Engineering colleges, lecturers etc.
It may not furnish, any basis for petitioners to claim that the State may be directed to issue similar order regularsing services of teachers of privately managed colleges.
All the same such policy decisions of government in favour of one or the other set of employees of sister department are bound to raise hopes and expectations in employees of other departments.
That is why it is incumbent on governments to be more circumspect in taking such decisions.
The petitioners may not be able to build up any challenge on discrimination as employees of government colleges and private colleges may not belong to the same class yet their claim cannot be negatived on the respondents ' stand in the counter affidavit that the regularisation of temporary teachers who have not faced selection shall impair educational standard without explaining the effect of regularisation of temporary teachers of University and even technical colleges.
Such being the unfortunate state of affairs this Court is left with no option but to issue following directions to respondents for not honoring its com 405 mitments before the High court and acting contrary to the spirit of the order, and also due to failure of governemt in remaining vigilant against private management of the college by issuing timely directions and taking effective steps for enforcing the rules: (1) Services of such temporary teachers who have worked as such for three years, including the break till today shall not be terminated.
They shall be absorbed as and when regular vacancies arise.
(2) If regular selections have been made the governemt shall create additional posts to accommodate such selected candidates.
(3) The teachers who have undergone the process of selection under the directions of the High Court and have been appointed because of the reservation policy of the Government be regularly appointed by creating additional posts.
(4) From the date of judgment every temporary teacher shall be paid salary as is admissible to teachers appointed against permanent post.
(5) Such teachers shall be continued in service even during vacations.
For these reasons this petition succeeds and is allowed.
The direction is issued to respondents in the terms indicated above.
Civil Appeal Nos.
309 373 of 1992 arising out of SLP (Civil) Nos.
13131 95 of 1990 challenging the order of High Court in CMW 6232 of 1990 decided on 3rd July, 1990 is disposed of accordingly.
Contempt Petition No. 6 of 1991 alleging violation of status quo order granted in W.P. (Civil) No. 873 of 1990 need not be decided.
It is directed to be filed.
The petitioners shall be entitled to their cost from the State of Karnataka.
T.N.A. Petition allowed. [/INST] The Education and Youth Services Department of the State of Karnataka issued an order dated 3rd October 1981 which provided two different methods of selection of teachers in private aided degree colleges one by Selection Committee and another by Management.
Under the order appointments for more than three months could be made by a selection committee whereas temporary appointments for less than 3 months could be made by the Management and such temporary appointments could be continued for a futher period of not more than 3 months, with one day 's break in service.
The Government order also provided that such temporary teachers shall be paid fixed salary being ten rupees less than the minimum payable to regular teachers.
The teachers temporarily appointed under the said order accordingly continued in service for a long period but with a break of a day or two every three months in their service.
Subsequently, they filed a writ petition in this Court seeking regularisation of their services by invoking the principle of equitable estoppel arising from implied assurance due to their long continuance.
It was contended on behalf of the petitioners that; (i) since the State has regularised the services of contract teachers and local teachers appointed in Government or vocational colleges they should also he extended similar treatment; and (ii) payment of fixed salary instead of regular emoluments for eight months in a year was discriminatory and arbitrary.
398 Allowing the petition, this Court, HELD: 1.
Provision of one day 's break in service in the Government order is deprecated and is struck down as ultra vires.
If the intention was to differentiate between appointments for more than three months and others it was a futile exercise.
That was already achieved by providing two different methods of selection one by Selection Committee and other by Management.
Distinction between appointment against temporary and permanent vacancies are well known in service law.
It was unnecessary to make it appear crude.
If the purpose was to avoid any possible claim for regularisation by the temporary teachers then it was acting more like a private business house of narrow outlook than government of a welfare State.
Such provisions cannot withstand the test of arbitrariness.
[403 G; 402 A B] B.R. Parineeth & Ors.
vs The State of Karnataka & Ors.
CMW 6232 of 1990 decided on 3.7.1990, referred to.
Order for payment of fixed salary to temporary teachers is declared invalid.
An appointment may be temporary or permanent but the nature of work being same and the temporary appointment may be due to exigency of service, non availability of permanent vacancy or as stop gap arrangement till the regular selection is completed, yet there can be no justification for paying a teacher, so appointed, a fixed salary by adopting a different method of payment than a regular teacher.
Fixation of such emoluments is arbitrary and violative of Article 14 of the Constitution.
[403 G; 402 F G] 2.1 Payment of nearly eight months ' salary by resorting to government order and, that too fixed amount, for the same job which is performed by regular teachers is unfair and unjust.
Such injustice is abhorring to the constitutional scheme.
[403 A B;] 3.
The practice of management of not making regular selection utmost within six months of occurrence of vacancy is condemned.
The helplessness expressed by the State that the managements went on continuing such teachers without holding regular selections despite orders of educational authorities may be true but not convincing and sounds like surrender in favour of private managements.
[403 C, 402 E] 3.1 Managements shall take steps, whenever necessary, to fill up permanent vacancies in accordance with rules.
Delay in filling 399 up the vacancies shall not entitle the management or director to terminate the services of temporary teachers except for adequate reasons.
But it shall entitle the government to take such steps including supersession of management or stopping grants in aid if premitted under law to compel the institutions to comply with the rules.
[404 B] 4.
Regularisation of services of teachers of Government colleges by the State may not furnish, any basis for petitioners to claim that the state may be directed to issue similar order regularizing services of teachers of privately managed colleges.
All the same such policy decisions of government in favour of one or the other set of employees of sister department are bound to raise hope and expectations in employees of other departments.
Therefore, it is incumbent on governments to be more circumspect in taking such decisions.
[404 E G] 5.
Ad hoc appointments, a convenient way of entry usually from backdoor, at times even in disregard of rules and regulations, are comparatively recent innovation to the service jurisprudence.
The infection is widespread in government or semi government departments or State financed institutions.
Malady appears to be widespread in educational institutions as provisions for temporary or ad hoc appointments have been exploited by the managements of private aided colleges to their advantage by filling it, on one hand, with persons of own choice, at time without following the procedure and keeping the teachers exposed to threat of termination, on the other, with all evil consequences flowing out of it.
Any institution run by State fund but managed privately is bound to suffer from such inherent drawbacks.
[400 G H; 401 C D] 6.
In the circumstances of the case following directions are issued: a) Any teacher appointed temporarily shall be continued till the purpose for which he has been appointed exhausts or if it is in waiting of regular selection then till such selection is made; [404 A] b) Services of such temporary teachers who have worked as such for three years, including the break till today shall not be terminated.
They shall be absorbed as and when regular vacancies arise; [405 B] 400 c) If regular selections have been made the government shall creat additional posts to accommodate such selected candidates; [405 B] d) From the date of judgment every temporary teacher shall be paid salary as is admissible to teachers appointed against permanent post.
[405 D] </s> |
<s>[INST] Summarize the following judgement: ivil Appeal No. 1993 of 1982.
From the Judgment and Order dated 9.2.1982 of the Delhi High Court in S.A.O No. 59 of 1979.
M.K.Ramamurthi, Mrs. Chandan Ramamurthi and M.A.Krishnamoorthi for the Appellants.
Harish N. Salve and A.K.Sanghi for the Respondents.
The Judgment of the Court was delivered by T.K.THOMMEN, J.
This appeal arises from the judgment of the 476 Delhi High Court in S.A.O.No.
59 of 1979 whereby the High Court, reversing the concurrent findings of the Additional Rent Controller and the Rent Control Tribunal, allowed the respondent landlord 's application for eviction of the appellant tenant under section 14(1)(e) of the Delhi Rent Control Act, 1958 (the `Act ').
The respondent is the daughter of the original landlord who had let out the premises to the appellant on 1.10.1961.
The present respondent purchased the property from her father on 27th June, 1964 and thus stepped into his shoes as the `landlord ' as defined under section 2(e) of the Act.
Relying upon the Rent Note and the appellant 's letters dated 7.10.1961 and 18.8.1962 addressed to the respondent 's father and the earlier proceedings between them for eviction of the appellant on the ground of sub letting the premises for commercial purposes, both the statutory authorities found that the premises which had been let out for residential purposes to the appellant had also been used incidentally for commercial purposes so as to exclude the application of section 14 (1) (e) read with the Explanation thereto.
This finding was reversed by the High Court by the impugned judgment.
This High Court found that there was no evidence for the statutory authorities to come to the conclusion, which they did, as regards the premises having been used for commercial purpose.
This is what the High Court says: ". .
No documentary evidence has been brought on record to hold that the premises were ever used for boarding and lodging foreign students. .Thus there is no evidence on record to hold that the premises were used for boarding and lodging of the foreign students or that the premises were let to the respondent for commercial purposes.
Thus, I am of the view that the premises were let to the respondent for use as residence and the findings to contrary by the controller and the Tribunal are without any evidence on record and are perverse".
This finding of the High Court is, in our view, unsustainable.
The High Court was not justified in saying that there was no evidence to hold that the premises were used for boarding and lodging foreign students.
The specific plea of the landlord in the earlier proceedings was that the tenant had sub let the premises for commercial purposes.
The tenant contended that she had never parted with her exclusive possession of any part of the premises and the foreign students who were lodging were her paying guests and were not her tenants.
The plea of sub tenancy raised by the landlord was thus rejected on the ground that those who logged with her were not sub tenants but only paying guests.
Letters dated 7.10.1961 477 and 18.8.1962 addressed by the appellant tenant to the respondent landlord were considered by the authorities in coming to the conclusion, which they did.
These letters clearly disclosed the fact that foreign students were lodged in the evidence let in by the appellant and not contradicted by the respondent clearly showed that apart from the appellant, all the other inmates of the premises were foreign students staying with her as her paying guests.
The appellant testified to the effect that she earned her livelihood from the income she received as lodging fee from students who lodged with her.
It was out of that income that all her personal expenses including the rent payable by her for the premises had been met.
These are the findings of the two fact finding authorities and those findings are based on oral and documentary evidence.
To have reversed those findings by the High Court in Second Appeal on the ground that they were perverse was totally uncalled for.
Mr Harish Salve appearing for the respondent landlord submits that even if the High Court was wrong in coming to the conclusion that there was no evidence about foreign students stayed as paying guests in the premises did not imply either that they lodged with the consent of the landlord or that such lodging amounted to a commercial use of the building.
Counsel submits that the High Court was right on the facts of this case in saying that the ground contained in clause (e) of section (1) of section 14 was attracted.
There is no substance in the contention that the landlord was unaware that the premises had been used for lodging foreign students.
The two letters relied on by the statutory authorities leave no doubt that this fact was well known to the landlord at all material times.
To the knowledge of the landlord the premises have been regularly used by the tenant ever since 1961 for the residence of not only herself but also of the foreign students who were lodged by her for gain as paying guests.
The evidence is that she had no income other than what she received as lodging fee from foreign students.
The question then is whether the facts found excluded the application of the ground contained in clause (e) of the section 14 (1).
Section 14, insofar as it is material, reads: "S.14.
Protection of tenant against eviction: (1) Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by any court or Controller in favour of the landlord against a tenant: 478 Provided that the Controller may, on an application made to him in the prescribed manner, make an order for the recovery of possession of the premises on one or more of the following grounds only, namely (e) that the premises let for residential purpose are required bona fide by the landlord for occupation as a residence for himself or for any member of his family dependent on him, if he is the owner thereof, or for any person for whose benefit the premises are held and that the landlord or such person has no other reasonably suitable residential accommodation; Explanation For the purposes of this clause, "premises let for residential purposes" include any premises which having been let for use as a residence are, without the consent of the landlord, used incidentally for commercial or other purposes".
The only ground which is relied on by the landlord is that which is contained in clause(e) read with the Explanation.
Clause (e) on the facts alleged is applicable only if the landlord is in a position to establish that the premises let for residential purposes are required bona fide by him for occupation as a residence.
Assuming that the bona fide requirement of the landlord is established, the landlord must still prove that the premises had been let for residential purposes.
The Explanation to clause (e) makes it clear that the words `premises let for residential purposes ' include any premises let for residential purposes, but used incidentally, without the consent of the landlord, for commercial or other purposes.
The Explanation is attracted when (i) the premises have been let for residential purposes, (ii) the premises have been used incidentally for commercial or other purposes, and (iii) the landlord had not given his consent for such incidental use for commercial or other purposes.
If the three ingredients contained in the Explanation are attracted, the premises do not cease to be "Premises let for residential purposes" falling under clause (e).
In respect of such premises, the bona fide requirement of the landlord referred to in clause (e) is a ground for eviction.
If the premises have never been used for any non residential purpose, the aid of the Explanation is unnecessary to attract clause (e).
The Explanation is called in aid only where premises let for residential purposes have been used incidentally for commercial or other non residential purposes, but without the consent of the landlord.
The fundamental question in respect of residential premises is whether the landlord had consented to the user of the premises for any other purpose, albeit incidentally.
479 If the landlord is in a position to establish that the premises have been let for residential purposes and that he has never consented to the user of the premises for any other purpose, the mere fact that such premises have been incidentally used for commercial or other purposes would not change or affect the residential character of the premises.
In respect of such premises, it is open to the landlord to prove his bona fide requirements and thus establish the ground mentioned under clause (e).
On the other hand, if the premises have been regularly and openly used for non residential purposes, the knowledge and constant of the landlord, unless proved to the contrary, are ordinarily presumed and in that event the Explanation would be of no avail to save the ground under clause (e).
In the present case, it is not disputed that the premises had been let for residential purposes, but it is also beyond doubt that to the knowledge of the landlord the premises have been regularly used by the tenant not only for her own residence but also for her foreign guests.
The landlord has at all material times known or is presumed to have known that foreign students have been staying with the appellant as her paying guests and that she has been ever since 1961 running a boarding house in the premises.
At no time did the landlord object to the user of the premises by the appellant for such purpose.
The continued user of the building ever since 1961 for the purpose of lodging paying guests shows that the respondent landlord and her father have not only been aware of such user of the building, but have also impliedly consented to such user.
This presumption is irresistible from the evidence on record.
Such user takes the premises in question out of the ambit of `premises let for residential purposes ' so as to exclude the ground contained in clause (e).
We are fortified in our conclusion by the views expressed by this Court in Dr. Gopal Dass Verma vs Dr. S.K. Bhardwaj & Anr., ; and Kartar Singh vs Chaman Lal & Ors., SC (1969) IV All India Rent Control Journal 349.
The position would have been probably different, and the Explanation would have been still available, had foreign guests been lodged only occasionally and for short periods, even if it be on the basis of payment to cover expenses.
All this is a question of intention.
Was it an occasional accommodation of paying guests consistently with the character of the premises as a private residence? The evidence on record leaves no doubt that the premises have been regularly used by the appellant as a boarding house and not as a private 480 residence in the ordinary acceptation of the term.
She has in fact been carrying on, in the words of Romer, J., "a species of business".
See Hobson vs Tulloch [1898] 1 Chancery Division 424.
See also Thorn & Ors.
vs Madden and Tendler vs Sproule [1947] 1 All E.R. 193.
In the absence of any question of law, much less any substantial question of law, the High Court was not justified in reversing the concurrent findings of the statutory authorities.
In the circumstances, we set aside the impugned judgment of the High Court and restore the orders of the Additional Rent Controller dated 29.9.1976 and Rent Control Tribunal dated 18.11.1978.
The appeal is allowed in the above terms with the costs of the appellant throughout.
N.V.K. Appeal allowed. [/INST] The respondent was the daughter of the original landlord who had let out the premises to the appellant on October 1, 1961.
She purchased the property from her father on June 27, 1964 and thus stepped into his shoes as the `landlord ' as defined under section 2 (e) of the Delhi Rent Control Act, 1958.
The respondent sought eviction of the appellant from the demised premises on the ground of personal bonafide requirement.
The appellant resisted the eviction petition on the grounds that the premises were not let out for residential purpose only but for commercial purpose also i.e. for keeping foreign students as paying guests, and that the respondent does not have a bonafide need or requirement as such.
Relying upon the Rent Note and the appellant 's letters dated October 7, 1961 and August 18, 1962 addressed to the respondent 's father, and the earlier proceedings between them for eviction of the appellant on the ground of sub letting the premises for commercial purpose, both the statutory authorities the Additional Rent Controller and the Rent Control Tribunal found that the premises which had also been used incidentally for commercial purposes so as to exclude the application of section 14(1) (e) read with the explanation thereto, and dismissed the respondent 's application for eviction.
473 This finding was reversed by the High Court in the respondent 's second appeal under Section 29 of the Act.
The High Court found that there was no evidence for the statutory authorities to come to the conclusion, which they did, as regards the premises having been used for commercial purpose.
The High Court accepted the appeal and set aside the judgment and order of the Rent Controller and the Rent Control Tribunal, and allowed the eviction application.
The tenant appealed to this Court by Special appeal.
On behalf of the respondent landlord it was submitted that even if the High Court was wrong in coming to the conclusion that there was no evidence about foreign students being lodged by the tenant, the mere fact that foreign students stayed as paying guests in the premises did not imply either that they lodged with the consent of the landlord or that such lodging amounted to a commercial use of the building, and that the High Court was right in saying that the ground contained in clause (e) of sub section (1) of section 14 was attracted.
Allowing the appeal, and setting aside the judgment of the High Court, and restoring the orders of the Additional Rent Controller and the Rent Control Tribunal, this Court, HELD: 1.
The finding of the High Court is unsustainable.
The High Court was not justified in saying that there was no evidence to hold that the premises were used for boarding and lodging foreign students.
The specific plea of the landlord in the earlier proceedings was that the tenant had sub let the premises for commercial purposes.
The tenant contended that she had never parted with her exclusive possession of any part of the premises and the foreign students who were lodging with her were her paying guests and were not her tenants.
The plea of sub tenancy raised by the landlord was thus rejected on the ground that those who lodged with her were not sub tenants but only paying guests.
[476 G H] 2.
The letters dated October 7, 1961 and August 18, 1962 clearly disclosed the fact that foreign students were lodged in the premises as the guests of the appellant.
The evidence let in by the appellant and not contradicted by the respondent clearly showed that apart from the appellant all the other inmates of the premises were foreign students staying with her as her paying guests.
The appellant testified that she earned her livelihood from the income she received as lodging fee from students who lodged with her, and 474 that is was out of that income that all her personal expenses including the rent payable by her for the premises had been met.
These are the findings of the two fact finding authorities, and those findings are based on oral and documentary evidence.
To have reversed those findings by the High Court in Second Appeal on the ground that they were perverse was totally uncalled for.
[477 A C] 3.
In the absence of any question of law, much less any substantial question of law, the High Court was not justified in reversing the concurrent findings of the statutory authorities.
[480 B] 4.
Clause (e) of section 14(1) of the Act is applicable only if the landlord is in a position to establish that the premises let for residential purposes are required bona fide by him for occupations as residence.
Assuming that the bona fide requirement of the landlord is established the landlord must still prove that the premises had been let for residential purposes.
The Explanation of clause (e) makes it clear that the words `premises let for residential purposes ' included any premises let for residential purposes but used incidentally, without the consent of the landlord, for commercial or other purposes.
The Explanation is attracted when : (1) the premises have been let for residential purposes, (ii) the premises have been used incidentally for commercial or other purposes,and (iii) the landlord has not given his consent for such incidental use for commercial or other purpose.
[478 D F] 5.
If the premises have never been used for any non residential purpose, the aid of the explanation is unnecessary to attract clause (e).
The Explanation is called in aid only where premises let for residential purpose have been used incidentally for commercial or other non residential purpose, but without the consent of the landlord.
[478 G] 6.
If the landlord is in a position to establish that the premises have been let for residential purposes and that he has never consented to the user of the premises for any other purpose, the mere fact that such premises have been incidentally used for commercial or other purposes would not change or affect the residential character of the premises.
[479 A] 7.
If the premises have been regularly and openly used for non residential purposes, the knowledge and consent of the landlord, unless proved to the contrary, are ordinarily presumed and in 475 that event the explanation would be of no avail to save the ground under clause (e).
[479 B] 8.
In the instant case, it is not disputed that the premises had been let for residential purposes, but it is also beyond doubt that to the knowledge of the landlord the premises have been regularly used by the tenant not only for her own residence but also for her foreign guests.
The landlord has as all material times known or is presumed to have known that foreign students have been staying with the appellant as her paying guests and that she has been ever since 1961 running a boarding house in the premises.
At no time did the landlord object to the user of the premises by the appellant for such purpose.
[479 C D] 9.
The continued user of the building ever since 1961 for the purpose of lodging paying guests shows that the respondent landlord and her father have not only been aware of such user of the building, but have also impliedly consented to such user.
This presumption is irresistible from the evidence on record.
Such user takes the premises in question out of the ambit of `premises let for residential purpose ' so as to exclude the ground contained in clause (e).
[479 E] Dr. Gopal Dass Verma vs Dr. S.K. Bhardwaj & Anr., ; ; Kartar Singh vs Chaman Lal & Ors., (SC) (1969) IV All India Rent Control Journal 349; Hobson vs Tulloch, [1898] 1 Chancery Division 424; Thorn & Ors.
vs Madden, [1925] All E.R.321 and Tandler vs Sproula , referred to. </s> |
<s>[INST] Summarize the following judgement: Special leave Petition (Civil) No. 10330 of 1991.
From the Judgement and Order dated 3.5.1991 of the Bomaby High ourt in writ Petition No. 186 of 1991.
Kapil Sibal, Makrand D. Adkar and Ejaz Maqbool for the Petitioner.
R.D. Tulpule, D.M. Nargolkar, Ms. Kiran Bhagalia, Ms. V.D.Khanna and A.M. Khanwilkar for the respondents.
Caveator in person.
The following Order of the Court was delivered.
The petitioner, Bhushan Uttam Khare, appeared for the Third Year M.B.B.S. Examination held by University of Poona in the months of October November, 1990.
The results of the said examination were declared on 12.12.1990.
As per University of Poona Ordinance 134A, the petitioner applied for revaluation of his answer papers.
167 students including the petitioner had applied for revaluation.
When the revaluation results were declared, certain students made representation to the University authorities for their answer papers being revaluate from the same set of examiners.
388 On receipt of the representation, the Executive Council of University appointed a Committee to make an enquiry.
On the report of the Committee, the University of Poona decided to cancel the revaluation results and to conduct further revaluation.
This decision of the Executive Council cancelling the earlier revaluation and directing a second revaluation was challenged by the petitioner and others in writ petitions filed before the High Court at Bomaby.
By the impugned judgement dated May 3, 1991 the High Court dismissed the writ petitions.
Aggrieved by the decisions, the petitioners have moved this petition for special leave.
The Poona University Act, 1974 defines the powers and duties of the Executive Council.
The Executive Council may make Ordinances to provide for the conduct of the examinations.
Under Ordinance 134A, the Vice Chancellor shall use his discretionery powers to decide as to whether all the applications received from the candidates, be considered for revaluation or not.
If as a result of revaluation of answer books, the marks obtained by the candidate increase over the original marks by 10% or more of the marks carried by the paper then only the result of revaluation will be accepted by the University.
Application for vertification of answer books will be entertained within a period of two weeks from the date of declaration of the results.
Ordinance 146 reads: "146.
In any case where it is found that the result of an examination has been affected by error, malpractice, fraud, improper conduct or other course of whatsoever nature, the Executive Council shall have power to amend such result in such manner as shall be in accord with the true position and to make such declaration as the Executive Council shall consider necessary in that behalf.
Provided that, but subject to 0.147, no result shall be amended after the expiration of six months from the date of publication of the said result".
In the Third Year M.B.B.S. Examination, 402 students appeared for the examination and 167 students for revaluation of the answer books.
When the representation of students opting for revaluation was placed before the Executive Council as glaring difference was indicated, a Committee was appointed for scrutiny and to reassess theory papers of the students acquiring more than 20% marks after revaluation, from senior teachers of the Faculty.
After scrutiny, it was found out that the marks are closer to the original marks in Medicine, Surgery and Preventive and Social Medicine.
Therefore, the Committee recommended that the entire revaluation of the papers should be cancelled.
This report of the 389 Committee was placed before the Executive Council in its meeting held on March 27, 1991 and the Council by the resolution cancelled the result of the revaluation and directed fresh revaluation.
The second revaluation was done through the examiners outside the State.
The results on revaluation intimated to the Medical College thus stood cancelled and the final results were delcared in pursuance to the second revaluation.
The action of the Executive Council was attacked on the grounds that it was an arbitrary action; that the choice of the examiners was that of the Vice Chancellor as enjoined under the Ordinance and there was no glaring instance of any malpractice, fraud or other course of whatsoever nature to cancel the revaluation and in the absence of any provision in the statute or the Ordinance for a second revaluation, the decision taken by the Executive Council is unwarranted and, therefore, illegal.
In repelling these contentions, the High Court has taken the view that educational institutions set up Enquiry Committee to deal with problem posed by the adoption of unfair means and it is normally within their domestic jurisdiction to decide all questions in the light of the material adduced.
Unless there is an absolute and compelling justification, the Writ Court is slow to interfere with the autonomous activity of the Executive Councils.
The High Court said that the material on record indicated that this is not a case for exercise of jurisdiction under Article 226 of the Constitution and since the Court has found that there is material to reach the decision as regards cancellation of the impugned result of revaluation, the contentions taken up by the petitioner are untenable.
The petitioners have reiterated the submissions that there had been no improper conduct come to light and the absence of any provision for a second revaluation vitiates the whole action.
We have been taken through a comparative chart containing the marks awarded in the original examination, the first revaluation and the second revaluation.
The attempt of the learned counsel for the petitioners had been to make out that the disparity was not such as to indicate any improper practice and that the Committee constituted consisted of four members of whom two were original examiners and the report submitted by that Committee should not have been made the basis for the decision which affected the prospects and career of a large number of medical students.
The learned counsel for the University as also the standing counsel for the State drew our attention to the fact that Executive Council had only cautiously proceeded in the matter and before ordering cancellation a probe was made and the mem 390 bers of the Enquiry Committee were competent persons and that there is no illegality which warrants interference of the Court.
We have considered all the materials placed before us in the light of arguments advanced keeping in mind the well accepted principle that in deciding the matters relating to orders passed by authorities of educational institutions, the Court should normally be very slow to pass orders in its jurisdiction because matters falling within the jurisdiction of educational authorities should normally be left to their decision and the Court should interfere with them only when it thinks it must do so in the interest of justice.
We are satisfied that there had been sufficient material before the Executive Council to proceed in the manner in which it has done.
It is not correct to say that the University had acted on non existing rule for ordering revaluation.
Ordinance 146 is comprehensive enough to include revaluation also for further action.
The fact that two examiners were also the members of the Committee which recommended for revaluation cannot result in any bias even if they had been directly concerned with the original evaluation.
It is true that in the second revaluation also there had been some changes between the original valuation and the revaluation results.
However, it is not so glaring or demonstrably unconscionable as seen in the first revaluation.
We cannot, therefore, accept the contention of the petitioner that the High Court had erred in not granting the relief sought for.
We can only observe that the case of the petitioner, who alone has come before this Court and who had secured higher marks in the first revaluation and is, therefore, aggrieved by the cancellation of the same, would by duly considered in the selection for Post Graduate Course.
The special leave petition is dismissed.
Y.L. SLP dismissed. [/INST] Consequent upon the announcement of his M.B.B.S. Examination result on 12.12.1990, the petitioner alongwith other 166 students, applied for revaluation of answer books under University of Poona Ordinance 134A.
When the revaluation results were declared, certain students made representation to the University Authorities for their answer papers being revalued from the same set of examiners.
The University on consideration of that representation appointed a Committee for scrutiny and to reasses theory papers of the students acquiring more than 20% marks after revaluation, from senior teachers of the Faculty.
After scrutiny, it was found out that the marks are closer to the original marks in Medicine, Surgery and Preventive and Social Medicine.
The Committee therefore recommended that the entire revaluation of the papers should be cancelled.
The Executive Council by a resolution cancelled the result of the revaluation and directed fresh revaluation and the second revaluation was done through the examiners outside the State and the result declared on the basis thereof.
The peritioner and others challenged the aforesaid decision of the Executive Council cancelling the earlier revaluation and directing a second revaluation by means of writ petitions.
It was contended before the High Court on behalf of the petitioners that the action of the Executive Council was arbitrary in as much as there was no malpractice, fraud or anything objectionable to the revaluation as the examiners were chosen by the Vice Chancellor as enjoined under the Ordinance.
Hence the cancellation of revaluation was not proper.
The High Court repelled the two contentions advanced before it and dismissed the writ petitions.
Hence this Petition for Special Leave to appeal.
Dismissing the Petition for special leave to appeal, this Court, HELD: In deciding the matters relating to orders passed by authorities of educational institutions, the Court should normally be 387 very slow to pass orders in its jurisdiction because matters falling within the jurisdiction of educational authorities should normally be left to their decision and the Court should interfere with them only when it thinks it must do so in the interest of justice.
[390 B] Under Ordinance 134A, the Vice Chancellor shall use his discretionary power to decide as to whether all the applications received from the candidates, considered for revaluation or not.
If as a result of revaluation of answer books, the marks obtained by the candidate increase over the original marks by 10% or more then only the result of revaluation will be accepted by the University.
[388 C D] Ordinance 146 is comprehensive enough to include revaluation also for further action.
The fact that two examiners were also the members of the Committee which recommended for revaluation cannot result in any bias even if they had been directly concerned with the original evaluation.
It is true that in the second revaluation also there had been some changes between the original valuation and the revaluation results.
However, it is not so glaring or demonstrably unconscionable as seen in the first revaluation.
[390 D] </s> |
<s>[INST] Summarize the following judgement: Civil Appeal No. 503 of 1974.
From the Judgement and order dated 29/30.8.1973 of the Gujarat High Court in Special Civil Application No. 129 of 1973.
Joseph Vellapally and D.N. Mishra for the Appellants.
R.N. Sachthey, Anip Sachthey and Ms. Rashmi Dhariwal for the Respondents.
393 The Judgement of the Court was delivered by R.M. SAHAI, J. Validity of demand, under Section 58A of the Bombay Prohibition Act, for maintenance of excise staff for supervision of the manufacture of industrial alcohol was assailed on lack of legiislative competence of the State.
Section 58A is extracted below: "58A: The State Government may by general or special order direct that the manufacture, import, export, transport, storage, sale, purchase, use, collection or cultivation of any intoxitant, denatured spirituous preparations, hemp, Mowra flowers, or molasses shall be under the supervision of such Prohibition and Excise or Police Staff as it may deem proper to appoint, and that the cost of such staff shall be paid to the State Govt.
by person manufacturing, importing, exporting, transporting, storing, selling, purchasing, using, collecting or cultivating the intoxicant, denatured spirituous preparation, hemp, Mowra flowers or molasses: "Provided that the State Government may exempt any class of persons or institutions from paying the whole or any part of the cost of such staff".
Rule 2 of Bombay Prohibition (Manufacture of Spirit) (Gujarat) Rules, 1963, framed by the State of Gujarat empowered the director to grant a licence for working of the distillery for the manufacture of the spirit.
Condition Nos.2 and 3 of the licence issued provided for employment of excise staff for supervision of the operations of manufacture and storage of spirit as well as for payment of salary and allowances to staff so posted.
Attack was not on power to supervise or even the right to post staff for supervision but on demand of cost of maintenance of such personnel.
Levy was upheld, by the High Court, as fee under entry 8 of List II of the VIIth Schedule read with entry 66 of the same list.
In Synthetics & Chemicals Ltd. & Ors.
vs State of U.P. & Ors.
, ; a Constitution Bench after exhaustively reviewing the constitutional entries and various decisions held that industrial alcohol being unfit for human consumption as no levy on it could be made by a State either under Entry 51 or Entry 8 of List II of VIIth Schedule.
Nor such levy could be justified on doctrine of privilege or police power.
Therefore it was urged that the order of High Court was liable to be set aside and the provision was liable to be struck down as ultra vires.
Such understanding of the judgement is not warranted.
The Constitu 394 tion Bench while distinguishing between potable and non potable alcohol and holding that the State had no privilege in it upheld the power of State to regulate and ensure that non potable alcohol was not diverted and misued.
According to learned counsel since the entire judgment of the High Court proceeded on privilege theory it cannot withstand the principle laid down in Synthetic & Chemical 's case.
Levy as a fee under Entry 8 of List II of VIIth Schedule or excise duty under Entry 51 are different than cost of supervision charged under Section 58A.
The former has to stand the test of levy being in accordance with law on power derived from one of the constitutional entries.
Since Synthetic & Chemical 's case finally brought down the curtain in respect of industrial alcohol by taking it out of the purview of either Entry 8 or 51 of List II of VIIth Schedule of the competency of the State to frame any legislation to levy any tax or duty is excluded.
But by that a provision enacted by the State for supervision which is squarely covered under Entry 33 of the concurrent list which deals with production, supply and distribution which includes regulation cannot be assailed.
The Bench in Synthetic & Chemical 's case made it clear that even though the power to levy tax or duty on industrial alcohol vested in the Central Government the State was still left with power to lay down regulations to ensure that non potable alcohol,that is, industrial alcohol, was not diverted and misused as substitute for potable alcohol.
This is enough to justify a provision like 58A.
In paragraph 88 of the decision it was observed that in respect of industrial alcohol the States were not authorised to impose the impost as they have purported to do in that case but that did not effect any imposition of fee where there were circumstances to establish that there was quid pro quo for the fee nor it will affect any regulatory measure.
This completely demolishes the argument on behalf of appellant.
Principle of occupied field precluded State from trenching on any power which was already covered by central legislation.
But in absence of any provision in Industries (Development & Regulation) Act touching upon regulation or ensuring that industrial alcohol was not diverted the state was competent to legislate on it under Entry 3 List III of VIIth Schedule which is extracted below, "33.
Trade and Commerce in, and the production, supply and distribution of (a) The products of any industry where the control of such industry by Union is declared by Parliament by Law to be 395 expedient in the public interest, and imported goods of the same kind as such products.
(b). . . . . (c). . . . . (d). . . . . (e). . . . .
Trade and commerce and supply and distribution of goods are exclusive state subjects under entry 26 and 27 of List II of VIIth Schedule.
But both are subject to entry 33 of List III.
That is what is covered in entry 33 is excluded from list II.
And the power to legislate in respect of what is covered by list III is enjoyed both by Central and State subject to Article 246 of the Constitution.
Since 58A can be traced to regulatory power of the State exercisable under entry 33 the challenge to its validity is liable to fail.
It could not therefore be successfully claimed that it was violative of any constitutional provision or the section was invalid in view of the ratio in Synthetic & Chemicals ' case.
Failing on the principal submission the learned counsel urged that no cost for supervision could be demanded unless the power to issue licence for production was found to exist in State.
Reliance was placed on observations in Synthetic & Chemical 's case.
Since it stands answered by the constitution Bench itself it is unnecessary to dilate on it.
Suffice it is to extract the following observation, "The position with regard to the control of alcohol industry has undergone material and significant change after the amendement of 1956 to the IDR Act.
After the amendment, the State is left with only the following powers to legislate in respect of alcohol: (a). . . . . . (b) It may lay down regulations to ensure that non potable alcohol is not diverted and misued as a substitute for potable alcohol.
(c). . . . . . (d) However, in case State is rendering any service, as distinct from its claim of so called grant of privilege, it may charge fees based on quid pro quo".
Feeble attempt was made to challenge absence of any quid pro quo.
But no serious effort was made in High Court is clear from following observation.
: 396 "If any quid pro quo is to be established between the quantum of the levy and the services rendered it must be established between the actual cost of supervision paid by a manufacturer or a businessman and the quantum of profits made by him by lawfully carrying on his business into a prohibited commodity.
We have no doubt in our mind that the annual payment of a few thousand rupees by way of cost of supervision under Section 58A brings to each of the three petitioners profits which must be quite disproportionate in size.
We need not go into the details of this aspect because it has not been contended before us that if the levy under Section 58A is held to be a fee, there is no sufficient quid pro quo between the quantum of the impost and the services rendered to the manufacturer or businessman.
" In the result, this appeal fails and is dismissed with costs.
G.N. Appeal dismissed. [/INST] Rule 2 of the Bombay Prohibition (Manufacture of Spirit) (Gujarat) Rules, 1963, framed by the State Government in exercise of powers conferred under Section 58A of the Bombay Prohibition Act, dealt with grant of licence for working of distillery for the manufacture of spirit.
One of the conditions for grant of licence was that the cost of maintenance of staff, viz. payment of salary and allowances, was to be paid to the Government by the licensees.
This was challenged by the appellant and the High Court upheld the levy as being within the legislative competence of the State.
Aggrieved against the High Court 's order, the appellant has preferred the present appeal.
The appellants contended that since the judgement appealed against proceeded on privilege theory, it cannot withstand the principle laid down in Synthetic & Chemicals, case; and that levy as a fee under Entry 8 of list II of Seventh Schedule or excise duty under Entry 51 is different than the cost of supervision charged under Section 58A of the Bombay Prohibition Act.
Dismissing the appeal, this Court, 392 HELD: 1.1 Even though the power to levy tax or duty on industrial alcohol is vested in the Central Government, the State was till left with power to lay down regulations to ensure that non potable alcohol, that is, industrial alcohol, was not diverted and misused as substitute for potable alcohol.
This is enough to justify a provision like 58A of the Bombay Prohibition Act.
[394 D] 1.2 Principle of occupied field precluded State from trenching on any power which was already covered by Central legislation.
But in absence of any provision in Industries (Development & Regulation) Act touching upon regulation or ensuring that industrial alcohol was not divered, the State was competent to legislate on it under Entry 33 list III of VII Schedule.
[394 F G] 1.3 Trade and commerce and supply and distribution of goods are exclusive state subject under entries 26 and 27 of List II of VII Schedule.
But both are subject to entry 33 of List III.
What is covered in entry 33 is excluded from List II.
And the power to legislate in respect of what is covered by List III is enjoyed both by Central and State legislatures subject to Article 246 of the Constitution.
Since section 58A can be traced to regulatory power of the State exercisable under entry 33 of List III the challenge to its validity is liable to fail.
Thus, Section 58A of the Bomaby Prohibition Act is valid and is not violative of any constitutional provision.
[395 B C].
1.4 It cannot be said that no cost for supervision could be demanded unless the power to issue licence for production was found to exist in State.
[395 d] Synthetics & Chemicals Ltd. & Ors., vs State of U.P & Ors. ; , followed. </s> |
<s>[INST] Summarize the following judgement: N: Criminal Appeal Nos.273 74 of 1980.
From the Judgment and Order dated 19.1.1980 of the Madhya Pradesh High Court in Crl.
A. Nos.
107 of 1970 and 1 of 1971.
468 R.L. Kohli and K.C. Kohli for the Appellants.
Uma Nath Singh for the Respondent.
The Judgment of the Court was delivered by KULDIP SINGH, J.
Bhagwan Swaroop was charged under Section 302 IPC for the murder of Man Singh and under Section 307 IPC for an attempt to murder Shahid.
He was further charged under section 451 IPC for committing trespass and also under section 25 A of Arms Act.
Ramswaroop, father of Bhagwan Swaroop, was charged under sections 109/302, 451 IPC and 29 of the Arms Act.
Ramswaroop was acquitted of all the charges by the trial court.
Bhagwan Swaroop was, however, convicted under section 302 IPC and was sentenced to imprisonment for life.
He was acquitted of the other two charges.
The appeal filed by Bhagwan Swaroop was dismissed by the High Court.
The High Court allowed the State appeal and further convicted Bhagwan Swaroop under section 307 IPC and section 25 A Arms Act.
He was sentenced to five years and one year rigorous imprisonment respectively for the said offences.
This appeal before us by way of special leave is by Bhagwan Swaroop against his conviction and sentence on the three counts.
Deceased Man Singh was the son of Shahjor Singh and brother of Babusingh.
They were living in the house owned by Ramswaroop and his sons.
There was dispute between the parties regarding a piece of land which according to the accused, the complainant party was forcibly occupying.
A notice had been served upon Shahjor Singh by the accused, to vacate the said encroachment.
According to the prosecution on May 11, 1969 at about 2.45 p.m. accused Ramswaroop had an altercation with Babusingh, at a place called Gauri and thereafter he rushed the complainant party and started dismantling the tin shed in the disputed land.
Shahjor Singh sent his son Babusingh to the police station to lodge a report.
Meanwhile Man Singh deceased came at the spot and gave a push to Ramswaroop who as a result fell down.
He got up immediately and shouted for his son Bhagwan Swaroop and asked him to bring the rifle and kill the complainant party.
Bhagwan Swaroop rushed to his house, brought a gun and fired a shot hitting Man Singh.
Bhagwan Swaroop fired the second shot which hit Shahid.
Man Singh fell down and thereafter complainant Shahjor Singh took out a lathi and gave breathing to Ramswaroop.
Man Singh succumbed to the gun shot injury.
Both the accused denied the commission of the crime.
Accused Ramswaroop stated in his examination as under: 469 "I found Babusingh gambling in my garden.
I asked him as to why he is doing so in the garden, he started abusing me.
I slapped him.
His father came there both of them abused me and then left the place.
I told him that I will make the report of the incident to the police station.
When I reached near the house of Shahjor Singh on my way to the Police Station he along with his sons caught me and started beating me with lathies.
Shahjor Singh brought an axe, when he was about to use his axe on me there was gun fire.
" Accused Bhagwan Swaroop took the plea of alibi which has been rejected by both the courts below.
We are of the view that the said plea was rightly rejected.
The trial court did not believe the prosecution version in toto.
The trial court found that the "prosecution tried to indulge in exaggeration, misrepresentation and at times suppression of facts without any meaning".
The trial court further concluded as under: "The defence version that Babusingh was gambling alongwith others in the garden of the accused Ramswaroop appears correct.
Ramswaroop went there and questioned Babusingh.
There was altercation and use of hot words.
Admittedly Shahjorsingh P.W. I came there and Babusingh accompanied him back to his house.
Ramswaroop further stated in his examination that he gave one slap to Babusingh.
Babusingh as P.W.9 stated that he was given three or four slaps by Ramswaroop.
Thus the fact that Babusingh was slapped, stand established in the case".
The part of the prosecution story, that the accused Ramswaroop rushed towards the house of Shahjor Singh and reached there before the arrival of Shahjor Singh, was also dis believed by the trial court.
Regarding the actual occurrence, it is not disputed that Ramswaroop was given four simple injuries by the complainant.
The prosecution case is that the injuries were given after the gun shot had been fired whereas the defence version is that the gun shot was fired while lathi injuries were being given to Ramswaroop.
Trial court considered the statements of Banne Khan, P.W.6, Shahid P.W.8, Sarfuddin P.W.11, Safaat Ahmad D.W.1 and Hamid Ahmed D.W.3 and came to the following conclusion: "Any way this one fact is clear from the evidence of these eye witnesses that Ramswaroop was put to beating, then there was gun fire and Bhagwanswaroop was seen on the spot" 470 The trial court on appreciation of the evidence produced by the prosecution and the complainants came to the conclusion that the following facts stood established from the evidence: "Ramswaroop, came near the house of Shahjorsingh.
There was exchange of abuses between Shahjorsingh and Ramswaroop.
Ramswaroop tried to remove the tin shed of Gonda.
He was pushed aside by Mansingh and then put to beating by lathies.
" It was under these circumstances that Ramswaroop asked his son to fire the gun shot.
The question for our consideration is whether on the facts of this case the appellant can claim right of private defence.
The learned trial court came to the conclusion that since minor injuries were caused by the lathi there was no basis for entertaining a reasonable apprehension that Ramswaroop would be killed or hurt grievously and as such the plea of self defence was rejected.
The High Court upheld the finding of the trial court in the following words: "No doubt the respondent Ramswaroop had injuries on his person.
There were two simple injuries caused by hard and blunt object and the other two could be caused by fall for which there is definite prosecution evidence that the respondent Ramswaroop was pushed and he fell down.
These injuries on him could not give rise to any apprehension of either grievous hurt or death.
" We do not agree with the courts below.
It is established on the record that Ramswaroop was being given lathi blows by the complainant party and it was at that time that gun shot was fired by Bhagwan Swaroop to save his father from further blows.
A lathi is capable of causing a simple as well as a fatal injury.
Whether in fact the injuries actually caused were simple or grievous is of no consequence.
It is the scenario of a father being given lathi blows which has to be kept in mind and we are of the view that in such a situation a son could reasonably apprehend danger to the life of his father and his firing a gun shot at that point of time in defence of his father is justified.
We, therefore, set aside the finding of the courts below on this point and hold that Bhagwan Swaroop fired the gun shot to defend the person of his father.
The trial court on the basis of the evidence on the record, including that of Dr. Mukherjee P.W.5, came to the conclusion that only one shot was fired by Bhagwan Swaroop.
According to the trial court Shahid was accidentally hit by the pellets spread by the gun shot.
It was on these findings that trial court acquitted Bhagwan Swaroop of the charge 471 under 307 IPC.
We agree with the trial court and hold that the High Court was not justified in reversing the same.
The High Court further grossly erred in setting aside the acquittal of Bhagwan Swaroop under section 25 A of the Arms Act.
Using the licensed gun of his father under the circumstances of this case cannot be considered possessing an arm without a licence.
We agree with the reasoning and findings of the trial court and hold that High Court was not justified in setting aside the acquittal of Bhagwan Swaroop under Arms Act.
For the reasons given above we allow the appeal, set aside the conviction of appellant Bhagwan Swaroop under section 302 IPC, 307 IPC and 25 Arms Act and acquit him on all these counts.
He is already in bail.
His bail bonds are discharged.
V.P.R. Appeal allowed. [/INST] The deceased along with his father and brother was living in the house owned by the accused appellant 's father.
There was dispute between the accused and the complainant party regarding a piece of land which according to the accused, the complainant party was forcibly occupying.
On May 11, 1969 at about 2.45 p.m. appellant 's father had an altercation with deceased 's brother.
Thereafter he went to deceased 's house and abused the complainant party and started dismantling the tin shed on the disputed land.
The prosecution 's case was that the deceased 's brother was sent to police station to lodge a report.
The deceased came at the spot and gave a push to appellant 's father.
He fell down.
Getting up, immediately, shouted for appellant and asked him to bring the rifle and kill the complainant party.
The appellant brought a gun and fired a shot hitting the deceased.
The appellant fired the second shot which hit another.
The deceased fell down and thereafter the deceased 's father took out a lathi and gave beating to appellant 's father.
The deceased succumbed to the gunshot injury.
Appellant was charged under Section 302, 307, 451 IPC and also under section 25 A of Arms Act.
The father of appellant was charged under sections 109/302, 451 IPC and 29 of the Arms Act.
The appellant and its father denied the commission of the 467 crime.
Appellant 's plea of alibi was rejected by the trial court.
It also did not believe the prosecution case in toto.
The appellant 's father was acquitted of all the charges by the trial court.
It convicted the appellant under section 302 IPC and he was sentenced to imprisonment for life, but he was acquitted of the other charges.
The High Court allowed the State 's appeal convicting the appellant under section 307 IPC and section 25 A Arms Act also.
He was sentenced to five years and one year rigorous imprisonment respectively for the offences.
The appellant filed this appeal before this Court by way of special leave.
On the question, whether on the facts of the case, the appellant accused can claim right of private defence, allowing the appeal, this Court, HELD:1.
It is established on the record that the appellant 's father was being given lathi blows by the complainant party and it was at that time that gun shot was fired by the appellant to save his father from further blows.
A lathi is capable of causing a simple as well as a fatal injury.
Whether in fact the injuries actually caused were simple or grievous is of no consequence.
It is the scenario of a father being given lathi blows which has to be kept in mind.
In such a situation a son could reasonably apprehend danger to the life of his father and his firing a gun shot at that point of time in defence of his father is justified.
The appellant fired the gun shot to defend the person of his father.
[470 E G] 2.
Using the licensed gun of his father under the circumstances of the case cannot be considered possessing an arm without a licence.
The High Court grossly erred in setting aside the acquittal of the appellant under section 25 A of the Arms Act.
[471 A B] </s> |
<s>[INST] Summarize the following judgement: Civil Appeal No. 3498 of 1991.
From the Judgment dated 17/18.7.1991 of the Bombay High Court in writ petition No. 2038 of 1991.
G. Ramaswamy, Attorney General, V.R. Reddy, Addl.
Solicitor General, Anil B. Divan, K.S. Cooper and T.R. Andyaranjina, R.F. Nariman, S.A. Divan, B.R. Agrawala, Vinod B. Agarwala, P.N. Kapadia, Pramod B. Agarwala, section Krishnachandani, Dr. Sumat Bhardwaj, Ms. Sandhaya Mehta for M/s Gagret & Co., Ms. Sushma Suri, A.M. Khanwilkar, M.P. Bharucha, R. Karanjawala, Mrs. M. Karanjawala, Mrs. V.S. Rekha, A.R. Amin, K.J. John, Dr. A.M. Singhvi and Ajit Pudussery for the appearing parities.
493 The Judgment of the court was delivered by THOMMEN, J.
The question which aries in this appeal from the judgment of the Bombay High Court in writ petition No. 2038 of 1991 is, when does a company become liable to pay interest under section 73 (2A) of the (the "Act").
The answer to it depends on the answer to the more fundamental and far more difficult question, i.e. when does a company become liable to repay the money received from applicants for shares or debentures in excess of the aggregate of the application money relating to the allotted shares or debentures.
If such excess application money is not repaid within eight days from the days on which the company and every director `who is an officer in default ' is liable to pay insterest at the specified rates.
The period of eight days has to be reckoned in accordance with section 74.
But it is not clear when exactly does the liability to repay the excess money arise.
Does it arise on the date of the allotment, as found by the High Court, or on the expiry of 10 weeks from the date of closing of the subscription lists, referred to in sub section (1A) of section 73, or, as contended by the company, on the expiry of the period mentioned in the prospectus? Whichever is the correct date, interest becomes payable by the company and its directors `in default ', if the excess money is not repaid within the period of grace of eight days from the date on which the company becomes liable to pay it.
When does that liability arise is the crucial question.
We shall presently examine the relevant provisions of the section, but before we do so, it may be of interest to refer briefly to the circumstances in which the alleged liability of the appellant company has arisen.
The appellant is a company registered under the provisions of the .
The company obtained the consent of the Government of India vide its Order dated May 31, 1990 to issue 7,20,00,000 equity shares of Rs. 10 each at par and 33, 90,000 fourteen per cent secured redeemable non convertible debentures of Rs. 100 each at par.
This Order was, made by the Government in exercise of its power under the .
One of the conditions attached to the order reads: "The company shall scrupulously adhere to the time limit of 10 weeks from the date of closure of the subscription list for allotment of all securities and despatch of allotment letters/certificates and refund orders.
" A prospectus was issued by the company on 12th July, 1990 for the issue of the aforesaid shares and debentures.
The prospectus stated, amongst 494 other things, that the company had sought the permission of the stock exchanges at Indore, Ahmedabad, Bombay, Calcutta and Delhi for dealing in equity shares and debentures in terms of the prospectus; that interest at the rate of 15 % per annum on the excess application money will be paid to the applicants as per the guidelines issued by the Ministry of Finance on July 21, 1983 and September 27, 1985; that the public issue will open on August 20, 1990 and close on August 23, 1990; and that it would not be extended beyond August 31, 1990.
When the issue thus opened on August 20, 1990, it received overwhelming response as a result of which it was about 40 times over subscribed.
The company received 26,32,894 applications for equity shares together with an aggregate sum of Rs. 225,25,51,247 in respect of a public issue of Rs. 25 crores.
In view of this public response, the share issue was close on 23rd August, 1990.
On October 15, 1990 the board of directors of the company approved the allotment of shares.
Shortly thereafter, it secured the requisite permissions of the stock exchanges at Indore, Ahmedabad, Bombay, Calcutta and Delhi to deal in the shares offered in the prospectus.
These permissions were obtained prior to November 1, 1990.
The company had to despatch 25,50,604 refund orders of an aggregate value of well over Rs. 200 crores.
These orders which were printed in Bombay were meant to be despatched from Delhi.
The company despatched 8,55,226 refund orders from the Sarojini Nagar Post Office , New Delhi at the rate of approx.
1,00,000 refund orders per day.
On 26th October, 1990 a consignment of 6,69,999 refund orders had been despatched from Bombay to Delhi in a brake van of the Paschim Express.
A fire broke out on the way in the brake van as a result of which many refund orders were destroyed.
Almost 50 % of the consignment was missing after the accident.
In consultation with the Madhya Pradesh Stock Exchange and the Company 's Bank,instructions were issued by the Company to stop payment of all refund orders with a view to avoiding any possible fraud or misuse.
As a result of the countermanding of all the multi colored refund orders and the printing of new refund orders with distinctive colours etc., delay occurred in the despatch of newly printed orders.
At the request of the company, the Madhya Pradesh Stock Exchange granted it extension of time till November 30,1990 for issuing the refund orders.
Time for this purpose was further extended by that stock exchange till 19th December, 1990.
The Bombay Stock Exchange, however, refused to grant extension of time.
It further informed the company that it was bound to pay interest by reason of the delay in the despatch of refund orders.
The Securities and Exchange Board of India, the second respondent, called upon the company by its letter dated March 13,1991 to pay interest to the investors at varying rates for the period from 1st November (which is when the period of 10 weeks from the date of the closure of the subscription lists expired) till the date of posting of 495 the refund orders.
The refund orders were not despatched until 12th November, 1990.
The Government of India and the Securities and Exchange Board of India insisted that the company should pay interest to the investors for the period of the delay in making the refund in accordance with the provisions of section 73.
Apprehending that the Government might direct the stock exchanges to delist the shares of the company by reason of its failure to pay interest, and also initiate actions against it, the company filed a petition in the High Court under Article 226 of the Constitution, but it was dismissed by the impugned judgment.
The Bombay Stock Exchange seems to have understood that the liability of the company arose on the expiry of 10 weeks after the date of closure of the subscription lists.
Paragraph 23.2 of its publication of March 1991 quotes the condition mentioned in the Order of the Government of India dated 31.5.1990(which we have extracted above)to the effect that the liability of the company for despatch for refund orders arose only at the end of 10 weeks from the date of closure of the subscription lists.
In the High Court, the Union of India and the Securities and Exchange Board of India appeared to have taken a divergent stand on the question.
While the Government of India submitted (as disclosed in its affidavit, and as referred to by the High Court in the impugned judgment) that the liability to pay the excess amounts arose on the expiry of 10 weeks from the date of closure of the subscription lists, the Securities and Exchange Board of India contended that the liability arose on the date of allotment.
In the present appeal, however, the Union of India support the stand of the Securities and Exchange Board of India.
On the other hand, the company contended that, on the facts of this case, the liability arose only at the end of the period as extended by the Stock Exchange at Indore in terms of the prospects.
The High Court held: ".
In our judgment, there is no difficulty in fixing the date from which the liability of the company to make repayment arises.
In a case where the allotment is completed before expiry of the 10 weeks, then from the date of allotment and in case where the allotment is not completed till the expiry of ten weeks from the date of closure of the subscription list, then from the date of expiry of ten weeks. " The reason stated by the High Court for coming to this conclusion is that the company knew that the excess amount was on the date of allotment and there was no reason why the company should delay payment till the end of 10 weeks in case the allotment was made earlier.
The High Court says 496 ".
In cases where the allotment is completed before expiry of ten weeks, then the Company very well knows the excess amount, which is to be repaid and consequently the liability accrues forthwith to repay the said amount.
In case the Company fails to repay the amount within the grace period of eight days, then the Company would be liable to pay interest to the investor inspite of the fact that period of ten weeks from the date of closure of the subscription list is not over. " The High Court thus held that the company was liable to pay interest at the prescribed rates for the period of delay and the liability for the same arose on the expiry of 8 days from the date of allotment of the shares, and not from the date of expiry of 10 weeks, where allotment was made earlier to that date.
The High Court did not accept the contention of the company that the time having been extended by the Madhya Pradesh Stock Exchange till 19th December, 1990 in accordance with the relevant provisions of the prospectus, the company had no liability to pay interest.
The question for consideration, therefore, is whether the High Court was right in discarding, for computation of interest, the time limit of 10 weeks running from the date of closure of the subscription lists, notwithstanding that the allotment had been made, as in the present case, prior to the date of expiry of 10 weeks.
`Listing means the admission of the securities of a company to trading privileges on a Stock Exchange.
The principal objectives of listing are to provide ready marketability and impart liquidity and free negotiability to stocks and shares; ensure proper supervision and control of dealings therein; and protect the interests of shareholders and of the general investing public.
(See para 1.1.
of the `Stock Exchange Listing ', publication of Bombay Stock Exchange of March, 1991).
A public limited company has no obligation to have its shares listed on a recognised stock exchange.
But if the company intends to offer its shares or debentures to the public for subscription by the issue of a prospectus, it must, before issuing such prospectus, apply to one or more recognised stock exchanges for permission to have the shares or debentures intended to be so offered to the public to be dealt with in each such stock exchange in terms of section 73.
We shall now read the provisions of section 73 insofar as they are material: Sub section (1) of section 73 read: 497 "section 73 (1).
Every company intending to offer shares or debentures to the public for subscription by the issue of a prospectus shall, before such issue, make an application to one or more recognised stock exchanges for permission for the shares or debentures intending to be so offered to be dealt with in the stock exchange or each such stock exchange.
" This sub section was inserted by the Companies (Amendment) Act, 1988 with effect from 15.6.1988.
It has application only to a company intending to offer shares or debentures to the public for subscription by the issue of a prospectus.
Until this sub section was inserted, listing of public issues was not compulsory.
This original sub section (1) was substituted by the Companies (Amendment) Act, 1974 with effect from 1.2.1975, and substituted again and renumbered as the present sub section (1A) with effect from 15.6.1988 by the Companies (Amendment) Act, 1988.
Sub section (1A) reads: "73(1A).
Where a prospectus, whether issued generally or not, states that an application under sub section (1) has been made for permission for the shares or debentures offered thereby to be dealt in one or more recognised stock exchanges, such prospectus shall state the name of the stock exchange or, as the case may be, each such stock exchange, and any allotment made on an application in pursuance of such prospectus shall, whenever made, be void if the permission has not been granted by the stock exchange or each such stock exchange, as the case may be, before the expiry of ten weeks from the date of the closing of the subscription lists: Provided that where an appeal against the decision of any recognised stock exchange refusing permission for the shares or debentures to be dealt in on that stock exchange has been preferred under section 22 of the (42 of 1956), such allotment shall not be void until the dismissal of the appeal.
" This provision makes it necessary for the company to state in its prospectus the name of each of the recognised stock exchanges whose permission for listing has been sought by the company.
Any allotment of shares will become void if permission is not granted by the stock exchange or each such stock exchange, as the case may be, before the expiry of 10 weeks from the date of the closing of the subscription lists.
The validity of the allotment is thus made dependent on securing the requisite 498 permission of each stock exchange whose permission has been sought.
The liability to repay the application money arises only upon refusal of the stock exchange to grant the permission sought by the company before the expiry of 10 weeks from the date of closing of the subscription lists.
This is clear from sub section (1A) read with sub section (5).
There is a deemed refusal if permission is not granted by the stock exchange before the expiry of 10 weeks from the date of closing of the subscription lists, and upon the expiry of that date, any allotment of shares made by the company becomes void.
However , from the decision of the stock exchange refusing permission, an appeal will lie under section 22 of the .
Pending the decision in appeal, the allotment made would not be void, and the decision of the concerned stock exchange is made dependent on the result of the appeal.
What is significant is that it is the legislative intent to delay the result postulated under sub section (IA), i.e., rendering the allotment void, until the said period of 10 weeks has expired or until the dismissal of the appeal.
Sub section (2), as amended in 1988, reads: "section 73(2).
Where the permission has not been applied under sub section (I) or, such permission having been applied for, has not been granted as aforesaid, the company shall forthwith repay without interest all moneys received from applicants in pursuance of the prospectus, and, if any such money is not repaid within eight days after the company becomes liable to repay it, the company and every director of the company who is an officer in default shall, on and from the expiry of the eighth day, be jointly and severally liable to repay that money with interest at such rate, not less than four per cent and not more than fifteen per cent, as may be prescribed, having regard to the length of the period of delay in making the repayment of such money." This sub section requires the company to repay `forthwith ' all money received from applicants in response to the company 's prospectus either where the company has not applied for permission of the recognised stock exchange for listing or where permission has been applied for but not granted.
If the company has issued a prospectus without seeking permission for listing, it has clearly acted in violation of the mandatory provisions of the Act, and the company has no right to receive or retain any amount by way of subscription in pursuance of its prospectus.
On the 499 other hand, where permission has been sought, but has not been obtained within 10 weeks from the date of closing of the subscription lists, thereby rendering void any allotment made, the company is bound to repay all such money forthwith, but without interest.
In the event of such money not being repaid within 8 days after the liability to repay arose, the company and every director of the company who is `an officer in default ' are made jointly and severally liable to pay the principal amount as well as interest thereon from the date of expiry of the said 8 days.
The interest is payable at the prescribed rates varying from 4% to 15%, dependent on the length of the period of delay in making such repayment.
This sub section thus postulates two circumstances in which interest becomes payable, namely, where the permission has not been applied for before issuing the prospectus and the company had thus acted in violation of the law or where permission, though applied for, has not been granted.
In the former case, apart from the other consequences which may flow from the company 's disobedience of the law, the liability to pay interest arises as from the date of receipt of the amounts, for the company ought not to have received any such amount in response to the prospectus issued by the company in disobedience of the requirements of sub section (I).
In the latter case, the liability to pay interest does not arise until the expiry of 8 days after the company became liable to repay the amounts received by reason of its failure to obtain the necessary permission as referred to in sub section (IA).
It may be mentioned in this connection that, prior to the amendment of 1988, sub section (2) did not make the company liable to pay interest on the amounts repayable by it in terms thereof, but only the directors were liable for payment of such interest, apart from the principal amounts.
The proviso to the sub section as it stood prior to 1988 exempted a director from such liability if the default was not caused by his misconduct or negligence.
As a result of substitution of a proviso of the sub section by the Amendment Act of 1988, the company and every director of the company `who is an officer in default ' are made jointly and severally liable for payment of the principal amount as well as interest.
We shall now read the crucial provision which is sub section (2A): "S.73 (2A).
Where permission has been granted by the recognised stock exchange or stock exchanges for dealing in any shares or debentures in such stock exchange or each such stock exchange and the moneys received from applicants for shares or debentures are in excess of the aggregate of the application moneys relating to the shares or debentures in respect of which 500 allotments have been made, the company shall repay the moneys to the extent of such excess forthwith without interest, and if such money is not repaid within eight days, from the date the company becomes liable to pay it, the company and every director of the company who is an officer in default shall, on and from the expiry of the eighth day, be jointly and severally liable to repay that money with interest at such rate, not less than four per cent and not more than fifteen per cent, as may be prescribed having regard to the length of the period of delay in making the repayment of such money".
Sub section (2A) was inserted by the Companies (Amendment) Act, 1974 which came into force w.e.f. 1.2.1975.
Section 73, as it stood prior to 1975, contained no specific provision compelling the company or its directors to repay the amounts received in excess of the aggregate of the application money relating to the shares or debentures in respect of which allotments have been made.
Sub section(2A) was inserted to cover cases where permission of the stock exchange has been obtained, but the shares or debentures have been over subscribed and the company is consequently in possession of excess amounts.
The sub section, as inserted in 1975, made the company liable to repay the excess amounts forthwith, but did not make the company liable to pay interest on such excess amounts.
But a liability was cast on the directors.
If the excess amount was not repaid within 8 days from the day the company became liable to repay it, the directors were made jointly and severally liable to repay such amount with interest.
The proviso to sub section (2A), which like the proviso to sub section (2), as they stood prior to 1988, provided that a director was not liable to repay the money with interest if he proved that the default in payment of the money was not on account of any misconduct or negligence on his part.
Owing to the absence of a specific provision imposing liability on the company to pay interest on the over subscribed amounts, and also owing to the absence of any provision to exempt directors who were not directly in charge of the administration of the company and the need to make listing of public issues compulsory, further amendments to the section became necessary.
Accordingly the Amendment Act of 1988 introduced several amendments to section 73, one of them being the substitution of a part of sub section (2A) making the company and every director of the company who is `an officer in default ' jointly and severally liable to repay the excess money with interest.
A `director of a company who is an officer in default ' appearing in sub section (2A) must be understood with reference to 501 the definition of `an officer who is in default ' contained in section 2(31) read with section 5.
This definition includes the managing director or the wholetime director of a company.
So understood, the liability imposed under sub section (2A) on a director of the company falls only upon a director who is `an officer in default ', as defined under section 2(31) read with section 5(a) (b), and not upon any other director.
The nominees of the Government or financial institutions on the board of directors of the company, but not directly in charge of its administration as full time directors, are exempted from personal liability.
The rate of interest payable under sub section (2A) is, an seen above, not less than 4 per cent and not more than 15 per cent.
The sub section requires the company to repay the over subscribed amounts.
These amounts are paid by persons who have responded to the prospectus which was issued by the company after making an application for permission in accordance with sub section (1).
But when the subscription lists are closed, the excess money is ascertained with reference to the actual allotments made and so it becomes repayable as the company has no right to retain it.
The question is, for the purpose of computing interest, did it become repayable upon the date of allotment, as found by the High Court and as contended by the respondents, or on some other day.
The Additional Solicitor General, appearing for the Union of India, Mr. K.S. Cooper, for the Securities & Exchange Board of India, Mr. T.R. Andhyarujina, for the Bombay Stock Exchange and Dr. A.M. Singhvi, for one of the interveners, submit that the liability to repay the excess amount arises on the date of allotment of the shares, for the statute says that the liability arises forthwith and any delay beyond the period of 8 days from the day on which the liability arose attracts interest.
The expression `forthwith ' has to be understood as an immediate liability ascertainable with reference to the date of allotment, but subject to a period of grace of 8 days.
Mr. Anil B. Dewan, appearing for the company, on the other hand, contends that the company is entitled to retain the excess amount for the period mentioned in the prospectus and consequently no liability to pay interest can arise until the expiry of that period.
Prospectus is an instrument registered under section 60 of the Act and all statements contained in it are matters permitted to be inserted by the statue.
The terms of the prospectus are binding not only upon the company but also upon persons who deal with the company in pursuance of the prospectus.
One of those terms concerns the repayment of excess money.
It reads: ".
In case an application is rejected in full, the whole of the 502 application money received will be refunded and where an application is rejected in part, the balance, if any, after adjusting money due in the manner provided earlier in this Prospectus on Equity Shares/Debentures allotted will be refunded to the applicants within ten weeks of the date of closing of the Subscription List or in the event of unforeseen circumstances within such further time as may be allowed by the Stock Exchange at Indore" (emphasis supplied) In the present case, counsel points out, time for refund had been extended by the Madhya Pradesh Stock Exchange till 19th December, 1990.
Accordingly the liability of the company to repay the excess amount did not arise until then.
In the circumstances, interest became payable only after 8 days from the expiry of the period as extended by the Madhya Pradesh Stock Exchange.
If Mr. Dewan 's argument were to be accepted, the company would have incurred no liability to pay interest, for time had been extended by the Madhya Pradesh Stock Exchange.
But this argument is clearly contrary to the provisions contained in sub section (4) of section 73 of the Act which reads:_ "section 73(4).
Any condition purporting to require or bind any applicant for shares or debentures to waive compliance with any of the requirements of this section shall be void".
In the teeth of that sub section, Mr. Dewan 's argument on the point is totally without merit.
Even if sub section (4) had not been inserted in section 73, Mr. Dewan 's argument in this respect would have been equally unsustainable, for no agreement can defeat or circumvent a mandatory requirement of the statute.
This is all the more so in view of section 9 which specifically provides that the provisions of the Act override the memorandum or articles of association of the company or any agreement executed or resolution passed by it.
The statute requires the company to pay interest in terms of sub section (2A).
That provision says that the company should pay excess money forthwith, failing which interest becomes payable at the end of 8 days therefrom.
Any inconsistent provision in the prospectus is unenforceable and it can be of no avail to the company.
It is true that the expression `forthwith ' does not necessarily and always mean instantaneous.
The expression has to be understood in the context of the statute.
Where, however, the statute prescribes the payment 503 of money and the accrual of interest thereon at certain points of time, the expression `forthwith ' must necessarily be understood to be immediate or instantaneous, so as to avoid any ambiguity or uncertainty.
The right accrues or liability arises exactly as prescribed by the statute.
Decisions such as Keshave Nilkanth Joglekar vs The Commissioner of Police, Greater Bombay, , and Salim vs State of West Bengal, ; , deal with the expression `forthwith ' in the context of preventive detention demanding a liberal or reasonable construction.
But that is not the construction which has to be adopted when `forthwith ' is used for determining the time and mode of payment of the principal and interest.
The legislature intended the expression `forthwith ' to refer to a particular day on which the liability to repay the principal amount arose, and that is the day from which the period of 8 days has to be computed, and on the expiry of that period, interest begins to accrue.
It is further contended on behalf of the company that in any view interest is payable as a penalty and, therefore, a reasonable and rational construction has to be placed upon the statute in regard to the commencement of the liability of the company to repay the excess amount.
Relevant circumstances which caused the delay must be taken into account in this regard.
There is no substance in this contention.
As stated earlier, sub section (2A) provides for the accrual of interest and the rates thereof.
Unlike sub section (2B) provides for punishment by imposition of fine or imprisonment, sub section (2A) speaks only of interest which is in contradiction to punishment and is not penal in character.
It merely provides a mode of calculation of the amounts payable.
Any consideration with reference to a penal provision is of no relevance to the liability of the company or its directors to pay interest in terms of sub section (2A).
Sub section (2B) on the other hand provides for punishment.
It reads: "S.73(2B).
If default is made in complying with the provisions of sub section (2A), the company and every officer of the company who is in default shall be punishable with fine which may extend to five thousand rupees, and where repayment is not made within six months from the expiry of the eighth day, also with imprisonment for a term which may extend to one year".
This sub section concerns solely with default of compliance with the requirement of sub section (2A) namely, repayment of excess money.
Failure to repay the excess money as required by sub section (2A) visits the company and every officer of the company who is in default (as 504 defined under section 5) with the stipulated punishment.
This is, of course, in addition to the payment of interest prescribed under sub section (2A).
Sub section (5), as it stood prior to 1.2.1975, read: "section 73(5).
For the purpose of this section permission shall not be deemed to be refused if it is intimated that the application for permission though not at present granted, will be given further consideration".
This sub section was substituted by the Companies (Amendment) Act, 1974 with effect from 1.2.1975 reading as follows: "S.73(5).
For the purposes of this section, it shall be deemed that permission has not been granted if the application for permission, where made, has not been disposed of within the time specified in sub section (1).
" Sub section (1) referred to in sub section (5), as substituted on 1.2.1975, is in fact the present sub section (1A), for, as stated earlier, the original sub section (1) was amended and renumbered as sub section (1A) when the present sub section (1) was inserted by the Companies (Amendment) Act, 1988 w.e.f. 15.6.1988.
Consequently, the words `the time specified in sub section (1) ' appearing in sub section (5), as inserted w.e.f. 1.2.1975, denote the period of 10 weeks mentioned in the present sub section (1A).
This means that the permission for listing is deemed not to have been granted, i.e., impliedly refused, if the application for permission filed by the company has not been disposed of before the expiry of 10 weeks from the date of the closing of the subscription lists, as mentioned under sub section (1A).
Sub section (1A) postulates that any allotment made becomes void at the end of 10 weeks from the date of the closing of the subscription lists if by that time the requisite permission of the stock exchange has not been obtained.
But this consequence is postponed till the dismissal of any appeal preferred under section 22 of the (see the proviso to sub section (1A) of section 73 of the Act).
Nevertheless, the permission, if not obtained within 10 weeks, is deemed not to have been granted.
If the permission for listing sought under sub section (1) is not granted, the interest payable under sub section (2) is attracted.
Sub section (2) says that the liability to repay the money received from applicants arises forthwith either where the permission has not been sought or, having been 505 sought, it has not been granted.
The fact that an appeal is pending does not postpone the result contemplated in sub section (2) in regard to the liability to repay the amounts and the interest accruing thereon if the amounts are not repaid within 8 days after the liability arose.
The accrual of interest under sub section (2) is not dependent or consequent on the nullity postulated in sub section (1A).
In this connection, reference may be made to sub section (3) which reads: "S.73(3).
All moneys received as aforesaid shall be kept in a separate bank account maintained with a Scheduled bank until the permission has been granted, or where an appeal has been preferred against the refusal to grant such permission, until the disposal of the appeal, and the money standing in such separate account shall, where the permission has not been applied for as aforesaid or has not been granted, be repaid within the time and in the manner specified in sub section (2), and if default is made in complying with this sub section, the company, and every officer of the company who is in default, shall be punishable with fine which may extend to five thousand rupees." (emphasis supplied) This sub section refers to the obligation of the company to keep all amounts received from the subscribers in a separate bank account maintained with a Scheduled bank.
Such money must so remain in the bank until the permission has been granted by the stock exchange or until the disposal of an appeal preferred against refusal to grant permission.
Where the permission has not been sought, the company has, as seen above, acted in disobedience of the law, and the amounts received from the investors must be credited to the separate bank account and immediately returned to them together with the interest which accrued for the period.
But where permission has been sought, but not granted, the amounts so kept in the bank have to be repaid within the time specified in sub section (2).
Default of compliance with this requirement will make the company and every officer in default (as defined under section 5) liable to be punished with fine.
This will, of course, be in addition to the liability for payment of interest in terms of sub section (2).
The right or obligation of the company to keep the money in the bank is only for the period preceding the decision of the stock exchange on the company 's request for permission to list.
Once the permission is 506 expressly or impliedly refused, the money has to be returned to the applicants, notwithstanding the pendency of the company 's appeal.
The earlier part of the sub section about depositing the money in the bank is controlled by the latter provision in the sub section for returns of the money as required by sub section (2).
This is particularly so by reason of the penalty specially provided in sub section (3) in the event of default of compliance with the requirement of that sub section.
Sub section (3) may at the first blush appear to be contradictory, but it is really not so, considering the legislative intent to protect the legitimate claim of the applicants for interest on the money paid by them.
The interest provided under sub section (2) is payable to the applicants in terms of that sub section, unless the money is returned to them within the specified time, not withstanding the pendency of an appeal mentioned in the proviso to sub section (1A).
Sub section (3) has to be so understood to be in harmony with the other provisions of section 73.
This is all the more explicit from sub section (3A).
Sub section (3A) says that the company shall not utilise the amounts held in the separate bank account for any purpose other than what is permitted by sub section (3A).
Sub section (3A) provides: "S.73(3A).
Moneys standing to the credit of the separate bank account referred to in sub section (3) shall not be utilised for any purpose other than the following purposes, namely: (a) adjustment against allotment of shares, where the shares have been permitted to be dealt in on the stock exchange or each stock exchange specified in the prospectus; or (b) repayment of moneys received from applicants in pursuance of the prospectus, where shares have not been permitted to the dealt in on the stock exchange or each stock exchange specified in the prospectus, as the case may be, or, where the company is for any other reason unable to make the allotment of share".
The money credited to the separate bank account can be utilised for only two purposes: (1) for adjustment against allotment of shares where listing is permitted; or (2) for repayment where listing is not permitted or the company is otherwise unable to allot shares.
The company has no right to deal with the money in any other manner or keep it longer than permitted by the section.
507 The money so kept in the separate bank account is held by the company for and on behalf of the subscribers in a fiduciary capacity.
Such amount do not form part of the general assets of the company.
The relationship between the applicants and the company in respect of the application money so held in accordance with sub section (3) is that of `bailers and bailee and not of creditors and debtor '.
See Palmer 's Company Law, 24th ed.
para 24.31; ,1085.
Interest does not begin to run under sub section (2) until 8 days have elapsed from the date of expiry of the period of 10 weeks commencing on the date of closure of the subscription lists.
The fact that the legislature has so provided in cases where permission has been refused expressly or by reason of the deeming provision is sufficient indication of the legislative intent to give the company reasonable time to repay the money.
Companies generally make allotments as soon as practicable after the necessary application has been made to the recognised stock exchange for permission for listing.
Upon the issue of the prospectus after making such application, amounts are received from the public in consideration of which allotments are made in anticipation of the requisite permission.
Greater the reputation of the company, larger are the amounts likely to be received.
If permission is not granted, the entire amounts received from the public have to be forthwith repaid.
On the other hand, if permission is obtained, but the amounts received from the public are in excess of the aggregate of the application money relating to the allotted shares or debentures, such excess amounts are forthwith repayable.
Whether or not permission will be obtained cannot be ascertained until the period prescribed for the purpose has expired namely, 10 weeks from the date of closing of the subscription lists.
Until the expiry of those 10 weeks, neither the subscribing public nor the company will be in a position to decide whether or not the allotments made are valid.
This is a period of uncertainty and it is for that reason that the legislature has, in a case of refusal to grant permission, provided that the liability to repay the application money arises upon the expiry of 10 weeks.
The possibility of an appeal being allowed is, as stated above, not a ground to delay repayment.
It should make no difference whether it is as a result of the permission having been refused, or permission having been granted and excess amounts are received by reason of over subscription, that repayment of money has to be made by the company.
In either event, the liability to repay the amounts arises forthwith on the expiry of 10 weeks from the date of closure of the subscription lists, and the interest will begin to accrue thereon on the expiry of 8 days therefrom.
This construction is, in our view, just and reasonable from the point of view of both the investor and 508 the company, and has the advantage of certainty, uniformity and easy application.
The condition attached to the Order of the Government of India dated 31st May, 1990, which we have extracted above, indicates that the time limit of 10 weeks from the date of closure of the subscription lists applied to refund orders as well as to allotment of all securities and despatch of allotment letters/certificates.
The Government of India thus understood that the liability of the company to repay the amounts in terms of section 73 arose only at the end of 10 weeks from the date of closure of the subscription lists.
This condition presumably applies to repayment under sub section (2) as well as under sub section (2A) of section 73.
This is fully borne out by the averments contained in the affidavit filed in the High Court on behalf of the Union of India as well as by the oral submissions on its behalf before the High Court on the point.
Similar appears to be the stand of the Bombay Stock Exchange, as seen from its publication of March 1991 (para 23.2).
The letter dated March 13, 1991 sent by the Securities and Exchange Board of India, the 2nd respondent, to the appellant company stating that interest was payable from 1st November, 1990, which is the date of expiry of the period of 10 weeks from the date of closure of the subscription lists, roughly indicates how the 2nd respondent construed the provision shortly before the proceedings commenced in the High Court.
The section is not free from ambiguities and doubts.
Having been amended in several respect, it has not finally emerged with the clarity that admits of easy construction.
But the contemporaneous construction placed upon an ambiguous section by the administrators entrusted with the task of executing the statute is extremely significant.
This construction is, in our view, perfectly consistent with the language and the object of the statute.
It is a practical and reasonable construction, particularly because it affords the company reasonably sufficient time to complete the formalities for despatch of the refund orders.
And the investor who has responded to the invitation contained in the prospectus is not unduly kept waiting for the return of the excess amounts due to him.
See Desh Bandhu Gupta & Co. & Ors.
vs Delhi Stock Exchange Association Ltd., ; and K.P. Varghese vs Income Tax Officer, Ernakulam & Anr., ; See also Crawford 's Interpretation of Laws, 1989 Ed.
Neither the date of allotment, as found by the High Court, nor the date specified in the prospectus, as contended by the company, is relevant to the commencement of liability for payment of interest on the excess money.
509 The liability of a company to repay the excess money under section 73(2A) of the Act arises on the expiry of 10 weeks from the date of the closing of the subscription lists, and the interest begins to accrue thereon at the end of 8 days therefrom.
Accordingly the liability to repay the excess money in the present case arose on 1.11.1990 which was admittedly the date of expiry of 10 weeks from the date of the closing of the subscription lists, and consequently the liability to pay interest at the rate specified in sub section (2A) arose on the expiry of 8 days from 1.11.1990.
MOHAN, J. I had the advantage of perusing the draft judgment of my learned brother.
I concur with him.
However, some important points require to be amplified.
The points that arises for determination are: (i) the scope of liability under Section 73 (2A) of the .
(ii) Meaning of the word "forthwith" (iii) Whether the payment of interest is penal in nature? (iv) Whether administrative inconvenience could be pleaded to avoid the statutory liability? Section 73 occurs under Para III of the (Central Act of 1/1956 hereinafter referred to as the Act).
This section deals with the allotment of shares and debenturs.
It has undergone important amendments in 1975 and 1988.
Prior to amendment in 1975, Section 73 read as under :_ "Allotment of shares and debentures to be dealt in on stock exchanges.
(1) Where a prospectus, whether issued generally or not states that application has been or will be made for permission for the shares or debentures offered thereby to be dealt in on a recognised stock exchange, any allotment made on an application in pursuance of the prospectus shall, whenever made, be void, if the permission has not been applied for before the tenth day after the first issue of the prospectus or, if the permission has not been granted before the expiry of (four weeks) be notified to the applicant for permission by or on behalf of the stock exchange.
(2) Where the permission has not been applied for as aforesaid, or has not been granted as aforesaid, the company shall forthwith repay without interest all moneys received from ap 510 plicants in pursuance of the prospectus, and, if any such money is not repaid within eight days after the company becomes liable to repay it, the directors of the company shall be jointly and severally liable to repay that money with interest at the rate of five per cent per annum from the expiry of the eighth day: Provided that a director shall not be liable if he proves that the default in the repayment of the money was not due to any misconduct or negligence on his part.
(3) All moneys received as aforesaid shall be kept in a separate bank account maintained with a Scheduled Bank so long as the company may become liable to repay it under sub section (2) ; and if default is made in complying with this sub section, the company, and every officer of the company who is in default, shall be punishable with fine which may extend to five thousand rupees.
(4) Any condition purporting to require or bind any applicant for shares or debentures to waive compliance with any of the requirements of this section shall be void.
(5) For the purpose of this section (it shall not be deemed that permission has not been granted) if it is intimated that the application for permission though not at present granted, will be given further consideration.
(6) This section shall have effect : (a) in relation to any shares or debentures agreed to be taken by a person underwriting an offer thereof by a prospectus, as if he had applied, therefor in pursuance of the prospectus; and (b) in relation to a prospectus offering shares for sale, with the following modifications namely (i) reference to sale shall be substituted reference to allotment; (ii) the persons by whom the offer is made, and not the company, shall be liable under sub section (2) to repay money received from applicants, and reference to the company 's liability under that sub section shall be construed accordingly; and (iii) for the reference in sub section (3) to the company and every officer of the company who is in default, there 511 shall be substituted a reference to any person by or through whom the offer is made and who is knowingly guilty of, or wilfully authorises or permits, the default.
(7) No prospectus shall state that application has been made for permission that the shares or debentures offered thereby to be dealt in on any stock exchange, unless it is a recognised stock exchange".
After amendment in 1975, Section 73 read as follows: "Allotment of shares and debentures to be dealt in on stock exchanges.
(1) Where a prospectus whether issued generally or not states that an application has been, or will be, made for permission for the shares or debentures offered thereby to be dealt in on one or more recognised stock exchanges, such prospectus shall state the name or the stock exchange or, as the case may be, each such stock exchange, and any allotment made on an application in pursuance of such prospectus shall, whenever made, be void if the permission has not been applied for before the 10th day after the first issue of the prospectus, or, whether such permission has been applied for before that day, if the permission has not been granted by the stock exchange or each such stock exchange, as the case may be, before the expiry of 10 weeks from the date of the closing of the subscription lists : Provided that where an appeal against the decision of any recognised stock exchange refusing permission for the share or debentures to be dealt in on that stock exchange has been preferred under section 22 of the (42 of 1956), such allotment shall not be void until the dismissal of the appeal.
(2) Where the permission has not been applied for as aforesaid, substituted for "or has not been granted as aforesaid" by the Companies (Amendment) Act, 1974, w.e.f. 1.2.1975 substituted for "five per cent" ibid.
(2A) Where permission has been granted by the recognised stock exchange or stock exchanges for dealing in any shares or debentures in such stock exchange or each such stock exchange and the moneys received from applicants for shares or debentures are in excess of the aggregate of the applicant moneys relating to the shares or debentures 512 in respect of which allotment has been made, the company shall repay the moneys to the extent of such excess forthwith without interest, and if such money is not repaid within eight days, from the day the company becomes liable to pay it, the Directors of the Company shall be jointly and severally liable to repay the money with interest at the rate of twelve per cent per annum from the expiry of the said eighth day : Provided that a Director shall not be liable if he proves the the default in the payment of the money was not due to any misconduct or negligence on his part.
(2B) If default is made in complying with the provisions of sub section (2A), the company and every officer of the company who is in default he shall be punishable with fine which may extend to five thousand rupees, and where repayment is not made within six months from th expiry of the eighth day, also with imprisonment for a term which may extend to one year.
(3) All moneys received as aforesaid shall be kept in a separate bank account maintained with a Scheduled Bank (until the permission has been granted, or where an appeal has been preferred against the refusal to grant such permission, until the disposal of the appeal, and the money standing in such separate account shall, where the permission has not been applied for as aforesaid or has not been granted, be repaid within the time and in the manner specified in sub section (2); and default is made in complying with this sub section, the company, and every officer of the company who is in default, shall be punishable with fine which may extend to five thousand rupees.
(3A) Moneys standing to the credit of the separate bank account referred to in sub section (3) shall not be utilised for any purpose other than the following purposes, namely: (a) Adjustment against allotment of shares, where the shares have been permitted to be dealt in on the stock exchange or each stock exchange specified in the prospectus; or (b) Repayment of moneys received from applicants in pursuance of the prospectus, where shares have not been permitted to be dealt in on the stock exchange or each stock 513 exchange specified in the prospectus, as the case may be, or, where the company is for any other reason unable to make the allotment of share.
(4) Any condition purporting to require or bind applicant for shares or debentures, to waive compliance with any of the requirement of the section shall be void.
(5) For the purpose of this section it shall be deemed that permission has not been granted if the application for permission, where made, has not been imposed of within the time specified in sub section (1).
(6) This section shall have effect (a) In relation to any shares or debentures agreed to be taken by a person underwriting an offer thereof by a prospectus, as if he had applied therefor in pursuance of the prospectus; and (b) In relation to a prospectus offering shares for sale, with the following modifications namely (i) References to sale shall be substituted for references to allotment; (ii) The persons by whom the offer is made, and not the company, shall be liable under sub section (2) to repay money received from applicants, and references to the company 's liability under that sub section shall be construed accordingly; and (iii) For the reference in sub section (3) to the company and every officer of the company who is in default, there shall be substituted a reference to any person by or through whom the offer is made and who is knowingly guilty of or wilfully authorises or permits, the default.
(7) No prospectus shall state that application has been made for permission for the shares or debentures offered thereby to be dealt in on any stock exchange, unless it is a recognised stock exchange.
" After amendment in 1988, Section 73 reads as under: "Allotment of shares and debenture to be dealt in on stock exchange.
Every company, intending to offer shares or debentures to the public for subscription by the issue of a 514 prospectus shall before such issue, make an application to one or more recognised stock exchanges for permission for the shares or debentures intending to the so offered to be dealt with in the stock exchange or each such stock exchange.
(1A) Where a prospectus, whether is issued generally or not, states that an application under sub section (1) has been made for permission for the shares or debentures offered thereby to be dealt in one or more recognised stock exchange, such prospectus shall state the name of the stock exchange and any allotment made on an application in pursuance of such prospectus shall, whenever made, be void if the permission has not been granted by the stock exchange or each such stock exchange, as the case may be, before the expiry of ten weeks from the date of the closing of the subscription lists : Provided that where an appeal against the decision of any recognised stock exchange refusing permission for the shares or debentures to be dealt in on that stock exchange has been preferred under section 22 of the Securities Contracts (Regulations) Act, 1956 (42 of 1956), such allotment shall not be void until the dismissal of the appeal.
(2) Where the permission has not been applied for under sub section (1) or, such permission having been applied for, has not been granted as aforesaid, the company shall forthwith repay without interest all moneys received from applicants in pursuance of the prospectus, and, if any such money is not repaid within eight days after the company become liable to repay it, the company and every director of the company who is an officer in default shall, on and from the expiry of the eighth day, be jointly and severally liable to repay that money with interest at such rate, not less than four per cent and not more than fifteen pr cent, as may be prescribed, having regard to the length of the period of delay in making the repayment of such money.
(2A) Where permission has been granted by the recognised stock exchange or stock exchanges for dealing in any shares or debentures in such stock exchange or each such stock exchange and the moneys received from applicants for shares or debentures are in excess of the aggregate of the application moneys relating to the shares or debentures in respect of which allotments have been made, the company shall repay the moneys to the extent of such excess forthwith without interest, and if 515 such money is not repaid within eight days, from the day the company becomes liable to pay it, the company and every director of the company who is an officer in default shall, on and from the expiry of the eighth day, be jointly and severally liable to repay that money with interest at such rate, not less than four per cent and not more than fifteen per cent, as may be prescribed, having regard to the length of the period of delay in making the repayment of such money.
(2B) If default is made in complying with the provisions of sub section 2(A), the company and every officer of the company who is in default shall be punishable with fine which may extend to five thousand rupees, and where repayments is not made within six months from the expiry of the eighth day, also with imprisonment for a term which may extend to one year.
(3) All moneys received as aforesaid shall be kept in a separate bank account maintained with a Scheduled Bank until the permission has been granted, or where an appeal has been preferred against the refusal to grant such permission, until the disposal of the appeal, and the money standing in such separate account shall, where the permission has not been applied for as aforesaid or has not been granted, be repaid within the time and in the manner specified in sub section (2) and if default is made in complying with this sub section, the company and every officer of the company who is in default, shall be punishable with fine which may extend to five thousand rupees.
(3A) Moneys standing to the credit of the separate bank account referred to in sub section (3) shall not be utilised for any purpose other than the following purposes, namely : (a) adjustment against allotment of shares, where the shares have been permitted to be dealt in on the stock exchange or each stock exchange specified in the prospectus ; or (b) repayment of moneys received from applicants in pursuance of the prospectus where shares have not been permitted to be dealt in on the stock exchange or each stock exchange specified in the prospectus, as the case may be, or, where the company is for any other reason unable to make the allotment of share.
(4) Any condition purporting to require or bind any applicant 516 for shares or debentures to waive compliance with any of the requirement of this section shall be void.
(5) For the purposes of this section, it shall be deemed that permission has not been granted if the application for permission, where made, has not been disposed of within the time specified in sub section (1).
(6) This section shall have effect (a) in relation to any shares or debentures agreed to be taken by a person under writing an offer thereof by a prospectus, as if he had applied therefore in pursuance of the prospectus; and (b) in relation to a prospectus offering shares for sale, with the following modifications, namely (i) reference to sale shall be substituted for references to allotment; (ii) the persons by whom the offer is made, and not the company, shall be liable under sub section (2) to repay money received from applicants, and references to the company 's liability under that sub section shall be construed accordingly; and (iii) for the reference in sub section (3) to the company and every officer of the company who is in default, there shall be substituted a reference to any person by or through whom the offer is made and who is knowingly guilty of, or wilfully authorises or permits, the default.
(7) No prospectus shall state that application has been made for permission for the shares or debentures offered thereby to be dealt in on any stock exchange, unless it is a recognised stock exchange".
As the section reads now, every company is required while it offers for public subscription issues of shares or debentures by means of a prospectus, to make an application for listing the security in one or more recognised stock exchanges.
Should the stock exchange not grant the permission for listing, before the expiry of 10 weeks from the date of closing the subscription lists, no allotment could be made.
In other words, the stock exchange has a say in the matter of listing.
It also requires to be stated that the company, besides the Director, is made liable for failure to repay the application money or the excess application money along with interest.
517 Notes on clauses read as under : "Clause 10 provides for compulsory listing of all public issues with recognised stock exchanges.
Presently, listing of public issues is not compulsory.
Further , as per the existing provisions only the directors are liable for failure to repay the application money or the excess application money within the specified time, if the company fails to pay".
"It is proposed to make the company in addition to the directors who commit the default liable to repay the application money or excess application money alongwith interest at a rate between 4% to 15% depending upon the period of delay with a view to ensuring that ordinary directors like nominee of govt.
financial institutions do not attract penal provisions, it is further proposed that only the directors who is an officer in default should be liable for prosecution".
As per provision to sub section (1), an appeal may be preferred under section 22 of the Stock Securities Contracts (Regulations) Act, 1956.
Such an appeal may be (i) against the decision of stock exchange refusing permission ; and (ii) if the stock exchange fails to dispose of the application for permission within 10 weeks from the date of closing of the subscription lists.
This 10 weeks become important because of the deemed rejection under sub section (5).
Sub section (1A) mentions the date of closing of the subscription lists.
Thus, it is a crucial date for determining the expiry of 10 weeks for the grant of permission by stock exchange.
Equally that becomes the crucial date for calculating the time for preferring an appeal under section 22 of the , as aforesaid against the refusal of permission.
No doubt, neither in this section nor elsewhere it is stated as to when the company is required to close subscription lists.
Of course, that will depend upon the facts of each case.
Section 69 of the Act states that unless minimum subscription is received, no allotment shall be made of any share capital of the company offered to the public for subscription.
In fact, sub section 5 of the said section states categorically as follows : "If the conditions aforesaid have not been complied with on the expiry of one hundred and twenty days after the first issue of the prospectus, all moneys received from applicants for shares shall be forthwith repaid to them without interest; and if 518 any such money is not so repaid within one hundred and thirty days after the issue of the prospectus, the directors of the company shall be jointly and severally liable to repay that money with interest at the rate of six per cent per annum from the expiry of the one hundred and thirtieth day : Provided that a director shall not be so liable if he proves that the default in the repayment of the money was not due to any misconduct or negligence on his part".
One thing that is striking as far as the sub section is concerned is, the repayment without interest before the expiry of 150 days after the first issue of the prospectus and the repayment with interest within 130 days after the issue of the prospectus or specific in their terms unlike Section 73.
It cannot be gain said that the prospectus of the company is an important document provided for under the statute.
Section 2(36) defines "prospectus" as follows : "prospectus" means any document described or issued as a prospectus and includes any notice, circular, advertisement or other document inviting deposits from the public or inviting offers from the public for the subscription or purchases of any shares in, or debentures of, a body corporate".
SEction 60 deals with registration of prospectus.
Under sub section (3) it is provided that the Registrar shall not register a prospectus unless the requirements of sections 55, 56, 57 and 58 and sub sections (1) and (2) have been complied with.
Section 62 deals with civil liability for misstatements in prospectus, while section 63 deals with criminal liability for misstatement in prospectus.
In the background of the legal provisions section 73 will have to be analysed with regard to the liability to pay interest.
The date of allotment, according to Mr. Andhyarujina and Mr. Cooper is the relevant date.
Therefore, according to the learned counsel, the crucial issue is the allotment.
It is also submitted that when permission is granted, it is only a categorisation.
It has already been seen that under section 69(5), specific dates have been mentioned as 120 and 130 respectively.
Sub section 2(A) of Section 73 does not mention any specific day.
It also requires to be noticed under sub section 1(A) of this very section "10 weeks from the date of closing of the subscription lists" is mentioned.
Both under sub section (2) and 2(A), no such time has been prescribed.
Prior to 1988, sub section (1) contemplated two situations (i) application to stock exchange being made after issue within 10 days of issue or (ii) 519 application made before the issue and 10 weeks for stock exchange to grant the application.
Of course, if the application is not granted within 10 weeks, there will be deemed rejection under sub section (5).
But, unfortunately, after the amendment of sub section (1) and 1(A), sub section (2) has not been amended with reference to these amended provisions.
As the law stands at present, the question of issue of prospectus without an application to stock exchange cannot arise at all.
As careful reading of sub section 2(A) will clearly disclose that the said section comes into operation only where permission has been granted by the recognised stock exchange or exchanges.
These words "where permission has been granted" are of great significance.
Therefore, the contention that on the date of allotment the liability to pay interest arises may not be correct.
Nor again, it would be correct to contend that the mechanics of refund liability to pay arises on the date of allotment since there is a failure of consideration in respect of shares not allotted.
On allotment, the money may become due.
Thereafter the money is held in a fiduciary capacity.
But the more important question is does it become payable? We will, now, refer to Black 's Legal Dictionary as to the meaning of the word "due" and "payable" (5th Ed. 448) are as under : "Due" Just; proper; regular; lawful; sufficient; reasonable, as in the phrases "due care", "due process of owing; payable; justly owed.
That which one contracts to pay or perform to another; that which law or justice requires to be paid or done.
Owed, or owing, as distinguished from payable.
A debt is often said to be due from a person where he is the party owing it, or primarily bound to pay, whether the time for payment has or has not primarily bound to pay, whether the time for payment has or has not arrived.
The same thing is true of the phrase "due and owing".
Payable.
A bill or note is commonly said to be due when the time for payment of it has arrived.
The word "due" always imports a fixed and settled obligation or liability, but with reference to the time for its payment there is considerable ambiguity in the use of the term, the precise signification being determined in each case from the context.
It may mean that the debt or claim in question is now (presently or immediately) matured and enforceable, or that it matured at some time in the past and yet remains unsatisfied, or that it is fixed and certain but the day appointed for its payment has not yet arrived.
But commonly, and in the absence of any qualifying expressions, the word "due" is re 520 stricted to the first of these meanings, the second being expressed by the term "overdue" and the third by the word "payable".
"Payable" Capable of being paid; suitable to be paid; admitting or demanding payment; justly due legally enforceable.
A sum of money is said to be payable when a person is under an obligation to pay it.
Payable may therefore signify an obligation to pay at a future time, but, when used without qualification, term normally means that the debt is payable at once, as opposed to "owing".
As a matter of fact, these words assumed great significance under section 60 of Transfer of Property Act.
The section was amended by Act 20 of 1929.
The word "due" in the section has been substituted for the word "payable" in order to make it clear that a mortgagor cannot redeem within the term of the mortgage".
"When the right of redemption arises the right of redemption arises when the principal money secured by the mortgage that has become due and may be exercised at any time thereafter, subject of course to the law of limitation.
In English law, the mortgagor cannot redeem before the time fixed for payment.
Nevertheless there were a considerable number of Indian cases in which it was held that the time fixed in the deed was fixed for the convenience of the mortgagor and that he could redeem before that time unless there was an express stipulation to the contrary.
These cases are bad law, for th view taken in other case that the mortgagor cannot redeem before the time fixed for payment is confirmed by the decision of Judicial Committee in Bhaktawar Begam vs Husaini Khanam, [1914] 36 All. 195.
41 I.A. 84, followed in Bir Mohammad vs Nagoor, , 25 I.C. 576 which treats Rose Ammal vs Rajarathnam, [1900] 23 Mad. 23 as overruled".
In in Baroda Board & Paper Mills Ltd. vs Income Tax Officer.
Circle I, Warde E, Ahmedabad and others, it is held as under : "Mr. A.L. Shah who appears for the liquidator in O.J. Appeal No. 2 of 1975 has urged before us that the legislature has used in the context of the priority of debts two distinct sets of words "debt due" and "due and payable" and proper meaning should be given to these sets of words, namely, "debt due" and "due and payable" and distinction must be made when the legislature has used two different terminologies, namely, "due" in the beginning of the clause and "due and payable" at the end of the clause.
He also wants us to dissect the phrase "due and 521 payable" and he wants to emphasize that the debt must have become due in the narrower sense of the word of having come into existence and having been payable with reference to enforceability of payment and, in this sense, relying upon the decision of D.A. Desai J., he has urged before us that the debt must be existing at the relevant date and the event which brought the debt into existence must have occurred within the twelve months preceding the relevant date and it must also have become payable, meaning thereby that its payment could have been enforced against the company, within the twelve months before the relevant date.
In view of the decisions that we have already referred to, particularly the passage from People vs Arguello as approved by the Supreme Court in Kesoram Industries ' case and in Raman Iron Foundry 's case, it is not possible for us to accept this contention of Mr. Shah.
In our opinion, the only meaning that could be attached to the word "due" occurring in section 530 is that it must be presently due and the words "due and payable" mean the same thing, namely , that it must be presently payable.
Therefore, so far as section 530(1) (a) is concerned, the revenue, taxess or rate, due from the company to the Central or State Government or to a local authority must be presently payable, that is, that the liability could be enforced as at the relevant date and, secondly, it must have so become presently payable within the twelve months immediately preceding the relevant date".
In this connection we may refer to the case in Union of India vs Air Foam Industries (P) Ltd., ; & 1271 (para 7), which reads as follows : "The first thing that strikes one on looking at Clause 18 is its heading which reads; "Recovery of Sums Due".
It is true that a heading cannot control the interpretation of a clause if its meaning is otherwise plain and unambiguous, but it can certainly be referred to as indicating the general drift of the clause and affording a key to a better understanding of its meaning.
The heading of Clause 18 clearly suggests that this clause is intended to deal with the subject of recovery of sums due.
Now a sum would be due to the purchaser when there is an existing obligation to pay it in present.
It would be profitable in this connection to refer to the concept of a `debt ' for a sum due is to be found in Webb vs Stenton, where Lindley. L. J., ". a debt is a sum of money which is now payable or will become payable in the future by reason of a 522 present obligation".
There must be debitum in presenti; solvendum may be in presenti or in future that is immaterial.
There must be an existing obligation to pay a sum of money now or in future.
The following passage from the judgment of the Supreme Court of California in People vs Arguello, [1869] 37 Calif 524, which was apporoved by this Court in Kesoram Industies vs Commr.
of Wealth Tax, ; 1966 SC 1370), clearly brings out the essential characteristics of a debt.
"Standing alone, the word `debt ' is as applicable to a sum of money which has been promised at a future day as to a sum now due and payable.
If we wish to distinguish between the two, we say of the former that it is a debt owing, and of the latter that it is a debt due".
This passage indicates that when there is an obligation to pay a sum of money at a future date, it is a debt owing but when the obligation is to pay a sum of money in praesenti it is a debt due.
A sum due would, therefore, mean a sum for which there is an existing obligation to pay in presenti, or in other words, which is presently payable.
Recovery of such sums is the subject matter of Clause 18 according to the heading, That is the dominant idea running through the entire Clause 18".
We will now refer to Venkataramiya 's Law Lexicon and Legal Maxims Vol, I, 713, 714.
"Due" means payable immediately or a debt contracted but payable at a future time.
In Wharton 's Law Lexicon, 14th Edn., it s meaning is stated to be "anything owing.
That which one contracts to pay or perform to another; that which law or justice requires to be paid or done.
It should be observed that a debt is said to be `due ' the instant that it has existence as a debt; it may be payable at a future time".
Therefore, it cannot be contended on the strength of Section 530 `due ' and `payable ' is one and the same even under S.732 (A).
However, as contended, if the liability to pay interest arises from the date of allotment and the grace period after eight days, what is to happen in cases where permission is refused by the stock exchange? For the grant of such permission 10 weeks are available.
Therefore, a company making allotment prior to the grant of permission cannot be mulcted with the liability when the section itself comes into play upon the grant of permission.
Therefore, some definite date is required.
It cannot be lost sight of that where permission is refused in the first instance there is also the right of appeal under Section 22 of the Securities Contracts (Regulations) Act, 1956.
This too, has got an important bearing.
It cannot be held that after allotment the mechanics 523 of refund would come into play and again after rejection of permission, the money on all applications should be refunded once over again.
Equally, the contention of Mr. Anil Divan that the stock exchange will have power to extend the time cannot be accepted.
It may be a practice to do so.
But it does not mean the stock exchange can act contrary to clear wording to this section.
More so, when Sub section (4) is clear in its terms.
Merely because the intending applicants agree to abide by the prospectus that cannot be binding in the teeth of this Sub section.
For the sake of competition, reference may be made to the corresponding provision of English Law.
Buckley on the Companies Acts, 14th Ed.
I, while dealing with Section 51 which is the corresponding provision state as follows : "The Act does not require the prospectus to fix any time for closing the subscription lists and, unless and until an issue is fully subscribed, there is nothing in law to require the company to close the lists.
It is the common practice, however, at any rate in the case of prospectuses issued generally, to state in the prospectus that the lists will be closed on or before a particular date.
In any case to which this section applies the company will, by reason of sub s(3), be unable to employ any money received from shareholders until either permission to be listed has been obtained, or the lists have been closed and the period indicated in sub section (1) has expired without the permission having been refused.
Note that the sub section does not say, 'if the permission has not been granted before the expiration of three weeks etc. ' Presumable in practice the stock exchange, when it has an application for permission to be listed under consideration and has not either granted or refused permission within the three weeks period indicated above, will notify the applicant under sub section (1) of an extension of the period.
An allotment within this section is void, not voidable as in an allotment in breach of Section 47" sub section (3) in Re Nanwa Gold Mines, Ballantyne vs Nanwa Gold Mines Ltd. applications to subscribe for shares were invited on the footing that, if a resolution for reduction of capital was not passed or not confirmed by the court, the application moneys would be refunded and meanwhile would be retained in a separate account.
The moneys were in fact put in a separate account in the names of the company and its registrars.
The conditions 524 were not fulfilled and shortly afterwards a receiver was appointed in a debenture holders ' action.
Harman J. held that the moneys in the separate account were repayable to the subscribers in full, basing his decision on the terms of the invitation and not on the provisions of this sub section; but he expressed the view that the payment into a separate account in compliance with the sub section would probably have the same effect".
Palmer 's Company Law, 1982, Vol I, 264 states as follows: "Refusal of Application to Deal Where a prospectus states that application has been or will be made for the shares or debentures to be dealt with on the stock exchange, any allotment made on an application under the prospectus shall be void.
(1) if permission has not been applied for before the third day after the first issue of the prospectus; or (2) if permission is refused before the expiration of three weeks (subject to the extension by the stock exchange to six weeks from the date of the closing of the subscription lists (Sec.
51 (1).
It should be noted that under case (2) above, the allotment is not void if the stock exchange merely defers the decision on permission to deal, or does not arrive at a decision within the stated time.
During the periods stated in cases (1) and (2) above, the application money received by the company from shareholders who applied for shares has to be kept on separate account (Sec.
51 (3) ; "that appears", as Harman J. observed in Re Nanwa Gold Mines Ltd, "to be an attempt to erect, so to speak, by statute a kind of trust for applicant", consequently, the application money thus kept on separate account does not form part of the general assets of the company which are charged by a debenture secured by a floating charge.
The relationship between the applicants and the company which holds the application moneys on separate account is that if bailers and bailee, and not of creditors and debtor".
Now, we will refer to the case in Nanwa Gold Mines Ltd. Ballantyne vs Nanwa Gold Mines Ltd., [1955] I W.L.R. 1080 @ 1085.
"Sub section (3) provides that where money is sent in on a provisional application: "All money received as "aforesaid shall 525 be kept in a separate bank account so long as the company may become liable to repay it under the last foregoing sub section; and, if default is made in complying with this sub section, the company and every officer of the company who is in default shall be liable to a fine not exceeding five hundred pounds".
That appears to be an attempt to erect so to speak, by statute a kind of trust for applicants in a case of this sort.
It is irrelevant here, because in this case the directors promised to do this very thing; No doubt that was only a compliance with the statute; but they did promise to do so and I think that their promise is of contractual effect, so I need not consider whether, if there was no promise but only the statutory obligation, the position would be the same.
I incline to think it would be so, and that the object of section 51(3) was to provide protection for persons who pay money on the faith of promises of this kind".
As to the present position with regard to the liability to refund under Sec.
73 2(A) it is important to bear in mind that two notifications have come to be issued in exercise of powers conferred under Section 642.
Notification No. GSR 614 (E) dated 3rd October, 1991, called the Companies (Central Government 's) General Rules and Forms (Second Amendment), 1991, which came into force on 1st November, 1991.
In the above notification it is stated as under: "If the company does not receive application money for at least 90% of the issued amount, the entire subscription will be refunded to the applicants within ninety days from the date of closure of the issue.
If there is delay in the refund of application money by more than 8 days after the company becomes liable to pay the excess amount, the company will pay interest for the delayed period, at prescribed rates in sub section (2) and (2A) of Section 73.
No statement made in this Form shall contravene any of the provisions of the , and the rules made thereunder".
"Signature of Directors" Again, notification No. S.O. 666(E) dated October 3, 1991 issued under sub section (1) of Section 641 with amendments in Schedule II to the said Act, under Part I General Information, stated as under: "(f) Declaration about the issue of allotment letters/refunds within a period of 10 weeks and interest in case of any delay 526 in refund at the prescribed rate under Section 73(2)/2A" Thus, the liability of the company to repay the excess amount under section 73(2A) will arise only on the expiry of 10 weeks from the date of the closure of subscription lists.
The interest begins to accrue thereupon at the end of 8 days.
As the meaning of the word "forthwith", we will now refer to Bouvier 's Law Dictionary for the meaning of the word "forthwith".
"FORTHWITH.
As soon as by reasonable exertion, confined to the object, it may be accomplished.
(Approved in Dickerman vs Trust Co., ; 176 U.S. 193, , This is the import of the term; it varies, of course, with every particular cases; 4 Tyrwh. 837; Edwards vs Ins Co., See Seammon vs Ins.
Co., 101, III 621; ; Bannect vs Ins 67 N.Y. 274; Pennsylvanis R. Co. vs Reichert, ; Meriden Silver Plate Co. vs Flory , It is not as promptly as immediately; in some cases it might mean within a reasonable time; We will also refer to 193 Soutern Reporter, 339 and 16 Soutern Reporter 33 @ 35 Col I. "As regards compliance with statute requiring petition for judicial review of an executive committee 's denial of primary election contest to be filled "forthwith" the term "forthwith" is a relative one and means within such time as to permit that which is to be done, to be done lawfully and according to the practical and ordinary course of things to be performed or accomplished, and it is not to be used by way of a penalty when accidental interventions of which party is not to be charged with foresight have upset what otherwise would have been reasonable calculations regarding available time.
Laws 1035, exhibit Secs c. 10".
"Forthwith" is not susceptible of a fixed time definition, and the surrounding facts and circumstances must be taken into consideration in determining the question, and forthwith may be minutes, hours, days or even weeks".
Therefore it cannot be said that "forthwith" means E.O. instanti.
It cannot but be held that the payment of interest is only compensatory and not penal.
Merely because clause 10 to which a reference has already been made uses the word "penal" it cannot be amount to penalty.
As useful reference can be made in Mahalaxmi Sugar Mills Co. Ltd. vs Commissioner of Income Tax, Delhi, New Delhi; , "4.
Penalties if any person defaults in payment of excess imposed under sub section (1) of Sec. 3, or , contravenes any provision of any rule made under this Act, he shall without prejudice to his liability therefore under sub section (5) of Sec.
3 be liable to imprisonment upto six months or to a fine not exceeding rupees five thousand or both and in the case of continuing contravention in to a further fine not exceeding rupees five thousand or both and in the case of continuing contraventio in to a further fine not exceeding rupees one thousand 527 for each day during which the contravention continues".
It is apparent that section 3(2) requires the payment of cess on the date prescribed under the rules.
Rule 4 of the U.P. Sugarcane Cess Rules, 1956 provides that the cess due on the sugarcane entering into the premises during the first fortnight to each calendar year must be deposited in the government treasury by the twenty second day of that month and the cess due for the remainder of the month must be deposited before the seventh day of the next following month.
If the cess is not paid by the specified date, then by virtue of section 3(3) the arrear of cess will carry interest at the rate of six per cent per annum from the specified date to the date of payment.
Section 3(5) is a very different provision.
It does not deal with the interest paid on the arrears of cess but provides for an additional sum recoverable by way of penalty from a person who default in making payment of cess.
It is a thing apart from an arrear of cess and the interest due thereon.
Now, the interest payable on an arrear of cess under section 3(3) is in reality part and parcel of the liability to pay cess.
It is an accretion to the cess.
The arrear of cess "carries" interest; if the cess is not paid within the prescribed period a larger sum will become payable as cess.
The enlargement of the cess liability is automatic under section 3(3).
No specific order is necessary in order that the obligation to pay interest is as certain as the liability to pay cess.
As soon as the prescribed date is crossed without payment of the cess, interest begins to accrue.
It is not a penalty for which provisions has been separately made by section 3(5).
Nor is it a penalty within the meaning of section 4, which provides for a criminal liability and a criminal prosecution.
The penalty payable under section 3(5) lies in the discretion of the collecting officer or authority.
In the case of the penalty under section 4, no prosecution can be instituted unless, under section 5(1), a complaint is made by or under the authority of the Cane Commissioner of the District Magistrate.
There is another consideration distinguishing the interest payable under section 3(3) from the penalty imposed under section 3(5).
Section 3(6) provides that the officer or authority empowered to collect the cess may forward to the Collector a certificate under his signature specifying the amount of arrears including interest due from any person, and on receipt of such certificate the Collector is required to proceed to recover the amount specified from such person as if it were an arrear of land revenue.
The words used in section 3(6) are "specifying the amount of arrears including interest", that is to say that the interest is part of the arrear of cess.
In the case of a penalty imposed under section 3(5), a separate provision for recovery has been made under section 3(7).
Although the manner of recovery of a penalty provided by section 3(7) is the same as the manner of recovery provided by section 3(6) of the arrears of cess, the Legislature dealt with it as something distinct from the recovery of the arrears of cess including 528 interest.
In truth, the interest provided for under s.3(3) is in the nature of compensation paid to the Government for delay in the payment of cess.
It is not by way of penalty.
The provision for penalty as a civil liability has been made under section 3(5) and for penalty as a criminal offence under s.4.
The Delhi High Court proceeded entirely on the basis that the interest bore the character of a penalty.
It was according to the learned Judges "penal interest".
The learned Judge failed to notice section 3(5) and s.4 and the other provisions of the Cess Act".
The last question will be that in view of the clear terms of the statute whether the administrative inconvenience could be pleaded.
This could be decided with reference to the case in Sanjeev Coke Manufacturing Co. vs Bharat Coking Coal Ltd. & Another, ; @ 1029, as follows: ".
But in the ultimate analysis, we are not really to concern ourselves with the hollowness or the self condemnatory nature of the statements made in the affidavits filed by the respondents to justify and sustain the legislation.
The deponents of the affidavits filed into Court may speak for the parties on whose behalf they swear to the statement.
They do not speak for the Parliament.
No one may speak for the Parliament and Parliament has said what it intends to say, only the Court may say what it the Parliament meant to say.
None else.
Once a statute leaves Parliament House, the Court 's is the only authentic voice which may echo (interpret) the Parliament.
This the court will do with reference to the language of the statute and other permissible aids.
The executive Government may place before the court their understanding or misunderstanding of what Parliament has said or intended to say or what they think was Parliament 's object and all the facts and circumstances which in their view led to the legislation.
When they do so, they do not speak for Parliament.
No Act of Parliament may be struck down because of the understanding of Parliamentary intention by the executive government or because their (the Government 's) spokesmen do not bring out relevant circumstances but indulge in empty and self defeating affidavits.
They do not and they cannot bind Parliament.
Validity of legislation is not to be judged merely by affidavits filed on behalf of the State, but by all the relevant circumstances which the court may ultimately find and more especially by what may be gathered from what the legislature has itself said. " 529 Therefore, it has to be held that administrative inconvenience can hardly be any ground.
Viewing the statutory provisions form the above perspective, I agree with my learned brother that the liability to repay the excess amount arose on November 1, 1990 and the liability to pay interest arose on the expiry of eight days from November 1, 1990.
ORDER For the reasons stated by us in our separate but concurring judgments dated 4.2.1992, we allow the appeal to the limited extent indicated by us and the judgment of the High Court shall stand altered accordingly.
In the circumstances of this case, we make no order as to costs.
V.P.R. Appeal allowed. [/INST] The appellant company was registered under the .
It obtained the consent of the Government of India to 482 issue 7,20,00,000 equity shares of Rs. 10 each at par and 33, 90, 000 fourteen per cent secured redeemable non convertible debentures of Rs. 100 each at per.
One of the conditions attached to the consent order was "The company shall scrupulously adhere to the time limit of 10 weeks from the date of closure of the subscription list for allotment of all securities and despatch of allotment letters/certificates and refund orders." On 12.7.1990 the company issued prospectus for the issue of the shares and debentures, stating therein that the company had sought the permission of the stock exchanges at Indore, Ahmedabad, Bombay, Calcutta and Delhi for dealing in equity shares and debentures in terms of the prospects; that interest at the rate of 15 % per annum on the excess application money would be paid to the applicants as per the guidelines issued by the Ministry of Finance on July 21, 1983 and September 27, 1985; that the public issue would open on August 20, 1990 and close on August 23, 1990; and that it would not be extended beyond August 31, 1990.
The issue opened on August 20, 1990.
The company received 26,32,894 applications for equity shares together with an aggregate sum of Rs. 225,25,51,247 in respect of a public issue of Rs. 25 crores.
The shares issue was close on 23rd August 1990.
On October 15,1990 the Board of Directors of the company approved the allotment of shares.
Prior to 1.11.1990, it secured the requisite permissions of the stock exchanges at Indore, Ahmedabad, Bombay Calcutta and Delhi to deal in the shares offered in the prospects.
The company had to despatch 25,50,604 refund order, which were printed in Bombay and they were meant to be despatched from Delhi.
The company despatched 8,55,226 refund orders from New Delhi at the rate of approx.
1,00,000 refund orders per day.
On 26th October, 1990 a consignment of 6,69,999 refund orders were despatched from Bombay to Delhi.
As a result of a fire that broke out on the way, many refund orders were destroyed and about 50 % of the consignment was missing after the accident.
In consultation with the Madhya Pradesh Stock Exchange and the Company 's Bank, instructions were issued by the Company to 483 stop payment of all refund orders with a view to avoiding any possible fraud or misuse.
As a result of the countermanding of all the refund orders and the printing of new refund orders, delay occurred in the despatch of newly printed orders.
For issuing the refund orders, at the request of the company, the Madhya Pradesh Stock Exchange granted extension of time till November 30,1990 and further extended till 19th December, 1990.
The Bombay Stock Exchange refusing the grant extension of time informed the company that it was bound to pay interest by reason of the delay in the despatch of refund orders.
The refund orders were not despatched until 12th November, 1990.
The Government of India and the Securities and Exchanges Board of India Respondents Nos. 1 and 2 respectively, insisted that the company should pay interest to the investors for the period of the delay in making the refund in accordance with the provisions of section 73 of the from 1st November (the expiry date of the period of 10 weeks from the date of the closure of the subscription lists) till the date of posting of the refund orders.
The company filed a writ petition in the High Court apprehending that the Government might direct the stock exchanges to delist the shares of the company by reason of its failure to pay interest and also initiate actions against it.
In the High Court, the respondent No. 1 submitted that the liability to pay the excess amount arose on the expiry of 10 weeks from the date of closure of the subscription lists.
The respondent No. 2 contended that the liability arose on the date of allotment.
The company the appellant contended that on the facts of the case, the liability arose on at the end of the period as extended by the Stock Exchanges at Indore in terms of the prospectus.
The High Court dismissed the writ petition, holding that the company was liable to pay interest at the prescribed rates for the period of delay and the liability for same arose on the expiry of 8 days from the date of allotment of the shares, and not from the date of expiry of 10 weeks, where allotment was made earlier to that date.
484 This appeal was filed by the Company against the High Court 's judgment by special leave, on the question, whether the High Court was right in discarding, for computation of interest, the time limit of 10 weeks running from the date of closure of the subscription lists, notwithstanding that the allotment had been made prior to the date of expiry of 10 weeks.
The appellant contended that the company was entitled to retain the excess amount for the period mentioned in the prospectus and consequently no liability to pay interest could arise until the expiry of that period; that as the Madhya Pradesh Stock Exchange had extended time for refund till 19th December, 1990, the liability of the company to repay the excess amount did not arise until then; that the interest became payable only after 8 days from the expiry of the period as extended by the Madhya Pradesh Stock Exchange; and that the interest was payable as a penalty and therefore a reasonable and rational construction of the statute to be made in regard to the commencement of the liability of the company to repay the excess amount by taking into account of the relevant circumstances which caused the delay.
The respondents submitted that the liability to repay the excess amount arose on the date of allotment of the shares, that the liability arose forthwith and any delay beyond the period of 8 days from the day on which the liability arose attracted interest that the expression `forwith ' had to be understood as an immediate liability ascertainable with reference to the date of allotment, but subject to a period of grace of 8 days.
Allowing the appeal, this Court, HELD : 1.01 As per Dr. Justice T.K. Thommen : A public limited company has no obligation to have its shares listed on a recognised stock exchange.
But if the company intend to offer its shares or debentures to the public for subscription by the issue of a prospectus, it must, before issuing such prospectus, apply to one or more recognised stock exchanges for permission to have the shares or debentures intended to be so offered to the public to be dealt with in each such stock exchange in terms of section 73.
[496 G] 1.02 Sub section (1) of section 73, as amended by the 485 Companies (Amendment) Act, 1988 has application only to a company intending to offer shares or debentures to the public for subscription by the issue of a prospectus.
Until this sub section was inserted, listing of public issues was not compulsory.
[497 B C] 1.03.
Sub section (1A) of Section 73 as amended by the Companies (Amendment) Act, 1988 makes it necessary for the company to state in its prospectus the name of each of the recognised stock exchanges whose permission for listing has been sought by the company.
[497 G] 1.04.
Any allotment of shares will become void if permission is not granted by the stock exchange or each such stock exchange, as the case may be, before the expiry of 10 weeks from the date of the closing of the subscription lists.
The validity of the allotment is made dependent on securing the requisite permission of each stock exchanges whose permission has been sought.
[497 G 498 A] 1.05.
The liability to repay the application money arises only upon refusal of the stock exchange to grant the permission sought by the company before the expiry of 10 weeks from the date of closing of the subscription lists.
[498 A] 1.06 There is a deemed refusal if permission is not granted by the stock exchange before the expiry of 10 weeks from the date of closing of the subscription lists, and upon the expiry of that date, any allotment of shares made by the company becomes void.
[498B] 1.07.
Sub section (1A) postulates that any allotment made becomes void at the end of 10 weeks from the date of the closing of the subscription lists if by that time the requisite permission of the stock exchange has not been obtained.
But this consequence is postponed till the dismissal of any appeal preferred under section 22 of the .
Nevertheless, the permission, if not obtained with 10 weeks, is deemed not to have been granted.
[504 F G] 1.08.
It is the legislative intent to delay the result postulated under sub section (1A) i.e., rendering the allotment void, until the period of 10 weeks has expired or until the dismissal of the appeal.
The liability to repay the excess money in the present case arose on 1.11.1990 which was admittedly the date of expiry of 10 weeks from the date of the closing of the subscription lists, and consequently the liability to pay interest at the rate specified in sub 486 section (2A) arose on the expiry of 8 days from 1.11.1990.
[498 C D] 2.01.
From the decision of the stock exchange refusing permission, an appeal will lie under section 22 of the Securities Contracts (Regulation)Act, 1956.
[498 C] 2.02.
Pending the decision in appeal, the allotment made would not be void, and the decision of the concerned stock exchange is made dependent on the result of the appeal.
[498 C] 2.03.
The fact that an appeal is pending does not postpone the result contemplated in sub section (2) in regard to the liability to repay the amounts and the interest accruing thereon if the amounts are not repaid within 8 days after the liability arose.
[505 A] 3.01 Sub section (1A) of Section 73 postulates two circumstances in which interest becomes payable, namely, where the permission has not been applied for before issuing the prospects and the company has thus acted in violation of the law or where permission, though applied for, has not been granted.
In the former case, apart from the other consequences which may flow from the company 's disobedience of the law, the liability to pay interest arises as from the date of receipt of the amounts, for the company ought not to have received any such amount in response to the prospectus issued by the company in disobedience of the requirements of subsection (1).
In the latter case, the liability to pay interest does not arise until the expiry of 8 days after the company became liable to repay the amounts received by reason of its failure to obtain the necessary permission as referred to in sub section (1A).
[499 C D] 3.02.
Section 73, as it stood prior to 1975, contained no specific provision compelling the company or its directors to repay the amounts received in excess of the aggregate of the application money relating to the shares or debentures in respect of which allotments have been made.
Sub section (2A) was inserted by the Companies (Amendment)Act, 1974 inserted to cover cases where permission of the stock exchange has been obtained, but the shares or debentures have been over subscribed and the company is consequently in possession of excess amounts.
The amended sub section made the company liable to repay the excess amounts forthwith, but did not made the company liable to pay interest on such excess amounts.
But a liability was cast on the directors.
If the excess amount was not repaid within 8 days from the day the company became liable to 487 repay it, the directors were made jointly and severally liable to repay such amount with interest.
The proviso to sub section (2A), which like the proviso to sub section (2), as they stood prior to 1988, provided that a director was not liable to repay the money with interest if he proved that the default in payment of the money was not on account of any misconduct or negligence on his part.
[500 C E] 3.03.
Owing to the absence of a specific provision imposing liability on the company to pay interest on the over subscribed amounts, and also owing to the absence of any provision to exempt directors who were not directly in charge of the administration of the company and the need to make listing of public issues compulsory, further amendments to the section became necessary.
Accordingly the Amendment Act of 1988 introduced several amendments to section 73, one of them being the substitution of a part of sub section (2A) making the company and every director of the company who is `an officer in default ' jointly and severally liable to repay the excess money with interest.
[500 F H] 3.04.
A `director of a company who is an officer in default ' appearing in sub section (2A) must be understood with reference to the definition of `an officer who is in default ' contained in section 2 (31) read with section 5.
This definition includes the managing director or the whole time director of a company.
[500 H 501 A] 3.05.
The liability imposed under sub section (2A) on a director of the company falls only upon a director who is `an officer in default ', as defined under section 2 (31) read with section 5(a) (b), and not upon any other director.
The nominees of the Government of financial institutions on the board of directors of the company, but not directly in charge of its administration as full time directors, are exempted from personal liability.
[501 A B] 3.06.
Sub section (2A) provides for the accrual of interest and the rates thereof.
Unlike sub section (2B) providing for punishment by imposition of fine or imprisonment, sub section (2A) speaks only of interest which is in contra distinction to punishment and is not penal in character.
It merely provides a mode of calculation of the amounts payable.
Any consideration with reference to a penal provision is of no relevance to the liability of the company of its directors to pay interest in terms of sub section (2A).
[503 E] 488 3.07.
Sub section (2B) concerns solely with default of compliance with the requirement of sub section (2A) namely, repayment of excess money.
Failure to repay the excess money as required by sub section (2A) visits the company and every officer of the company who is in default (as defined under section 5) with the stipulated punishment.
This is, of course, in addition to the payment of interest prescribed under sub section (2A).
[503 H 504 A] 3.08.
The interest provided under sub section (2) is payable to the applicants in terms of that sub section unless the money is returned to them within the specified time, notwithstanding the pendency of an appeal mentioned in the proviso to sub section (1A).
Subsection (3) has to be so understood to be in harmony with the other provisions of section 73.
[506 C] 3.09.
If the permission for listing sought under sub section (1) is not granted, the interest payable under sub section (2) is attracted.
Sub section (2) says that the liability to repay the money received from applicants arises forthwith either where the permission has not been sought or, having been sought, it has not been granted.
[504 H 505 A] 3.10.
The accrual of interest under sub section (2) is not dependent or consequent on the nullity postulated insub section (1A).
[505B] 4.01.
The expression `forthwith ' does not necessarily and always mean instantaneous.
The expression has to be understood in the context of the statue.
Where, however, the statute prescribes the payment of money and the accrual of interest thereon at certain points of time, the expression `forthwith ' must necessarily be understood to be immediate or instantaneous, so as to avoid any ambiguity or uncertainty.
The right accrues or liability arises exactly as prescribed by the statute.
[502 H 503 A] 4.02.
When `forthwith ' is used for determining the time and mode of payment of the principal and interest, a liberal or reasonable construction not to be adopted.
The legislature intended the expression `forthwith ' to refer to a particular day on which the liability to repay the principal amount arose and that is the day from which the period of 8 days has to be computed, and on the expiry of that period, interest begins to accrue.
[503 B C] 489 Keshav Nilkanth Joglekar vs The Commissioner of Police, Greater Bombay, ; and Salim vs State of West Bengal, ; , distinguished.
The right or obligation of the company to keep the money in the bank is only for the period preceding the decision of the stock exchange on the company 's request for permission to list.
Once the permission is expressly or impliedly refused, the money has to be returned to the applicants, notwithstanding the pendency of the company 's appeal.
The earlier part of the sub section about depositing the money in the bank is controlled by the latter provision in the sub section for return of the money as required by sub section (2).
This is particularly so by reason of the penalty specially provided in sub section (3) in the event of default of compliance with the requirement of that sub section.
[505 H 506 B] 5.02.
The money credited to the separate bank account can be utilised for only two purposes: (1) for adjustment against allotment of shares where listing is permitted; or (2) for repayment where listing is not permitted or the company is otherwise unable to allot shares.
The company has no right to deal with the money in any other manner or keep it longer than permitted by the section.
[506 G H] Palmer 's Company Law, 24th ed.
para 24.31; 1955(1) WLR 1080, referred to.
Interest does not begin to run under sub section (2) until 8 days have elapsed from the date of expiry of the period of 10 weeks commencing on the date of closure of the subscription lists.
The fact that the legislature has so provided in cases where permission has been refused expressly or by reason of the deeming provision is sufficient indication of the legislative intent to give the company reasonable time to repay the money.
[507 B C] 6.02.
Companies generally make allotments as soon as practicable after the necessary application has been made to the recognised stock exchange for permission for listing.
Upon the issue of the prospectus after making such application, amounts are received from the public in consideration of which allotments are made in anticipation of the requisite permission.
Greater the reputation of the company, larger are the amounts likely to be received.
If permission is not granted, the entire amounts received from the public 490 have to be forthwith repaid.
On the other hand, if permission is obtained, but the amounts received from the public are in excess of the aggregate of the application money relating to the allotted shares or debentures.
Such excess amounts are forthwith repayable.
Whether or not permission will be obtained cannot be ascertained until the period prescribed for the purpose has expired, namely, 10 weeks from the date of closing of the subscription lists.
Until the expiry of those 10 weeks, neither the subscribing public nor the company will be in a position to decide whether or not the allotments made are valid.
This is a period of uncertainty and it is for that reason that the legislature has, been is a case of refusal to grant permission, provided that the liability to repay the application money arises upon the expiry of 10 weeks.
[507 D G] 6.03.
The possibility of an appeal being allowed is, not a ground to delay repayment.
It should make no difference whether it is as a result of the permission having been refused, or permission having been granted and excess amounts are received by reason of over subscription, that repayment of money has to be made by the company.
It either event, the liability to repay the amounts arises forth with on the expiry of 10 weeks from the date of closure of the subscription lists, and the interest will begin to accrue thereon on the expiry of 8 days therefrom.
This construction is, just and reasonable from the point of view of both the investor and the company, and has the advantage of certainty, uniformity and easy application.
[507 G 508 A] 7.
The section 73 is not free from ambiguities and doubts.
Having been amended in several respects, it has not finally emerged with the clarity that admits of easy construction.
But the contemporaneous construction placed upon an ambiguous section by the administrators entrusted with the task of executing the statute is extremely significant.
This construction is, perfectly consistent with the language and the object of the statute.
It is a practical and reasonable construction, particularly because it affords the company reasonably sufficient time to complete the formalities for despatch of the refund orders.
And the investor who has responded to the invitation contained in the prospectus is not unduly kept waiting for the return of the excess amounts due to him.
[508 E G] Desh Bandu Gupta & Co. & ors.
vs Delhi Stock Exchange Association Ltd.; , and K.P. Varghese vs Income Tax Officer, Ernakulam & Anr., ; , referred to.
491 Crawford 's Interpretation of Laws, 1989 Ed.
referred to.
As per Mr. Justics section Mohan (Concurring) 1.01.
Sub section (2A) of Section 73 of the comes into operation only where permission has been granted by the recognised stock exchange or exchanges.
The words, "where permission has been granted" are of great significance.
Therefore, the contention that on the date of allotment the liability to pay interest arises may not be correct.
Nor again, it would be correct to contend that the mechanics of refund liability to pay arises on the date of allotment since there is a failure of consideration in respect of shares not allotted.
[519 B C] 1.02.
The liability of the company to repay the excess amount under Section 73 (2A) will arise only on the expiry of 10 weeks from the date of the closure of subscription lists.
The interest begins to accrue thereupon at the end of 8 days.
[526 A] 2.01.
The word "due" in the section 73 has been substituted for the word "payable" in order to make it clear that a mortgagor cannot redeem within the term of the mortgage.
The right of redemption arises when the principal money secured by the mortgage has become due and may be exercised at any time thereafter, subject of course to the law of limitation.
[520 C D] 2.02. "Due", means payable immediately or a debt contracted but payable at a future time.
"A debt is said to be `due 'the instant that it has existence as a debt; it may be payable at a future time" it cannot be contended on the strength of Section 530 `due ' and `payable ' is one and the same even under section 732 (a).
[522 E F] Black 's Legal Dictionary, (5th Edition 488), Venkataramiah 's Law Lexicon and Legal Maxims Vol.
I, 713 714; Wharton 's Law Lexicon, 14th Edition; Buckley on the Companies Acts, 14th Edition, Volume I, referred to.
Bhaktawar Begum vs Husaini Khanam, (1914)36 All. 195; 41 I.A. 84; ; Bir Mohammad V. Nagoor, ; (which over ruled Rose Ammal vs Rajarathnam, ; Baroda Board & Paper Mills Ltd. vs Income Tax Officer, Circle I, Ward E, Ahmedabad and others, 1976 (46) company cases 492 25; Union of India vs Air Foam Industries (P) Ltd., ; & 1271 (Para 7) referred to.
"Forthwith ' is not susceptible of a fixed time definition, and the surrounding facts and circumstances must be taken into consideration in determining the question, and forthwith may be minutes, hours, days or even weeks.
It cannot be said that "forthwith" means E.O. instanti.
[526 E F] Dickerman vs Trust Co., ; 176 U.S. 193, , , 4 Tyrwh.
837; Edwards vs Ins.
Co., ; Seammon vs Ins.
Co., 101, III 621; ; ; Bennect vs Ins ; Pennsylvanis R.Co.
vs Reichert, 58 Md. 261; Meriden Silver Plate Co. vs Flory , 193, Soutern Reporter, 339 and 16 Soutern Reporter 33 @ 35 Col. I., Laws 1035, Ex Secs C. 10, referred to.
Bouvier 's Law Dictionary Referred to. 4.
It cannot but be held that the payment of interest is only compensatory and not penal.
Merely because clause 10 uses the word "penal" it cannot be amount to penalty.
[526 F] Mahalaxmi Sugar Mills Co. Ltd vs Commissioner of Income Tax, Delhi, New Delhi, ; , referred to.
In view of the clear terms of the statute the administrative inconvenience cannot be pleaded.
[528 B C] Sanjeev Coke Manufacturing Co vs Bharat Cooking Coal Ltd. & Another, ; 1029, referred to. </s> |
<s>[INST] Summarize the following judgement: ivil Appeal No. 1360 of 1974.
From the judgment and Order dated 14.12.1973 of the Delhi High Court in suit No. 64 of 1969.
Ms. Suruchi Agarwal and T.V.S.N. Chari for the Appellants.
H.K. Puri and Mrs. Urmila Sirur for the Respondents.
The Judgment of the Court was delivered by DR. A.S.ANAND,J.
This appeal, by special leave, is directed against the judgment of the Full Bench of the Delhi High Court, dated 14.12.1973 in Suit No. 64/69, delivered in a reference made by a learned Single Judge for opinion of the Full Bench.
The questions referred by the learned Single Judge to the Full Bench revolved around the scope and effect of the provisions of Sections 54 and 59B of the Indian Income Tax Act 1922 (hereinafter referred to as the '1922 Act ') and Sections 137 and 138 of the Income Tax Act 1961 (hereinafter referred to as the '1961 Act ') as amended from time to time in 1964 and 1967 in the context of the claim of privilege by the Income Tax Department for the production of the 551 documents relating to assessment of an assessee summoned by the Civil Court.
The following three questions were referred to and considered by the Full Bench: "1.
What is the position of law relating to privilege prior to 1964? 2.
What is the position of law relating to privilege after 1964 ?; and 3.
What is the effect of the production of certified copies relating to income tax assessment records, and how far certified copies can be admitted in evidence ?" The circumstances under which these questions arose, briefly put, are as follows: 2.
The plaintiff, Trilok Chand Jain, instituted a suit for recovery of Rs. 1,39,722.86 against the defendants, M/s. Dagi Ram Pindi Lal and Smt.
Budh Wanti Gulati, w/o Shri Pindi Lal Gulati, the appellants herein.
During the course of proceedings in the suit, when evidence was being recorded, the plaintiff obtained summons from the court requiring the Income Tax Department to produce in the court records relating to the Income Tax Assessment of the defendants, M/s. Dagi Ram Pindi Lal, for the assessment years 1964 65 to 1971 72.
The Income tax officer to whom the summons were issued, sent the record in a sealed cover through an Inspector along with a letter, dated November 1,1972, claiming that the said record was privileged under Section 137 of the 1961 Act.
The plaintiff also applied for and obtained summons requiring the Income tax Officer to produce the Income tax record relating to M/s Borizeon Industrial Products (P) Ltd. and Bishamber Nath Kaul.
That record was also sent by the Income Tax Officer in a sealed cover alongwith a letter in which it was submitted that no disclosure of information regarding income tax pertaining to an income tax assessee could be made.
The plaintiffs, it appears, in the meanwhile filed in the court a number of certified copies of the accounts of the defendants, which he had been able to obtain from the income tax authorities and sought permission of the Court to tender the certified copies in evidence.
Arguments were addressed by the parties before the learned Single Judge on the question of privilege as claimed by the Income Tax officer.
Being of the opinion that the question of privilege, as claimed by the Income Tax officer, was important and likely to arise in 552 the course of trial of suits in future also, a reference was made by the learned Single Judge to the Full Bench.
In dealing with the three questions (supra) referred to it, the Full Bench considered different situations.
It considered the first question in the following four situations: "(a) Where the documents, records, etc.
in respect of which privilege is claimed were filed by an assessee or a third party before April 1,1962, with effect from which date the Indian Income Tax Act, 1922 was repealed, in respect of assessment years up to and including assessment year 1961 62 in proceedings for the said assessment years taking place under the Indian Income tax Act,1922; (b) Where the documents, records, etc. were filed by an assessee or a third party after April 1,1962, but before April 1,1964 in respect of assessment years up to and including assessment year 1961 62 in proceedings for the said assessment years taking place under the Indian Income_tax Act,1922; (c) Where the document, records, etc. were filed by an assessee or a third party after April 1,1962, but before April 1,1964, in respect of assessment years up to and including assessment year 1961 62 in proceedings for the said assessment years taking place under the Income tax Act, 1961;and (d) Where the documents, records, etc. were filed by an assessee or a third party after April 1,1962, but before April 1,1964, in respect of assessment years 1962 63 and 1963 64 in proceedings for the said assessment years taking place under the Income tax Act, 1961." and sustained the claim of privilege by the Income Tax Department in each one of the situations.
The Full Bench while considering the second question, dealt with the following situations: (a) Where the documents, records, etc.
in respect of which privilege is claimed were filed by an assessee or a third party after April 1, 1964, in respect of assessment years up to and including assessment year 1961 62 in proceedings for the said 553 assessment years taking place under the Indian Income tax Act, 1922; (b) Where the documents, records etc.
were filed by an assessee or a third party after April 1, 1964, in respect of assessment years up to and including year 1961 62 in proceedings for the said assessment years taking place under the Indian Income tax Act, 1961; (c) Where the documents, records, etc. were filed by an assessee or a third party after April 1, 1964, in respect of assessment years 1962 63 and 1963 64 in proceedings for the said assessments years taking place under the Income tax Act, 1961; and (d) Where the documents, records, etc. were filed by an assessee or a third party after April 1, 1964, in respect of assessment years 1964 65 onwards.
" The claim of privilege was sustained in all above situations also.
Dealing with the effect of omission of Section 137 and substitution of section 138 (1) (a) and (b), the High Court opined; ". .that when a party to a proceeding in a Court applies for summoning any documents, records etc.
from the income tax authorities, the Court may summon the said documents, records, etc.
But on receipt of summons, it is open to the Commissioner of Income tax to consider the matter as provided under section 138 (1) (b), and decide whether it would be (sic) in the public interest to produce or furnish the documents, records, etc.
summoned for, and submit his view to the Court in answer to the summons.
In case, he is satisfied that the production etc.
would not be in the public interest, his decision is final and the Court to which the said decision is communicated cannot question the same." [EMPHASIS SUPPLIED] The Full Bench, however, did not express any opinion on the third question.
Learned counsel for the appellant has not questioned the findings of the Full Bench in so far as they relate to the claim of privilege in respect 554 of documents filed prior to the repeal of the 1922 Act or before the omission of Section 137 from the 1961 Act.
She has questioned the findings of the Full Bench only as regards the power and jurisdiction of the Court to summon the documents, after the repeal of the 1922 Act and after the deletion of Section 137 from the 1961 Act by the Finance Act, 1964 as also the interpretation placed by the Bench on Section 138 (1) (b) of the Act.
The controversy before us has been confined to the finding of the High Court relating to the claim of privilege for the production of documents which were filed after the repeal of Section 137, with effect from 1.4.1964 in respect of assessment years 1964 65 onwards.
Thus, it is the finding on situation (d) of the second question as rendered by the Full Bench Which alone has been questioned and debated before us.
The precise argument of the learned counsel for the appellant is that after the repeal of Section 137 of the 1961 Act by Act V of 1964, there is no longer any impediment left in the way of a civil court to summon the production of documents filed by an assessee during the assessment proceedings before an Income tax Officer after 1.4.1964 in respect of assessment years 1964 65 onwards, and that the finality attached to an order of the Commissioner with regard to claim of privilege under Section 138 (1) (b) has no relationship to the power of the court to summon that record.
For a proper appreciation of the question debated before us, it would be desirable to refer to the relevant provisions of the 1922 Act and 1961 Act, as amended from time to time, and notice the changes brought about in the matter of claim of privilege by the Income Tax Department.
Section 54 (1) and (2) of the 1922 Act provided as follows: "54.
Disclosure of information by a public servant (1) All particulars contained in any statement made, return furnished or accounts or documents produced under the provisions of this Act or in any evidence given, or affidavit or deposition made, in the course of any proceedings under this Act other than proceedings under this Chapter, or in any record of any assessment proceeding, or any proceeding relating to the recovery of a demand, prepared for the purpose of this Act, shall be treated as confidential, and notwithstanding 555 anything contained in the Indian Evidence Act, 1872(1 of 1872) no Court shall save as provided in this Act, be entitled to require any public servant to produce before it any such return, accounts, documents or record or any part of any such record, or to give evidence before it in respect thereof.
(2) If a public servant discloses any particulars contained in any such statement, return, accounts,documents, evidence, affidavit deposition or record, he shall be punishable with imprisonment which may extend to six months, and shall also be liable to fine.
By Section 9 of the Taxation Laws (Amendment) Act of 1960, Section 59 B was inserted in the 1922 Act with effect from April 1, 1960.
It provided as under: "59 B Disclosure of information regarding tax payable Where a person makes an application to the Commissioner in the prescribed form and after payment of the prescribed fee for information as to the amount of tax determined as payable by any assessee in respect of any assessment made on or after the 1st day of April, 1960, the Commissioner may, notwithstanding anything contained in section 54, if he is satisfied that there are no circumstances justifying its refusal, furnish or cause to be furnished the information asked for.
" Both the aforesaid provisions dealt with the confidential nature of the documents filed, before the Income Tax authorities and the claim of privilege to disclose the same to anyone, including a court of law.
Section 54 (1) declared that the various documents referred to therein shall be treated as confidential and prohibited a court from requiring any public servant to produce before it any such document or to give evidence before it in respect thereof, notwithstanding anything contained in the .
Sub Section (2) of Section 54 made punishable, the disclosure by a public servant, of any information contained in those documents.
the effect of introduction of Section 59 B by Taxation Laws (Amendment) Act 1960 was that it entitled a person to make an application to the Commissioner to obtain information thereafter as to the amount of tax determined, as payable by an assessee in respect of any assessment made 556 on or before April 1, 1960, and authorised the Commissioner to furnish or cause to be furnished the sought for information, if he was satisfied that there were no circumstances justifying its refusal.
This legal position continued to prevail till April 1, 1960, when the 1922 Act was repealed by the 1961 Act.
In the 1961 Act , provisions were made corresponding to sections 54 and 59 B of the 1922 Act in Sections 137 and 138.
The relevant portions of Sections 137 and 138 of the Act provided as follows: "137.
Disclosure of information prohibited (1) All particulars contained in any statement made, return furnished or accounts or documents produced under the provisions of this Act, or in any evidence given or affidavit or deposition made in the course of any proceedings under this Act, other than proceedings under Chapter XXII, or in any record of any assessment proceedings, or any proceedings relating to recovery of a demand, prepared for the purposes of this Act, shall be treated as confidential, and notwithstanding anything contained in the , no Court shall, save as provided in this Act, be entitled to require any public servant to produce before it any such return, accounts, documents or record or any part of any such record, or to give evidence before it in respect thereof.
(2) No public servant shall disclose any particulars contained in any such statement, return, accounts, documents, evidence, affidavit, deposition or record.
(3) . . (4) . . (5) . . "138.
Disclosure of information respecting tax payable WHERE A person makes an application to the Commissioner in the prescribed form and pays the prescribed fee for information as to the amount of tax determined as payable by an assessee in respect of any assessment made either under this Act or the Indian income tax Act, 1922.
On or after the 1st day 557 of April, 1960, the Commissioner may, notwithstanding anything contained in Section 137, if he is satisfied that there are no circumstances justifying its refusal, furnish or cause to be furnished the information asked for.
The provisions of Section 137(1) of the 1961 Act were, as is seen, almost identical to the provisions of sub section (1) of Section 54 of the 1922 Act and Section 137 (2) prohibited a public servant from disclosing the particulars contained in any of the documents mentioned in Section 137 (1).
The provisions of Section 138 of the 1961 Act were almost identical to the provisions of Section 59 B of the 1922 Act.
With effect from April 1, 1964, Section 137 of the 1961 Act was omitted from the Statute vide Section 32 of the Finance Act No. V of 1964, and Section 138 was substituted by a new Section vide Section 33 of the Finance Act No. V of 1964.
The substituted Section 138 reads as under: "138.
Disclosure of information respecting assessees: (1) Where a person makes an application to the Commissioner in the prescribed form for any information relating to any assessee in respect of any assessment made either under this Act or the Indian Income tax Act, 1922, on or after the 1st day of April, 1960, the Commissioner may, if he is satisfied that it is in the public interest so to do, furnish or cause to be furnished the information asked for in respect of that assessment only and his decision in this behalf shall be final and shall not be called in question in any Court of law.
(2) Notwithstanding anything contained in sub section (1) or any other law for the time being in force, the Central Government may, having regard to the practices and usages customary or any other relevant factors, by order notified in the Official Gazette, direct that no information or document shall be furnished or produced by a public servant in respect of such matters relating to such class of assessees or except to such authorities as may be specified in the order.
The scope of Section 138, of the 1961 Act was, as can be seen, enlarged by the substituted provisions of Section 138.
Under the original 558 Section 138 a person could make an application for information only as to the amount of tax determined, as payable by an assessee, under sub section (1) of the substituted Section 138, a person could make an application for any information relating to an assessment.
Again, under the original Section 138, before the necessary information could be furnished or cause to be furnished to an applicant, the Commissioner was to be satisfied that there were no circumstances justifying refusal to furnish the information asked for; under sub Section (1) of the substituted Section 138, the Commissioner was required to be satisfied that it was in the public interest to furnish the information asked for and "his decision in this behalf shall be final and shall not be called in question in any court of law." Vide sub Section (2) of the substituted Section 138, the Central Government was also empowered to direct, by an order notified in the Official Gazette, that no information or document shall be furnished or produced by a public servant in respect of such matters relating to such class of assessees or except to such authorities as may be specified in the order.
10, The substituted Section 138 was once again amended and substituted vide Section 28 of the Finance Act, 1967 with effect from April 1, 1967.
The new sub section (1) of section 138 reads as follows: "(1)(a) The Board or any other income tax authority specified by it by a general or special order in this behalf may furnish or cause to be furnished to (i) any officer, authority or body performing any functions under any law relating to the imposition of any tax, duty of cess, or to dealings in foreign exchange as defined in section 2(d) of the Foreign Exchange Regulation Act, 1947; or (ii)such officer, authority or body performing functions under any other law as the Central Government may, if in its opinion it is necessary so to do in the public interest, specify by notification in the Official Gazette in this behalf, any such information relating to any assessee in respect of any assessment made under this Act or the Indian income tax Act, 1922 as may, in the opinion of the Board or other Income tax authority, be necessary for the purpose of enabling the officer, authority or body to perform his or its functions under that law.
559 (b) Where a person makes an application to the Commissioner in the prescribed form for any information relating to any assessee in respect of any assessment made under this Act or the Indian Income tax Act 1922, on or after the 1st day of April, 1960 the Commissioner may, if he is satisfied that it is in the public interest so to do, furnish or cause to be furnished the information asked for in respect of that assessment only and his decision in this behalf shall be final and shall not be called in question in any court of law.
" The provisions of sub Section (1) of Section 138 as they originally stood were incorporated in clause (b) of the substituted sub Section (1) and a new provision was incorporated in clause (a) of sub Section (1) which empowered the Board or any other income tax authority specified by it by a general or special order in that behalf to furnish or cause to be furnished, information relating to any assessee to such officer, authority or body as is mentioned in the provision to enable him or it to perform its functions under the Act.
Vide clause (b)of the substituted sub Section (1) of Section 138, finality has also been attached to an order of the Commissioner, made on an application filed by any person seeking information relating to an assessee in respect of any assessment.
The Commissioner, has to make an order, after being satisfied that it is in the public interest so to do, to furnish or cause to be furnished such information and that decision of the Commissioner is immune from challenge in any court of law.
The controversy as already noticed, before us is limited to the jurisdiction or lack of it of a civil court to seek production of documents relating to assessments filed after April 1, 1964 in assessment proceedings 1964 65 onwards, after the omission of Section 137 of the Act.
The Full Bench, in the impugned judgment, came to the conclusion that the omission of Section 137 did not make any difference and that the ban on the courts as contained in the repealed Section 137 continued to remain in force by virtue of the provisions of Section 138 (1) and after 1967 by Section 138 (1)(b) of the Act even in respect of the documents filed in the assessment proceeding after April 1, 1964 for assessments relating to the period 1964 65 onwards.
The Full Bench also pressed into aid the provisions of Section 6 of the General Clauses Act to 560 hold that the repeal of Section 137 did not remove the ban on the courts to summon any documents from the income tax authorities, even in respect of documents which had been filed before the Income tax authorities after the repeal of Section 137 after April 1, 1964.
In our opinion the High Court fell in error in coming to that conclusion.
It not only ignored the legislative intent manifest in the omission of Section 137 of the 1961 Act, after the repeal of the 1922 Act, but also ignored the powers of a court under the general law, to summon such documents, record etc.
as is found relevant to a case pending before the court, in the absence of any specific prohibition, under any law for the time being in force.
The High Court assumed that by Section 54 of the 1922 ACt and Section 137 of the 1961 Act, the jurisdiction of the courts to call for documents from the income tax authorities had been taken away for all times to come, notwithstanding the repeal of the 1922 Act or the omission of Section 137 specifically from the 1961 Act.
The High Court appears to have lost sight of the position that under the Code of Civil Procedure, the courts of law have always possessed the jurisdiction to call for the production of documents relevant to the case before the court from anybody having custody of those documents.
Section 54 of the 1922 Act and after its repeal Section 137 of the 1961 Act had only placed fetters on the exercise of that jurisdiction, in respect of the specified documents, by the courts, notwithstanding anything contained in any other law for the time being in force.
The exercise of the jurisdiction to seek production of documents had, thus only been put under a cloud in so far as the record of assessment is concerned.
With the repeal of the 1922 Act and omission of Section 137 of the 1961 Act, the fetters on the exercise of that jurisdiction were removed with the result that the exercise of the jurisdiction to call for the production of documents relevant to the case pending before the court, even from the income tax authorities, revived.
Neither Section 54 of the 1922 Act nor Section 137 of the 1961 Act had taken away for all times the jurisdiction of the courts to call for the record from the income tax authorities.
Those provisions, as already noticed had, only put the exercise of that jurisdiction under a cloud and those fetters were coterminous with the life of Section 54 of the 1922 Act or Section 137 of the 1961 Act.
The finality which has been attached to the order if the Commissioner under Section 138 (1) (b) of the Act is applicable only in cases where application is made to the Commissioner by a party or any other person 561 for receiving documents or information.
It has nothing to do with the powers of the courts to summon the production of assessment record of an assessee, filed after 1.4.1964.
The Privilege as to secrecy, which the assessee had acquired under Section 54 of the 1922 Act remained unimpaired by the repeal of that Act or even by the omission of Section 137 of the 1951 Act in respect of record filed prior to 1.4.1964 and relating to the assessments prior to that date.
That privilege did not extend, after April 1, 1964, to record filed before the income tax authorities, for the assessment years 1964 65 onwards.
Section 6 of the General Clauses Act as well as Section 138 (1) (b) of the 1961 Act cannot extend the ban on the exercise of the jurisdiction by the courts to summon the production of documents from the income tax authorities after April 1, 1964 relating to assessment year 1964 65 in respect of the record filed after April 1, 1964.
Section 6 (C) of the on which reliance was placed by the HIgh Court reads as under: "6.
Where this ACt, or any Central Act or regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not . . . (c) affect any right, privilege, obligation or liability acquired or incurred under any enactment so repealed.
" A plain reading of the Section shows that the repeal of any enactment unless a different intention appears, shall not affect any right, privilege, obligation or liability acquired, accrued or incurred under the repealed enactment.
In respect of the documents filed after the repeal of Section 137 of the 1961 Act, with effect from April 1, 1964, relating to assessments for the period 1964 65 onwards, no right, privilege, obligation or liability can be said to have been acquired, accrued or incurred prior to the omission of section 137 of the Act.
Therefore, the ban contained in Section 137 of the 1961 Act on the exercise of the powers of a civil court to call for production of documents etc.
could not be said to have continued to exist, in matters arising subsequent to the omission of that Section with effect from April 1, 1964 and that ban came to an end in respect of the period after April 1, 1964.
The general principle is that an enactment which is repealed, is to be treated, except as to transactions past and closed, as if it had never existed.
The assessee had acquired no right or 562 privilege under the repealed Act, since the provision is only a procedural restriction and did not create any substantive right on the assessee, in respect of assessments for the period after the omission of Section 137 of the 1961 Act.
Thus, reliance placed on the provisions of Section 6 of the to hold the continuation of the ban on the exercise of jurisdiction by the courts was misplaced.
Dealing with the scope of Section 138 (1) (b) of the Act, the High Court held that the said provisions attached a finality to an order of the Income Tax Commissioner and applied to the cases where the record was summoned even by a court of law.
The High Court opined: "The complete omission of the declaration of the confidential nature of the documents, records, etc.
and the removal of the ban on courts and public servants no doubt, suggests that the power of a court under the general law to summon such documents, records,etc.
relevant to the case before it has been restored.
But at the same time, the legislature which empowered the Commissioner of Income tax to furnish the information if he is satisfied that it is in the public interest so to do made the decision of the Commissioner final and un questionable in a Court of law.
When two powers are thus vested in two legal authorities, neither of them can be ignored, and both of them have to be reconciled and given effect to .
In the case of the two powers under consideration, it has to be noted that the power to summon which vests in a court is under the general law, while the power of the Commissioner has been conferred upon him by a special law and has, therefore, to prevail over the former.
In view of the same, it has to be held that while it is open to a court to summon the documents, records etc.
from the Income tax Commissioner, it is equally open to the Commissioner on receiving the summons to consider whether the production/furnishing of the documents, records etc.
would be in the public interest, and submit the same to the court in answer to the summons.
" We are unable to subscribe to the above view.
Clause (b) of sub Section (1) of Section 138 is limited in its scope and application.
Under it, any person can make an application to the 563 Commissioner for any information relating to an assessee in respect of any assessment made either under the 1922 Act or under the 1961 Act on or after the 1st April 1960 and the Commissioner of Income Tax has the authority to furnish or cause to be furnished the information asked for on being satisfied that it is in the public interest so to do and such an order of the Commissioner is final and cannot be called in question in any court of law.
The Commissioner of Income Tax under this clause performs only an administrative function, on his subjective satisfaction as to whether it is in the public interest to furnish the information or not to any person seeking such information and his decision in that behalf is final and the aggrieved person cannot question it in a court of law.
By enacting this provision, the legislature could not be said to have intended that the Commissioner of Income Tax would have the authority to sit in judgment over the requisition made by a court of law requiring the production of record of assessment relating to an assessee in a case pending before the court.
When a court of law, in any matter pending before it desires the production of record relating to any assessment after applying its judicial mind and hearing the parties and on being prima facie satisfied that the record required to be summoned is relevant for the decision of the controversy before it it passes a judicial order summoning the production of that record from the party having possession of the record.
The Commissioner of Income Tax cannot, therefore, refuse to send the record, as he certainly is not authorised to set at naught a judicial order of a court of law.
He must obey the order of the court by sending the record to the court concerned indeed it is open to the Commissioner of Income Tax to claim privilege, in respect of any document or record so summoned by a court of law, under Sections 123 and 124 of the and even then it is for the court to decide whether or not to grant that privilege.
Had the legislature intended that no document from the assessment record of an assessee should be produced in a court on being summoned by it, without the approval of the Commissioner of Income Tax, it would have said so in Section 138 of the Act itself.
The repeal of Section 137 of the Act clearly discloses the legislative intent that it was felt by the legislature that it was no more necessary to keep the records of assessment by the Income Tax Department relating to an assessee as confidential from the courts and the bar with regard to the production of any part of the record was removed in so far as the courts are concerned.
The finality which has 564 been attached to the order of the Commissioner under Section 138(1)(b) of the Act is, thus, restricted to the cases where the information etc.
as contemplated by the Section is called for by any person, other than a court of law by a judicial order.
The High Court, therefore, fell in error in holding that the assessment records of an assessee filed before the income tax authorities, even after April 1, 1964, are immune from production in a court of law on summons for their production being issued by the court and that the disclosure of any information from the record even to the courts is subject to the veto powers of the Commissioner of Income Tax.
Section 138(1)(b) does not affect the powers of the courts to require the production of assessment records or the disclosure of any information therefrom to it, in a case pending before the court when the court, by a judicial order, requires the production of the record, considered relevant by it for decision of a case pending before it.
As a result of the above discussion, we, therefore, find that the answer given by the Full Bench of the High Court in the impugned judgment, to situation (d) of the second question (supra) as formulated by it, is erroneous and we set it aside.
Consequently, we hold that after the repeal of Section 137 of the Act, there is no longer any impediment left in the way of a court to summon the production of documents filed by an assessee before the income tax authorities after April 1, 1964 relating to assessment proceedings for 1964 65 onwards and that the finality attached to an order of the Commissioner under Section 138(1)(b) has no relevance to the exercise of powers by a court to summon the production of documents in a case pending before the Court.
Since, the challenge before us had been confined to the answer given by the High Court to situation (d) of the second question as formulated by it and no other finding of the High Court was called in question, we have refrained from expressing any opinion on the other findings recorded by the Full Bench of the High Court.
The appeal consequently succeeds to the extent indicated above and is allowed.
We, however, make no order as to costs.
V.P.R. Appeal allowed. [/INST] The Plaintiff respondent instituted a suit for recovery of Rs.1,39,722.86 against the defendants appellants.
When evidence was being recorded in the suit proceedings, the plaintiff obtained summons from the court requiring the Income Tax Department to produce in the court records relating to the income tax assessment of the defendants for the assessment years 1964 65 to 1971 72.
The Income Tax Officer produced the record in a sealed cover.
The plaintiff also obtained summons requiring the Income Tax Officer to produce the income tax record relating to two other assessees, which was produced in the Court by the Department in a sealed cover with a submission that no disclosure of information regarding income tax 546 pertaining to an income tax assessee could be made.
The plaintiffs in the meanwhile filed in the court a number of certified copies of the accounts of the defendants, which he had obtained from the Income Tax authorities and sought permission of the Court to tender the certified copies in evidence.
Before a Single Judge of the High Court on the question of privilege as claimed by the Income Tax Department, arguments were addressed by the parties.
The following three questions were referred to the Full Bench (i) What is the position of law relating to privilege prior to 1964? (ii) What is the position of law relating to privilege after 1964? and (iii) What is the effect of the production of certified copies relating to income tax assessment records, and how far certified copies can be admitted in evidence? The Full Bench answered the first and second questions sustaining the claim of the privilege by the Income Tax Department and the Full Bench did not express any opinion on the third question.
Against the judgment of the Full Bench of the High Court, appeal was filed by special leave.
The controversy before this Court was confined to the finding of the High Court relating to the claim of privilege for the production of documents which were filed after the repeal of Section 137, with effect from 1.4.1964 in respect of assessment years 1964 65 onwards.
The appellants (defendants) contended that after the repeal of Section 137 of the Income Tax Act, 1961 by the Finance Act, 1964 there was no longer any impediment left in the way of a civil court to summon the production of documents filed by an assessee during the assessment proceedings before an Income Tax Officer after 1.4.1964 in respect of assessment years 1964 65 onwards, and that the finality attached to an order of the Commissioner with regard to claim of privilege under Section 138(1)(b) had no relationship to the power of the court to summon that record.
Allowing the appeal of the defendants appellants, this Court, 547 HELD:1.01.
Section 54 of the Income Tax Act, 1922 and after its repeal, Section 137 of the Income Tax Act, 1961 had only placed fetters on the exercise of the jurisdiction, in respect of the specified documents, by the courts, notwithstanding anything contained in any other law for the time being in force.
The exercise of the jurisdiction to seek production of documents had, only been put under a cloud in so far as the record of assessment is concerned.
[560E] 1.02.
With the repeal of the 1922 Act and omission of Section 137 of the 1961 Act, the fetters on the exercise of the jurisdiction were removed with the result that the exercise of jurisdiction to call for the production of documents relevant to the case pending before the court, even from the income tax authorities, revived.
[560E F] 1.03.
Neither Section 54 of the 1922 Act nor Section 137 of the 1961 Act had taken away for all times the jurisdiction of the courts to call for the record from the Income Tax authorities.
Those provisions had only put the exercise of that jurisdiction under a cloud and those fetters were coterminous with the life of Section 54 of the 1922 Act or Section 137 of the 1961 Act.
[560F G] 2.01.
Clause (b) of Sub Section (1) of Section 138 is limited in its scope and application.
Under it, any person can make an application to the Commissioner for any information relating to an assessee in respect of any assessment made either under the 1922 Act or under the 1961 Act on or after the 1st April 1960 and the Commissioner of Income Tax has the authority to furnish or cause to be furnished the information asked for on being satisfied that it is in the public interest so to do and such an order of the Commissioner is final and cannot be called in question in any court of law.
The Commissioner of Income Tax under this clause performs only an administrative function, on his subjective satisfaction as to whether it is in the public interest to furnish the information or not to any person seeking such information and his decision in that behalf is final and the aggrieved person cannot question it in a court of law.
By enacting this provision, the legislature could not be said to have intended that the Commissioner of Income Tax would have the authority to sit in judgment over the requisition (Judicial order) made by a court of law requiring the production of record of assessment relating to an assessee in a case pending before the court.
[562H 563D] 548 2.02.
When a court of law, in any matter pending before it, desires the production of record relating to any assessment after applying its judicial mind and hearing the parties and on being prima facie satisfied that the record required to be summoned is relevant for the decision of the controversy before it it passes a judicial order summoning the production of that record from the Party having possession of the record.
The Commissioner of Income Tax cannot, therefore, refuse to send the record, as he certainly is not authorised to set at naught a judicial order of a court law.
He must obey the order of the court by sending the record to the court concerned.
[563D F] 2.03.
It is open to the Commissioner of Income Tax to claim privilege, in respect of any document or record so summoned by a court of law, under Sections 123 and 124 of the and even then it is for the court to decide whether or not to grant that privilege.
Had the legislature intended that no document from the assessment record of an assessee should be produced in a court on being summoned by it, without the approval of the Commissioner of Income Tax, it would have said so in Section 138 of the Act itself.
[563F G] 2.04.
The repeal of Section 137 of the Act clearly discloses the legislative intent that it was felt by the legislature that it was no more necessary to keep the records of assessment by the Income Tax Department relating to an assessee as confidential from the courts and the bar with regard to the production of any part of the record was removed in so far as the courts are concerned.
The finality which has been attached to the order of the Commissioner under Section 138(1)(b) of the Act is restricted to the cases where the information etc.
as contemplated by the section is called for by any person, other than a court of law by a judicial order.
[563G 564A] 2.05 The finality which has been attached to the order of the Commissioner under Section 138(1)(b) of the Act is applicable only in cases where application is made to the Commissioner by a party or any other person for receiving documents or information.
It has nothing to do with the powers of the courts to summon the production of assessment record of an assessee, filed after 1.4.1964.
The privilege as to secrecy, which the assessee had acquired under Section 54 of the 1922 Act remained unimpaired by the repeal of that Act or even by the omission of Section 549 137 of the 1961 Act in respect of record filed prior to 1.4.1964 and relating to the assessments prior to that date.
That privilege did not extend, after April 1,1964.
to record filed before the income tax authorities, for the assessment years 1964 65 onwards.
[560H 561B] 2.06.
Section 138(1)(b) does not effect the powers of the courts to require the production of assessment records or the disclosure of any information therefrom to it, in a case pending before the court when the court, by a judicial order, requires the production of the record, considered relevant by it for decision of a case pending before it.
[564B C] 2.07.
The High Court, therefore, fell in error in holding that the assessment records of an assessee filed before the income tax authorities, even after April 1,1964, are immune from production in a court of law on summons for their production being issued by the court and that the disclosure of any information from the record even to the courts is subject to the veto powers of the Commissioner of Income Tax.
[564B] 3.01.
Section 6 of the General Clauses Act as well as Section 138 (1)(b) of the 1961 Act cannot extend the ban on the exercise of the jurisdiction by the courts to summon the production of documents from the income tax authorities after April 1,1964 relating to assessment year 1964 65 in respect of the record filed after April 1,1964.
[561B C] 3.02.
Section 6 of the General Clauses Act provides that the repeal of any enactment, unless a different intention appears, shall not affect any right, privilege, obligation or liability acquired, accrued or incurred under the repealed enactment.
[561F] 3.03 The general principle is that an enactment which is repealed, is to be treated, except as to transactions past and closed, as if it had never existed.
The assessee had acquired no right or privilege under the repealed Act, since the provision is only a procedural restriction and did not create any substantive right in the assessee, in respect of assessments for the period after the omission of Section 137 of the 1961 Act.
Thus, reliance placed on the provisions of Section 6 of the General Clauses Act to hold the continuation of the ban on the exercise of jurisdiction by the courts was misplaced.
[561H 562B] 3.04.
In respect of the documents filed after the omission of Section 550 137 of the 1961 Act , with effect from April 1,1964, relating to assessments for the period 1964 65 onwards, no right, privilege, obligation or liability can be said to have been acquired accrued or incurred prior to the omission of Section 137 of the Act.
[561F G] 3.05 The ban contained in Section 137 of the 1961 Act on the exercise of the powers of a civil court to call for production of documents etc.
could not be said to have continued to exist, in matters arising subsequent to the omission of that Section with effect from April 1, 1964 and that ban came to an end in respect of the period after April 1, 1964.
[561G] 4.
After the repeal of Section 137 of the act, there is no longer any impediment left in the way of a court to summon the production of documents filed by an assessee before the income tax authorities after April 1,1964 relating to assessment proceedings for 1964 65 onwards and that the finality attached to an order of the Commissioner under Section 138 (1)(b) has no relevance to the exercise of powers by a court to summon the production of documents in a case pending before the Court.
[564D E] </s> |
<s>[INST] Summarize the following judgement: Civil Appeal No. 350 of 1974.
Appeal by Certificate from the Judgment and Order dated 29/30 8 1973 of the Gujarat High Court in Special Civil Application No. 163 of 1973.
M.H.Baig, Rajiv Shakdhar, R.Sasi Prabhu (for M/s S.A. Shroff & Co.) for the Appellants.
P.S. Poti, Bimal Roy Jad.
Anip Sachthey and Ms. Rashmi Dhariwal for the Respondents.
The Judgment of the Court was delivered by MOHAN, J.
This is an appeal by certificate granted by the High Court of Gujarat at Ahmedabad under articles 132(1) and 133 (1)(a) of the Constitution of India.
It is directed against the judgment dated 29/30th August, 1973 in special Civil Application No. 163 of 1973.
The facts leading to this appeal are briefly as under: The Appellant is a company registered under Indian .
It is engaged in the business of manufacturing resins, chemicals, sodium carboxy methyl, cellulose and certain other chemicals.
Industrial alcohol is one of the raw materials used by the appellant company.
Though, till the year 1969, the appellant was purchasing industrial alcohol from the market, it installed its own distillery from may 1970 at Bilimora, within the State of gujarat.
This was for the purpose of manufacturing industrial alcohol from molasses.
On July 3rd, 1969 the second respondent, the Director of Prohibition and excise, Gujarat State, Ahmedabad issued a licence to the appellant for manufacturing spirit.
In accordance with the conditions No. 2 and 3 of the licence, the 2nd respondent appointed a staff of 9 persons.
The said staff consisted of one Inspector, one Sub Inspector, one Nayak, one jamadar and five constables to supervise the manufacture of spirit in the 678 appellant 's distillery plant.
The appellant was also required to provide residential accommodation to the supervisory staff within the factory premises.
On July 3rd, 1969 the 2nd respondent asked the appellant to deposit the supervisory charges.
From time to time, these supervisory charges were also deposited in accordance with the directions of 2nd respondent.
It requires to be stated at this stage that the levy of supervisory charges, is traceable to section 58(A) of Bombay Prohibition Act of 1949.
The Section says: "Sec.58(A) : The State government may be general or special order direct that the manufacture, import, export, transport, storage, sale, purchase, use collection or cultivation of any intoxicant, denatured spirituous preparation, hemp, mhowra flowers, or molasses shall be under the supervision of such Prohibition and Excise or Police Staff as it may deem proper to appoint, and that the cost of such staff shall be paid to the State Government by person manufacturing, importing,exporting,transporting, storing,selling, purchasing, using, collecting or cultivating the intoxicant, denatured spirituous preparation hemp, mhowra flowers or molasses: Provided that the State Government may exempt any class of persons or institution from paying the whole or any part of the cost of such staff." Section 143 of the said Act confers power for making rules.
Rules have been framed called Bombay Prohibition (Manufacture of Spirit) (Gujarat)Rules, 1963.
These rules inter alia regulate the working of distilleries, manufacturing spirit.
Rule 2 provides for the licence.
Condition Nos.2 and 3 of the licence require payment of the supervisory staff and for provision of quarters for the residential accommodation of the staff respectively.
The appellant filled Civil Application No. 163 of 1973 in the High court of Gujarat challenging the constitutional validity of Section 58(A) of the Act.
By the impugned judgment,, the said petition was dismissed.
Hence, the present civil appeal.
679 The arguments of the appellant briefly stated will boil down to this.
It has been categorically laid down in Synthetics & Chemicals Ltd. vs State of U.P. & Ors., [1989] Supp. 1 SCR 623 that in respect of industrial alcohol, the states have no power to impose the impost as is sought to be done in the instant case.
The theory of privilege as adumbrated by the High court can no longer be sustained in view of the judgement.
Even otherwise, there is no quid pro quo.
In countering the submissions, it is argued on behalf of the State that Synthetics and Chemicals Ltd. etc.
(supra) dealt merely with the vend fees.
That is not the case here.
The maintenance of the Staff contemplated under Section 58(A) of the Act is primarily for the purpose of ensuring that while dealing with industrial alcohol, no attempt shall be made to divert nonpotable alcohol.
Therefore, by regulatory measures, the States sees to it that industrial alcohol is not diverted for the use as potable alcohol.
Such a regulatory measure is perfectly valid as seen from Southern Pharmaceuticals & Chemicals vs State of Kerala, ; This decision was noted with approval in Synthetics & Chemicals Ltd. Etc.
(Supra).
However, such a power was sustained though not on police power but as a regulatory measure.
As regards the services rendered, the appellants are precluded from contending that the services did not make the impost, since the High Court has noted that it was not contended before it that there was not sufficient quid pro quo between the quantum of impost and the services rendered to the manufacturer or businessman.
We are relieved of the necessity of deciding the correctness of these submissions by a detailed judgment, since identical points were raised in Civil Appeal No. 503 of 1974 (Sh.
Bileshwar Khand Udyog Khedut Sahakari Mandali Ltd. vs The State of Gujarat & Anr.) to which one of us (Mohan, J.) was a party.
The said Civil Appeal has been dismissed considering these aspects and upholding the validity of Section 58(A).
The said judgment will squarely cover this case as well.
We fully concur with the reasons contained therein.
In Synthetics & Chemicals Ltd. etc.
(supra) concerning the power to make regulations in order that non potable alcohol may not be diverted for use as potable alcohol, the following observations are found at page 681: 680 "The position with regard to the control of alcohol industry has undergone material and significant change after the amendment of 1956 to the IDR Act.
After the amendment, the state is left with only the following powers to legislate in respect of alcohol: (a) it may pass any legislation in the nature of prohibition of potable liquor referable to entry 6 of list II and regulating powers.
(b) it may lay down regulations to ensure that non potable alcohol is not diverted and misused as a substitute for potable alcohol.
(c) the State may charge excise duty on potable alcohol and sales tax under entry 52 of list II, However, sales tax cannot be charged on industrial alcohol in the present case, because under the Ethyl Alcohol (price Control) Orders, sales tax cannot be charged by the State on industrial alcohol.
(d) however, in case State is rendering any service, as distinct from its claim of so called grant of privilege, it may charge fees based on quid pro quo.
" In this connection, we may also usefully refer to southern Pharmaceuticals & Chemicals (supra).
This case related to the constitutional validity of Sections 12 A, 12 B,14(e) & (f), 68 A of Kerala Abkari Act (1 of 1077) and Rules 13 and 16 of the Kerala Rectified Spirit Rules, 1972.
One of the contentions raised was that the provision contained under Section 14 (e) of the Act for the collection of supervisory charges was clearly invalid inasmuch as: (a) They are in conflict of Rule 45 of Central Excise Rules and, (b) They could not be sustained as fee as there was no quid pro quo.
In the said judgment at page 1875, para.27 Southern Pharmaceuticals & Chemicals (supra) reads as under: " A fee may be charged for the privilege or benefit conferred, 681 or service rendered or to meet the expenses connected there with.
A fee my be, levied to meet the cost of supervision and may be, something more.
It is in consideration for the privilege, licence or service".
Again in para 29, it was stated thus: "There is a broad co relationship between the fee collected and the cost of the establishment under Section 14(e) of the Act it is provided that the commissioner, with the previous approval of the Government may prescribe the size and nature of the establishment necessary for supervision of a manufactory and the cost of the establishment and other incidental charges in connection with such supervision be realised from the licensee.
There can be no doubt that the supervisory staff is deployed in a bonded manufactory by the Government for its own protection to prevent the leakage of revenue, but there is no denying the fact that a licensee undoubtedly receives a service in return.
The cost of the establishment levied under Section 14(e) of the Act is to be collected from the licensee in the manner provided by Rule 16(4) of the Kerala Rectified Spirit Rules, 1972,relevant part of which reads: "(4) All the transactions in the spirit store shall be conducted only in the presence of an Excise Officer not below the rank of an Excise Inspector.
Such officer shall be assisted by at least two Excise Guards.
The cost of establishment of such officer and the guards shall be payable by the licensee in advance in the first week of every month as per counter signed challan to be obtained from such officer.
The rate at which the cost of establishment is to be paid by the licensee shall be fixed by the Commissioner from time to time and intimated to the licensee in writing. ." There is admittedly no provision made in the Central Rules for the recovery of supervisory charges, perhaps because as the Court observed in the Hyderabad Chemicals and Pharmaceutical 's case ; (supra) it was felt that the duty on medicinal and toilet preparations containing alcohol 682 would be sufficient to defray the cost of such supervision.
But the absence of such a provision in the Central Rules, as we have already indicated, does not deprive the State from making a provision in that behalf.
It is true that the supervisory charges are in the nature of a compulsory exaction from a licensee and the collections are not credited to a separate fund, but are taken to the consolidated fund of the State and are not separately appropriated towards the expenditure incurred in redering the service.
However, as observed in Government of Madras vs Zenith Lamp & Electricals Ltd., ; 1973 SC 724) followed in State of Rajasthan vs Sajjanlal Panjawat,[1974] 2 SCR 741; (AIR that by itself is not decisive, by reason of ART.
266 of the Constitution.
It is equally true that normally a fee is uniform and no account is taken of the paying capacity of the recipient of the service, but absence of uniformity will not make it a tax if co relationship is established [see Commissioner H.R.E., Madras vs Lakshmindra Thirtha Swamiar of Shirur Mutt and Government of Madras vs
Zenith Lamp and Electricals Ltd., ; and ; (supra)].
The cost of supervision would necessarily vary with the nature and extent of the business carried on by a licensee.
Therefore, the supervisory charges can be sustained even if they are regarded as a fee for services rendered by the State or its instrumentalities.
" In dealing with Synthetics Chemical case (supra) the following observations were made: "Learned Advocates General for the States of Gujarat and Kerala have also made their submissions, and referred to several decision and the concept of police power, and contented that imposition of a fee would be the most effective method of regulating intoxicating liquor other than alcohol.
According to the Advocate General of Kerala, that would be justified as the reasonable measure in regard to intoxicating liquor.
According to him, it has been accepted by courts all along that the 'police power ' of the State enables regulations to be made regarding manufacture, transport, possession 683 and sale of intoxicating liquor.
Such police power could be exercised as to impose reasonable restriction as to effectuate the power.
He referred to the observations of this Court in Cooverjee B.Bharucha vs The Excise Commissioner and the Chief Commissioner, Ajmer & Ors., ; which quoted the passage from Crowley vs Christensen,(1890) 24 Lawyers ' Edn. 620.
Reference was also made to Hari Shanker 's case (supra).
Where this Court quoted Vol.
38 of the American Jurisprudence where it was stated that the higher the fee is imposed for a licence, better is the regulation.
Reliance was also placed on P. N. Kaushal 's case (supra).
It was contended that it has been accepted by this Court that the police power is excercisable for regulation of an activity of a legislature within the permissible field or impost as regulatory measure.
It may be valid though it may neither be fee nor a tax in the limited sense of the term.
See the observations of this court in Southern Pharmaceuticals & Chemicals.
Trichur & Ors., etc.
vs State of Kerala & Ors.
,etc.[1982] 1 SCR 519 at 537 .
Regarding regulatory measures in connection with medicinal preparations containing alcohol it was observed by this Court that the impugned provisions had to be enacted to ensure that the Rectified spirit is not misused under the pretext of being used for toilet and medicinal preparations containing alcohol.
Such a regulation is a necessary concomitant of the police power of the State to regulate such trade or business which is inherently dangerous to public health.
The American doctrine of police power is not perhaps applicable as such in India, but power of sovereignty to regulate as part of the power of the competent legislature to effectuate its aim are there.
It is true that that in the State of West Bengal vs Subodh Gopal Bose & Ors., [1954]V SCR 587 at 601 604 and Kameshwar Prasad & Ors., vs The State of Bihar & Anr., ; the concept of police power was accepted as such, but this doctrine was not accepted in India as an independent power but was recognised as part of the power of the State to legislate with respect to the matters enumerated in the State and Concurrent Lists, subject to constitutional limitations.
It 684 was that the American jurisprudence of police power as distinguished from specific legislative power is not recognised in our Constitution and is, therefore, contrary to the scheme of the Constitution.
In interpreting the provisions of our Constitution, we should go by the plain words used by the Constitution makers and the importing of expression like 'police power ', which is a term of variable and indefinite connotation can only make the task of interpretation more difficult.
It was contended that in enacting a law with respect to intoxicating liquor as part of the legislative power measures of social control and regulation of private rights are permissible and as such may even amount to prohibition.
We are of the opinion that we need not detain ourselves on the question whether the States have the police power or not.
We must accept the position that the States have the power to regulate the use of alcohol and that power must include power to make provisions to prevent and or check industrial alcohol being used as intoxicating or drinkable alcohol.
The question is whether in the grab of regulations a legislation which is in pith and substance, as we look upon the instant legislation, fee or levy which has no connection with the cost or expenses administering the regulation, can be imposed purely as regulatory measure.
Judges by the pith and substance of the impugned legislation, we are definitely of the opinion that these levies cannot be treated as part of regulatory measures.
in this view of the matter we do not detain ourselves with examining the numerous American decisions to which our attention was drawn by learned counsel very elaborately and thoroughly.
" This is an added reasoning to uphold the validity of Section 58(A).
Turning to the second argument about the absence of quid pro quo, we need only extract the following from the judgment of the High Court: "Section 58(A) of the Bombay Prohibition Act creates a statutory duty of supervision and incidentally provides for recovering from a manufacturer or a businessman the cost of supervision which is primarily necessitated by the manufacturer 685 or businessman having been permitted under a licence to carry on lawfully a business or industrial activity which would otherwise have been unlawful.
We need not go into the details of this aspect because it has not been contended before us that if the levy under Section 58A is held to be a fee, there is no sufficient quid pro quo between the quantum of the impost and the services rendered to the manufacturer or businessman.
" In the result, the appeal fails and is dismissed with cost.
V.P.R. Appeal dismissed. [/INST] The appellant, a company registered under the Indian , was using industrial alcohol as one of the raw materials for manufacturing resins, chemicals, sodium carboxy methyl, cellulose and certain other chemicals.
In May, 1970, the company installed its own distillery for the purpose of manufacturing industrial alcohol from mollasses.
The respondent No.2 on 3.7.1969 issued a licence to the company for manufacturing spirit.
In accordance with the conditions No. 2 and No. 3, the respondent No. 2 appointed a 9 member supervisory staff consisting of one Inspector, one Sub Inspector, one Nayak, one Jamadar and five constables, to supervise the manufacture of the spirit in the company 's distillery plant.
The appellant company was required to provide residential accommodation to the supervisory staff within its factory premises and to deposit supervisory charges from time to time.
The company complied the requirements.
In 1973 the appellant company filed a Civil Application in the High Court challenging the constitutional validity of the Section 58(A) of the Bombay Prohibition Act, 1949.
The High Court dismissed the petition, hence this appeal by certificate granted by the High Court under Articles 132(1)133(1)(a) of the Constitution.
The appellant company contended that this Court in Synthetics and Chemicals Ltd. case, [1989] Supp.1 SCR 623 held that in respect of 676 industrial alcohol, the States had no power to impose the impost;that in view of the judgment of this Court, the theory of privilege as adumbrated by the High Court could not be sustained, and that there was no quid pro quo.
The respondent State submitted that the Synthetics and Chemicals Ltd. case dealt merely with the vend fees, and not about supervisory charges.
Dismissing the appeal, this Court HELD: 1.01.
The States have the power to regulate the use of alcohol and that power must include power to make provisions to prevent and/or check industrial alcohol being used as intoxicating or drinkable alcohol.
This is an added reasoning to uphold the validity of Section 58(A).
[684D, F G] Synthetics & Chemicals Ltd.v.
State of U.P. and Ors., [1989] Supp.1 SCR 623 Followed.
1.02.Section 58(A) of the Bombay Prohibition Act creates a statutory duty of supervision and incidentally provides for recovering from a manufacturer or a businessman having been permitted under a licence to carry on lawfully a business or industrial activity which would otherwise have been unlawful.
[684G 685A] 1.03.The maintenance of the staff contemplated under Section 58(A) of the Act is primarily for the purpose of ensuring that while dealing with industrial alcohol, no attempt shall be made to divert non potable alcohol.
Therefore, by regulatory measures, the State sees to it that industrial alcohol is not diverted for the use as potable alcohol.
Such a regulatory measure is perfectly valid.
However, such a power was sustained though not on police power but as a regulatory measure.
[679C D] Southern Pharmaceuticals & Chemicals vs State of Kerala, ; ; Sh.
Bileshwar Khand Udyog Khedut Sahakari Mandali Ltd. vs The State of Gujarat & Anr., C.A. No. 503 of 1974 Followed.
The appellants are precluded from contending that the services did not make the impost, since the High Court has noted that it was not contended before it that there was not sufficient quid pro quo between the 677 quantum of impost and the services rendered to the manufacturer or businessman.
[679E F] </s> |
<s>[INST] Summarize the following judgement: ivil Appeal No. 1031 of 1979 etc.etc.
From the Judgment and Order dated 23/24.11.1977 of the Bombay High Court in Sales Tax Reference No. 92 of 1976.
S.K. Dholakia, S.M. Jadhav and A.S. Bhasme for the Appellants.
Vinod A. Bobde, Ms. A.K. Verma, U.A. Rana, P.G. Gokhale, Ms. Sangeeta Aggarwal and D.N. Mishra for the Respondents.
The Judgement of the Court was delivered by RANGANATHAN,J. These are appeals by the Revenue arising out of proceedings under the Bombay Sales Tax Act, 1959 (hereinafter called `the Act ').
The respondents, Bharat Petroleum Corporation Ltd. (in CA 1031 of 1979) and Phulgaon Cotton Mills Ltd. (in the four other appeals) are assessees to sales tax.
They claimed a set off, against the sales tax payable by them for the years in question, of certain sums, invoking the provisions of rules 41 and 41 A framed under the Act, as they stood at the relevant time.
As the wording of these rules, in so far as it is material for our present purposes, is identical and the basis of the claim was also common, it will be convenient to dispose of both sets of appeals by a common judgment and we proceed to do so.
The set off claimed by the assessees was in terms of section 42 and rules 41 and 41A, which may now be referred to : (1) Section 42 reads thus : ``42.Draw back, set off, refund etc.
The State Government may provide by rules that (a)in such circumstances and subject to such conditions as may be specified in the rules a draw back, set off or refund of the whole or any part of the tax (i) xx xx xx (ii) paid or levied or leviable in respect of any earlier sale or 812 purchase of goods under this Act or any earlier law, be granted to the purchasing dealer ; (b) xx xx xx The State Government has notified various rules from time to time in exercise of this power which are collected in Chapter VII of the Rules.
Of these we are concerned with rules 41 and 41A. (2) Rule 41 (omitted w.e.f. 24.6.81) was a very long rule containing several clauses.
In so far as is relevant for our present purposes, it was in the following terms: ``41.
Drawback, set off etc.
of tax paid by a manufacturer In assessing the amount of tax payable in respect of any period by a Registered dealer, who manufactures taxable goods for sale (hereinafter in this rule referred to as the ``Manufacturing dealer ' '), the Commissioner shall grant to him a draw back, set off or as the case may be a refund of the aggregate of the following sums, that is to say : (a) xx xx xx (aa) xx xx xx (b) xx xx xx (bb) xx xx xx (c) xx xx xx (cc) xx xx xx (d) xx xx xx (e) a sum recovered from the Manufacturing dealer by another registered dealer by way of sales tax or, general sales tax or both, as the case may be, on the purchase by him, of goods from such registered dealer, being goods specified in schedule C to the Act other than in entries 1 to 11(both inclusive) and 15 therein and in Schedule D other than in entries 1 to 4 (both inclusive) 813 therein and in Schedule E other than in entries 1 and 2 therein, when the purchasing dealer did not hold a recognition or when the dealer held a recognition but effected the purchase otherwise than against a certificate under section 12 of the Act provided that such goods are used by him in the manufacture of taxable goods for sale or in the packing of taxable goods manufactured by him for sale.
Explanation : xx xx xx (Material portions Underlined) (3) The relevant portion of rule 41A, which has been invoked in the case of Phulgaon Cotton Mills Ltd., reads thus : "41A.(1) Drawback, set off etc.
of tax paid by a manufacturer in respect of purchases made on or after the 15th July 1962 : In assessing the amount of tax payable in respect of any period by a Registered dealer who manufactures taxable goods for sale or export* (hereinafter in this rule referred to as the ``manufacturing dealer ' '), the Commissioner shall, in respect of the purchases made by such dealer on or after the 15th July, 1962 of any goods specified in Schedule B, C, D, or E and used by him within the State in the manufacture of taxable goods (**) which have in fact been sold by him (and not given away as samples or otherwise) or which have been exported by him or used by him in the packing of goods so manufactured grant him a draw back, set off or, as the case may be, a refund of the aggregate of the following sums, that is to say: (a) a sum recovered from the manufacturing dealer by other Registered Dealers by way of sales tax, or general sales tax, as the case may be, both, on the purchase by him from such registered dealers, when the manufacturing dealer did not hold a Recognition or when he held a recognition but effected the * The words ``or export ' 'were inserted by a notification dated 31.8.70.
** The words ``which have in fact. .so manufactured ' 'were substituted by a notification dated 15.1.1976 for the words ``for sale or export or in the packing of goods so manufactured for sale or export ' '.
814 purchase otherwise than against a certificate under section 11 of the Act; (b) xx xx xx (c) xx xx xx (d) xx xx xx (Material portions underlined) (4)There was also a claim under rule 43AB but we are not concerned with that in the present appeals.
Now to turn to the facts which give rise to these appeals.
A.Burmah Shell The Bharat Petroleum Corporation Ltd.is before us as the successor in interest of the Burmah Shell Refineries Ltd. which is the assessee with which we are concerned.
We shall refer to it as the `refinery 'to distinguish it from the Burmah Shell Oil Storage and Distributing Company of India Ltd. which will be briefly referred to hereinafter as the `Marketing company '.
We are concerned with the period from 1.1.1961 to 31.12.1961.
The refinery registered itself as a `dealer ' under the Act and possessed a recognition certificate under section 25,after having failed in a plea, raised in earlier assessment years, that it was not a `dealer ' and was not required to be registered as such.
It had entered into a contract with the marketing company under which it agreed to process and refine crude oil belonging to the marketing company and manufacture kerosene for it.
This contract was in the nature of a bailment by the marketing company to the refinery, the refinery taking the crude oil and returning it after purification, as refined kerosene.
For the performance of this task it received payments from the manufacturing company by way refining charges on the basis of the job work done from time to time.
The refined kerosene was eventually sold by the marketing company and the refinery had nothing to do with the sales.
It may be mentioned here that there was no sales tax payable on sales of kerosene till 31.3.1961 but it became liable to sales tax thereafter.
For the above purification process, the refinery needed to use 815 sulphuric acid.
During the calendar year 1961, it purchased 3048.760 MT of acid for Rs. 3,52,742 from Dharmsi Morarji Chemical Co. Ltd.(hereinafter referred to as ``Dharmsis ' ') under an agreement dated 9.6.1955 which was to remain in force for a period of ten years from 1.1.1966 (Sic).
On the sulphuric acid it so purchased, a sales tax of Rs.13,421.15 (Rs.15,107.72, according to the High Court) was recovered from it by Dharmsis, as the refinery did not purchase it on the strength of the recognition certificate held by it as the certificate could have been utilised only if the goods purchased had been intended to be used by it in the manufacture of goods for sale by itself, whereas the manufactured kerosene was sold by the marketing company.
When the sulphuric acid was used in the refining process, the crude oil got refined and purified but the impurities therein precipitated into the acid and yielded ``acid sludge ' '.
The refinery 's contract with Dharmsis provided that the acid sludge should be sold by the refinery to the Dharmsis which, apparently, had its own uses for the sludge.
Accordingly, the refinery sold 3541.985 MT of acid sludge, during the relevant period, for Rs.68,108 the correctness of this figure was unsuccessfully contested before the High Court and on this amount it paid sales tax.
The record does not show the amount of sales tax paid by the refinery on this account, but, having regard to the nature of the commodity and turnover involved, it must, admittedly, have been a very small amount.
Having done this, the refinery claimed that, as against the sales tax paid by it for the period in question (including the tax paid on the acid sludge), it was entitled to a set off(and a refund, if need be) of the amount of Rs. 13,421.15 paid by it as sales tax on its purchases of sulphuric acid.
Its argument is that it is entitled to this refund as all the conditions set out in clause (e) rule 41 were fulfilled this wise : (a) It is a `manufacturer ', as the process of refining carried out by it falls within the wide definition of `manufacture ' contained in s.2(17) of the Act viz. : ``2(17) `manufacture ', with all its grammatical variations and cognate expressions, means producing, making, extracting, altering, ornamenting, finishing or otherwise treating, or adapting any goods; but does not include such manufactures or manufacturing processes as may be prescribed ' '.
816 It is also a Registered dealer.
(b) It manufactured taxable goods for sale.
The acid sludge manufactured by it was taxable throughout the year and the pure kerosene manufactured by it was taxable .w.e.f.
1 4 1961 onwards.
(c) Tax had been recovered from it on its purchases of sulphuric acid from Dharmsis who are Registered dealers as the purchases had not been effected on the basis of a recognition certificate.
The Sales Tax Officer allowed the set off only to the extent of Rs. 1,101.40 without giving any details as to the manner in which this figure had been arrived at.
On appeal, the Appellate Assistant Commissioner held that the assessee was entitled to no set off at all under rule 41 as what was manufactured by the assessee was kerosene and not acid sludge and the kerosene was sold not by the assessee manufacturer but by some other company.
The Appellate Tribunal, however, allowed the assessee 's claim in full and its view was upheld, on reference, by the High Court.
Hence the present appeal.
B.Phulgaon Cotton In the case of Phulgaon Cotton Mills, we are concerned with four accounting periods : 1 7 73 to 30 6 74, 1 7 74 to 30 6 75, 1 7 75 to 30 6 76 and 1 7 76 to 30 6 77.
The issue as to the application of rule 41A arises in the following circumstances.
The assessee purchased raw unginned cotton from agriculturists and unregistered dealers.
The cotton was ginned, yielding ginned cotton and seeds.
One of the issues raised in the assessments was as to whether purchase tax should be paid on the total value of the raw cotton purchased or on the said purchase price less the value of the cotton seeds obtained therefrom.
This question was answered against the assessee and is no more in issue before us.
The assessee manufactured yarn and cloth from the ginned cotton.
Besides cotton and yarn, cotton waste and yarn waste were also obtained in the course of the manufacture and these were also sold by the assessee.
Some quantity of the fabrics produced by the assessee were also exported.
817 During the periods 1 7 73 to 30 6 74 and 1 7 74 to 30 6 75, the assessee had paid sales tax on the purchase value of the entire raw cotton purchased by it.
It, therefore, claimed a set off, under rule 41A, of the purchase tax so paid as it had to pay sales tax on the yarn and cotton waste sold by it.
It also claimed set off under rule 43AB in respect of the three periods other than between 1 7 74 and 30 6 75 but we are not concerned with this claim.
The Sales Tax Officer allowed only partial relief to the assessee under rule 41A.
He permitted a set off not of the entire purchase tax paid by the assessee on the raw cotton purchased by it but only of a part thereof proportionate to the extent of yarn sales.
The Appellate Tribunal however upheld the contention of the assessee.
It allowed a set off of the entire purchase tax paid by the assessee on the raw cotton, machinery and other purchases which had been used in the process of manufacture of cotton waste.
In doing so it followed the principle of the decision of the High Court in the case of Burmah Shell Refineries, (1978) 41 S.T.C. 337.
It observed : ``21. .When the raw cotton is ginned or ginned cotton is used in the process of manufacturing yarn, there is bound to be cotton waste.
In view of these facts, the appellant will also be entitled to full set off so far as the purchases of cotton are concerned, which have resulted in the production of taxable commodity i.e. cotton waste.
Each and every ounce of cotton is used in the manufacture of cotton waste which is a taxable commodity.
The question of, therefore, allowing proportionate set off so far as the purchases of cotton or machinery which are used in manufacturing of cotton waste does not arise.
The appellant is entitled to full set off so far as purchases of cotton machinery and other purchases, which are used in the manufacture of cotton waste, a taxable commodity.
There is no conflict in the decisions given by the Tribunal in earlier rulings given in the appellant 's own cases.
No such argument of production of cotton waste by product simultaneously was canvassed.
All that was canvassed was that yarn waste was a taxable by product.
Hence, full set off on purchase of cotton be allowed.
Tribunal negatived this contention by pointing out that there is no simultaneous production of yarn and cloth.
First yarn is manufactured and then cloth.
Thus question of referring this issue to larger Bench does not arise.
The cases will have, 818 therefore, to go back to the Assistant Commissioner for deciding the quantum of set off admissible under Rule 41 A on these basis for all the periods." The Tribunal, however, directed that the deductions should be so allowed as not to result in a double deduction of the same amount of purchase tax.
Aggrieved by the order of the Tribunal, the Commissioner of Sales Tax filed petitions for special leave to appeal to this Court therefrom as no useful purpose would be served by approaching the High Court on reference in view of the decision of that Court in the Burmah Shell Refineries case on the point at issue having gone against the Revenue.
Leave was granted by this Court on 3 9 90 and hence the four civil appeals by the Revenue in the case of Phulgaon Cotton Mills Limited.
Before dealing with issue on the interpretation of rules 41 and 41A which has been debated before us, we wish to point out the difficulties encountered by us as the facts in the case of Phulgaon Cotton Mills are not quite clear from the record.
From the Tribunal 's order, it is seen that, during the periods 1 7 75 to 30 6 76 and 1 7 76 to 30 6 77, the assessee purchased no raw cotton from unregistered dealers and no purchase tax was levied thereon.
Nevertheless, some relief under rule 41A was allowed by the Officer in the assessments for these periods as well.
The basis on which a claim was made, and partially allowed, under rule 41A in respect of these periods is not known.
Also, the Tribunal has allowed full relief on the basis that since cotton was used in the manufacture of cotton waste, the assessee was entitled to relief in respect of purchase tax paid on raw cotton though for these years there was no such tax.
But the order of the Tribunal refers also to "set off so far as purchases of machinery and other purchases ' ' indicating that perhaps some purchase tax had been paid in respect of those purchases and set off had been sought in respect thereof.
But, even assuming this, the discussion regarding cotton waste appears to be pointless since, admittedly, the yarn manufactured was liable to sales tax and, on the Tribunal 's reasoning, this was sufficient to enable the assessee to claim set off of the purchase tax paid on cotton, machinery and other materials used in the manufacture.
But these aspects have not been touched upon before us.
The arguments before us, as we shall refer presently, revolved round a very simple issue.
We shall discuss this issue 819 and leave the other aspects touched upon above to be clarified, if need be, when the assessment is finally redone in the light of our judgment.
Shri Dholakia, learned counsel for the State of Maharashtra, submits that the issue in these appeals is a very simple one.
Rules 41 and 41A are intended to give relief to a dealer in respect of purchase of goods which are used in the manufacture of taxable goods for sale, the clear idea being that where the manufactured goods will also be liable to sales tax in the hands of the manufacturer there should be a relief of the taxes paid by him on the goods purchased by him for use in such manufacture, so as to avoid double taxation.
In the Bharat Petroleum case, the manufactured goods viz. pure kerosene were neither sold by the respondent so as to attract sales tax in his hands nor, indeed, liable to sales tax at all for the first three months.
So also, in the case of Phulgaon Cotton Mills, the cotton purchased on payment of tax was used for the manufacture of cloth which was not liable to sales tax.
A set off cannot be allowed merely because a bye product or waste product (viz. the acid sludge in the one case and the cotton waste in the other) was sold for a nominal turnover which was subject to tax.
Even assuming that the sulphuric acid or cotton purchased can be said to have been used for the manufacture of two commodities (viz. kerosene and acid sludge in the one case and cloth and cotton waste in the other), the set off under the rules relied upon should be split up proportionately and allowed only to a proportionate extent, the proportion being decided on the basis of the respective turnovers of the taxable and non taxable goods.
He submits that though the rules do not specifically provide for such a bifurcation, an apportionment of such nature is almost invariably implicit in a tax law and is also consonant with the object and purpose of the rules.
He, therefore, submits that the High Court and Tribunal ought to have restricted the relief only to a proportionate extent as done by the sales tax officer.
He points out that the basis on which the apportionment was made by the officer had not been specifically challenged before the appellate authorities and is not in issue before us.
On the other hand, Sri Bobde, learned counsel appearing for Bharat Petroleum laid stress on two aspects of the rule.
First, he points out that, under the rule, it is not a requirement that the manufactured goods have to be sold by the manufacturing dealer himself.
The fact is that the kerosene constituted taxable goods after 1.4.61 and was sold by the marketing company.
The second aspect of the rule is that, admittedly, the 820 sulphuric acid purchased was wholly used in the manufacture of two items kerosene and acid sludge one of which viz. the sludge was taxable and also subjected to tax.
Once this condition is fulfilled, the amount of set off is specified in the rule itself as the amount of purchase tax paid on the goods so used and cannot be scaled down proportionately merely because, according to the department, the turnover of the taxable goods is insignificant.
Sri Rana, learned counsel appearing for the Phulgaon Cotton Mills, adopts this argument mutatis mutandis.
We have given deep thought to these contentions and we have come to the conclusion that, plausible and attractive as the argument urged on behalf of the State is, the conclusion arrived at by the High Court and the Apellate Tribunal has to be upheld.
But before dealing with this aspect, we may dispose of two minor questions.
The first which arises in the Bharat Petroleum case is whether rule 41 contemplates that the goods purchased by the dealer should be used for manufacture of taxable goods for sale by him.
The High Court has given good reasons, with which we are inclined to agree, for holding that no such restrictions can be read into this rule but this contention is of no significance in view of our conclusion that the assessee would be entitled to the set off claimed even on the basis of the taxable sales of acid sludge effected by it.
The other point is whether the assesees can be said to manufacture ``acid sludge ' ' and ``cotton waste ' ' respectively.
It is suggested for the State that the assessees are purchasing acid and cotton for the manufacture of kerosene and yarn/cloth respectively and it is ludicrous to suggest that the assessees are purchasing sulphuric acid and cotton for manufacturing acid sludge and cotton waste.
Put like that the assessee 's contention seems a little artificial.
But the contention is not really absurd.
For, the assessees do purchase sulphuric acid and cotton for use in a manufacturing process which yields not only kerosene and yarn/cloth but also acid sludge and cotton waste.
As pointed out in State of Gujarat vs Raipur Manufacturing Co. Ltd.
,(1967) 19 S.T.C.1, where a subsidiary product is turned out regularly and continuously in the course of a manufacturing business and is also sold regularly from time to time, an intention can be attributed to the manufacturer to manufacture and sell not merely the main item manufactured but also the subsidiary products.
There is also no evidence on record to suggest, at least so far as acid sludge is concerned, that it is not a commercial commodity with a market but an item of waste.
The contract with Dharmsis speaks to the contrary and moreover, as pointed out by the High Court, the assessee had been 821 practically compelled by the Department to apply for and obtain a recognition certificate for the manufacture of sludge and it had also paid tax as dealers in acid sludge.
These two contentions have, therefore, to be rejected.
Turning now to the main question, we are inclined to agree with respondents ' counsel that they are entitled to a set off of the entire tax paid by them on the purchases of sulphuric acid and cotton respectively.
The only condition under the rule is that the goods purchased on payment of tax should have been used in the manufacture of taxable goods for sale.
Their concurrent user for the manufacture of another item of goods which may or may not be taxable is immaterial though we may point out that in the Bharat Petroleum case, the kerosene was also taxable for nine months in the year and in the case of Phulgaon Cotton Mills, yarn was also manufactured and it was subject to tax.
Sri Dholakia contends for an implicit principle of apportionment on the basis of turnovers of various items of goods manufactured and restriction of the quantum of set off to a proportion based on the turnover of taxable goods to the total turnover.
He cited certain decisions under the Income tax and Sales Tax Acts in support of this contention : Anglo French Textiles vs C.I.T., , S.C.; Tata Iron & Steel Co. vs State, ; and Best & Co. vs C.I.T.,(1966) , S.C. We do not think these cases are of assistance.
The first two cases dealt with the question as to when profits and gains can be said to accrue or arise in a manufacturing business and the third held that when a receipt is a composite one of capital and revenue nature, it is open to the Revenue to apportion the same and bring the latter to tax.
These are situation in which the taxable element is severable.
Under the rules presently under consideration also, situations are conceivable where such severance is implicit.
For instance, suppose the cotton purchased is utilised partly for manufacture of cloth that is taxable and part for manufacture of cloth that is not taxable or partly for the manufacture of yarn which is taxable and is sold and partly for manufacture of cloth which is not taxable.
In these instances, it is clear that only some of the cotton is utilised for the first purpose and some for the second purpose and so only the purchase tax paid in respect of the quantity utilised for the first purpose will be eligible for set off.
But the type of user with which we are concerned is a composite one in which it is not possible to correlate any part of the purchased goods as having gone in for the purpose of manufacture of taxable goods.
The position is picturesquely brought out in 822 the case of Bharat Petroleum.
The entire sulphuric acid purchased has no doubt been used in the manufacture of kerosene though perhaps not a drop of acid clings to the kerosene manufactured.
Equally, the entire sulphuric acid has gone into the composition of the acid sludge.
The 3048.760 M.T. of acid have dissolved the impurities in the crude oil and conglomerated with them to constitute 3541.485 M.T. of acid sludge.
Having regard to the nature of the interactions here, it is incontrovertible that the entire sulphuric acid purchased has gone into the manufacture of the sludge.
The rules do not require that the purchased goods must have been used only for the manufacture of taxable goods for sale.
In this situation, it is not possible to cut down the quantum of relief clearly outlined in the rule on the basis of some general principle claimed to underlie the provision.
As Sri Bobde rightly pointed out, the basis for the relief provided is not very clear cut.
Various reliefs have been provided in a group of rules which come in for application in various situations.
The relief may be based on the principle that the manufactured product is taxed either in the hands of the same assessee or in someone else 's hands, or that the manufactured goods are exported which may yield no tax but earn foreign exchange, or even that the purchases are utilised for manufacture of goods in the State thus contributing to the industrial development of the State.
It is, therefore, difficult to read into the provision a quantitative correlation of the goods resulting in a taxable turnover and the purchases of raw materials on which tax has been paid.
In this background, the straight forward answer to the question raised lies in the literal interpretation of the language of the rules without straining to discover some doubtful principle for denying relief.
For the above reasons, we agree with the view taken by the High Court and followed by the Tribunal and dismiss these appeals.
We, however, make no order regarding costs. [/INST] The assessee Oil refinery, predecessor in interest to the respondent Corporation in one of the appeals had registered itself as a dealer under the Bombay Sales Tax Act, 1959.
During the Calendar year 1961, it had purchased sulphuric acid from a chemical company for processing and refining crude oil and manufacturing kerosene for a marketing company.
On the sulphuric acid so purchased sales tax was recovered from it by the chemical company.
While the refined kerosene which was not taxable upto 31.3.1961 was sold by the marketing company, the acid sludge yielded in the purification process was sold by the refinery.
The refinery paid sales tax on the acid sludge sold by it, and claimed a set off (and a refund, if need be) of the sales tax paid by it on its purchase of sulphuric acid, on the ground that all the conditions set out in clause (e) of Rule 41 of the Bombay Sales Tax Rules, 1959 were fulfilled, viz., it was manufacturer within the meaning of Section 2 (17) of the Act, that it was also a registered dealer, that it manufactured taxable goods for sale, that while acid sludge was taxable throughout the year, kerosene was taxable with effect from 1.4.1961 onwards and that tax was recovered on the raw material purchased by it by the chemical company.
808 The Sales Tax Officer allowed the set off only partly.
On appeal, the Appellate Assistant Commissioner held that the assessee was entitled to no set off at all under Rule 41 since what was manufactured by the assessee was kerosene and not acid sludge, and the kerosene was sold not by the assessee manufacturer, but by some other company.
The Appellate Tribunal, however, allowed the assessee 's claim in full and on reference this was upheld by the High Court.
The respondent Cotton Mill in the other appeals purchased raw unginned cotton from agriculturists and unregistered dealers during periods 1.7.73 to 30.6.74 and 1.7.74 to 30.6.75 and paid sales tax on the raw cotton so purchased.
The cotton was ginned yielding place to ginned cotton and cotton seed.
The respondent manufactured yarn and cloth from the ginned cotton.
The cotton waste and yarn waste obtained in the course of manufacture were also sold by the assessee.
It paid sales tax on the yarn and cotton waste sold by it and claimed a set off, under 41 A of the Rules, of the sales tax paid on the purchase value of the entire raw cotton purchased by it.
The Sales Tax Officer allowed a set off of only part of the purchase tax paid on the raw cotton purchased by the assessee proportionate to the extent of yarn sales.
On appeal, the Appellate Tribunal allowed a set off of the entire purchase tax paid on the raw cotton, machinery and other purchases, which had been used in the process of manufacture of cotton waste.
It, however, directed that the deductions should be so allowed as not to result in a double deduction of the same amount of purchase tax.
In the appeals, by Special leave, before this Court, on behalf of the State Government, it was contended that Rules 41 and 41 A were intended to give relief to a dealer in respect of purchase of goods which were used in the manufacture of taxable goods for sale, that the manufactured goods, viz., pure kerosene was neither sold by the respondent so as to attract sales tax in his hands nor, was it liable to sales tax at all for the first three months, and the cotton purchased on payment of tax was used for the manufacture of cloth which was not liable to sales tax, and that a set off could not be allowed merely because a by product or waste product, viz., acid sludge and cotton waste was sold for a nominal turn over, which was subject to tax, and that the set off should be split up proportionately and allowed only to a proportionate extent, on the basis of the respective 809 turnover of the taxable and non taxable goods, and an apportionment of such nature was implicit in a tax law and was also in consonance with the object and purpose of the rules.
On behalf of one of the respondents it was contended that under Rule 41 it was not a requirement that the manufactured goods had to be sold by the manufacturing dealer himself and that the sulphuric acid purchased was wholly used in the manufacture of two items kerosene and acid sludge one of which, viz., the sludge, was taxable and also subjected to tax, and the amount of set off was specified in the rule itself as the amount of purchase tax paid on the goods so used, and could not be scaled down proportionately merely because the turnover of the taxable goods was insignificant.
The other respondent adopted these contentions.
Dismissing the appeals, this Court, HELD: 1.1 The assessees are entitled to a set off of the entire tax paid by them on the purchases of sulphuric acid and cotton respectively.
The only condition under the rule is that the goods purchased on payment of tax should have been used in the manufacture of taxable goods for sale.
Their concurrent user for the manufacture of another item of goods which may or may not be taxable is immaterial though kerosene was also taxable for nine months in the year and yarn was also manufactured and it was subject to tax.
Commissioner of Sales Tax vs Burmah Shell Refineries Limited, (1978) 41 S.T.C. 337, referred to. 1.2.
The principle of apportionment on the basis of turnovers of various items of goods manufactured and restriction of the quantum of set off to a proportion based on the turnover of taxable goods to the total turnover cannot be accepted.
No doubt under the rules, situations are conceivable where severance of taxable element is implicit, but the type of user in the instant case is a composite one, in which it is not possible to correlate any part of the purchased goods as having gone in for the purpose of manufacture of taxable goods.
Anglo French Textiles vs C.I.T., , S.C.; Tata Iron & Steel Co. vs State ; and Best & Co. vs C.I.T. , S.C., distinguished.
810 1.3 In the instant case the entire sulphuric acid purchased has no doubt been used in the manufacture of kerosene though perhaps not a drop of acid clings to the kerosene manufactured.
Equally, the entire sulphuric acid has gone into the composition of the acid sludge.
Having regard to the nature of the interactions in the instant case,it is incontrovertible that the entire sulphuric acid purchased has gone into the manufacture of the sludge.
The rules do not require that the purchased goods must have been used only for the manufacture of taxable goods for sale.
Therefore, it is not possible to cut down the quantum of relief clearly outlined in the rule on the basis of some general principle claimed to underline the provision.
1.4 The basis for the relief provided is not very clear cut.
Various reliefs have been provided in a group of rules which come in for application in various situations.
The relief may be based on the principle that the manufactured product is taxed either in the hands of the same assessee or in someone else 's hands, or that the manufactured goods are exported which may yield no tax but earn foreign exchange, or even that the purchases are utilised for manufacture of goods in the State thus contributing to the industrial development of the State.
It is, therefore, difficult to read into the provision a quantitative correlation of the goods resulting in a taxable turnover and the purchases of raw materials on which tax has been paid.
1.5 Rule 41 does not contemplate that the goods purchased by the dealer should be used for manufacture of taxable goods for sale by him.
No such restriction can be read into this rule.
2.1 Where a subsidiary product is turned out regularly and continuously in the course of a manufacturing business and is also sold regularly from time to time, an intention can be attributed to the manufacturer to manufacture and sell the subsidiary product.
State of Gujarat vs Raipur Manufacturing Co. Ltd., (1967) 19 S.T.C. 1, relied on.
2.2 The assessees in the instant case do purchase sulphuric acid and unginned cotton for use in a manufacturing process, which yield not only kerosene and yarn/cloth, but also acid sludge and cotton waste.
There is also no evidence to suggest that acid sludge is not a commercial 811 commodity with a market but an item of waste. </s> |
<s>[INST] Summarize the following judgement: l Appeals Nos. 181 and 181 A of 1955.
Appeals from the judgment and decree dated September 30, 1952, of the former Nagpur High Court in Second Appeals Nos. 699 and 700 of 1946, arising out of the judgment and decree dated February 21, 1946, of the court of First Additional District Judge, Nagpur, in Civil Appeals Nos.
22 A and 23 A of 1946, against the judgment and decree dated January 2, 1945, of the Court of Second Subordinate Judge, Nagpur, in Civil Suit No. 143 A of 1944.
H. J. Umrigar, Ratnaparkhi A. O and Shankar Anand Zinj arde,for the appellants.
W. section Barlingay and B. H. Dhebar, for the respondent.
February 2.
The Judgment of Jafer Imam and section K. Das, JJ., was delivered by section K. Das, J. Kapur, J., delivered a separate judgment.
section K. DAS, J.
These two appeals arise out of a litigation which has had a chequered career in the courts below.
The short facts are these.
The suit out of which the appeals arise was instituted on January 13, 1941, but the plaint was amended on May 4, 1942.
The amended plaint was to the effect that in or about the year 1905 the defendant, the then Provincial Government of the Central Provinces and Berar, Nagpur, " opened up " an area known as the Craddock Town Area which was originally called the Sitabuldi Extension Area or Dhantoli Area.
Due to the scarcity of residential accommodation in the city of Nagpur, the then Provincial Government along with some prominent members of the Nagpur Municipal Committee devised a scheme to extend residential accommodation by acquiring agricultural land and making it available for residential purposes.
With that object in view, the area in question was acquired and building sites of the average size of about 10,000 sq.
each were carved out.
These were leased out on a premium of Rs. 350 and an annual rent of Rs. 3 8 0 each.
The indenture of lease in each case contained a clause to the following effect: 183 " III.
And the lessor does further covenant that he will at the end of the term of 30 years hereby granted and so on from time to time thereafter at the end of each successive further term of years as shall be granted at the request of the lessee execute to him a renewed lease of the land hereby demised for the term of 30 years; Provided that the rent of the land hereby demised shall be subject to such fair and equitable enhancement as the lessor shall determine on the grant of every renewal: Provided also that every such renewed lease of the land shall contain such of the covenants, provisions and conditions in these presents contained as shall be applicable and shall always contain a covenant for further renewal of the lease.
" One of the leases was executed on May 24, 1909, and some other leases near about that year.
By the year 1939 the first 30 years ' period of some of the leases came to an end.
The original plaintiffs, who were two in number and who sued in their individual right as also representing the members of an association known as the Craddock Town Plot holders Association alleged that on the expiry of the terms of the leases in question, during which period some of the lessees had built houses on the leasehold property, the then Provincial Government proposed an enhancement of Rs. 21 14 0 from Rs. 3 8 0 as annual rent and also the insertion of some new terms in the renewed deeds of lease.
The plaintiffs, on the contrary, said that Rs. 7 per plot was the fair and equitable enhancement.
Various representations to the relevant authorities having proved unavailing, the plaintiffs instituted the suit in which they prayed (a) that the enhancement of rent from Rs. 3 8 0 to Rs. 21 14 0 per plot was not fair and equitable within the meaning of el.
III of the deed of lease; (b) that the offer of Rs. 7 as annual rent made by the association was fair and reasonable; (c) that the defendant do insert in the renewed deeds of lease only such conditions as were to be found in the original deed and not to add to them to the detriment of the lessees ' interest; and (d) that in the event of this Court not agreeing that 184 Rs. 7 was a fair and, reasonable rent, a fair and equitable rent should be fixed by it.
The suit was contested by the defendant on several grounds, with most of Which we are not now concerned.
The learned Subordinate Judge of Nagpur, who dealt with the suit in the first instance, took up certain preliminary issues for decision and by a judgment dated April 13, 1942, he disposed of those preliminary issues.
One such issue material for our purpose was in these terms: ,In case of dispute as to what is fair and equitable rent, has the civil court no right to, determine what is fair rent?" On this preliminary issue, he found " that under the terms of cl.
III of the indenture of lease, the defendant was entitled to fix a fair and equitable rent; but the civil court has jurisdiction to enquire whether the rent fixed by the defendant is fair and equitable within the meaning of cl.
III ".
We need not refer to the other preliminary issues on which the learned Subordinate Judge gave his decision, because those issues no longer survive.
On the disposal of the aforesaid preliminary issue, the plaint was amended and some more lessees were added, the 30 years ' period of whose leases had also expired ; therefore the position was that the plaintiffs were those lessees, the 30 years ' period of whose leases had expired and as respects the renewal of whose leases the defendant had proposed an enhancement of Rs. 21 14 0.
The defendant claimed that it had been very reasonable in fixing the enhanced rent and it further claimed the right of withdrawing the offer of Rs. 21 14 0 and of making a fresh demand at a much higher rent if the lessees did not agree to the terms originally proposed by the defendant.
The defendant further denied that the offer of Rs. 7, that is, twice the original rent, made by the lessees was a reasonable and fair enhancement.
After the disposal of the preliminary issues the learned Subordinate Judge proceeded to try the suit on merits and on January 2, 1945, he found on issue No. 4 that Rs. 14 per year would be the fair and equitable enhanced rent for each plot of about 10,000 sq.
and he fixed that rent for the next term of 30 years to 185 which the lessees were entitled under cl.
III; he further directed the grant of a rebate of 25 per cent.
to those lessees who agreed to a renewal for a term ending in 1948.
From the decision of the learned Subordinate Judge two appeals, one by the plaintiffs, and the other by the defendant, were taken to the District Judge and they were heard by the Additional District Judge of Nagpur, who by his Judgment dated February 21, 1946, affirmed the decision of the learned Subordinate Judge that under cl.
III of the indenture of lease it was open to the Subordinate Judge to determine what was the fair and equitable rent.
The learned Additional District Judge, however, reversed the finding of the learned Subordinate Judge as to the quantum of the fair and equitable rent.
He came to the conclusion that the enhancement of rent should not exceed Rs. 7, as any increase over that amount would not be a fair and equitable one within the meaning of cl.
III of the indenture of lease.
From the decision of the learned Additional District Judge, two appeals were taken to the then High Court of Judicature at Nagpur by the defendant Government.
The appeals were first placed before a single Judge who directed that they should be heard by a Division Bench.
The appeals were then heard by B. P. Sinha, C. J. (as he then was) and Mudholkar, J.
The learned Chief Justice came to the conclusion that the suit must fail on the ground that the authority of the court had been invoked in a matter which really lay in contract and the civil court had no jurisdiction to determine the fair and equitable rent.
Mudholkar, J., came to a contrary conclusion and held that the suit was maintainable and the courts below could determine the fair and equitable rent.
On the question of what should be the fair and equitable rent, the learned Chief Justice gave no finding except saying that " the decision of the lower appellate, court on the question of assessment of fair and equitable rent was not satisfactory, because it had gone more by the rule of the thumb than upon the evidence adduced in the 24 186 case or upon any other sound basis.
" Mudholkar, J., however, said that he saw no adequate ground for differing from the view taken by the lower appellate court with regard to the quantum of fair and equitable rent.
On this difference of opinion between the learned Chief Justice and Mudholkar, J., the case was referred to a third Judge, namely, Hemeon, J., who agreed with the view of the learned Chief Justice that, on a proper construction of cl.
III of the indenture of lease, the civil court had no jurisdiction to determine the fair and equitable rent and the parties had consciously and deliberately stipulated to abide by the lessor 's fixation of a fair and equitable enhancement of rent; and in that view of the matter, he expressed no opinion as to what should be the fair and equitable rent.
In accordance with the opinion of the majority of Judges, the appeals in the High Court were allowed and the suit was dismissed with costs.
The plaintiffs, who are the appellants here, then asked for a certificate of fitness under article 133(1)(c) of the Constitution of India.
The High Court granted the necessary certificate by an order dated October 23, 1953, and the present appeals have been filed in pursuance of that certificate.
The area in question being now within the State of Bombay, the State of Bombay has been substituted as the respondent before us.
The principal question before us is one of construction of el.
III of the indenture of lease.
On behalf of the appellants it has been argued that the construction put upon the clause by the majority of Judges in the High Court is not correct inasmuch as it gives no effect to the words " fair and equitable enhancement " occurring therein.
On behalf of the respondent, it has been submitted that the expression " subject to such fair and equitable enhancement as the lessor shall determine " is tantamount to saying " subject to such enhancement as the lessor shall determine to be fair and equitable " ; in other words, the argument of learned counsel for the respondent is that the parties had deliberately chosen to abide by whatever was determined to be fair and equitable enhancement by 187 the lessor.
Mudholkar, J., had proceeded on the footing that the primary intention of the parties was that the enhancement must be fair and equitable and the adjectival clause ,as the lessor shall determine " following the word I enhancement ' being subordinate to the primary intention of the parties could be ignored.
Learned counsel for the respondent has very strongly submitted that this view is not correct.
We think that the clause should be read as a whole and every effort should be made to give effect to all the words used therein.
The relevant portion of the clause states " such fair and equitable enhancement as the lessor shall determine ".
If the construction is that whatever the lessor determines as fair and equitable enhancement must be treated as binding on the lessee, then the words 'fair and equitable ' are not given the meaning and sense which they have according to the ordinary acceptation of those words.
I Fair ' and I equitable ' mean fair and equitable in fact, and not what the lessor subjectively considered to be fair and equitable.
The words I fair ' and 'equitable ' both mean I just or unbiased ' (see the Concise Oxford Dictionary, 4th Edn., p. 426 and p. 402).
If the intention was to leave the enhancement to the subjective determination of the lessor, the clause would have more aptly said 'such enhancement as the lessor shall determine '.
We consider that the words I fair and equitable ' must be given their due meaning and proper effect.
The question then asked is what meaning is to be given to the words 'such. as the lessor shall determine '.
It is indeed true that these words constitute an adjectival clause to the expression ' fair and equitable enhancement ', but we consider that the meaning of the adjectival clause is merely this: the lessor must first determine what it considers to be fair and equitable enhancement; but if in fact it is not so, it is open to the lessee to ask the Court to determine what is fair and equitable enhancement.
We do not think that on a proper construction of the clause, the intention was to oust the jurisdiction of the Court and make the determination of the enhancement by the lessor final and binding on the lessee.
We think that 188 the conclusion at which Mudholkar, J., arrived on this point was correct, though not exactly for the reasons given by him.
If the construction stated above is the correct con struction, then no further difficulty is presented by cl. 111.
The learned Judges of the High Court unanimously expressed the view that the lease 'Was not void for uncertainty, and in that view we concur.
There is authority in support of the view that a covenant to settle land I at a proper rate ' or I upon such terms and conditions as should be judged reasonable ' is not void for uncertainty (see The New Beerbhoom Coal Company Limited vs Boloram Mahata and others (1) and Secretary of State, for India in Council vs Volkart Brothers (2)).
In the former case, Sir Barnes Peacock who delivered the judgment of their Lordships said : " The High Court affirmed the decision, but not for reasons which their Lordships consider to be correct.
They affirmed it upon the ground that it was impossible to determine what was a reasonable rate.
Their Lordships cannot think that in the present case the Court, upon a proper inquiry, would have been unable to determine it.
There might have been considerable difficulty in fixing the rate; but difficulties often occur in determining what is a reasonable price or a reasonable rate, or in fixing the amount of damages which a man has sustained under particular circumstances.
These are difficulties which the Court is bound to overcome.
" Our attention has been drawn to some English decisions in which the point arose if a contract which appoints a way of determining the price can be specifically enforced.
There are two lines of decisions.
In Milnes V. Grey (3) the contract provided that the price shall be valued by two different persons to be nominated and if they happened to disagree then those two persons shall choose a third person whose determination shall be final.
The question was whether such a contract could be specifically performed and the (1) (1880) L.R. 7 I.A. 107.
(2) Mad.
(3) (18O7) ; ; 189 answer given by the Master of the Rolls can be best put in his own words: " The more I have considered this case, the more I am satisfied, that, independently of all other objections, there is no such agreement between the parties, as can be carried into execution.
The only agreement, into which the Defendant entered, was to purchase at a price, ' to be ascertained in a specified mode.
No price having ever been fixed in that mode, the parties have not agreed upon any price.
Where then is the complete and concluded contract, which this Court is called upon to execute ? " In Taylor vs Brewer (1) a claim to compensation was founded on the resolution of a committee which provided that" such remuneration be made as should be deemed right ".
It was held that the engagement was merely an engagement of honour and no claim could be made on it.
An example of the other line of decisions is furnished by Gourlay vs The Duke of Somerset (2).
In that case the agreement provided for " all such usual and proper conditions, reservations, and agreements, as shall be judged reasonable and proper by John Gale, land surveyor, and in case of his death, by some other proper and competent person to be mutually agreed upon by the said parties ".
The plaintiff came to court and the question arose whether the reference to settle the lease to be made by the defendant to the plaintiff should be to the Master or to Mr. Gale, the defendant contending that the court decreeing specific performance will take the whole subject to itself and determine by its own officer, not by a particular individual, what are usual and proper covenants.
Sir William Grant, Master of the Rolls, said: " When the agreement is, that the price of the estate shall be fixed by arbitrators, and they do not fix it, there is no contract as the price is of the essence of a contract of sale, and the Court cannot make a contract, where there is none; but, where the Court has determined, that the agreement is binding and (1) ; ; (2) ; ; 190 concluded and such as ought to be executed, it does not require foreign aid to carry the details into execution.
Gale 's agency is not of the essence of this con tract. .
If the parties had gone to Gale, and got him to settle a lease, and one of them had objected to the covenants as improper, and the Bill had been filed by the other, the Court would have inspected the lease; and if it were found unreasonable, would not have decreed an execution of the agreement.
" We consider that the present case comes within the rule laid down in Gourlay vs The Duke of Somerset (1).
Learned counsel for the respondent placed strong reliance on Collier vs Mason (2 ).
That was a case in which the defendant had agreed to purchase a property at a valuation to be made by AB; the Court, though it considered AB 's valuation very high and perhaps exorbitant, 'decreed specific performance, there appearing neither fraud, mistake or miscarriage.
The case was decided on the footing that the contract provided that the property shall be purchased at such a price or sum as should be fixed by reference to AB, and it was pointed out that there being no evidence of fraud, mistake or miscarriage the parties were bound by the contract they had made.
There was no question in that case of the court stepping in, under the terms of the contract, to determine what was fair and reasonable.
Learned counsel for the respondent also relied on Tekchand Kapurchand vs Mt. Birzabai (3).
The principle laid down therein was that a contract binds the parties to it and their representatives and the court 's power to interfere with contracts is limited to such cases as fraud, undue influence or mistake and relief against penalty or forfeiture.
Indeed, we agree that if the contract in the present case was that whatever the lessor determined as the enhanced rent would be binding on the parties, then the court has no power to interfere with that contract unless it is vitiated by fraud, undue influence, mistake, etc.
If, however, the proper construction of el.
III of the contract is what (1) ; ; (2) ; ; (3) A.I.R. 1942 Nag.
191 we have held it to be, then the contract itself provides that the enhanced rent though determined by the lessor in the first instance, must be fair and equitable.
On such a construction the determination of the enhancement by the lessor would not be final and it would be open to the court to determine what is fair and equitable enhancement.
We say this with respect, but the Patna decisions (Secretary of State for India in Council vs Nistarini Annie Mitter (1) and Secretary of State vs Babu Rajendra Prasad (2)), referred to by the learned Chief Justice in his judgment are not in point.
Those decisions were not concerned with interpreting a clause in the agreement like the one before us and it was rightly held that in the absence of a contract between the parties, the court had no power to impose upon the parties a bargain not of their own making.
For the reasons given above, we hold that the decision of the majority of the learned Judges of the High Court with regard to the interpretation of cl.
III of the indenture of lease is not correct and these appeals must go back for a fresh hearing by the High Court in accordance with law for determination of what should be the fair and equitable enhancement.
On that point there was no concluded finding by the majority of the learned Judges of the High Court, but learned counsel for the appellants submitted that the finding of the learned Additional District Judge on the quantum of fair and equitable enhancement was a finding of fact and therefore binding in second appeal.
At this stage we express no opinion on such a submission, nor do we express any opinion whether the courts below or any of them have gone wrong in principle in determining what should be the fair and equitable enhancement and whether on merits it should be Rs. 7 or Rs. 14 or Rs. 21 14 0, or even a higher sum.
All these points must be considered afresh by the High Court.
There is a further point which must also be dealt with in the High Court.
The learned Subordinate Judge decided on issue No. 7 with regard to the conditions for a renewal of the lease that the Government (8) Pat. 446.
(9) A.I.R. 1937 Pat.
192 were not entitled to make any alterations in the clauses relating to re entry and notice of demand as contained in cl.
II of the original lease.
The learned Addl.
District Judge said: " As regards the new form of lease, it is clear that the clause regarding building would be deleted if it is found to be superfluous or redundant.
While that in respect of right of lessor to enter on the land without a demand of ground rent (in case of failure to pay it on the appointed date) it is not necessary to interfere as it would amount to making a contract for the parties.
It is better to leave the matter to the parties and their legal advisers.
" Whether the view of the learned Subordinate Judge or of the District Judge is correct or not was not considered by the High Court and as the appeals are going back on remand this point should also be dealt with by the High Court.
Accordingly, we allow the appeals and set aside the judgment and decree of the High Court dated September 30, 1952.
The appeals must go back for a fresh hearing by the High Court in accordance with law and in the light of the observations made above.
In the peculiar circumstances of this case, there will be no order for costs of the hearing of the appeals in this Court.
Costs incurred in the two courts below and costs incurred in the High Court, both before and after remand, will be dealt with by the High Court when finally disposing of the appeals.
KAPUR, J.
I regret I am unable to agree in the proposed judgment that it is open to the Court in the circumstances of this case to go into the question of the valuation and to determine as to what, in its opinion would be fair and equitable enhancement in rent and to interfere with the enhancement as determined by the lessor under the terms of the indenture of lease executed on May 24, 1909.
The original lease was for a term of 30 years with a provision for renewal for another 30 years with the proviso that the rent of the land demised was " subject to such fair and equitable enhancement as the lessor shall determine 193 The facts are set out in the judgment of my learned brother, section K. Das, J., and it is not necessary to repeat them.
Plots of land measuring about 10,000 sq.
ft. were given on lease by the Government to the appellants and others, for which the premium to be paid was Rs. 350 and the rent Rs. 3 8 0 per annum or Re. 1 per cent.
of the premium.
Lease deeds were executed in 1909 under clause III of which the lessor determined the enhanced rent at Rs. 21 14 0 and thus raised it from Rs. 3 8 0 per plot to Rs. 21 14 0.
The appellants brought a suit for declaration that the enhancement proposed was excessive and the fair and equitable rent should be Rs. 7 per plot and if the Court was of the opinion that Rs. 7 was not a fair and equitable rent then it should fix such sum as it considered fair and equitable.
The respondent pleaded that such a suit was incompetent.
The question for decision is what is the effect of using the adjectival words " fair and equitable ".
For the appellants it was argued that because in the lease deed the enhancement contemplated was qualified by the words " fair and equitable " the determination became clothed with a qualification which made it subject to judicial review and determination because it was for the Court to say whether the determined enhancement conformed to the standard prescribed in the disputed clause or not.
The respondent contended on the other hand that the rule applicable to determinations by valuers is that it is conclusive and cannot be overhauled except upon proof of fraud and imposition of gross misconduct.
Thus according to the submission of the appellant the clause in dispute means such enhancement as the lessor shall determine and which determination shall, in the opinion of the Court, be fair and equitable and according to the respondent it means that the amount of enhancement shall be fair and equitable but what is fair and equitable shall be determined by the lessor, such determination being conclusive.
The appellants do not contend that the lessor is not a valuer and that if the qualifying words " fair and equitable " had not been used then 25 194 the enhancement determined would not be conclusive but the contention is that by using these words the quality and the quantity of enhancement is no longer in the sole determination of the lessor but the final determination must be of the Court because otherwise any fanciful amount would have to be accepted as fair and equitable and that the parties intended that the lessor was not the final determiner of the quality and quantity of enhancement and his determination was not conclusive but the lessee if dissatisfied could get the matter reviewed by the Court.
In my view the correct interpretation to be put on this clause of the lease deed is what is contended for by the respondent.
The lessor was given the authority to determine the enhancement but such enhancement was to be fair and equitable and what would be fair and equitable in any particular case was also to be determined by the lessor.
The lease deed entered into between the parties is dated May 24, 1909.
In the first clause are given the usual obligations of the lessee as to payment of rent, the purpose of the building to be constructed, the period in which it was to be completed, the design of the building and keeping it in proper condition.
In the second clause of the agreement the lessor covenanted peaceful possession subject to the right of the lessor to recover rent as arrears of land revenue and other remedies for non observance of the obligations contained in the first clause with a provision for re entry upon failure of certain conditions.
I In the third clause the lessor covenanted for grant of lease for further periods of 30 years at the request of the lessee with the following proviso : " Provided that the rent of the land hereby demised shall be subject to such fair and equitable enhancement as the lessor shall determine on the grant of every renewal ".
This is the disputed clause.
Now it appears that this further covenant was for the benefit of the lessee and the reservations made are couched in such language which left the discretion in regard to enhancement of rent to the lessor.
What the enhancement was to be and what would be fair and equitable was left to the 195 determination of the lessor.
It is not an unusual provision in a lease for a long term of years with provision for renewal to leave the question of rent to be determined by the lessor or an outside valuer and it s would not, in my respectful opinion, be a correct interpretation to say that the enhancement by a valuer would be unchallengeable if the adjectival words " fair and equitable " are not used but would be subject to court 's review if these words are employed.
That is going contrary to the very notion of valuations and their legal incidence.
The extent of the power of courts over valuations by valuers has been stated in text books and in certain decided cases.
In Williston on Contracts, Vol. 3, section 802, at p. 2252 the law is stated thus: " In the absence of fraud or mistake, the price fixed by aGreed valuers is conclusive upon the parties.
Though an excessively large or an unreasonably small price involves some element of penalty or forfeiture, the possibility of this is not enough to overcome the express terms of the contract in the absence at least of fraud, gross mistake, or such arbitrary conduct as is outside what the parties could have reasonably contemplated ".
And it is not a far step to say that in all cases of valuation the parties do contemplate a fair and equitable amount to be fixed or determined and not any price fanciful or otherwise.
In Collier vs mason (1) the defendant agreed to purchase a property at a valuation to be made by a third party.
The defendant repudiated the value as exorbitant and refused to complete his contract and the plaintiff vendor instituted a suit for specific performance.
The Court held that the valuation was very high and perhaps exorbitant but it decreed specific performance of the contract as there appeared no fraud, mistake or miscarriage.
It was said by the Master of the Rolls " It may have been improvident as between these parties to enter into a contract to buy and sell property at a price to be fixed by another person, but that cannot avoid the contract.
(1) ; ; 196 Here the referee has fixed the price, which is said to be evidence of miscarriage, but this Court, upon the principle laid down by Lord Eldon, must act on that valuation, unless there be proof of some mistake, or some improper motive, I do not say a fraudulent one; as if the valuer had valued something not included, or had valued it on a wholly erroneous principle, or had desired to injure one of the parties to the contract ; or even, in the absence of any proof of any of these things, if the price were so excessive or so small as only to be explainable by reference to some such cause; in any one of these cases the Court would refuse to act on the valuation ".
It does not appear that in that case the words "fair and equitable " were used but that is implied in every reference for valuation to be made by an agreed referee.
He cannot act in a fanciful or a corrupt manner or with puerile motives nor can he make a valuation which be (toes not consider to be fair and equitable.
In cases of transfer of property the form of contract to buy and sell may make a provision and very often such a provision is made that the price payable shall be that which a certain valuer shall fix.
Such a requirement is an express condition or a condition implied in fact qualifying the obligation of the buyer to pay the price and such a contract cannot be performed unless the valuation first takes place.
Such a condition is a necessary condition or an inherent condition.
Williston on Contracts, Vol. 3, section 800 ; Firth vs Midland Railway Co. (1).
In such contracts it must be assumed that the parties laid weight on the parti cular individuality of the valuer.
Accordingly if the valuer dies or refuses to act the buyer cannot be compelled to pay the price.
A similar condition is common in long term leases and in provisions for renewal of leases and where the parties choose to abide by the determination of a valuer and that valuation is not acceptable to one of the parties, Courts will not interfere, the only exception being fraud, mistake or misconduct.
In Vickers vs Vickers (2) which was a suit for specific (1) , 112.
(2) 197 performance of a contract enforcing an option of purchase where the stock was to be valued in the usual way by two valuers and one of the valuers was not allowed to proceed, it was held that there was no contract between the parties which the Court could specifically enforce.
Sir W. Page Wood, V. C., said at p. 535: " If a nomination of that kind fails, or if the two persons named do not make their award, this Court has said there is no constat of the price; the contract is not a complete contract, and there is nothing on which it can act ".
In Weekes vs Gallard (1) where a contract was entered into for the sale of certain property, the price to be fixed by two valuers who afterwards valued the property at inadequate price, it was held that in the abence of fraud or collusion on the part of the valuer, the buyer was entitled to specific performance of the contract.
Lord Romilly said : " The court has really no discretion in the matter.
The discretion of the court is bound, as Lord Ellenborough says, by fixed rules.
In one case of this kind a house and furniture were valued at three times their value, and yet there was a decree for specific performance.
The only defence to such a suit would be fraud or collusion ".
A valuer may, in one sense, be called an arbitrator but not in the proper legal sense of the term.
Per Lindley, L. J., In re Carus Wilson & Greene (2).
But there is this difference between arbitration and valuation that the object of the former is to settle a dispute which has arisen and of the latter to avoid a dispute arising.
The arbitrator is called in to settle judicially any matter in controversy between the parties and the valuer by the exercise of his knowledge and skill has to make a valuation the object being to prevent disputes from arising.
A valuer like an arbitrator is required to act fairly and diligently.
He cannot act in a fanciful or a perverse manner and his determination must be fair and equitable whether the authority given to him uses these words or not.
But once a (1) (2) 198 valuation is properly made the valuation is conclusive as between the parties and the Court in the absence of fraud, mistake or collusion can no more go into whether it is fair and equitable than a Court can sit in appeal against the award of an arbitrator as to what would be fair amount of damages in a particular case of breach of contract.
See also Emery vs Wase (1).
The decision in Gourlay vs Somerset (Duke of) (2) was relied upon by the appellants in support of their case.
That does not, in my opinion, deal with the matter now before us.
There the suit was for specific performance of an agreement to grant a lease.
One of the conditions of the contract was that the farm was to be let on conditions, reservations and agreements " as shall be judged reasonable and proper by John Gale .
" The Court was of the opinion that Gale 's agency was not of the essence of the contract and that it could not be contended that the contract was to end if Gale refused to settle a lease.
The Court said : " Suppose the reference is made to Gale ; is his decision liable to exception ? If it is, the decision with regard to the propriety of the lease will ultimately be that of the Court.
If not, the Court may be carrying into execution a lease, which it may think extremely unreasonable and improper.
If the parties had gone to Gale, and got him to settle a lease, and one of them had objected to the covenants as improper and the Bill had been filed by the other, the Court would have inspected the lease; and if it were found unreasonable, would not have decreed an execution of the agreement ".
That was a case relating to covenants other than fixation of price.
With regard to the valuation or fixation of price it was said that if an agreement was that the price of the estate would be fixed by arbitrators and they did not fix it there was no contract of sale as the contract as to the mode of fixing the price was of the essence of the contract of sale and the Court could not make a contract where there is none.
Similarly it may be said that where the valuation is fixed by a valuer (1) , 847, 848 ; ; (2) ; ; 199 the court will hold it conclusive in the absence of fraud or mistake or misconduct.
The Court will not enter into the propriety of the valuation made or substitute its own valuation in place of that determined by the valuer because that will not be an execution of the contract of the parties but making a contract for them.
The Transfer of Property Act contains no provision by which the Court is empowered to fix rent of premises demised although by legislation in the case of agricultural holdings certain tribunals have been set up to make such determinations.
The appellant relied on The New Beerbhoom Coal Company vs Boloram Mahata (1).
The covenant between the parties was: Within that aforesaid mouzah we will not give a pottah, let give settlement to anybody.
If you take possession according to your requirement of extra land over and above this pottah, and we shall settle any such lands with you at a proper rate ".
A suit was brought by the lessees against the lessor to obtain specific performance to execute a permanent lease of a large area of land claiming benefit of the covenant above given and contended that the defendants were bound to let them the land whenever called upon to do so.
The appellant company stated that they had negotiated with the lessor for lease of the adjoining land (not of land which they had agreed to lease) upon the terms that they were to pay Rs. 1 8 0 for waste land and Rs. 3 for cultivable land and the suit was for the grant of specific performance of the agreement by compelling the lessor to grant them the lease at those rates and if the Court would not order the lease at those rates then at such rates as the Court shall think reasonable.
The trial Court held that apart from 51 bighas mentioned in the covenant the lessor could not be compelled to grant a lease for the remaining land of the mouzah.
The High Court affirmed this decision but on the ground that it was impossible to determine what was the reasonable rate.
Sir Barnes Peacock said: (1) (1880) L.R. 7 I.A. 107.
200 " Their Lordships cannot think that in the present case the court, upon a proper inquiry, would have been unable to determine it (proper rent).
There might have been considerable difficulty in fixing the rate ; but difficulties often occur in determining what is a reasonable price or a reasonable rate, or in fixing the amount of damages which a man has sustained under particular circumstances.
These are difficulties which the Court is bound to overcome ".
These observations of the Privy Council are relied upon by the appellants to support the argument that it is open to the Court to determine what the reasonable rate would be.
This was not a case where any question of valuation arose nor was it a case where a valuation made by a valuer was sought to be reviewed as not being proper and apart from the fact that the observations are mere obiter this case is no authority for saying that the determination of a valuer is subject to review by courts.
Another case which the appellant relied upon was The Secretary of State for India vs Volkart Brothers (1).
There, in a deed of lease granted for 99 years by the East India Company there was a clause for renewal for another like period on the lessee paying a sum of money and " upon such terms and conditions as should be judged reasonable ".
The Secretary of State assigned a major portion of the holding to a third party and Volkart Brothers before the expiry of the original lease period tendered the due amount and asked for renewal of the lease which the Secretary of State refused to renew and sued to eject the lessees and the latter sued for specific performance of the covenant for renewal.
It was held by a majority that the covenant was not unenforceable on account of uncertainty.
Krishnan, J., was of the opinion that such a covenant was too vague and uncertain and unenforceable because the clauses to be inserted in the contract were themselves uncertain and the contract could not be enforced.
Venkatasubba Rao, J., was of the opinion that if the parties would not agree to a reasonable rent the Court will intervene and fix it; The New Beerbhoom (1) Mad.
201 Coal Company vs Boloram Mahata (1) was relied upon.
Courts Trotter, C. J., was also of the opinion that the covenant was not too vague to be enforced.
But this again was a case not of interfering with the determination of a valuer but of specific performance of a contract of renewal and it was held that by taking evidence even a vague and indefinite covenant relating to renewal could be made definite.
In my opinion, therefore, the Court cannot go into the question of correctness or otherwise of the determination of the lease and the appeal should therefore be dismissed with costs.
By COURT.
In view of the opinion of the majority, the appeals are allowed, setting aside the judgment and decree of the High Court dated September 30, 1952.
No order as to costs of the hearing in this Court. [/INST] In 1909, for the purpose of residential accommodation, plots of land were given on lease by the Government to the appellants and others for which a premium of Rs. 350 and an annual rent of Rs. 3 8 0 for each plot had to be paid.
Clause III of the deed of lease in each case provided: " And the lessor does further covenant that lie will at the end of the term Of 30 years hereby granted and so on from time to time thereafter at the end of each successive further term of years as shall be granted at the request of the lessee execute to him a renewed lease of the land hereby demised for the term Of 30 years: Provided that the rent of the land hereby demised shall be subject to such fair and equitable enhancement as the lessor shall determine on the grant of every renewal: Provided also that every such renewed lease of the land shall contain such of the covenants, provisions and conditions in these presents contained as shall be applicable and shall always contain a covenant for further renewal of the lease." 181 By the year 1939 the first 30 years ' period of some of the leases came to an end, and the Government sought to enhance the annual rent from Rs. 3 8 0 to Rs. 21 14 0 per plot and also to insert some new terms in the renewed deeds of lease.
The appellants brought a suit inter alia for a declaration that the enhancement proposed was not, fair and equitable within the meaning of Clause III of the deed of lease, that the fair and equitable rent should be Rs. 7 per plot and that if the court was of the opinion that Rs. 7 was not a fair and equitable rent then it should fix such sum as it considered fair and equitable.
The respondent pleaded that such a suit was incompetent.
The question was whether the civil court had jurisdiction to enquire whether the enhancement of the rent determined by the lessor was fair and equitable within the meaning of cl.
III of the deed of lease, and whether, in any case, the lease was void for un certainty.
Held, (per jafer Imam and section K. Das, jj.), that the lease is not void for uncertainty; that the expression " fair and equitable " in the clause in question means fair and equitable in fact, and not what the lessor subjectively considered to be fair and equitable; and, that reading the clause as a whole and giving effect to all the words used therein, the meaning is that the lessor must first determine what it considers to be fair and equitable enhancement, but, if in fact it is not so, it is open to the lessee to ask the court to determine what is fair and equitable enhancement.
Accordingly, the suit was maintainable.
The rule laid down in Gourlay vs The Duke of Somerset, (18I5) ; ; , held applicable.
The New Beerbhom Coal Company Limited V. Boloram Mahata and others, (1880) L.R. 7 I.A. 107 and Secretary of State for India in Council vs Volkart Brothers, Mad.
595, relied on.
Collier vs Mason, ; ; and Tekchand Kapurchand vs Mt. Birzabai, A.I.R. 1942, Nag. 119, distinguished.
Per Kapur, J. The correct interpretation to be put on cl.
III of the deed of lease is that the lessor was given the authority to determine the enhancement of rent but such enhancement was to be fair and equitable and what would be fair and equitable in any particular case was also to be determined by the lessor.
The rule applicable to the present case is that relating to valuation or fixation of prices that where the valuation is fixed by a valuer the court will hold it conclusive in the absence of fraud or mistake or misconduct and the court will not enter into the propriety of the valuation made or substitute its own valuation in place of that determined by the valuer because that will not be an execution of the contract of the parties but making a contract for them.
Case law discussed. </s> |
<s>[INST] Summarize the following judgement: Appeal No. 869 of 1987.
From the Judgment and Order dated 22.12.1981 of the Orissa High Court in Original Judicature Case No. 412 of 1976.
WITH CA No. 870 of 1987 R.K. Garg and A.K. Panda for the Appellants.
C.S. Srinivasa Rao for the Respondent.
The Judgment of the Court was delivered by B.P. JEEVAN REDDY,J.
1.
These appeals raise the question whether it is permissible to the government to order compulsory retirement of a government servant on the basis of material which includes uncommunicated adverse remarks.
While the appellants (government servants, compulsory retired) rely upon the decisions of this court in Brij Mohan Singh Chopra, and Baidyanath Mahapatra; , , in support of their contention that it is not permissible, the respondent government relies upon the decision in M.E. Reddy. ; to contend that it is permissible to the government to take into consideration uncommunicated adverse remarks also while taking a decision to retire a government servant compulsorily.
The appellants in both the appeals have been compulsorily retired by the government of Orissa in exercise of the power conferred upon it by the first proviso to Rule 71 (a) of the Orissa Service Code.
Since the relevant facts in both the appeals are similar, it would be sufficient if we set out the facts in Civil Appeal No. 869 of 1987.
841 3.
The appellant, Sri Baikuntha Nath Das was appointed as a Pharmacist (then designated as Compounder) by the Civil Surgeon, Mayurbhanj on 15.3.1951.
By an order dated 13.2.1976 the government of Orissa retired him compulsorily under the first proviso to sub rule of Rule 71 of the Orissa Service Code.
The order reads as follows: ``In exercise of the powers conferred under the first proviso to sub rule (a) of rule 71 of Orissa Service Code, the Government of Orissa is pleased to order the retirement of Sri Baikunthanath Das, Pharmacist now working under the Chief District Medical Officer, Mayurbhanj on the expiry of three months from the date of service of this order on him.
By order of the Governor. ' ' 4.
The petitioner challenged the same in the High Court of Orissa by way of a writ petition, being O.J.C.No.
412 of 1976.
His case was that the order was based on no material and that it was the result of ill will and malice the Chief District Medical Officer bore towards him.
The petitioner was transferred by the said officer from place to place and was also placed under suspension at one stage.
He submitted that his entire service has been spot less and that at no time were any adverse entries in his confidential character rolls communicated to him.
In the counter affidavit filed on behalf of the government, it was submitted that the decision to retire the petitioner compulsorily was taken by the Review Committee and not by the Chief Medical Officer.
It was submitted that besides the remarks made in the confidential character rolls, other material was also taken into consideration by the Review Committee and that it arrived at its decision bonafide and in public interest which decision was accepted and approved by the government.
The allegation of malafides was denied.
The High Court looked into the proceedings of the Review Committee and the confidential character rolls of the petitioner and dismissed the writ petition on the following reasoning: An order of compulsory retirement after putting in the prescribed qualifying period of service does not amount to punishment as has been repeatedly held by this court.
The order in question was passed by the State Government and not by the Chief Medical Officer.
It is true that the confidential character roll of the petitioner contained several remarks adverse to him which were, no doubt, not communicated to him, but the decision of this court in Union of India 842 vs M.E.Reddy; , , holds that uncommunicated adverse remarks can also be relied upon while passing an order of compulsory retirement.
The said adverse remarks have been made by successive Civil Surgeons and not by the particular Chief District Medical Officer against whom the petitioner has alleged malafides.
It is unlikely that all the Chief District Medical Officers were prejudiced against the petitioner.
In particular, the court observed, "the materials placed before us do not justify a conclusion that the remarks in the confidential character rolls had not duly and properly been recorded." The decision to retire has been taken by the Review Committee on proper material and there are no grounds to interfere with its decision, it opined. 6.
The adverse remarks made against the petitioner in the words of the High Court are to the following effect: ". most insincere, irregular in habits and negligent and besides being a person of doubtful integrity, he had been quarrelsome with his colleagues and superior officers and had been creating problems for the administration.
Rule 71 (a) alongwith the first proviso appended thereto which alone is relevant for our purpose reads thus: "71.
(a) Except as otherwise provided in the other clauses of this rule the date of compulsory retirement of a Government servant, except a ministerial servant who was in Government service on the 31st March, 1939 and Class IV Government servant, is the date on which he or she attains the age of 58 years subject to the condition that a review shall be conducted in respect of the Government servant in the 55th year of age in order to determine whether he/she should be allowed to remain in service upto the date of the completion of the age of 58 years or retired on completing the age of 55 years in the public interest: Provided that a Government servant may retire from service any time after completing thirty years qualifying service or on attaining the age of fifty years, by giving a notice in writing to the appropriate authority at least three months before the date on which he wishes to retire or by giving the said notice to the 843 said authority before such shorter period as Government may allow in any case.
It shall be open to the appropriate authority to withhold permission to a Government servant who seeks to retire under this rule, if he is under suspension or if inquires against him are in progress.
The appropriate authority may also require any officer to retire in public interest any time after he has completed thirty years qualifying service or attained the age of fifty years, by giving a notice in writing to the Government servant at least three months before the date on which he is required to retire or by giving three months pay and allowances in lieu of such notice.
xx xx xx" 8.
It is evident that the latter half of the proviso which empowers the government to retire a government servant in public interest after he completes 30 years of qualifying service or after attaining the age of 50 years is in pari materia with the Fundamental Rule 56(j).
The Government of Orissa had issued certain instructions in this behalf.
According to these instructions, the Review Committee, if it is of the opinion that a particular government servant should be retired compulsorily, must make a proposal recording its full reasons therefor.
The administrative department controlling the services to which the particular government servant belongs, will then process the proposal and put it up to the government for final orders.
In Shyam Lal vs State of Uttar Pradesh, ; , a Constitution Bench of this court held that an order of compulsory retirement is not a punishment nor is there any stigma attached to it.
It said: "There is no such element of charge or imputation in the case of compulsory retirement.
The two requirements for compulsory retirement are that the officer has completed twenty five years ' service and that it is in the public interest to dispense with his further services.
It is true that this power of compulsory retirement may be used when the authority exercising this power cannot substantiate the misconduct which may be the real cause for taking the action but what is important to note is that the directions in the last sentence of Note 1 to Article 465 A make it abundantly clear that an imputation or charge is not in terms made a condition for the exercise of the power.
844 In other words, a compulsory retirement has no stigma or implication of misbehaviour or incapacity.
In Shivacharana vs State of Mysore, A.I.R. 1965 S.C. 280, another Constitution Bench reaffirmed the said principle and held that "Whether or not the petitioner 's retirement was in the public interest, is a matter for the State Government to consider and as to the plea that the order is arbitrary and illegal, it is impossible to hold on the material placed by the petitioner before us that the said order suffers from the vice of malafides.
As far back as 1970, a Division Bench of this court comprising J.C. Shah and K.S. Hegde, JJ. held in Union of India vs J.N Sinha, [1971] 1 S.C.R. 791, that an order of compulsory retirement made under F.R. 56 (j) does not involve any civil consequences, that the employee retired thereunder does not lose any of the rights acquired by him before retirement and that the said rule is not intended for taking any penal action against the government servant.
It was pointed out that the said rule embodies one of the facets of the pleasure doctrine embodied in Article 310 of the Constitution and that the rule holds the balance between the rights of the individual Government servant and the interest of the public.
The rule is intended it was explained, to enable the Government to energise its machinery and to make it efficient by compulsory retiring those who in its opinion should not be there in public interest.
It was also held that rules of natural justice are not attracted in such a case.
If the appropriate authority forms the requisite opinion bonafide, it was held, its opinion cannot be challenged before the courts though it is open to an aggrieved party to contend that the requisite opinion has not been formed or that it is based on collateral grounds or that it is an arbitrary decision.
It is significant to notice that this decision was rendered after the decisions of this court in State of Orissa vs Dr.
Binapani Devi; , and A.K.Kraipak vs Union of India, A.I.R. 1970 S.C. 150.Indeed, the said decisions were relied upon to contend that even in such a case the principles of natural justice required an opportunity to be given to the government servant to show cause against the proposed action.
The contention, was not accepted as stated above.
The principles enunciated in the decision have been accepted and followed in many a later decision.
There has never been a dissent not until 1987.
In R.L. Butial vs Union of India, relied upon by the appellant 's 845 counsel, the Constitution Bench considered a case where the government servant was denied the promotion and later retired compulsorily under F.R. 56(j) on the basis of adverse entries in his confidential records.
The appellant, an electrical engineer, entered the service of Simla Electricity Board in 1934.
In 1940, he was transferred to Central Electricity Commission later designated as Central Water and Power Commission (Power Wing).
In 1955 he was promoted to the post of Director wherein he was confirmed in the year 1960.
In his confidential reports relating to the years 1964 and 1965, certain adverse remarks were made.
They were communicated to him.
He made a representation asking for specific instances on the basis of which the said adverse remarks were made.
These representations were rejected.
Meanwhile, a vacancy arose in the higher post.
The appellant was overlooked both in the year 1964 as well as in 1965 by the Departmental Promotion Committee and the U.P.S.C.
On August 15, 1967, on his completing 55 years of age, he was compulsorily retired under F.R. 56(j).
Thereupon he filed three writ petitions in the High Court challenging the said adverse entries as also the order of compulsory retirement.
The writ petitions were dismissed whereupon the matters were brought to this court on the basis of a certificate.
The Constitution Bench enunciated the following propositions: 1.
The rules framed by the Central Water and Power Commission on the subject of maintenance of confidential reports show that a confidential report is intended to be a general assessment of work performed by the government servant and that the said reports are maintained to serve as a data of operative merit when question of promotion, confirmation etc.
arose.
Ordinarily, they are not to contain specific instances except where a specific instance has led to a censure or a warning.
In such situation alone, a reasonable opportunity has to be afforded to the government servant to present his case.
No opportunity need be given before the entries are made.
Making of an adverse entry does not amount to inflicting a penalty.
When the petitioner was overlooked for promotion his representations against the adverse remarks were still pending.
But inasmuch as the said representations were rejected later there was no occasion for reviewing the decision not to promote the appellant.
Withholding a promotion is not a penalty under the Central Service Rules.
Hence, no enquiry was required to be held before deciding not to promote the 846 appellant more so, when the promotion was on the basis of selection and not on the basis of seniority alone.
So far as the order of compulsory retirement was concerned, it was based upon a consideration of his entire service record including his confidential reports.
The adverse remarks in such reports, were communicated from time to time and the representations made by the appellant were rejected.
It is only thereafter that the decision to retire him compulsorily was taken and, therefore, there was no ground to interfere with the said order.
It is evident that in this case, the question arising for our consideration viz, whether uncommunicated adverse remarks can be taken into consideration alongwith other material for compulsorily retiring a government servant did not arise for consideration.
That question arose directly in Union of India vs M.E.Reddy. 15.
The respondent, M.E. Reddy belonged to Indian Police Services.
He was retired compulsorily under Rule 16 (3) of All India Service (Death cum Retirement Rules) 1958 corresponding to F.R. 56 (j).
The contention of the respondent was that the order was passed on non existing material inasmuch as at no time were any adverse remarks communicated to him.
His contention was that had there been any adverse entries they ought to have been communicated to him under the rules.
The said contention was dealt with in the following words: ".
This argument, in our opinion, appears to be based on a serious misconception.
In the first place, under the various rules on the subject it is not every adverse entry or remarks that has to be communicated to the officer concerned.
The superior officer may make certain remarks while assessing the work and conduct of subordinate officer based on his personal supervision or contract.
Some of these remarks may be purely innocuous, or may be connected with general reputation of honesty or integrity that a particular officer enjoys.
It will indeed be difficult if not impossible to prove by positive evidence that a particular officer is dishonest but those who have had the opportunity to watch the performance of the said officer from close quarters are in a position to know the nature and character not only of his performance but also of the 847 reputation that he enjoys".
The Learned Judges referred to the decisions in R.L.Butail,J.N.Sinha and several other decisions of this court and held that the confidential reports, even though not communicated to the officer concerned, can certainly be considered by the appointing authority while passing the order of compulsory retirement.
in this connection, they relied upon the principle in J.N. Sinha that principles of natural justices are not attracted in the case of compulsory retirement since it is neither a punishment nor does it involve any civil consequences.
the principle of the above decision was followed in Dr. N.V.Puttabhatta vs
State of Mysore; , , a decision rendered by A.N.Grover and G.K.Mitter , J.J. Indeed, the contention of the appellant in this case was that since an order of compulsory retirement has adverse effects upon the career and prospects of the government servant, the order must be passed in accordance with principles of natural justice.
It was contended that before passing the order, a notice to show cause against the order proposed must be given to the government servant .
Reliance was placed upon the decisions in Binapani Devi and Kraipak.
This contention was negatived following the decision in J.N.Sinha.
It was also pointed out, applying the principles of Shivacharana that an order of compulsory retirement is not a punishment nor does it involve any stigma or implication or misbehaviour.
Another contention urged in this case was that the order of compulsory retirement was based upon uncommunicated adverse remarks and that the appellant was also not afforded an opportunity to make a representation against the same.
At the relevant time, no appeal lay against the orders passed upon the representation.
Dealing with the said contention, the court observed: "as the confidential reports rules stood at the relevant time, the appellant could not have appealed against the adverse remarks and if the opinion of the government to retire him compulsorily was based primarily on the said report, he could only challange the order if he was in a position to show that the remarks were arbitrary and malafide." 18.
Yet another contention which is relevant to the present case is this : the retirement of the appellant therein was ordered under Rule 235 of Mysore Civil Services Rules.
The language of the said rule corresponded to 848 F.R.56(j) but it did not contain the word "absolute" as is found in F.R.56(j).
An argument was sought to be built up on the said difference in language but the same was rejected holding that even in the absence of the word "absolute" the position remains the same.
We are refering to the said aspect in as much as the proviso to Rule 71 (a) of the Orissa Service Code, concerned in the appeals before us, also does not contain the word "absolute".
In (A.I.R.1980 S.C.1894) Gian Singh Mann vs Punjab and Haryana High Court, a Bench consisting of Krishna Iyer and Pathak, JJ. reiterated the principle that an order of compulsory retirement does not amount to punishment and that no stigma or implication of misbehaviour is intended or attached to such an order.
In O.N.G.C vs Iskandar Ali, a probationer was terminated on the basis of adverse remarks made in his assessment roll.
A Bench comprising three learned Judges (Fazal Ali, A.C. Gupta and Kailasam, JJ.) held that the order of termination in that case was an order of termination simpliciter without involving any stigma or any civil consequences.
Since the respondent was a probationer, he had no right to the post.
The remarks in his assessment roll disclosed that the respondent was not found suitable for being retained in service and even though some sort of enquiry was commenced, it was not proceeded with.
The appointing authority considered it expedient to terminate the service of the respondent in the circumstances and such an order was beyond challenge on the ground of violation of Article 311.
This court has taken the view in certain cases that while taking a decision to retire a government servant under Rule 56(j), more importance should be attached to the confidential records of the later years and that much importance should not be attached to the record relating to earlier years or to the early years of service.
In Brij Bihari Lal Agarwal vs High Court of Madhya Pradesh, , upon which strong reliance is placed by the appellant 's counsel a Bench comprising Pathak and Chinappa Reddy,JJ.
observed thus: ". .What we would like to add is that when considering the question of compulsory retirement, while it is not doubt desirable to make an overall assessment of the Government servant 's record, more than ordinary value should be attached to the confidential reports pertaining to the years immediately 849 preceding such consideration.
It is possible that a Government servant may possess a somewhat erratic record in the early years of service, but with the passage of time he may have so greatly improved that it would be of advantage to continue him in service up to the statutory age of superannuation.
Whatever value the confidential reports of earlier years may possess, those pertaining to the later years are not only of direct relevance but also of utmost importance.
We may mention that the order of compulsory retirement in the above case is dated 28th September, 1979.
The High Court took into account the confidential reports relating to the period prior to 1966 which were also not communicated to the concerned officer.
However, the decision is based not upon the non communication of adverse remarks but on the ground that they were too far in the past.
It was observed that reliance on such record has the effect of denying an opportunity of improvement to the officer concerned.
The decision in Baldev Raj Chaddha vs Union of India, ; , is to the same effect.
In J.D. Srivastava vs State of Madhya Pradesh, ; , it was held by a Bench of three learned Judges that adverse reports prior to the promotion of the officer cannot reasonably form a basis for forming an opinion to retire him.
The reports relied upon for retiring the appellant were more than 20 years old and there was no other material upon which the said decision could be based.
It was held that reliance on such stale entries cannot be placed for retiring a person compulsorily, particularly when the officer concerned was promoted subsequent to such entries.
We now come to the decision in Brij Mohan Singh Chopra vs State of Punjab, relied upon by the learned counsel for the petitioner.
In this case, there were no adverse entries in the confidential records of the appellant for a period of five years prior to the impugned order.
Within five years, there were two adverse entries.
In neither of them, however, was his integrity doubted.
These adverse remarks were not communicated to him.
The Bench consisting of E.S. Venkataramiah and K.N. Singh JJ.
quashed it on two grounds viz., 1.
It would not be reasonable and just to consider adverse entries of remote past and to ignore good entries of recent past.
If entries for a period of more than 10 years past are taken into account it would be an act of 850 digging out past to get some material to make an order against the employee.
In Gurdyal Singh Fiji vs State of Punjab, and Amarkant Chaudhary vs State of Bihar, ; , it was held that unless an adverse report is communicated and representation, if any, made by the employee is considered, it may not be acted upon to deny the promotion.
The same consideration applies where the adverse entries are taken into account in retiring an employee pre maturely from service.
K.N. Singh, J. speaking for the Bench observed: "it would be unjust and unfair and contrary to principles of natural justice to retire pre maturely a government employee on the basis of adverse entries which are either not communicated to him or if communicated, representations made against those entries are not considered and disposed of".
This is the first case in which the principles of natural justice were imported in the case of compulsory retirement even though it was held expressly in J.N. Sinha that the said principles are not attracted.
This view was reiterated by K.N. Singh, J. again in ; Baidyanath Mahapatra vs State of Orissa, (Bench comprising of K.N. Singh and M.H. Kania, JJ.).
In this case, the Review Committee took into account the entire service record of the employee including the adverse remarks relating to the year 1969 to 1982 (barring certain intervening years for which no adverse remarks were made).
The employee had joined the Orissa Government service as an Assistant Engineer in 1955.
In 1961 he was promoted to the post of Executive Engineer and in 1976 to the post of Superintending Engineer.
In 1979 he was allowed to cross the efficiency bar with effect from 1.1.1979.
He was compulsorily retired by an order dated 10.11.1983.
The Bench held in the first instance that the adverse entries for the period prior to his promotion as Superintending Engineer cannot be taken into account.
It was held that if the officer was promoted to a higher post, and that too a selection post, notwithstanding such adverse entries, it must be presumed that the said entries lost their significance and cannot be revived to retire the officer compulsorily.
Regarding the adverse entries for the subsequent years and in particular relating to the years 1981 82 and 1982 83 it was found that though the said adverse remarks were communicated, the period prescribed for making a representation had not expired.
The Bench observed: ". .These facts make it amply clear that the appellant 's 851 representation against the aforesaid adverse remarks for the years 1981 82 and 1982 83 was pending and the same had not been considered or disposed of on the date of impugned order was issued.
It is settled view that it is not permissible to prematurely retire a government servant on the basis of adverse entries, representations against which are not considered and disposed of.
See Brij Mohan Singh Chopra vs State of Punjab.
On the above basis, it was held that the Review Committee ought to have waited till the expiry of the period prescribed for making representation against the said remarks and if any representation was made it should have been considered and disposed of before they could be taken into consideration for forming the requisite opinion.
In other words, it was held that it was not open to the Review Committee and the government to rely upon the said adverse entries relating to the years 1981 82 and 1982 83, in the circumstances.
Unfortunately, the decision in J.N. Sinha was not brought to the notice of the learned Judges when deciding the above two cases.
The basis of the decisions in Brij Mohan Singh Chopra and Baidyanath Mahapatra, it appears, is that while passing an order of compulsory retirement, the authority must act consistent with the principles of natural justice.
It is said to expressly in Brij Mohan Singh Chopra.
This premise, if carried to its logical end, would also mean affording an opportunity to the concerned government servant to show cause against the action proposed and all that it involves.
It is true that these decisions do not go to that extent but limit their holding to only one facet of the rule viz., `acting upon undisclosed material to the prejudice of a man is a violation of the principle of natural justice. ' This holding is in direct conflict with the decision in J.N.Sinha which excludes application of principles of natural justice.
As pointed out above, J.N. Sinha was decided after, and expressly refers to the decisions in, Binapani Devi and Kraipak and yet holds that principles of natural justice are not attracted in a case of compulsory retirement.
The question is which of the two views is the correct one.
While answering this question, it is necessary to keep the following factors in mind: (a) Compulsory retirement provided by F.R. 56 (j) or other corresponding rules, is not a punishment.
It does not involve any stigma nor any implication of misbehaviour or incapacity.
Three Constitution Benches have said so vide Shyam Lal Shivacharana and R.L. 852 Butail.
(b) F.R. 56 (j) as also the first proviso to Rule 71(a) of the Orissa Service Code, empower the government to order compulsory retirement of a government servant if in their "opinion", it is in the public interest so to do.
This means that the action has to be taken on the subjective satisfaction of the government.
In R.L. Butail, the Constitution Bench observed: ".
In Union of India vs Col J.N. Sinha this Court stated that F.R. 56(j) in express terms confers on the appropriate authority an absolute right to retire a Government servant on his attaining the age of 55 years if such authority is of the opinion that it is in public interest so to do.
The decision further states: "If that authority, bona fide forms that opinion, the correctness of that opinion cannot be challenged before courts.
It is open to an aggrieved party to contend that the requisite opinion has not been formed or the decision is based on collateral grounds or that it is an arbitrary decision.
The law on the subjective satisfaction has been dealt with elaborately in Barium Chemicals vs Company Law Board, ; At page 323, Shelat, J., after referring to several decisions dealing with action taken on subjective satisfaction, observed thus: "Bearing in mind these principles the provisions of section 237 (b) may now be examined.
The clause empowers the Central Government and by reason of delegation of its powers the Board to appoint inspectors to investigate the affairs of the company, if "in the opinion of the Central Government" (now the Board) there are circumstances "suggesting" what is stated in the three sub clauses.
The power is executive and the opinion requisite before an order can be made is of the Central Government or the Board as the case may be and not of a Court.
Therefore, the Court cannot substitute its own opinion for the opinion of the authority.
But the question is, whether the entire action under the section is subjective?" 27.
The learned Judges then referred to certain other decisions including the decision in Vallukunnel vs Reserve Bank of India, ; and concluded as follows: 853 "Therefore, the words, "reason to believe" or "in the opinion of"do not always lead to the construction that the process of entertaining "reason to believe" or "the opinion" is an altogether subjective process not lending itself even to a limited scrutiny by the court that such "reason to believe" or "opinion" was not formed on relevant facts or within the limits or as Lord Radcliffe and Lord Reid called the restraints of the statute as an alternative safeguard to rule of natural justice where the function is administrative.
The blurring of the dividing line between a quasi judicial order and an administrative order, pointed out in Kraipak has no effect upon the above position, more so when compulsory retirement is not a punishment nor does it imply any stigma.
Kraipak or for that matter, Maneka Gandhi cannot be understood as doing away with the concept of subjective satisfaction.
On the above premises, it follows, in our respectful opinion that the view taken in J.N. Sinha is the correct one viz., principles of natural justice are not attracted in a case of compulsory retirement under F.R. 56(j) or a rule corresponding to it.
In this context, we may point out a practical difficulty arising from the simultaneous operation of two rules enunciated in Brij Mohan Singh Chopra.
On one hand, it is stated that only the entries of last ten years should be seen and on the other hand, it is stated that if there are any adverse remarks therein, they must not only be communicated but the representations made against them should be considered and disposed of before they can be taken into consideration.
Where do we draw the line in the matter of disposal of representation.
Does it mean, disposal by the appropriate authority alone or does it include appeal as well.
Even if the appeal is dismissed, the government servant may file a revision or make a representation to a still higher authority.
He may also approach a court or Tribunal for expunging those remarks.
Should the government wait until all these stages are over.
All that would naturally take a long time by which time, these reports would also have become stale.
A government servant so minded can adopt one or the other proceeding to keep the matter alive.
This is an additional reason for holding that the principle of M.E. Reddy should be preferred over Brij Mohan Singh Chopra and Baidyanath Mahapatra, on the question of taking into consideration uncommunicated adverse remarks.
854 30.
Another factor to be borne in mind is this: most often, the authority which made the adverse remarks and the authority competent to retire him compulsorily are not the same.
There is no reason to presume that the authority competent to retire him will not act bonafide or will not consider the entire record dispassionately.
As the decided cases show, very often, a Review Committee consisting of more than one responsible official is constituted to examine the cases and make their recommendation to the government.
The Review Committee, or the government, would not naturally be swayed by one or two remarks, favourable or adverse.
They would form an opinion on a totality of consideration of the entire record including representations, if any, made by the government servant against the above remarks of course attaching more importance to later period of his service.
Another circumstance to be borne in mind is the unlikelihood of succession of officers making unfounded remarks against a government servant.
We may not be understood as saying either that adverse remarks need not be communicated or that the representations, if any, submitted by the government servant (against such remarks) need not be considered or disposed of.
The adverse remarks ought to be communicated in the normal course, as required by the Rules/orders in that behalf.
Any representations made against them would and should also be dealt with in the normal course, with reasonable promptitude.
All that we are saying is that the action under F.R.56(j) (or the Rule corresponding to it) need not await the disposal or final disposal of such representation or representations, as the case may be.
In some cases, it may happen that some adverse remarks of the recent years are not communicated or if communicated, the representation received in that behalf are pending consideration.
On this account alone, the action under F.R.56(j) need not be held back.
There is reason to presume that the Review Committee or the government, if it chooses to take into consideration such uncommunicated remarks, would not be conscious or cognizant of the fact that they are not communicated to the government servant and that he was not given an opportunity to explain or rebut the same.
Similarly, if any representation made by the government servant is there, it shall also be taken into consideration.
We may reiterate that not only the Review Committee is generally composed of high and responsible officers, the power is vested in government alone and not in a minor official.
It is unlikely that adverse remarks over a number of years remain uncommunicated and yet they are made the primary basis of action.
Such an unlikely situation if indeed present, may be indicative of malice in law.
We may 855 mention in this connection that the remedy provided by Article 226 of the Constitution is no less an important safeguard.
Even with its well known constraints, the remedy is an effective check against mala fide, perverse or arbitrary action.
At this stage, we think it appropriate to append a note of clarification.
What is normally required to be communicated is adverse remarks not every remark, comment or observation made in the confidential rolls.
There may be any number of remarks, observations and comments, which do not constitute adverse remarks, but are yet relevant for the purpose of F.R. 56(j) or a Rule corresponding to it.
The object and purposes for which this power is to be exercised are well stated in J.N. Sinha and other decisions referred supra.
The following principles emerge from the above discussion: (i) An order of compulsory retirement is not a punishment.
It implies no stigma nor any suggestion of misbehaviour.
(ii) The order has to be passed by the government on forming the opinion that it is in the public interest to retire a government servant compulsorily.
The order is passed on the subjective satisfaction of the government.
(iii) Principles of natural justice have no place in the context of an order of compulsory retirement.
This does not mean that judicial scrutiny is excluded altogether.
While the High Court or this Court would not examine the matter as an appellate court, they may interfere if they are satisfied that the order is passed (a) mala fide or (b) that it is based on no evidence or (c) that it is arbitrary in the sense that no reasonable person would form the requisite opinion on the given material; in short, if it is found to be perverse order.
(iv) The government (or the Review Committee, as the case may be) shall have to consider the entire record of service before taking a decision in the matter of course attaching more importance to record of and performance during the later years.
The record to be so considered would naturally include the entries in the confidential records/character rolls, both favourable and adverse.
If a government servant is promoted to a higher post notwithstanding the adverse remarks, such remarks lose their 856 sting, more so, if the promotion is based upon merit (selection) and not upon seniority.
(v) An order of compulsory retirement is not liable to be quashed by a Court merely on the showing that while passing it uncommunicated adverse remarks were also taken into consideration.
That circumstance by itself cannot be a basis for interfere.
Interference is permissible only on the grounds mentioned in (iii) above.
This aspect has been discussed in paras 29 to 31 above.
Before parting with the case, we must refer to an argument urged by Sri R.K. Garg.
He stressed what is called, the new concept of Article 14 as adumberated in Maneka Gandhi (A.I.R. 1978 S.C. 579) and submitted on that basis that any and every arbitrary action is open to judicial scrutiny.
The general principle evolved in the said decision is not in issue here.
We are concerned mainly with the question whether a facet of principle of natural justice audi alteram partem is attracted in the case of compulsory retirement.
In other words, the question is whether acting upon undisclosed material is a ground for quashing the order of compulsory retirement.
Since we have held that the nature of the function is not quasi judicial in nature and because the action has to be taken on the subjective satisfaction of the Government, there is no room for importing the said facet of natural justice in such a case, more particularly when an order of compulsory retirement is not a punishment nor does it involve any stigma.
So far as the appeals before us are concerned, the High Court which has looked into the relevant record and confidential records has opined that the order of compulsory retirement was based not merely upon the said adverse remarks but other material as well.
Secondly, it has also found that the material placed before them does not justify the conclusion that the said remarks were not recorded duly or properly.
In the circumstances, it cannot be said that the order of compulsory retirement suffers from mala fides or that it is based on no evidence or that it is arbitrary.
For the above reason, both the appeals are dismissed but in circumstances of the case, we make no order as to costs.
V.P.R. Appeals dismissed. [/INST] C.A.No.869 of 1987 On 15.3.1951, the appellant was appointed as a Pharmacist, which was then designated as compounder.
On 13.2.1976 he was retired compulsorily by the Government under the first proviso to Sub rule of Rule 71 of the Orissa Service Code.
The appellant challenged the order by way of a writ petition in the High Court contending that the order was the result of ill will and malice the Chief District Medical Officer bore towards him; that his entire service was spot less and that at no time were any adverse entries in his confidential character rolls communicated to him.
The respondent Government submitted that the decision to retire 837 the petitioner compulsorily was taken by the Review Committee and not by the Chief Medical Officer; that besides the remarks made in the confidential character rolls, other material was also taken into consideration by the Review Committee that it arrived at its decision bonafide and in public interest which decision was accepted and approved by the Government.
The allegation of malafides was denied.
The High Court looked into the proceedings of the Review Committee and the confidential character rolls of the appellant and dismissed the writ petition on the reasoning, that an order of compulsory retirement after putting in the prescribed qualifying period of service did not amount to punishment; that the order was passed by the state Government and not by the Chief Medical Officer and that the petitioner has failed to establish that remarks in the confidential character rolls were not duly and properly recorded.
It held that the adverse remarks though not communicated, can yet be relied upon.
Accordingly it held that the decision to retire was taken by the Review Committee on proper material and there were no grounds to interfere with its decision.
The present appeal by special leave was filed by the government servant against the decision of the High Court on the question, whether acting upon undisclosed material was a ground for quashing the order of compulsory retirement C.A. No. 870 of 1987 was also filed on similar facts.
It was contended by the appellant that since an order of compulsory retirement had adverse effects upon the career and prospects of the government servant, the order should be passed in accordance with principles of natural justice; that before passing the order, a notice to show cause against the order proposed should be given to the government servant; that the order of compulsory retirement was based upon uncommunicated adverse remarks and that the appellant was also not afforded an opportunity to make a representation against the same; and that as per the new concept of Article 14 adumbrated Maneka Gandhi case, AIR 1978 SC 579, any and every arbitrary action was open to judicial scrutiny.
Dismissing the appeals, this Court, HELD: 1.01.
What is normally required to be communicated is adverse remarks not every remark, comment or observation made in the confidential rolls.
There may be any number of remarks, observations and 838 comments, which do not constitute adverse remarks, but are yet relevant for the purpose of F.R. 56(j) or a Rule corresponding to it.
[855B C] 1.02.
The adverse remarks ought to be communicated in the normal course, as required by the Rules/ orders in that behalf.
Any representations made against them would and should also be dealt with in the normal course, with reasonable promptitude.
[854D E] 1.03.
The action under F.R.56(j) (or the Rule corresponding to it) need not await the disposal or final disposal of such representation or representations, as the case may be.
In some cases, it may happen that some adverse remarks of the recent years are not communicated or if communicated, the representation received in that behalf are pending consideration.
On this account alone, the action under F.R.56(j) need not be held back.
[854E F] 1.04.
There is no reason to presume that the Review Committee or the government, if it chooses to take into consideration such uncommunicated remarks, would not be conscious or cognizant of the fact that they are not communicated to the government servant and that he was not given an opportunity to explain or rebut the same.
Similarly, if any representation made by the government servant is there, it shall also be taken into consideration.
[854F G] 1.05.
Not only the Review Committee is generally composed of high and responsible officers, the power is vested in government alone and not in a minor official.
It is unlikely that adverse remarks over a number of years remain uncommunicated and yet they are made the primary basis of action.
Such an unlikely situation, if indeed present, may be indicative of malice in law.
[854G H] 2.01.
An order of compulsory retirement is not a punishment.
It implies no stigma nor any suggestion of misbehaviour.
[855D] 2.02.
The order has to be passed by the government on forming the opinion that it is in the public interest to retire a government servant compulsorily.
The order is passed on the subjective satisfaction of the government.
[855D E] 2.03.
Principles of natural justice have no place in the context of an order of compulsory retirement.
This does not mean that judicial scrutiny 839 is excluded altogether.
While the High Court or this Court would not examine the matter as an appellate court, they may interfere if they are satisfied that the order is passed (a) mala fide or (b) that it is based on no evidence or (c) that it is arbitrary in the sense that no reasonable person would form the requisite opinion on the given material; in short, if it is found to be a perverse order.
[855E F] 2.04.
The remedy provided by Article 226 of the Constitution is no less an important safeguard.
Even with its well known constraints, the remedy is an effective check against mala fide, perverse or arbitrary action.
[855A] 2.05.
An order of compulsory retirement is not liable to be quashed by a court merely on the showing that while passing it, uncommunicated adverse remarks were also taken into consideration.
That circumstance by itself cannot be a basis for interference.
[856B] 2.06.
The government (or the Review Committee, as the case may be) shall have to consider the entire record of service before taking a decision in the matter, of course, attaching more importance to the record of and performance during the later years.
The record to be so considered would naturally include the entries in the confidential records/character rolls, both favourable and adverse.
If a government servant is promoted to a higher post notwithstanding the adverse remarks, such remarks lose their sting, more so, if the promotion is based upon merit (selection) and not upon seniority.
[855G 856A] 2.07.
The nature of the function is not quasi judicial in nature and because the action has to be taken on the subjective satisfaction of the Government, there is no room for importing any facet of natural justice particularly because an order of compulsory retirement is not a punishment nor does it involve any stigma.
[856E] Union Of India vs M.E.Reddy, ; ; Union of India vs J.N.Sinha, [1971] 1 SCR 791, Applied.
Shyam Lal vs State of Uttar Pradesh, ; ; Shivacharana vs State of Mysore, AIR (1965) SC 280; State of Orissa vs Dr. Binapani Devi, ; ; A.K. kraipak vs Union of India, AIR 1970 SC 150; R.L. Butail vs Union of India, ; Dr. N.V. Puttabhatta vs State of Mysore; , ; Gian Singh Mann vs Punjab and Haryana 840 High Court; , ; O.N.G.C. vs Iskandar Ali, Brij Bihari Lal Agarwal vs High Court Of Madhya Pradesh, ; Baldev Raj Chaddha vs Union Of India, ; ; J.D. Srivastava vs State of Madhya Pradesh, ; ; Brij Mohan Singh Chopra vs State of Punjab, ; Gurdyal Singh Fiji vs State of Punjab, ;m Amarkant Chaudhary vs State of Bihar, ; ; Baidyanath Mahapatra vs State of Orissa, ; ; Barium Chemicals vs Company Law Board, ; ; Vallukunnel vs Reserve Bank of India, ; ; Maneka Gandhi 's case, AIR 1978 SC 579, Referred to. </s> |
<s>[INST] Summarize the following judgement: ivil Appeal No. 3362 of 1979.
From the Judgment and Order dated 3.10.1977 of the Andhra Pradesh High Court in Writ Petition No. 3348 of 1975.
A.S. Nambiar and B. Parthasarthy for the Appellants.
T.V. S.N. Chari and G. Narasimhulu for the Respondents.
The Judgment of the Court was delivered by K. RAMASWAMY,J.
This appeal by special leave arises against the judgment of the Division Bench of the Andhra Pradesh High Court dated October 3, 1977 in Writ Petition No. 3343/75.
The Govt.
in exercise of power under section 68 D in Chapter IVA of the approved a draft scheme framed under section 68 C through G.O.M.S. No. 753, Home (Transport) Dept.
dated June, 1975, Published in the gazette on June 4, 1975, relating to the route Anantapur to Dharmavaram via Mamillappalli.
The Scheme No. 82 of 1974 was questioned in Writ Petition No. 3827/75 and the same was upheld by a single Judge on September 30.
1975 and on appeal in Writ Appeal No. 80 of 1975 dated November 14, 1975, the Division Bench upheld the same.
While approving the scheme the routes, namely : (1) Kodikonda to Anantapur via Dharmavaram, (2) Bukkapatnam to Anantapur via Dharmavaram, (3) Interstate route Virechal to Dharmavaram via Anantapur, (4) Anantapur to Puttaparti via Dharmavaram to the extent indicated in the note thereunder were exempted from the scheme.
Thereby the partial exemption of these routes from the approved scheme stood upheld.
Thereafter the two respondents filed the writ petition challenging the self same scheme contending that the non exemption of the routes i.e. Kalyandrug to Pernapalli via Dharamavaram and Anantapur to Perur via Dharmavaram offend Act, 14 of the Constitution.
The High Court upheld the contention and held that their exclusion is discriminatory.
Accordingly the High Court directed that the case "worth 833 consideration in the case of exempted routes".
The Govt.
was directed to consider their case and to pass appropriate orders to accord exemption from the scheme.
Questioning the correctness of the judgment, this appeal has been filed.
Under section 68 C, where the State Transport Undertaking is of the opinion that for the purpose of providing an efficient, adequate, economical and properly coordinated road transport service, it is necessary in the public interest that the road "transport services" in general or any particular class of such service in relation to any area or route or portion thereof should be run and operated by the State Transport Undertaking, "Whether to the exclusion, complete or partial", of other persons or otherwise, the State Transport Undertaking may prepare a scheme giving particulars of the nature of the service proposed to be rendered, the area or route proposed to be covered and such other particulars respecting thereto as may be prescribed, and shall cause every such scheme to be published in the Official Gazette and also in such other manner as the State Government may direct.
The draft scheme accordingly was prepared on the above routes and was published.
Objections had been filed.
In exercise of the power under sub section 2 of section 68 D the State Govt.
after considering the objections and giving opportunity to the objectors and the representatives and also of the State Transport Undertaking approved the scheme and excluded the aforesaid four routes.
AS stated earlier, the scheme was upheld by the High Court and became final.
The question emerges whether the non exclusion of two transport operators, the respondents herein, offends Act, 14.
The contention of Sri Narsamhulu, the learned counsel for the operators, is that the State Govt.
having exempted four routes from the scheme, the respondents too are entitled to parity of treatment and the denial offends their right to equality guaranteed under Art.14 of the Constitution.
We find difficult to give our acceptance to this contention.
It is true, as disclosed in the counter affidavit filed by the State Govt.
in the writ petition, before the High Court that inadequate transport facilities prevailing on those four routes and density of the population that need transport service by the private operators induced the Govt.
to give exemption and that the respondents also may be situated in the similar circumstances.
But by the very language of s.68 C whose constitutional validity can no longer be questioned, and was not in fact questioned, gives 834 power to the S.T.U. to exclude the private operators completely or partially from an area or route or part thereof in the draft scheme and given exclusive power to offer transport service in that area or route or part thereof.
On approval the scheme has the effect of excluding the private operators from the field.
The statute itself gives power to the State to exercise discretion for formulating a scheme for an area or route or part thereof and necessarily has the effect of excluding the existing or potential private operators from the field to render transport service in that partially prohibited area etc.
while retaining similar private operators in other area, route or part thereof.
The exclusion completely or partially is allowable under the statute itself and is writ large.
The discretion need not necessarily be discriminatory.
68 C left the choice to the S.T.U. and so discrimination in that sense is discernible from section 68C which itself authorises the S.T.U., based on factual matrix, eliminate in its choice of a partial exclusion of private operators in an area or route or part thereof.
Opportunity has been given to an affected party to file his or their objections and of a right of hearing before the State Govt.
approved of the draft scheme and publication thereof in the gazette.
The exercise of discretion by the S.T.U. in its selective application of partial prohibition is controlled and regulated by the statute in Ss.
68D and 68E of the Act.
In Ram Nath Verma vs State of Rajasthan, ; at 160 one of the contentions raised was that out of five routes which were partially overlapping, three routes have been taken over.
Permits of the existing objectors has been cancelled with respect to the overlapping part of the routes while in other two routes, the objectors were allowed to ply even on the overlapping part but they had been forbidden to pick up passengers on the overlapping part for a destination within the overlapping part.
This latter method was adopted to make the permits ineffective for the overlapping part.
The contention of the aggrieved persons was that they were discriminated.
This Court held thus: "We are of the opinion that there is no force in it.
Under s.68C, it is open to frame a scheme in which there is a partial exclusion of private operators.
Making the permits ineffective for the overlapping part only amounts to partial exclusion of the private operators from that route.
In the circumstances an order making the permit ineffective for the overlapping part would be justified under section 68C".
Giving primacy to the contention of violation of article 14 would be fraught with insidious effects of upsetting the very scheme itself, since anyone of the existing or potential 835 operators would always contend that he too is similarly situated with that of the exempted operators of other area, route or part thereof and unequal treatment has been meted out in the grant of permit to offer transport service offending his right under article 14.
It is true that sub s.2 of s68E, as stated by Shri Narsamhulu, that despite the approval of the scheme under sub s.2 of section 68 D, the State Govt.
may, at any time, if it considers necessary in the public interest so to do, modify any scheme published under section 3 of section 68 D of the Act after following the procedure prescribed therein.
The exercise of that power would be de hors the approval granted under sub.s.2 of section 68 D of the Act and published under sub s.3 of section 68 D.
The conditions precedent therein are the Govt.
must objectively come to a finding that there exists necessity in public interest and that the approved scheme needs modification and that the Govt.
considers that such necessity to be imperative to modify the scheme.
The Govt.
thereafter should follow the procedure prescribed under sub section 2 of section 68 E as if it is a new scheme and pass appropriate orders in that regard.
That too it would be only either on the initiative of the S.T.U. or on an application or representations by the general public of the necessity, in public interest, to modify the scheme approved under sub section 2 of section 68 D of that Act.
It is not at the behest of the erstwhile holders of the permit, who have been completely or partially frozen to obtain permit afresh or intending fresh applications in this behalf.
It is now settled law that even on a partial overlapping approved scheme private operators have been totally prohibited to have corridor, shelters and could no longer enter into the frozen area, route or part thereof and obtain permit to render transport service to the travelling public.
When that be so, the partial exclusion does not offend article 14 of the Constitution.
In fact the respondents did not question the validity of the scheme.
Thus considered the approach and the reasoning of the High Court are clearly illegal.
Accordingly the appeal is allowed and the judgment of the High Court is set aside.
The writ petition stands dismissed.
Rule nisi discharged.
But in the circumstances the parties are left to bear their own costs.
T.N.A. Appeal allowed. [/INST] In exercise of its power under section 68 D of the the Government of Andhra Pradesh approved a draft scheme framed under section 68 C relating to the route Anantapur to Dharamavaram via Mamillapalli.
However, exemption was granted to persons holding permit for the routes namely (a) Kodikonda to Anantapur via Dharmavaram; (b) Bukkapatnam to Anantapur via Dharmavaram; (c) Interstate route Virechal to Dharmavaram via Anantapur; (d) Anantapur to Puttaparti via Dharmavaram and the partial exemption of these routes from the scheme was upheld by the Andhra Pradesh High Court.
Thereafter, the respondents filed a writ petition in High Court for a direction for exemption from the operation of the scheme, and the High Court held that exclusion of the respondents was discriminatory, Accordingly it directed the State Govt.
to consider the respondent 's case and pass appropriate orders to accord exemption from the operation of the scheme.
Against the decision of the High Court the Andhra Pradesh State Road Transport Corporation filed an appeal in this Court.
It was contended on behalf of the respondents that since the State Government exempted four routes from the operation of the scheme they are entitled to parity and denial offends their right to equality under Article 14 of the Constitution.
831 Allowing the appeal and setting aside the order of the High Court, this Court.
HELD: 1.
Section 68 C of the , whose constitutional validity can no longer be questioned, gives power to the State Transport Undertaking to exclude the private operators completely or partially from an area or route or part thereof in the draft scheme.
It gives exclusive power to offer transport service in that area or route or part thereof.
[833H, 834A] 2.
The statute itself gives power to the State to exercise discretion for formulating a scheme for an area or route or part thereof and necessarily has the effect of excluding the existing or potential private operators from the fields to render transport service in that partially prohibited area etc.
while retaining similar private operators in other area, route or part thereof.
The exclusion completely or partially is allowable under the statute itself and is writ large.
The discretion need not necessarily be discriminatory.
Section 68 C left the choice to the State Transport Undertaking and so discrimination in that sense is discernible from the section which itself authorises the State Transport Undertaking, based on factual matrix, eliminate in its choice of a partial exclusion of private operators in an area or route or part thereof.
Opportunity has been given to an affected party to file his or their objections and of a right of hearing before the State Govt.
approved of the draft scheme and publication thereof in the gazette.
The exercise of discretion by the State Transport Undertaking in its selective application of partial prohibition is controlled and regulated by the statute in Ss.
68 D and 68 E of the Act.
[834B D] Ram Nath Verma vs State of Rajasthan, [1963] 2 S.C.R. 152.
referred to.
Giving primacy to the contention of violation of Article 14 would be fraught with insidious effect of upsetting the very scheme itself since anyone of the existing or potential operators would always contend that he too is similarly situated with that of the exempted operators of other area, route or part thereof and unequal treatment has been meted out in the grant of permit to offer transport service offending his right under Article 14.
[834H, 835A] 4.
It is now settled law that even on a partial overlapping approved 832 scheme private operators have been totally prohibited to have corridor shelters and could no longer enter into the frozen area, route or part thereof and obtain permit to render transport service to the travelling public.
When that be so, the partial exclusion does not offend Article 14 of the Constitution.
[835 E] </s> |
<s>[INST] Summarize the following judgement: It is the Vice President of India who is ex officio Chairman of the Rajya Sabha and his position being akin to that of the President of India, is different from that of the Speaker.
The observations relating to the office of the speaker do not apply to the chairman of the Rajya Sabha, that is the Vice President of India.
[805F G] 8.7.
Since the conferment of authority is on the Speaker and the provision being unworkable for the Lok sabha and the State Legislatures, cannot be sustained, even without para 7, the entire Tenth Schedule is rendered invalid in the absence of any valid authority for decision of the dispute notwithstanding the fact that this defect would not apply to the Rajya sabha alone whose Chairman is the Vice President of India.
The statutory exception of doctrine of necessity has no application since designation of authority in the Tenth Schedule is made by choice while enacting the legislation instead of adopting the other available options.
[805H, 806A B] & ORIGINAL JURISDICTION: Transfer Petition (Civil) No.40 of 1991.
(Under Article 139 A(1) of the Constitution of India).
WITH Writ Petition (Civil) No. 17 of 1991.
Soli J. Sorabjee, Vijay Hansaria and Sunil Kr.
Jain for the Petitioner Ejaz Maqbool and Markand D. Adkar for the Respondents.
The Judgment of the Court was delivered by 711 (OPERATIVE CONCLUSIONS IN THE MAJORITY OPINION) [Per VENKATACHALIAH, K, JAYACHANDRA REDDY AND AGRAWAL, JJ.
].
The Writ Petitions, Transfer Petitions, Civil Appeals, Special Leave Petitions and other connected matters raising common questions as to the constitutional validity of the constitution (52nd Amendment) Act, 1985, in so far as it seeks to introduce the Tenth Schedule in the Constitution of India, were heard together.
Some of these matters involve investigation and determination of factual controversies and of the extent of applicability to them of the conclusions reached on the various constitutional issues.
That exercise shall have to be undertaken in the individual cases separately.
The present judgment is pronounced in the Transfer Petition No. 40 of 1991 seeking the transfer of the Writ Petition, Rule No. 2421/90 on the file of the High Court of Guwahati to this Court.
The Transfer Petition is allowed and the aforesaid Writ Petition is withdrawn to this Court for the purpose of deciding the constitutional issues and of declaring the law on the matter.
For the reasons to be set out in the detailed judgment to follow, the following are the operative conclusions in the majority opinion on the various constitutional issues: (A) That having regard to the background and evolution of the principles underlying the Constitution (52nd Amendment) Act, 1985, in so far as it seeks to introduce the Tenth Schedule in the Constitution of India, the provisions of Paragraph 7 of the Tenth Schedule of the Constitution in terms and in effect bring about a change in the operation and effect of Articles 136, 226 and 227 of the Constitution of India and, therefore, the amendment would require to be ratified in accordance with the proviso to sub Article (2) of Article 368 of the Constitution of India.
(B) That there is nothing in the said proviso to Article 368 (2) which detracts from the severability of a provision on account of the inclusion of which the Bill containing the Amendment requires ratification from the rest of the provisions of such Bill 712 Which do not attract and require such ratification.
Having regard to the mandatory language of Article 368 (2) that "thereupon the constitution shall stand amended" the operation of the proviso should not be extended to constitutional amendments in a Bill which can stand by themselves without such ratification.
(C) That accordingly, the Constitution (52nd Amendment) Act, 1985, in so far as it seeks to introduce the Tenth Schedule in the constitution of India, to the extent of its provisions which are amenable to the legal sovereign of the amending process of the union Parliament cannot be overborne by the proviso which cannot operate in that area.
There is no justification for the view that even the rest of the provisions of the constitution (52nd Amendment) Act, 1985, excluding Paragraph 7 of the Tenth Schedule become constitutionally infirm by reason alone of the fact that one of its severable provisions which attracted and required ratification under the proviso to Article 368 (2) was not so ratified.
(D) That Paragraph 7 of the Tenth Schedule contains a provision which is independent of, and stands apart from, the main provisions of the Tenth Schedule which are intended to provide a remedy for the evil of unprincipled and unethical political defections and, therefore, is a severable part.
The remaining provisions of the Tenth Schedule can and do stand independently of Paragraph 7 and are complete in themselves workable and are not truncated by the excision of Paragraph 7.
(E) That the Paragraph 2 of the Tenth Schedule to the Constitution is valid.
Its provisions do not suffer from the vice of subverting democratic rights of elected Members of Parliament and the Legislatures of the States.
It does not violate their freedom of speech, freedom of vote and conscience as contended.
The provisions of Paragraph 2 do not violet any rights or freedom under Article 105 and 194 of the Constitution.
The provisions are salutory and are intended to strengthen the 713 fabric of Indian parliamentary democracy by curbing unprincipled and unethical political defections.
(F) The contention that the provisions of the Tenth Schedule, even with the exclusion of Paragraph 7, violate the basic structure of the Constitution in that they affect the democratic rights of elected members and, therefore, of the principles of Parliamentary democracy is unsound and is rejected.
(G) The Speakers, Chairmen while exercising powers and discharging functions under the Tenth Schedule act as Tribunal adjucating rights and obligations under the Tenth Schedule and their decisions in that capacity are amenable to judicial review.
However, having regard to the Constitutional Scheme in the Tenth Schedule, judicial review should not cover any stage prior to the making of a decision by the speakers/Chairmen.
Having regard to the Constitutional intendment and the status of the repository of the adjudicatory power, no quia timet actions are permissible, the only exception for any interlocutory interference being cases of interlocutory disqualifications or suspensions which may have grave, immediate and irreversible repercussions and consequence.
(H) That Paragraph 6(1) of the Tenth Schedule, to the extent it seeks to impart finality to the decision of the Speakers/Chairmen is valid.
But the concept of statutory finality embodied in Paragraph 6 (1) does not detract from or abrogate judicial review under Articles 136,226 and 227 of the Constitution in so far as infirmities based on violations of constitutional mandates, mala fides, non compliance with Rules of Natural Justice and perversity, are concerned.
(I) That the deeming provision in Paragraph 6 (2) of the Tenth Schedule attracts an immunity analogous to that in Articles 122 (1) and 212 (1) of the Constitution as understood and explained in Keshav singh 's Case (Spl.
Ref., No. 1; , to protect the validity of proceedings from mere irregularities of procedure.
The deeming provision, having regard to the words "be deemed to be proceedings in Parliament" or "proceedings 714 in the Legislature of a State" confines the scope of the fiction accordingly.
(J) That contention that the investiture of adjudicatory functions in the Speakers/Chairmen would by itself vitiate the provision on the ground of likelihood of political bias is unsound and is rejected.
The Speakers/Chairmen hold a pivotal position in the scheme of Parliamentary democracy and are guardians of the rights and privileges of the House.
They are expected to and do take far reaching decisions in the functioning of Parliamentary democracy.
Vestiture of power to adjudicate questions under the Tenth Schedule in such a constitutional functionaries should not be considered exceptionable.
(K) In the view we take of the validity of Paragraph 7 it is unnecessary to pronounce on the contention that judicial review is a basic structure of the Constitution and Paragraph 7 of the Tenth Schedule violates such basic structure .
The factual controversies raised in the Writ Petition will, however, have to be decided by the High Court applying the principles declared and laid down by this judgment.
The Writ Petition is, accordingly,, remitted to the High Court for such disposal in accordance with law.
(Operative conclusions in the minority opinion) [Per SHARMA AND VERMA, JJ.] For the reasons to be given in our detailed judgment to follow, our operative conclusions in the minority opinion on the various constitutional issues are as follows: 1.
Para 7 of the Tenth Schedule,in clear terms and in effect excludes the jurisdiction of all courts, including the Supreme Court under Article 136 and the High Courts under Articles 226 and 227 to entertain any challenge to the decision under para 6 on any ground even of illegality or perveristy, not only at an interim stage but also after the final decision on the question of disqualification on the ground of defection.
Para 7 of the Tenth Schedule, therefore, in terms and in effect, 715 makes a change in Article 136 in Chapter IV of Part V; and Articles 226 and 227 in Chapter V of Part VI of the Constitution, attracting the proviso to clause (2) of Article 368.
In view of para 7 in the Bill resulting in the Constitution (Fifty Second Amendment) Act, 1985 it was required to be ratified by the Legislature of not less than one half of the States as a condition precedent before the Bill could be presented to the President for assent, in accordance with the mandatory special procedure prescribed in the Proviso to clause (2) of Article 368 for exercise of the constituent power.
Without ratification by the specified number of State Legislatures, the stage for presenting the Bill for assent of the President did not reach and, therefore, the so called assent of the President was non est and did not result in the Constitution standing amended in accordance with the terms of the Bill.
In the absence of ratification by the specified number of State Legislatures before presentation of the Bill to the President for his assent, as required by the Proviso to clause (2) of Article 368, it is not merely para 7 but, the entire Constitution (Fifty Second Amendment) Act, 1985 which is rendered unconstitutional, since the constituent power was not exercised as prescribed in Article 368, and therefore, the Constitution did not stand amended in accordance with the terms of the Bill providing for the amendment.
Doctrine of Severability cannot be applied to a Bill making a constitutional amendment where any part thereof attracts the Proviso to clause (2) of Article 368.
Doctrine of Severability is not applicable to permit striking down para 7 alone saving the remaining provisions of the Bill making the Constitutional Amendment on the ground that para 7 alone attracts the proviso to clause (2) of Article 368.
Even otherwise, having regard to the provisions of the Tenth Schedule of the Constitution inserted by the Constitution (Fifty_Second Amendment) Act, 1985, the Doctrine of Severability does not apply to it.
8.Democracy is a part of the basic structure of the Constitution and free and fair elections with provision for resolution of disputes relating to 716 the same as also for adjudication of those relating to subsequent disqualification by an independent body outside the House are essential features of the democratic system in our Constitution.
Accordingly, an independent adjudicatory machinery for resolving disputes relating to the competence of Member of the House is envisaged as an attribute of this basic feature.
The tenure of the Speaker who is the authority in the Tenth Schedule to decide this dispute is dependent on the continuous support of the majority in the House and, therefore,, he (the Speaker) does not satisfy the requirement of such an independent adjudicatory authority; and his choice as the sole arbiter in the matter violates an essential attribute of the basic feature.
Consequently, the entire constitution (Fifty Second Amendment) Act, 1985 which inserted the Tenth Schedule together with clause (2) in Articles 102 and 191, must be declared unconstitutional or an abortive attempt to so amend the constitution.
It follows that all decisions rendered by the several Speakers under the Tenth Schedule must also be declared nullity and liable to be ignored.
On the above conclusions, it does not appear necessary or appropriate to decide the remaining question urged.
ORDER The Transfer Petition is allowed and the Writ Petition, Rule No. 2421 of 1990 on the file of the High Court of Guwahati is withdrawn to this Court for the purpose of deciding the constitutional issues and of declaring the law on the matter.
In accordance with the majority opinion, the factual controversies raised in the Writ Petition will, however, have to be decided by the High Court Applying the principles declared and laid down by the majority.
The Writ Petition is, accordingly remitted to the High Court for such disposal in accordance with law.
VENKATACHALIAH, J.
In these petitions the constitutional validity of the Tenth Schedule of the Constitution introduced by the Constitution (Fifty Second Amendment) Act.
1985, is assailed.
These two cases were 717 amongst a batch of Writ Petitions, Transfer Petitions, civil Appeals, Special Leave Petitions and other similar and connected matters raising common questions which were all heard together.
On 12.11.1991 we made an order pronouncing our findings and conclusions upholding the constitutional validity of the amendment and of the provisions of the Tenth Schedule, except for Paragraph 7 which was declared invalid for want of ratification in terms of and as required by the proviso to Article 368 (2) of the Constitution.
In the order dated 12.11.1991 our conclusions were set out and we indicated that the reasons for the conclusions would follow later.
The reasons for the conclusions are now set out.
This order is made in Transfer Petition No. 40 of 1991 and in Writ Petition No. 17 of 1991.
We have not gone into the factual controversies raised in the Writ Petition before the Writ Petition before the Guwahati High Court in Rule No.2421 of 1990 from which Transfer Petition No. 40 of 1991 arises.
Indeed, in the order of 12th November, 1991 itself the said Writ Petition was remitted to the High Court for its disposal in accordance with law.
Shri F.S. Nariman, Shri Shanti Bhushan, Shri M.C. Bhandare, Shri Kapil Sibal, Shri Sharma and shri Bhim Singh, learned counsel addressed arguments in support of the petitions.
Learned Attorney General, Shri Soli J. Sorabjee,Shri R.K. Garg,Shri Santhosh Hegde sought to support the constitutional validity of the amendment.
Shri Ram Jethmalani has attacked the validity of the amendment for the same reasons as put forward by Shri Sharma.
Before we proceed to record our reasons for the conclusions reached in our order dated 12th November, 1991, on the contentions raised and argued, it is necessary to have a brief look at the provisions of the Tenth Schedule.
The Statement of Objects and Reasons appended to the Bill which was adopted as the Constitution (Fifty Second Amendment) Act, 1985 says: "The evil of political defections has been a matter of national concern.
If it is not combated, it is likely to undermine the very foundation of our democracy and the principles which sustain it.
With this object, an assurance was given in the Address by the President to Parliament that the Government intended to introduce in the current session of Parliament an anti defection 718 Bill.
This Bill is meant for outlawing defection and fulfilling the above assurance.
" On December 8, 1967, the Lok sabha had passed an unanimous Resolution in terms following: "a high level Committee consisting of representatives of political parties and constitutional experts be set up immediately by Government to consider the problem of legislators changing their allegiance from one party to another and their frequent crossing of the floor in all its aspects and make recommendations in this regard.
" The said Committee known as the "Committee on Defections" in its report dated January 7, 1969, inter alia, observed: "Following the Fourth General Election, in the short period between March 1967 and February, 1968, the Indian political scene was characterised by numerous instances of change of party allegiance by legislators in several States.
Compared to roughly 542 cases in the entire period between the First and Fourth General Election, at least 438 defections occurred in these 12 months alone.
Among Independents, 157 out of a total of 376 elected joined various parties in this period.
That the lure of office played a dominant part in decisions of legislators to defect was obvious from the fact that out of 210 defecting legislators of the States of Bihar, Haryana, Madhya Pradesh, Punjab, Rajasthan Uttar Pradesh and West Bengal, 116 were included in the Council of Ministers which they helped to bring into being by defections.
The other disturbing features of this phenomenon were: multiple acts of defections by the same persons or set of persons (Haryana affording a conspicuous example); few resignations of the membership of the legislature of explanations by individual defectors, indifference on the part of defectors to political proprieties, constituency preference or public opinion; and the belief held by the people and expressed in the press that corruption and bribery were behind some of these defections".
(emphasis supplied) 719 The Committee on Defections recommended that a defector should be debarred for a period of one year or till such time as he resigned his seat and got himself re elected from appointment to the office of a Minister including Deputy Minister or Speaker or Deputy Speaker, or any post carrying salaries or allowances to be paid from the Consolidated Fund of India or of the State or from the funds of Government Undertakings in public sector in addition to those to which the defector might be entitled as legislator.
The Committee on Defections could not however, reach an agreed conclusion in the matter of disqualifying a defector from continuing to be a Member of Parliament/State Legislator.
Keeping in view the recommendations of the committee on Defections, the Constitution (Thirty Second Amendment) Bill,, 1973 was introduced in the Lok Sabha on May 16, 1973.
It provided for disqualifying a Member from continuing as a Member of either House of Parliament or the State Legislature on his voluntarily giving up his membership of the political party by which he was set up as a candidate at such election or of which he became a Member after such election, or on his voting or abstaining from voting in such House contrary to any direction issued by such political party or by any person or authority authorised by it in this behalf without obtaining prior permission of such party, person or authority.
The said Bill, however, lapsed on account of dissolution of the House.
Thereafter, the Constitution (Forty eight Amendment) Bill, 1979 was introduced in the Lok Sabha which also contained similar provisions for disqualification on the ground of defection.
This Bill also lapsed and it was followed by the Bill which was enacted into the Constitution (Fifty Second Amendment) Act, 1985.
This brings to the fore the object underlying the provisions in the Tenth Schedule.
The object is to curb the evil of political defections motivated by lure of office or other similar considerations which endanger the foundations of our democracy.
The remedy proposed is to disqualify the Member of either House of Parliament or of the State Legislature who is found to have defected from continuing as a Member of the House.
The grounds of disqualification are specified in Paragraph 2 of the Tenth Schedule.
Paragraph 2(1) relates to a Member of the House belonging to a political party by which he was set up as a candidate at the election.
Under 720 Paragraph 2(1) (a) such a Member would incur disqualification if he voluntarily gives up his membership of such political party.
Under clause (b) he would incur the disqualification if he votes or abstains from voting in the House contrary to "any direction" issued by the political party to which he belongs or by any person or authority authorised by it in this behalf without obtaining, in either case, prior permission of such political party, person or authourity and such voting or abstention has not been condoned by such political party, person or authority within fifteen days from the date of such voting or abstention.
This sub para would also apply to a nominated member who is a Member of a political party on the date of his nomination as such Member or who joins a political party within six months of his taking oath.
Paragraph 2(2) deals with a Member who has been elected otherwise than as a candidate set up by any political party and would incur the disqualification if he joins any political party after such election.
A nominated Member of the House would incur his disqualification under sub para (3) if he joins any political party after the expiry of six months from the date on which he takes his seat.
Paragraphs 3 and 4 of the Tenth Schedule, however, exclude the applicability of the provisions for disqualification under para 2 in cases of "split" in the original political party or merger of the original political party with another political party.
These provisions in the Tenth Schedule give recognition to the role of political parties in the political process.
A political party goes before the electorate with a particular programme and it sets up candidates at the election on the basis of such programme.
A person who gets elected as a candidate set up by a political party is so elected on the basis of the programme of that political party.
The provisions of Paragraph 2(1) (a) proceed on the premise that political propriety and morality demand that if such a person, after the election, changes his affiliation and leaves and political party which had set him up as a candidate at the election, then he should give up his Membership of the legislature and go back before the electorate.
The same yard stick is applied to a person who is elected as an Independent candidate and wishes to join a political party after the election.
Paragraph 2 (1) (b) deals with a slightly different situation i.e. a variant where dissent becomes defection.
If a Member while remaining a 721 Member of the political party which had set him up as a candidate at the election, votes or abstains from voting contrary to "any direction" issued by the political party to which he belongs or by any person or authority authorised by it in this behalf he incurs the disqualification.
In other words, it deals with a Member who expresses his dissent from the stand of the political party to which he belongs by voting or abstaining from voting in the House contrary to the direction issued by the political party.
Paragraph 6 of the Tenth Schedule reads: "6 (1) If any question arises as to whether a Member of a House has become subject to disqualification under this Schedule the question shall be referred for the decision of the Chairman or, as the case may be, the Speaker of such House and his decision shall be final: Provided that where the question which has arisen is as to whether the Chairman or the Speaker of a House has become subject to such disqualification, the question shall be referred for the decision of such Member of the House as the House may elect in this behalf and his decision shall be final.
(2) All proceedings under sub Paragraph (1) of this Paragraph in relation to any question as to disqualification of a Member of a House under this Schedule shall be deemed to be proceedings in Parliament within the meaning of Article 122 or, as the case may be, proceedings in the Legislature of a State within the meaning of Article 212.
" Paragraph 7 says: "7.
Bar of jurisdiction of courts: Notwithstanding anything in this Constitution, no court shall have any jurisdiction in respect of any matter connected with the disqualification of a Member of a House under this Schedule.
The challenge to the constitutional validity of the Amendment which introduces the Tenth Schedule is sought to be sustained of many grounds.
It is urged that the constitutional Amendment introducing Paragraph 7 of the Tenth Schedule, in terms and in effect, seeks to make a change in Chapter IV of Part V of the Constitution in that it denudes the jurisdiction of the 722 Supreme Court under Article 136 of the Constitution of India and in Chapter V of part VI in that it takes away the jurisdiction of the High Courts under Article 226 and that, therefore, the legislative Bill, before presentation to the President for assent, would require to be ratified by the Legislature of not less than one half of the States by resolution to that effect.
In view of the admitted position that no such ratification was obtained for the Bill, it is contended, the whole Amending Bill not merely Paragraph 7 fails and the amendment merely remains an abortive attempt to bring about an amendment.
It is further contended that the very concept of disqualification for defection is violative of the fundamental values and principles underlying Parliamentary democracy and violates an elected representative 's freedom of speech, right to dissent and freedom of conscience and is, therefore, unconstitutional as destructive of a basic feature of the Indian Constitution.
It is also urged that the investiture in the Speaker or the Chairman of the power to adjudicate disputed defections would violate an important incident of another basic feature of the Constitution, viz., Parliamentary democracy.
It is contended that an independent, fair and impartial machinery for resolution of electoral disputes is an essential and important incident of democracy and that the vesting of the power of adjudication in the Speaker or the Chairman who, in the India Parliamentary system are nominees of political parties and are not obliged to resign their party affiliations after election is violative of this requirement.
It is alternatively contended that if it is to be held that the amendment does not attract the proviso to Article 368(2), then Paragraph 7 in so far as it takes away the power of judicial review, which, in itself, is one of the basic features of the Constitution is liable to be struck down.
There are certain other contentions which, upon a closer examination, raise issues more of construction than constitutionality.
For instance, some arguments were expanded on the exact connotations of a "split" as distinct from a "defection" within the meaning of Paragraph 3.
Then again, it was urged that under Paragraph 2(b) the expression "any direction" is so wide that even a direction,, which if given effect to and implemented might bring about a result which may itself be obnoxious to and violative of constitutional ideals and values would be a source of disqualification .
These are,, indeed, matters of construction as to how,, in the context in which the occasion for the introduction of the Tenth Schedule arose and the high purpose it is intended to serve, the expression "any direction" occurring in Paragraph 723 2(b) is to be understood.
Indeed, in one of the decisions cited before us (Prakash Singh Badal & Ors.
vs Union of India & Ors.
, AIR 1987 Punjab and Haryana 263) this aspect has been considered by the High Court.
The decision was relied upon before us.
We shall examine it presently.
Supporting the constitutionality of the Amendment, respondents urge that the Tenth Schedule creates a non justiciable constitutional area dealing with certain complex political issues which have no strict adjudicatory disposition.
New rights and obligations are created for the first time uno flatu by the Constitution and the Constitution itself has envisaged a distinct constitutional machinery for the resolution of those disputes.
These rights, obligations and remedies, it is urged, which are in their very nature and innate complexities are in political thickets and are not amenable to judicial processes and the Tenth Schedule has merely recognised this complex character of the issues and that the exclusion of this area is constitutionally preserved by imparting a finality to the decisions of the Speaker or the Chairman and by deeming the whole proceedings as proceedings within Parliament or within the House of Legislature of the States envisaged in Articles 122 and 212, respectively, and further by expressly excluding the Courts ' jurisdiction under Paragraph 7.
Indeed, in constitutional and legal theory, it is urged,, there is really no ouster of jurisdiction of Courts or of Judicial Review as the subject matter itself by its inherent character and complexities is not amenable to but outside judicial power and that the ouster of jurisdiction under Paragraph 7 is merely a consequential constitutional recognition of the non amenability of the subject matter to the judicial power of the State, the corollary of which is that the Speaker or the Chairman,, as the case may be, exercising powers under Paragraph 6(1) of the Tenth Schedule function not as a statutory Tribunal but as a part of the State 's Legislative Department.
It is, therefore, urged that no question of the ouster of jurisdiction of Courts would at all arise inasmuch as in the first place, having regard to the political nature of the issues, the subject matter is itself not amenable to judicial power.
It is urged that the question in the last analyses pertains to the constitution of the House and the Legislature is entitled to deal with it exclusively.
It is further urged that Judicial Review apart from Judicial Review of the legislation as inherent under a written constitution is 724 merely a branch of administrative law remedies and is by no means a basic feature of the Constitution and that, therefore, Paragraph 7, being a constitutional provision cannot be invalidated on some general doctrine not found in the Constitution itself.
On the contentions raised and urged at the hearing the questions that fall for consideration are the following: (A) The Constitution (Fifty Second Amendment) Act, 1985, in so far as it seeks to introduce the Tenth Schedule is destructive of the basic structure of the constitution as it is violative of the fundamental principles of Parliamentary democracy, a basic feature of the Indian constitutionalism and is destructive of the freedom of speech, right to dissent and freedom of conscience as the provisions of the Tenth Schedule seek to penalise and disqualify elected representatives for the exercise of these rights and freedoms which are essential to the sustenance of the system of Parliamentary democracy.
(B) Having regard to the legislative history and evolution of the principles underlying the Tenth Schedule, Paragraph 7 thereof in terms and in effect, brings about a change in the operation and effect of Article 136,, 226 and 227 of the Constitution of India and, therefore, the Bill introducing the amendment attracts the proviso to Article 368(2) of the constitution and would require to be ratified by the legislative of the States before the Bill is presented for Presidential assent.
(C) In view of the admitted non compliance with proviso to Article 368(2) not only Paragraph 7 of the Tenth Schedule, but also the entire Bill resulting in the Constitution (Fifty Second Amendment) Act, 1985, stands vitiated and the purported amendment is abortive and does not in law bring about a valid amendment.
Or whether, the effect of such non compliance invalidates Paragraph 7 alone and the other provisions which, by themselves, do not attract the proviso do not become invalid.
(D) That even if the effect of non ratification by the legislature 725 of the States is to invalidate Paragraph 7 alone, the whole of the Tenth Schedule fails for non severability.
Doctrine of severability, as applied to ordinary statutes to promote their constitutionality, is inapplicable to constitutional Amendments.
Even otherwise, having regard to legislative intent and scheme of the Tenth Schedule, the other provisions of the Tenth Schedule, after the severance and excision of Paragraph 7, become truncated, and unworkable and cannot stand and operate independently.
The Legislature would not have enacted the Tenth Schedule without Paragraph 7 which forms its heart and core.
(E) That the deeming provision in Paragraph 6(2) of the Tenth Schedule attracts the immunity under Articles 122 and 212.
The Speaker and the Chairman in relation to the exercise of the powers under the Tenth Schedule shall not be subjected to the jurisdiction of any Court.
The Tenth Schedule seeks to and does create a new and non justiciable area of rights, obligations and remedies to be resolved in the exclusive manner envisaged by the Constitution and is not amenable to , but constitutionally immune from curial adjudicative processes.
(F) That even if Paragraph 7 erecting a bar on the jurisdiction of Courts is held inoperative, the Courts ' jurisdiction is, in any event, barred as Paragraph 6(1) which imparts a constitutional `finality 'to the decision of the Speaker or the Chairman, as the case may be, and that such concept of `finality ' bars examination of the matter by the Courts.
(G) The concept of free and fair elections as a necessary concomitant and attribute of democracy which is a basic feature includes an independent impartial machinery for the adjudication of the electoral disputes.
The Speaker and the Chairman do not satisfy these incidents of an independent adjudicatory machinery.
The investiture of the determinative and adjudicative jurisdiction 726 in the Speaker or the Chairman, as the case may be, would, by itself, vitiate the provision on the ground of reasonable likelihood of bias and lack of impartiality and therefore denies the imperative of an independent adjudicatory machinery.
The Speaker and Chairman are elected and hold office on the support of the majority party and are not required to resign their Membership of the political party after their election to the office of the Speaker or Chairman.
(H) That even if Paragraph 7 of the Tenth Schedule is held not to bring about a change or affect Articles 136, 226 and 227 of the Constitution, the amendment is unconstitutional as it erodes and destroys judicial review which is one of the basic features of the constitution.
Re: Contention(A): (The Tenth Schedule is part of the constitution and attracts the same cannons of construction as are applicable to the expounding of the fundamental law.
One constitutional power is necessarily conditioned by the others as the Constitution is one "coherent document".
Learned counsel for the petitioners accordingly say that Tenth Schedule should be read subject to the basic features of the Constitution.
The Tenth Schedule and certain essential incidents of democracy, it is urged, cannot co exist.
In expounding the processes of the fundamental law, the Constitution must be treated as a logical whole.
Westel Woodbury Willoughby in the "Constitutional Law of the United States" states: "The Constitution is a logical whole, each provision of which is an integral part thereof, and it is, therefore,, logically proper, and indeed imperative, to construe one part in the light of the provisions of the other parts." [2nd Edn.
Vol.1 page 65] A constitutional document outlines only broad and general principles meant to endure and be capable of flexible application to changing circumstances a distinction which differentiates a statue from a Charter under which all statutes are made.
Cooley on "Constitutional Limitations" says: 727 "Upon the adoption of an amendment to a constitution, the amendment becomes a part thereof; as much so as if it had been originally incorporated in the Constitution; and it is to be construed accordingly." [8th Edn.
1 page 129] 13.
In considering the validity of a constitutional amendment the changing and the changed circumstances that compelled the amendment are important criteria.
The observations of the U.S. Supreme Court in Maxwell vs Dow (44 lawyer 's Edition 597 at page 605) are worthy of note: ". to read its language in connection with the known condition of affairs out of which the occasion for its adoption may have arisen and then to construe it,, if there be therein any doubtful expressions, in a way so far as is reasonably possible, to forward the known purpose or object for which the amendment was adopted. ." The report of the Committee on Defections took note of the unprincipled and unethical defections induced by considerations of personal gains said: ".
What was most heartening was the feeling of deep concern over these unhealthy developments in national life on the part of the leaders of political parties themselves.
Parliament mirrored this widespread concern. " [page 1] 14.
It was strenuously contended by Shri Ram Jethmalani and Shri Sharma that the provisions of the Tenth Schedule constitute a flagrant violation of those fundamental principles and values which are basic to the sustenance of the very system of Parliamentary democracy.
The Tenth Schedule, it is urged, negates those very foundational assumptions of Parliamentary democracy; of freedom of speech; of the right to dissent and of the freedom of conscience.
It is urged that unprincipled political defections may be an evil, but it will be the beginning of much greater evils if the remedies, graver than the disease itself, are adopted.
The Tenth Schedule, they say, seeks to throw away the baby with the bath water.
Learned counsel argue that "crossing the floor", as it has come to be called, mirrors the meanderings of a troubled conscience on issues of political 728 morality and to punish an elected representative for what really amounts to an expression of conscience negates the very democratic principles which the Tenth Schedule is supposed to preserve and sustain.
Learned counsel referred to the famous speech to the Electors of Bristol, 1774, where Edmund Burke reportedly said: "It ought to be the happiness and glory of a representative to live in the strictest union, the closest correspondence, and the most unreserved communication with his constituents.
Their wishes ought to have great weight with him; their opinion, high respect; their business, unremitted attention.
It is his duty to sacrifice his repose, his pleasures, his satisfactions to theirs and above all, ever, and in all cases, to prefer their interest to his own.
But his unbiased opinion, his mature judgment, his enlightened conscience, he ought not to sacrifice to you, to any man, or to any set of men living.
Your representative owes you, not his industry only, but his judgment; and he betrays, instead of serving you, if he sacrifices it to your opinion.
" [see: Parliament Functions, Practice & Procedures by JAG Griffith and Michael Ryle 1989 Edn. page 70] 15.
Shri Jethmalani and Shri sharma also relied upon certain observations of Lord Shaw in Amalgamated Society or Railway Servants vs Osborne, to contend that a provision which seeks to attach a liability of disqualification of an elected Member for freely expressing his views on matters of conscience, faith and political belief are indeed restraints on the freedom of speech restraints opposed to public policy.
In that case a registered trade union framed a rule enabling it to levy contributions on the Members to support its efforts to obtain Parliamentary representation by setting up candidates at elections.
It also framed a rule requiring all such candidates to sign and accept the conditions of the Labour Party and be subject to its whip.
The observations in the case relied upon by learned counsel are those of Lord Shaw of Dunfermline who observed: "Take the testing instance: should his view as to right and wrong on a public issue as to the true line of service to the realm, as to the real interests of the constituency which has elected him, or even of the society which pays him, differ from the decision of the parliamentary party and the maintenance by it of its 729 policy, he has come under a contract to place his vote and action into subjection not to his own convictions, but to their decisions.
My Lords, I do not think that such a subjection is compatible either with the spirit of our parliamentary constitution or with that independence and freedom which have hither to been held to lie at the basis of representative government in the United Kingdom." [page 111] "For the people having reserved to themselves the choice of their representatives, as the fence to their properties, could do it for no other end but that they might always be freely chosen, and so chosen freely act and advise, as the necessity of the commonwealth and the public good should upon examination and mature debate be judged to require. ." [page 113] "Still further, in regard to the Members of Parliament himself, he too is to be free; he is not to be the paid mandatory of any man, or organization of men, nor is he entitled to bind himself to subordinate his opinions on public questions to others, for wages, or at the peril of pecuniary loss; and any contract of this character would not be recognized by a Court of law, either for its enforcement or in respect of its breach. " [page 115] It is relevant to observe here that the rule impugned in that case was struck down by the Court of Appeal whose decision was upheld by the House of Lords on grounds of the Society 's competence to make the rule.
It was held that the rule was beyond its powers.
Lord Shaw, however, was of the view that the impugned rule was opposed to those principles of public policy essential to the working of a representative government.
The view expressed by Lord Shaw was not the decision of the House of Lords in the case.
But, the real question is whether under the Indian constitutional scheme is there any immunity from constitutional correctives against a 730 legislatively perceived political evil of unprincipled defections induced by the lure of office and monetary inducements? 16.
The points raised in the petitions are, indeed, far reaching and of no small importance invoking the `sense of relevance of constitutionally stated principles to unfamiliar settings '.
On the one hand there is the real and imminent threat to the very fabric of Indian democracy posed by certain levels of political behavior conspicuous by their utter and total disregard of well recognised political proprieties and morality.
These trends tend to degrade the tone of political life and, in their wider propensities, are dangerous to and undermine the very survival of the cherished values of democracy.
there is the legislative determination through experimental constitutional processes to combat that evil.
On the other hand, there are, as in all political and economic experimentations, certain side effects and fall out which might affect and hurt even honest dissenters and conscientious objectors.
These are the usual plus and minus of all areas of experimental legislation.
In these areas the distinction between what is constitutionally permissible and what is outside it is marked by a `hazy gray line ' and it is the Court 's duty to identify, " darken and deepen" the demarcating line of constitutionality a task in which some element of Judges ' own perceptions of the constitutional ideals inevitably participate.
There is no single litmus test of constitutionality.
Any suggested sure decisive test, might after all furnish a "transitory delusion of certitude" where the "complexities of the strands in the web of constitutionality which the Judge must alone disentangle" do not lend themselves to easy and sure formulations one way or the other.
It is here that it becomes difficult to refute the inevitable legislative element in all constitutional adjudications.
All distinctions of law even Constitutional law are, in the ultimate analyses, "matters of degree".
At what line the `white ' fades into the `black ' is essentially a legislatively perceived demarcation.
In his work "Oliver Wendell Holmes Free Speech and the Living Constitution" (1991 Edition: New York University Publication) Pohlman says: "All distinctions of law, as Holmes never tired of saying, were 731 therefore "matters of degree." Even in the case of constitutional adjudication, in which the issue was whether a particular exercise of power was within or without the legislature 's authority, the judge 's decision "will depend on a judgment or intuition more subtle than any articulate major premise." As the particular exertion of legislative power approached the hazy gray line separating individual rights from legislative powers, the judge 's assessment of constitutionality became a subtle value judgment.
The judge 's decision was therefore not deductive, formal, or conceptual in any sense.
[page 217] [emphasis supplied] Justice Holmes himself had said: "Two widely different cases suggest a general distinction, which is a clear one when stated broadly.
But as new cases cluster around the opposite poles, and begin to approach each other, the distinction becomes more difficult to trace; the determinations are made one way or the other on a very slight preponderance of feeling, rather than articulate reason; and at last a mathematical line is arrived at by the contact of contrary decisions, which is so far arbitrary that it might equally well have been drawn a little further to the one side or to the other." [Emphasis supplied] [See: "Theory of Torts" American Law Review 7 (1873) The argument that the constitutional remedies against the immorality and unprincipled chameleon like changes of political hues in pursuit of power and pelf suffer from something violative of some basic feature of the Constitution, perhaps, ignores the essential organic and evolutionary character of a Constitution and its flexibility as a living entity to provide for the demands and compulsions of the changing times and needs.
The people of this country were not beguiled into believing that the menace of unethical and unprincipled changes of political affiliations is something which the law is helpless against and is to be endured as a necessary concomitant of freedom of conscience.
The onslaughts on their sensibilities 732 by the incessant unethical political defections did not dull their perception of this phenomenon as a canker eating into the vitals of those values that make democracy a living and worth while faith.
This is prominently an area where Judges should defer to legislative perception of and reaction to the pervasive dangers of unprincipled defections to protect the community.
"Legislation may begin where an evil begins".
Referring to the judicial philosophy of Justice Holmes in such areas, Pohlman again says: "A number of Holmes 's famous aphorisms point in the direction that judges should defer when the legislature reflected the pervasive and predominant values and interests of the community.
He had, for example, no "practical" criterion to go on except "what the crowd wanted." He suggested, in a humorous vein that his epitaph. . . .No judge ought to interpret a provision of the Constitution in a way that would prevent the American people from doing what it really wanted to do.
If the general consensus was that a certain condition was an "evil" that ought to be corrected by certain means, then the government had the power to do it: "Legislation may begin where an evil begins"; "Constitutional law like other mortal contrivances has to take some chances." "Some play must be allowed to the joints if the machine is to work.
" All of these rhetorical flourishes suggest that Holmes deferred to the legislature if and when he thought it accurately mirrored the abiding beliefs, interests, and values of the american public." (emphasis supplied) [See: Justice Oliver Wendell Holmes Free Speech and the Living Constitution by H.L. Pohlman 1991 Edn. page 233] 18.
Shri Sharma contends that the rights and immunities under Article 105(2) of the Constitution which according to him are placed by judicial decisions even higher than the fundamental right in Article 19(1)(a), have violated the Tenth Schedule.
There are at least two objections to the acceptability of this contention.
The first is that the Tenth Schedule does not impinge upon the rights or immunities under Article 105(2).
Article 105(2) of the Constitution provides: "105.
Powers, privileges, etc., of the Houses of Parliament and 733 of the Members and committees thereof. (1). . (2) No Member of Parliament shall be liable to any proceedings in any court in respect of anything said or any vote given by him in Parliament or any committee thereof, and no person shall be so liable in respect of the publication by or under the authority of either House of Parliament of any report, paper, votes or proceedings.
The freedom of speech of a Member is not an absolute freedom.
That apart, the provisions of the Tenth Schedule do not purport to make a Member of a House liable in any `Court ' for anything said or any vote given by him in Parliament.
It is difficult to conceive how Article 105(2) is a source of immunity from the consequences of unprincipled floor crossing.
Secondly, on the nature and character of electoral rights this Court in Jyoti Basu & Ors.
vs Debi Ghosal & 3 S.C.R. 318 observed: "A right to elect, fundamental though it is to a democracy, is, anomalously enough, neither a fundamental right nor a Common Law Right.
It is pure and simple, a statutory right.
So is the right to be elected.
So is the right to dispute an election.
Outside of statute, there is no right to elect, no right to be elected and no right to dispute an election.
Statutory creations they are, and therefore, subject to statutory limitation. ' [Page 326] Democracy is a basic feature of the constitution.
Whether any particular brand or system of Government by itself, has this attribute of a basic feature, as lone as the essential characteristics that entitle a system of government to be called democratic are otherwise satisfied is not necessary to be gone into.
Election conducted at regular, prescribed intervals is essential to the democratic system envisaged in the constitution.
So is the need to protect and sustain the purity of the electoral process.
That may take within it the quality, efficacy and adequacy of the machinery for resolution of electoral disputes.
From that it does not necessarily follow that the rights and immunities under sub article (2) of Article 105 of the Constitution, are elevated into fundamental rights and that the Tenth Schedule would have to be struck down for its inconsistency with Article 734 105 (2) as urged by Shri Sharma.
19.Parliamentary democracy envisages that matters involving implementation of policies of the Government should be discussed by the elected representatives of the people.
Debate, discussion and persuasion are, therefor, the means and essence of the democratic process.
During the debates the Members put forward different points of view.
Members belonging to the same political party may also have, and may give expression to, differences of opinion on a matter.
Not unoften the view expressed by the Members in the House have resulted in substantial modification, and even the withdrawal, of the proposals under consideration.
Debate and expression of different points of view, thus, serve an essential and healthy purpose in the functioning of Parliamentary democracy.
At times such an expression of views during the debate in the House may lead to voting or abstenance from voting in the House otherwise than on party lines.
But a political party functions on the strength of shared beliefs.
Its own political stability and social utility depends on such shared beliefs and concerted action of its Members in furtherance of those commonly held principles.
Any freedom of its members to vote as they please independently of the political party 's declared policies will not only embarrass its public image and popularity but also undermine public confidence in it which, in the ultimate analysis, is its source of sustenance nay, indeed, its very survival.
Intra party debates are of course a different thing.
But a public image of disparate stands by Members of the same political party is not looked upon,in political tradition, as a desirable state of things.
Griffith and Ryle on "Parliament, Functions, Practice & Procedure" (1989 Edn. page 119) say: "Loyalty to party is the norm, being based on shared beliefs.
A divided party is looked on with suspicion by the electorate.
It is natural for Members to accept the opinion of their Leaders and Spokesmen on the wide variety of matters on which those Members have no specialist knowledge.
Generally Members will accept majority decisions in the party even when they disagree.
It is understandable therefore that a Member who rejects the party whip even on a single occasion will attract attention and more criticism than sympathy.
To abstain from voting when required by party to vote is to suggest a degree of unreliability.
To vote against party is disloyalty.
To join with others in abstention 735 or voting with the other side smacks of conspiracy." (emphasis supplied) Clause (b) of sub para (1) of Paragraph 2 of the Tenth Schedule gives effect to this principle and sentiment by imposing a disqualification on a Member who votes or abstains from voting contrary to "any directions" Issued by the political party.
The provision, however, recognises two exceptions: one when the Member obtains from the political party prior permission to vote or abstain from voting and the other when the Member has voted without obtaining such permission but his action has been condoned by the political party.
This provision itself accommodates the possibility that there may be occasions when a Member may vote or abstain from voting contrary to the direction of the party to which he belongs.
This, in itself again, may provide a clue to the proper understanding and construction of the expression "Any Direction" in clause (b) of Paragraph 2(1) whether really all directions or whips from the party entail the statutory consequences or whether having regard to the extra ordinary nature and sweep of the power and the very serious consequences that flow including the extreme penalty of disqualification the expression should be given a meaning confining its operation to the contexts indicated by the objects and purposes of the Tenth Schedule.
We shall deal with this aspect separately.
The working of the modern Parliamentary democracy is complex.
The area of the inter se relationship between the electoral constituencies and their elected representatives has many complex features and overtones.
The citizen as the electorate is said to be the political sovereign.
As long as regular general elections occur, the electorate remains the arbiter of the ultimate composition of the representative legislative body to which the Government of the day is responsible.
There are, of course,, larger issues of theoretical and philosophical objections to the legitimacy of a representative Government which might achieve a majority of the seats but obtains only minority of the electoral votes.
It is said that even in England this has been the phenomenon in every general elections in this century except the four in the years 1900, 1918, 1931 and 1935.
But in the area of the inter relationship between the constituency and its elected representative, it is the avowed endeavour of the latter to requite the expectations of his voters.
Occasionally, this might conflict with his political obligations to the political party sponsoring him which expects 736 and exacts in its own way loyalty to it.
This duality of capacity and functions are referred to by a learned author thus: "The functions of Members are of two kinds and flow from the working of representative government.
When a voter at a general election, in that hiatus between parliaments, puts his cross against the name of the candidate he is [most often] consciously performing two functions: seeking to return a particular person to the house of commons as Member for that constituency; and seeking to return to power as the government of the country a group of individuals of the same party as that particular person.
The voter votes for a representative and for a government.
He may know that the candidate he votes has little chance of being elected. . ." "When a candidate is elected as a Member of the House of Commons, he reflects those two functions of the voter.
Whatever other part he may play, he will be a constituency M.P.
As such, his job will be to help his constituents as individuals in their dealings with the departments of State.
He must listen to their grievances and often seek to persuade those in authority to provide remedies.
He must have no regard to the political leanings of his constituents for the represents those who voted against him or who did not vote at all as much as those who voted for him.
Even if he strongly disagrees with their complaint he may still seek to represent it, though the degree of enthusiasm with which he does so is likely to be less great." [See: Parliament Function.
Practice and Procedures by JAG Griffith and Ryle 1989 Edn. page 69] So far as his own personal views on freedom of conscience are concerned,, there may be exceptional occasions when the elected representative finds himself compelled to consider more closely how he should act.
Referring to these dilemmas the authors say: ".
The first is that he may feel that the policy of his party whether it is in office or in opposition, on a particular matter is not one of which he approves.
He may think this because of his personal opinions or because of its special consequences 737 for his constituents or outside interests or because it reflects a general position within the party with which he cannot agree.
On many occasions, he may support the party despite his disapproval.
But occasionally the strength of his feeling will be such that he is obliged to express his opposition either by speaking or by abstaining on a vote or even by voting with the other side.
Such opposition will not pass unnoticed and, unless the matter is clearly one of conscience, he will not be popular with the party whips.
The second complication is caused by a special aspect of parliamentary conduct which not frequently transcends party lines.
Members, who are neither Ministers nor front bench Opposition spokesmen, do regard as an important part of their function the general scrutiny of Governmental activity.
This is particularly the role of select committees which have, as we shall see, gained new prominence since 1979.
No doubt, it is superficially paradoxical to see Members on the Government side of the House joining in detailed criticism of the administration and yet voting to maintain that Government in office.
But as one prominent critic of government has said, there is nothing inherently contradictory in a Member sustaining the Executive in its power or helping it to overcome opposition at the same time as scrutinising the work of the executive in order both to improve it and to see that power is being exercised in a proper and legitimate fashion." [page 69 and 70] Speaking of the claims of the political party on its elected Member Rodney Brazier says: "Once returned to the House of Commons the Member 's party expects him to be loyal.
This is not entirely unfair or improper, for it is the price of the party 's label which secured his election.
But the question is whether the balance of a Member 's obligations has tilted too far in favour of the requirements of party.
The nonsense that a Whip even a three line whip is no more than a summons to attend the House, and that, once there, the Member is completely free to speak and vote as he thinks fit, was 738 still being put about, by the Parliamentary Private Secretary to the Prime Minister, as recently as 1986.
No one can honestly believe that.
Failure to vote with his party on a three line whip without permission invites a party reaction.
This will range (depending on the circumstances and whether the offence is repeated) from a quiet word from a Whip and appeals to future loyalty, to a ticking off or a formal reprimand (perhaps from the Chief Whip himself), to any one of a number of threats.
The armoury of intimidation includes the menaces that the Member will never get ministerial office, or go on overseas trips sponsored by the party, or be nominated by his party for Commons Committee Memberships, or that he might be deprived of his party 's whip in the House, or that he might be reported to his constituency which might wish to consider his behaviour when reselection comes round again. .Does the Member not enjoy the Parliamentary privilege of freedom of speech? How can his speech be free in the face of such party threats? The answer to the inquiring citizen is that the whip system is part of the conventionally established machinery of political organisation in the house, and has been ruled not to infringe a Member 's parliamentary privilege in any way.
The political parties are only too aware of utility of such a system,, and would fight in the last ditch to keep it." [See; Constitutional Reform Reshaping the British Political System by Rodney Brazier, 1991 Edn.
pages 48 and 49] The learned author, referring to cases in which an elected Member is seriously unrepresentative of the general constituency opinion, or whose personal behaviour falls below standards acceptable to his constituents commends that what is needed is some additional device to ensure that a Member pays heed to constituents ' views.
Brazier speaks of the efficacy of device where the constituency can recall its representative.
Brazier says: "What sort of conduct might attract the operation of the recall power? First, a Member might have misused his Membership of the House, for example to further his personal financial interests in a manner offensive to his constituents.
They might consider that the action taken against him by the house (or, indeed, lack 739 of action) was inadequate. .Thirdly, the use of a recall power might be particularly apt when a member changed his party but declined to resign his seats and fight an immediate by election.
It is not unreasonable to expect a Member who crosses the floor of the House, or who joins a new party, to resubmit himself quickly to the electors who had returned him in different colours.
Of course, in all those three areas of controversial conduct the ordinary process of reselection might well result in the Member being dropped as his party 's candidate (and obviously would definitely have that result in the third case).
But that could only occur when the time for reselection came; and in any event the constituency would still have the Member representing them until the next general election.
A cleaner and more timely parting of the ways would be preferable.
Sometimes a suspended sentence does not meet the case." [page 52 and 53] Indeed, in a sense an anti defection law is a statutory variant of its moral principle and justification underlying the power of recall.
What might justify a provision for recall would justify a provision for disqualification for defection.
Unprincipled defection is a political and social evil.
It is perceived as such by the legislature.
People, apparently, have grown distrustful of the emotive political exultations that such floor crossings belong to the sacred area of freedom of conscience, or of the right to dissent or of intellectual freedom.
The anti defection law seeks to recognise the practical need to place the proprieties of political and personal conduct whose awkward erosion and grotesque manifestations have been the base of the times above certain theoretical assumptions which in reality have fallen into a morass of personal and political degradation.
We should, we think, defer to this legislative wisdom and perception.
The choices in constitutional adjudications quite clearly indicate the need for such deference.
"Let the end be legitimate, let it be within the scope of the Constitution and all means which are appropriate, which are adopted to that end. " are constitutional.
[See Kazurbach vs Morgan: ; 21.
It was then urged by Shri Jethmalani that the distinction between the conception of "defection" and "split" in the Tenth Schedule is so thin and artificial that the differences on which the distinction rests are indeed 740 an outrageous defiance of logic.
Shri Jethmalani urged that if floor crossing by one Member is an evil, then a collective perpetration of it by 1/3rd of the elected Members of a party is no better and should be regarded as an aggravated evil both logically and from the part of its aggravated consequences.
But the Tenth Schedule, says Shri Jethmalani, employs its own inverse ratiocination and perverse logic to declare that where such evil is perpetrated collectively by an artificially classified group of not less than 1/3rd Members of that political party that would not be a "defection" but a permissible "split" or "merger".
This exercise to so hold up the provision as such crass imperfection is performed by Shri Jethmalani with his wonted forensic skill.
But we are afraid what was so attractively articulated, on closer examination, is, perhaps, more attractive than sound.
The underlying premise in declaring an individual act of defection as forbidden is that lure of office or money could be presumed to have prevailed.
Legislature has made this presumption on its own perception and assessment of the extant standards of political proprieties and morality.
At the same time legislature evisaged the need to provide for such "floor crossing" on the basis of honest dissent.
That a particular course of conduct commended itself to a number of elected representatives might, in itself, lend credence and reassurance to a presumption of bonafide.
The presumptive impropriety of motives progressively weakens according as the numbers sharing the action and there is nothing capricious and arbitrary in this legislative perception of the distinction between `defection ' and `split '.
Where is the line to be drawn? What number can be said to generate a presumption of bonafides ? Here again the Courts have nothing else to go by except the legislative wisdom and, again, as Justice Holmes said, the Court has no practical criterion to go by except "what the crowd wanted".
We find no substance in the attack on the statutory distinction between "defection" and "split".
Accordingly we hold: "that the Paragraph 2 of the Tenth Schedule to the Constitution is valid.
Its provisions do not suffer from the vice of subverting democratic rights of elected Members of Parliament and the Legislatures of the States.
It does not violate their freedom of 741 speech, freedom of vote and conscience as contended.
The Provisions of Paragraph 2 do not violate any rights or freedom under Articles 105 and 194 of the Constitution.
The provisions are salutory and are intended to strengthen the fabric of Indian Parliamentary democracy by curbing unprincipled and unethical political defections.
The contention that the provisions of the Tenth Schedule, even with the exclusion of Paragraph 7, violate the basic structure of the Constitution in they affect the democratic rights of elected Members and, therefore, of the principles of Parliamentary democracy is unsound and is rejected.
Re: Contention (B): The thrust of the point is that Paragraph 7 brings about a change in the provisions of chapter IV of Part V and chapter V of Part VI of the Constitution and that, therefore, the amending Bill falls within proviso to Article 368 (2).
We might, at the outset, notice Shri Sibal 's submission on a point of construction of Paragraph 7.
Shri Sibal urged that Paragraph 7, properly construed, does not seek to oust the jurisdiction of courts under Articles, 136, 226 and 227 but merely prevents an interlocutory intervention or a quia timet action.
He urged that the words "in respect of any matters connected with the disqualification of a Member" seek to bar jurisdiction only till the matter is finally decided by the speaker or Chairman, as the case may be, and does not extend beyond that stage and that in dealing with the dimensions of exclusion of the exercise of judicial power the broad considerations are that provisions which seek to exclude Courts ' jurisdiction shall be strictly construed.
Any construction which results in denying the Courts ' it, it is urged, not favoured.
Shri Sibhal relied upon the following observations of this Court in H.H. Maharajadhiraja Madhav Rao Jiwaji Rao Scindia Bahadur & Ors: vs Union of India, ; ".
The proper forum under our Constitution for determining a legal dispute is the Court which is by training and experience, assisted by properly qualified advocates, fitted to perform that task.
A provision which purports to exclude the jurisdiction of the Courts in certain matters and to deprive the aggrieved party 742 of the normal remedy will be strictly construed, for it is a principle not to be whittled down that an aggrieved party will not, unless the jurisdiction of the Courts is by clear enactment or necessary implication barred, be denied his right to seek recourse to the Courts for determination of his rights. . ".
"The Court will avoid imputing to the Legislature an intention to enact a provision which flouts notions of justice and norms of fairplay, unless a contrary intention is manifest from words plain and unambiguous.
A provision in a statute will not be construed to defeat its manifest purpose and general values which animate its structure.
In an avowedly democratic polity, statutory provisions ensuring the security of fundamental human rights including the right to property will, unless the contrary mandate be precise and unqualified, be construed liberally so as to uphold the right.
These rules apply to the interpretation of constitutional and statutory provisions alike." [page 94 95] It is true that the provision which seeks to exclude the jurisdiction of Courts is strictly construed.
See also, Mask & Co., vs Secretary of State, AIR 1940 P.C. 105.
But the rules of construction are attracted where two or more reasonably possible constructions are open on the language of the statute.
But, here both on the language of paragraph 7 and having regard to the legislative evolution of the provision, the legislative intent is plain and manifest.
The words "no Court shall have any jurisdiction in respect of any matter connected with the disqualification of a member" are of wide import and leave no constructional options.
This is reinforced by the legislative history of the anti defection law.
The deliberate and purposed presence of Paragraph 7 is clear from the history of the previous proposed legislations on the subject.
A comparison of the provisions of the Constitution (Thirty second Amendment) Bill, 1973 and the Constitution (Forty eight Amendment) Bill, 1978, (both of which had lapsed) on the one hand and the Constitution (52nd Amendment) Bill, 1985, would bring out the avowed and deliberate intent of Paragraph 7 in the Tenth Schedule.
The previous constitution (32th and 48th Amendment) Bills contained similar provisions for 743 disqualification on grounds of defections, but these Bills did not contain any clause ousting the jurisdiction of the court.
Determination of disputed disqualifications was left to the Election Commission as in the case of other disqualifications under Article 102 and 103 in the case of members of Parliament and Articles 191 and 192 in the case of Members of Legislature of the States.
The Constitution (Fifty second Amendment) Bill for the first time envisaged the investiture of the power to decide disputes on the speaker or the Chairman.
The purpose of the enactment of Paragraph 7, as the debates in the House indicate, was to bar the jurisdiction of the Courts under Articles 136, 226 and 227 of the Constitution of India, Shri Sibal 's suggested contention would go against all these over whelming interpretative criteria apart from its unacceptability on the express language of paragraph 7.
But it was urged that no question of change in Articles 136, 226 and 227 of the Constitution within the meaning of clause (b) of the proviso to Article 368(2) arises at all in view of the fact that the area of these rights and obligations being constitutionally rendered non justiciable, there is no judicial review under Articles 136,226 and 227 at all in the first instance so as to admit of any idea of its exclusion.
Reliance was placed on the decisions of this Court in Sri Sankari Prasad Singh Deo vs Union of India and State of Bihar, ; and Sajjan Singh vs State of Rajasthan, ; 24.
In Sankari Prasad 's case, the question was whether the Amendment introducing Articles 31A and 31B in the Constitution required ratification under the said proviso.
Repelling this contention it was observed: "It will be seen that these articles do not either in terms or in effect seek to make any change in article 226 or in articles 132 and 136.
Article 31A aims at saving laws providing for the compulsory acquisition by the State of certain kind of property from the operation of articles 13 read with other relevant articles in Part III, while article 31B purports to validate certain specified Acts and Regulations already passed, which, but for such a provision, would be liable to be impugned under Article 13.
It is not correct to say that the powers of the High Court under Article 226 to issue writs "for the enforcement of any of the rights conferred by Part III" or of this Court under Articles 132 and 136 to entertain appeals from orders issuing or refusing such writs are in any way affected.
They remain just the same 744 as they were before: only a certain class of case has been excluded from the purview of Part III and the courts could no longer interfere, no because their powers were curtailed in any manner or to any extent, but because there would be no occasion hereafter for the exercise of their power in such cases." at 108] In Sajjan Singh 's case, a similar contention was raised against the validity of the Constitution (17th Amendment) Act, 1964 by which Article 31 A was again amended and 44 statutes was whether the amendment required ratification under the proviso the Article 368.
This Court noticed the question thus : "The question which calls for our decision is: what would be the requirement about making an amendment in a constitutional provision contained in Part III, if as a result of the said amendment, the powers conferred on the High Courts under Article 226 are likely to be affected?" [P. 940] Negativing the challenge to the amendment on the ground of nonratification, it was held: ".
Thus, if the pith and substance test is applied to the amendment made by the impugned Act, it would be clear that Parliament is seeking to amend fundamental rights solely with the object of removing any possible obstacle in the fulfillment of the socio economic policy in which the party in power believes.
If that be so, the effect of the amendment on the area over which the High Courts 'powers prescribed by Article 226 operate, is incidental and in the present case can be described as of an insignificant order.
The impugned Act does not purport to change the provisions of Article 226 and it cannot be said even to have that effect directly or in any appreciable measure.
That is why we think that the argument that the impugned Act falls under the proviso, cannot be sustained. " [P.944] 745 The propositions that fell for consideration is Sankari Prasad Singh 's and Sajjan Singh 's cases are indeed different.
There the jurisdiction and power of the Courts under Articles 136 and 226 were not sought to be taken away nor was there any change brought about in those provisions either "in terms or in effect", since the very rights which could be adjudicated under and enforced by the Courts were themselves taken away by the Constitution.
The result was that there was no area for the jurisdiction of the Courts to operate upon.
Matters are entirely different in the context of paragraph 7.
Indeed the aforesaid cases, by necessary implication support the point urged for the petitioners.
The changes in Chapter IV of Part V and Chapter V of Part VI envisaged by the proviso need not be direct.
The change could be either "in terms of or in effect".
It is not necessary to change the language of Articles 136 and 226 of the Constitution to attract the proviso.
If in effect these Articles are rendered ineffective and made inapplicable where these articles could otherwise have been invoked or would, but for Paragraph 7, have operated there is `in effect ' a change in those provisions attracting the proviso.
Indeed this position was recognised in Sajjan Singh 's case where it was observed: "If the effect of the amendment made in the fundamental rights on Article 226 is direct and not incidental and is of a very significant order, different considerations may perhaps arise." [P.944] In the present cases, though the amendment does not bring in any change directly in the language of Article 136, 226 and 227 of the Constitution, however, in effect paragraph 7 curtails the operation of those Articles respecting matters falling under the Tenth Schedule.
There is a change in the effect in Article 136, 226 and 227 within the meaning of clause (b) of the proviso to Article 368(2).
Paragraph 7, therefore, attracts the proviso and ratification was necessary.
Accordingly, on Point B, we hold: "That having regard to the background and evolution of the principles underlying the Constitution (52nd Amendment) Act, 1985, in so far as it seeks to introduce the Tenth Schedule in the Constitution of India, the provisions of Paragraph 7 of the Tenth Schedule of the constitution in terms and in effect bring 746 about a change in the operation and effect to Articles 136, 226 and 227 of the Constitution of India and, therefore, the amendment would require to be ratified in accordance with the proviso to sub Article (2) of Article 368 of the Constitution of India.
Re: Contentions `C ' and `D ' : The criterion for determining the validity of a law is the competence of law making authority.
The competence of the law making authority would depend on the ambit of the legislative power, and the limitations imposed thereon as also the limitations on mode of exercise of the power.
Though the amending power in a constitution is in the nature of a constituent power and differs in content from the Legislative power, the limitations imposed on the constituent power my be substantive as well as procedural.
Substantive limitations are those which restrict the field of exercise of the amending power and exclude some areas fro its ambit.
Procedural limitations are those which impose restrictions with regard to the mode of the exercise of the amending power.
Both these limitations, however, touch and affect the constituent power itself, disregard of which invalidates its exercise.
The Constitution provides for amendment in Articles 4, 169, 368, paragraph 7 of Fifth Schedule and paragraph 21 of Sixth Schedule.
Article 4 makes provisions for amendment of the First and the Fourth Schedules, Article 169 provides for amendment in the provision of the Constitution which may be necessary for abolition or creation of Legislative Councils in States, paragraph 7 of the Fifth Schedule provides for amendment of the Fifth Schedule and paragraph 21 of Sixth Schedule provides for amendment of the Sixth Schedule.
All these provisions prescribe that the said amendments can be made by a law made by Parliament which can be passed like any other law by a simple majority in the House of Parliament.
Article 368 confers the power to amend the rest of the provisions of the Constitution.
In sub Article (2) of Article 368, a special majority two thirds of the members of each House of Parliament present and voting and majority of total membership of such House is required to effectuate the amendments.
The proviso to sub article (2) of Article 368 imposes a further requirement that if any change in the provisions set out in clauses (a) to (e) of the proviso, is intended it would then be necessary that the amendment 747 be ratified by the legislature of not less than one half of the States.
Although there is no specific enumerated substantive limitation on the power in Article 368, but as arising from very limitation in the word `amend ', a substantive limitation is inherent on the amending power so that the amendment does not alter the basic structure or destroy the basic features of the Constitution.
The amending power under Article 368 is subject to the substantive limitation in that the basic structure cannot be altered or the basic features of the Constitution destroyed.
The limitation requiring a special majority is a procedural one.
Both these limitations impose a fetter on the competence of Parliament to amend the Constitution and any amendment made in disregard of these limitations would go beyond the amending power.
While examining the constitutional validity of laws the principle that is applied is that if it is possible to construe a statute so that its validity can be sustained against a constitutional attack it should be so construed and that when part of a statute is valid and part is void, the valid part must be separated from the invalid part.
This is done by applying the doctrine of severability.
The rationale of this doctrine has been explained by Cooley in the following words; "It will sometimes be found that an act of the legislature is opposed in some of its provisions to the constitution, while others, standing by themselves, would be unobjectionable.
So the forms observed in passing it may be sufficient for some of the purposes sought to be accomplished by it, but insufficient for others.
In any such case the portion which conflicts with the constitution, or inregard to which the necessary conditions have not been observed, must be treated as a nullity.
Whether the other parts of the statute must also be adjudged void because of the association must depend upon a consideration of the object of the law, and in what manner and to what extent the unconstitutional portion affects the remainder.
A statute, it has been said, is judicially held to be unconstitutional, because it is not within the scope of legislative authority; it may either propose to accomplish something prohibited by the constitution, or to accomplish some lawful, and even laudable object, by means repugnant to the Constitution of the United States 748 or of the State.
A statute may contain some such provisions, and yet the same act, having received the sanction of all branches of the legislature, and being in the form of law, may contain other useful and salutary provisions, not obnoxious to any just constitutional exception.
It would be inconsistent with all just principles of constitutional law to adjudge these enactments void because they are associated in the same act, but not connected with or dependent on others which are unconstitutional." [Cooley 's Constitutional Limitations; 8th Edn.
Vol. 1, p. 359 360] In R.M.D. Chamarbaugwalla vs Union of India, ; , this Court has observed: "The question whether a statute, which is void in part is to be treated as void in toto, or whether it is capable of enforcement as to that part which is valid is one which can arise only with reference to laws enacted by bodies which do not possess unlimited powers of legislation as, for example, the legislatures in a Federal Union.
The limitation on their powers may be of two kinds: It may be with reference to the subject matter on which they could legislate, as, for example, the topics enumerated in the Lists in the Seventh Schedule in the Indian Constitution, sections 91 and 92 of the Canadian Constitution, and section 51 of the Australian Constitution; or it may be with reference to the character of the legislation which they could enact in respect of subjects assigned to them as for example, in relation to the fundamental rights guaranteed in Part III of the Constitution and similar constitutionally protected rights in the American and other Constitutions.
When a legislature whose authority is subject to limitations aforesaid enacts a law which is wholly in excess of its powers, it is entirely void and must be completely ignored.
But where the legislation falls in part within the area allotted to it and in part outside it, it is undoubtedly void as to the latter; but does it on that account become necessarily void in its entirety? The answer to this question must depend on whether what is valid could be separated from what 749 is invalid, and that is a question which has to be decided by the court on a consideration of the provisions of the Act.
" [P.940] The doctrine of severability has been applied by this Court in cases of challenge to the validity of an amendment on the ground of disregard of the substantive limitations on the amending power, namely, alteration of the basic structure.
But only the offending part of the amendment which had the effect of altering the basic structure was struck down while the rest of the amendment was unheld, See : Shri Kesavananda Bharti Sripadagalavaru vs State of Kerala, [1973] Supp.
SCR 1; Minerva Mills Ltd.& Ors.
vs Union of India & Ors.
, ; ; P. Sambhamurthy & Ors, etc.
vs State of Andhra Pradesh & Anr.
, ; 28.Is there anything in the procedural limitations imposed by sub Article (2) of Article 368 which excludes the doctrine of severability in respect of a law which violates the said limitations? Such a violation may arise when there is a composite Bill or what is in statutory context or jargon called a `Rag Bag ' measure seeking amendments to several statutes under one amending measure which seeks to amend various provisions of the Constitution some of which may attract clauses (a) to (e) of the proviso to Article 368(2) and the Bill, though passed by the requisite majority in both the Houses of Parliament has received the assent of the President without it being sent to States for ratification or having been so sent fails to receive such ratification from not less than half the States before the Bill is presented for assent.
Such an Amendment Act is within the competence of Parliament insofar as it relates to provisions other than those mentioned in clauses (a) to (e) of proviso to Article 368(2) but in respect of the amendments introduced in provisions referred to in clauses (a) to (e) of proviso to Article 368(2), Parliament alone is not competent to make such amendments on account of some constitutionally recognised federal principle being invoked.
If the doctrine of severability can be applied it can be upheld as valid in respect of the amendments within the competence of Parliament and only the amendments which Parliament alone was not competent to make could be declared invalid.
Is there anything compelling in the proviso to Article 368(2) requiring it to be construed as excluding the doctrine of severability to such an amendment? It is settled rule of statutory construction that "the proper function of a proviso is to except and deal with a case which could 750 otherwise fall within the general language of the main enactment, and its effect is confined to that case" and that where "the language of the main enactment is clear and unambiguous, a proviso can have no repercussion on the interpretation of the main enactment, so as to exclude from it by implication what clearly falls within its express terms".
[See : Madras & Southern Mahratta railway company vs Bezwada Municipality, (1944) 71 I.A. 133 at P. 122; Commissioner of Income Tax, Mysore vs Indo Mercantile Bank Ltd., [1959] Supp. 2 SCR 256 at p. 266.
The proviso to Article 368(2) appears to have been introduced with a view to giving effect to the federal principle.
In the matter of amendment of provisions specified in clauses (a) to (e) relating to legislative and executive powers of the States vis a vis the Union, the Judiciary, the election of the President and the amending power itself, which have a bearing on the States, the proviso imposes an additional requirement of ratification of the amendment which seeks to effect a change in those provisions before the Bill is presented for the assent of the President.
It is salutary that the scope of the proviso is confined to the limits prescribed therein and is not construed so as to take away the power in the main part of Article 368 (2).
An amendment which otherwise fulfills the requirements of Article 368(2) and is outside the specified cases which require ratification cannot be denied legitimacy on the ground alone of the company it keeps.
The main part of Article 368(2) directs that when a Bill which has been passed by the requisite special majority by both the Houses has received the assent of the President "the Constitution shall stand amended in accordance with the terms of the Bill".
The proviso cannot have the effect of interdicting this constitutional declaration and mandate to mean that in a case where the proviso has not been complied even the amendments which do not fall within the ambit of the proviso also become abortive.
The words "the amendment shall also require to be ratified by the legislature" indicate that what is required to be ratified by the legislatures of the States is the amendment seeking to make the change in the provisions referred to in clauses (a) to (e) of the proviso.
The need for and the requirement of the ratification is confined to that particular amendment alone and not in respect of amendments outside the ambit of the proviso.
The proviso can have, therefore, no bearing on the validity of the amendments which do not fall within its ambit.
Indeed the following observations of this Court in Sajjan Singh case (supra) are apposite: 751 "In our opinion, the two parts of Art.368 must on a reasonable construction be harmonised with each other in the sense that the scope and effect of either of them should not be allowed to be unduly reduced or enlarged." [P.940] 30.
During the arguments reliance was placed on the words "before the Bill making provision for such amendment is presented to the President for assent" to sustain the argument that these words imply that the ratification of the Bill by not less than one half of the States is a condition precedent for the presentation of the Bill for the assent of the President.
It is further argued that a Bill which seeks to make a change in the provisions referred to in clauses (a) to (e) of the proviso cannot be presented before the President for his assent without such ratification and if assent is given by the President in the absence of such ratification, the amending Act would be void and ineffective in its entirety.
A similar situation can arise in the context of the main part of Article 368(2) which provides: "when the bill is passed in each House by a majority of the total membership of that House and by a majority of not less than two thirds of the Members of that House present and voting, it shall be presented to the president".
Here also a condition is imposed that the Bill shall be presented to the President for his assent only after it has been passed in each House by the prescribed special majority.
An amendment in the First and Fourth Schedule referable to Article 4 can be introduced by Parliament by an ordinary law passed by simple majority.
There may be a Bill which may contain amendments made in the First and Fourth Schedules as well as amendments in other provisions of the constitution excluding those referred to in the proviso which can be amended only by a special majority under Article 368(2) and the Bill after having been passed only by an ordinary majority instead of a special majority has received the assent of the President.
The amendments which are made in the First and Fourth Schedules by the said amendment Act were validly made in view of Article 4 but the amendments in other provisions were in disregard to Article 368(2) which requires a special majority.
Is not the doctrine of severability applicable to such an amendment so that amendments made in the First and Fourth Schedules may be upheld while declaring the amendments in the other provisions as ineffective? A contrary 752 view excluding the doctrine of severability would result in elevating a procedural limitation on the amending power to a level higher than the substantive limitations.
In Bribery Commissioner vs Pedrick Ranasinghe, ; , the Judicial Committee has had to deal with a somewhat similar situation.
This was a case from Ceylon under the Ceylon (Constitution) Order of 1946.
Clause (4) of section 29 of the said Order in council contained the amending power in the following terms; "(4)In the exercise of its powers under this section, Parliament may amend or repeal any of the provisions of this Order, or of any other Order of Her Majesty in council in its application to the Island: Provided that no Bill for the amendment or repeal of any of the provisions of this Order shall be presented for the Royal Assent unless it has endorsed on it a certificate under the hand of the speaker that the number of votes cast in favour thereof in the House of Representatives amounted to not less than two thirds of the whole number of members of the House (including those not present).
Every certificate of the Speaker under this sub section shall be conclusive for all purposes and shall not be questioned in any court of law.
" In that case, it was found that section 41 of the Bribery Amendment Act, 1958 made a provision for appointment of a panel by the Governor General on the advice of the Minister of Justice for selecting members of the Bribery Tribunal while section 55 of the constitution vested the appointment, transfer, dismissal and disciplinary control of judicial officers in the Judicial Service Commission.
It was held that the legislature had purported to pass a law which, being in conflict with section 55 of the Order in Council, must be treated, if it is to be valid, as an implied alteration of the Constitutional provisions about the appointment of judicial officers and could only be made by laws which comply with the special legislative procedure laid down in section 29(4).
Since there was nothing to show that the Bribery Amendment Act, 1951 was passed by the necessary two thirds majority, it was held that "any Bill which does not comply 753 with the condition precedent of the proviso, is and remains, even though it receives the Royal Assent, invalid and ultra vires".
Applying the doctrine of severability the Judicial Committee, however, struck down the offending provision, i.e. section 41 alone.
In other words passing of the Bill by special majority was the condition precedent for presentation of the Bill for the assent.
Disregard of such a condition precedent for presenting a Bill for assent did not result in the entire enactment being vitiated and the law being declared invalid in its entirety but it only had the effect of invalidation of a particular provision which offended against the limitation on the amending power.
A comparison of the language used in clause (4) of section 29 with that of Article 368(2) would show that both the provisions bear a general similarity of purpose and both the provisions require the passing of the Bill by special majority before it was presented for assent.
The same principle would, therefore, apply while considering the validity of a composite amendment which makes alterations in the First and Fourth Schedules as well as in other provisions of the Constitution requiring special majority under Article 368(2) and such a law, even though passed by the simple majority and not by special majority, may be upheld in respect of the amendments made in the First and Fourth Schedules.
There is really no difference in principle between the condition requiring passing of the Bill by a special majority before its presentation to the President for assent contained in Article 368(2) and the condition for ratification of the amendment by the legislatures of not less than one half of the States before the Bill is presented to the President for assent contained in the proviso.
The principle of severability can be equally applied to a composite amendment which contains amendments in provisions which do not require ratification by States as well as amendment in provisions which require such ratification and by application of the doctrine of severability, the amendment can be upheld in respect of the amendments which do not require ratification and which are within the competence of Parliament alone.
Only these amendments in provisions which require ratification under the proviso need to be struck down or declared invalid.
The test of severability requires the Court to ascertain whether the legislature would at all have enacted the law if the severed part was not the part of the law and whether after severance what survives can stand independently and is workable.
If the provisions of the Tenth Schedule are considered in the background of the legislative history, namely, the report of the `Committee on Defections ' as well as the earlier Bills which were 754 moved to curb the evil of defection it would be evident that the main purpose underlying the constitutional amendment and introduction of the Tenth Schedule is to curb the evil of defection which was causing immense mischief in our body politic.
The ouster of jurisdiction of Courts under Paragraph 7 was incidental to and to lend strength to the main purpose which was to curb the evil of defection.
It cannot be said that the constituent body would not have enacted the other provisions in the Tenth Schedule if it has known that Paragraph 7 was not valid.
Nor can it be said that the rest of the provisions of the Tenth Schedule cannot stand on their own even if Paragraph 7 is found to be unconstitutional.
The provisions of Paragraph 7 can, therefore, be held to be severable from the rest of the provisions.
We accordingly hold on contentions `C ' and `D ': "That there is nothing in the said proviso to Article 368 (2) which detracts from the severability of a provision on account of the inclusion of which the Bill containing the Amendment requires ratification from the rest of the provisions of such Bill which do not attract and require such ratification.
Having regard to the mandatory language of Article 368(2) that " thereupon the Constitution shall stand amended" the operation of the proviso should not be extended to constitutional amendments in Bill which can stand by themselves without such ratification.
That, accordingly, the Constitution (52nd Amendment) Act, 1985, in so far as it seeks to introduce the Tenth Schedule in the Constitution of India, to the extent of its provisions which are amenable to the legal sovereign of the amending process of the Union Parliament cannot be overborne by the proviso which cannot operate in that area.
There is no justification for the view that even the rest of the provisions of the constitution (52nd Amendment) Act, 1985, excluding Paragraph 7 of the Tenth Schedule become constitutionally infirm by reason alone of the fact that one of its severable provisions which attracted and required ratification under the proviso to Article 368(2) was not so ratified.
That Paragraph 7 of the Tenth Schedule contains a provision 755 which is independent of, and stands apart from the main provisions of the Tenth Schedule which are intended to provide a remedy for the evil of unprincipled and unethical political defections and, therefore, is a severable part.
The remaining provisions of the Tenth Schedule can and do stand independently of Paragraph 7 and are complete in themselves workable and are not truncated by the excision of Paragraph 7.
Re: Contentions `E ' and `F ': These two contentions have certain over lapping areas between them and admit of being dealt with together.
Paragraph 6(1) of the Tenth Schedule seeks to impart a statutory finality to the decision of the Speaker or the Chairman.
The argument is that, this concept of `finality ' by itself, excludes Courts ' jurisdiction.
Does the word "final" render the decision of the Speaker immune from Judicial Review? It is now well accepted that a finality clause is not a legislative magical incantation which has that effect of telling of Judicial Review.
Statutory finality of a decision presupposes and is subject to its consonance with the statute.
On the meaning and effect of such finality clause, Prof. Wade in `Administrative Law ' 6th Edn, at page 720 says: "Many statues provide that some decision shall be final.
That provision is a bar to any appeal.
But the courts refuse to allow it to hamper the operation of judicial review.
As will be seen in this and the following section, there is a firm judicial policy against allowing the rule of law to be undermined by weakening the powers of the court.
Statutory restrictions on judicial remedies are given the narrowest possible construction, sometimes even against the plain meaning of the words.
This is a sound policy, since otherwise administrative authorities and tribunals would be given uncontrollable power and could violate the law at will.
`Finality ' is a good thing but justice is a better." "If a statute says that the decision `shall be final ' or `shall be final and conclusive to all intents and purposes ' this is held to mean merely that there is no appeal: judicial control of legality is unimpaired.
"Parliament only gives the impress of finality to 756 the decisions of the tribunal on condition that they are reached in accordance with the law.
This has been the consistent doctrine for three hundred years.
" Learned Professor further says: "The normal effect of a finality clause is therefore to prevent any appeal.
There is no right of appeal in any case unless it is given by statute.
But where there is general provision for appeals, for example, from quarter session to the High Court by case stated, a subsequent Act making the decision of quarter session final on some specific matter will prevent an appeal.
But in one case the Court of Appeal has deprived a finality clause of part even of this modest content, holding that a question which can be resolved by certiorari or declaration can equally well be the subject of a case stated, since this is only a matter of machinery.
This does not open the door to appeals generally, but only to appeals by case stated on matters which could equally well be dealt with by certiorari or declaration, i.e., matter subject to judicial review.
"A provision for finality may be important in other contexts, for example when the question is whether the finding of one tribunal may be reopened before another, or whether an interlocutory order is open to appeal. ".
[Page 721] Lord Devlin had said "Judicial interference with the executive cannot for long greatly exceed what Whitehall will accept" and said that a decision may be made un reviewable "And that puts the lid on".
Commenting on this Prof. Wade says: "But the Anisminic case showed just the opposite, when the House of Lord removed the lid and threw it away." [See: Constitutional Fundamentals, the Hamlyn Lectures, 1989 Edn.
p.88] In Durga Shankar Mehta vs Raghuraj Singh, ; the order of the Election Tribunal was made final and conclusive by section 105 of the Representation of the People Act, 1951.
The contention was that the finality and conclusiveness clauses barred the jurisdiction of the Supreme Court under Article 136.
This contention was repelled.
It was observed: ". .but once it is held that it is a judicial tribunal empowered 757 and obliged to deal judicially with disputes arising out of or in connection with election, the overriding power of this Court to grant special leave, in proper cases, would certainly be attracted and this power cannot be excluded by any parliamentary legislation.
But once that Tribunal has made any determination or adjudication on the matter, the powers of this Court to interfere by way of special leave can always be exercised.
The powers given by Article 136 of the Constitution, however, are in the nature of special or residuary powers which are exercisable outside the purview of ordinary law, in cases where the needs of justice demand interference by the Supreme Court of the land .
Section 105 of the Representation of the People Act certainly give finality to the decision of the Election Tribunal so far as that Act is concerned and does not provide for any further appeal but that cannot in any way cut down or effect the overriding powers which this court can exercise in the matter of granting special leave under article 136 of the Constitution.
" [p.522] 34.
Again, in Union of India vs Jyoti Prakash Mitter, ; a similar finality clause in Articles 217(3) of the Constitution camp up for consideration.
This Court said: ".
The President acting under Article 217(3) performs a judicial function of grave importance under the scheme of our Constitution.
He cannot act on the advice of his Ministers.
Notwithstanding the declared finality of the order of the president the Court has jurisdiction in appropriate cases to set aside the order, if it appears that it was passed on collateral considerations or the rules of natural justice were not observed, or that the President 's judgment was coloured by the advice or representation made by the executive or it was founded on no evidence. " (p 505).
758 Referring to the expression "final"occurring in Article 311(3) of the Constitution this Court in Union of India & Anr.
vs Tulsiram Patel & Ors.
[1985] Supp.
2 SCR 131 at page 274 held: ".
The finality given by clause (3) of Article 311 to the disciplinary authority 's decision that it was not reasonably practicable to hold the inquiry is not binding upon the court.
The court will also examine the charge of mala fides, if any, made in the writ petition.
In examining the relevance of the reasons, the court will consider the situation which according to the disciplinary authority made it come to the conclusion that it was not reasonably practicable to hold the inquiry.
If the court finds that the reasons are irrelevant, then the recording of its satisfaction by the disciplinary authority would be an abuse of power conferred upon it by clause (b). ." 35.
If the intendment is to exclude the jurisdiction of the superior Courts, the language would quite obviously have been different.
Even so, where such exclusion is sought to be effected by an amendment the further question whether such an amendment would be destructive of a basic feature of the Constitution would arise.
But comparison of the language in Article 363(1) would bring out in contrast the kind of language that may be necessary to achieve any such purpose.
In Brundaban Nayak vs Election Commission of India & Anr., ; , in spite of finality attached by Article 192 to the decision of the Governor in respect of disqualification incurred by a member of a State Legislature subsequent to the election, the matter was examined by this Court on an appeal by special leave under Article 136 of the Constitution against the decision of the High Court dismissing the writ petition filed under Article 226 of the Constitution.
Similarly in Union of India vs Jyoti Prakash Mitter, [1971]3 SCR 483, in spite of finality attached to the order of the President with regard to the determination of age of a Judge of the High Court under Article 217 (3) of the Constitution, this Court examined the legality of the order passed by the President during the pendency of an appeal filed under Article 136 of the Constitution.
There is authority against the acceptability of the argument that the word "final" occurring in Paragraph 6(1) has the effect of excluding the 759 jurisdiction of the Courts in Articles 136, 226 and 227. 36.
The cognate questions are whether a dispute of the kind envisaged by Paragraph 6 of the Tenth Schedule is in a non justiciable area and that, at all events, the fiction in Paragraph 6(2) that all proceedings under Paragraph 6(1) of the Tenth Schedule be deemed to be "proceedings in Parliament" of "Proceedings in the Legislature of a State" attracts immunity from the scrutiny by Courts as under Article 122 or 212, as the case may be.
Implicit in the first of these postulates is the premise that questions of disqualification of members of the House are essentially matters pertaining to the Constitution of the House and, therefore, the Legislature is entitled to exert its exclusive power to the exclusion of the judicial power.
This assumption is based on certain British legislature practices of the past in an area which is an impalpable congeries of legal rules and conventions peculiar to and characteristic of British Parliamentary traditions.
Indeed, the idea appears to have started with the proposition that the Constitution of the House was itself a matter of privilege of the House.
Halsbury contains this statement: "1493, Privilege of the House of Commons in relation to its constitution: In addition to possessing a complete control over the regulation of its own proceedings and the conduct of its members, the House of Commons claims the exclusive right of providing, as it may deem fit, for its own proper constitution." (emphasis supplied) (See: Halsbury 's Laws of England, 4th Edn.
34 Pages 603 & 604) But in the Indian constitutional dispensation the power to decide a disputed disqualification of an elected member of the House is not treated as a matter of privilege and the power to resolve such electoral disputes is clearly judicial and not legislative in nature.
The fact that election disputes were at some stage decided by the House of Commons itself was not conclusive that even their power was legislative.
The controversy, if any, in this area is put at rest by the authoritative earlier pronouncements of this Court.
760 37.In Indira Nehru Gandhi vs Raj Narain, Beg J., referring to the historical background relating to the resolution of electoral disputes by the House of Common said: "I do not think that it is possible to contend, by resorting to some concept of a succession to the powers of the medieval "High Court of Parliament" in England, that a judicial power also devolved upon our Parliament through the constituent Assembly, mentioned in Sec. 8 of the Indian Independence Act of 1947.
As already indicated by me, the Constituent assembly was invested with law making and not judicial powers.
Whatever judicial power may have been possessed once by English kings sitting in Parliament, constituting the highest Court of the realm in medieval England, have devolved solely on the House of Lords as the final court of appeal in England.
"King in Parliament" had ceased to exercise judicial powers in any other way long before 1950.
And, the House of Commons had certainly not exercised a judicial power as a successor to the one time jurisdiction of the "King in Parliament" with the possible exception of the power to punish for its contempts. " [p.627 & 628] In the same case, Justice Mathew made these observations as to the imperative judicial nature of the power to resolve disputes.
"The concept of democracy as visualised by the Constitution presupposes the representation of the people in Parliament and State Legislatures by the method of election.
And, before an election machinery can be brought into operation, there are three requisites which require to be attended to , namely, (1) there should be a set of laws and rules making provisions with respect to all matters relating to, or in connection with, elections, and it should be decided as to how these laws and rules are to be made; (2) there should be an executive charged with the duty of securing the due conduct of elections; and (3) there should be a judicial tribunal to deal with disputes arising out of or in connection with elections. " [p.504] "In whichever body or authority, the jurisdiction is vested, the 761 exercise of the jurisdiction must be judicial in character.
This court has held that in adjudicating an election dispute an authority is performing a judicial function and a petition for leave to appeal under Article 136 of the Constitution would lie to this Court against the decision nothwithstanding the provisions of Article 329(b)." (emphasis supplied) [p.506] It is also useful to recall the following observations of Gajendragadkar J., on the scope of Article 194(3) of the Constitution, which is analogous to Article 105(3) in Special Reference No.1 of 1964 ; "This clause requires that the powers, privileges and immunities which are claimed by the House must be shown to have subsisted at the commencement of the Constitution, i.e., on January 26, 1950.
it is well known that out of a large number of privileges and powers which the House of commons claimed during the days of its bitter struggle for recognition, some were given up in course of time, and some virtually faded out by desuetude; and so, in every case where a power is claimed, it is necessary to enquire whether it was an existing power at the relevant time.
It must also appear that the said power was not only claimed by the House of Commons, but was recognised by the English Courts.
It would obviously be idle to contend that if a particular power which is claimed by the House was claimed by the House of Commons but was not recognised by the English Courts, it would still be upheld under the latter part of clause (3) only on the ground that it was in fact claimed by the House of Commons.
In other words, the inquiry which is prescribed by this clause is: is the power in question shown or proved to have subsisted in the House of Commons at the relevant time?" (See page 442) This question is answered by Beg, J. in Indira Nehru Gandhi 's case: "I think, at the time our Constitution was framed, the decision 762 of an election dispute had ceased to be a privilege of the House of Commons in England and therefore, under Article 105(3), it could not be a privilege of Parliament in this country." [p.505] 38.Indeed, in dealing with the disqualifications and the resolution of disputes relating to them under Articles 191 and 192 or Article 102 and 103, as the case may be, the Constitution has evinced a clear intention to resolve electoral disputes by resort to the judicial power of the State.
Indeed, Justice Khanna in Indira Nehru Gandhi 's case said: "Not much argument is needed to show that unless there be a machinery for resolving an election dispute and for going into the allegations that elections were not free and fair being vitiated by malpractices, the provision that a candidate should not resort to malpractices would be in the nature of a mere pious wish without any legal sanction.
It is further plain that if the validity of the election declared to be valid only if we provide a forum for going into those grounds and prescribe a law for adjudicating upon those grounds. ." (See page 468) It is, therefore, inappropriate to claim that the determinative jurisdiction of the Speaker or the Chairman in the Tenth Schedule is not a judicial power and is within the non justiciable legislative area.
The classic exposition of Justice Issacs J., in Australian Boot Trade Employees Federation vs Whybrow & Co., at page 317, as to what distinguishes a judicial power from a legislative power was referred to with the approval of this Court in Express Newspaper Ltd. vs Union of India, at 611.
Issacs J., stated: "If the dispute is as to the relative rights of parties as they rest on past or present circumstances, the award is in the nature of a judgment, which might have been the decree of an ordinary judicial tribunal acting under the ordinary judicial power.
There the law applicable to the case must be observed.
If, however, the dispute is as to what shall in the future be the mutual rights and responsibilities of the parties in other words, if no present rights are asserted or denied, but a future rule of conduct is to be prescribed, thus creating new rights and obligations, with 763 sanctions for non conformity then the determination that so prescribes, call it an award, or arbitration, determination, or decision or what you will, is essentially of a legislative character, and limited only by the law which authorises it.
If, again, there are neither present rights asserted, nor a future rule of conduct prescribed, but merely a fact ascertained necessary for the practical effectuation of admitted rights, the proceeding, though called an arbitration, is rather in the nature of an appraisement or ministerial act.
" In the present case, the power to decide disputed disqualification under Paragraph 6(1) is preeminently of a judicial complexion.
The fiction in Paragraph 6(2), indeed, places it in the first clause of Article 122 or 212, as the case may be.
The words "proceedings in Parliament" or "proceedings in the legislature of a State" in Paragraph 6(2) have their corresponding expression in Articles 122(1) and 212(1) respectively.
This attracts an immunity from mere irregularities of procedures.
That apart, even after 1986 when the Tenth Schedule was introduced, the Constitution did not evince any intention to invoke Article 122 or 212 in the conduct of resolution of disputes as to the disqualification of members under Articles 191(1) and 102(1).
The very deeming provision implies that the proceedings of disqualification are, in fact, not before the House; but only before the Speaker as a specially designated authority.
The decision under paragraph 6(1) is not the decision of the House, nor is it subject to the approval by the House.
The decision operates independently of the House.
A deeming provision cannot by its creation transcend its own judicial scrutiny of the decision of the Speaker or Chairman exercising power under Paragraph 6(1) of the Tenth Schedule.
But then is the Speaker or the Chairman acting under Paragraph 6(1) is a Tribunal? "All tribunals are not courts, though all Courts are Tribunals".
The word "Courts" is used to designate those Tribunals which are set up in an organised State for the Administration of Justice.
By Administration of justice is meant the exercise of judicial power of the State to maintain and uphold rights and to punish "wrongs".
Whenever there is an infringement of a right or an injury, the Courts are there to restore the vinculum juris, which is disturbed.
See: Harinagar Sugar Mills 764 Ltd. vs Shyam Sunder Jhunjhunwala & Ors., ; In that case Hidayatullah, J. said: ".
By "courts" is meant courts of civil judicature and by "tribunals", those bodies of men who are appointed to decide controversies arising under certain special laws.
Among the powers of the State is included the power to decide such controversies.
This is undoubtedly one of the attributes of the State and is aptly called the judicial power of the State.
In the exercise of this power, a clear division is thus noticeable.
Broadly speaking, certain special matters go before tribunals, and the residue goes before the ordinary courts of civil judicature.
Their procedures may differ, but the functions are not essentially different.
What distinguishes them has never been successfully established.
Lord Stamp said that the real distinction is that the courts have "an air of detachment".
But this is more a matter of age and tradition and is not of the essence.
Many tribunals, in recent years, have acquitted themselves so well and with such detachment as to make this test insufficient.
" [p.362] Where there is a lis an affirmation by one party and denial by another and the dispute necessarily involves a decision on the rights and obligations of the parties to it and the authority is called upon to decide it, there is a exercise of judicial power.
That authority is called a Tribunal, if it does not have all the trappings of a Court.
In Associated Cement Companies Ltd. vs P.N. Sharma and Anr., [1965]2 SCR 366, this Court said: ". .
The main and the basic test, however, is whether the adjudicating power which a particular authority is empowered to exercise, has been conferred on it by a statute and can be described as a part of the State 's inherent power exercised in discharging its judicial function.
Applying this test, there can be no doubt that the power which the State Government exercises under R.6(5) and R.6(6) is a part of the State 's judicial power. .There is, in that sense, a lis; there is affirmation by one party and denial by another, and the dispute necessarily involves the rights and obligations of the parties to it.
The order which the State Government ultimately passes is 765 described as its decision and it is made final and binding. ." [p.386 and 387] By these well known and accepted tests of what constitute a Tribunal, the Speaker or the Chairman, acting under paragraph 6(1) of the Tenth Schedule is a Tribunal.
In the operative conclusions we pronounced on 12th November, 1991 we indicated in clauses G and H therein that Judicial review in the area is limited in the manner indicated.
If the adjudicatory authority is a tribunal, as indeed we have held it to be, why, then, should its scope be so limited? The finality clause in paragraph 6 does not completely exclude the jurisdiction of the courts under Articles 136, 226 and 227 of the Constitution.
But it does have the effect of limiting the scope of the jurisdiction.
The principle that is applied by the courts is that in spite of a finality clause it is open to the court to examine whether the action of the authority under challenge is ultra vires the powers conferred on the said authority.
Such an action can be ultra vires for the reason that it is in contravention of a mandatory provision of the law conferring on the authority the power to take such an action.
It will also be ultra vires the powers conferred on the authority if it is vitiated by mala fides or is colourable exercise of power based on extraneous and irrelevant considerations.
While exercising their certiorari jurisdiction, the courts have applied the test whether the impugned action falls within the jurisdiction of the authority taking the action or it falls outside such jurisdiction.
An ouster clause confines judicial review in respect of actions falling outside the jurisdiction of the authority taking such action but precludes challenge to such action on the ground of an error committed in the exercise of jurisdiction vested in the authority because such an action cannot be said to be an action without jurisdiction.
An ouster clause attaching finality to a determination, therefore, does oust certiorari to some extent and it will be effective in ousting the power of the court to review the decision of an inferior tribunal by certiorari if the inferior tribunal has not acted without jurisdiction and has merely made an error of law which does not affect its jurisdiction and if its decision is not a nullity for some reason such as breach of rule of natural justice.
See : Administrative Law by H.W.R. Wade, 6th Edn., pp. 724 726; Anisminic Ltd. vs Foreign Compensation commission; , ; S.E. Asia Fire Bricks vs Non Metallic Products, 766 In Makhan Singh vs State of Punjab, [1964] 4 SCR 797, while considering the scope of judicial review during the operation of an order passed by the President under Article 359(1) suspending the fundamental right guaranteed under Article 21 of the Constitution, it has been held that the said order did not preclude the High Court entertaining a petition under Article 226 of the Constitution where a detenu had been detained in violation of the mandatory provisions of the detention law or where the detention has been ordered mala fide.
It was emphasised that the exercise of a power mala fide was wholly outside the scope of the Act conferring the power and can always be successfully challenged.
(p. 825) Similarly in State of Rajasthan vs Union of India, ; , decided by a seven judge Bench, high Court was considering the challenge to the validity of a proclamation issued by the President of India under Article 356 of the constitution.
At the relevant time under clause (5) of Article 356, the satisfaction of the President mentioned in clause (1) was final and conclusive and it could not be questioned in any court on any ground.
All the learned judges have expressed the view that the proclamation could be open to challenge if it is vitiated by mala fides.
While taking this view, some of the learned judges have made express reference to the provisions of clause(5).
In this context, Bhagwati, J (as the learned Chief Justice then was) speaking for himself and A.C. Gupta, J. has stated: "Of course by reason of cl.
(5) of article 356, the satisfaction of the President is final and conclusive and cannot be assailed on any ground but this immunity from attack cannot apply where the challenge is not that the satisfaction is improper or unjustified, but that there is no satisfaction at all.
In such a case it is not the satisfaction arrived at by the President which is challenged, but the existence of the satisfaction itself.
Take, for example, a case where the President gives the reason for taking action under article 356, cl.
(1) and says that he is doing so, because the Chief Minister of the State is below five feet in height and, therefore, in his opinion a situation has arisen where the Government of the State cannot be carried on in accordance with the provisions of the Constitution.
Can the so called satisfaction of the President in such a case not be challenged 767 on the ground that it is absurd or perverse or mala fide or based on a wholly extraneous and irrelevant ground and is, therefore, no satisfaction at all.
82 83) Untwalia, J. has held as follows: "I, however, must hasten to add that I cannot persuade myself to subscribe to the view that under no circumstances an order of proclamation made by the President under Article 356 can be challenged in a Court of Law.
And, I am saying so notwithstanding the provision contained in clause (5) of the said Article introduced by the Constitution(38th Amendment) Act, 1975."(p.
94) "But then, what did I mean by saying that situation may arise in a given case where the jurisdiction of the Court is not completely ousted? I mean this.
If, without entering into the prohibited area, remaining on the fence, almost on the face of the impugned order or the threatened action of the President it is reasonably possible to say that in the eye of law it is no order or action as it is in flagrant violation of the very words of a particular Article, justifying the conclusion that the order is ultra vires, wholly illegal or passed mala fide, in such a situation it will be tantamount in law to be no order at all.
Then this Court is not powerless to interfere with such an order and may, rather, must strike it down.
"(p. 95) Similarly, Fazal Ali, J. has held : "Even if an issue is not justiciable, if the circumstances relied upon by the executive authority are absolutely extraneous and irrelevant, the Courts have the undoubted power to scrutinise such an e exercise of the executive power.
Such a judicial scrutiny is one which comes into operation when the exercise of the executive power is colourable or mala fide and based on extraneous or irrelevant considerations." (p. 116) "It is true that while an order passed by the President under Article 356 is put beyond judicial scrutiny by cl.
(5) of Art.356, but this does not mean that the Court possesses no jurisdiction 768 in the matter at all.
Even in respect of cl.
(5) of article 356, the Courts have a limited sphere of operation in that on the reasons given by the President in his order if the Courts find that they are absolutely extraneous and irrelevant and based on personal and illegal consideration the Courts are not powerless to strike down the order on the ground of mala fide if proved." (p.120) In Union of India vs Jyoti Prakash Mitter (supra), dealing with the decision of the President under Article 217 (3) on the question as to the age of a judge of the High Court, requiring a judicial approach it was held that the field of judicial review was enlarged to cover violation of rules of natural justice as well as an order based on no evidence because such errors are errors of jurisdiction.
c In Union of India & Anr.
vs Tulsiram Patel & Ors.
(supra) this Court was dealing with Article 311 (3) of the constitution which attaches finality to the order of the disciplinary authority on the question whether it was reasonably practicable to hold an inquiry.
It was observed that though the `finality ' clause did not bar jurisdiction it did indicate that the jurisdiction is limited to certain grades.
In the light of the decisions referred to above and the nature of function that is exercised by the Speaker/Chairman under paragraph 6, the scope of judicial review under Articles 136, 226 and 227 of the Constitution in respect of an order passed by the Speaker/Chairman under paragraph 6 would be confined to jurisdictional errors only viz., infirmities based on violation of constitutional mandate, mala fides, non compliance with rules of natural justice and perversity.
In view of the limited scope of judicial review that is available on account of the finality clause in paragraph 6 and also having regard to the constitutional intendment and the status of the repository of the adjudicatory power i.e. Speaker/Chairman, judicial review cannot be available at a stage prior to the making of a decision by the Speaker/Chairman and a quia timet action would not be permissible.
Nor would interference be permissible at an interlocutory stage of the proceedings.
Exception will, however, have to be made in respect of cases where disqualification or suspension is imposed during the pendency of the proceedings and such disqualification or suspension is likely to have grave, immediate and irreversible repercussions and consequence.
769 42.
In the result, we hold on contentions E and F : That the Tenth Schedule does not, in providing for an additional grant for disqualification and for adjudication of disputed disqualifications, seek to create a nonjusticiable constitutional area.
The power to resolve such disputes vested in the Speaker or chairman is a judicial power.
That Paragraph 6(1) of the Tenth Schedule, to the extent it seeks to impart finality to the decision of the Speakers/Chairmen is valid.
But the concept of statutory finality embodied in Paragraph 6(1) does not detract from or abrogate judicial review under Articles 136, 226 and 227 of the Constitution in so far as infirmities based on violations of constitutional mandates, mala fides, non compliance with Rules of Natural Justice and perversity, are concerned.
That the deeming provision in Paragraph 6(2) of the Tenth Schedule attracts an immunity analogous to that in Articles 122(1) and 212(1) of the Constitution as understood and explained in Keshav Singh 's Case Spl.
No. 1; , , to protect the validity of proceedings from mere irregularities of procedure.
The deeming provision, having regard to the words "be deemed to be proceedings in Parliament" or "proceedings in the Legislature of a State" confines the scope of the fiction accordingly.
The Speaker/Chairmen while exercising powers and discharging functions under the Tenth Schedule act as Tribunal adjudicating rights and obligations under the Tenth Schedule and their decisions in that capacity are amenable to judicial review.
However, having regard to the Constitutional Schedule in the Tenth Schedule, judicial review should not cover any stage prior to the making of a decision by the Speakers/Chairman.
Having regard to the constitutional intendment and the status of the repository of the adjudicatory power, no quia timet actions are permissible, the only exception for any interlocutory interference being cases of interlocutory disqualifications or suspensions which may have grave, immediate and irreversible 770 repurcussions and consequence.
Re : Contention(G): The argument is that an independant adjudicatory machinery for resolution of electrol disputes is an essential incident of democracy, which is a basic feature of Indian consitutionalism.
It is urged that investiture of the power of resolving such disputes in the Speaker or the Chairman does not answer this test of an independent, impartial quality of the adjudicatory machinery.
It is, therefore, urged that Paragraph 6(1) of the Tenth Schedule is violative of a basic feature.
It is also urged that a Speaker, under the Indian Parliamentary tradition is not required to resign his membership of the political party on whose strength he gets elected and that inevitably the decision of the Speaker is not free tugs and pulls of political polarisations.
It is urged that the Speaker who has not resigned his membership of the political party cannot be impartial and, at all events, his functioning will not be free from reasonable likelihood of bias.
The Tenth Schedule breaks away from the constitutional pattern for resolution of disqualifications envisaged in Articles 103 and 192 of the Constitution which vest jurisdiction in this behalf in the President or the Governor acting according to the opinion of Election Commission.
The disqualifications for defection could very well have been included in Article 102(1) or 191(1) as a ground, additional to the already existing grounds under clauses (a) to (e) in which event, the same dispute resolution machinery would have dealt with the disqualifications for defections also.
But the Tenth Schedule, apparently.
attempted a different experiment in respect of this particular ground of disqualification.
45.The question is, whether the investiture of the determinative jurisdiction in the Speaker would by itself stand vitiated as denying the idea of an independent adjudicatory authority.
We are afraid the criticism that the provision incurs the vice of unconstitutionality ignores the high status and importance of the office of the Speaker in a Parliamentary democracy.
The office of the speaker is held in the highest respect and esteem in Parliamentary traditions.
The evolution of the institution of Parliamentary democracy has as its pivot the institution of the Speaker.
`The Speaker holds a high, important and ceremonial office.
All questions of the well being of the House 771 are matters of Speaker 's concern '.
The Speaker is said to be the very embodiment of propriety and impartiality.
He performs wide ranging functions including the performance of important functions of a judicial character.
Mavalankar, who was himself a distinguished occupant of that high office, says : "In parliamentary democracy, the office of the Speaker is held in very high esteem and respect.
There are many reasons for this.
Some of them are purely historical and some are inherent in the concept of parliamentary democracy and the powers and duties of the Speaker.
Once a person is elected Speaker, he is expected to be above parties, above politics.
In other words, he belongs to all the members or belongs to none.
He holds the scales of justice evenly irrespective of party or person, though no one expects that he will do absolute justice in all matters; because, as a human being he has his human drawbacks and shortcomings.
However, everybody knows that he will intentionally do no injustice or show partiality.
"Such a person is naturally held in respect by all." [See : G. V. Mavalankar : The Office of Speaker, Journal of Parliamentary Information, April 1956, Vol.
2, No. 1, p.33] Pundit Nehru referring to the office of the Speaker said : ".
The speaker represents the House.
He represents the dignity of the House, the freedom of the House and because the House represents the nation, in a particular way, the Speaker becomes the symbol of the nation 's freedom and liberty.
Therefore, it is right that that should be an honoured position, a free position and should be occupied always by men of outstanding ability and impartiality.
[See : HOP.
IX (1954), CC 3447 48] Referring to the Speaker, Erskine may says : "The Chief characteristics attaching to the office of Speaker in the House of Commons are authority and impartiality.
As a symbol of his authority he is accompanied by the Royal Mace 772 which is borne before him when entering and leaving the chamber and upon state occasions by the Sergeant at Arms attending the House of commons, and is placed upon the table when he is in the chair.
In debate all speeches are addressed to him and he calls upon Members to speak a choice which is not open to dispute.
When he rises to preserve order or to give a ruling on a doubtful point he must always be heard in silence and no Member may stand when the Speaker is on his feet.
Reflections upon the character or actions of the Speaker may be punished as breaches of privilege.
His action cannot be criticized incidentally in debate or upon any form of proceeding except a substantive motion.
His authority in the chair is fortified by many special powers which are referred to below.
Confidence in the impartiality of the Speaker is an indispensable condition of the successful working of procedure, and many conventions exist which have as their object not only to ensure the impartiality of the Speaker but also to ensure that his impartiality is generally recognised. ." [See : Erskine May Parliamentary Practice 20th edition p. 234 and 235] M.N. Kaul and S.L. Shakdher in `Practice and procedure of Parliament ' 4th Edition, say : "The all important conventional and ceremonial head of Lok Sabha is the Speaker.
Within the walls of the House his authority is supreme.
This authority is based on the Speaker 's absolute and unvarying impartiality the main feature of the office, the law of its life.
The obligation of impartiality appears in the constitutional provision which ordains that the Speaker is entitled to vote only in the case of equality of votes.
Moreover, his impartiality within the House is secured by the fact that he remains above all considerations of party or political career, and to that effect he may also resign from the party to which he belonged." [p. 104] 46.
It would, indeed, be unfair to the high traditions of that great 773 office to say that the investiture, in it of this Jurisdiction would be vitiated for violation of a basic feature of democracy.
It is inappropriate to express distrust in the High office of the Speaker, merely because some of the Speakers are alleged, or even found, to have discharged their functions not in keeping with the great traditions of that high office.
The Robes of the Speaker to change and elevate the man inside.
Accordingly, the contention that the vesting of adjudicatory functions in the Speakers/Chairmen would by itself vitiate the provision on the ground of likelihood of political bias is unsound and is rejected.
The Speakers/Chairmen hold a pivotal position in the scheme of Parliamentary democracy and are guardians of the rights and privileges of the House.
They are expected to and to take far reaching decisions in the functioning of Parliamentary democracy.
Vestiture of power of adjudicate questions under the Tenth Schedule in such a constitutional functionaries should not be considered exceptionable.
48.Re : Contention H : In the view we take of the validity of paragraph 7 it is unnecessary to pronounce on the contention whether judicial review is a basic feature of the Constitution and paragraph 7 of the Tenth Schedule violates such basic structure.
We may now notice one other contention as to the construction of the expression `any direction ' occurring in paragraph 2(1)(b).
It is argued that if the expression really attracts within its sweep every direction or whip of any kind whatsoever it might be unduly restrictive of the freedom of speech and the right of dissent and that, therefore, should be given a meaning limited to the objects and purposes of the Tenth Schedule.
Learned counsel relied upon and commended to us the view taken by the minority in the Full Bench decision of Punjab and Haryana High Court in Parkash Singh Badal & Ors.
vs Union of India & Ors.
, [AIR 1987 Punjab and Haryana 263] where such a restricted sense was approved.
Tewatia J. said : "If the expression : "any direction" is to be literally construed then it would make the people 's representative a wholly political party 's representative, which decidedly he is not.
The Member would virtually lose his identity and would become a rubber 774 stamp in the hands of his political party.
Such interpretation of this provision would cost it, its constitutionality, for in that sense it would become destructive of democracy/parliamentary democracy, which is the basic feature of the Constitution.
Where giving of narrow meaning and reading down of the provision can save it from the vice of unconstitutionality the Court should read it down particularly when it brings the provision in line with the avowed legislative intent. ." ". . the purpose of enacting paragraph 2 could be no other than to insure stability of the democratic system, which in the context of Cabinet/Parliamentary form of Government on the one hand means that a political party or a coalition of political parties which has been voted to power, is entitled to govern till the next election, and on the other, that opposition has a right to censure the functioning of the Government and even overthrow it by voting it out of power if it had lost the confidence of the people, then voting or abstaining from voting by a Member contrary to any direction issued by his party would by necessary implication envisage voting or abstaining from voting in regard to a motion or proposal, which if failed, as a result of lack or requisite support in the House, would result in voting the Government out of power, which consequence necessarily follows due to well established constitutional convention only when either a motion of no confidence is passed by the House or it approves a cut motion in budgetary grants.
Former because of the implications of Article 75(3) of the Constitution and latter because no Government can function without money and when Parliament declines to sanction money, then it amounts to an expression of lack of confidence in the Government.
When so interpreted the clause (b) of sub paragraph (1) of paragraph 2 would leave the Members free to vote according to their views in the House in regard to any other matter that comes up before it." [p.313 & 314] The reasoning of the learned judge that a wider meaning of the words "any direction" would `cost it its constitutionality ' does not commend to us.
775 But we approve the conclusion that these words require to be construed harmoniously with the other provisions and appropriately confined to the objects and purposes of the Tenth Schedule.
Those objects and purposes define and limit the contours of its meaning.
The assignment of a limited meaning is not to read it down to promote its constitutionality but because such a construction is a harmonious construction in the context.
There is no justification to give the words the wider meaning.
While construing Paragraph 2(1)(b) it cannot be ignored that under the Constitution members of Parliament as well as of the State legislature enjoy freedom of speech in the House though this freedom is subject to the provisions of the constitution and the rules and standing orders regulating the Procedure of the House [Art, 105(1) and art.194(1)].
The disqualification imposed by Paragraph 2(1) (b) must be so construed as not to unduly impinge on the said freedom of speech of a member.
This would be possible if Paragraph 2(1)(b) is confined in its scope by keeping in view the object underlying the amendments contained in the Tenth Schedule, namely, to curb the evil or mischief of political defections motivated by the lure of office or other similar considerations.
The said object would be achieved if the disqualification incurred on the ground of voting or abstaining from voting by a member is confined to cases where a change of Government is likely to be brought about or is prevented, as the case may be, as a result of such voting or abstinence or when such voting or abstinence is on a matter which was a major policy and programme on which the political party to which the member belongs went to the polls.
For this purpose the direction given by the political party to a member belonging to it, the violation of which may entail disqualification under paragraph 2(1)(b), would have to be limited to a vote on motion of confidence or no confidence in the Government or where the motion under consideration relates to a matter which was an integral policy and programme of the political party on the basis of which it approached the elaborate.
The voting or abstinence from voting by a member against the direction by the political party on such a motion would amount to disapproval of the programme of the basis of which he went before the electorate and got himself elected and such voting or abstinence would amount to a breach of the trust reposed in him by the electorate.
Keeping in view the consequences of the disqualification i.e., termination of the membership of a House; it would be appropriate that the 776 direction or whip which results in such disqualification under Paragraph 2(1)(b) is so worded as to clearly indicate that voting or abstaining from voting contrary to the said direction would result in incurring the disqualification under Paragraph 2(1)(b) of the Tenth Schedule so that the member concerned has fore knowledge of the consequences flowing from his conduct in voting or abstaining from voting contrary to such a direction.
There are some submissions as to the exact import of a "split whether it is to be understood an instantaneous, one time event or whether a "split" can be said to occur over a period of time.
The hypothetical poser was that if one third of the members of a political party in the legislature broke away from it on a particular day and a few more members joined the spliter group a couple of days later, would the latter also be a part of the "split" group.
This question of construction cannot be in vaccuo.
In the present cases, we have dealt principally with constitutional issues.
The meaning to be given to "split" must necessarily be examined in a case in which the question arises in the context of its particular facts.
No hypothetical predications can or need be made.
We, accordingly,, leave this question open to be decided in an appropriate case.
Before parting with the case, we should advert to one other circumstance.
During the interlocutory stage, the constitution bench was persuaded to make certain interlocutory orders which, addressed as they were to the Speaker of the House, (though, in a different capacity as an adjudicatory forum under the Tenth Schedule) engendered complaints of disobedience culminating in the filing of petitions for initiation of proceedings of contempt against the Speaker.
It was submitted that when the very question of jurisdiction of the Court to deal with the matter was raised and even before the constitutionality of Paragraph 7 had been pronounced upon, self restraint required that no interlocutory orders in a sensitive area of the relationship between the legislature and the Courts should been made.
The purpose of interlocutory orders is to preserve in status quo the rights of the parties, so that, the proceedings do not become infructuous by any unilateral overt acts by one side or the other during its pendency.
One of the contentions urged was as to the invalidity of the amendment for non compliance with the proviso to Article 368(2) of the Constitution.
It has now been unanimously held that Paragraph 7 attracted the proviso to article 368(2).
The interlocutory orders in this case were necessarily 777 justified so that, no land slide changes were allowed to occur rendering proceedings ineffective and infructuous.
With the finding and observations as aforesaid W.P.No. 17 of 1991 is dismissed.
Writ petition in Rule No. 2421 of 1990 in the High Court of Gauhati is remitted back to the High Court for disposal in accordance with law and not inconsistent with the findings and observations contained in this order.
VERMA, J. : This matter relating to disqualification on the ground of defection of some members of the Negaland legislative Assembly under the Tenth Schedule inserted by the Constitution (Fifty Second Amendment) Act, 1985, was heard along with some other similar matters relating to several Legislative Assemblies including those of Manipur, Meghalaya, Madhya Pradesh, Gujarat and Goa, since all of them involved the decision of certain constitutional questions relating to the constitutional validity of para 7 of the Tenth Schedule and consequently the validity of the Constitution (Fifty Second Amendment) Act, 1985 itself.
At the hearing, several learned counsel addressed us on account of which the hearing obviously took some time.
Even during the course of the hearing, the actions of some Speakers tended to alter the status quo, in some cases resulting in irreversible consequences which could not be corrected in the event of para 7 of the Tenth Schedule being held invalid or the impugned orders of the Speakers being found justiciable and, on merits illegal and, therefore, the urgency increased of deciding the questions debated before us at the earliest.
For this reason, we indicated during the course of the hearing that we would pronounce our operative conclusions soon after conclusion of the hearing with reasons therefor to follow.
Accordingly, on conclusion of the hearing on November 1, 1991, we indicated that the operative conclusions would be pronounced by us at the next sitting of the Bench when it assembled on November 12, 1991 after the Diwali Vacation.
The operative conclusions of the majority (Venkatachaliah, Reddy and Agrawal, JJ.) as well as of the miority (Lalit Mohan Sharma and J.S.Verma,JJ.)were thus pronounced on November 12, 1991.
We are now indicating herein our reasons for the operative conclusions of the minority view.
The unanimous opinion according to the majority as well as the minority is that para 7 of the tenth Schedule enacts a provision for complete exclusion of judicial review including the jurisdiction of the 778 Supreme Court under Article 136 and of the High Courts under Articles 226 and 227 of the Constitution and, therefore, it makes in terms and in effect a change in Articles 136, 226 and 227 of the Constitution which attracts the proviso to clause (2) of Article 368 of the Constitution; and therefore, ratification by the specified number of State Legislatures before the Bill was presented to the President for his assent was necessary, in accordance therewith.
The majority view is that in the absence of such ratification by the State legislatures, it is para 7 alone of the Tenth Schedule which is unconstitutional; and it being severable from the remaining part of the Tenth Schedule, para 7 alone is liable to be struck down rendering the speakers 'decision under para 6 that of a judicial tribunal amenable to judicial review by the Supreme court and the High courts under Article 136, 226 and 227.
The minority opinion is that the effect of invalidity of para 7 of the Tenth Schedule is to invalidate the entire Constitution (Fifty Second Amendment) Act, 1985 which inserted the Tenth Schedule since the President 's assent to the bill without prior ratification by the State Legislatures is non est.
The minority view also is that para 7 is not severable from the remaining part of the Tenth Schedule and the Speaker not being an independent adjudicatory authority for this purpose as contemplated by a basic feature of democracy, the remaining part of the Tenth Schedule is in excess of the amending powers being violative of a basic feature of the Constitution.
In the minority opinion, we have held that the entire constitution (Fifty Second Amendment) Act, 1985 is unconstitutional and an abortive attempt to make the constitutional Amendment indicated therein.
Before proceeding to give our detailed reasons, we reproduce the operative conclusions pronounced by us on November 12, 1991 in the minority opinion (Lalit Mohan Sharma and J.S. Verma, JJ.) as under : "For the reasons to be given in our detailed judgment to follow, our operative conclusions in the minority opinion on the various constitutional issues are as follows : 1.Pare 7 of the Tenth Schedule, in clear terms and in effect, excludes the jurisdiction of all courts, including the Supreme Court under Article 136 and the High Courts under Articles 226 and 227 to entertain any challenge to the decision under para 6 on any ground even of illegality or perversity, not only 779 at an interim stage but also after the final decision on the question of disqualification on the ground of defection.
Para 7 of the Tenth Schedule, therefore, in terms and in effect, makes a change in Article 136 in Chapter IV of Part V; and Articles 226 and 227 in Chapter V of Part VI of the Constitution attracting the proviso to clause (2) of Article 368.
In view of para 7 in the Bill resulting in the constitution (Fifty Second Amendment) Act, 1985, it was required to be ratified by the Legislature of not less than one half of the States as a condition precedent before the Bill could be presented to the President for assent, in accordance with the mandatory special procedure prescribed in the proviso to clause (2) of Article 368 for exercise of the constituent power.
Without ratification by the specified number of State Legislatures, the stage for presenting the Bill for assent of the President did not reach and, therefore, the so called assent of the President was non est and did not result in the constitution standing amended in accordance with the terms of the Bill.
In the absence of ratification by the specified number of State Legislatures before presentation of the Bill to the President for his assent, as required by the proviso to clause (2) of Article 368, it is not merely para 7 but, the entire Constitution (Fifty Second Amendment) Act, 1985 which is rendered unconstitutional, since the constituent power was not exercised as prescribed in Article 368, and therefore, the Constitution did not stand amended in accordance with the terms of the Bill providing for the amendment.
5.Doctrine of Severability cannot be applied to a Bill making a constitutional amendment where any part thereof attracts the proviso to clause (2) of Article 368.
Doctrine of Severability is not applicable to permit striking down para 7 alone saving the remaining provisions of the Bill making the Constitutional Amendment on the ground that para 7 alone attracts the proviso to clause (2) of Article 368.
780 7.
Even otherwise, having regard to the provisions of the Tenth Schedule of the Constitution inserted by the Constitution (Fifty Second Amendment) Act, 1985, the Doctrine of Severability does not apply to it.
Democracy is a part of the basic structure of the Constitution and free and fair elections with provision for resolution of disputes relating to the same as also for adjudication of those relating to subsequent disqualification by an independent body outside the House are essential features of the democratic system in our Constitution.
Accordingly, an independent adjudicatory machinery for resolving disputes relating to the competence of Members of the House is envisaged as a attribute of this basic feature.
The tenure of the Speaker who is the authority in the Tenth Schedule to decide this dispute is dependent on the continuous support of the majority in the House and, therefore, he (the Speaker) does not satisfy the requirement of such an independent adjudicatory authority; and his choice as the sole arbiter in the matter violates an essential attribute of the basic feature.
9.Consequently, the entire Constitution (Fifty Second Amendment) Act, 1985 which inserted the Tenth Schedule together with clause (2) in Articles 102 and 191, must be declared unconstitutional or an abortive attempt to so amend the Constitution.
10.It follows that all decisions rendered by the several Speakers under the Tenth Schedule must also be declared nullity and liable to be ignored.
On the above conclusions, it does not appear necessary or appropriate to decide the remaining questions urged.
" it is unnecessary in this judgment to detail the facts giving rise to the debate on the constitutional issues relating to the validity of the Tenth Schedule, more particularly para 7 therein, introduced by the Constitution (Fifty second Amendment) Act, 1985.
Suffice it to say that these matters arise out of certain actions of the Speakers of several Legislative Assemblies under the Tenth Schedule.
Arguments on these questions were 781 addressed to us by several learned counsel, namely, the learned Attorney General, S/Shri A.K. Sen, Shanti Bhushan, M.C. Bhandare, F.S. Nariman, Soli J. Sorabjee, R.K. Garg, Kapil Sibal, M.R. Sharma, Ram Jethmalani, N.S. Hegde, O.P. Sharma, Bhim Singh and R.F. Nariman.
It may be mentioned that some learned counsel modified their initial stand to some extent as the hearing progressed by advancing alternative arguments as well.
Accordingly, the several facets of each constitutional issue debated before us were fully focused during the hearing.
The main debate, however, was on the construction of paras 6 and 7 of the Tenth Schedule and the validity of the Constitutional Amendment.
Arguments were also addressed on the question of violation, if any,of any basic feature of the Constitution by the provisions of the Tenth Schedule.
The points involved in the decision of the constitutional issues for the purpose of our opinion may be summarised broadly as under : (A) Construction of para 6 of the Tenth Schedule.
Its effect and the extent of exclusion of judicial review thereby.
(B) Construction of para 7 of the Tenth Schedule.
Its effect and the extent of exclusion of judicial review thereby.
(C) In case of total exclusion of judicial review including the jurisdiction of Supreme Court under Article 136 and the High Courts under Articles 226 and 227 of the Constitution by the Tenth Schedule, does para 7 make a change in these Articles attracting the proviso to clause (2) of Article 368 of the Constitution ? (D) The effect of absence of prior ratification by the State Legislatures before the Bill making provisions for such amendment was presented to the President for assent, on the constitutional validity of the Tenth Schedule.
(E) Severability of para 7 from the remaining part of the Tenth Schedule and its effect on the question of constitutional validity of the Tenth Schedule.
(F) Violation of basic feature of the Constitution, if any, by the Tenth Schedule as a whole or any part thereof and its effect on the constitutionality for this reason.
782 (G) Validity of the Tenth Schedule with reference to the right of dissent of members with particular reference to Article 105.
As indicated by us in our operative conclusions pronounced earlier, we need not express our concluded opinion on the points argued before us which are not necessary for supporting the conclusion reached by us that the entire Tenth Schedule and consequently the Constitution (Fifty Second Amendment) Act, 1985 is unconstitutional on the view we have taken on the other points.
We are, therefore, giving our reasons only in respect of the points decided by us leading to the conclusion we have reached.
At this stage, it would be appropriate to mention the specific stand of the Speakers taken at the hearing.
The learned counsel who appeared for the several Speakers clearly stated that they were instructed to apprise us that the Speakers did not accept the jurisdiction of this Court to entertain these matters in view of the complete bar on jurisdiction of the courts enacted in para 7 read with para 6 of the Tenth Schedule.
Accordingly, they abstained from addressing us on the merits of the impugned orders which led to these matters being brought in this Court in spite of our repeated invitation to them to also address us on merits in each case, which all the other learned counsel did.
No doubt, this Court 's jurisdiction to decide the constitutional validity of the Tenth Schedule was conceded, but no more.
It is in these extra ordinary circumstances that we had to hear these matters.
We need not refer herein to the details of any particular case since the merits of each case are dealt separately in the order of that case.
Suffice it to say that the unanimous view of the Bench is that the Speakers ' decision disqualifying a member under the Tenth Schedule is not immune from judicial scrutiny.
According to the majority it is subject to judicial scrutiny on the ground of illegality or perversity which in the minority view, it is a nullity liable to be so declared and ignored.
We consider it apposite in this context to recall the duty of the Court in such delicate situations.
This is best done by quoting Chief Justice Marshall in Cohens vs Virginia; , , 404, 5 L.Ed.257, 291 [1821], wherein he said : 783 "It is most true, that this Court will not take Jurisdiction if it should not : but it is equally true that it must take jurisdiction if it should.
The judiciary cannot, as the legislature may, avoid a measure because it approaches the confines of the constitution.
We cannot pass it by because it is doubtful.
With whatever doubts, with whatever difficulties, a case may be attended, we must decide it if it be brought before us.
We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given.
The one or the other would be treason to the constitution.
Questions may occur which we would gladly avoid, but we cannot avoid them.
All we can do, is to exercise our best judgment, and conscientiously to perform our duty.
In doing this, on the present occasion, we find this tribunal invested with appellate jurisdiction in all cases arising under the constitution and laws of the United States.
We find no exception to this grant, and we cannot insert one.
XXX XXX XXX .
If the question cannot be brought in a court, then there is no case in law or equity, and no jurisdiction is given by the words of the article.
But if, in any controversy depending in a court, the cause should depend on the validity of such a law, that would be a case arising under the constitution, to which the judicial power of the United States would extend. ." (emphasis supplied) More recently, Patanjali Sastri, CJ., while comparing the role of this Court in the constitutional scheme with that of the U.S. Supreme Court, pointed out in the State of Madras vs V.G. Row ; that the duty of this Court flows from express provisions in our Constitution while such power in the U.S. Supreme Court has been assumed by the interpretative process giving a wide meaning to the "due process" clause.
Sastri, CJ., at p.605, spoke thus: "Before proceeding to consider this question, we think it right to point out, what is sometimes overlooked, that our constitution contains express provisions for judicial review of legislation as to its conformity with the Constitution, unlike as in America where the Supreme Court has assumed extensive powers of 784 reviewing legislative acts under cover of the widely interpreted `due process ' clause in the Fifth and Fourteenth Amendments.
If,then, the, courts in this country face up to such important and none too easy task, it is not out of any desire to tilt at legislative authority in a crusader 's spirit, but in discharge of a duty plainly laid upon them by the Constitution.
This is especially true as regards the `fundamental rights ', as to which this court has been assigned the role of a sentinel on the qui vive.
While the Court naturally attaches great weight to the legislative judgment, it cannot desert its own duty to determine finally the constitutionality of an impugned statute.
We have ventured on these obvious remarks because it appears to have been suggested in some quarters that the courts in the new set up are out to seek clashes with legislatures in the country." (emphasis supplied) We are in respectful agreement with the above statement of Sastri, CJ, and wish to add that even though such an obvious statement may have been necessary soon after the Constitution came into force and may not be a necessary reminder four decades later at this juncture, yet it appears apposite in the present context to clear the lingering doubts in some minds.
We have no hesitation in adding further that while we have no desire to clutch at jurisdiction, at the same time we would not be deterred in the performance of this constitutional duty whenever the need arises.
We would also like to observe the unlike England, where there is no written Constitution and Parliament is supreme, in our country there is a written Constitution delineating the spheres of jurisdiction of the legislature and the judiciary whereunder the power to construe the meaning of the provisions in the Constitution and the laws is entrusted to the judiciary with finality attached to the decision of this Court inter alia by Article 141 about the true meaning of any enacted provision and Article 144 obliges all authorities in the country to act in aid of this Court.
It is, therefore, not permissible in our constitutional scheme for any other authority to claim that power in exclusivity, or in supersession of this Court 's verdict.
Whatever be the controversy prior to this Court entertaining such a matter, it must end when the court is seized of the matter for pronouncing its verdict and it is the constitutional obligation of every person and authority to accept its binding effect when the decision is rendered by this Court.
It is also to be remembered that in our constitutional scheme based on 785 democratic principles which include governance by rule of law, every one has to act and perform his obligations according to the law of the land and it is the constitutional obligation of this Court to finally say what the law is.
We have no doubt that the Speakers and all others sharing their views are alive to this constitutional scheme, which is as much the source of their jurisdiction as it is of this Court and also conscious that the power given to each wing is for the performance of a public duty as a constitutional obligation and not for self aggrandisement.
Once this perception is clear to all, there can be no room for any conflict.
The Tenth Schedule was inserted in the Constitution of India by the Constitution (Fifty Second Amendment) Act, 1985 which came into force with effect from 1.3.1985 and is popularly known as the Anti Defection Law.
The Statement of Objects and Reasons says that this amendment in the Constitution was made to combat the evil of political defections which has become a matter of national concern and unless combated, is likely to undermine the very foundations of our democratic system and the principles which sustained it.
This amendment is, therefore, for outlawing defection to sustain our democratic principles.
The Tenth Schedule contains eight paras.
Para 1 is the interpretation clause defining `House ' to mean either House of Parliament or the legislative Assembly or, as the case may be, either House of the Legislature of a State.
The expressions `legislature party ' and `original political party ' which are used in the remaining paras are also defined.
Para 2 provides for disqualification on ground of defection.
Para 3 provides that disqualification on ground of defection is not to apply in case of split indicating therein the meaning of `split.
Para 4 provides that disqualification on ground of defection is not to apply in case of merger.
Para 5 provides exemption for the Speaker or the Deputy speaker of the House of the People or of the Legislative Assembly of the State, the Deputy Chairman of the Council of States or the Chairman or the Deputy Chairman of the Legislative Council of a State from the applicability of the provisions of the Tenth Schedule.
Para 8 contains the rule making power of the Chairman or the Speaker.
For the purpose of deciding the jurisdiction of this Court and the justiciability of the cause, it is paras 6 and 7 which are material and they read as under: "6.
Decision on questions as to disqualification of ground of defection.
786 1.
If any question arises as to whether a member of a House has become subject to disqualification under this Schedule, the question shall be referred for the decision of the Chairman or, as the case may be, the Speaker of such House and his decision shall be final : Provided that where the question which has arisen is as to whether the Chairman or the Speaker of a House has become subject to such disqualification, the question shall be referred for the decision of such member of the House as the House may elect in this behalf and his decision shall be final.
All proceedings under sub paragraph (1) of this paragraph in relation to any question as to disqualification of a member of a House under this Schedule shall be deemed to be proceedings in Parliament within the meaning of Article 122 or, as the case may be, proceedings in the Legislature, of a State within the meaning of Article 212.
Bar of Jurisdiction on courts.
Notwithstanding anything in this Constitution, no court shall have any jurisdiction in respect of any matter connected with the disqualification of a member of a House under this Schedule.
" We shall now deal with the points involved enumerated earlier.
Points `A ' & `B ' Paras 6 & 7 of Tenth Schedule In support of the objection raised to the jurisdiction of this Court and the justiciability of the Speaker 's decision relating to disqualification of a member, it has been urged that sub paragraph (1) of para 6 clearly lays down that the decision of the Chairman or, as the case may be, the Speaker of such House shall be final and sub paragraph (2) proceeds to say that all proceedings under sub paragraph (1) 'shall be deemed to the proceedings in Parliament . or, . . proceedings in the Legislature of a State ' within the meaning of Article 122 or Article 212, as the case may be.
It was urged that the clear provision in para 6 that the decision of the 787 Chairman/Speaker on the subject of disqualification under this Schedule shall be final and the further provision that all such proceedings `shall be deemed to be proceedings in Parliament . or, . proceedings in the Legislature of as State ', within the meaning of Article 122 or Article 212, as the case may be, clearly manifests the intention that the jurisdiction of all courts including the Supreme Court is ousted in such matters and the decision on this question is not justiciable.
Further argument is that para 7 in clear words thereafter reiterates that position by saying that `notwithstanding anything in this Constitution, no court shall have any jurisdiction in respect of any matter connected with the disqualification of a member of a House under this Schedule.
In other words, the argument is that para 6 by itself provides for ouster of the jurisdiction of all courts including the Supreme Court and para 7 is a remanifestation of that clear intent in case of any doubt arising from para 6 alone.
On this basis it was urged that the issue raised before us is not justiciable and the Speaker or the Chairman, as the case may be, not being `Tribunal ' within the meaning of that expression used in Article 136 of the Constitution, their decision is not open to judicial review.
In reply, it was urged that finality Clause in sub paragraph (1) of para 6 does not exclude the jurisdiction of the high Courts under Articles 226 and 227 and of this Court under Article 136.
Deeming provision in sub paragraph (2) of Para 6, it was urged, has the only effect of making it a `proceedings in Parliament ' or `proceedings in the Legislature of a State ' to bring it within the ambit of clause (1) of Articles 122 or 212 but not within clause (2) of these Articles.
The expression `proceedings in Parliament ' and `proceedings in the Legislature of a State ' are used only in clause (1) of Articles 122 and 212 but not in clause (2) of either of these Articles, on account of which the scope of the fiction cannot be extended beyond the limitation implicit in the specific words used in the legal fiction.
This being so, it was argued that immunity extended only to `irregularity of procedure ' but not to illegality as held in Keshav Singh [1965] 1 SCR 413.
In respect of para 7, the reply is that the expression `no court ' therein must be similarly construed to refer only to the courts of ordinary jurisdiction but not the extra ordinary jurisdiction of the High Courts under Article 226 & 227 and the Plenary jurisdiction of Supreme Court under Article 136.
It was also argued that the Speaker/Chairman while deciding the question of disqualification of member under para 6 exercises a judicial function of the State which otherwise would be vested in the courts and, 788 therefore, in this capacity he acts as `Tribunal amenable to the jurisdiction under Articles 136, 226 and 227 of the Constitution.
Shri Sibal also contended that the bar in para 7 operates only at the interim stage, like other election disputes, and not after the final decision under para 6.
The finality clause in sub paragraph (1) of para 6 which says that the decision of the Chairman or, as the case may be, the Speaker of such House shall be final is not decisive.
It is settled that such a finality clause in a statute by itself is not sufficient to exclude the jurisdiction of the High Courts under Articles 226 and 227 and the Supreme Court under Article 136 of the Constitution, the finality being for the statute alone.
This is apart from the decision being vulnerable on the ground of nullity.
Accordingly, sub paragraph (1) alone is insufficient to exclude the extra ordinary jurisdiction of the High Courts and the plenary jurisdiction of this Court.
The legal fiction in sub paragraph (2) of para 6 can only bring the proceedings under sub paragraph (1) thereof within the ambit of clause (1) of Article 122 or clause (1) 212, as the case may be since the expressions used in sub paragraph (2) of para 6 of the tenth Schedule are `shall be deemed to be proceedings in Parliament ' or `proceedings in the Legislature of a State ' and such expressions find place both in Articles 122 and 212 only in clause (1) and not clause (2) thereof.
The ambit of the legal function must be confined to the limitation implicit in the words used for creating the fiction and it cannot be given an extended meaning to include therein something in addition.
It is also settled that a matter falling within the ambit of clause (1) of either of these two Article is justiciable on the ground of illegality or perversity in spite of the immunity it enjoys to a challenge on the ground of `irregularity of procedures '.
To overcome this result, it was argued that such matter would fall within the ambit of Clause (2) of both Articles 122 and 212 because the consequence of the order of disqualification by the Speaker/Chairman would relate to the conduct of business of the House.
In the first place, the two separate clauses in Articles 122 and 212 clearly imply that the meaning and scope of the two cannot be identical even assuming there be some overlapping area between them.
What is to be seen is the direct impact of the action and its true nature and not the further consequences flowing therefrom.
it cannot be doubted in view of the clear language of sub paragraph (2) of para 6 that it relates to clause (1) of both Articles 122 and 212 and the legal fiction cannot, therefore, be extended beyond the limits 789 of the express words used in the fiction.
In construing the fiction it is not to be extended beyond the language of the Section by which it is created and its meaning must be restricted by the plain words used.
It cannot also be extended by importing another fiction.
The fiction in para 6(2) is a limited one which serves its purpose by confining it to clause (1) alone of Articles 122 and 212 and, therefore,, there is no occasion to enlarge its scope by reading into it words which are not there and extending it also to clause (2) of these Articles.
See Commissioner of Income tax vs Ajax Products Ltd., ; Moreover, it does appear to us that the decision relating to disqualification of a member does not relate to regulating procedure or the conduct of business of the House provided for in clause (2) of Articles 122 and 212 and taking that view would amount to extending the fiction beyond its language and importing another fiction for this purpose which is not permissible.
That being so, the matter falls within the ambit of Clause (1) only of Articles 122 and 212 as a result of which it would be vulnerable on the ground of illegality and perversity and, therefore, justiciable to that extent.
It is, therefore, not possible to uphold the objection of jurisdiction on the finality clause or the legal fiction created in para 6 of the Tenth Schedule when justiciability of the clause is based on a ground of illegality or perversity (see Keshav Singh ; This in our view is the true construction and effect of para 6 of Tenth Schedule.
We shall now deal with para 7 of the Tenth Schedule.
The words in para 7 of the Tenth Schedule are undoubtedly very wide and ordinarily mean that this provision supersedes any other provision in the Constitution.
This is clear from the use of the non obstinate clause `notwithstanding anything in this Constitution ' as the opening words of para 7.
The non obstinate clause followed by the expression `no court shall have any jurisdiction 'leave no doubt that the bar of jurisdiction of courts contained in para 7 is complete excluding also the jurisdiction of the Supreme court under Article 136 and that of the High Courts under Articles 226 and 227 of the Constitution relating to matters covered by para 7.
The question, therefore, is of the scope of para 7.
The scope of para 7 for this purpose is to be determined by the expression `in respect of any matter connected with disqualification of a member of a House under this Schedule '.
790 One of the constructions suggested at the hearing was that this expression covers only the intermediate stage of the proceedings relating to disqualification under para 6 and not the end stage when the final order is made under para 6 on the question of disqualification.
It was suggested that this construction would be in line with the construction made by this Court in its several decisions relating to exclusion of Courts ' jurisdiction in election disputes at the intermediate state under Article 329 of the Constitution.
This construction suggested of para 7 does not commend to us since it is contrary to the clear and unambiguous language of the provision.
The expression `in respect of any matter connected with the disqualification of a member of a House under this Schedule ' is wide enough to include not merely the intermediate stage of the proceedings relating to disqualification but also the final order on the question of disqualification made under para 6 which is undoubtedly such a matter.
There is thus express exclusion of all courts ' jurisdiction even in respect of the final order.
As earlier indicated by virtue of the finality clause and the deeming provision in para 6, there is exclusion of all courts ' jurisdiction to a considerable extent leaving out only the area of justiciability on the ground of illegality or perversity which obviously is relatable only to the final order under para 6.
This being so, enactment of para 7 was necessarily made to bar the jurisdiction of courts also in respect of matters falling outside the purview of the exclusion made by para 6.
para 7 by itself and more so when read along with para 6 of the Tenth Schedule, leaves no doubt that exclusion of all courts ' jurisdiction by para 7 is total leaving no area within the purview, even of the Supreme Court or the High Courts under Articles 136 , 226 and 227.
The language of para 7 being explicit, no other aid to construction is needed.
Moreover, the speech of the Law Minister who piloted the Bill in the Lok Sabha and that of the Prime Minister in the Rajya Sabha as well as the debate on this subject clearly show that these provisions were enacted to keep the entire matter relating to disqualification including the Speakers ' final decision under para 6 on the question of disqualification, wholly outside the purview of of all courts including the Supreme Court and the High Courts.
The legislative history of the absence of such a provision excluding the courts ' jurisdiction in the two earlier Bills which lapsed also re inforces the conclusion that enactment of para 7 was clearly to provide for total ouster of all courts ' jurisdiction.
791 In the face of this clear language, there is no rule of construction which permits the reading of para 7 in any different manner since there is no ambiguity in the language which is capable of only one construction, namely, total exclusion of the Jurisdiction of all courts including that of the Supreme Court and the High Courts under Articles 136, 226 and 227 of the Constitution in respect of every matter connected with the disqualification of a member of a House under the Tenth Schedule including the final decision rendered by the Speaker/Chairman, as the case may be.
Para 7 must, therefore, be read in this manner alone.
The question now is of the effect of enacting such a provision in the Tenth Schedule and the applicability of the proviso to clause (2) of Article 368 of the Constitution.
Point `C ' Applicability of Article 368(2) Proviso The above construction of para 7 of the Tenth Schedule gives rise to the question whether it thereby makes a change in Article 136 which is in Chapter IV of part V and Articles 226 and 227 which are in Chapter V of Part VI of the Constitution.
If the effect of para 7 is to make such a change in these provisions so that the proviso to clause (2) of Article 368 is attracted, then the further question which arises is of the effect on the Tenth Schedule of the absence of ratification by the specified number of State Legislatures, it being admitted that no such ratification of the Bill was made by any of the State Legislatures.
Prima facie it would appear that para 7 does seek to make a change in Articles 136 , 226 and 227 of the Constitution inasmuch as without para 7 in the Tenth Schedule a decision of the Speaker/ Chairman would be amenable to the jurisdiction of the Supreme Court under Article 136 and of the high Courts under Articles 226 and 227 as in the case of decisions as to other disqualifications provided in clauses (1) of Article 102 or 191 by the President/Governor under Article 103 or 192 in accordance with the opinion of the Election Commission which was the Scheme under the two earlier Bills which lapsed.
However, some learned counsel contended placing reliance on Sri Sankari Prasad Singh Deo vs Union of India and State of Bihar, ; and Sajjan Singh vs State of Rajasthan, ; that the effect of such total exclusion of the jurisdiction of the Supreme Court and the High Courts does not make a change in Articles 136, 226 and 227.
A close reading of these decisions indicates that instead 792 of supporting this contention, they do infact negative it.
In Sankari Prasad, the challenge was to Articles 31A and 31B inserted in the Constitution by the Constitution (First Amendment) Act, 1951.
One of the objections was based on absence of ratification under Article 368.
While rejecting this argument, the Constitution Bench held as under: "It will be seen that these Articles do not either in terms or in effect seek to make any change in article 226 or in articles 132 and 136.
Article 31A aims at saving laws providing for the compulsory acquisition by the State of a certain kind of property from the operation of article 13 read with other relevant articles in Part III, while article 31B purports to validate certain specified Acts and Regulations already passed, which, but for such a provision, would be liable to be impugned under article 13.
It is not correct to say that the powers of the High Court under article 226 to issue writs "for the enforcement of any of the rights conferred by Part III" or of this Court under articles 132 and 136 to entertain appeals from orders issuing or refusing such writs are in any way affected.
They remain just the same as they were before : only a certain class of case has been excluded from the purview of Part III and the courts could no longer interfere, not because their powers were curtailed in any manner or to any extend, but because there would be no occasion hereafter for the exercise of their powers in such cases.
" [emphasis supplied] The test applied was whether the impugned provisions inserted by the Constitutional Amendment did `either in terms or in effect seek to make any change in Article 226 or in Articles 132 and 136 '.
Thus the change may be either in terms i.e. explicit or in effect in these Articles to require ratification.
The ground for rejection of the argument therein was that the remedy in the courts remained unimpaired and unaffected by the change and the change was really by extinction of the right to seek the remedy.
In other words, the change was in the right and not the remedy of approaching the court since there was no occasion to invoke the remedy, the right itself being taken away.
To the same effect is the decision in Sajjan Singh, wherein Sankari Prasad was followed stating clearly that there was 793 no justification for reconsidering Sankari Prasad.
Distinction has to be drawn between the abridgement or extinction of a right and restriction of the remedy for enforcement of the right.
If there is an abridgement or extinction of the right which results in the disappearance of the cause of action which enables invoking the remedy and in the absence of which there is no occasion to make a grievance and invoke the subsisting remedy, then the change brought about is in the right and not the remedy.
To this situation, Sankari Prasad and Sajjan Singh apply.
On the other hand, if the right remains untouched so that a grievance based thereon can arise and, therefore, the cause of action subsists, but the remedy is curtailed or extinguished so that the cause of action cannot be enforced for want of that remedy, then the change made is in the remedy and not in the subsisting right.
To this latter category, Sankari Prasad and Sajjan Singh have no application.
This is clear from the above quoted passage in Sankari Prasad which clearly brings out this distinction between a change in the right and a change in the remedy.
The present case, in unequivocal terms, is that of destroying the remedy by enacting para 7 in the Tenth Schedule making a total exclusion of judicial review including that by the Supreme Court under Article 136 and the High Courts under Articles 226 and 227 of the Constitution.
But for para 7 which deals with the remedy and not the right, the jurisdiction of the Supreme Court under Article 136 and that of the High Courts under Articles 226 and 227 would remain unimpaired to challenge the decision under para 6, as in the case of decisions relating to other disqualifications specified in clause (1) of Articles 102 and 191, which remedy continues to subsist.
Thus, this extinction of the remedy alone without curtailing the right, since the question of disqualification of a member on the ground of defection under the Tenth Schedule does required adjudication on enacted principles, results in making a change in Article 136 in Chapter IV in Part V and Articles 226 and 227 in Chapter V in Part VI of the Constitution.
On this conclusion, it is undisputed that the proviso to clause (2) of Article 368 is attracted requiring ratification by the specified number of State Legislatures before presentation of the Bill seeking to make the constitutional amendment to the President for his assent.
Point `D ' Effect of absence of ratification 794 The material part of Article 368 is as under : "368.
Power of Parliament to amend the Constitution and Procedure therefore.
(1) Notwithstanding anything in this Constitution, Parliament may in exercise of its constituent Power amend by way of addition, variation or repeal any provision of this Constitution in accordance with the procedure laid down in this article.
(2) An amendment of this Constitution may be initiated only by the introduction of a Bill, for the purpose in either House of parliament, and when the Bill is passed in each House by a majority of the total membership of that House and by a majority of not less than two thirds of the members of that House present and voting, it shall be presented to the President who shall give his assent to the Bill and thereupon the Constitution shall stand amended in accordance with the terms of the Bill : Provided that if such amendment seeks to make any change in (a) Article 54, Article 55, Article 73, Article 162 or Article 241, or (b) Chapter IV of Part V, Chapter V of Part VI, or Chapter I of Part XI, or (c) any of the Lists in the Seventh Schedule, or (d) the representation of States in Parliament, or (e) the provisions of this article, the amendment shall also require to be ratified by the Legislature of not less than one half of the States by resolutions to that effect passed by those legislatures before the Bill making provision for such amendment is presented to the President for assent." (emphasis supplied) it is clause (2) with its proviso which is material.
The main part of clause (2) prescribes that a constitutional amendment can be initiated only by the introduction of a Bill for the purpose and when the Bill is passed 795 by each House by a majority of the total membership of that House and by a majority of not less than tow thirds of the members of that House present and voting, it shall be presented to the President who shall give his assent to the Bill and thereupon the Constitution shall stand amended in accordance with the terms of the Bill.
In short, the Bill not being passed by the required majority is presented to the President for his assent to the Bill and on giving of the assent, the Constitution stands amended accordingly.
Then comes, the proviso which says that `if such an amendment seeks to make any change ' in the specified provisions of the Constitution, the amendment shall also require to be ratified by the Legislature of not less than one half of the States by resolutions to that effect passed by those Legislatures before the Bill making provision for such amendment is presented to the President for assent.
In other words, the proviso contains a constitutional limitation on the amending power; and prescribes as a part of the special procedure, prior assent of the State legislatures before Presentation of the Bill to the President for his assent in the case of such Bills.
This is a condition interposed by the proviso in between the passing of the Bill by the requisite majority in each House and presentation of the Bill to the President for his assent, which assent results in the Constitution automatically standing amended in accordance with terms of the Bill.
Thus, the Bills governed by the proviso cannot be presented to the President for his assent without the prior ratification by the specified number of State Legislatures or in other words, such ratification is a part of the special procedure or a condition precedent to presentation of the Bill governed by the proviso to the President for his assent.
It logically follows that the consequence of the Constitution standing amended in accordance with the terms of the Bill on assent by the President, which is the substantive part of Article 368, results only when the Bill has been presented to the President for his assent in conformity with the special procedure after performance of the conditions precedent, namely, passing of the Bill by each House by the requisite majority in the case of all Bills; and in the case of Bills governed by the proviso, after the Bill has been passed by the requisite majority in each House and it has also been ratified by the legislature of not less than one half of the States.
The constituent power for amending the Constitution conferred by Article 368 also prescribes the mandatory procedure in clause (2) including its proviso, for its exercise.
The constituent power cannot, therefore, be exercised in any other manner and non compliance of the special procedure 796 so prescribed in Article 368 (2) cannot bring about the result of the Constitution standing amended in accordance with the terms of the Bill since that result ensues only at the end of the prescribed mandatory procedure and not otherwise.
The substantive part of Article 368 which provides for the resultant amendment is the consequence of strict compliance of the mandatory special procedure prescribed for exercise of the constituent power and that result does not ensue except in the manner prescribed.
The true nature and import of the amending power and procedure under Article 368 as distinguished from the ordinary legislative procedure was indicated in Kesavananda Bhartim[1973] Supp.
SCR 1 at pp.
561, 563 & 565 : ".
Under Article 368 However, a different and special procedure is provided for amending the constitution.
A Bill has to be introduced in either House of Parliament and must be passed by each House separately by a special majority.
It should be passed not only by 2/3rds majority of the members present and voting but also by a majority of the total strength of the House.
No joint sitting of the two Houses is permissible.
In the case of certain provisions of the Constitution which directly or indirectly affect interstate relations, the proposed amendment is required to be ratified by the Legislatures which is not a legislative process of not less than one half of the States before the Bill proposing the amendment is presented to the President for his assent.
The procedure is special in the sense that it is different and more exacting or restrictive than the one by which ordinary laws are made by Parliament.
Secondly in certain matters the State Legislatures are involved in the process of making the amendment.
Such partnership between the Parliament and the State Legislatures in making their own laws by the ordinary procedure is not recognised by the Constitution.
It follows from the special provision made in Article 368 for the amendment of the Constitution that our Constitution is a `rigid ' or `controlled 'constitution because the Constituent Assembly has "left a special direction as to how the constitution is to be changed.
In view of Article 368, when the special procedure is successfully followed, the proposed amendment automatically becomes a part of the 797 constitution or, in other words, it writes itself into the constitution." XXX XXX XXX ".
But when it comes to the amendment of the Constitution, a special procedure has been prescribed in Article 368, Since the result of following the special procedure under the Article is the amendment of the constitution the process which brings about the result is known as the exercise of constituent power by the bodies associated in the task of the amending the constitution.
It is, therefore, obvious, that when the Parliament and the State Legislatures function in accordance with Article 368 with a view to amend the constitution, they exercise constituent power as distinct from their ordinary legislative power under Articles 245 to 248.
Article 368 is not entirely procedural.
Undoubtedly part of it is procedural.
But there is a clear mandate that on the procedure being followed the `proposed amendment shall become part of the constitution, which is the substantive part of Article 368.
Therefore, the peculiar or special power to amend the constitution is to be sought in Article 368 only and not elsewhere." XXX XXX XXX ".
The true position is that the alchemy of the special procedure prescribed in Article 368 produces the constituent power which transport the proposed amendment into the constitution and gives it equal status with the other parts of the constitution." (emphasis supplied) Apart from the unequivocal language of clause (2) including the proviso therein indicating the above result of prior ratification being a part of the special procedure or condition precedent for valid assent of the President, the same result is reached even by another route.
The ordinary role of a proviso is to carve out an exception from the general rule in the main enacting part.
The main enacting part of clause (2) lays down that on a Bill for a constitutional amendment being passed in each House by a requisite majority, it shall be presented to the President for his assent and on the assent being given , the Constitution shall stand amended in accordance 798 with the terms of the Bill.
The proviso then carves out the exception in case of Bills seeking to make any change in the specified Articles of the Constitution prescribing that in the case of those Bills, prior ratification by the Legislatures of not less than one half of the States is also required before the Bill is presented to the President for assent.
This means that a Bill falling within the ambit of the proviso is carved out of the main enactment in clause (2) as an exception on account of which it cannot result in amendment of the Constitution on the President 's assent without prior ratification by the specified number of State Legislatures.
The proviso in clause (2) is enacted for and performs the function of a true proviso by qualifying the generality of the main enactment in clause (2) in providing an exception and taking out of the main enactment in clause (2) such Bills which but for the proviso would fall within the main part.
Not only the language of the main enactment in clause (2) and the proviso thereunder is unequivocal to give this clear indication but the true role of a proviso, the form in which the requirement of prior ratification if such a Bill by the State Legislatures is enacted in Article 368 lend further assurance that this is the only construction of clause (2) with its proviso which can be legitimately made.
If this be the correct constructions of Article 368 (2) with the proviso as we think it is, then there is no escape from the logical conclusion that a Bill to which the proviso applies does not result in amending the Constitution in accordance with its terms on assent of the President if it was presented to the President for his assent and the President gave his assent to the Bill without prior ratification by the specified number of the State Legislatures.
This is the situation in the present case.
Thus the requirement of prior ratification by the State Legislatures is not only a condition precedent forming part of the special mandatory procedure for exercise of the constituent power and a constitutional limitation thereon but also a requirement carving out an exception to the general rule of automatic amendment of the Constitution on the President 's assent to the Bill.
In other words, clause (2) with the proviso therein itself lays down that President 's assent does not result in automatic amendment of the Constitution in case of such a Bill it was not duly ratified before presentation to the President for his assent.
Nothing more is needed to show that not only para 7 of the Tenth Schedule but the entire Constitution (Fifty 799 Second Amendment) Act, 1985 is still born or an abortive attempt to amend the Constitution for want of prior ratification by the State Legislatures of the Bill before its presentation to the President for his assent.
The result achieved in each case is the same irrespective of the route taken.
If the route chosen is for construing the language of clause (2) with the proviso merely a part of it, the requirement or prior ratification is a condition precedent forming part of the special mandatory procedure providing that the constituent power in case of such a Bill can be exercised in this manner alone, the mode prescribed for other Bills being forbidden.
If the route taken is of treating the proviso as carving out an exception from the general rule which is the normal role of a proviso, then the result is that the consequence of the Constitution standing amended in terms of the provisions of the Bill on the President 's assent as laid down in the main part of clause (2) does not ensue without prior ratification in case of a Bill to which the proviso applies.
There can thus be no doubt that para 7 of the Tenth Schedule which seeks to make a change in Article 136 which is a part of Chapter IV of Part V and Articles 226 and 227 which form part of Chapter V of Part VI of the Constitution, has not been enacted by incorporation in a Bill seeking to make the constitutional Amendment in the manner prescribed by clause (2) read with the proviso therein of Article 368.
Para 7 of the Tenth Schedule is, therefore, unconstitutional and to that extent at least the Constitution does not stand amended in accordance with the Bill seeking to make the Constitutional Amendment.
The further question now is: its effect on the validity of the remaining part of the Tenth Schedule and consequently the Constitution (Fifty Second Amendment) Act, 1985 itself.
Point `E ' Severability of para 7 of Tenth Schedule The effect of absence of ratification indicated above suggests inapplicability of the Doctrine of Severability.
In our opinion, it is not para 7 alone but the entire Tenth Schedule may the Constitution (Fifty Second Amendment) Act, 1985 itself which is rendered unconstitutional being an abortive attempt to so amend the Constitution.
It is the entire Bill and not merely rely para 7 of the Tenth Schedule therein which required prior ratification by the State Legislatures before its presentation to the President for his assent, it being a joint exercise by the Parliament and State Legislatures.
The stage for presentation of Bill to the President for his assent not having 800 reached, the President 's assent was non est and it could not be result in amendment of the Constitution in accordance with the terms of the Bill for the reasons given earlier.
Severance of para 7 of the Tenth Schedule could not be made for the purpose of ratification or the President 's assent and, therefore, no such severance can be made even for the ensuing result.
If the President 's assent cannot validate para 7 in the absence of prior ratification, the same assent cannot be accepted to bring about a difference result with regard to the remaining part of the Bill.
On this view, the question of applying the Doctrine of Severability to strike down para 7 alone retaining the remaining part of Tenth Schedule does not arise since it presupposes that the Constitution stood so amended on the President 's assent.
The Doctrine does not apply to a still born legislation.
The Doctrine of Severability applies in a case where an otherwise validly enacted legislation contains a provision suffering from a defect of lack of legislative competence and the invalid provision is severable leaving the remaining valid provisions a valid provisions a viable whole.
This doctrine has no application where the legislation is not validly enacted due to non compliance of the mandatory legislative procedure such as the mandatory special procedure prescribed for exercise of the constituent power.
It is not possible to infuse life in a still born by any miracle of deft surgery even though it may be possible to continue life by removing a Congenitally defective part by surgical skill.
Even the highest degree of surgical skill can help only to continue life but it cannot infuse life in the case of still birth.
With respect, the contrary view does not give due weight to the effect of a condition precedent forming part of the special procedure and the role of a proviso and results in rewriting the proviso to mean that ratification is not a condition precedent but merely an additional requirement of such a Bill to make that part effective.
This also fouls with the expression `Constitution shall stand amended. . ' on the assent of President which is after the stage when the amendment has been made and ratified by the State Legislatures as provided.
The historical background of drafting the proviso also indicates the significance attached to prior ratification as a condition precedent for valid exercise of the constituent power.
We are unable to read the Privy Council decision in The Bribery Commissioner V. Pedrick Ranasinghe ; as an authority to 801 support applicability of the Doctrine of Severability in the Present case.
In Kesavananda Bharati, the substance of that decision was indicated by Mathew, J., at p. 778 of S.C.R., thus: ". that though Ceylon Parliament has plenary power of ordinary legislation, in the exercise of its constitution power it was subject to the special procedure laid down in s, 29 (4). ." While section 29(4) of Ceylon (Constitution) Order was entirely procedural with no substantive part therein, Article 368 of the Indian Constitution has also a substantive part as pointed out in Kesavananda Bharati.
This distinction also has to be borne in mind.
The challenge in Ranasinghe was only to the legality of a conviction made under the Bribery Act, 1954 as amended by the Bribery Amendment Act, 1958 on the ground that the Tribunal which had made the conviction was constituted under section 41 of the Amending Act which was invalid being in conflict with section 55 of the Constitution and not being enacted by exercise of constituent power in accordance with section 29(4) of the Ceylon (Constitution) Order.
Supreme Court of Ceylon quashed the conviction holding section 41 of the Amending Act to be invalid for this reason.
The Privy Council affirmed that view and in this context held that section 41 could be severed from rest of the Amending Act.
Ranasinghe was not a case of a Bill passed in exercise of the constituent power without following the special procedure of section 29(4) but of a Bill passed in exercise of the ordinary legislative power containing other provisions which could be so enacted, and including therein section 41 which could be made only in accordance with the special procedure of section 29(4) of the Constitution.
The Privy Council made a clear distinction between legislative and constituent powers and reiterated the principles thus: ".
The effect of section 5 of the Colonial Laws Validity Act, which is framed in a manner somewhat similar to section 29(4) of the Ceylon Constitution was that where a legislative power is given subject to certain manner and form, that power does not exist unless and until the manner and form is complied with Lord Sankey L.C. said : "A Bill, within the scope of sub section (6) of section 7A, which received the Royal Assent without having been approved by 802 the electors in accordance with that section, would not be a valid act of the legislature.
It would be ultra vires section 5 of the Act of 1865.
" The Bribery Amendment Act, 1958, in Ranasinghe, was enacted in exercise of the ordinary legislative power and therein was inserted section 41 which could be made only in exercise of the constituent power according to the special procedure prescribed in section 29(4) of the Ceylon (Constitutions) Order.
In this situation, only section 41 of the Amending Act was held to be invalid and severed because the special procedure for the constituent power was required only for that provision and not the rest.
In the instant case the entire Tenth Schedule is enacted in exercise of the Constituent power under Article 368, not merely para 7 therein, and this has been done without following the mandatory special procedure prescribed.
It is, therefore, not a case of severing the invalid constituent part from the remaining ordinary legislation.
Ranasinghe could have application if in an ordinary legislation outside the ambit of Article 368, a provision which could be made only in exercise of the constituent power according to Article 368 had been inserted without following the special procedure, and severance of the invalid constituent part alone was the question.
Ranasinghe is, therefore, distinguishable.
Apart from inapplicability of the Doctrine of Severability to a Bill to which the proviso to clause (2) of Article 368 applies, for the reasons given, it does not apply in the present case to strike down para 7 alone retaining the remaining part of the Tenth Schedule.
In the first place, the discipline for exercise of the constituent power was consciously and deliberately adopted instead of resorting to the mode of ordinary legislation in accordance with sub clause (e) of clause (1) of Articles 102 and 191, which would render the decision on the question of disqualification on the ground of defection also amenable to judicial review as in the case of decision on questions relating to other disqualifications.
Moreover, even the test applicable for applying the Doctrine of Severability to ordinary legislation as summarised in R.M.D. Chamarbaughwalla vs The Union of India, ; , indicates that para 7 alone is not severable to permit retention of the remaining part of the Tenth Schedule as valid legislation.
The settled test whether the enactment would have been made without para 7 indicates that the legislative intent was to make the enactment only with para 7 therein and not without it.
This intention is manifest throughout and 803 evident from the fact that but for para 7 the enactment did not require the discipline of Article 368 and exercise of the constituent power.
Para 7 follows para 6 the contents of which indicate the importance given to para 7 while enacting the Tenth Schedule.
The entire exercise, as reiterated time and again in the debates, particularly the Speech of the Law Minister while piloting the Bill in the Lok Sabha and that of the Prime Minister in the Rajya Sabha, was to emphasise that total exclusion of judicial review of the Speaker 's decision by all courts including the Supreme Court, was the prime object of enacting the Tenth Schedule.
The entire legislative history shows this.
How can the Doctrine of Severability be applied in such a situation to retain the Tenth Schedule striking down para 7 alone ? This is further reason for inapplicability of this doctrine.
Point `F ' Violation of basic features The provisions in the Tenth Schedule minus para 7, assuming para 7 to be severable as held in the majority opinion, can be sustained only if they do not violate the basic structure of the Constitution or damage any of its basic features.
This is settled by Kesavananda Bharti [1973] Supp.
S.C.R. 1.
The question, therefore, is whether there is violation of any of the basic features of the Constitution by the remaining part of the Tenth Schedule, even assuming the absence of ratification in accordance with the proviso to clause (2) of Article 368 results in invalidation of para 7 alone.
Democracy is a part of the basic structure of our Constitution; and rule of law, and free and fair elections are basic features of democracy.
One of the Postulates of free and fair elections is provision for resolution of election disputes as also adjudication of disputes relating to subsequent disqualifications by an independent authority.
It is only by a fair adjudication of such disputes relating to validity of electrons and subsequent disqualifications of members that true reflection of the electoral mandate and governance by rule of law essential for democracy can be ensured.
In the democratic pattern adopted in our Constitution, not only the resolution of election dispute is entrusted to a judicial tribunal, but even the decision on questions as to disqualification of members under Articles 103 and 192 is by the President/Governor in accordance with the opinion of the Election Commission.
The constitutional scheme, therefore, for decision on questions as to disqualification of members after being duly elected, contemplates adjudication of such disputes by an independent authority out 804 side the House, namely, President/Governor in accordance with the opinion of the Election Commission, all of whom are high constitutional functionaries with security of tenure independent of the will of the House.
Sub clause (e) of clause (1) in Articles 102 and 191 which provides for enactment of any law by the Parliament to prescribe any disqualification other than those prescribed in the earlier sub clauses of clause (1), clearly indicates that all disqualifications of members were contemplated within the scope of Articles 102 and 191.
Accordingly, all disqualifications including disqualification on the ground of defection, in our constitutional scheme, are different species of the same genus, namely, disqualification, and the constitutional scheme does not contemplate any difference in their basic traits and treatment.
It is undisputed that the disqualification on the ground of defection could as well have been prescribed by an ordinary law made by the Parliament under Articles 102 (1) (e) and 191 (1) (e) instead of by resort to the constituent power of enacting the Tenth Schedule.
This itself indicates that all disqualifications of members according to the constitutional scheme were meant to be decided by an independent authority outside the House such as the President/Governor, in accordance with the opinion of another similar independent constitutional functionary,, the Election Commission of India, who enjoys the security of tenure of tenure of a Supreme Court judge with the same terms and conditions of office.
Thus, for the purpose of entrusting the decision of the question of disqualification of a member, the constitutional scheme envisages an independent authority outside the House and not within it, which may be dependent on the pleasure of the Majority in the House for its tenure.
The Speaker 's office is undoubtedly high and has considerable aura with the attribute of impartiality.
This aura of the office was even greater when the Constitution was framed and yet the farmers of the Constitution did not choose to vest the authority of adjudicating disputes as to disqualification of members to the Speaker; and provision was made in Articles 103 and 192 for decision of such disputes by the President/Governor in accordance with the opinion of the Election Commission.
To reason is not far to seek.
The Speaker being an authority within the House and his tenure being dependent on the will of the majority therein, likelihood of suspicion of bias could not be ruled out.
The question as to disqualification of a member has adjudicatory disposition and, therefore, requires the decision 805 to be rendered in consonance with the scheme for adjudication of disputes.
Rule of law has in it firmly entrenched, natural justice, of which, rule against Bias is a necessary concomitant; and basic postulates of Rule against Bias are; Nemo judex in causa sua `A Judge is disqualified from determining any case in which he may be, or may fairly be suspected to be, biased '; and `it is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done. ' This appears to be the underlying principle adopted by the framers of the Constitution in not designating the Speaker as the authority to decide election disputes and questions as to disqualification of members under Articles 103, 192 and 329 and opting for an independent authority outside the House.
The framers of the Constitution had in this manner kept the office of the Speaker away from this controversy.
There is nothing unusual in this scheme if we bear in mind that the final authority for removal of a Judge of the Supreme Court and High Court its outside the judiciary in the Parliament under Article 124(4).
On the same principle the authority to decide the question of disqualification of a member of legislature is outside the House as envisaged by Articles 103 and 192.
In the Tenth Schedule, the Speaker is made not only the sole but the final arbiter of such dispute with no provision for any appeal or revision against the Speaker 's decision to any independent outside authority.
This departure in the Tenth Schedule is a reverse trend and violates a basic feature of the Constitution since the speaker cannot be treated as an authority contemplated for being entrusted with this function by the basic postulates of the Constitution, notwithstanding the great dignity attaching to that office with the attribute of impartiality.
It is the Vice President of India who is ex officio chairman of the Rajya Sabha and his position, being akin to that of the President of India, is different from that of the Speaker.
Nothing said herein relating to the office of the Speaker applies to the Chairman of the Rajya Sabha, that is, the Vice President of India.
However, the only authority named for the Lok Sabha and the Legislative Assemblies is the Speaker of the House and entrustment of this adjudicatory function fouls with the constitutional scheme and, therefore, violates a basic feature of the Constitution.
Remaining part of the Tenth Schedule also is rendered invalid notwithstanding the fact that this defect would not apply to the Rajya Sabha alone whose Chairman is the Vice President of India, since the Tenth Schedule becomes 806 unworkable for the Lok Sabha and the State Legislatures.
The Statutory exception of Doctrine of Necessity has no application since designation of authority in the Tenth Schedule is made by choice while enacting the legislation instead of adopting the other available options.
Since the conferment of authority is on the Speaker and that provision cannot be sustained for the reason given, even without para 7, the entire Tenth Schedule is rendered invalid in the absence of any valid authority for decision of the dispute.
Thus, even if the entire Tenth Schedule cannot be held unconstitutional merely on the ground of absence of ratification of the Bill, assuming it is permissible to strike down para 7 alone, the remaining part of the Tenth Schedule is rendered unconstitutional also on account of violation of the aforesaid basic feature.
Irrespective of the view on the question of effect of absence of ratification, the entire Tenth Schedule must be struck down as unconstitutionally.
Point `G ' Other contentions We have reached the conclusion that para 7 of the Tenth Schedule is unconstitutional; that the entire Tenth Schedule is constitutionally invalid in the absence of prior ratification in accordance with the proviso to clause (2) of Article 368; that the Doctrine of Severability does not apply in the present case of a constitutional amendment which suffers from the defect of absence of ratification as required by the proviso to clause (2) of Article 368; that the remaining part of the Tenth Schedule minus para 7 is also unconstitutional for violation of a basic feature of the Constitution; and that the entire Tenth Schedule is, therefore, constitutionally invalid rendering the Constitution (Fifty Second Amendment) Act, 1985 still born and an abortive attempt to amend the constitution.
In view of this conclusion, it is not necessary for us to express our concluded opinion on the other grounds of challenge to the constitutional validity of the entire Tenth Schedule urged at the hearing on the basis of alleged violation of certain other basic features of the Constitution including the right of members based on Article 105 of the Constitution.
These are our detailed reasons for the operative conclusions pronounced by us earlier on November 12, 1991. [/INST] By the Constitution (Fifty Second Amendment) Act, 1985 (popularly known as the Anti defection law) the Tenth Schedule was inserted in the constitution of India providing for disqualification of a Member of either House of Parliament or of a State Legislature found to have defected from continuing as a Member of the House.
Paragraph 2 of the Tenth Schedule states that a Member of a House would incur disqualification if he voluntarily gives up his membership of the party by which he was set up as a candidate at the election, or if he without obtaining prior permission of the political party to which he belongs votes or abstains from voting in the House contrary to "any direction" issued by such political party and such voting or abstention has not been condoned by such political party within 15 days from the date of such voting or abstention; or if a Member elected otherwise than as a candidate set up by any political party joins a political party after the 688 election; or, if a nominated Member joins any political party after expiry of six months from the date he took his seat.
Paragraph 6(1) states that the question of disqualification shall be referred for decision of the chairmen/Speaker of the House and his decision shall be final.
It further provides that such question in respect of Chairman/Speaker shall be referred for decision of such Member of the House as the House may elect in this behalf.
according to Paragraph 6(2) all proceedings under para 6(1) shall be deemed to be proceedings in Parliament/Legislature of a House within the meaning of Article 122/212.
Paragraph 7 states that no court shall have jurisdiction in respect of any matter connected with the disqualification of a Member of a House.
A large number of petitions were filed before various High Courts as well as this Court challenging the constitutionality of the Amendment.
This Court transferred to itself the petitions pending before the High Courts and heard all the matters together.
The challenge was mainly on the grounds that Paragraph 7 of the Tenth Schedule, in terms and ineffect sought to make a change in chapter IV of Part V and Chapter V of Part VI of the Constitution as it takes away the jurisdiction of the Supreme court under Article 136 and that of the High Courts under Articles 226 and 227 of the constitution, and,therefore,the Bill before presentation to the President for assent would require to be ratified by the legislatures of not less than one half of the States by resolution to that effect as envisaged by the proviso to Article 368(2); that in the absence of such a ratification the whole Amendment Bill was an abortive attempt to bring about the amendment indicated therein; that even assuming that the amendment does not attract the proviso to Article 368(2), Paragraph 7 of the Schedule is liable to be struck down as it takes away the power of judicial review; that the very concept of disqualification for defection is violative of the fundamental values and principles under lying parliamentary democracy and violates an elective representative 's freedom of speech, right to dissent and freedom of conscience and is destructive of a basic feature of the Constitution; that the investiture of power to adjudicate disputed defections in the Chairmen/Speakers, who being nominees of political parties are not obliged to resign their party affiliations, does not stand the test of an independent and impartial adjudicatory machinery and is, therefore, violative of the basic feature of 689 the constitution.
It was also contended that the expression "any direction" in Paragraph 2(1)(b) of the Schedule might be unduly restrictive of the freedom of speech, and the right of dissent which may itself be obnoxious to and violative of constitutional ideals and values.
The respondents contended that the Tenth Schedule created a nonjusticiable constitutional area dealing with certain complex political issues which have no strict adjudicatory disposition and the exclusion of this area is constitutionally preserved by imparting a finality to the decision of the Speakers/Chairmen by deeming whole proceedings as those within Parliament/House of legislature envisaged in Articles 122 and 212 and further excluding the Court 's Jurisdiction under Paragraph 7; that no question of ouster of judicial review would at all arise inasmuch as the Speaker/chairman exercising power under Paragraph 6(1) of the Tenth Schedule function not as a statutory tribunal but as a part of state 's Legislative department; and that having regard to the political issues, the subject matter is itself not amenable to judicial power but pertains to the constitution of the House and the legislature is entitled to deal with it exclusively.
The Court on 12.11.1991 gave its operative conclusions, indicating reasons to follow and by its judgment dated 18.2.1992 gave the reasons.
On the questions whether: (1) the Tenth Schedule to the constitution inserted by the constitution (Fifty Second Amendment) Act, 1985, seeking to penalise and disqualify elected representatives is violative of the fundamental principles of Parliamentary democracy and is, therefor, destructive of the basic feature of the Constitution; (2) Paragraph 7 of the Tenth Schedule in terms and in effect brings about a change in operation and effect of Articles 136,226 and 227 of the Constitution and, therefore, the Bill introducing the amendment would require ratification as envisaged by the proviso to Article 368(2); (3) the non compliance with the proviso to Article 368(2) would render the entire Bill vitiated and an abortive attempt to bring about a valid amendment or would Paragraph 7 alone be invalidated with the application of the doctrine of severability; (4) the Tenth Schedule created a new and non justiciable constitutional area not amenable to curial adjudicative process; and whether Paragraph 6(1) in imparting a constitutional `finality 'to the decisions of Chairmen/Speakers, and paragraph 6(2) in the event of attracting immunity under Articles 122 690 and 212, bar judicial review; (5) the Chairmen/Speakers satisfy the requirements of an independent adjudicatory machinery or whether the investiture of the determinative and adjudicative jurisdiction in them under the Tenth Schedule would vitiate the provision on the ground of reasonable likelihood of bias.
Dismissing Writ Petition No.17 of 1991 and remitting Writ Petition Rule No.2421 of 1990 (subject matter of TP No. 40/91) to the High Court of Guwahati, this Court HELD: (By the Court) (i) Paragraph 7 of the Tenth Schedule to the Constitution in terms and in effect excludes the jurisdiction of all Courts including the Supreme Court and High courts, and brings about a change in the operation and effect of Articles 136, 226 and 227 of the constitution of India, and therefore, the amendment would require ratification in accordance with the proviso to Articles 368(2) of the constitution of India.
[pp. 711F G;714G] (ii) The finality clause in Para 6(1) of the Tenth Schedule to the Constitution is not decisive.
Such finality,being for the statute alone, does not exclude extraordinary jurisdiction of the Supreme Court under Article 136 and of the High Courts under Articles 226 and 227 of the Constitution.
[713E F; 788B C] (iii) The legal fiction in para 6(2) of the Tenth Schedule brings a proceeding under para 6(1) within the ambit of clause (1) of Article 122/212 of the Constitution, and, therefore, makes it justiciable on the ground of illegality or perversity inspite of the immunity it enjoys to a challenge on the ground of "irregularity of procedure." [713G; 788E F] Per Majority (M.N. Venkatachaliah.
K. Jayachandra Reddy (i) Paragraph 7 of the Tenth Schedule contains a provision which is independent of, and stands apart from, the main provisions of the Tenth Schedule which are intended to provide a remedy for the evil of unprincipled and unethical political defection and, therefore, is a severable part.
The remaining provisions of the Tenth Schedule can and do stand independently of Paragraph 7 and are complete in themselves workable and are not truncated by the excision of Paragraph 7.
[p.712E F] 691 (ii) There is nothing in the proviso to Article 368(2) which detracts from the severability of a provision on account of the inclusion of which the Bill containing the amendment requires ratification from the rest of the provisions of such Bill which do not attract and require such ratification.
Having regard to the mandatory language of Article 368(2) that "thereupon the Constitution shall stand amended" the operation of the proviso should not be extended to constitutional amendments in a bill which can stand by themselves without such ratification.
[711G H; 712 A B] (iii) The Constitution (Fifty Second Amendment) Act, 1985 in so far as it seeks to introduce the Tenth Schedule in the Constitution of India, to the extent of its provision which are amenable to the legal sovereign of the amending process of the Union Parliament cannot be over borne by the proviso to Article 368(2) which cannot operate in that area.
[712B C] (iv) Paragraph 2 of the Tenth schedule to the constitution is valid.
Its provisions do not suffer from the vice of subverting democratic rights of elected Members of Parliament and the legislatures of the States.
It does not violate their freedom of speech, freedom of vote and conscience; nor does it violate any rights or freedom under Article 105 and 194 of the Constitution.
[712F H] The provisions are salutory and are intended to strengthen the fabric of Indian Parliamentary democracy by curbing unprincipled and unethical political defections.
[712H, 713A] (v) The Tenth Schedule does not, in providing for an additional ground for disqualification and for adjudication of disputed disqualifications, seek to create a non justiciable constitutional area.
[p. 769A B] (vi) The Speakers/Chairmen while functioning under the Tenth Schedule exercise judicial power and act as Tribunal adjudicating rights and obligations under the Tenth schedule, and their decisions in that capacity are amenable to judicial review.
[713C] (vii) Paragraph 6(1) of the Tenth Schedule, to the extent it seeks to impart finality to the decision of the Speakers/Chairman is valid.
But the concept of statutory finality embodied therein does not detract from or abrogate judicial review under Articles 136, 226 and 227 of the Constitution in so far as infirmities based on violations of constitutional mandates, 692 male fides, non compliance with Rules of Natural Justice and perversity are concerned.
[713E F] (viii) The deeming provision in Paragraph 6(2) of the Tenth Schedule attracts an immunity analogous to that in Article 122(1) and 212(1) of the constitution to protect the validity of proceedings from mere irregularities of procedure and confines the scope of the fiction accordingly.
[713G H, 714A] Spl.
No.1 of 1964 (Keshav Singh 's case) ; ,referred to.
(ix) Having regard to the constitutional scheme in the Tenth Schedule,judicial review should not cover any stage prior to the making of a decision by the Speakers/Chairmen; and no quia timet actions are permissible, the only exception for any interlocutory interference being cases of interlocutory disqualifications or suspensions which may have grave, immediate and irreversible repercussions and consequence.
[713D E] (x) The Speakers/Chairmen hold a pivotal position in the scheme of Parliamentary democracy and are guardians of the rights and privileges of the House.
They are expected to and do take far reaching decisions in the Parliamentary democracy.
Vestiture of power to adjudicate questions under the Tenth Schedule in them should not be considered exceptionable.
[714B C] Per Lalit Mohan Sharma and J.S. Verma, JJ. contra (i) Without ratification, as required by the mandatory special provision prescribed in the proviso to Article 368(2) of the Constitution the stage of presenting the Constitution (Fifty Second) Amendment Bill for assent of the President did not reach and, therefore, the so called assent of the President was non est.[715B C] (ii) In the absence of ratification it is not merely paragraph 7 but the entire Constitution (Fifty Second Amendment) Act, 1985 which is rendered unconstitutional, since the constitutional power was not exercised as prescribed in Article 368, and, therefore, the Constitution did not stand amended in accordance with the terms of the Bill providing for amendment.
[715D E] 693 (iii) Doctrine of severability cannot be applied to a Bill making a constitutional amendment where any part thereof attracts the proviso to clause (2) of Article 368.
[715F] (iv) Doctrine of severability is not applicable to permit striking down para 7 alone saving the remaining provisions of the Bill making the Constitutional Amendment on the ground that Para 7 alone attracts the proviso the Article 368(2).
[715G] (v) The Speaker 's decision disqualifying a Member of a House under paragraph 6(1) of the Tenth Schedule is not immune from judicial scrutiny.
It is a nullity liable to be so declared and ignored.
[782G] (vi) An independent adjudicatory machinery for resolving disputes relating to the competence of Members of the House is envisaged as an attribute of the democratic system which is a basic feature of our Constitution.
The tenure of the Speaker, who is the authority in the Tenth schedule to decide this dispute, is dependent on the continuous support of the majority in the House and, therefore, he does not satisfy the requirement of such an independent adjudicatory authority; and his choice as the sole arbiter in the matter violates an essential attribute of the basic feature.
[716B C] (vii) Consequently, the entire Constitution (Fifty Second Amendment) Act, 1985 which inserted the Tenth Schedule together with clause (2) in Articles 102 and 191, must be declared unconstitutional.
[716C D] (viii) Accordingly, all decisions rendered by several Speakers under the Tenth Schedule must also be declared nullity and liable to be ignored.
[p.716D] Per Venkatachaliah : J.1.1.A constitutional document outlines only broad and general principles meant to endure and be capable of flexible application to changing circumstances a distinction which differentiates a statute from a Charter under which all statutes are made.
[726G H] Cooley on "Constitutional Limitation" 8th Edn.
I p.129, referred to. 1.2.
In considering the validity of a constitutional amendment the changing and the changed circumstances that compelled the amendment 694 are important criteria.
[727B] U.S.Supreme Court in Maxwell vs Dow 44 Lawyer 's Edition 597 at p. 605, referred to.
The Tenth Schedule is a part of the Constitution and attracts the same canons of construction as are applicable to the expounding of the fundamental law.
One constitutional power is necessarily conditioned by the other as the Constitution is one "coherent document".
In expounding the process of the fundamental law the Constitution must be treated as a logical whole.
[726D E] 1.4.
The distinction between what is constitutionally permissible and what is outside it is marked by a `hazy gray line 'and it is the Court 's duty to identify, "darken and deepen" the demarcating line of constitutionality a task in which some element of Judges ' own perceptions of the constitutional ideals inevitably participate.
There is no single litmus test of constitutionality.
Any suggested sure decisive test, might after all furnish a "transitory delusion of certitude" where the "complexities of the strands in the web of constitutionality which the Judge must alone disentangle" do not lend themselves to easy and sure formulations one way or the other.
It is here that it becomes difficult to refute the inevitable legislative element in all constitutional adjudications.
[730D F] "Theory of Torts" American Law Review 7[1873]; Justice Oliver Wendel Holmes Free Speech and the Living Constitution by H.L. Pohlman 1991 Edn. p.223, referred to.
Amalgamated Society of Railway Servants vs Osborne, , referred to.
A political party functions on the strength of shared beliefs.
Any freedom of its Members to vote as they please independently of the political party 's declared policies will not only embarrass its public image and popularity but also undermine public confidence in it which, in the ultimate analysis, is its source of sustenance nay, indeed, its very survival.
Paragraph 2(1)(b) of the Tenth Schedule gives effect to this principle and sentiment by imposing a disqualification on a Member who votes or abstains from voting contrary to "any directions" issued by the political 695 party.
The provision, however, recognising two exceptions: one when the Member obtains from the political party prior permission to vote or abstain from voting and the other when the Member has voted without obtaining such permission. his action has been condoned by the political party.
This provision itself accommodates the possibility that there may be occasions when a Member may vote or abstain from voting contrary to the direction of the party to which he belongs.[734D E; 735B C] Griffith and Ryle on "Parliament, Functions, Practice & Procedure" 1989 Edn. page 119, referred to.
In a sense anti defection law is a statutory variant of its moral principle and justification underlying the power of recall.
What might justify a provision for recall would justify a provision for disqualification for defection.
Unprincipled defection is a political and social evil.
It is perceived as such by the legislature.
The anti defection law seeks to recognise the practical need to place the proprieties of political and personal conduct whose awkward erosion and grotesque manifestations have been the bane of the times above certain theoretical assumptions which in reality have fallen into a morass of personal and political degradation.
This legislative wisdom and perception should be deferred to.
The choices in constitutional adjudications quite clearly indicate the need for such deference.[739D G] `Constitutional Reform, Reshaping the British Political System, by Rodney Brazier.
1991 Edn.pp.48 53, referred to.
1.7.The Tenth Schedule does not impinge upon the rights or immunities under Article 105(2) of the Constitution.
The freedom of speech of a Member is not an `absolute freedom.
That apart, the provisions of the Tenth Schedule do not purport to make a Member of a House liable in any "Court" for anything said or any vote given by him in Parliament.[732H; 733C] Jyoti Basu & Ors.
Debi Ghosal & Ors., ; , referred to.
A provision which seeks to exclude the jurisdiction of Courts is strictly construed.
[742E] H.H.
Maharajadhiraja Madhav Rao Jiwaji Rao Scindia Bahadur & Ors.
vs Union of India, [1971] 1 SSC 85, referred to.
696 Mask & Co.v.
Secretary of State, AIR 1940 P.C. 105, referred to.
2.2 The rules of construction are attracted where two or more reasonably possible constructions are open on the language of the statute.
[742F] 2.3.
As regards Paragraph 7 to the Tenth Schedule, both on its language and having regard to the legislative evolution of the provision, the legislative intent is plain and manifest.
The words "no Courts shall have any jurisdiction in respect of any matter connected with the disqualification of a member" are of wide import and leave no constructional options.
This is reinforced by the legislative history of the anti defection law.
The Constitution (Fifty Second Amendment) Bill for the first time envisaged the investitute of the power to decide disputes on the Speakers or the Chairmen whereas the two similar Constitution (32nd and 48th amendment) Bills, (which had lapsed) did not contain any clause ousting the jurisdiction of the Courts.
The purpose of the enactment of Paragraph 7, as the debates in the House indicate, was to bar the jurisdiction of the Courts under Articles 136, 226 and 227 of the Constitution.
{742F G, H, 743B] 2.4.
The changes in Chapter IV of Part V and Chapter V of the Part VI of the constitution envisaged by the proviso to Article 368(2) need not be direct.
The change could be either "in terms of or in effect".
It is not necessary to change the language of Articles 136 and 226 of the Constitution to attract the proviso.
If in effect these Articles are rendered ineffective and made inapplicable where these articles could otherwise have been invoked or would, but for Paragraph 7, have operated there is `in effect 'a change in those provisions attracting the proviso.
[p. 745C D] 2.5.
Though the Amendment does not bring in any change directly in the language of Articles 136,226 and 227 of the constitution,, however, in effect Paragraph 7 curtails the operation of those Articles respecting matter falling under the Tenth Schedule.
There is a change in the effect in Articles 136, 226 and 227 within the meaning of clause (b) of the proviso to Article 368 (2).
Paragraph 7, therefore, attracts the proviso and ratification was necessary.
[745F] Sri Sankari Prasad Singh Deo vs Union of India & State of Bihar, ; Sajjan Singh vs State of Rajasthan, ; , referred to.
697 3.1 The criterion for determining the constitutional validity of a law is the competence of the law making authority (which would depend on the ambit of the Legislative power and the limitations imposed thereon as also on mode of exercise of the power).
While examining the constitutional validity of laws the doctrine of severability is applied which envisages that if it is possible to construe a statute so that its validity can be sustained against a constitutional attack it should be so construed and that when part of a statute is valid and part is void, the valid part must be separated from the invalid part.
[746C; 747D] Cooley 's constitutional Limitations; 8th Edn.
Vol. 1, p. 359 360, referred to.
R.M.D. Chamarbaughwalla vs Union of India, ; ; Shri Kesavananda Bharti Sripadagalavaru vs State of Kerala, [1973] Supp.
1 SCR; Minerva Mills Ltd. & Ors.
vs Union of India & Ors.
, ; and Sambhamurthy & Ors.
etc.v.
State of Andhra Pradesh & Anr., ; , referred to.
Though the amending power in a constitution is in the nature of a constituent power and differs in content from the Legislative power, the limitations imposed on the constituent power may be substantive as well as procedural.
Substantive limitations are those which restrict the field of exercise of the amending power and exclude some areas from its ambit.
Procedural limitations are those which impose restrictions with regard to the mode of exercise of the amending power, e.g. the limitation requiring a special majority under Article 368(2) of the constitution is a procedural one.
Both these limitations, however, touch and affect the constituent power itself, and impose a fetter on the competence of Parliament to amend the Constitution and any amendment made in disregard of these limitations would go beyond the amending power and would invalidate its exercise.
[746C E, 747C] 3.3.
Although there is no specific enumerated substantive limitation on the power in Article 368, but as arising from very limitation in the word `amend ', a substantive limitation is inherent on the amending power so that the amendment does not alter the basic structure or destroy the basic features of the Constitution.
[747A B] 3.4.
The proviso to Article 368(2) was introduced with a view to giving 698 effect to the federal principle.
Its scope is confined to the limits prescribed therein and is not construed so as to take away the power in the main part of Article 368(2).
[750C D] Madras & Southern Mahratta railway company vs Bazwada Municipality, (1944) 71 I.A. 113 and Commissioner of Income Tax, Mysore vs Indo Mercantile Bank Ltd.(1959), Supp.
2 SCR 256, referred to.
An amendment which otherwise fulfils the requirements of Article 368(2) and is outside the specified cases which require ratification cannot be denied legitimacy on the ground alone of the company it keeps.
[750E] 3.6.
The words "the amendment shall also require to be ratified by the legislature" occurring in the proviso to Article 368(2) indicate that what is required to be ratified by the legislatures of the States is the amendment seeking to make the change in the provisions referred to in clauses (a) to (e) of the proviso.
The need for and the requirement of the ratification is confined to that particular amendment alone and not in respect of amendments outside the ambit of the proviso.
The proviso can have, therefore, no bearing on the validity of the amendments which do not fall within its ambit.
[750G H] 3.7.
A composite amendment which makes alterations in the First and Fourth schedules as well as in other provisions of the Constitution requiring special majority under Article 368(2), even though passed by the simple majority and not by special majority, may be upheld in respect of the amendments made in the First and Fourth schedules.
[755D] Bribery Commissioner vs Pedrick Ranasinghe, 1965A.C.172, referred to.
There is really no difference in principle between the condition requiring passing of the Bill by a special majority before its presentation to the President for assent contained in Article 368(2) and the condition for ratification of the amendment by the legislatures of not less than one half of the States before the Bill is presented to the President for assent contained in the proviso.
[753D E] 3.9.
The principle of severability can be equally applied to a composite amendment which contains amendment in provisions which do not require ratification by States as well as amendment in provisions which require such ratification and by application of the doctrine of severability, 699 the amendment can be upheld in respect of the amendments which do not require ratification and which are within the competence of Parliament alone.
Only these amendments in provisions which require ratification under the proviso need to be struck down or declared invalid.
[753E F] 3.10.
The test of severability requires the Court to ascertain whether the legislature would at all have enacted the law if the severed part was not the part of the law and whether after severance what survives can stand independently and is workable.
[753G] 3.11.
The main purpose underlying the Constitutional (Fifty Second Amendment) Act and introduction of the Tenth Schedule is to curb the evil of defection which was causing immense mischief in our body politic.
The ouster of jurisdiction of Courts under Paragraph 7 was incidental to and to lend strength to the main purpose which was to curb the evil of defection.
It cannot be said that the constituent body would not have enacted the other provisions in the Tenth Schedule if it had known that Paragraph 7 was not valid, Nor can it be said that the rest of the provisions of the Tenth schedule cannot stand on their own even if Paragraph 7 is found to be unconstitutional.
The provisions of Paragraph 7 is therefore, severable from the rest of the provisions.
[pp.754A C] 4.1.
Democracy is a basic feature of the Constitution.
Whether any particular brand or system of Government by itself, has this attribute of a basic feature, as long as the essential characteristics that entitle a system of government to be called democratic are otherwise satisfied is not necessary to be gone into.
Election conducted at regular, prescribed intervals is essential to the democratic system envisaged in the Constitution.
So is the need to protect and sustain the purity of the electoral process.
That may take within it the quality, efficacy and adequacy of the machinery for resolution of electoral disputes.
[p.733F G] 4.2.
In the Indian constitutional dispensation the power to decide a disputed disqualification of an elected Member of the House is not treated as a matter of privilege and the power to resolve such electoral dispute is clearly judicial and not legislative in nature.
The power to decide disputed disqualification under Paragraph 6(1) is pre eminantly of a judicial complexion.
[pp.759G.763C] Indira Nehru Gandhi vs Raj Narain, ; Special Reference 700 No. 1 of 1964; , & Express Newspaper Ltd. vs Union of India, ,, referred to.
Australian Boot Trade Employees Federation vs Whybrow & Co., ; , referred to.
The word "Courts" is used to designate those Tribunals which are set up in an organised State for the administration of justice.
By Administration of Justice is meant the exercise of judicial power of the State to maintain and uphold rights and to punish "wrongs".
Whenever there is an infringement of a right or an injury, the Courts are there to restore the vinculum juris, which is disturbed.
Where there is a lis an affirmation by one party and denial by another and the dispute necessarily involves a decision on the rights and obligations of the parties to it and the authority is called upon to decide it, there is an exercise of judicial power.
That authority is called a Tribunal, if it does not have all the trappings of a court.
Thus, the Speaker or the Chairman, acting under Paragraph 6(1) of the Tenth Schedule is a Tribunal.[763G H, 764E F, 766B] Associated Cement companies Ltd. vs P.N. Sharma and Anr., ; and Harinagar Sugar Mills Ltd. vs
Shyam Sunder Jhunjhunwala & Ors., ; , referred to.
A finality clause is not a legislative magical incantation which has the effect of telling off Judicial Review.
Statutory finality of a decision presupposes and is subject to its consonance with the statute.
The principle that is applied by the courts is that in spite of a finality clause it is open to the court to examine whether the action of the authority under challenge is ultra vires the powers conferred on the said authority.
An action can be ultra vires for the reason that it is in contravention of a mandatory provision of the law conferring on the authority the power to take such an action.
It will also be ultra vires the powers conferred on the authority if it is vitiated by mala fides or is colourable exercise of power based on extraneous and irrelevant consideration.
[pp. 755D,765D E] `Administrative Law ' 6th Edn.
at p. 720 & Constitutional Fundamentals, the Harmlyn Lectures, 1989 Edn., p.88, referred to.
The finality clause with the word "final" in paragraph 6(1) of the Tenth schedule does not completely exclude the jurisdiction of the 701 Courts under Articles 136, 226 and 227 of the Constitution.
But it does have the effect of limiting the scope of the jurisdiction.
If the intendment is to exclude the jurisdiction of the superior Courts, the language would quite obviously have been different.
[758H, 759A,765C,758A] Brundaban Nayak vs Election Commission of India & Anr., ; ; Union of India vs Jyoti Prakash Mitter, ; ; Durga.
Shankar Mehra vs Reghuraj Singh, ; and Union of India & Anr.
vs Tulsiram Patel & Ors., [1985] Supp. 2 SCR 131, referred to.
An ouster clause confines judicial review in respect of actions falling outside the jurisdiction of the authority taking such action but precludes challenge to such action on the ground of an error committed in the exercise of jurisdiction vested in the authority because such an action cannot be said to be an action without jurisdiction.
[765F] Anisminic Ltd. vs
Foreign commission; , ; S.E. Asia Fire Bricks vs Non Metallic Products, 1981 A.C. 363, referred to.
The fiction in Paragraph 6(2) attracts an immunity from mere irregularities of procedures.
The very deeming provision implies that the proceedings of disqualification are, in fact,.
not before the House; but only before the Speaker a specially designated authority.
The decision under Paragraph 6(1) is not the decision of the House, nor is it subject to the approval by the House.
The decision operates independently of the House.
A deeming provision cannot by its creation transcend its own power.
There is, therefore, no immunity under Articles 122 and 212 from judicial scrutiny of the decision of the Speaker or Chairman exercising power under Paragraph 6(1) of the Tenth Schedule.
[763D F] 7.
The scope of judicial review under Articles 136, 226 and 227 of the Constitution in respect of an order passed by the Speaker/Chairman under Paragraph 6 would be confined to jurisdictional errors only, viz., infirmities based on violation of constitutional mandate, mala fides, non compliance with rules of natural justice and perversity.
But Judicial review cannot be available at a stage prior to the making of a decision by the Speaker/Chairman and a quia timet action would not be permissible.
Nor would interference be permissible at an interlocutory stage of the proceedings.
Exceptions will, however,, have to be made in respect of cases where disqualification of suspension is imposed during the pendency of the 702 proceedings and such disqualification or suspension is likely to have grave,immediate and irreversible repercussions and consequence.[768E H] Makhan Singh vs State of Punjab, [1964] 4 SCR 797;State of Rajasthan vs
Union of India; , ; Union of India vs Jyoti Prakash Mitter, (supra) and Union of India & Anr.
vs Tulsiram Patel & Ors., [1985] Supp. 2 SCR 131, referred to.
The office of the Speaker is held in the highest respect and esteem in Parliamentary traditions.
The evolution of the institution of Parliamentary democracy has as its pivot the institution of the Speaker.
He is said to be the very embodiment of propriety and impartiality.
He performs wide ranging functions including the performance of important functions of a judicial character.
It would, indeed be unfair to the high traditions of that great office to say that the investiture in it of this jurisdiction would be vitiated for violation of a basic feature .
of democracy.
It is inappropriate to express distrust in the high office of the speaker, merely because some of the speakers are alleged, or even found, to have discharged their functions not in keeping with the great traditions of that high office.
The Robes of the Speaker do change and elevate the man inside.
[770G H, 771A, 772A, 773A B] G.V. Mavalankar ; The Office of Speaker, Journal of Parliamentary Information, April 1956, Vol.
No. 1 p.33; HOP, Deb.
IX (1954), CC 3447 48 and Erskine May Parliamentary Practice 20th edition p. 234 and M.N. Kaul and S.L. Shakdher in `Practice and Procedure of Parliament ' 4th Edition, referred to.
The words "any direction" occurring in Paragraph 2(1)(b) of the Tenth Schedule require to be construed harmoniously with the other provisions and appropriately confined to the objects and purposes of the Schedule.
Those objects and purposes define and limit the contours of its meaning.
The assignment of a limited meaning is not to read it down to promote its constitutionality but because such a construction is a harmonious construction in the context.
There is no justification to give the words the wider meaning.
[774H, 775A B] Parkash Singh Badal & Ors.
vs Union of India & Ors., AIR 1987 Punjab & Haryana 263, referred to.
While construing Paragraph 2(1)(b) it cannot be ignored that 703 under the Constitution members of Parliament as well as of the State Legislature enjoy freedom of speech in the House though this freedom is subject to the provisions of the Constitution and the rules and standing orders regulating the Procedure of the House.
The disqualification imposed by Paragraph 2(1)(b) must be so construed as not to unduly impinge on the said freedom of speech of a member.
This would be possible if Paragraph 2(1)(b) is confined in its scope by keeping in view the object underlying the amendments contained in the Tenth Schedule namely, to curb the evil or mischief of political defections motivated by the lure of office or other similar considerations.
[p. 775C D] 9.3.
In view of the consequences of the disqualification, i.e., termination of the membership of a House, it would be appropriate that the direction or whip which results in such disqualification under Paragraph 2(1)(b) of the Tenth Schedule is so worded as to clearly indicate that voting or abstaining from voting contrary to the said direction would result in incurring the disqualification under Paragraph 2(1)(b), so that the member concerned has fore knowledge of the consequences flowing from his conduct in voting or abstaining from voting contrary to such a direction.
[775H, 776A B] 10.1 The purpose of interlocutory orders is to preserve in status quo the rights of the parties, so that, the proceedings do not become infructuous by any unilateral overt acts by one side or the other during its pendency.
[776G] 10.2.
The interlocutory orders in the instant case were necessarily justified so that, no land slide changes were allowed to occur rendering the proceedings ineffective and infructuous.[776H, 777A] Per VERMA, J. : 1.Under the Constitution of India which delineates the spheres of jurisdiction of the legislature and the judiciary,the power to construe the meaning of the provisions in the Constitution and the laws is entrusted to the judiciary with finality attached to the decision of this Court inter alia by Article 141 about the true meaning of any enacted provision, and Article 144 obliges all authorities in the country to act in aid of this Court.
It is, therefore, not permissible in our constitutional scheme for any other authority to claim that power in exclusivity, or in supersession of this Court 's verdict.
Whatever be the controversy prior to this Court entertaining such a matter, it must end when the Court is seized of the matter for pronouncing its verdict and it is the constitutional 704 obligation of every person and authority to accept its binding effect when the decision is rendered by this Court.
[p. 784F H] Cohens vs Virginia, ; , 404; , , 291 (1821) and State of madras vs V.G. row; , , referred to.
The finality clause in Para 6(1) of the Tenth Schedule to the Constitution which says that the decision of the Chairman or as the case may be, the speaker of the House shall be final is not decisive.
Such a finality clause in a statute by itself is not sufficient to exclude the jurisdiction of the High courts under Articles 226 and 227 and the Supreme Court under Article 136 of the Constitution, the finality being for the statute alone.
This is apart from the decision being vulnerable on the ground of nullity.
Sub paragraph (1)alone is, therefore, insufficient to exclude the extra ordinary jurisdiction of the High Courts and the plenary jurisdiction of this Court.
[788B C] 2.2.
The ambit of a legal fiction must be confined to the limitation implicit in the words used for creating the fiction and it cannot be given an extended meaning to include therein something in addition.
In construing the fiction it is not to be extended beyond the language of the Section by which it is created and its meaning must be restricted by the plain words used.
It cannot also be extended by importing another fiction.
[788E, 789A] 2.3.
The legal fiction in sub paragraph (2) of para 6 of the Tenth Schedule serves a limited purpose and brings the proceedings under sub paragraph (1) thereof within the ambit of clause (1) of Article 122 or Clause (1) of Article 212, and, therefore, there is no occasion to enlarge its scope by reading into it words which are not there and extending it also to clause (2) of these Articles.
[788C, 789B] Commissioner of Income tax vs Ajax Products Ltd., ; , referred to.
A matter falling within the ambit of clause (1) of either of the two Article 122 or 212 is justiciable on the ground of illegality or perversity in spite of the immunity it enjoys to a challenge on the ground of "irregularity of procedure".
[788E F] 2.5.
The decision relating to disqualification of a member does not relate to regulating procedure or the conduct of business of the House 705 provided for in clause (2) of Articles 122 and 212 and taking that view would amount to extending the fiction beyond its language and importing another fiction for this purpose which is not permissible.
That being so, the matter falls within the ambit of clause (1) only of Article 122 and 212 as a result of which it would be vulnerable on the ground of illegality and perversity and therefore, justiciable to that extent.
[789C D] Spl.
No. 1 of 1964 (Keshav Singh 's case) ; , 3.1.
The words in Paragraph 7 of the Tenth Schedule with its non obstante clause `notwithstanding anything in this Constitution ' followed by expression `no court shall have any jurisdiction ', are very wide and ordinarily mean that this provision supersedes any other provision in the Constitution, and leave no doubt that the bar of jurisdiction of Courts is complete excluding also the jurisdiction of the supreme court and the High courts under Articles 136, 226 and 227 of the Constitution respectively.
Further, the expression `in respect of any matter connected with the disqualification of a Member of a House under this Schedule ' is wide enough to include not merely the intermediate stage of the proceedings relating to disqualification but also the final order on the question of disqualification made under paragraph 6.
This conclusion is reinforced by the finality clause and deeming provision in para 6 of the Tenth Schedule and by the legislative history of the absence of such a provision excluding the Court 's jurisdiction in the earlier two Bills which had lapsed.
[pp. 789F G, 790C, H] 3.2.
Para 7 of the Tenth Schedule is, therefore, unconstitutional and to that extent at least the Constitution does not stand amended in accordance with the Bill seeking to make the constitutional amendment.
[799E] 4.1.
Distinction has to be drawn between the abridgment or extinction of a right and restriction of the remedy for enforcement of the right.
If there is an abridgment of extinction of the right which results in the disappearance of the cause of action which enables invoking the remedy and in the absence of which there is no occasion to make a grievance and invoke the subsisting remedy, then the change brought about is in the right and not the remedy.
On the other hand, if the right remains untouched so that a grievance based thereon can arise and, therefore, the cause of action subsists, but the remedy is curtailed or extinguished so that cause of 706 action cannot be enforced for want of that remedy, then the change made is in the remedy and not in the subsisting rights.
[793A C] Sri sankari Prasad Singh Deo vs Union of India & State of Bihar, ; and Sajjan Singh vs State of Rajasthan, ; , explained 4.2.
The instant case in unequivocal terms, is that of destroying the remedy by enacting para 7 of the Tenth Schedule making a total exclusion of judicial review including that by the Supreme Court under Article 136 and the High Courts under Articles 226 and 227 of the Constitution.
But for para 7 which deals with the remedy and not the right, the jurisdiction of the Supreme Court under Article 136 and that of the High Courts under Article 226 and 227 would remain unimpaired to challenge the decision under para 6, as in the case of decisions relating to other disqualification specified in clause (1) of Articles 102 and 191, which remedy continues to subsist.
[793D F] 4.3.
The extinction of the remedy alone without curtailing the right, since the question of disqualification of a member on the ground of defection under the Tenth Schedule does require adjudication on enacted principles, results in making a change in Article 136 in Chapter IV in Part V and Articles 226 and 227 in Chapter V in Part VI of the Constitution.
[793F] 4.4.
The Constitution (Fifty Second Amendment) Bill, therefore, attracted the proviso to Article 368(2) requiring ratification by the specified number of State legislatures before its presentation to the President for his assent.
[793G] 5.1 The proviso to Article 368(2) of the Constitution contains a constitutional limitation on the amending power; and prescribes as a part of the special procedure, prior assent of the State Legislatures before presentation of the Bill to the President for his assent in the case of the relevant Bills.
This is a condition interposed by the proviso in between the passing of the Bill by the requisite majority in each House and presentation of the Bill to the President for the assent, which assent results in the Constitution automatically standing amended in accordance with the terms of the Bill.
The Bills governed by the proviso, therefore, cannot be presented to the President for his assent without the prior ratification by the specified number of State legislatures.
[795C E] 707 5.2.
The consequence of the Constitution standing amended in accordance with the terms of the Bill on assent by the President, which is the substantive part of Article 368, results only when the Bill has been presented to the President for his assent in conformity with the special procedure after performance of the conditions precedent, namely, passing of the Bill by each House by the requisite majority in the case of all Bills; and in the case of Bills governed by the proviso, after the Bill has been passed by the requisite majority in each House and it has also been ratified by the legislature by not less than one half of the States.
Non compliance of the special procedure prescribed in Article 368(2) cannot bring about the result of the Constitution standing amended in accordance with the terms of the Bill.
[795F G, H,796A] Kesavananda Bharati vs State of Kerala, [1973] Supp.1 SCR, relied on.
The ordinary role of a proviso is to carve out an exception from the general rule in the main enacting part.
A Bill falling within the ambit of the proviso to cl.(2) of Article 368 is carved out of the main enactment in clause (2) as an exception on account of which it cannot result in amendment of the constitution on the President 's assent without prior ratification by the specified number of State legislature.
[797G H, 798A B] 5.4.
The entire Tenth Schedule is enacted in exercise of the constituent power under Article 368, not merely para 7 therein, and this has been done without following the mandatory special procedure prescribed.
It is, therefore, the entire Constitution (Fifty Second) Amendment Bill and not merely para 7 of the Tenth Schedule which required prior ratification by the State of legislatures before its presentation to the President for his assent, it being a joint exercise by the parliament and the State Legislatures.
The stage of presentation of the Bill to the President for his assent not having reached, the President 's assent was non est and it could not result in amendment of the Constitution in accordance with the terms of the Bill.
It is not a case of severing the invalid constituent part from the remaining ordinary legislation.
[799G H, 800A; 802C] 6.1.
The doctrine of severability applies in a case where an otherwise validly enacted legislation contains a provision suffering from a defect of lack of legislative competence and the invalid provision is severable leaving the remaining valid provisions a viable whole.
this doctrine has no application where the legislation is not validly enacted due to non compliance 708 of the mandatory legislative procedure such as the mandatory special procedure prescribed for exercise of the constituent power.
The doctrine does not apply to a still born legislation.
It is not possible to infuse life in a still born by any miracle and deft surgery even though it may be possible to continue life by removing a congenitally defective part by surgical skill.
[800D E] The Bribery Commissioner vs Pedrick Ranasinghe, ; , referred to.
Severance of para 7 of the Tenth Schedule could not be made for the purpose of ratification or the President 's assent and, therefore, not such severance can be made even for the ensuing result.
If the President 's assent cannot validate para 7 in the absence of prior ratification, the same assent cannot be accepted to bring about a different result with regard to the remaining part of the Bill.
[800A B] 7.
The test whether the enactment would have been made without para 7 indicates that the legislative intent was to make the enactment only with para 7 therein and not without it, otherwise the enactment did not require the discipline of Article 368and exercise of the constituent power and mode of ordinary legislation could have been resorted to in accordance with sub clause (e) of clause (1) of Article 102 and 191, which would render the decision on the question of disqualification on the ground of defection also amenable to judicial review as in the case of decision on questions relating to other disqualification.
[802F H, 803A] R.M.D. Chamarbaughwalla vs The Union of India, ; , relied on.
Democracy is a part of the basic structure of our Constitution, and rule of law; and free and fair elections are basic features of democracy, One of the postulates of free and fair elections is provision for resolution of election disputes as also adjudication of disputes relating to subsequent disqualifications by an independent authority.
It is only by a fair adjudication of such disputes relating to validity of elections and subsequent disqualifications of members that true reflection of the electoral mandate and governance by rule of law essential for democracy can be ensured.
[803E G] 709 8.2.
In the democratic pattern adopted by our Constitution, not only the resolution of election dispute is entrusted to a judicial tribunal, but even the decision on questions as to disqualification of members under Articles 103 and 192 is contemplated by an independent authority outside the house, namely, President/Governor in accordance with the opinion of the Election commission,, all of whom are high constitutional functionaries with security of tenure, independent of the will of the House.
[803G H, 804A] 8.3.
Sub clause (e) of clause (1) in Articles 102 and 191 which provide for enactment of any law by the Parliament to prescribe any disqualification other than those prescribed in the earlier sub clauses of clause (1), clearly indicates that all disqualifications of Members were contemplated within the scope of Articles 102 and 191.
All disqualification including disqualification on the ground of defection, in our constitutional scheme, are, therefore, different species of the same genus, namely, disqualification, and the constitutional scheme does not contemplate any difference in their basic traits and treatment; and were meant to be decided by an independent authority outside the House such as the President/Governor, in accordance with the opinion of another similar independent constitutional functionary, the Election commission of India, who enjoys the security of tenure of a Supreme Court Judge with the same terms and conditions of office.
[804B E] 8.4.
The Speaker 's office is undoubtedly high and has considerable aura with the attribute of impartiality.
This aura of the office was even greater when the Constitution was framed and yet the framed and yet the farmers of the Constitution did not choose to vest the authority of adjudicating disputes as to disqualification of Members to the Speaker; and provision was made in Article 103 and 192 for decision of disputes by the President/Governor in accordance with the opinion of the Election commission.
In the Tenth Schedule, the Speaker is made not only the sole but the final arbiter of such dispute with no provision for any appeal or revision against the Speaker 's decision to any independent outside authority.
This departure in the Tenth Schedule is a reverse trend and violates a basic feature of the Constitution.[804 G, 805E] 8.5.
The Speaker being an authority within the House and his tenure being dependent on the will of majority therein, likelihood of suspicion of 710 bias could not be ruled out.
The question as to disqualification of a member has adjudicatory disposition and, therefore, requires the decision to be rendered in consonance with the scheme for adjudication of disputes Rule of law has in it firmly entrenched natural justice, of which, Rule against Bias is a necessary concomitant; and basic postulates of Rule against Bias are : Nemo judex in cause sua `A Judge is disqualified from determining any case in which he may be,or may fairly be suspected to be, biased '; and `it is of fundamental importance that justice should not only be done but should manifestly and undoubtedly be seen to be done '. </s> |
<s>[INST] Summarize the following judgement: vil Appeal No. 1314 (NT) of 1976.
From the Judgment and Order dated 15.11.1975 of the Gujarat High Court in Income Tax Reference No. 160 of 1974.
Dr. V. Gauri Shankar, Manoj Arora and Ms. A. Subhashini for the Appellant.
J. Vellapaly, Ms. A.K. Verma and J.B. Dadachanji for the Respondent.
The Judgment of the Court was delivered by OJHA, J.
This appeal has been preferred on the basis of a certificate granted by the High 'Court of Gujarat under Section 261 of the Income Tax Act, 1961 (hereinafter re ferred to as the Act).
The judgment appealed against is reported in Cellulose Products of India Ltd. vs Commissioner of Income Tax, Gujarat, [1977] 110, I.T.R. page 15 1.
The respondent is a public limited company incorporated on April 14, 1989 mainly for the purpose of carrying on business of manufacturing chemical products.
The Memorandum of Associa tion of the respondent company, as is apparent from the order of the Appellate Assistant Commissioner of Income Tax, inter alia contains the following clause: "to carry on the business of manufacture of and dealer and importers and exporters in chemical products of any nature and kind whatsoever and particulary of Carboxy Methyl Cellulose (CMC), Cellulose Pulps and other chemical products.
" The respondent was granted an industrial licence by the Central Government for the manufacture of Sodium Carboxy Methyl Cellulose (for short CMC).
In pursuance of the said licence the respondent installed a Cellulose plant, in which was manufactured Cellulose pulp which in its turn was meant to be used as a raw material for manufacture of CMC.
This fact does not appear to have been in dispute that the re spondent began production of Cellulose pulp from March 18, 1961 in the said plant while the production of CMC was started from June 15,1961. 891 In the assessment year in question namely 1966 67, the previous year of account being the financial year 1965 66 ending on March 31, 1966, the respondent claimed relief contemplated by Section 84 of the Act (as it stood prior to its being deleted with effect from April 1, 1968 by Finance (No. The Income Tax Officer took the view that since the respondent had started production of Cellu lose pulp from March 18, 1961 it had begun to manufacture or produce finished articles or goods in the year ending on March 31, 1961 and consequently the assessment year 1961 62 was the first year in which the assessee was entitled to relief under Section 84.
According to him, the relief con templated by Section.
84 being available only for five years namely the assessment year 1961 62 and the four assessment years immediately succeeding as contemplated by Sub section (7) of Section 84 of the Act, the respondent was not enti tled to the relief claimed in the assessment year 1966 67 which fell beyond the aforesaid period.
This finding of the Income Tax Officer was affirmed in appeal by the Appellate Assistant Commissioner.
The matter was taken by the respond ent in further appeal before the Income Tax Appellate Tribu nal.
The respondent 's contention that the production of Cellulose pulp during the month of March 1961 was a trial production was repelled by the Tribunal and a categorical finding was recorded by it that Cellulose pulp manufactured by the respondent during the month of March 1961 was a finished product which was a marketable commodity.
On this view the Tribunal held that the respondent having begun production or manufacture of finished product which was capable of being sold in the market in the year of account relevant to the assessment year 1961 62, the last year in which the respondent was entitled to get relief under sec tion 84 of the Act was the assessment year 1965 66 and the claim made by it for the said relief in the assessment year in question namely 1966 67 was not maintainable.
The Tribu nal, however, on an application made in this behalf by the respondent referred the following question to the High Court of Gujarat for its opinion: "Whether on the facts and in the circumstances of the case, the Tribunal was right in reject ing the assessee 's claim for relief under section 84 of the Act for the assessment year 1966 67?" The High Court by the judgment under appeal answered the question aforesaid in the negative, that is, in favour of the assessee and against the revenue.
It held that even though the word "article" used in Subsection (7) of section 84 of the Act was undoubtedly an ordinary word employed by the legislature but in the context in which it was used and 892 looking to the object with which it was enacted it was obvious that it could only refer to the end product of the industrial undertaking as a whole where there was no phased programme of installation and construction.
On this view the High Court found that the mere fact that the respondent started the production of Cellulose pulp which was an in termediate product on March 18, 1961 did not mean that the company had begun to produce or manufacture "articles" in the assessment year 1961 62.
It has been urged by learned counsel for the appellant that the finding recorded by the Tribunal referred to above was essentially a finding of fact based on appraisal of evidence and it was not open to the High Court in its advi sory jurisdiction to take a contrary view.
For the respond ent, on the other hand, in support of the judgment appealed against, it was urged by its learned counsel that inasmuch as section 84 of the Act contemplated grant of relief to a new undertaking, it should be construed liberally so as to effectuate the object thereof.
He maintained that since the undertaking established by the respondent was to manufacture CMC and the industrial licence had also been granted to it for the said purpose, exemption under section 84 of the Act could be claimed by it only in the year during which CMC was actually manufactured and since it was so done during the assessment year 1962 63 exemption could not be claimed in the assessment year 1961 62, notwithstanding the fact that Cellulose pulp for captive consumption was manufactured in that year.
According to him, therefore, the period of five years contemplated by sub section (7) of section 84 of the Act would represent the assessment year 1962 63 and the four assessment years immediately succeeding and in this view of the matter the High Court was right in allowing the relief claimed by the respondent during the assessment year in question, namely 1966 67.
In the alternative, he submitted that if ultimately the view of the Tribunal prevailed that the production had started in the assessment year 1961 62 then the disallowance of the relief in the 5th year namely in the assessment year in question should be restricted to the investment of the pulp factory and the respondent should not be denied the relief in respect of the investment exclu sively related to the CMC plant.
Having given our anxious consideration to the respective submissions made by the learned counsel for the parties, we are inclined to agree with the contention of the learned counsel for the appellant that the High Court on the facts and in the circumstances of the instant case committed an error in interfering with the conclusion of the tribunal.
It 893 is settled law that a High Court hearing a reference under the Act does not exercise any appellate or revisional or supervisory jurisdiction over the Tribunal and that it acts purely in an advisory capacity.
If the Tribunal after con sidering the evidence produced before it on a question of fact records its finding it cannot be interfered with in a reference by the High Court unless of course such finding was not supported by any evidence, was perverse or patently unreasonable.
In our opinion, the finding of the Tribunal in the instant case did not suffer from any of these infirmi ties.
The finding that the production of Cellulose pulp during the month of March 1961 was not a trial production and that Cellulose pulp as manufactured by the respondent was a finished product which was a marketable commodity was essentially a finding of fact based on appraisal of evi dence.
It is true that Cellulose pulp constitutes raw material for manufacture of CMC but it has not been disputed before us by the learned counsel for the respondent that it was even by itself a finished marketable commodity.
The circumstance that the industrial licence granted to the respondent was for the manufacture of CMC and not of Cellu lose pulp is, in our opinion, keeping in view the nature of the two articles, not of much significance.
In the same manner as a licence, for instance, for the manufacture of cloth includes the manufacture of cotton yarn, an intermedi ate product necessary for manufacturing cloth, the licence granted to the respondent for the manufacture of CMC includ ed the manufacture of Cellulose pulp which was an intermedi ate product to be used in its turn as a raw material for the manufacture of CMC.
The relevant clause of the Memorandum of Association of the respondent company, already quoted above, is obviously wide in its amplitude, It contemplates manufac ture of "chemical products of any nature and kind whatsoever and particularly of CMC, Cellulose pulp and other chemical products".
Manufacture of Cellulose pulp was thus indeed one of the objects of the company.
The question involved had to be considered in this background and the Tribunal having done so and recorded the finding of fact referred to above the High Court obviously committed an error in holding that manufacture of Cellulose pulps during March 1961 was of no consequence and that the first year of production would be the assessment year 1962 63 when CMC was actually manufac tured.
The decision of the Madras High Court relied on by the learned counsel for the respondent reported in Madras Machine Tools Manufacturers Ltd. vs Commissioner of Income Tax, Madras, , in view of what has been observed above on the facts of the instant case does not advance the case of the respondent any further than the reasons recorded in the judgment under appeal.
894 As regards the alternative submission made by the learned counsel for the respondent suffice it to say that the case on the basis of which this alternative submission is sought to be made was not set up before the Tribunal nor any such question was sought to be referred on the basis of which this alternative submission could be made.
It cannot, as such, be permitted to be made in the present appeal.
The submission that the provisions of section 84 of the Act should be construed liberally so as to effectuate the object thereof need detain us for long.
It is only when there is any genuine doubt about the interpretation of a fiscal statute or where two opinions are capable of being formed that the rule of interpretation canvassed by learned counsel for the respondent may be taken to.
In the instant case a plain reading of sub section (7) of section 84 of the Act makes it clear without any doubt that the period of five years was to start from the assessment year relevant to the previous year in which the undertaking began to manufacture or produce "articles".
Since the language of the sub section is plain and admits of no ambiguity there is no scope of applying the aforesaid rule of interpretation.
The question as to in which assessment year "the undertaking begins to manufacture or produce articles" is essentially a question to be decided on the facts of each case and on the basis of the evidence placed on record.
In view of the foregoing discussion, this appeal suc ceeds and is allowed with costs and the judgment of the High Court under appeal is set aside.
S.B. Appeal allowed. [/INST] The respondent is a Public Limited Company incorporat ed on April 14, 1989 for carrying on business of manufac turing chemical products particularly of Carboxy Methyl Cellulose (CMC) and Cellulose Pulps.
The respondent was also granted an industrial licence by the Central Government for the manufacture of Carboxy Methyl Cellulose.
The respondent had installed a cellulose plant in which cellulose pulp, the raw material for Carboxy Methyl Cellulose was manufactured.
The plant had begun production from March 1961 while the production of Carboxy Methyl Cellulose was started from June 15, 1961.
The respondent claimed relief under section 84 of Income Tax Act as it stood prior to its being deleted with effect from April 1, 1968 by Finance Act (2) 1967, for the assessment year 1966 67, the previous year of accounting being the financial year 1965 66.
The Income Tax Officer took the view that since the respondent had started production of cellulose pulp from March, 18 1961, it had begun to manufacture or produce finished articles or goods in the year ending March 31, 1961 and consequently the assessment year 1961 62 was the first year in which the assessee was entitled to relief under section 84 Sub section (7) of the Income Tax Act under which the relief contemplated was to be available only for live assessment years.
So the respondent was not entitled to relief in the assessment year 1966 67 which fell beyond the aforesaid period.
The above view the Income Tax Officer was affirmed in appeal by the Appellate Assistant Commissioner.
Even the Income Tax Appellate Tribunal held that the respondent having begun production or manufacture of finished product which was capable of being sold in the market in the year of accounting relevant to the assessment year 1961 62 the last year in which the respondent was entitled to get relief under section 84 of the Act was the assessment year 1965 66 and the claim for 889 the relief in the assessment year 1966 67 was not maintain able.
The High Court on reference, held that the mere fact that the respondent started production of Cellulose Pulp which was an intermediate product on March 18, 1961 did not mean that the company had begun to produce or manufacture "articles" in the assessment year 1961 62 because the word "articles" used in Sub section (7) of section 84 in the context, could be only the end product of the industrial undertaking as a whole where there was no phased programme of installation and construction.
Allowing the appeal of the Revenue with costs, the Court, HELD: The High Court on the facts and circumstances of the instant case committed an error in interfering with the conclusion of the Tribunal.
It is settled law that a High Court while hearing a reference under the Act does not exercise any appellate or revisional or supervisory juris diction over the Tribunal and it acts purely in an advisory capacity.
Further in the instant case the finding of the Tribunal did not suffer from any infirmities such as not being supported by any evidence or being perverse or patent ly unreasonable.
The production of Cellulose Pulp during the month of March, 1961 was a finished product which was a marketable commodity.
It is true that Cellulose Pulp also constitutes raw material for manufacture of Carboxy Methyl Cellulose and the circumstances that the industrial licence granted to the respondent was for the manufacture of Carboxy Methyl Cellulose which also included the manufacture of Cellulose Pulp which was intermediate product to be used in its turn as a raw material for the manufacture of Carboxy Methyl Cellulose.
The relevent clause of the Memorandum of Association of the respondent company is obviously wide in its amplitude and as such comtemplates "manufacture of chemical products of any nature and kind whatsoever and particularly of Carboxy Methyl Cellulose, Cellulose Pulp and other chemical products.
" So the High Court obviously com mitted an error in holding that the manufacture of Cellulose Pulp during March 1961 was of no consequence and that the first year of production would be the assessment year 1962 63 when Carboxy Methyl Cellulose was actually manufactured.
The provisions of section 84 of the Act could be coustrued liberally only, when there is any genuine doubt about the interpretation.
[892H 893G, 894B] In the instant case, a plain reading of Sub section (7) of the section 84 of the Act makes it clear without any doubt that the period of assessment year relevant to the previous year in which the undertaking began to manufacture or produce "articles" was 1961 62.
The question as to the assessment year in which the undertaking begins to manufac ture or 890 produce articles is essentially a question to be decided on the facts of each case and on the basis of evidence placed on record.
[894C D] </s> |
<s>[INST] Summarize the following judgement: Civil Appeal No. 916 of 1992.
From the Judgment and Order dated 18.6.1991 of the Bombay High Court in W.P.N. 1914 of 1991.
Harish N. Salve, Rajiv K. Garg and N.D. Garg for the Appellant.
K.T.S. Tulsi, Addl.
Solicitor General, A. Subba Rao, P. Parmeswaran and A.D.N. Rao for the Respondents.
The Judgment of the Court was delivered by 999 KASLIWAL, J.
Special leave granted.
This appeal has been filed against the judgment of the Bombay High Court dated 18.6.1991.
The short controversy raised in the present case is whether the cloves imported by the appellant fall within Item 169 in List 8 of appendix 6 or fall within Paragraph 167 of Chapter XIII of the Import and Export Policy April 1990 March 1993.
Brief facts of the case are that the appellant obtained by transfer an Import Lincence No. 3412179 dated 29th November, 1990 for Rs. 16,10,700 for the import of admissible Items as per Para 220 (2) (3) (4) & (6) of the Import Policy 1990 93 Vol.
After acquisition of the aforesaid additional licence, the appellant placed an order for the supply of about 200 bags of Madagascar cloves No. 1 quality to a firm of Singapore.
The appellant opened a letter of credit dated 6.5.1991 in favour of the foreign supplier.
On receipt of the letter of credit the foreign supplier shipped the above mentioned goods in favour of the appellant.
On arrival of the goods at Bombay Port, (e) appellant filed Bill of Entry for the clearance of the goods for home consumption on 30th May, 1991.
The appellant claimed clearance of the goods against the additional licence on the ground that the cloves were covered under Item 169 of Appendix 6, List 8, Part I of the Import and Export Policy being "Drugs/Drug intermediate not elsewhere specified.
" The Department relied on Para 167 which dealt with the import of spices and took the stand that the cloves could be imported only against specific licence relating to cloves.
The appellant in the above circumstances filed a Writ Petition in the High Court of Bombay seeking a mandamus against the respondent to clear the goods against the Bill of Entry filed by the appellant.
The High Court held that th cloves cannot fall within the expression "Drugs/Drug intermediate not elsewhere specified" and the import of the cloves without specific licence was not permissible.
It was thus held that the action of the Customs Authorities in not permitting clearance cannot be faulted and the licence relied upon by the appellant was not valid for the import of cloves.
It was contended by Mr. Harish Salve, Learned Counsel for the appellant that though the use of clove as a spice is not in much dispute, but at the same time it cannot be disputed that clove is a Drug/Drug intermediate.
It was submitted that in popular sense and trade parlance, clove is also used as drug intermediate and that being so the appellant was 1000 entitled to import the cloves against the additional licence under para 220 of the Policy.
It was also submitted that in the Import Policies of 1982 83 to 1985 86 cloves were specified as crude drugs.
It was thus submitted that when clove was considered as crude drugs, there was no justification now to hold that it did not fall within Item 169 which provided for Drug/Drug intermediates.
It was further argued that cloves are used for treatment of dyspepsia and flatulence.
It is also used to relieve nausea and vomiting.
Clove oil is famous for medicinal use and specially for tooth problems.
It was also argued that in the Indian Materia Medica by A.K. Nadkarni the use of the cloves has been stated as follows : "Uses Cloves(unopened flower buds) are generally used as spice in curry foods and condiments.
Medicinally they are used to correct griping caused by purgatives, relieve flatulence, various forms of gastric irritability, colic, dyspepsia, and to increase the flow of saliva.
Combined with other spices and rock salt clove is given to relieve colic, indigestion and vomiting and to many other uses.
" It was submitted that in the Indian Pharmaceutical Codex issued by the Counsel of Scientific & Industrial Research, New Delhi the Action and Uses of cloves have been stated as under : "Action and Uses Clove is one of the most stimulant of aromatics.
It is carminative and is used in treatment of flatulence and dyspepsia.
It is sometimes administered in the form of powder or an infusion to relieve nausea and vomiting, correct flatulence and excite languid digestion.
" It was thus argued that the High Court committed an error in holding that clove was not a Drug/Drug intermediate.
On the other hand, it was submitted by Mr. Tulsi, Learned Additional Solicitor General that Para 167 of the Policy clearly provided that import of cloves could be allowed only against licences and there was no question of applying Item 169 of List 8 Appendix 6 which provided for Drugs/Drug intermediate not elsewhere specified.
It was also submitted that in the common parlance as well as in trade and commerce, the cloves are always considered as spice and not as a drug or drug intermediate.
It was submitted that the cloves are sold as spice in a `Kirana ' shop and not as drug in a chemist shop.
1001 In order to appreciate the controversy raised before us it would be necessary to reproduce Para 167 contained in Chapter XIII and Item 169 appearing in Part I of List 8, Appendix 6 of the Import & Export Policy, 1991 93 Vol.
I: "Import of Spices: 167.
(1) Import of (1) Cloves (2) Cinnamon/Cassia (3) Nutmeg and (4) Mace will be allowed against licences.
Such licences may be granted to those who imported these items during any of the financial years from 1983 84 to the preceding licensing year.
Import licences will be issued on the basis of the best year 's imports of an item from 1983 84 to the proceding licensing year.
The percentage entitlement as well as minimum value of licence will be as notified by the Chief Controller of Imports & Exports.
From the licensing year 1991 92, applicants will be required to furnish evidence of exports of Indian spices, during the preceding licensing year, for a value equal to the value of the import licence granted during the preceding licensing year.
Only exports of (1) Cardamom (small), (2) all Spices/spice products in approved consumer packs of 450 gms.
or less except spice oils and oleoresins and saffron (3) Herbal spices such as rosemary, thyme, terragon, sage, etc.
(4) Vanila (5) Black cumin, (6) Star anise, (7) Kokum, (8) Garlic, (9) Cardamom (large), (10) Bishopsweed, (11) Caraway and (12) Cumin seed, will be taken into account for the above purpose.
Items may be added or deleted by the Chief Controller of Imports & Exports as and when considered necessary in public interest.
(2) Exports referred to in sub paragraph (1) above should be direct exports by the applicant in his own name with the export proceeds i.e. the foreign exchange realisation in his own name, or exports through the Consortium of Spices Exporters, membership of which is to be confined only to dealers of spices who want to avail of the facility for exports through the Consortium.
Documents required to be furnished alongwith the application for grant of licences for spices shall be as provided in sub paragraph 166(6) above.
(3) Actual users who have no past imports will also be eligible 1002 for licence on the recommendation of the sponsoring authority and approval by the Headquarters Supplementary Licensing Committee.
(4) Applications for import of spices are to be made to the licensing authority concerned.
" Item 169 in Part I of List 8, Appendix 6 : "Drugs/Drug intermediates not elsewhere specified.
" In the present case we are concerned with the Import Policy of 1990 93 and not any earlier Policy.
The appellant had obtained the licence on 29th November, 1990 and has imported the cloves in May, 1991 and as such the import of cloves in question shall be governed by the provisions contained in the Import Policy of April 1990 93, and not by any meaning given to cloves in any earlier Policy.
It cannot be disputed that the Government has power to modify or change its Import and Export Policy.
Para 167 under Chapter XIII of the present Policy clearly provides the heading Import of Spices and under this heading of spices it further makes a mention that import of cloves, Cinnamon/Cassia, Nutmeg and Mace will be allowed against licences.
Thus, it is clear beyond any doubt that cloves have been included under the heading spices and the import of cloves is only permissible against specific licences obtained in the manner provided in Para 167.
In face of the above provision dealing with the import of spices which specifically includes cloves, the general provision of Item 169 mentioning Drugs/Drug intermediates cannot be applied.
When Para 167 provides for obtaining specific licence for cloves, there is no necessity of finding its meaning from Policies or its use as medicine.
As regards import of spices, there is a clear provision under Para 167 and it would govern the import of cloves.
That part we are in agreement with the view taken by the High Court that in the common parlance as well as in trade and commerce, clove is treated as spice and not drug.
It is a matter of common knowledge that the cloves are sold in a `Kirana ' shop and not in the shop of a chemist or druggist.
Thus, we find no error in the view taken by the High Court and this appeal having no force is dismissed with no order as to costs.
N.P.V. Appeal dismissed. [/INST] The appellant obtained, by transfer, an Import Licence for the import of admissible Items as per Para 220 (2), (3), (4) and (6) of the Import Policy 1990 93 Vol.
I and placed an order on a foreign firm for the supply of cloves No. 1 quality.
On arrival of the goods in the Indian Port, the appellant filed Bill of Entry for the clearance of the goods for home consumption, and claimed clearance of the goods against the additional licence on the ground that the cloves were covered under Item 169 of Appendix 6, List 8, Part I of the Import and Export Policy, being Drugs/Drug intermediate not elsewhere specified.
" The Department relying on Para 167, which dealt with the import of spices, took the view that the cloves could be imported only against specific licence relating to cloves.
Hence the appellant filed a writ petition in the High Court for a direction to the respondent to clear the goods against the Bill of Entry filed by the appellant.
The High Court held that cloves could not fall within the expression "Drugs/Drug intermediate not elsewhere specified" and the import of the cloves without specific licence was not permissible, and that the licence relied upon by the appellant was not valid for the import of cloves.
In the appeal before this Court, it was contended on behalf of the appellant importer that in popular sense and trade parlance, clove was also used as drug intermediate, and that in the Import Policies of 1982 83 to 1985 86 cloves were specified as crude drug and the cloves and clove oil were used for treatment of dyspepsia, flatulence, etc., and tooth problems and, therefore, the High Court committed an error in holding that clove 998 was not a Drug/Drug intermediate, and that it did not fall within Item 169.
Dismissing the appeal of the Importer, this Court, HELD : 1.1 Para 167 under Chapter XIII of the Import Policy of April 1990 93 clearly provides the heading Import of Spices and under this heading of spices it further makes a mention that import of Cloves, Cinnamon/Cassia, Nutmeg and Mace will be allowed against licences.
Thus, it is clear beyond any doubt that cloves have been included under the heading Spices and the import of cloves is only permissible against specific licences obtained in the manner provided in Para 167.
In the face of this provision, dealing with the import of spices, which specifically includes cloves, the general provision of Item 169 mentioning Drugs/Drug intermediates cannot be applied.
[1002D E] 1.2 In the instant case the appellant had obtained the licence in November, 1990 and has imported the cloves in May, 1991 and as such the import of cloves in question, shall be governed by the provisions contained in the Import Policy of April, 1990 93, and not by any meaning given to cloves in any earlier Policy.
Therefore, when para 167 provides of obtaining specific licence for cloves, there is no necessity of finding its meaning from earlier Policies or its use as medicine.
There is a clear provision under Para 167 as regards import of spices and it would govern the import of cloves.
That apart, the High Court was right in holding that in the common parlance as well as in trade and commerce, clove is treated as spice and not drug.
It is a matter of common knowledge that the cloves are sold in a `Kirana ' shop and not in the shop of a chemist or druggist.
[1002C, F G] </s> |
<s>[INST] Summarize the following judgement: N: Criminal Appeal No. 144 of 1992.
From the Judgement and Order dated 27.9.1991 of the Karnataka High Court in W.P. No. 113 of 1991.
WITH Writ Petition (Crl.) No. 1394 of 1991.
C.S. Vaidyanathan and P.K. Manohar for the Appellant.
K.T.S. Tulsi, Addl.
Solicitor General, P. Parmeswaran, A.K. Srivastava, M. Veerappa and Kh.
Nobin Singh (For the State of Karnataka) for the Respondents.
The Judgment of the Court was delivered by section RATANAVEL PANDIAN, J.
Leave granted.
The appellant/petitioner K.P.M. Basheer by the above appeal is challenging the correctness and legality of the order dated 27th September 1991 made by the High Court of Karnataka dismissing the Writ Petition filed by the appellant challenging the legality and validity of the order of detention dated 7.1.1991 passed by the State of Karnataka.
The first respondent in the appeal, namely, the State of Karnataka in exercise of the powers conferred by the Section 3(1) of the (hereinafter 1077 referred to as `the Act ') passed the impugned detention order on 7th January 1991 with a view to preventing him from engaging in keeping and transporting smuggled goods falling within the mischief of Section 3(1)(iii) of the Act.
The appellant was directed to be detained and kept in the custody of the central prison, Banglore.
The brief facts of the case which led to the passing of the impugned order can be summarised as follows: On 12.11.1990 the Superintendent of Central Excise on information interrogated the appellant at the Balgaum bus stand on his arrival from Bombay in the presence of some panchas and recorved two gold pellets with foreign markings each weighing ten tolas, wrapped in a paper packet from his front side right watch pocket of his pant.
The appellant was not having any valid permit and also was not able to give any satisfactory explanation for possessing the gold pellets.
Therefore, the Superintendent entertaining a reasonable belief that they were smuggled gold pellets recorded the statement of the appellant.
The State Government on the information passed on by the sponsoring authority passed the impugned order on 7.1.1991 on being subjectively satisfied of the necessity of passing the impugned order on the materials placed before it.
The detention order was served on the detenu only on 28.6.1991 from which date onwards he has been detained.
Challenging the detention order, the petitioner filed a Writ Petition No. 113/91 before the High Court of Karnataka and raised several contentions; those being (1) the order of detention is based on a solitary incident; (2) there has been an undue and prolonged delay in serving the order on the detenu; and (3) the materials placed before the detaining authority were not sufficient for drawing the requisite satisfaction for passing the impugned order.
The High Court rejected all those contentions and dismissed the Writ Petition.
Hence this appeal.
Before this Court the petitioner has filed a separate Writ Petition under Article 32 of the Constitution of India raising certain additional grounds.
Those grounds are: (1) The detenu made a request to the detaining authority to forward a copy of his representation to the Central Government and that the detaining authority has not forwarded the same to the Central Government as requested by him.
Even assuming that it has been forwarded, his represe tation has not been disposed of in time and as such there is violation of Article 22(5) of the Constitution of India.
1078 (2) The normal criminal process which would be adequate to take care of the possession of the gold has not been followed; and (3) The first respondent in the Writ Petition (Union of India) has failed in its duty to inform the petitioner regarding the Government instruction issued to the sponsoring agencies not to make an order of detention in cases where the value of the smuggled goods is less than Rs.1 lakh.
In the Writ Petition both the State Government as well as the Central Government have filed their counter affidavits refuting all the additional grounds.
Before scrutinising the additional grounds raised in the Writ Petition, we shall now examine the contentions raised in the appeal and find out whether the order of the High Court warrants interference.
Mr. C.S. Vaidyanathan, the learned counsel appearing on behalf of the appellant contends that the delay of more than five months in executing the order of detention is not only an inordinate and unreasonable one but also stands un explained and on that ground the High Court ought to have set aside the order of detention.
According to him, the High Court has not gone deep into that question but summarily disposed of the same holding "The explanation offered by the 1st respondent, in para 9 of the statement of objection is quite acceptable.
" Of course, this contention has not been specifically taken in the Memorandum of Appeal, but there can be no bar to advance a legal argument in a case of this nature and especially when such a contention has been raised before the High Court.
We want through the explanation given in para 9 of the counter affidavit filed on behalf of the first respondent by the then commissioner and Secretary to Government, Home Department.
It is not denied that the detention order was executed after a period of 5 months and 11 days.
What the first respondent states is that various efforts were taken to trace the detenu at Tellicherry at the address given in the grounds of detention as well as in the Bombay address, but he could not be secured.
Further it has been stated that though the arresting officers attempted to secure him at the Court of Chief Judicial Magistrate at Belgaum on 6.3.91, 28.3.91 and 14.5.91 on which dates the criminal case aS against him stood posted before that court, the officers could not do so as the appellant did not appear before the court for hearing.
Further it is mentioned that though COFEPOSA Section in the office of the Collec 1079 torate of Customs requested the State Government on 19.4.91 to initiate action under Section 7(1)(b) of the Act it was not done so because the seizing unit was asked to make one more attempt to trace out and detain the appellant.
This explanation is not a satisfactory and reasonable one for the following reasons : (1) No sufficient cause is shown for not taking any action under Section 7 of the Act.
(2) It appears from the paragraph 9 of the counter that the officers came to know of the correct address of the appellant at Bombay, but they could not trace him.
It may be pointed out that the Bombay address at which place the appellant detenu was attempted to be secured is not given in the counter.
Had it been given, the Court would have been in a position to verify the averments made in the grounds of detention stating that the address at Bombay given by the appellant was a fictitious one.
In paragraph 17 of the Writ Petition filed before the High Court, the appellant has asserted that he appeared before the Asstt.
Collector of Customs, Marine Lines, Bombay on 6.2.91 and 20.2.91 but no attempt was made to arrest and detain him.
This specific averment is not all denied in the counter.
This indicates that the arresting officers did not take any real and genuine effort to secure and detain the appellant.
The explanation now offered stating that the appellant was fugitive, eluding the dragnet of the detention order cannot be accepted, because during the alleged period of search he has appeared before the Assistant Collector of Customs, Bombay on two occasions during Feb. 1991, that is after passing of the detention order.
All the above points show that no serious and sincere effort appears to have been taken by the arresting officers and that there was only exchange of correspondence between the Department and the arresting officers.
It is incomprehensible as to why no effort has been made to secure the appellant/detenu during the two days, namely, on 6th and 20th February when he appeared before the Assistant Collector of Customs.
No supporting affidavits or documents are filed to substantiate the averments made in the counter.
Incidentally, it may be mentioned that though the two gold pellets (the contrabans) were seized from the appellant on 1080 12.11.90 the authorities concerned passed these orders only on 7.1.1991, i.e. nearly after two months.
Under these circumstances, we are of the view that the order of detention cannot be sustained since the `live and proximate link ' between the grounds of detention and the purpose of detention is snapped on account of the undue and unreasonable delay in securing the appellant/detenu and detaining him.
As we have now come to the conclusion that the order of detention is liable to be set aside on this ground alone we are not dealing with other contentions raised in the Memorandum of Appeal as well as in the Writ Petition.
Hence for the reasons stated above we allow the appeal, set aside the order of the High Court and quash the impugned detention order and direct the detenu to be set at liberty forthwith.
In view of the order in this present appeal, no order is necessary in the Writ Petition.
R.P. Appeal allowed. [/INST] The appellant, on 12.11.1990, was found carrying two gold pellets with foreign markings each weighing ten tolas, without any valid permit.
The order of detention under S.3(1) of the conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 was passed on 7.1.1991.
The detention order was served on him on 28.6.1991.
The Writ Petition challenging the detention order, inter alia, on the ground of undue and reasonable delay in its execution was dismissed by the High Court.
The detenu filed the appeal by special leave against the High Court 's order as also the writ petition under Article 32 of the Constitution before this Court.
Allowing the appeal and disposing of the writ petition, this Court, HELD: 1.1 The order of detention cannot be sustained since the `live and proximate link ' between the ground of detention and the purpose of detention is snapped on account of the undue and unreasonable delay in securing the appellant/detenu and detaining him.
The order of detention is liable to be set aside on this ground alone.
[p. 1080A B] 1.2 Though the two gold pellets (the contrabands) were seized from the appellant on 12.11.1990, the order of detention was passed on 7.1.1991, and the detention order was executed after a period of 5 months and 11 days.
{pp. 1078F; 1079G H; 1080A] 1076 2.1 No sufficient cause is shown for not taking any action under s.7 of the COFEPOSA Act.
The explanation that though COFEPOSA section in the office of the Collectorate of Customs requested the State Government on 19.4.1991 to initiate action under s.7(1) (b) of the Act it was not done so because the seizing unit was asked to make one more attempt to trace out the appellant is not satisfactory and reasonable one.
[pp. 1078G H; 1079A B] 2.2 No serious and sincere effort was taken by the arresting officers: There was only exchange of correspondence between the Department and the arresting officers.
It is incomprehensible as to why no effort was made to secure the appellant/detenu during the two days, namely, on 6th and 20th Feb.91, when he appeared before the Assistant Collector of Customs.
1079F G] </s> |
<s>[INST] Summarize the following judgement: Civil Appeal Nos. 2023, 2024 & 2025 of 1990.
With I.A. Nos. 7 9 of 1991.
From the Judgment and Order dated 28.6.89 & 16.3.90 of the Calcutta High Court in Appeal No. 498 of 1988.
A.K. Mitra, P.K. Chatterjee, Jaydip Kar and Ms. Radha Rangaswamy for the Appellants.
Narayan Shetty, Gopal Subramaniam, Atin Benerjee and D.P. Mukherjee for the respondents.
The Judgment of the Court was delivered by AHMADI, J.
These three appeals by special leave arise out of the Judgments & Order dated 28the June, 1989 passed by the Division Bench of the High Court of Calcutta and from the subsequent orders dated March 16, 1990 and March 30, 1990 made in pursuance thereof.
The brief facts 902 giving rise to these three appeals may be stated as under.
The West Bengal Registration Service comprising the Sub Registrar 's post was administered by the Judicial Department of the State.
Under the West Bengal (Revision of Pay & Allowances) Rules, 1951 (hereinafter called `the ROPA Rules ') the scale of pay for the said post was fixed at Rs. 100 250.
By a resolution dated May 22, 1952 the said post of Sub Registrar was directed to be regarded as Gazetted with effect from April 1, 1952 and thereafter by notification dated July 17, 1953 the governor, in exercise of powers conferred by Rule 188 of the Civil Service (Classification, Control & Appeal) Rules read with Articles 313 and 372 of the Adoption of Laws Order, 1950 and all other related powers, declared that the West Bengal Registration Service comprising (1) Registrar of Assurances, Calcutta, (ii) Inspector of Registration Offices, (iii) Departmental District Sub Registrars, (iv) Sub Registrar of Assurances, Calcutta (v) District Sub Registrars, and (vi) Sub Registrars shall, with effect from January 30, 1953, the date of constitution of the said service, be deemed to be included in the State Service.
The respondents who belong to the said service contend that after the issuance of the said notifiction a commitment was made by the State Government that sub Registrars would be accorded all the privileges admissible to officers belonging to the State Service.
Notwithstanding the said commitment the respondents contend that their pay scale was not revised to Rs.200 400 which was the lowest pay scale admissible to State service officers.
Thereafter pursuant to the recommendation of the Pay Committee, the pay scale underwent an upward revision but the Sub Registrars were placed in the revised scale of Rs. 200 400 which corresponded to the old scale of Rs. 100 250, even though the minimum scale for State service employees was raised to Rs. 250 550 under the ROPA Rules, 1961.
The First (State) Pay Commission was then constituted in 1967.
That body examined the grievance of this service and observed that it was an extremely ill paid service.
After evaluating the job requirements, recruitment standard and responsibilities attached to the post belonging to the said service it recommended a scale of Rs. 425 825 for Sub Registrars and corresponding higher scales for the posts, the highest being Rs. 850 1600 for Registrar of Assurances, Calcutta and inspectors of Registration Officers.
It appears that this recommendation did not find favour with the State Government.
This is obvious from the fact that under the ROPA Rules, 1970, the pay scale for the post of Sub Registrar was fixed at Rs. 300 600 only.
Pursuant 903 to the recommendations of Second (State) Pay Commission the pay scale for the post was revised to Rs. 425 1050 under RUPA Rules, 1981.
This was Scale No. 11.
According to the respondents they ought to have been placed in scale No. 17 which carried a pay scale of Rs. 660 1600 but, contend the respondents, grave injustice was done to them because of the biased and negative attitude of the Finance Department of the State Government.
It was contended that since the basic minimum pay scale for State Service officers was fixed at Rs. 660 1600, there was no valid reason to deny the same to the Sub Registrars and to deny higher pay scales to officers above the level of Sub Registrars in the West Bengal Registration Service.
Feeling aggrieved by the decision of the State Government the respondents, therefore, filed a Writ Petition No. 1993 of 1987 in the High Court of Calcutta under Article 226 of the Constitution for a Mandamus to award to the Sub Registrars the pay scale No. 17 of Rs. 660 1600 with all other privileges admissible to State service officers.
In the said writ petition the learned Single Judge of the High Court passed certain interim orders against which an appeal No. 498 of 1988 was preferred before a Division Bench of the High Court.
At the hearing of the said appeal the Division Bench felt that it would be proper to dispose of the writ petition itself on merits and accordingly it heard the writ petition by consent of parties instead of disposing of the appeal against the interim order and leaving the hearing of the writ petition to the learned Single Judge.
The Division Bench of the High Court allowed the writ petition and directed that the Sub Registrars should be placed in the pay scale of Rs. 660 1600 with effect from April 1, 1981 and their pay scales should be fixed nationally on that basis without paying the difference in salary up to January 1, 1986.
The arrears of salary for the subsequent period was, however, directed to be paid within 8 weeks from the date of the judgment.
Certain other directions were also given but it is not necessary to notice them.
It may here be mentioned that during the pendency of the writ petition the Third (State) Pay Commission constituted by the State Government had submitted its report sometime in December, 1988.
Before the said body it was represented on behalf of the Sub Registrars that they should have been placed in the pay scale of Rs. 600 1600 instead of Rs. 425 1050 as that was the basic minimum scale for State service and the scale for higher posts in the West Bengal Registration Service should be correspondingly raised.
The Commission spurned this request as in its opinion the duties and responsibilities of the Sub Registrars did not justify 904 the higher pay scale.
Pursuant to the recommendations of the Pay commission the ROPA Rules, 1990 came to be issued whereunder the Sub Registrars were placed in the revised scale No. 11 of Rs. 1390 2970.
The High Court took notice of the recommendations of the Pay Commission as well as the ROPA Rules, 1990 while disposing of the writ petition by its judgment dated 28th June, 1989.
After the High Court 's Judgment awarding Scale No. 17 to the Sub Registrars, the respondents took out an application for interim relief seeking permission to exercise option for the corresponding Scale No. 17 of Rs. 2200 4000 and for granting an option to officers above the level of Sub Registrars for placement in the corresponding Scales Nos. 18 and 19 with effect from April 1, 1981.
The Division Bench of the High Court passed an ad interim order dated March 16, 1990 permitting the Sub Registrars to opt for the revised Scale No. 17.
The Civil Appeal No. 2023 of 1990 is against the main judgment of the High Court dated June 28, 1989.
Civil Appeal No. 2024 of 1990 is against the interim order dated March 16, 1990 by which the Sub Registrars were permitted to opt for the revised Scale No. 17.
On March 19, 1990 the respondents took out an application for clarification of the order dated March 16, 1990.
The High Court while disposing of this application permitted the officers belonging to the posts above the level of Sub Registrars to opt for corresponding Scales Nos. 18 and 19.
Civil Appeal No. 2025 of 1990 is against that order.
Since the subsequent two appeals Nos.
2024 and 2025 of 1990 also flow from the main judgment dated June 28, 1989, which has given rise to Civil Appeal No. 2023 of 1990 we have thought it proper to dispose of all the three appeals by this common judgment.
The history of the West Bengal Registration Service has been traced by the High Court right from 1826 but it is unnecessary to re state the same.
Suffice it to say that except the top post of the Registrar of Assurances, Calcutta, the remaining cadres in the said service belonged to the Subordinate Services of the State.
Generally speaking the West Bengal Services were divided into (i) Provincial Service and (ii) Subordinate Services leaving out certain special categories of posts.
Subordinate Services comprised certain minor administrative, executive and ministerial posts to which appointment could be made by the Local Government or by an authority subordinate thereto, specially empowered.
The other cadres and posts belonged to the Provincial Service.
By a notification dated Novem 905 ber 25, 1949 recruitment rules were framed which provided that recruitment of Sub Registrars shall be made though West Bengal Civil Service examination.
The minimum educational qualification for Sub Registrars was prescribed as `graduate of a recognised University '.
Subsequently, by a resolution dated May 22, 1952 it was provided that Sub Registrars shall be regarded as Gazetted Officers with effect from April 1, 1952.
Soon thereafter by a notifiction dated July 17, 1953 the West Bengal Registration Service was included in the State Service.
Thus according to the respondents the position that emerged after the notification of 1953 can be summed up as under : (i) The West Bengal Registration Service was expressly declared to be in the West Bengal State Service (the former Provincial Service); (ii) The recruitment rules of the State Service were identical to the recruitment rules of the other State Services.
(iii) Gazetted status and concomitant privileges of State Services were conferred on the Sub Registrars belonging to the West Bengal Registration Service; and (iv) The powers relating to the recruitment, conditions of service and disciplinary matters in regard to members belonging to the West Bengal Service including the Sub Registrars were to be exercised by the State Government.
By a notification dated July 6, 1966, the West Bengal Registration Service was declared as the West Bengal Junior Registration service and subsequently by a notification dated October 17, 1966 rules were framed under Article 309 of the Constitution which superseded all previous rules on the subject and provided that appointment to the post of Sub Registrar shall be made by the Government through the West Bengal Civil Service (Executive) and Allied Services Examination.
The educational qualification for appointment to the post of Sub Registrar was stated to be a graduate of a recognised University and the age criteria was fixed as not below 21 years and not exceeding 24 years.
The system of classification of Government employees into Gazetted and Non Gazetted and Classes I, II, III, & IV adopted hitherto was done away with by the notification dated September, 25, 1978 and Government employees were placed in Groups A, 906 B,C, and D according to pay and scale of pay.
The new grouping of services was not expected to cause any immediate disturbance in the existing framework of job charts, responsibilities and facilities.
Rule 5 (4) of the West Bengal Service Rules, 1971, Part I, was amended and read as under : "5(4) West Bengal State Services means those services and posts under the Administrative control of the Government which have been classified as Group A, Group B, Group C and Group D." A note at the foot thereof provided as under : "Note 1(a) Subject to the provisions of paragraph (b) services or posts under Group a, Group B, Group C and Group D shall consist of the services or posts specified respectively against them in the table below : section No Classification of Classification of the Post and Services Services and posts 1.
Group `A ' All Government employees drawing a pay or a scale of pay with the maximum above Rs. 1,170.
Group `B ' All Government Employees drawing a pay or a scale of pay with a maximum of Rs. 1170 or below, but above Rs. 700.
Group `C ' All Government employees drawing a pay or a scale of pay with a maximum of Rs. 700 or below, but above Rs. 415. 4.
Group `D ' All Government employees drawing a pay or a scale of pay with a maximum or Rs. 415 or below.
(a) Government may, be special order include any other class or posts carrying any pay or scale of pay in a class of service 907 consisting of posts or services carrying a higher pay or scale of pay.
(b) If a service consists of posts with more than one time scale or if there be a Selection Grade, pay attached to a service or post, post carrying the different time scales or the Selection Grade pay may be classified in different services according to the pay or the maximum scale of pay of the post.
Provided further that the aforesaid classification of posts and services shall not interfere with other existing framework of duties, functions responsibilities and facilities of Government employees on the basis of the existing classification.
" This classification had an impact on the recommendations made by the Pay Commission which were finally approved under the ROPA Rules, 1981.
This, in brief, is the history of the West Bengal Registration Service.
The grievance of the respondents was that even after the Sub Registrars were placed in the Gazetted category and their service was declared to be included in the State Service and entry into service was through a competitive examination with the minimum qualification for appointment being graduation, the pay scale for sub Registrars was fixed at Rs. 100 250 notwithstanding the Government notification of 1953 providing that the said officers belonging to the Registration Service will enjoy the benefits and privileges admissible to State Service officers.
On the representation made by the officers of the Registration Service.
the then Chief Minister granted the relief of Rs. 50 at the minimum and maximum of the pay scale thereby virtually enhancing the pay scale from Rs. 100 250 to Rs. 150 300.
Thus after the report of the Pay Committee when the scale of pay of Sub Registrar was revised to Rs. 200 400 in effect the pay at the minimum got reduced by Rs. 10 as the Sub Registrars were drawing Rs. 5 as DA and Rs. 5 as CCA besides Rs. 50 granted pursuant to the orders of the then Chief Minister.
This was totally overlooked by the Finance Department while drawing up the ROPA Rules, 1961.
Subsequent representations for upward revision of the scale were ignored by the Finance Department till the First (State) Pay Commission came to be constituted.
That body observed as under : "This is an extremely ill paid service.
The work that the 908 Registration Officers have to do is not negligible in importance.
The work involves the interpretation of documents and the assessment of stamp duties and registration fees with reference to the value of the subject matter involved.
The scale of pay should be improved.
The following scales are recommended : (a) Registrar of Assurances and Inspectors of Registration Offices Rs. 850 50 1000 60 1600.
(b) District Registrars and Sub Registrars of Assurance, Calcutta Rs. 475 35 825 EB 50 1325.
(c) District Sub Registrars Rs. 450 15 600 EB 25 825.
(d) Sub Registrars Rs. 425 10 475 15 700.
The majority members however, recommended the higher scale of Rs. 450 15 600 25 825 for Sub Registrars.
" Notwithstanding the said recommendation the pay scale for Sub Registrars was fixed at Rs. 300 600 under ROPA Rules, 1961.
The respondents contend that the injustice done to them in ignoring the above extracted recommendation of the Pay Commission resulted in their being placed in the equivalent Scale No. 11 throughout by the subsequent pay Commissions also.
A strong letter of protest written by the Head of the Department also did not yield the desired result thereby necessitating the filing of a writ petition in which the impugned order came to be passed.
It is in this background that we must examine the correctness or otherwise of the impugned judgment and the subsequent impugned interim orders made by the High Court.
The partition of Bengal in the wake of independence necessitated grant of relief to millions of persons who were uprooted and their rehabilitation.
This brought into existence new departments and organizations increasing the number and categories of employees required to handle the enormous task.
The history of pay revision in the State of West Bengal would show that under the ROPA Rules, 1950 the total number of pay scales was reduced from 500 to 78 but by the time the Pay Committee was appointed in 1959 the number had once again gone up to 143 but was reduced to 39 by the Pay Committee.
The number of pay scales again proliferated from 39 to 81 but the First (State) Pay Commission brought it 909 down to 34.
The second (State) Pay Commission appointed in 1977 found 36 standard scales, 19 new intermediate selection grade scales and 20 non standard pay scales besides a few pay scales introduced on different dates for non Governments employees.
That body reduced the number of pay scales to 29.
The Third (State) Pay Commission found the total number of pay scales to be 29 primary pay scales and brought it down to 24 pay scales.
The situation thus created on account of the increase in the stratification of administrative hierarchy and the consequential fragmentation of duties and responsibilities on the one hand and the reduction in the number of pay scales on the other necessitated higher initial pay and attaching of special pay to a increasing number of posts to avoid anomalies in the pay structure thereby throwing an increased financial burden on the State Government.
The minimum pay fixed for State employees has always been higher than that prescribed for Central Government employees.
When the pay structure was related to the index average 200 (1960 : 100) the minimum pay of Central Government employees was Rs. 196 per month while that of the State Government employees was Rs. 220; a weightage of Rs. 24 recommended by the Second (State) Pay Commission on account of dietary habits of State employees.
At the index average of 608 the minimum pay for Central Government employees has been fixed by the Fourth Central Pay Commission at Rs. 750 per month whereas the Third (State) Pay Commission has fixed the same at Rs. 800 per month.
The maximum pay for State Government employees has been fixed in the scale of Rs. 5900 200 7300.
For the old scale 11 (Rs. 425 1050) the new scale prescribed is Rs. 1360 2800.
The revised equivalent for the old scale No. 17 (Rs.660 1600) is Rs. 2200 4000.
With regard to the demand for higher pay scales for officers belonging to the Registration Service, the Pay Commission observed: "It has been represented to us that the scale of pay for the post of Sub Registrar should have been Rs. 660 1600 which is the basic scale for the State Services and that the scales of pay for the higher posts in the Registration Directorate as mentioned earlier should have been correspondingly higher.
In view of the duties and responsibilities of the posts we are of the opinion that upgradation of the scales of pay of these posts will not be justified.
The posts should carry the proposed scales of pay and special pay corresponding to their existing scales and special pay.
" 910 As pointed out earlier the High Court took notice of the revised scales fixed by this body and by subsequent orders directed that the Sub Registrars should be placed in revised scale No. 17, ie.
Rs. 2200 4000, and the officers above them should be placed in the revised scales Nos. 18 and 19.
In taking the view that the Registration Service was underpaid, the High Court was greatly impressed by the fact that the Sub Registrars were conferred gazetted status and the entire service was designated as State Service and being the head of office and the drawing and disbursing officer as well, he exercised administrative and financial power and now that the recruitment rule had been brought on par with the educational qualification as prescribed for Munsiffs, the pay scales of Sub Registrars ought to be the same and cannot be less than that of Munsiffs.
Strong reliance was also placed by the High Court on the observations of the First (State) Pay Commission, extracted earlier, in support of its conclusion that the State Government had arbitrarily brushed aside the demand to the Sub Registrars for higher wages.
Holding that the position of a Sub Registrar was equivalent to others in State Services, the High Court ruled that they were victims of hostile discrimination and the Government decision not to accept the weighty recommendations of the Pay Commission was wholly arbitrary and violative of Articles 14 and 16 of the Constitution.
In that view that it took it allowed the Writ Petition and awarded scale No. 17 (Rs. 660 1600 now revised to Rs. 2200 4000) to them and scales Nos. 18 and 19 to higher level officers in the same department.
It is against these orders that the present appeals are preferred.
From the resume of facts set out hereinabove it clearly emerges that prior to 1953 the post of Sub Registrars belonged to the Subordinate Service but by the notification dated July 17, 1953 it was placed in the State Service w.e.f. January 30, 1953.
Being the head of office, a drawing and disbursing officer with certain administrative and financial powers, and also required to perform certain quasi judicial functions, such as, interpreting recitals contained in the documents and provisions of concerned statutes and rules, counsel for the respondents contended that till 1981 when the educational qualification for entry into that post was graduation of any discipline, the Sub Registrars were entitled to be treated above members belonging to Junior Service and pay scale so determined but the State authority failed to do so.
Counsel further contended that after 1981 the additional qualification of a degree in law was added to the eligibility criterion and thus the same was brought on par with Munsiffs and hence 911 they should have been equated with Munsiffs in the matter of pay scale, since officers in all services recruited from practicing advocates were given the same scale.
Accepting this line of reasoning the Division Bench of the High Court concluded that the Government had acted arbitrarily and in violation of Articles 14 and 16 of the Constitution in not awarding scale No. 17 (Rs. 660 1600) earmarked for State Services by the Second (State) Pay Commission (which the Government had accepted and implemented) to the Sub Registrars.
It is thus manifest that the decision of the High Court was based on the facts (i) the post of the Sub Registrar was a gazetted post belonging to the State Service (ii) the First (State) Pay Commission had recommended a higher scale (which was still lower than the one demanded by the Sub Registrars) for Sub Registrars observing that it was an extremely ill paid service (a recommendation which was turned down by the Finance Department) and (iii) the eligibility criterion for entry into service was graduation up to 1981 and thereafter the requirement of a law degree was added to it, thus bringing the required educational criterion to that of a Munsiff.
The appellant contend that the High Court committed a serious error in revising the pay scale of Sub Registrars in exercise of its extraordinary jurisdiction under Article 226 of the Constitution in total ignorance of the settled legal position that pay fixation is essentially an executive function ordinarily undertaken by an expert body like a Pay Commission whose recommendations are entitled to great weight though not binding on the Government and ar not justiciable in a court of law since the court of law is not well equipped to take upon itself the task of job evaluation which is a complex exercise.
In support of this contention a catena of decisions beginning with the case of Parbat Kiran Maithani & Ors.
vs Union of India & Anr., ; and ending with the case of State of U.P. & Ors.
vs J.P. Chaurasia & Ors., ; at 29 was relied on.
The appellants also contest the contention that the Sub Registrars are a part of the constituted State Service which is awarded scale No. 17.
They contend that there is no such service as `Constituted State Service ' and therefore, the question of granting them scale No. 17 never arose.
On the contrary they point out that the employees are categorised as belonging to Group A, Group B, Group C, and Group D and are placed in one group or the other on the basis of evaluation of their work and the recruitment policy adopted by the Government.
By placing the Sub Registrars in scale No. 17 the High Court has given them a jump which is likely to give a severe 912 jolt to the pay structure and would destroy the verticle heirarchial relativities carefully built up by the Pay Commission.
The appellants, therefore, contend that the High Court had acted in haste in placing the Sub Registrars in Scale No. 17 without realising its impact on the pay structure.
For examination purposes the State Public Service Commission has placed the Sub Registrars in Group D whereas those in scale No. 17 fall in Group A. Those belonging to Group A are required to sit for six papers whereas those belonging to Group D are required to answer four papers only.
While those belonging to Group A are allowed to take one or more optional papers not exceeding three and have to appear for a compulsory personality test of 200 marks, those belonging to Group D are allowed only one optional paper and have not to appear for the personality test.
Thus the examination for Group A employees is far more stringent than for those belonging to Group D employees and, therefore, contend the appellants, they are not comparable and cannot be placed in the same pay scale invoking the equality clause in Article 14 of the Constitution.
Lastly, it is said that the financial burden which will fall on the State Government on the implementation of the impugned judgment will be in the vicinity of Rs. 1.45 crores which is not justified since the High Court has failed to appreciate the issues in their proper perspectives.
We find considerable force in the submissions made on behalf of the appellants.
We do not consider it necessary to traverse the case law on which reliance has been placed by counsel for the appellants as it is well settled that equation of posts and determination of pay scales is the primary function of the executive and not the judiciary and, therefore, ordinarily courts will not enter upon the task of job evaluation which is generally left to expert bodies like the Pay Commission, etc.
But that is not to say that the Court has no jurisdiction and the aggrieved employees have no remedy if they are unjustly treated by arbitrary state action or inaction.
Courts must, however, realise that job evaluation is both a difficult and time consuming task which even expert bodies having the assistance of staff with requistite expertise have found difficult to undertake sometimes on account of want of relevant data and scales for evaluating performances of different groups of employees.
This would call for a constant study of the external comparisons and internal relativities on account of the changing nature of job requirements.
The factors which may have to be kept in view for job evaluation may include (i) the work programme of his department (ii) the nature of contribution expected of him (iii) the extent of his 913 responsibility and accountability in the discharge of his diverse duties and functions (iv) the extent and nature of freedoms/limitations available or imposed on him in the discharges of his duties (v) the extent of powers vested in him (vi) the extent of his dependence on superiors for the exercise of his powers (vii) the need to co ordinate with other departments, etc.
We have also referred to the history of the service and the effort of various bodies to reduce the total number of pay scales to a reasonable number.
Such reduction in the number of pay scales has to be achieved by resorting to broadbanding of posts by placing different posts having comparable job charts in a common scale.
Substantial reduction in the number of pay scales must inevitably lead to clubbing of posts and grades which were earlier different and unequal.
While doing so care must be taken to ensure that such rationalisation of the pay structure does not throw up anomalies.
Ordinarily a pay structure is evolved keeping in mind several factors, e.g., (i) method of recruitment, (ii) level at which recruitment is made, (iii) the hierarchy of service in a given cadre, (iv) minimum educational/technical qualification required, (v) avenues of promotion, (vi) the nature of duties and responsibilities, (vii) the horizontal and verticle relativities with similar jobs, (viii) public dealings, (ix) satisfaction level, (x) employer 's capacity to pay, etc.
We have referred to these matters in some detail only to emphasise that several factors have to be kept in view while evolving a pay structure and the horizontal and verticle relativities have to be carefully balanced keeping in mind the hierarchial arrangements, avenues for promotion, etc.
Such a carefully evolved pay structure ought not to be ordinarily disturbed as it may upset the balance and cause avoidable ripples in other cadres as well.
It is presumably for this reason that the Judicial Secretary who had strongly recommended a substantial hike in the salary of the Sub Registrars to the Second (State) Pay Commission found it difficult to concede the demand made by the registration service before him in his capacity as the Chairman of the Third (State) Pay Commission.
There can, therefore, be no doubt that equation of posts and equation of salaries is a complex matter which is best left to an expert body unless there is cogent material on record to come to a firm conclusion that a grave error had crept in while fixing the pay scale for a given post and Court 's interference is absolutely necessary to undo the injustice.
There can be no dispute that by Government Resolution No. 226 dated 22nd May, 1952 gazetted status was conferred on Sub Registrars w.e.f. 1st April, 1952.
So also there is no dispute that by notification dated 914 17th July, 1953 the Registration Service was, with effect from the date of its constitution, i.e, 30th January, 1953, included in the West Bengal State Services.
Subsequently, by a notification dated 10th October, 1953, all the entries in column I of the Schedule under the heading `Registration Department ' of the Bengal Subordinate Service (Discipline & Appeal) Rules, 1936 were omitted along with the corresponding entries in columns 2 to 5 thereof.
Thus, contend the respondents, the West Bengal Registration Service, including the Sub Registrars was brought on par with other Constituted State Services ', with effect from 30th January, 1953.
Chapter 18 of the Third (State) Pay Commission would show that the Constituted Service may comprise of tiers, such as, Subordinate Service, Junior Service and State Service with or without corresponding higher or senior service.
Paragraph 18.5 of that chapter shows: `There are 4 tiers of constituted service in some of the Government Departments viz., Higher or Senior Service, State service, Junior Service and Subordinate Service '.
Paragraph 18.6 recites that the State Services are generally in scale No. 17 (Rs. 660 1600).
The Junior Services are generally in scales Nos. 11 to 16 and the pay scales for Subordinate Services range from scale No. 4 to scale No. 13.
It would, therefore, appear that the contention of the respondents that the State Service employees were generally placed in scale No. 17 is prima facie accurate.
Yet that body turned down the plea of the Sub Registrars to be placed in scale No. 17 on the ground that the duties and responsibilities of the post did not justify upgradation of the scale as is evident from the observation extracted earlier.
This clearly shows that the Commission determined the pay scale for Sub Registrars keeping in view their duties and responsibilities.
Therefore, merely because the Sub Registrars were conferred gazetted status and the Registration Service was included in State Service did not entitle the Sub Registrars to be placed in the higher scale if their duties and responsibilities did not justify the same.
One of the basic principles for pay fixation is that the salary must reflect the nature of duties and responsibilities attached to the post, meaning thereby that the scale must be commensurate with the task to be performed and the responsibility to be undertaken by the holder of the post.
Merely because of conferment of gazetted status or placement in State Service, no qualitative change was brought about in the job performance of the Sub Registrars and their superiors.
Before November, 1949 appointments to the posts of Sub Registrars was made by nomination of candidates who were undergraduates or even 915 of lower academic qualification.
By the notification dated 25th November, 1949, made under section 211(2)(b) of the Government of India Act, 1935, the recruitment rules framed in supersession of all previous rules, the minimum educational requirement for Sub Registrars was raised to graduation.
The revised recruitment rules for Sub Registrars framed under the proviso to Article 309 of the Constitution dated 17th October 1966 also prescribed the minimum educational requirement as graduate of a recognised university.
By the subsequent notification dated 4th November, 1981 issued under the proviso to Article 309 of the Constitution, the recruitment rules of 17th October, 1966 were amended whereby rules 3 and 4 were replaced.
The newly inserted rule provided for recruitment to the posts of Sub Registrars on the basis of West Bengal Civil Service (Executive) and Allied Service Examination conducted by the State Public Service Commission and the selection was to be made in consultation with that body.
For direct recruitment the educational qualification was raised to a degree in law from a recognised University/Institute or equivalent qualification and experience of 3 years at the Bar.
Since this revised educational requirement is the same as required for Munsiffs, the High Court has thought it proper to place them in the scale of the latter i.e. scale No. 17 (Rs. 660 1600).
But in doing so the High Court has, with respect, failed to evaluate the difference in the nature of duties and responsibilities of a Munsiff and a Sub Registrar.
The duties and responsibilities of a Munsiff and a Judicial Magistrate are far more onerous than those of a Sub Registrar.
The Sub Registrar 's duties are relatively simple namely to receive, examine and register the document whereas the duties of a Judicial Officer at the floor level are to hear cases, examine witnesses, interpret and construe different laws, hear oral arguments and deliver reasoned judgments.
He has to keep abreast with a host of laws unlike a Sub Registrar who is expected to study only a couple of laws connected with the registration of documents like the Registration Act, the Stamp Act, etc.
The responsibilities of a Judicial Officer are also far greater than those of Sub Registrars.
Therefore, to compare the Sub Registrars with Judicial Magistrates Munsiffs is to compare unequals.
It would, therefore, be wholly arbitrary to place them in the same pay scale.
In our view, therefore, the High Court, with respect, committed a serious error in law in holding that the Government 's action in not granting the same pay scale to Sub Registrars was violative of Article 14 of the Constitution.
In fact to put them on par is wholly unjustified.
916 It was then submitted that the Third (State) Pay Commission had failed to notice the upward revision of the educational requirement for direct recruitment as Sub Registrars.
It was rightly pointed out that one of the inputs for pay determination is educational requirement for the post.
The higher the educational qualification the better would be the quality of service rendered and the end result would in the ultimate be far more satisfactory.
That indeed cannot be disputed.
But educational qualification is only one of the many factors which has relevance to pay fixation.
The complexity of the job to be performed and the responsibilities attached thereto are entitled to great weight in determining the appropriate pay scale for the job.
Prima facie there appears substance in the grievance of the Sub Registrars that while the minimum educational qualification for direct entry into the post has been periodically raised, the level of pay scale for the post has not undergone any change, whatsoever.
We think the State Government ought to re examine the question of the appropriate pay scale for Sub Registrars in the light of the above and if it decides to upgrade the pay scale it may also consider if the pay scales of their superiors in the hierarchy need an upward revision.
In the result we allow these appeals and set aside the judgement and orders of the High Court impugned herein but make no order as to costs throughout.
We, however, direct the State Government to re examine the question of the appropriate pay scale for Sub Registrars within three months by a speaking order after giving a hearing to the representative of the respondent association and communicate the decision so taken to the association.
If the State Government decides on the upward revision of the salary of the Sub Registrars, it will simultaneously consider the question of upward revision of the pay scales of higher posts in the department.
I.A. Nos.
7 9 of 1991 will also stand disposed of.
T.N.A. Appeals allowed. [/INST] The West Bengal Registration Service comprised the post of Sub Registrars and other posts above the level of sub Registrars.
By a resolution dated May 22, 1952 the post of Sub Registrar was directed to be regarded as gazetted w.e.f.
1st April, 1952.
Thereafter by a Notification dated 17th July, 1953 the Registration Service was, with effect from the date of its constitution i.e. 30th January, 1953 included in the West Bengal State Service.
The respondents alleged that notwithstanding the commitment made by the 1953 Notification that they would be accorded all the privileges admissible to officers belonging to State Service, their pay scale was not revised equivalent to the minimum pay scale admissible to State Service Officers.
Even when pursuant to the recommendations of the Pay Com 898 mittee the pay scales were revised they were placed on a scale which was lower than the minimum scale payable to State Service Employees.
Further though the First State Pay Commission recommended a Scale of Rs. 425 825 for Sub Registrars yet the recommendation did not find favour with State Government and their pay scale was fixed at Rs. 300 600.
Also pursuant to the recommendations of the Second State Pay Commission their pay scale was revised to Rs. 425 1050 i.e. scale No. 11, although the minimum scale fixed fog the State Service Officers was Rs. 660 1600 i.e. Scale No. 17.
Feeling aggrieved by the decision of the State Govt.
the respondents filed a writ petition in the High Court of Calcutta under Article 226 of the constitution for a mandamus to award scale No. 17 of Rs. 660 1600 as admissible to State Service Officers .
During the pendency of the writ petition the Third State Pay Commission submitted its report.
This Commission also rejected their claim of pay scale of Rs. 660 1600, the minimum scale for State service, on the ground that their duties and responsibilities did not justify the higher pay scale.
By its judgment dated 28th June, 1989, a Division Bench of the High Court allowed the writ petition and awarded revised scale No. 17 by holding that the Government had acted arbitrarily and in violation of Articles 14 and 16 of the Constitution in not awarding scale No. 17 to the Sub Registrars.
The High Court based its decision on the facts that (i) the post of Sub Registrar was a gazetted post belonging to the State Service; (ii) the first State Pay Commission recommended a higher pay scale which was turned down by Finance; and (iii) the revised educational qualification for Sub Registrar, a law degree, was the same as required for Munsiffs.
Subsequently the respondents filed an application for interim relief seeking permission to exercise option for the corresponding scale No. 17 of Rs. 2200 4000 equivalent to the old scale of Rs. 660 1600 which was allowed by the High Court by its order dated 16th March, 1990.
They also filed an application seeking clarification of the Court 's order dated March 16, 1990 and by its order dated 30th March, 1990 the High Court permitted the officers belonging to the posts above the level of Sub Registrars to opt for corresponding scales Nos. 18 and 19. 899 In appeals to this court against the judgment of the High Court dated 28th June, 1989 and orders dates 16th and 19th March, 1990 it was contended on behalf of the appellant that (i) the High Court committed a serious error in revising the pay scale of sub Registrars in exercise of its extraordinary jurisdiction under Article 226 of the Constitution because pay fixation was essentially an executive function ordinarily undertaken by an expert body like a Pay Commission whose recommendations are not justiciable; (ii) there being no scheme as `Constituted State Service ' the employees have been categorised as Group `A ', `B ', `C ', and `D ' on the basis of evaluation of their work and the recruitment policy.
For examination purposes the State Public Service Commission has placed the Sub Registrars in Group `D ' whereas those in scale No. 17 fall in Group `A '.
Therefore, they are not comparable and cannot be placed in same pay scale.
On behalf of the respondents it was contended that since after 1981 the qualification of a degree in law, as required in the case of Munsiffs, was also added to their eligibility criterion, they should be equated with Munsiffs in the matter of pay scale.
Allowing the appeals and setting aside the orders of the High Court, this Court, HELD : 1.
The High Court committed a serious error in law in holding that the Government 's action in not granting the scale No. 17 to Sub Registrars was violative of Article 14 of the Constitution.
[915G] 2.
Equation of posts and determination of pay scales is the primary function of the executive and not the judiciary and, therefore, ordinarily courts will not enter upon the task of job evaluation which is generally left to expert bodies like the Pay Commissions etc.
But that is not to say that the Court has no jurisdiction and the aggrieved employees have no remedy if they are unjustly treated by arbitrary state action or inaction.
[912E F] Parbat Kiran Maithani & Ors.
vs Union of India & Anr.
, ; ; State of U.P. & Ors.
vs J.P. Chaurasia & Ors., ; , cited.
Ordinarily a pay structure is evolved keeping in mind several factors, e.g. (i) method of recruitment, (ii) level at which recruitment is made, (iii) the hierarchy of service in a given cadre, (iv) minimum educa 900 tion/technical qualifications required, (v) avenues of promotion, (vi) the nature of duties and responsibilities, (vii) the horizontal and verticle relativities with similar jobs, (viii) public dealings, (ix) satisfaction level; (x) employers ' capacity to pay etc.
These factors have to be kept in view while evolving a pay structure and the horizontal and verticle relativities have to be carefully balanced keeping in mind the hierarchial arrangements, avenues for promotion etc.
Such a carefully evolved pay structure ought not to be ordinarily disturbed as it may upset the balance and cause avoidable ripples in other cadres as well.
[913C E] 4.
One of the basic principles for pay fixation is that the salary must reflect the nature of duties and responsibilities attached to the post, meaning thereby that the pay scale must be commensurate with the task to be performed and the responsibility to be undertaken by the holder of the post.
Merely because the Sub Registrars were conferred gazetted status and the Registration Service was included in State Service did not entitle the Sub Registrars to be placed in the higher scale if their duties and responsibilities did not justify the same.
By conferment of gazetted status or placement in State Service, no qualitative change was brought about in the job performance of the Sub Registrars and their superiors.
[914E G] 4.1 The High Court failed to evaluate the difference in the nature of duties and responsibilities of a Munsiff and a Sub Registrar.
The duties and responsibilities of a Munsiff and a Judicial Magistrate are far more onerous than those of a Sub Registrar.
The Sub Registrar 's duties are relatively simple namely to receive, examine and register the document whereas the duties of a Judicial Officer at the floor level are to hear cases, examine witnesses, interpret and construe different laws, hear oral arguments and deliver reasoned judgments.
He has to keep abreast with a host of laws unlike a Sub Registrar who is expected to study only a couple of laws connected with the registration of documents like the Registration Act, the Stamp Act etc.
The responsibilities of a Judicial Officer are therefore far greater than those of Sub Registrars.
Therefore, to compare the Sub Registrars with Judicial Magistrates Munsiffs is to compare unequals.
It would, therefore, be wholly arbitrary to place them in the same pay scale.
[915D g] 5.
One of the inputs for pay determination is educational requirement for the post.
The higher the educational qualification the better 901 would be the quality of service rendered and the end result would in the ultimate be far more satisfactory.
That indeed cannot be disputed.
But educational qualification is only one of the many factors which has relevance to pay fixation.
The complexity of the job to be performed and the responsibilities attached thereto are entitled to great weight in determining the appropriate pay scale for the job.
Prima facie there appears substance in the grievance of the Sub Registrars that while the minimum educational qualification for direct entry into the post has been periodically raised, the level of pay scale, for the post has not undergone any change, whatsoever.
[916A C] 6.
The State Government is directed to re examine the question of the appropriate pay scale for Sub Registrars by a speaking order after hearing the representatives of the respondent association.
If the State Government decides on the upward revision of the salary of the Sub Registrars, it will simultaneously consider the question of upward revision of the pay scales of higher posts in the department.
[916E F] </s> |
Subsets and Splits