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<s>[INST] Summarize the judgementl Appeals Nos.
2480 to 2509 2543 to 2546, 2547 to 2553, 2559, 2575, 2576 and 2602 of 1966, 214 to 217, 672 to 674, 1053, 1054, 1055, 1062, 1063,.
1457 and 1458 of 1967, and 162, 672 ' 673 and 1000 of 1968.
Appeals from the judgments and orders dated June 24, 1966 and July 20, 1966 of the Madras High Court in Writ Petitions Nos.
1542 of 1965 etc.
V. Vedantachari, K. C. Rajappa, section Bala krishnanand N. M. Ghatate, for the appellants (in C.As.
2480 2482, 2484 2509, 2575 and 2576, of 1966).
V. Vendantachari and section Balakrishnan, for the appellants (in C.As.
Nos. 2543, 2544 and 2546 of 1966).
section Balakrishnan and N. M. Ghatate, for the appellant (in C.A. No. 2545 of 1966).
section V. Gupte and K. Jaram, for the appellants (in C.A. Nos. 2547 to 2553 and 2559 of 1966).
792 K. Parasaran, K. R. Chaudhuri and K. Rajendra Chaudhuri, for the appellants (in C.As.
2602 of 1966, 214 to 217 and 1055 of 1967).
M. section K. Sastri section Gopalan and M. section Narasimhan, for the appellants (in C.As.
672 to 674 of 1967).
M. section Narasimhan, for the appellants (in C.As.
1053 and 1054 of 1967).
A. V. V. Nair, for the appellants (in C.As.
Nos. 1062 and 1063 of 1967).
V. Vedantachart, A. T. M. Sampath and E. C. Agarwala, for the appellants (in C.As.
14517 and 1458 of 1967).
P. C. Bhartari, for the appellant (in C.A. No. 162 of 1968).
K. Jayaram, for R. Thiagarajan for the appellants (in C.As.
Nos. 672, 673 and 1000 of 1968 and 2483 of 1966).
section Mahan Kumaramangalam and A., V. Rangarm, for the respondent State of Madras in, all the appeals).
R. Kunchitapadam, Vineet Kumar and K. Jayaram, for respondent No. 2 (in C.A. No. 2484 of 1966).
M. K. Ramamurthy, J. Ramamurthy and Vineet Kumar, for respondent No. 2 (in C.As.
2488 to 2490 of 1966).
The Judgment of the Court was delivered by Hegde, J.
In this batch of appeals, the validity of the Mad ras Inam Estates (Abolition and Conversion Into Ryotwari) Act, 1963 (Madras Act 26 of 1963); the Madras Lease Holds (Abolition and.
Conversion into Ryotwari) Act, 1963 (Madras Act 27 of 19 63) and the Madras Minor Inams (Abolition and Conversion Into Ryotwari) Act, 1963 (Madras Act 30 of 1963) is challenged on the ground that the material provisions in those Acts are violative of articles 14, 19(1)(f) and 31 of the Constitution.
The provisions in these Acts reducing the tenants" liability to pay the arrears of rent are also challenged on the ground that the legislature had no competence to enact 'those provisions.
A few other minor contentions are also raised in these appeals to which reference will be made in the course of the judgment.
All these contentions had been unsuccessfully urged before the High Court.
Dealing with the allegation of infringement of articles 14, 19 and 31, the High Court in addition to holding that there has been no infringement of those Articles has further held that the challenge to the validity of these Acts on the basis of those 793 articles is precluded in view of article 31 (A).
Dealing with the contention relating to the reduction of rent the High Court came to the conclusion that the legislature had power to enact the impugned provisions.
The High Court also has given reasons for rejecting the other contentions advanced before it.
Aggrieved by the decision of the High Court these appeals have been brought by special leave.
The impugned statues deal with agrarian reforms.
They purport to deal with Inam lands.
It is profitless to go to the origin of Inams or about their early history.
Suffice it to say that the Urdu word "Inam" means a gift.
The Inams, rants were made by the Rulers for various purposes.
Some of them were granted to institutions and some to individuals.
Broadly speaking there were three types of Inams The first type consisted of the grant of the melwaram right alone.
The second category consisted of the grant of both the melwaram as well as the kudivaram right.
In addition to these two Inams, there were what are known "as Minor Inams.
Sometime prior to 1862, the Government took up the question of enfranchising the Inams.
The Inams Commissioner went into the rights of various persons claiming to be Inamdars.
Thereafter the Madras Enfranchised Inams Act '.
1862 (Madras Act 47 of 1862) was passed for declaring and confirming the title of the Inamdars.
Section 2 of that Act provided that the title deeds issued by the Inams Commissioner or an authenticated extracted from the register of the Commissioner or Collector shall be deemed sufficient proof of the enfranchisement of land previously hold on Inam tenure.
By Madras Inams (Assessment) Act, 1956 (Madras Act 40 of 1 95 6), full assessment was levied on 'all Inam lands except Warm inams granted on service tenure, without affecting in any way the rights as between the Inamdar and other, persons, if any, in possession or enjoyment of the Inam land.
Where the Inam comprised the entire villa e, the same was treated as an "estate" in the Madras Proprietary Estates ' Village Service Act, 1894 (Madras Act 2 of 1894) and the Madras Hereditary Village Offices Act, 1895 (Madras Act 3 of 1895) as well as in Madras Estate Land Act, 1908 (Madras Act 1 of 1908).
Mdras Estates Land Act, 1908 recognised the ryots ' permanent tenure.
That Act secured a permanent right of occupancy to every ryot who at the commencement, was in possession of "ryoti" I and or who was subsequently admitted to the possession of such land.
Then came the Madras Estate Land (Third Amendment Act, 1936 (Madras Act 18 of 1936).
That Act amplified the definition of the "estate" in the Madras Estate Land Act, 1908, so as to bring within its scope A, Inam villages, of 794 which the grant was made, confirmed or recognised by the Government.
It also provided that when a question arises whether any land was the land holder 's private land or not, the land should be presumed not to be Inamdar 's private land until the contrary was proved.
In 1937, the Madras Government appointed the, Prakasam Committee to enquire into and report the conditions which prevailed in the Zamindari and other proprietary areas in the State.
That committee submitted its report together with a draft bill on the lines of its recommendations, but no action was taken on that report as the Congress Ministry which appointed it resigned.
Then we come to the Madras Estates (Abolition and Conversion Into Ryotwari) Act, 1948 (Madras Act 26 of 1948).
This Act applies to all estates i.e. Zamindari and under tenure estates and all Inam villages in which the grant consisted of melwaram alone.
That Act as its preamble says is an Act to provide for the repeal of the permanent settlement, the acquisition of the rights of landholders in permanently settled and certain other estates in the Province of Madras and the introduction of the ryotwari settlement in such estates.
To complete the agrarian reform initiated by this Act, the impugned Acts appears to have been enacted.
The Preamble to Madras Act 26 of 1963 says that it is an Act to provide for the acquisition of all rights of landholders in Inam estates in the State of Madras and the introduction of the ryotwari settlement in such estates.
That Act follows by and large the provisions in Act 26 of 1948.
In Act 26 of 1963 Inams estates are divided into two categories namely (1) existing Inam estate and (2) a new Inam estate.
The existing Inam estate refers to the estate consisting of the whole village and the new Inam estate means a part village Inam estate of Pudukkottai Inam estate.
The "New Inam estate" was not an estate known to law earlier.
It is merely a name given to part village Inam estate a Pudukkottai Inam estate for drafting convenience.
Act 27 of 1963 is an Act to provide for the termination of the leases of certain lease holds granted by the Government, the acquisition of the rights of the lessees in such lease holds, and the introduction of the ryotwari settlement in such leaseholds.
Act 30 of 1963 is an Act to provide for the acquisition of the rights of the Inamdars in minor Inams and the introduction of the ryotwari settlement in such Inams.
We do not think it necessary to go into the contention that one or more provisions of the impugned Acts are violative of articles 14, 19 and 31 as in our.
opinion these Acts are completely protected by article 31 '(A) of the Constitution which says that "Notwithstanding anything contained in article 13, no law providing for 7 95 (a) the acquisition by the State of any estate or of any rights therein or the extinguishment or modification of any such rights. . shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by article 14, article 1 9 or article 3 1.
" The expression "estate" is defined in sub article
(2) of Art31 (A).
That definition includes not merely Inams but also land held under ryotwari settlement as well as land held or let for the purpose of agriculture or for purposes ancillary thereto, including(, waste land, forest land, land for pastures or site or buildings, and other structures occupied by the cultivators of land, agricultures and village artisans.
The impugned Acts are laws providing for the acquisition by the State of an "estate" as contemplated ' by article 31 (A).
They seek to abolish all intermediate holders and 'to establish direct relationship between the Government and the occupants of the concerned lands.
These legislations were undertaken as a part of agrarian reforms.
Hence the provisions relating to acquisition or the extinguishment of the rights of the intermediate holders fall within the protective wings of article 31 (A) see B. Sankara Roo, Badami and ors.
vs State of Mysore and anr.
It is next contended on behalf of the appellants that the lands, on which full assessment was levied under Act 40 of 1956 ceased to be inams and therefore provisions of the Madras Act 26 of 1963 cannot be applied to the same.
We have not thought it necessary to go into the question whether as a result of Madras Act 40 of 1956, certain Inams have ceased to be Inams, as in our opinion, whether they continued to be Inams or not they are still "estate" within the meaning of article 31 (A) because they fall either under sub clauses (1) or (II) or (111) of Clause (a) of article 31 (A) (2) and that being so the provisions of the impugned Acts cannot be challenged on the ground that they infringe articles 14, 19 and 31.
The contention that as the State purported to abolish Inams and not other intermediaries the law cannot be held to be valid if the intermediaries sought to be removed are not Inamdars is an untenable one.
If the impugned legislation can be traced to a valid legislative power, the fact that the legislature wrongly described some of the intermediaries sought to be removed does not make the law invalid.
From the above observations, it should not be understood that we have come to the conclusion that the intermediaries concerned were not Inamdars.
We have not gone into that question.
From the provisions of (1) ; 796 The impugned Acts, it is quite clear that the intention of the legislature was to abolish all intermediaries including the owners of those "estates" that were subjected to full assessment by Act 40 ,of 1956.
It was next urged that article 31(A) does not protect a legis lation where no compensation whatsoever has been provided for taking the "estates".
We do not think we need go into that question.
This contention bears only on the provisions of the Madras Act 26 of 1963.
Section 18 of that Act provides that compensation shall be determined for each Inam as a whole and not separately for each of the interests in the Inams.
The validity of this section was not challenged before us.
All that was urged was that for some of the pro reties included in the Inam, no compensation was provided.
Even if we assume this contention to be correct, it cannot be as that no compensation was provided for the acquisition of the lnam as a whole.
Hence article 31(A) bars the plea that there was contravention of article 31(2) in making the acquisition in question.
One of the contentions taken on behalf of the appellants that the impugned Acts to the extent they purport to acquire mining lands are outside the purview of article 31 (A).
It is not known whether the lands in which mining operations are going on were let or held as "estates".
There is also no evidence to show that the owners of those lands were entitled to the mines.
Hence, it is not possible to uphold the contention that lands concerned in some of the appeals have been acquired without paying compensation.
In order to avoid the bar of article 3 1 (A), a curious plea was put forward.
It was urged that when the concerned bills were submitted to the President for his assent as required by the first proviso to article 31 (A), the President was not made aware of the implications of the bills.
This contention is a wholly untenable one.
There is no material before us from which we could conclude that the President or his advisers were unaware of the implications of those 'bills.
We must proceed on the basis that the President had given his assent to those bills after duly considering the implication of the provisions contained therein.
it was next urged that the provisions in the impugned Acts reducing the liability of the tenants in the matter of payment of the arrears of rent, whether decreed or not was beyond the legislative competence of the State legislature.
This contention is agairt untenable.
Those attears are either affairs of rent or debts due from agriculturists.
It they are treated as affears of rent then the State legislature had legislative power to legislate in respect of the same under Entry 18 of List II of the VIIth Schedule.
If they are considered as debts due from agriculturists then the 797 State legislature had competence to legislate in respect of the same under Entry 30 of the same list.
In regard to the Inams belonging to the religious and chari table institutions, the impugned Acts do not provide for payment of compensation in a lumpsum but on the other hand provision is made to pay them a portion of the compensation every year as Tasdik.
This is only a mode of payment of the compensation.
That mode was evidently adopted in the interest of the concerned institutions.
We are unable to agree that the method is violative of article 31(2).
At any rate that provision is protected by article 31 A. It was next urged that by acquiring the properties belonging to religious denominations the legislature violated article 26 (c) and (d) which provide that religious denominations shall have the right to own and acquire movable and immovable property and administer such property in accordance with law.
These provisions do not take away the right of the State to acquire property belonging to religious deuomintions.
Those denominations can own acquire properties and administer them in accordance with law.
That does not mean that the property owned by them cannot be acquired.
As a result of acquisition they cease to own that property.
Thereafter their right to administer that property ceases because it is no longer their property.
article 26 does not interfere with the ' right of the State to acquire property.
Mr. section V. Gupte appearing for some of the appellants urged that the Impugned Act contravenes the second proviso to article 31(A).
From the material before us it is not possible to hold that any property under the personal cultivation of any of the appellants had been acquired.
Further there is no material to show what the ceiling is.
Hence it is not possible for us to examine the correctness of that contention.
If in any particular case, the second proviso to article 31 (A) has been breached, then to that extent, the acquisition will become invalid.
It was urged by Mr. Sastri appearing for some of the appel lants that the impugned Acts do not acquire the lands concerned in some of the appeals.
This contention was not 'gone into by the High Court.
Dealing with that contention, the High Court in its judgment observed : "But the applicability of the impugned Acts to the Inams in question cannot be conveniently investigated in the present writ proceedings.
The question will have to be determined with reference to the terms of the 798 grant, the extent of the grant has to be ascertained by reference to the relevant materials.
Section 5 of Madras Act, XXXI of 1963 (XXX of 1963 ?) makes special provision for determination of the question whether any non ryotwari area is or is (not an 'existing Inam Estate 'or ' part village Inam Estate ' or a minor Inam or whole Inam village in Pudukkottai.
It is stated at the bar that in most of the cases now 'before us the parties have applied under the provisions of the said Act for determination of the character of the Inams respectively held 'by them.
It, is needless to point out that the Tribunal constituted under the Act will be entitled to decide that a particular property is neither an existing Inam estate ' nor a part village Inam estate nor a whole inam village in Puddukkottai and completely out of the coverage of Acts XXVI and XXX of 1963.
We a1so make it clear that the disposal of these writ petitions now does not preclude the Inamdars from agitating The question that a particular property is not an Inam at all and does not under any of the aforesaid four categories or falls under one or other of the categories as may be urged for the inamdars.
" We agree with the High Court that the contention in question can be more appropriately gone into in the manner suggested by the High Court.
In the result these appeals fail and they are dismissed.
But ,under the circumstances; we make no order as to costs in these appeals.
[/INST]Surinder Kumar and Virender Kumar (defendants in the suit) purchased on May 9, 1958 a plot of land in District Gurgaon.
On January 9, 1959 the plaintiffs filed a suit in the Civil Court to pre empt the sale.
On November 16, 1961 the Government of Punjab issued in exercise of the power conferred by section 8(2) of the Punjab Pre emption Act, 1913, a notification declaring "that no right of pre emption shall exist with respect to urban of village immovable property or agricultural land when purchased by any person for setting up or expansion of any industry in the State with the permission of the Director of Industries, Punjab.
" By order dated February 16.
1962 the Civil Court passed a decree for preemption conditionally on payment of the amount for which the property was sold.
The Civil Court found that the defendants had failed to establish that they intended to establish a factory on the land in question.
The defendants appealed to the Court of the Senior Subordinate Judge against the decree of the Trial Court.
Thereafter the Government of Punjab issued another notification on September 3,1962, that the Governor of Punjab was pleased to order that "no right of pre emption shall exist with respect to the sale of land, described in the Schedule to this Notification made on the 9th May, 1958, in favour of Messrs. Surinder Kumar and Virender Kumar, opposite Railway Station, Faridabad for the establishment of a factory for manufacture of cork products".
In the Schedule was described the property aforesaid purchased by the defendants.
The plaintiffs then moved a petition in the High Court chal lenging the validity of the Notification dated September 3, 1962 among others On the ground that in issuing the order the Government acted mala fide.
The High Court held that the notification extinguishing the right of pre emption in the property,issued during the pendency of the appeal did not disentitle the plaintiffs to maintain their claim of preemption already exercised and in respect of which a decree was granted to them.
The notification dated September 3, 1962 was held to have been issued mala fide and on that account invalid though section 8(2) of the Punjab Act 1 of 1913 was held not offend article 14 of the Constitution.
With special leave the State of Punjab appealed to this Court, HELD : The High Court rightly held on the facts that the impugned notification was issued mala fide.
The plaintiffs who claimed that they bad a right to pre empt the sale filed a suit against the defendants and obtained a decree.
On the finding of the High Court it was clear that except disclosing that the defendants intended to construct a factory, nothing more was said.
The State Government still proceeded to exclude from the operation of the Act the land so as to defeat the right of preemption exercised by the plaintiffs in respect of which a decree was passed 551 by the Civil Court.
The State Government had not in their affidavit satisfactorily explained the circumstances in which the order was passed.
The conclusion of the High Court was borne out by the evidence and no ground was made out calling for interference in this appeal by special leave.
[554 E; 556 B C] The contention on behalf of the State that the party alleging that the action of the State was not bona fide must name the officer or officers guilty of conduct which justifies an inference that the official act was done for a collateral purpose, could not be accepted.
It would be placing an intolerable burden of proof of a just claim to require a party alleging mala fides of State action to aver in his petition and to prove by positive evidence that a particular officer was responsible for misusing the authority of the State by taking action for a collateral purpose.
[5.55 F H] [The impugned notification having been held invalid the question whether section 8(2) of the Punjab Pre emption Act was ultra vires article 14 of the Constitution did not survive for consideration.] [553 B]
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<s>[INST] Summarize the judgementiminal Appeals Nos. 67, 136 and 172 of 1959 and 82 and 83 of 1962.
Appeals by special leave from the judgment and order dated November 3, 1958 in Criminal Appeals Nos. 196, 256 and 363 of 1958.
B. B. Tawakley and section C. Mazumdar, for the appellant (in Cr. A. No. 67159).
section C. Mazumdar, for the appellant (in Cr. A. No. 136/59).
T. section Venakataraman, for the appellant (in Cr. A. No. 172/59).
381 N. N. Keshwani, for the appellant (in Cr. A. No. 82/62).
C. B. Agarwala, K. L. Misra, Advocate General, U. P. Mangala Prasad Baghari, Shanti Sarup Khanduja, Malik Arjun Das and Ganpat Rai, for the appellant (in Cr. A. No. 83/62).
N. section Bindra, D. R. Prem and R. H. Dhebar, for the respondent in all the Appeals.
March 18.
The judgment of the Court was delivered by SUBBA RAO J.
These appeals by special leave arise out of two judgments of the High Court of Bombay, one that of Vyas and Kotval JJ., dated March 31, 1958, and the other that of Shah and Shelat JJ., dated November 3, 1958, in what, for convenience of reference,, may be described as the Empire Conspiracy Case.
At the outset it would be convenient to state briefly the case of the prosecution.
One Lala Shankarlal, a political leader and Vice President of the Forward Bloc and a highly competent commercial magnate, and his nominees held the controlling block of shares of the Tropical Insurance Company Limited, hereinafter called the "Tropical", and he was the Chairman and Managing Director of the said company.
He had also controlling voice in another company called the Delhi Swadeshi Cooperative Stores Ltd. The said Delhi Stores held a large number of shares of the Tropical.
In or about the middle of 1948, Sardar Sardul Singh Caveeshar, who was controlling the People 's Insurance Co. Ltd. and other concerns in Lahore, and Kaul, a practising barrister, came to Delhi.
During that year the former was the President of the Forward Bloc and Shankarlal was its Vice President.
Shankerlal, 382 Caveeshar and Kaul conceived the idea of purchasing the controlling block of 63,000 shares of the Jupiter Insurance Company Ltd., hereinafter referred to as the " 'Jupiter", a prosperous company, in the name of the Tropical from the Khaitan Group which was holding the said Jupiter shares.
But the financial position of the Tropical did not permit the said purchase and so they thought of a fraudulent device of purchasing the said Jupiter shares out of the funds of the Jupiter itself.
Under an agreement entered into with the Khaitan Group, the out of the 63,000 shares of the Jupiter was fixed at Rs. 33,39,000/ , and the purchasers agreed to pay Rs. 5,00,000/ in advance as " 'black money" and the balance of Rs. 28,39,000/ , representing the actual price on paper, within January 20, 1949, i. e., after the purchasers got control of the Jupiter.
After the purchase, Shankarlal Group took charge of the Jupiter as its Directors after following the necessary formalities, sold the securities of the Jupiter for the required amount,and paid the balance of the purchase money to the Khaitan Group within the prescribed time.
In order to cover up this fraud various manipulations were made in the relevant account books of the Jupiter.
There would be an audit before the end of the year and there was every likelihood of detection of their fraud.
It, therefore, became necessary for them to evolve a scheme which would bring in money to cover the said fraud perpetuated by the Directors of the.
Jupiter in the acquisition of its 63,000 controlling shares.
For that purpose, Shankarlal and his group conceived the idea of purchasing the controlling interest in another insurance company so that the funds of that company might be utilized to cover up the Jupiter fraud.
With that object, in or about September 1949, Shankarlal and 9 of his friends entered into a conspiracy to lift the funds of the Empire of India Life Assurance Company Ltd., hereinafter referred to as the "Empire", to cover up the Jupiter 383 fraud.
This they intended to do by purchasing the controlling shares of the Empire, by some of them becoming its Directors and Secretary, and by utilizing the funds of the Empire to cover up the defalcations made in the Jupiter.
The following were the members of the conspiracy : (1) Shankarlal, (2) Kaul, (3) Metha, (4) Jhaveri and (5) Doshi all Directors of the Jupiter and (6) Guha, the Secretary of the Jupiter, (7) Ramsharan, the Secretary of the Tropical, (8) Caveeshar, the Managing Director of the People 's Insurance Co., (9) Damodar Swarup, a political worker who was later on appointed as the Managing Director of the Empire.
(10) Subhedar, another political worker, (11) Sayana, a businessman of Bombay, and (12) Bhagwan Swarup, the nephew of Shankarlal and a retired Assistant Commissioner of Income tax of the Patiala State.
After forming the conspiracy, the controlling shares of the Empire were purchased in the name of Damodar Swarup for an approximate sum of Rs. 43,00,000/ .
For that purpose securities of the Jupiter of the value of Rs. 48,75,000/ were withdrawn by the Directors of the Jupiter without a re solution of the Board of Directors to that effect and endorsed in the name of Damodar Swarup again without any resolution of the Board of Directors to that effect.
Damodar Swarup deposited the said securities in the Punjab National Bank Ltd., and opened a Cash credit account in the said Bank in his own name.
He also executed two promissory notes to the said Bank for a sum of Rs. 10,00,000/ and Rs. 43,00,000/ respectively.
Having opened the said account, Damodar Swarup drew from the said account by means of cheques a sum of Rs. 43,00,000/ and paid the same towards the purchase of the said Empire shares.
Out of the said shares of the Empire, qualifying shares of twenty were transferred in each of the names of Damodar Swarup, Subhedar and Sayana, and by necessary resolutions Damodar Swarup became the Managing 384 Director and Chairman of the Empire and the other two, its Directors, and Bhagwan Swarup was appointed its Secretary.
The conspirators having thus taken control of the Empire through some of them, lifted large amounts of the Empire to the tune of Rs. 62,49,700/ by bogus sale and loans, and with the said amount they not only recouped the amounts paid out of the Jupiter for the purchase of its controlling shares and also the large amounts paid for the purchase of the controlling shares of the Empire.
After the conspiracy was discovered, in due course the following ten of the said conspirators, i. e., all the conspirators excluding Shankarlal and another, who died pending the investigation, were brought to trial before the Court of the Sessions judge for Greater Bombay under section 120 B of the Indian Penal Code and also each one of them separately under section 409, read with section 109, of the said Code : (1) Kaul,(2) Metha, (3) Jhaveri, (4) Guha, (5) Ramsbaran,(6) Caveeshar, (7) Damodar Swarup, (8) Subhedar, (9) Sayana, and (10) Bhagwan Swarup.
The gravemen of the charge against them was that they, along with Shankarlal and Doshi, both of them deceased, entered into a criminal conspiracy at Bombay and elsewhere between or about the period from September 20, 1950 to December 31, 1950 to commit or cause to be committed criminal breach of trust in respect of Government securities or proceeds thereof or the funds of the Empire of India Life Assurance Co. Ltd., Bombay, by acquiring its management and control and dominion over the said property in the way of business as Directors, Agents or Attorneys of the said Company.
The details of the other charges need not be given as the accused were acquitted in respect thereof.
Learned Sessions judge made an elaborate enquiry, considered the innumerable documents filed and the oral evidence adduced in the case and came to the conclusion that Accused 1, 2, 4, 5, 6 and 10 385 were guilty of the offence under section 120 B, read with section 409 of the Indian Penal Code and sentenced them to various term of imprisonment.
Accused 6, i. e., Caveeshar, was sentenced to suffer rigorous imprisonment for 5 years, and accused 10, i. e., Bhagwan Swarup, to rigorous imprisonment for a period of 5 ears and also to pay a fine of Rs. 2,000/ and in default to suffer rigorous imprisonment for a further period of six months.
He acquitted accused 3, 7, 8 and 9.
The State preferred an appeal to the High Court against that part of the '. judgment of the learned Sessions judge acquitting some of the accused; and the convicted accused filed appeals against their convictions.
The appeal filed by Caveeshar, Accused 6, was dismissed in limine by the High Court.
The appeals filed by 'the other convicted accused against their convictions were dismissed and the appeal by the State against the acquittal of some of the accused was allowed by the High Court.
Accused 7 was sentenced to 5 years ' rigorous imprisonment, accused 8 to 3 years ' rigorous imprisonment and accused 9 to 3 years rigorous imprisonment.
Accused 6, 7, 8, 9 and 10 have, by special leave, preferred these appeals against their convictions and sentences.
We are not concerned with the other accused as some of them died and others did not choose to file appeals.
At the outset it may be stated that none of the learned counsel appearing for the accused questioned the factum of conspiracy; nor did they canvass the correctness of the findings of the Courts below that the funds of the Empire were utilized to cover up the fraud committed in the Jupiter, but on behalf of each of the appellants a serious attempt was made to exculpate him from the offence.
But, as the defalcations made in the finances of the Jupiter and the 386 mode adopted to lift the funds of the Empire and transfer them to the coffers of the Jupiter will have some impact on the question of the culpability of the appellants, we shall briefly notice the modus operandi of the scheme of conspiracy and the financial adjustments made pursuant thereto.
We have already referred to the fact that Shankarlal Group purchased the controlling shares of the Jupiter from Khaitan Group and that as a consideration for the said purchase the former agreed to pay the latter Rs. 5,00,000/ as "black money" and pay the balance of about Rs. 28,39,000/ on or before January ' IO, 1949.
After Shankarlal Group became the Directors of the Jupiter, they paid the said amount from and out of the funds of the Jupiter.
To cover up that fraud, on January 11, 1949, the Directors passed a resolution granting a loan of Rs. 25,15,000/ to Accused 6, on the basis of an application made by him, on equitable mortgage of his properties in Delhi : (see exhibit Z 22).
They passed another resolution sanctioning the purchase of plots of the Delhi Stores, a concern of Shankarlal, for a sum of Rs. 2,60,000/ .
It is in evidence that Accused 6 had no property in Delhi and that the said plots were not owned by the Delhi Stores.
The said loan and the sale price of the plots covered by the said resolutions were really intended for drawing the money of the Jupiter for paying the Khaitan Group before January 20,194 9.
But some shareholders got scent of the alleged fraud and issued notices; and the Directors were also afraid of detection of their fraud by the auditors during their inspection at the close of the year 1949.
It, therefore, became necessary to show in the accounts of the Jupiter that the loan alleged to have been advanced to Accused 6 was paid off.
For this purpose the Directors brought into existence the following four transanctions : (1) a loan of Rs. 5,00,000/ advanced to Raghavji on November 5, 1949; (2) a loan of 387 Rs. 5,30,000/ to Misri Devi on December 12, 1949; (3) a fresh loan of Rs. 5,30,000/ to Caveeshar, Accused 6 on November 5, 1949; and (4) a transactions of purchase of 54,000 shares of the Tropical for Rs. 14,00,000/ on May 25, 1949 and December 20, 1949.
These four ficticious transa ction were brought about to show the discharge of the loan advanced to Caveeshar, Accused 6.
Further manipulations were made in the accounts showing that parts of the loans due from Raghavji, Misri Devi and Caveeshar and also the price of the Tropical shares were paid by Caveeshar.
These paper entries did not satisfy the auditors and they insisted upon further scrutiny.
It is the case of the prosecution that Shankarlal and his co conspirators following their usual pattern conceived the idea of getting the controlling interest of the Empire, which had a reserve of Rs. 9 crores.
Jupiter securities worth about Rs. 45,00,000/ were endorsed in favour of Accused 7, who in his turn endorsed them in favour of the Punjab National Bank Ltd., for the purpose of opening a cash credit account therein.
On October 5, 1950, under exhibit Z 9, the controlling shares of the Empire were purchased from Ramsharan Group and the consideration therefor was paid from and out of the money raised on the Jupiter securities.
The Directors of the Jupiter had to make good to the Company not only the amounts paid out of the jupiter funds to purchase the controlling shares of the Jupiter, in regard to which various manipulations were made in the Jupiter accounts, but also about Rs. 45,00,000/worth of securities transferred in the name of Damodar Swarup.
Having purchased the controlling shares of the Empire, Shankarlal and his colleagues got their nominees.
, namely, Accused 7, 8 and 9 as Directors and Accused 10 as the Secre tary of the Empire.
On November 27, 1950, a resolution of the Directors of the Empire sanctioned the purchase of Rs. 20,00,000/ worth of Government 388 Securities alleged to belong to the Jupiter.
Though the securities were not delivered, two bearer cheques dated October 26, 1950 and October 27, 1950 for Rs. 15,00,000/ and Rs. 5,00,000/ respectively were made out and cashed and the said moneys were utilized to cancel the loan alleged to have been advanced to Raghavji and for the purchase of the Tropical shares for Rs. 1,4,00,000/ .
But the conspirators had still to make good the securities transferred in favour of Accused 7 and other amounts.
The Directors again sanctioned 12 loans, the first six on November 27, 1950 totalling Rs. 28,20,000/ and the other six on December 18, 1950 totalling Rs. 42,80,000/ admittedly to fictitious loanees.
12 bearer cheques for an aggregate of Rs. 71,00,000/ were issued by Accused 10 between December 19 and 23, 1950.
This amount was utilized for getting 5 drafts for different amounts in favour of Accused 1 and 2, the Directors of the Jupiter, Accused 4, its Secretary, and Accused 5, the Secretary of the Tropical (see exhibit Z 230).
The said drafts were sent to Bombay and one of the said drafts was utilized for paying off the loan of Misri Devi and the other Drafts for Rs. 57,00,000/ were paid into the Jupiter account in the Punjab National Bank Ltd., Bombay.
This amount was utilized to cover up the loss incurred by the Jupiter by reason of its securities worth about Rs. 45,00,000/ assigned in favour of Accused 7 and also by reason of the securities worth Rs. 20,00,000/ alleged to have been sold to the Empire on November 27, 1950.
It is, therefore, manifest, and indeed it is not disputed before us now, that Shankarlal and his co conspirators, whoever they may be, had conspired together and lifted large amounts of the Empire and put them into the Jupiter coffers to cover up the loss caused to it by their fraud.
Therefore in these appeals we proceed on the basis that there was a conspiracy as aforesaid and the only question for consideration is whether all or some of the appellants were parties to it.
389 Before dealing with the individual cases, as some argument was made in regard to the nature of the evidence that should be adduced to sustain the case of conspiracy, it will be convenient to make at this stage some observations thereon.
Section 120 A of the Indian Penal Code defines the offence of criminal conspiracy thus "When two or more persons agree to do, or cause to be done an illegal act, or an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy.
" The essence of conspiracy is, therefore, that there should be an agreement between persons to do one or other of the acts described in the section.
The said agreement may be proved by direct evidence or may be inferred from acts and conduct of the parties.
There is no difference between the mode of proof of the offence of conspiracy and that of any other offence : it can be established by direct evidence or by circumstantial evidence.
But section 10 of the Evidence Act introduces the doctrine of agency and if the conditions laid down therein are satisfied, the acts done by one are admissible against the co conspirators.
The said section reads : "Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to be so conspiring as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it." This section, as the opening words indicate, will come into play only when the Court is satisfied that 390 there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, that is to say, there should be a prima facie evidence that a person was a party to the conspiracy before his acts can be used against his co conspirators.
Once such a reasonable ground exists, anything said, done or written by one of the conspirators in reference to the common intention, after the said intention was entertained, is relevant against the others, not only for the purpose of proving the existence of the conspiracy but also for proving that the other person was a party to it.
The evidentiary value of the said acts is limited by two circumstances, namely, that the acts shall be in reference to their common intention and in respect of a period after such intention was entertained by any one of them.
The expression " 'in reference to their common intention" is very comprehensive and it appears to have been designedly used to give it a wider scope than the words "in furtherance of" in the English law ; with the result, anything said, done or written by a coconspirator, after the conspiracy was formed, will be evidence against the other before he entered the field of conspiracy or after he left it.
Another important limitation implicit in the language is indicated by the expressed scope of its relevancy.
Anything so said, done or written is a relevant fact only "as against each of the persons believed to be so conspiring as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it.
It can only be used for the purpose of proving the existence of the conspiracy or that the other person was a party to it.
It cannot be used in favour of the other party or for the purpose of showing that such a person was not a party to the conspiracy.
In short, the section can be analysed as follows : (1) There shall be a prima facie evidence affording a reasonable ground for a Court to believe that two or more persons are 391 members of a conspiracy ; (2) if the said condition is fulfilled, anything said, done or written by any one of them in reference to their common intention will be evidence against the other; (3) anything said, done or written by him should have been said, done or written by him after the intention was formed by any one of them ; (4) it would also be relevant for the said purpose against another who entered the conspiracy whether it was said, done or written before he entered the conspiracy or after he left it ; and (5) it can only be used against a co conspirator and not in his favour; With this background let us now take the evidence against each of the appellants and the contentions raised for or against him.
But it must be stated that it is not possible to separate each of the accused in the matter of consideration of the evidence, for in a case of conspiracy necessarily there will be common evidence covering the acts of all the accused.
We may, therefore, in dealing with some of the accused, consider also the evidence that will be germane against the other accused.
We shall first take the case of Accused 6, Caveeshar, who is the appellant in Criminal Appeal No. 82 of 1962.
So far as this appellant is concerned the learned Sessions judge found that he was a member of the conspiracy and the High Court confirmed that finding.
It is the Practice,, of this Court not to interfere with concurrent findings of fact even in regular appeals and particularly so in appeals under article 136 of the Constitution.
We would, therefore, approach the appeal of this accused from that perspective.
Learned counsel for this appellant argued before us that the said accused was convicted by the Sessions judge for being a member of the conspiracy in the Jupiter case in respect of his acts pertaining 392 to that conspiracy and therefore he could not be convicted over again in the present case on the basis of the facts on which the earlier conviction was founded; in other words, it is said that he was convicted in the present trial for the same offence in respect of which he had already been convicted in the Jupiter case and such a conviction would infringe his fundamental right under article 20 (2) of the Constitution, and in support of this contention reference was made to certain decisions of the Supreme Court of the United States of America.
The said Article reads : "No person shall be prosecuted and punished for the same offence more than once." The previous case in which this accused was convicted was in regard to a conspiracy to commit criminal breach of trust in respect of the funds of the Jupiter and that case was finally disposed of by this Court in Sardul Singh Caveeshar vs State of Bombay (1).
Therein it was found that Caveeshar was a party to the conspiracy and also a party to the fraudulent transactions entered into by the Jupiter in his favour.
The present case relates to a different conspiracy altogether.
The conspiracy in question was to lift the funds of the Empire, though its object was to cover up the fraud committed in respect of the Jupiter.
Therefore.
, it may be that the defalcations made in Jupiter may afford a motive for the new conspiracy, but the two offences are distinct ones.
Some accused may be common to both of them some of the facts proved to establish the Jupiter conspiracy may also have to be proved to support the motive for the second conspiracy.
The question is whether that in itself would be sufficient to make the two conspiracies the one and the same offence.
Learned counsel suggests that the question raised involves the interpretation of a provision of the Constitution and therefore the appeal of this accused (1) [1958] section C. R. 161.
393 will have to be referred to a Bench consisting of not less than 5 judges.
Under article 145 (3) of the Constitution only a case involving a substantial question of law as to the interpretation of the Constitution shall be heard by a Bench comprising not less than 5 Judges.
This Court held in State of Jammu & Kashmir vs Thakur Ganga Singh (1), that a substantial question of interpretation of a provision of the Constitution cannot arise when the law on the subject has been finally and effectively decided by this Court.
Two decisions of this Court have construed the provisions of article 20 (2) of the Constitution in the context of the expression "same offence." In Leo Roy Frey vs The Superintendent, District Jail, Amritsar (2), proceedings were taken against certain persons in the first instance before the customs authorities under section 167 (8) of the Sea Customs Act and heavy personal penalties were imposed on them.
thereafter, they were charged for an offence under section 120 B of the Indian Penal Code.
This Court held that an offence under section 120 B is not the same offence as that under the Sea Customs Act.
Das C. J., speaking for the Court, observed : "The offence of a conspiracy to commit a crime is a different offence from the crime that is the object of the conspiracy because the conspiracy precedes the commission of the crime and is complete before the crime is attempted or completed, equally the crime attempted or completed does not require the element of conspiracy as one of its ingredients.
They are,therefore, quite separate offences." This Court again considered the scope of the words " 'same offence" in The State of Bombay vs ,section L. Apte (3).
There the respondents were both convicted and sentenced by the Magistrate under section 409 of the Indian Penal Code and section 105 of the Insurance Act.
Dealing with the argument that the (1) [1960] 2 S.C.R.346.
(2) ; , 827, (3)[1961] 3.S.C.R.,107,114.
394 allegations of fact were the same, Rajagopala Ayyangar J., rejecting the contention, observed on behalf of the Court : "To operate as a bar the second prosecution and the consequential punishment thereunder, must be for `the e same offence '.
The crucial requirement, therefore, for attracting the Article is that the offences arc the same i. e., they should be identical.
If, however, the two offences are distinct, then notwithstanding that the allegations of fact in the two complaints might be substantially similar, the benefit of the ban cannot be invoked.
It is, therefore, necessary to analyse and compare not the allegations in the two complaints but the ingredients of the two offences and see whether their identity is made out." This decision lays down that the test to ascertain whether two offences are the same is not the identity of the allegations but the identity of the ingredients of the offences.
In view of the said decisions of this Court, the American decisions cited at the Bar do not call for consideration.
As the question raised has already been decided by this Court, what remains is only the application of the principle laid down to the facts of the present case.
cannot, therefore, hold that the question raised involves a substantial question of law as to the interpretation of the Constitution within the meaning of article 145 (3) of the Constitution.
In the present case, applying the test laid down by this Court, the two conspiracies are not the same offence : the Jupiter conspiracy came to an ' end when its funds were misappropriated.
The Empire conspiracy was hatched subsequently, though its 'Object had an intimate connection with the Jupiter in that the fraud of the Empire was concei.
ved and executed to cover up the fraud of the 395 Jupiter.
The two conspiracies are distinct offences.
It cannot even be said that some of the ingredients of both the conspiracies are the same.
The facts constituting the Jupiter conspiracy are not the ingredients of the offence of the Empire conspiracy,, but only afford a motive for the latter offence.
Motive is not an ingredient of an offence.
The proof of motive helps a Court in coming to a correct conclusion when there is no direct evidence.
Where there is direct evidence for implicating an accused in an offence, the absence of proof of motive is not material.
The ingredients of both the offences are totally different and they do not form the same offence within the meaning of article 20 (2) of the Constitution and, therefore, that Article has no relevance to the present case.
The next question is whether this appellant was a party to the Empire conspiracy.
He was a close associate of Shankarlal in the political field, he being the President of the Forward Bloc and Shankarlal being its Vice President.
That is how they were drawn together.
There is also evidence that out of the 63,000 shares of the Jupiter that were purchased in August, 1949 by Shankarlal Group, 4475 shares were allotted to this appellant.
It is, therefore, clear that Accused 6 though ex facie he was neither a Director nor an office bearer in the Jupiter, had heavy stakes in it.
We have already noticed that after the purchase of the said shares from and out of the Jupiter funds, a bogus loan in the name of Accused 6 for a sum of Rs. 25,15,000/ was shown in the Jupiter accounts and later on it was substituted by other manipulations.
[His Lordship then proceeded to consider the evidence.] x x x x x x x x Both the Courts on the basis of the aforesaid evidence came to the conclusion that Accused 6 was 396 a member of the conspiracy and we cannot say that there is no evidence on which the Courts could have come to the conclusion to which they did.
there are no permissible grounds for upsetting this finding under article 136 of the Constitution.
As regards the sentence passed against this accused, the Sessions Judge sentenced him to undergo rigorous imprisonment for a period of 5 years, whereas he sentenced Accused 7, 8 and 9 to undergo rigorous imprisonment for a period of 3 years only.
We do not see any justification for this distinction between the said accused in the matter of punishment.
Accused6 had already been convicted and sentenced in the Jupiter case; and on the evidence it does not appear that he had taken a major part in the Empire conspiracy, though he was certainly in it.
In the circumstances, we think that a sentence of 3 years ' rigorous imprisonment would equally suffice in his case.
We, therefore, modify the sentence passed on him and sentence him to undergo rigorous imprisonment for 3 years.
Subject to the aforesaid modification, the appeal preferred by Caveeshar, Accused 6, is dismissed.
We shall now proceed to consider the appeal preferred by Damodar Swarup, Accused 7 i. e., Criminal Appeal No. 83 of 1962.
Accused 7 was the Managing Director and Chairman of the Empire during the period of the conspiracy.
On October 17, 1950 he was elected the Chairman of the Board of Directors of the Empire and appointed as Managing Director on a salary of Rs. 2,000/per month for a period of one year.
He was removed from the post of Managing Director at the meeting of the Board of Directors held on March 12, 1951.
The misappropriation of the funds of the Empire, which is the subject matter of the conspiracy, were committed during the period of his Managing Directorship i. e., between 397 September 20 and December 31, 1950.
The prosecution case is that Accused 7 was a party to the conspiracy, whereas the defence version is that he was a benamidar for Shankarlal, that he took part in the proceedings of the Board of Directors bona fide, believing that there was nothing wrong, that the resolutions were implemented by Accused 10 under the directions of Shankarlal and that the moment he had a suspicion that there was some fraud, he took immediate and effective steps not only to prevent the rot but also to investigate and find out the real culprits.
The question is which version is true.
It would be useful to have a correct appreciation of the evidence to know the antecedents of Accused 7.
[His Lordship then proceeded to consider the evidence.] x x x x x x Learned counsel for Accused 7 contends that the following two important circumstances in this case established that Accused 7 was a victim of circumstances and that he was innocent : (1) Two prominent publicmen of this country with whom the accused worked gave evidence that he was a man of integrity; and (2) the accused took active steps to unravel the fraud and to bring to book every guilty person; if he was a conspirator, the argument proceeds, it was incon ceivable that he would have taken such steps, for it would have certainly recoiled on him.
We shall consider these two aspects now.
[His Lordship then proceeded to consider the evidence.] x x x x The question is what is the evidentiary value of good character of an accused in a criminal case.
The relevant provisions are section 53 and the Explanation to section 55 of the evidence Act.
They read : Section 53.
In criminal proceedings the fact 398 that the person accused is of a good character is relevant.
Explaination to 8.
In sections 52, 53, 54 and 55, the word "character" includes both reputation and disposition; but except as provided in section 54, evidence may be given only of general reputation and general disposition, and not of particular acts by which reputation, or disposition were shown.
It is clear from the said provisions that the evidence of general reputation and general disposition is relevant in a criminal proceeding.
Under the Indian Evidence Act, unlike in England, evidence can be given both of general character and general disposition.
Disposition means the inherent qualities of a person; reputation means the general credit of the person amongst the public.
There is a real distinc tion between reputation and disposition.
A man may be reputed to be a good man, but in reality he may have a bad disposition.
The value of evidence as regards disposition of a person depends not only upon the witness 's perspicacity but also on his opportunities to observe the person as well as the said person 's cleverness to hide his real traits.
But a disposition of a man may be made up of many traits, some good and some bad, and only evidence in regard to a particular trait with which the witness is familiar would be of some use.
Wigmore puts the proposition in the following manner : "Whether, when admitted, it should be given weight except in a doubtful case, or whether it may suffice of itself to create a doubt, is a mere question of the weight of evidence, with which the rules of admissibility have no concerned But, in any case, the character evidence is a very weak evidence : it cannot outweigh the positive 399 evidence in regard to the guilt of a person.
It may be useful in doubtful cases to tilt the balance in favour of the accused or it may also afford a background for appreciating his reactions in a given situation.
It must give place to acceptable positive evidence.
The opinion expressed by the witnesses does credit to the accused, but, in our view, in the face of the positive evidence we have already considered, it cannot turn the scale in his favour.
Learned counsel strongly relied upon the subsequent conduct of Accused 7 in support of his innocence.
[His Lordship then proceeded to consider the evidence relating to subsequent Conduct and Considered as follows] x x x x x x x x We, therefore, hold that Accuscd 7 was a party to the conspiracy and that the High Court has rightly convicted him under section 120 B of the Indian Penal Code.
As regards the sentence passed on Accused 7, having regard to the evidence in this case, we think that this accused must be given a comparatively less punishment than his co conspirators, for, though he took part in the conspiracy, at any rate from the end of December, 1950, for one reason or other, he took necessary proceedings to bring to light the fraud.
We, therefore, think that it would meet the ends of justice if the accused was sentenced to rigorous imprisonment for a period of two years.
We accordingly modify the sentence passed on him by the High Court and, subject to the aforesaid modification, we dismiss the appeal preferred by him.
Next we come to Criminal Appeal No. 136 of 1959 preferred by Subhedar, Accused 8.
The defence of this accused is that he acted throughout in good faith and under the guidance of Accused 7, the Managing Director of the Empire, and that he did not know that any fraud was perpetrated in the Empire.
Before joining the Empire he was an 400 insurance agent and, therefore, it cannot be said that he was a stranger to the insurance business and he may be assumed to know how it would be conducted.
On October 16, 1950 twenty qualifying shares of the Empire from among the shares purchased in the name of Accused 7 were transferred in his favour and thereafter at the meeting held on that day he was co opted as a Director.
He is also, therefore, one of the persons brought in by Shankarlal and made a Director for his own purpose.
[His Lordship then proceeded to consider the evidence] x x x x x x We have no doubt that the aforesaid circumstances lead to only one reasonable conclusion that this accused became a Director of the Empire as a member of the conspiracy and helped to put through all the transactions necessary to transfer funds from one Company to the other.
He was rightly convicted by the High Court.
We do not see any reason to interfere with the sentence passed against him.
In the result Criminal Appeal No. 136 of 1959 is dismissed.
Criminal Appeal No. 172 of 1959 is preferred by Sayana, Accused 9.
He was a building contractor before he was appointed a Director of the Empire.
His defence is also that he bona fide acted without knowledge of the conspiracy or the fraud.
He was also one of the Directors inducted into the Company by the transfer of qualifying shares from and out of the shares purchased in the name of Accused 7.
He was co opted as a Director on October 17, 1950 under exhibit Z 206C.
Though he was not present at the meeting of November 27, 1950, he was present at the meeting of December 18, 1950 and, therefore, with the knowledge that six loans amounting to Rs. 28,80,000/ were advanced without scrutiny of the securities, he was a party in sanctioning another six loans totalling to Rs. 42,80,000/ .
He as also a party to the resolution of January 30, 1951 401 sanctioning a bogus loan to the chief of Bagarian.
He was a party to the resolution dated February 9, 1951 when the said loan was confirmed and to the resolution authorizing Accused 9 to operate singly the accounts of the Company.
Evidence considered [omitted] x x x x It is, therefore, clear that he was a creature of Shankarlal, that he was a party to the diversion of the funds of the Empire to the Jupiter and that when Accused 7, for his own reasons, was taking steps to stop the rot, he, along with Accused 8, obstructed him from doing so and wholly supported Accused 10.
The only reasonable hypothesis on the evidence is that he was a party to the conspiracy.
It is said by learned counsel appearing for this accused that his subsequent conduct would not indicate any obstructive attitude on his part but would indicate only his desire to maintain the status quo till the matters improved.
This is a lame explanation, for he, along with the other Directors, opposed every attempt of the scrutiny of the Company 's affairs and this can only be because they were conscious of their part in the fraud.
In this context another argument of learned counsel for Accused 8 and 9 may be noticed.
It is said that the High Court treated the Directors as trustees and proceeded to approach the case from that standpoint inferring criminality from their inaction.
Even assuming that they were not trustees in the technical sense of the term, they certainly stood in a fiduciary relationship with the shareholders.
The High Court 's finding is not based upon any technical relationship between the parties, but on the facts found.
On the facts, including those relating to the conduct of the accused, the High Court drew a reasonable inference of guilt of the accused.
There is sufficient evidence on which the High Court 402 could have reasonably convicted Accused 8 and 9 and in the circumstances, we do not see any case had been made out in an appeal under article 136 of the Constitution to merit our interference.
In the result Criminal Appeal No. 172 of 1959 is dismissed.
Finally we come to Criminal Appeal No. 67 of 1959 preferred by Bhagwan Swarup, Accused 10.
The defence of this accused is that he acted throughout on the directions of Accused 7, 8 and 9, and that as Secretary of the Company, he was bound to follow their directions.
This accused is the nephew of Shankarlal.
He is an M. A., LL.
B. He held the office of Assistant Commissioner of Income tax in Patiala State.
He is the person who carried out the resolutions of the Board of Directors of the Empire through intricate channels to enable the large amounts misappropriated to reach the Jupiter Company.
It is suggested that he was not well disposed of towards Shankarlal and therefore he could not have any knowledge of Shankarlal 's fraudulent motives behind the purchase of the controlling shares of the Empire.
If Shankarlal did not like him lie would not have put him in the key position in the Empire.
Indeed, the will of Shankarlal shows that this accused got the best legacy under it.
He was the connecting thread passing through the web of conspiracy from beginning to end.
Evidence Considered [omitted] x x x x x x x x Learned counsel appearing for this accused Could only argue that the accused was a subordinate of the Directors and that he had followed only loyally the directions given by the Managing Director without any knowledge of the conspiracy.
This argument is an oversimplification of the part taken by Accused 10 in this huge fraud.
Both the Courts below have 403 held, on the aforesaid circumstances and other evidence; that Accused 10 was an active participant in the conspiracy.
In our view, there is ample material to justify it.
In the result Criminal Appeal No. 67 of 1959 is dismissed.
Cr. A. No. 82 of 1962 dismissed.
Sentence modified.
A. No. 83 of 1962 dismissed.
Sentence modified.
A. No. 136 of 1959 dismissed.
Cr. A. No. 172 of 1959 dismissed.
Cr. A. No. 67 of 1959 dismissed.
[/INST]The respondent was appointed a Naib Tehsildar under the appellant, in the year 1937.
On August 4, 1952, he was suspended on complaints received against him and his case was referred for investigation to the Administrative Tribunal appointed under the Rules.
While the proceedings were pending, additional complaints were received by the appellant against his conduct and they were communicated to the Tribunal with an intimation that the appellant proposed to send those further charges against the respondent for enquiry.
The Tribunal did not wait for receipt of the said additional charges and on enquiry exonerated him from the charges framed against him, in August, 1952.
On October 28, 1956, the respondent was again suspended and the charges framed on the additional complaints were delivered to him.
The respondent submitted his explanation and pleaded that the enquiry might be entrusted to the Administrative Tribunal in accordance with the Rules; but his request was rejected and the case was entrusted to the Commissioner with directions to take disciplinary proceeding , against him.
The High Court allowed the writ petition of the respondent and the order directing the enquiry to be held by the appointed authority under r. 55 of the said Civil Services Rules was quashed.
The question for decision in this Court was, whether like the word "may" in r. 4 (1) which confers the discretion on the Governor, the word "may" in sub r.
(2) confers discretion on him, or does the word "may" in sub r.(2) really mean "shall" or "must".
Held, that the whole purpose of r. 4 (2) would be frustrated if the word ,may" in the said rule receives the same construction as in sub r.
The plain and unambiguous object of enacting rule 4 (2) is to provide an option to the 198 .
Gazetted Government servants to request the Governor that their cases should be tried by a Tribunal and not otherwise.
Thus r. 4 (2) imposes an obligation on the Governor to grant a request made by the Gazetted Government Servant and such a request not having been granted in the present case, the appeal must fail.
</s>
|
<s>[INST] Summarize the judgement: Criminal Appeals Nos. 211 to 217 of 1962.
Appeals by special leave from the judgment and order dated May, 5, 1962, of the Madhya Pradesh High Court (Indore Bench) at Indore, in Criminal Appeals Nos. 216, 222 and 227 to 231 of 1961.
C. B. Agarwala and Rameshwar Nath, for the appellant.
B. Sen and I. N. Shroff, for the respondent.
The Judgment of the Court was delivered by Ayyangar J.
These seven appeals are connected as they relate to the same appellant and the point involved in each is identical.
They are before us by virtue of special leave granted by this Court and are directed against the common judgment of the Indore Bench of the High Court of Madhya Pradesh convicting the appellant of a contravention of the Indian Iron & Steel (Scrap Control) Order, 1943.
The accused, the appellant before us, was the President of the Scrap Dealers Association at Indore and he was prosecuted before the learned Additional City Magistrate, Indore City in seven sets of criminal cases filed by the State of Madhya Pradesh alleging contravention of section 8(4) of the Iron & Steel (Scrap Control) Order, 1943 by selling or causing to be sold scrap iron to different customers on different dates at a rate higher than was authorised by notification dated September 30, 1952 issued by the Steel Controller under the said order.
He was acquitted by the Additional City Magistrate but on appeals preferred by the State Government, the learned Judges set aside the acquittal and convicted him of the offences and sentenced him to pay a fine of 325 Rs. 100 in each case with imprisonment in default of payment of fine.
It is the correctness of this judgment of the High Court that is canvassed before us by the appellant in these appeals.
To appreciate the points raised by the appellant it is necessary to narrate briefly the history of the legislation on the topic of control over the price at which scrap was permitted to be sold by dealers.
The Defence of India Act, 1939 enabled the Central Government to frame rules, among others, "for maintaining supplies and services essential to the life of the community (vides.
" In pursuance thereof Rule 81 (2) of the Defence of India Rules empowered the Central Government "so far as appears to them to be necessary or expedient for .
maintaining supplies and services essential to the life of the com munity" to provide by order, inter alia, (a) for controlling the pi ices or rates at which articles or things of any description whatever may be sold. . and for relaxing any such prices or rates".
By virtue of this power, the Central Government promulgated the Iron & Steel (Scrap Control) Order, 1943 (hereinafter referred to as the Indian Scrap Order) on February 25.
This Order to whose provisions we shall have to make some reference later would normally have lapsed on the expiry of six months after the revocation of the proclamation of emergency because of the provisions of section 102(3) (a) of the Government of India Act, 1935.
In order to avoid this result, the Emergency Provisions Continuance Ordinance, 1946 was promulgated on September 25, 1946 which continued several orders in relation to the control of production, distribution etc.
of essential commodities, and Indian Scrap Order among them, and this ordinance was replaced by a permanent legislation the Essential Supplies (Temporary Powers) Act, 1946 (Act 24 of 1946) which also contained a provision for the continuance of the Control Orders in force [vide section 17(2)].
Section 8(4) of the Indian Scrap Order prohibited the sale of scrap in excess of the prices fixed therefore by the Controller.
It is not disputed that the sales in regard to which the appellant has been prosecuted were in excess of the maximum there specified.
Several defences were raised but of these those which now survive are only two: (1) The legal effect of the parallel provisions on the same subject viz., control over the sale price of scrap which were in force in the Part B State of Madhya Bharat which comprised Indore, and (2) Whether the appellant as the President of the Scrap Dealers Association which was an unincorporated body could be held liable for, a sale in excess of the sup./64 8 326 authorised maximum price effected by a Munim or Munims of the Association.
We shall now proceed to narrate in brief outline the history of the parallel provisions relative to control over the sale price of Scrap in the Part B State of Madhya Bharat.
These provisions undoubtedly continued in force in the State till September 12, 1950 when the Indian Scrap Control Order, 1943 was in terms made applicable in that State and the principal point raised by Mr. Agarwala was whether a certain notification which had been issued under the State law and was in force on that date continued in force even thereafter.
The State legislation on this topic started on October 9, 1948 with the promulgation of the Madhya Bharat Essential Supplies (Temporary Powers) Ordinance, 1948, which was a reproduction of the Indian Essential Supplies (Temporary Powers) Ordinance, 1946.
When this Ordinance was replaced in India by the Essential Supplies (Temporary Powers) Act, 1946, the same process was repeated in Madhya Bharat by the enactment of the Essential Supplies (Temporary Powers) Act (Samvat 2005) (Madhya Bharat Act III of 1948).
Among the "essential, commodities" dealt with by the State enactment were iron and steel [vide section 2(3)(7)].
Section 4 of the Act read: "4.
Powers to control production, supply, distribution etc., of essential commodities.
(1) The Government so far as it appears to it to be necessary or expedient for maintaining or increasing supplies of any essential commodities, or for securing their equitable distribution and availability at fair prices may by an Order notified in the Official Gazette provide for regulating or prohibiting the production, supply, distribution and movement thereof, and trade and commerce therein.
(2) Without prejudice to the generality of the powers conferred by sub section (1), an order made thereunder may provide (c) For controlling the prices at which any essential commodity may be bought or sold; to quote only the material words.
In exercise of the powers thus conferred the Director of Civil Supplies, Madhya Bharat, to whom the powers in that behalf were delegated by the State Government, promulgated on June 4, 1949 the Madhya Bharat Iron, Steel and Scrap (Production, Procurement and Distribution) 327 Control Order, 1949.
Clause 5 of this Order empowered the Director of Civil Supplies, Madhya Bharat to specify from time to time the maximum prices wholesale and retail at which "iron and steel, scrap or specified articles made thereof" may be sold (a) by a producer, (b) by a controlled stockholder, (c) by a registered stockholder (d) by a controlled dealer and (e) by a scrap merchant.
The several categories of persons whose sales were thus regulated were defined in the Order.
Acting under this provision, the Director Civil Supplies issued a notification on the same date June 4, 1949 which read: "In exercise of the powers conferred on the Director under clause 5(1) of the Madhya Bharat Iron, Steel and Scrap (Production, Procurement and Distribution) Control Order, 1949, I hereby specify that the Price Schedules as may be in force for the time being under .
Iron and Steel Scrap Control Order in the Indian Union in respect of sales by producers, controlled and Registered Stockholders and Scrap Merchants shall apply mutatis mutandis to sales by the aforesaid persons in Madhya Bharat; provided however, that the Registered Stockholders shall sell to Controlled Dealers at II column rates of the Government of India Price Schedule for the time being in force, that Iron and Steel which they receive at column I rate from the producers and at column III rate, that Iron and Steel which they receive from the Controlled Stockholders at column II rates : provided also that controlled Dealers in Madhya Bharat shall sell to consumers at a profit margin of not exceeding Rs. 30 per ton; subject however, in all cases to such local extra charges as may be fixed by me or the officers authorised by me in this behalf.
" It is only necessary to add that there were similar Orders passed under the Indian Scrap Order, 1943 in which also the classification of dealers etc., proceeded on the same lines.
The form of the notification by the Steel Controller to the Government of India, referred to in this notification was on the following lines : There was a schedule to the notification fixing the maximum prices and it was divided into five columns.
First was the number of the item, the second was the description or classification of the material and the next three which were headed columns I, II and III dealt with specified maximum basic prices per ton for sale at Calcutta, Bombay and Madras.
There were adjustments 328 indicated for arriving at the prices chargeable at other centres.
Column I specified the prices for sales by Controlled Sources other than those mentioned in column 11.
The second column was headed "specified prices fixed for sales by scrap merchants who have been declared controlled sources" and the ,last or third column specified the maximum for sales by all persons other than those mentioned in columns I and 11.
Different maxima were fixed for sale by persons falling under the three columns, the first column price being the lowest, the second t little higher and the last which included sales by retail dealers to the consuming public being the highest.
It is common ground that the Scrap Dealers Association, Indore of which the appellant was the President had been declared "a Controlled Source" ' so that the maximum prices at which members of the Association which was an unincorporated body could sell, were those specified in column II of the schedule.
It is not necessary to set out the prices at which the actual sales which wore stated to be in violation of the law, took place, but it is sufficient to state that admittedly the servants of the Association sold scrap iron at prices higher than those fixed in column II and at prices fixed for column III.
The first submission of Mr. Agarwala learned Counsel for the appellant was that the sale by the Association at the column ]II price was authorised and legal because of a notification issued by the Government of Madhya Bharat dated August 26, 1949.
The principal point argued before us in respect of this notification is as to whether this notification was alive and in force on the date of the sales in 1956 which were the subject of the several prosecutions and whether it has survived subsequent Indian legislation extended to the State to which we shall advert presently.
But before proceeding to do so, it would be convenient to consider the nature of that notification.
The Scrap Dealers Association of Madhya Bharat appear to have made a representation to the State Government that though the dealers in Scrap as constituent units of the Association were treated as a Controlled Source and secured advantages thereby and were bound to sell at prices fixed in column II, still the Association should 'be accorded special privilege and be permitted to sell at prices fixed for the residuary class of dealers in column III.
This representation was considered by an Advisory Committee appointed by the State Government and a direction was given that "a change be made to the extent that at present for the goods which is sold to consumers by the Scrap Association 329 at the regional headquarters they will be allowed to charge column III rates on the goods instead of column II rates.
" It is stated that the Association has been selling at these rates ever since.
There is no doubt that if this direction stood, and we need only add that the validity of this direction was not challenged by the respondent as beyond the powers of the State Government, the appellant could not have been guilty of the offence with which he was charged.
But the question is whether this direction or this modification of the prices fixed under section 5(1) of the Madhya Bharat Scrap Control Order by incorporating the notification by the Steel Controller of the Government of India in its text, subsisted in 1956 when the sales which are stated as being in contravention of the Indian Scrap Order, took place.
We have already seen that the notification dated June 4, 1949 which we have extracted earlier, was issued under the Madhya Bharat Iron and Steel etc., Control Order, 1949 pro mulgated under the Madhya Bharat Essential Supplies (Tem porary Powers) Act, 1948.
The Madhya Bharat Act, however, stood repealed by virtue of the provisions of the Essential Supplies (Temporary Powers) Amendment Act, 1950 (Act 52 of 1950) under which the Essential Supplies (Temporary Powers) Act, 1946 was extended to the Part B States as and from such dates as might be specified by the Central Government.
By a notification issued by the Central Government the Essential Supplies Act, 1946 was made applicable to the Part B State of Madhya Bharat from August 17, 1950.
The effect of this extension was provided for by section 10 of Act 52 of 1950 which enacted : "1O. Amendment of section 17, Act XXIV of 1946.
After sub section (3) of section 17 of the said Act, the following sub section shall be inserted, namely (4) If immediately before the day on which this Act comes into force in a Part B State, there is in force in that State any law which corresponds to this Act, such corresponding law shall on that day stand repealed in so far as it relates to any of the essential commodities governed by this Act: Provided that any Order made and in force immediately before that day in the said State shall continue in force and be deemed to be an Order made under this Act, and all appointments made, licences or permits granted, and directions issued, under any such Order and in force immediately before that day shall likewise continue in 330 force and be deemed to be made, granted or issued in pursuance of this Act.
" If the main part of sub section
(4) stood alone without the proviso, the effect would have been not merely a repeal of the Madhya Bharat Essential Supplies (Temporary Powers) Act, 1948 which was "a corresponding law" which was in force in that State, but with that repeal, all the subordinate legislation enacted thereunder including the Control Orders as well as the Orders of the Director fixing prices would also have stood repealed.
By virtue of the proviso, however, notwithstanding the repeal of the parent enactment, the Orders made under it were continued and were to be deemed to have been made under the Indian Act.
Mr. Agarwala laid considerable stress on the proviso and urged that by reason of its language it continued in force not merely the Madhya Bharat Scrap Order of June 4, 1949 and the price fixation by the Director under section 5 ( I) of that Order on the same date, but also the variation in the prices to be charged by the Association effected by the Government Order dated August 26, 1949 which enabled that body, notwithstanding its being a dealer specified in column II to sell at prices fixed for persons falling under column M. We need not pause to consider whether the direction or the notification dated August 26, 1949 is "a direction issued under any such order" within the proviso to section 17(4) but shall proceed on the basis that it is, accepting the construction suggested by learned Counsel.
But the replacement of the Madhya Bharat law on this topic by the law in force in India did not stop with that effected by Act 52 of 1950.
By a notification of the Government of India dated September 12, 1950, the Indian Scrap Order, 1943 was extended to Madhya Bharat.
It is really the legal effect of this extension that calls for scrutiny in these appeals.
The notification by which the Indian Scrap Order was extend ed to Madhya Bharat, no doubt, did not expressly provide for the repeal of the "Madhya Bharat Scrap Iron & Steel etc., Order, 1949", but if the two Control Orders cannot operate simultaneously, it would be obvious that the Indian Scrap Order would have repealed and replaced the State law.
In the first place, even if the provisions contained in the two sets of Orders were in identical terms, it might be proper to hold that the Indian Scrap Order replaced the State law in order to give some meaning and effect to the extension of the Indian Scrap Order to Madhya Bharat.
But that is not the position here.
There are 331 marked differences between the provisions of the two Orders such that it would not be possible for the two to stand together.
For instance, Rule 3 of the Indian Scrap Order prohibits producers from acquiring or agreeing to acquire scrap except and in accordance with a written order of the Controller etc.
There is no rule corresponding to this in the Madhya Bharat Scrap Order.
In line with this, in Rule 6 of the Madhya Bharat Order which corresponds to Rule 8(4) of the Indian Scrap Order, there is no prohibition against acquisition for a higher price than the maximum fixed, such as is to be found in Indian Order.
Again, Rule 7 of the Madhya Bharat Order relating to the restrictions on the movement of scrap has no corresponding provisions in the Indian Scrap Order.
Illustrations of this type of variation may be multiplied, but this is unnecessary as it was conceded that the provisions contained in the two orders were not identical.
What we desire to emphasise is that the two orders, though achieving substantially the same object, are not identical in their provisions.
If that is so, it is obvious that on the extension to Madhya Bharat of the Indian Scrap Order, the Madhya Bharat Scrap Order would stand repealed and be replaced by the Indian law.
Mr. Agarwala, however, submitted that this would not follow because according to him the Madhya Bharat Scrap Order had some sort of higher efficacy or stood on a footing superior to the Indian Scrap Order by reason of its having been continued by the proviso to section 17(4) to Act 24 of 1946, the argument being that the notification etc., should be deemed to be one under the Essential Supplies (Temporary Powers) Act itself.
This argument, even if sound, does not really help the appellant, for the Indian Scrap Order itself was preserved by a saving of the same type and couched in exactly the, same language in the Essential Supplies (Temporary Powers) Ordinance, 1946 and the Act of the same name of 1946 [vide section 17(2) & (3) of Act 24 of 1946].
Besides, just as an order made or notification issued.
under the Essential Supplies (Temporary Powers) Act, 1946 could be amended, modified or cancelled, even if the Madhya Bharat Scrap Control Order and the notifications issued thereunder are deemed to have been passed under the Act of 1946 which is what learned Counsel contends, they could surely be modified.
amended or replaced by other subordinate legislation originating from the same parent Act.
The Indian Scrap Order, 1943 was one such, because it is deemed to have been made under that 332 Act.
When the Indian Scrap Order was extended to Madhya Bharat, the result was that it effectively replaced the Madhya Bharat Order on the same topic.
Even granting that the Madhya Bharat Scrap Order of June 4, 1949 was repealed on the extension to that territory of the Indian Scrap Order, Mr. Agarwala urged that the direction contained in the notification of the State Government dated August 26, 1949 was a special law which stood unaffected by the extension of the Indian Scrap Order to Madhya Bharat.
That when the Indian Scrap Order was extended it carried with it the notifications issued by the Controller from time to time and that after the extension of the Scrap Order to Madhya Bharat, all sales of scrap would have to be effected only in conformity with the prices fixed by the 'notifications issued under the Scrap Order was not contested.
Nor was it disputed that on the terms of the notifications issued fixing the prices at which several classes of dealers might effect sales tinder the Indian Scrap Order, the Association of which the appellant was the President would have fallen under column 11 and would have been bound to sell scrap only at the prices fixed in that column.
But it was submitted that the fact that even before the extension of the Indian Scrap Order to Madhya Bharat in September, 1950 tinder the very provisions of the notification dated June 4, 1949 itself the maximum prices fixed in Madhya Bharat were only those prescribed by the Controller in India and that the deviation in regard to these prices permitted to the Association was thus in effect a local modification of the Indian Order and that consequently the direction issued by the State Government on August 26, 1949 and which was continued even after the repeal of the Madhya Bharat Temporary Powers Act, 1948 by reason of the proviso to section 17 (4) of the Act 24 of 1946 was not affected by the extension of the Indian Scrap Order to Madhya Bharat.
We find ourselves unable to accept this argument.
The concession allowed to the Association by the notification dated August 26, 1949 could be looked at from one of two alternative positions.
The direction could be viewed as in effect a modification of the prices fixed under section 5 (1) of the Madhya Bharat Order by the Director so that in law it should be deemed to have been incorporated in that price fixation and became, as it were, the price fixed by the Controller.
The effect of this would be that in Madhya Bharat before the extension of the Indian Scrap Order, the maximum prices chargeable by the specified type of dealer falling under 333 column It would be those applicable to dealers in column III.
If this were the true position, the result would be that when the Indian Scrap Order was made applicable to Madhya Bharat without a saving or special provision as regards sales by the Association, it would supersede that law and the special classification effected by the Madhya Bharat law would cease to be in force.
In this respect the fact that the prices fixed in Madhya Bharat for sales by dealers etc., specified in the three column corresponded to those fixed by the Controller in India, would be wholly irrelevant, for the authority by which the fixation was effected would be traceable to Madhya Bharat and not the Indian law.
The other alternative would be that the notification dated August 26, 1949 was an independent piece of subordinate law making under the Essential Commodities Act and the Madhya Bharat Scrap Order, and it was this aspect that was stressed by Mr. Agarwala.
Even if that be so, the appellant would derive no advantage from this, because there has been t repeal not merely of the Madhya Bharat Essential Supplies Act no doubt with a saving but of the Madhya Bharat Scrap Order without a saving and on the repeal of the Scrap Order under which the Subordinate rule or regulation was effected the latter would also stand repealed.
As explained by Lord Reading C.J. in Watson vs Winch(1): "It has been long established that, when an Act of Parliament is repealed, it must be considered (except as to transactions passed and closed) as if it had never existed. .
It would follow that any bye law made under a repealed statute ceases to have any validity unless the repealing Act contains some provision preserving the validity of the bye law notwithstanding the repeal.
" Admittedly there is no saving clause either in the notification of the Central Government by which the Indian Scrap Order was extended to Madhya Bharat nor, of course, in the Scrap Order itself.
As the parent order under which the notification was made his been repealed without a saving the effect must be that the notification dated August 26, 1949 must, if it were held to be an independent subordinate legislation, be held also to have been repealed.
Mr. Agarwala next referred us to section 24 of the General Clauses Act No. X of 1897 and urged that the notifica (1) , 690.
334 tion would be a bye law that would have continued notwithstanding the repeal of the Madhya Bharat Scrap Order.
Section 24 of the General Clauses Act runs thus: "24.
Where any Central Act or Regulation, is after the commencement of this Act, repealed and re enacted with or without modification, then, unless it is otherwise expressly provided, any appointment, notification, order, scheme, rule form or bye law, made or issued under the repealed Act or Regulation, shall, so far as it is not inconsistent with the provisions re enacted, continue in force and be deemed to have been made or issued under the provisions so re enacted, unless and until it is superseded by any appointment, notification, order scheme, rule form or by law, made or issued under the provisions so re enacted and when any Central Act or Regulation, which, by a notification under section 5 or 5A of the Scheduled Districts Act, 1874, or any like law, has been extended to any local area, has, by a subsequent notification, been withdrawn from and reextended to such area or any part thereof, the provisions of such Act or Regulation shall be deemed to have been repealed and re enacted in such area or part within the meaning of this section.
" We consider that this submission is entirely without force.
Mr. Agarwala fairly conceded that the language of section 24 would not cover a repeal of the Madhya Bharat Scrap Order by the introduction into the Madhya Bharat territory of the Indian Scrap Order.
1943, but he suggested that even though the section was in terms inapplicable, he could invoke the principle underlying it.
But this argument, however, proceeds on assuming that section 24 was declaratory of the common rule of interpretation and that even in the absence of section 24 the same principle of law would apply.
The position apart from a statutory provision such as is found in section 24 of the General Clauses Act, is thus summarised in Craies on Statute Lent, 6th Edn. 334: "If the statute under which bye laws are made is repealed, those bye laws are impliedly repealed and cease to have any validity unless the repealing statute contains sonic provision preserving the validity of the bye law notwithstanding the repeal.
This follows from the rule . when an Act of Parliament is repealed it must 335 be considered (except to transactions passed and closed) as if it had never existed." This submission has, therefore, no merit and must be rejected.
The second of the points urged by Mr. Agarwala was that the Scrap Dealers Association was an unincorporated body consisting wholly of retail dealers and that as each of them individually was a dealer who could himself have sold at the column M rate, the Association could not be penalised for selling at that rate.
As an unincorporated body, he submitted, it was merely the aggregate of its members and so would have the rights of its constituent units.
There is no force in this point either.
Apart from the definition of "person" in the General Clauses Act as including an unincorporated body of persons, what we are concerned with is not sales by individual dealers who composed the Association, but sales by and through the Association.
It was the Association that was given the facility of obtaining scrap at more favourable prices than dealers and it was that body which was subjected to control in the shape of having to sell what it had purchased from controlled sources at the prices specified in column II.
Lastly, it was faintly urged by Mr. Agarwala that the appel lant was merely the President of the Association and could not be held liable for the sales effected by its employees.
There was no dispute that the sales were by the Association and at prices fixed by that body.
It was also admitted that these prices were in excess of the prices specified for sales fixed for the Association.
under section 8 of the Essential Supplies (Temporary Powers) Act, 1946, "Any person who abets the contravention of any order. shall be deemed to have contravened that order." In the circumstances, we do not see bow this affords any defence to the appellant.
The result is that these appeals fail and are dismissed.
Appeals dismissed.
[/INST]The Indian Scrap Order, 1943, passed under the Defence of India Rules, was after the expiration of the said Rules, preserved by the Essential Supplies Act, 1946.
By (Central) Act 52 of 1950, the said Act was extended, inter alia to the Part B State of Madhya Bharat.
That State already had its corresponding law on the subject, namely, the Madhya Bharat Essential Supplies Act, 1948, under which the Madhya Bharat Scrap Order, 1949 had been issued.
While extending the Cen tral legislation to the Part B States, Act 52 of 1950 also laid down, in section 17(4) that the "corresponding law" in the State would stand repealed, with a proviso that the orders, directions etc., issued under the repealed law would continue.
The appellant who was President of the Scrap Dealers Association, Indore, was prosecuted under the allegation that the Association had sold scrap iron at rates higher than those fixed under the Indian Scrap Order.
The defence taken was that the prices at which the sales had been effected were those fixed by a notification dated 26th August, 1949 under the Madhya Bharat Scrap Order which continued in force.
The appellant was acquitted by the trial Court but was convicted by the High Court and appealed to the Supreme Court by special leave.
The contentions of the appellant were : (1) The Madhya Bharat Scrap Order had not been expressly repealed by the Indian Scrap Order and therefore it continued by force of the proviso to section 17(4) of the Act 52 of 1950, and, in any case, the notification dated 26th August, 1949, continued in force as an independent piece of subordinate legislation.
(2) The appellant as President of the Scrap Dealers Association which was an unincorporated body could not be held liable for a sale in excess of the authorised maximum price effected by a Munim or Munims of the Association.
HELD : (i) The Central notification by which the Indian Scrap Order was extended to Madhya Bharat, no doubt, did not expressly provide for the repeal of the Madhya Bharat Scrap Order, but the provisions of the two Orders were not identical and they could not, therefore, operate simultaneously.
It was therefore obvious that on the extension to Madhya Bharat of the Indian Scrap Order, the Madhya Bharat Scrap Order was repealed and replaced by the Indian law.
[331D].
(ii) The notification in question could not survive even if it was treated as an independent piece of subordinate legislation under the State law.
According to Craies, if the statute under which by laws are made is repealed, those bye laws are impliedly repealed and cease to have any validity unless the repealing statute contains some provision preserving the validity of the by laws, notwithstanding the repeal.
As the parent 324 order under which the notification dated August 26, 1949, was made had been repealed without a saving, the effect was that the said notification also stood repealed.
(333D; 333G H; 334H].
(iii) The definition of 'person ' in the General Clauses Act includes within that term an unincorporated body of persons.
In the present case it was the Association that was given the facility of obtaining scrap at more favourable prices than dealers, and it was that body which was subjected to control in the shape of having to sell what it had purchased from controlled sources at specified prices.
The argument could not be accepted that the Association as such could not be penalised for selling at unauthorised rates.
The appellant as President of the Association was liable to be convicted by virtue of section 8 of the Essential Supplies (Temporary Powers) Act, 1946 which made the abetment of contravention of any order under the Act, also an offence.
[335C D,E F].
Watson vs Winch.
and Craies on Statute Law.
6th Edn. 332, referred to.
</s>
|
<s>[INST] Summarize the judgementAppeal No. 1862 of 1967.
Appeal under section 116 A of the Representation of the People Act 1951 from the judgment and order dated November 16, 1967 of the Punjab and Haryana High Court in Election Petition No. 19 of 1967.
112 A. K. Sen, B. Dutta, P. C. Bhartari, M. L. Aggarwal and J. B. Dadachanji, for the appellant.
section K. Mehta and K. L. Mehta, for respondent No. 1 The Judgment of the Court was delivered by Hidayatullah, J.
This appeal is directed against the judgment of the High Court of Punjab and Haryana at Chandigarh, November 16, 1967 by which the election of the appellant to the Vidhan Sabha of Haryana State from the Kaithal constituency has been declared to be void.
The election was held on February 19, 1967 and the result of the pool was declared on February 22, 1967.
The appellant had a margin of nearly 2000 votes.
over the first respondent who was the closest rival.
One other candidate had also stood but we are not concerned with him in the present appeal since he has not shown any interest in it.
He secured less than 1000 votes and forfeited his security.
The election petition was based upon allegations of corrupt practice against the successful candidate.
The gravamen of the charge was that she as a minister in the Government of Mr. Bhagwat Dayal Sharma used certain discretionary grants to bribe the voters of her constituency and in particular by paying two sums, of Rs. 2,000 for the construction of two dharamsalas ,for the Kumhar and the Sweeper Colonies at Kaithal.
There were other allegations also against her but as they have been found against the election petitioner and have not been brought to our notice we need not say anything about them.
The learned Judge who tried the election petition did not accept the evidence tendered by the election petitioner to prove the corrupt practice outlined above but held on a general appraisal of the circumstances of the case that these sums were in fact paid to bargain for votes and to influence the voters in favour of the appellant.
We shall now give a few facts of the case before stating our conclusion.
The election petition was filed on April 7, 1967.
It was later amended and better particulars were supplied on July 29, 1967.
In the original election petition as filed by the election petitioner it was stated that a sum of Rs. 2,000 from the discretionary giant of the appellant was paid to the Harijans of Keorak Gate, Kaithal for the construction of a dharamsala.
The allegation then was that in the beginning of January 1967 the Harijans were approached by the appellant and were asked to vote for her.
They flatly refused to vote for her.
Thereupon she promised to provide funds for the construction of a dharamsala in their basti and tempted by this offer they agreed to vote for her.
In regard to the other discretionary grant it 'was ' stated in the original petition that the Kumhar voters who reside in Dogran Gate.
Kaithal, were also 113 approached,by the appellant in the beginning of January 1967 and were asked to vote for her.
When they refused to vote she promised them a sum of Rs. 2,000 for building the dharamsala in their locality.
It was further pointed out that the first sum of Rs. 2,000 was paid through the Deputy Commissioner, Kamal, vide his Memo No. 78 BP III/67/335 of January 12, 1967.
The second payment was also made on the same date through the Deputy Commissioner, Karnal, vide Development Department Memo No. 47 BAP III 67/326.
The affidavit in support of the election petition was sworn by the election petitioner on information supplied by others and believed to be true.
It was stated in the verification clause that.this information was received "from my workers and believed to be true".
On an objection being raised that the particulars of the corrupt practice were not adequate and on the other hand vague and that the affidavit did not disclose the persons from whom the information was derived the Court ordered that better particulars be supplied and a fresh affidavit filed.
The amended election petition was then filed in July, 1967.
In this election petition a change was introduced.
It was stated that on December 22, 1966 the Harijans were called to a Canal Rest House through one Om Prakash Shorewala.
President of the Municipal Committee, Kaithal.
Other members of the Municipal Staff including the Executive Officer Bhalla were also present.
Among those who came were one Khaki Ram, Banwari Lal and one Harijan Lamberdar whose name was not given.
In the presence of these persons request Was made to the Harijans to vote for the appellant, and when they refused to do a sum of Rs. 2,000 was promised from the discretionary grant, and on this offer the Harijan voters consented to .vote for the appellant.
It was further alleged that this.
amount was ultimately paid to Khaki Rain and Banwari Lal through Shri Om Parkash Shorewala (R.W. 4).
As regards the second charge it was stated that on December 29. 1966 the Kumhar voters were summoned to the Canal Rest House and three persons, Thakru, Attra and Lilloo came as the representatives of the Kumhar community.
The same procedure, viz., asking them to vote for her candidature was followed by the appellant and on their refusal to do so a sum of Rs. 2,000 was promised to them for the construction of a dharamsala in their basti at Dogran Gate.
Kaithal.
This induced them to change their views.
The affidavit was also corrected.
It was stated that the allegation was based upon information received from Pandit Kailash Chander, s/o Pandit Hari Ram of Kaithal and Ch.
Inder Rai, ex Municipal Commissioner, Chandena Gate Gamri, Kaithal.
114 In answer to the amended election petition the written statement added that the allegation was a pure concoction.
The appellant pointed out that the grant for the construction of the dharamsalas was made by the appellant as far back as December 19, 1966 and that the allegation that it was the result of a bargain either on December 22 or December 29, was a pure fiction.
The election petitioner examined fourteen witnesses.
We are, however, not concerned with all of them because they are connected with the other allegations in the election petition.
Witnesses bearing upon this case were only four.
They were Gurbax Singh (P.W. 1), who only proved certain documents, P. N. Bhalla (P.W. 3), the Executive Officer of the Municipality, Thakru (P.W. 8), whose name has already been mentioned by us and Abnash Chander, the election petitioner.
In the evidence a change was again introduced.
It was attempted to be proved that the bargain which had been referred to in the election petitions actually took place on December 3, 1966.
This time it was affirmed that the Kumhars and the Sweepers were called together.
An objection was taken before the learned Judge that this evidence could not be considered because the plea was quite different.
The learned Judge ruled that the objection would be decided later.
It appears that the learned Judge did not put too much emphasis on the change of pleading presumably because he found the evidence to be unsatisfactory and unreliable.
On the side of the appellant were examined one R. N. Kapur (R.W. 1), the personal Secretary of the appellant who proved her tour programme to give a lie to some of the allegations in the election petition.
Attroo (R.W. 3), who was said to have been present at the conferences, Om Parkash Shorewala (R.W. 4), the Municipal President, Mr. Bhagwat Dayal Sharma (R.W. 5), the Chief Minister in whose Ministry the appellant was working as the Finance Minister and the appellant herself.
It is not necessary to go largely into what the witnesses said because the learned Judge himself observed as follows "Whereas according to the respondent the fact of the grant is not disputed, but it is denied that the grant was made in consideration of these communities voting for her.
If the matter had remained at this stage and the executing agency (the Sub Divisional Magistrate) had disbursed these grants I would not have been prepared to accept the oral evidence regarding the bargain which led to the grants.
But the manner, how the money was realised and disbursed, lends ample support to the evidence that the bargain was struck.
" It is clear that the learned Judge was of the opinion that the evidence led to prove the conference and the bargain at the con 115 ference was unacceptable.
He, however, accepted it because it was supported by circumstantial details of the withdrawing of the money which was sanctioned; but for this the learned Judge would not have accepted the election petition.
We shall glance at this evidence which has been led in the case.
As pointed out above the only witnesses from 'the conference are Thakru (P.W. 8) and Bhalla (P.W. 3).
With regard to Thakru it is sufficient to point out what the learned Judge himself said at the end of the deposition of Thakru : "The testimony of, this witness has not at all impressed me.
I will place no reliance whatsoever on his testimony.
" In view of this observation of the learned ' Judge we think we are entitled to ignore his testimony altogether.
As regards Bhalla (P.W. 3), he seems to have deposed not only in.
respect of these two grants but every allegation made in the election petition.
Mr. A. K. Sen, for the appellant, very pertinently described him as an omnibus witness.
His evidence is not convincing.
It appears on the record of this .case (and it was in fact admitted by Bhalla) that the appellant had taken action against him in respect of a house which fell down owing to the negligence of the Municipal Authorities.
It appears to us that Bhalla was hostile to the appellant.
There is enough material to show that he was trying to get even with the appellant for her action in putting the blame upon him for the falling down of a house from seepage of water from the municipal mains.
The learned Judge did not place any direct reliance upon Bhalla 's testimony.
As we have shown above, if it had not been for the circumstances attending the grant the learned Judge himself would have discarded his testimony.
We must, therefore, proceed with extreme caution in dealing with Bhalla 's evidence in the case.
It may be pointed out here that in the election petition as well as in the evidence it was stated that the Harijans and Kumhars were summoned through Bhalla and the peon was ordered by Om Prakash Shorewala to call the leaders of these two communities to the Canal Rest House: Sat Prakash, the peon was not examined in the case.
Of the persons present on the first occasion, viz., Banwari Lal, Khaki Ram, Lilloo and Attra and the Harijan Lamberdar who was not even named, none was examined except Attroo and Thakru.
Attroo was examined by the appellant.
We have shown above that the learned Judge placed no reliance upon Thakru 's word.
He made a similar remark about Attroo also so that the case really comes to this that there is only the evidence of the parties and such other evidence as was furnished by Shore wala and Bhalla.
The persons from whom information was derived as stated in the verification of the affidavit were not called as witnesses.
We have shown that Bhalla 's testimony must not be taken on its face value.
, Om Prakash Shorewala was support 116 ing the election petitioner but even so his evidence goes in favour Of the appellant.
The fact, 'however.
remains that the .
election petitioner himself was fumbling with the facts and was not able to state quite categorically when the conferences took place and on what date and at which place.
He changed the dates as more information came to hand.
This was not information about the conferences but the date on which the grant was sanctioned and the dates on which the appellant could be expected to have held the conferences.
In these circumstances, we are satisfied that in this case the oral evidence is practically non existing.
Mr. Mehta, who argued the case on behalf of the answering respondent, stated that it was not necessary at all to give the facts about the conferences and that the charge of bribery could be proved even without the details of how the bribe came to be given.
He relied upon the judgment of the Madras High Court in Kandaswami vs section B. Adityan for the proposition that a bribe is a bribe although the date on which it is given may not be capable of being specified if it could be established otherwise that the.
money was in: fact paid; and he further relied on a judgment of this Court in Bhagwan Datta Shasri vs Ram Ratanji Gupta & Ors.
that even if the full particulars be not given evidence might still be led to determine whether a corrupt practice had in fact taken place or not.
We need not decide in this case what the pleadings and the proof should be.
The ordinary rule of law is that evidence is to be given only on a plea properly raised and not in contradiction.
of: the plea.
Here the pleas were made on two different occasions and contradicted each other.
The evidence which was tendered contradicted both the pleas.
The source of the information was not attempted to 'be proved and the witnesses who were brought were found to be thoroughly unreliable.
In these circumstances we do not propose to refer to the evidence in this judgment any more.
This brings us to the question whether the circumstances of this case clearly demonstrated that there must have been some kind of bargain before the grant was made and that this bargain was with a view to inducing the voters to support the candidature of the appellant.
In Ghasi Ram vs Dal Singh & Ors.
(3) in which the judgment of this Court was pronounced today, the law relating to corrupt practice specially in the matter of giving of discretionary grants has been considered and stated.
It has been pointed out that a Minister in the discharge of his duties may be required to do.
some acts of administration including the granting of money for the uplift of certain communities and this action of the Minister is not to be construed against him unless it can be established (1) (3) ; 2.
(2) A.I.R. 1960 S.C. 200.
117 that there 'was a bargain with the voters for getting their assistance at the election.
Since the oral evidence in this case is non existing we must now look at the circumstances whether this conclusion which has been drawn by the High Court can be irresistibly reached.
The State of Haryana came into existence on November 1,1966.
Immediately afterwards the Cabinet placed certain sums of money at the disposal of, the Chief Minister, the Cabinet Ministers, Ministers for State and Deputy Ministers, to be used at their, discretion for the uplift of the communities.
A sum of Rs. 50,000 was placed in the discretionary grant of a Minister and the appellant as the Finance Minister in the Ministry of Shri Bhagwat Dayal Sharma was required to spend this money.
The money had to be disbursed before the end of the Financial Year, that is to say, before March 31, 1967.
It is reasonable to think that there must have been several demands in this State from the various community centres for their own uplift and they must have been clamouring even before for money for the establishment of schools, hospitals, supply of water, and so on.
The policy statement attached to the sanction of the discretionary grant stated the purposes for which the money could be utilised.
It was stated quite clearly that the money should not be given to any private person 'but should be given through the Development Commissioner for purposes of public utility and for benefit of the general public and that the execution of the works should be through certain named agencies such as Zilla Parishad, Panchayat Samities, the Panchayats concerned, the Public Works Department or any other Government Agencies or Municipality as the Minister may indicate.
In the present case money was to be disbursed through the Municipal Committee.
It is argued that the money was withdrawn and made available a day before the poll suggesting thereby that this was done to assure the voters that the money had come in as a result of the, bargain.
The hurry in reaching the money to these two wards in the Kaithal Municipality is the main reason behind the learned Judge 's conclusion that it must have been a part of a bargain.
Evidence, however shows that Bhalla (who was not favourable to the appellant) himself wrote saying that the money should be made available at once; and this money came to the hands of Om Prakash Shorewala, who, as we have already pointed out, was helping the answering respondent in his election.
It appears to us that all this hurry which did not emanate from the appellant was the result of and anxiety on the part of the recipients that the money should be made available as soon as possible.
[/INST]The three appellants were convicted under section 120B I.P.C. and section 167(81) of the Sea Customs Act for having entered into a criminal conspiracy among themselves and with a Chinese citizen in Hong Cong to smuggle gold into India with the, help of E, an Airlines stewardess.
E gave evidence at the trial as a witness for the prosecution.
Her testimony was clearly that of an accomplice and although she could have been prosecuted, she was not arraigned.
It was contended, inter alia, on behalf of the appellants (i) that it was the duty of the prosecution and/or the Magistrate to have tried E jointly with the appellants and the breach of this obligation vitiated the trial; in the alternative, E 's testimony must be excluded from consideration and the appeal re heard on the facts; (ii) that no oath could be adminis tered to E as she was an 'accused person in 'a criminal proceeding ' within the meaning of section 5 of the Indian Oaths Act as shown by her own statements made to the Customs officials and in Court; she could not therefore be examined as a witness; furthermore, the provisions relating to tender of pardon to accomplices contained in Chapter XIV of the Criminal Procedure Code do not apply to offences under section 120B (first Part) I.P.C. and section 168 (81) of the Sea Customs Act; the only ways in which E 's testimony could have been obtained was either to, take her plea of guilty and convict and sentence her or withdraw the prosecution against her under section 494 Cr. P. C. Not to send up a person for trial with the sole object of taking accomplice evidence is illegal.
Furthermore, under section 351 read with section 91 of the Code it was the duty of the Court to.
have detained E and included her in the array of accused before it; (iii) the evidence of E in respect of the identification of two of the appellants was inadmissible because she had been shown "heir photographs before her statements were taken; (iv) the photostats of certain document 's without the production of the originals were wrongly admitted and should have been excluded; and (v) selection, of E as once out of several accused ",,is discriminatory.
HELD : dismissing the appeal, (i) The offences were non cognizable and were investigated by Customs officers under the Sea Customs Act and not by the Police under Chapter XIV of the Code.
Therefore, no question of the application of sections 169 and 170 arose.
The accused were placed on trial on the complaint of the 625 Assistant Collector of Customs under the authority of the Chief Customs Officer, Bombay.
Although the Magistrate was taking cognizance of offences and not of offenders, it was no part of his duty to find offenders in view of the bar of section 187A if the complaint did not name a particular offender.
All that the Magistrate could do was to take a bond from E for her appearance in court if required.
[629 C E] Under section 118 of the Evidence Act, all persons are competent to testify unles the court considers that they are prevented from under standing the questions put to them for reasons indicated in that section.
Under section 132 a witness is not excused from answering any relevant question upon the ground that the answer will incriminate him or expose him to a penalty of forfeiture of any kind and when compelled to answer such question is protected 'against arrest or prosecution by the safeguard in the proviso to section 132 as well as in Art, 20(3).
The evidence of E could not therefore be ruled out, as that of an incompetent witness.
Since E was a self confessed criminal, in conspiracy with others who were being tried, her evidence was accomplice evidence.
section 133 of the Evidence Act makes the accomplice a competent witness against an accused person.
For this reason also E 's testimony was that of a competent witness.
[630 B H] (ii) The competency of an accomplice is not destroyed because he could have been tried jointly with the accused but was not and was instead made to give evidence in ;the case.
Section 5 of the Indian Oaths Act and section 342 of the Code of Criminal Procedure do not stand in the way of such a procedure.
If any accomplice is not prosecuted but is tendered as a witness, the bar of the Indian Oaths Act ceases because the person is not an accused person in a criminal proceeding.
The interrelation of section 342(4) of the Code and section 5 of the Indian Oaths Act.
both of which prohibited the giving of oath or affirmation to an accused on trial is fully evidenced by the simultaneous amendment of the Code in 1955 by which the right to give evidence on oath is conferred on the accused and provisions in pari materia are made in section 5 of the Oaths Act.
The only prohibition against the use of accomplice testimony exists in the rule of caution about corroboration and the interdiction, of influence in any form by section 343 of the Code.
If any influence by way of promise of pardon has to be made, the provisions of sections 337 and 338 or of the Criminal Law Amendment Act have to be observed.
That, however, applies to special kinds of cases of which the present was not one.
[632 F H] The expression, 'criminal proceeding ' in the exclusionary clause of section 5 of the Indian Oaths Act cannot be used to widen the meaning of 'he word 'accused '.
The same expression is used in.
the proviso to section 132 of the Indian Evidence Act and there it means a criminal trial and not investigation.
The same meaning must be given to the exclusionary clause of section 5 of the Indian Oaths Act to make it conform to the provisions in pari materia to be found in sections 342, 342A of the Code and section 132 of the Indian Evidence Act.
The expression is also not rendered superfluous because, given this meaning, it limits the operation.
of the exclusionary clause to criminal Prosecutions as opposed to investigations had civil proceedings.
[633 D F] (iii) If the court is satisfied that there is no trick photography and the photograph is above suspicion, the photograph can be received in evidence.
It is, of course, always admissible to prove the contents of the document, but subject to the safeguards indicated to prove the authorship.
This is all the more so in India under section 10 of the Evidence Act 626 to prove participation in a conspiracy.
Detection and proof of crime will be rendered not only not easy but sometimes impossible if conspirators begin to correspond through photographs of letters instead of originals.
But evidence of photographs to prove writing or handwriting can only be received if the original cannot be obtained and the photo graphic reproduction is faithful and not faked or false.
In the present case no such suggestion exists and the originals having been suppressed by the accused, were not available.
The evidence of photographs as to the contents and as to handwriting was receivable.
[638 F H] (iv) If the prosecution had to rely only on the identification by E to fix the identity of the suspects, the, fact that their photographs were shown to her would have materially affected the value of identification.
How, ever there was considerable other evidence of identification and the prosecution was not required to rely only on this identification.
(v) Section 337 Cr.
P.C. has been held not to offend article 14 and the matter of taking accomplice evidence outside section 337 by using section 494 or otherwise is not very different.
It cannot be held that there was any breach of the Constitution in selecting E out of several accused to give evidence.
[640 F] Case law discussed.
</s>
|
<s>[INST] Summarize the judgementCivil Appeal No. 2649 of 1984.
Appeal U/s 116A of the R.P. Act 1951 from the Judgment and Order dated 30.5.1984 of the Punjab & Haryana High Court at Chandigarh in E.P. No. 8 of 1982.
H.L. Sibal, Kapil Sibal, Mrs. Madhu Tewatia Singh and N.M. Popli for the Appellant.
S.N. Kacker and Ravinder Bana for the Respondents.
by VARADARAJAN, J.
This appeal by the first respondent in Election Petition No. 8 of 1982 on the file of the Punjab and Haryana High Court is filed against the judgment of the learned Single Judge, allowing the election petition and setting aside the appellant 's election to the Haryana Legislative Assembly from the Jind constituency in the election held on 19 5 1982.
Out of 26 nomination papers filed, 24 were found to be valid and ultimately 14 candidates remained in the field.
The real contest was between the appellant Brij Mohan, who was an independent candidate supported by the Lok Dal and the first respondent Manga Ram who contested as the Congress (I) candidate.
In the counting which took place on 20 5 1982 it was found that the appellant had secured 27045 valid votes while the first respondent had secured 26899 valid votes and the appellant was accordingly declared elected.
The first respondent filed the election petition challenging the p appellant 's election on the following grounds, namely: (I) corrupt practice of bribery as defined in section 123(1) of the Representation of People Act, 1951; (2) corrupt practice of publication of various statements relating to the personal character of the first respondent which were false; (3) result of the election in so far as it related to the appellant having been materially affected by en masse violation of the statutory provisions and (4) large scale receiption of void votes in favour of the appellant but for which the first respondent would have been declared elected.
The first respondent prayed in the election petition for (I) the appellant 's election being set aside as void on the above grounds; (2) the appellant being declared to have committed corrupt practice and (3) the first respondent being declared to have been duly elected, 315 The learned Single Judge who tried the election petition allowed it with costs on only one ground and set aside the appellant 's election as void on that ground, namely, that he committed the corrupt practice of bribery by contributing a sum of Rs. 5100/towards the cost of construction of a temple for the backward classes in Kandela village in order to get the votes of the members of those classes cast in his favour in that election.
It is, therefore, necessary to state the case of the parties briefly in regard to only this item of corrupt practice.
The first respondent has alleged in the election petition that the appellant visited Kandela village on or about 16 5 1982 accompanied by his father Sita Ram and two others Ram Kishan and Amrit Lal and they contacted Dalip Singh, Sarpanch of the village and one Dewan Singh, Secretary of the backward classes.
The appellant appealed to the backward class voters assembled at the house of one Dharam Singh for casting their votes in his favour.
The voters present there included Dewan Singh, Hari Ram, Devi Ram, Fateh Singh and Mauji Ram.
The voters told the appellant that they intended to cast their votes in favour of the Congress (I) candidate as they had always been in favour of the Congress (I) party.
The appellant, thereafter, had a talk with the Sarpanch Dalip Singh and one Dharam Singh and subsequently stated, for inducing the voters to cast their vote in his favour, that he was prepared to give a donation of Rs. 5100 as he had been told that they needed some money for their mandir.
Accordingly, he gave a sum of Rs. 5100 to the Sarpanch Dalip Singh who passed it on to Dharam Singh and Dewan Singh.
The voters thereafter assured the appellant that they would vote for him and ensure that every vote belonging to their class will go in his favour.
The appellant denied this allegation saying that he never visited Kandela village in the company of Sita Ram, Ram Kishan and Amrit Lal and never gave Rs. 5100 to the Sarpanch Dalip Singh and that the entire allegation in the election petition regarding this item of corrupt practice is false and mischievous.
In regard to this item of corrupt practice there is evidence of the election petitioner/first respondent Mange Ram, P.W. 1, Dewan Singh, P.W, 16, Manuji Ram, P.W. 90, Fateh Singh, P.W. 91 and Prahlad, P.W. 92 on the side of the first respondent and of the appellant, R.W. 1 on the side of the appellant.
The learned Single 316 Judge found that after a Commissioner appointed by the Court contacted P.W. 16 and obtained a register from him.
P.W. 16 was suspended by the District Education Officer, Jind by an order dated 23 11 1982 and transferred to Narnaul situate 200 miles away from his original place which was his home town and he opined that it was done in order to overawe P.W. 16 so that he may not appear as a witness in this election petition.
He further observed that "It was in his (appellant 's) interest to see that this witness did not come on record.
If illegal pressure was brought to bear on a witness who had come to this Court to depose about this charge, normal inference and presumption would be that the pressure had been brought to bear upon him either by the party who was interested in seeing that damaging evidence was not led against him or by some one else at his instance.
I am clearly of the view that respondent No. I had somehow or other secured that order of suspension and transfer of Dewan Singh, P.W. 16".
We are wholly unable to appreciate this reasoning of the learned Judge.
We do not see how the appellant was obliged to explain the circumstances under which P.W. 16 came to be suspended and transferred to Narnaul by the District Educational Officer 's order dated 23 11 1982 after the Commissioner appointed by the Court approached him and obtained a register from him or how the adverse inference could be drawn against the appellant by the learned Judge merely because the appellant was unable to explain how P.W. 16 came to be suspended and transferred by the District Educational Officer 's order dated 23 11 1982 after a register had been obtained from him by the Commissioner appointed by the Court and it came to be known that p.
W. 16 may be examined as a witness in this election petition, We think that there is no justification whatsoever to draw any such adverse inference against the appellant.
The appellant, R.W. 1 had denied that he had gone to Kandela village on 16 5 1982 either alone or in the company of Sita Ram and others.
He has denied that he contacted the Sarpanch Dalip Singh and others and gave Rs 5100 as alleged in the election petition and that the voters of Kandela village held out any promise for casting their votes in his favour.
In the cross examination on suggestion was made to R.W. 1 that he gave a sum of Rs. 5100 for the construction of a mandir for the backward class voters of Kandela village on 16 5 1982 or on any other date, to induce them to cast their votes in his favour, 317 The first respondent.
P. W. l has stated in his evidence that the appellant visited Kandela village on 16.
1982 accompanied by the Sarpanch Dalip Singh, Hari Ram, Dewan Singh and others, that all of them and the members of the backward classes assembled in the house of the Backward Classes Samiti Chairman Dharam Singh, that the appellant gave Rs. 5100 to the members of the backward classes for the construction of a Viswakaram Mandir in the village and the Society passed a receipt for that amount and also made an entry in its own books of accounts kept in the regular course of business and that the members of the backward classes who received the amount promised to cast their votes in favour of the appellant.
In his cross examination he has stated that the bribe money was paid by the appellant on 15.5.1982.
It would appear from his evidence that he claims to have personal knowledge about the alleged visit of the appellant and others to Kandela village on 16.5.1982 and about the alleged payment of Rs. 5100 by the appellant for the construction of a temple for the backward classes people of the village in order to induce the voters of those classes to cast their votes in his favour.
But in his affidavit verifying the election petition he has stated that the allegations made in para 9(d) of the election petition regarding this item of corrupt practice are based upon information received by him from Dewan Singh.
Therefore, the evidence of P.W. I regarding this item of alleged corrupt practice is wholly unacceptable.
Dewan Singh, P.W. 16 has stated in his evidence that he is the Secretary of the Managing Committee of a temple that was being constructed in Kandela village for the members of the backward, classes, that the appellant attended a meeting of the backward classes in Dewan Chand 's house on 15 5 1982, and volunteered to give a donation of Rs. 5100 for that temple provided the members of the backward classes cast their votes in his favour and that on 16.5.1982 one Madan Lal gave Rs. 5100 to the Temple Committee 's President Dharam Singh in his presence and he himself made the entry exhibit PW 16/2 about that payment in the Temple Committee 's cashbook, exhibit P.W. 16/1.
He has admitted that the entire cash book, exhibit P.W. 16/1 is in his hand writing and does not bear the signature of any office bearer of the Viswakarama Samiti.
But he has denied that he has got up this cash book in connivance with the first respondent for the purpose of this election petition.
His evidence that the appellant offered on 15.5.1982 to give a sum of Rs. 5100 in the house of Dewan Chand and that it was given by one Madan Lal to Dharam Chand is inconsistent with the allegation in the election petition 318 that the appellant offered to give Rs. 5100 on 16.5.1982 as donation and gave it himself to the Sarpanch Dalip Singh and he passed it on to Dharama Singh.
Therefore, the evidence of P.W. 16 regarding this item of alleged corrupt practice cannot be accepted.
Mauji Ram, P,W. 90 has stated in his evidence that the appellant and his father and Sarpanch Dalip Singh collected the people belonging to black smith and carpenter communities in the house of the carpenter Diwana on 14.5.1982 and requested the people to cast their votes in his favour, that the people told the appellant and his two companions that they would inform that after discussing about the matter and asked the appellant and his companions to visit the village again on 16.5.1982, that accordingly the appellant and others came to the village on 16 5.1982 and asked the people to vote for the appellant, that the people told the appellant and his companions that they would vote for him if he gave money and that the appellant thereupon gave a sum of Rs 5100 to Dharma Lohar.
The evidence of this witness is that the people asked for money to vote in favour of the appellant and that thereupon he gave Rs. 5100 to Dharma Lohar whereas the allegation in the election petition is that after the voters told the appellant that they intended to vote for the Congress (I) candidate as they had always been in favour of the Congress (I) Party the appellant had a talk with the Sarpanch Dalip Singh and one Dharam Singh and he subsequently stated, for inducing the voters to cast their votes in his favour, that he was prepared to give a donation of Rs. 5100 as he had been told that they needed some money for their mandir and that he accordingly gave Rs. 5100 to the Sarpanch Dalip Singh and he passed it to Dharam Singh and Dewan Singh There is thus a vital discrepancy between the pleading in the election petition and the evidence of P.W. 90.
P.W. 90 has stated that he does not know whether any receipt was passed for the amount whereas P.W. 16 has stated in his evidence that Madan Lal gave Rs 51()0 to the Temple Committee 's President Dharam Singh in his presence on 16 5 1982 and he made an entry for receipt of that amount in exhibit PW. 16/2 in the cash book, exhibit P.W. 16/1 and P.W. ` I has stated in his evidence that the Society passed a receipt for the amount and also made an entry in the cash book about the money.
It is significant to note that P.W. 90 was not cited as a witness in the list of witnesses filed by the first respondent on 11.11.1982 and 26.11.1982 and that he was examined as a witness only on 25.7.1983.
In these circumstances, we think that no reliance would be placed on the evidence of P.W. 90 regarding this item of alleged corrupt practice.
319 Fateh Singh, P.W. 91 is yet another witness whose name was not mentioned in the list of witnesses filed by the first respondent on 11.11.1982.
He has stated in his evidence that four or five days prior to the date of poll 19.5 1982, the appellant and his father and two others, Sarpanch Dalip Singh and Madan Lal, visited Kandela village and come to the house of Diwana Khati, that many voters belonging to the backward classes were summoned to that house and the appellant and his companions offered to donate some money to the temple provided the people assembled there and other members of the community voted for the appellant and they told them that they would discuss about the matter and let them know, that two or three days thereafter the appellant came by a car they assembled in the house of the black smith Dharama and that in his presence Madan Lal who came with the appellant gave Rs. 5100 to the Sarpanch Dalip Singh who in turn passed it on to Dharma Lohar and he promised that the members of his community would vote for the appellant.
The evidence of this witness is not consistent with the allegation made in the election petition that the appellant gave a sum of Rs 5100 to the Sarpanch Dalip Singh and that he passed it on Dharam Singh and Dewan Singh.
We are, therefore, unable to place any reliance on his evidence regarding this item of alleged corrupt practice.
Then there remains the evidence of Prahalad, P.W. 92.
He has stated that the appellant, came to Kandela village on 16.5.1982 alongwith the Sarpanch Dalip Singh and one Madan Lal of that village, that the appellant who had visited the village five days prior to the date of the poll suggested that the voters belonging to the community and the members of the Managing Committee should vote for him and stated that he would make some contribution for the temple funds and asked Madan Lal to give the money, that thereupon Madan Lal gave Rs. 5100 to the Sarpanch Dalip Singh and he passed it on to Dharma Lohar and undertook the responsibility to have votes cast in favour of the appellant and that the temple treasurer Ram Singh passed a receipt for the amount.
The evidence of this witness that Madan Lal of Kandela village gave Rs. 5100 is inconsistent with the allegation made in the election petition that the appellant himself gave that amount.
His evidence that it was given to Dalip Singh though consistent with the allegation made in the election petition and the evidence of P.W. 91 is inconsistent with the evidence of P.W. 90 that it was given to Dharma Lohar.
We 320 are, therefore, unable to place any reliance on his evidence regarding this item of alleged corrupt practice.
The evidence of P.Ws. 1, 16, 90, 91, and 92 referred to above is wholly unreliable and does not prove the corrupt practice of which the appellant has been found guilty by the learned Single Judge.
We may state here that Mr. S.N. Kacker, Senior Advocate who appeared for the respondent, probably felt that the Judgment of the learned Single judge holding the appellant guilty of this item of corrupt practice is wholly indefensible and he candidly admitted that he will not advance any argument at all in favour of the first respondent.
In these circumstances for the reasons mentioned above, we allow this appeal but without costs and set aside the judgment of this learned Single Judge who found the appellant guilty of this item of corrupt practice.
M.L.A. Appeal allowed.
[/INST]Notwithstanding the provision in section 105 of the Representation of the People Act (Act XLIII) of 1951 that every order of an Election Tribunal made under the Act shall be final and conclusive, the High Court and the Supreme Court have unfettered jurisdiction to examine whether the tribunal, in the exercise of its undoubted jurisdiction, has acted legally or otherwise, This jurisdiction cannot be taken away by a legislative device that purports to confer power on a tribunal to act illegally.
The legality of an act or conclusion is something that exists outside and apart from the decision of an inferior tribunal.
It is a part of the law of the land which cannot be finally determined or altered by any tribunal of limited jurisdiction.
The High Courts and the Supreme Court alone can determine what the law of the land is vis a vis all other Courts and tribunals and they alone can pronounce with authority and finality on what is legal and what is not.
All that an inferior tribunal can do is to reach a tentative conclusion which is subject to review under Articles 226 and 136 of the Constitution.
The jurisdiction of the High Courts under Article 226, with that of the Supreme Court above them, re main it , fullest extent despite section 105 of the Representation 2 of the People Act.
Limitations on the exercise of, such jurisdiction can only be imposed by the Constitution.
The powers of the High Courts under Article 226 of the Constitution are discretionary and, though no limits can be placed upon that discretion, it must be exercised along recognised lines and not arbitrarily.
In the exercise of their jurisdiction under Article 226, the High Courts should not act as Courts of Appeal or revision to correct mere errors of law which do not occasion injustice in a broad and general sense.
It is a sound exercise of discretion to bear in mind the policy of the legislature to have disputes about special rights, as in election cases, decided as speedily as may be.
The High Courts should not therefore entertain petitions for prerogative writs lightly in this class of case.
The appellant filed an election petition under section 100 of the Representation of the People Act.
He appeared on the first and 'Subsequent hearing at Kotah.
The proceedings were then adjourned for certain hearings at Udaipur.
The appellant did not appear on the first three hearings at that place so the tribunal proceeded ex parte.
His counsel appeared on the fourth hearing but was not allowed to take any further part in the proceedings because no good cause was shown for the earlier non appearance and so the tribunal refused to set aside its "ex parte order".
Held, (1) Under section 90(2) of the Representation of the People Act the procedure for the trial of election petitions is to be, as near as may be, the same as in the trial of suits under the Civil Procedure Code; (2) under the Civil Procedure Code there is no such thing as an ex parte order for non appearance" which precludes further appearance at an adjourned hearing until the Order is set aside.
If a party appears at an adjourned hearing the court has a discretion (which must be exercised judicially) either to allow him to appear oil such terms as it thinks fit, or to disallow further appearance; but (3) if he is allowed to appear then, unless good cause is shown under Order 9, rule 7 for the earlier non appearance the proceedings must continue from the stage at which the later appearance is entered and the party so appearing cannot be relegated to the position he would have occupied if he had appeared at the earlier hearing or hearings; also, (4) in exercising its discretion the court must see that justice is done to all concerned, including the witnesses Rule 6 (1) (a) of Order 9 of the Civil Procedure Code is confined to the first hearing of the suit and does not apply, per se to subsequent hearings.
0. 9, r. 7 gives a party a right to be relegated to the position he would have occupied if he had appeared at the earlier hearing or hearings if he shows good cause.
It does not per se prevent further appearance when no good cause is shown.
O. 17, r. 2 applies at the adjourned hearing and there, the Court is given a wide discretion to make such order as it thinks fit.
3 A code of procedure is a body of law designed to facilitate justice and further its ends, and should not be treated as an enactment providing for punishments and penalties.
The laws of procedure are grounded on the principle of natural justice which requires that men should not be condemned unheard, that decisions should not be reached behind their backs, that proceedings that affect their lives and property should not continue in their absence and that they should not be precluded from participating in them.
Subject to clearly defined exceptions the laws of procedure should be construed wherever reasonably possible, in the light of that principle.
The court is invested with the widest possible discretion to see that justice is done to all concerned.
No hard and fast rule can be laid down; and the court in the exercise of its judicial discretion will have, in a given case, to determine what consequences are to follow from non appearance.
An order awarding costs, or an adjournment, or the consideration of the written statement and the framing of the issues on the spot, can in some cases meet the ends of justice.
In other cases, more drastic action may be called for.
By "ends of justice" is meant not only justice to the parties but also to witnesses and others who may be inconvenienced.
The convenience of the witnesses, which deserves the greatest consideration, is ordinarily lost sight of in this class of case.
Justice strongly.
demands that this unfortunate section of the general public com pelled to discharge public duties, usually at loss and inconvenience to themselves should not be ignored in the over all picture of what will best serve the ends of justice; and it may well be a sound exercise of discretion in a particular case to refuse an adjournment and permit the plaintiff to examine the witnesses present and not allow the defendant to cross examine them.
But broadly speaking, after all the various factors have been taken into consideration and carefully weighed, the endeavour should be to avoid snap decisions and to afford the parties a real opportunity of fighting out their cases fairly squarely.
The Court must in every case exercise the discretion given to it.
Its hands are not tied by a so called "ex parts order", and, if it thinks they are tied by rule 7 of Order 9 of the Code, then it is not exercising the discretion which the law says it should, and in a given case interference may be called for.
Held, that the Election Tribunal did not exercise the discretion given to it by law because of a misapprehension that it had none.
It was directed to do so now and to proceed with the further hearing of the case in accordance with law.
Hari Vishnu vs Ahmed Ishaque ([1955] 1 S.C.R. 1104), Darga Shankar Mehta vs Thakur Raghuraj Singh ([1955] 1 S.C.R. 267), and Raj Krushna Bose vs Binod Kanungo ([1954] S.C.R. 913, 918), applied.
Hariram vs Pribhdas (A.I.R. 1945 Sind 98, 102), distinguished.
Sewaram vs Misrimal (A.I.R. , 14), overruled.
Venkatasubbiah vs Lakshminarasimham (A.I.R. , approved Balakrishna Udayar vs Vasudeva Ayyar (I.L.R. , 4 T. M. Barret vs African Products Ltd. (A.I.R. 1928 P.C. 261, 262) and Sahibzada Zeinitlabdin Khan vs Sahibzada Ahmed Baza Khan (5 I.A. 233, 236), applied.
Case remitted to, the Tribunal:
</s>
|
<s>[INST] Summarize the judgementminal Appeal No. 179 of 1961.
Appeal by special leave from the judgment and order dated October 31, 1960, of the Andhra Pradesh High Court in Criminal Appeal No. 161 of 1960.
K. R. Chaudhuri, for the appellant.
A. section R. Chari, B. R. G. K. Achar, and R. N. Sachthey, for the respondent.
March 16, 1964.
The following judgments were delivered SARKAR, J. This is an appeal from a sentence of imprisonment for life imposed on the appellant upon his conviction for the offence of the murder of his wife.
The appeal was filed with the special leave of this Court granted under article 136 of the Constitution but the appellant died pending the appeal.
His legal representatives now seek leave to continue the appeal.
There would seem to be authority for the proposition that revision petitions and some appeals from sentences of fine might be continued by his legal representatives on the death 254 of the accused pending the proceeding: see section 431 of the Code of Criminal Procedure and Pranab Kumar Mitra vs The State of West Bengal(1).
It appears that in England appeals from similar sentences are permitted to be continued by the executors of the deceased appellant: see Hodgson vs Lakeman(2).
It is true that neither section 431 nor the cases mentioned can be said to apply to the present case proprio vigore, for the present is not an appeal under the Code which is dealt with by section 431 nor is it a revisional application like the one which came up for consideration in Pranab Kumar Mitra 's case, while as for the English case, it is only of persuasive value.
All the same however I think it must now be held that appeals from sentences of fine may be permitted to be continued by the legal representatives of the deceased appellant.
First, I find no, provision making such appeals abate.
If they can be continued when arising under the Code, there is no reason why they should not be continued when arising under the Constitution.
If revision petitions may be allowed to be continued after the death of the accused so should appeals, for between them no distinction in principle is possible for the purpose of continuance.
It is true that the Code of Criminal Procedure which creates the revisional powers of a Court provides that such powers may be exercised suo motu but it does not seem to me that Pranab Kumar Mitra 's case(1) was based on this for on that ground all revision cases should have been permitted to be continued and the permission should not have been confined to cases of fine.
Indeed in that case this Court proceeded on the basis that there was no statutory provision applying to the case.
It observed, "even in the absence of any statutory provisions, we have held. . . that the High Court has the power to determine the case even after the death of the convicted person, if there was a sentence of fine also imposed on him, because that sentence affects the property of the deceased in the hands of his legal representative".
A sentence of fine affects property equally when the case is taken further up in appeal or in revision, If it is just and proper to continue the hearing in one case after the death of the accused, it would be equally so in the other case.
The principle on which the hearing of a proceeding may be continued after the death of an accused would appear to be the effect of the sentence on his property in the hands of his legal representatives.
If the sentence affects that property, the legal representatives can be said to be interested in the proceeding and allowed to continue it.
A sentence of fine no doubt affects the property.
In the present case, however, the sentence was not of fine but of imprisonment which on the death of the accused has become (1) (2) [1943] L.R.K.B. 15.
255 infructuous.
There is no one now who can be imprisoned.
It is, however, said that though that sentence can no longer be executed, it still affects the property of the deceased and the legal representatives are, therefore, interested in the appeal and should be permitted to continue it.
The matter is put in this way.
The appellant, who held a high office in the Government of Andhra Pradesh had been suspended during the investigation of the charge against him and he was dismissed from service under certain service rules on his conviction.
During this time the appellant had only been given a small allowance.
It was said that if the conviction was set aside, the estate would be entitled to receive the full salary from the Government.
It seems to me that this contention is not accurate.
It may be that if the sentence is set aside that may assist the legal representatives in their effort to obtain the full salary to which the deceased 's estate would have been entitled.
But the effect of the sentence imposed in this case being set aside would not directly entitle the legal representatives to the salary.
They will have to obtain necessary orders from the Government for the purpose.
It has not been shown to us that such order will automatically follow the setting aside of the conviction.
Neither has it been shown that the legal representatives cannot move the Government to pass such orders on the ground that the correctness of the conviction could not be tested because of the death of the appellant.
For these reasons I am unable to hold that tire justice of the case requires that the legal representatives of the deceased should be permitted to continue the appeal.
It would be extending the principle applied to the case of a sentence of fine, if on the basis of it this appeal was allowed to be continued by the legal representatives after the death of the appellant and for such an extension I find no warrant.
In my view, for these reasons the legal representatives are not entitled to continue the appeal.
That being so and as the sentence was one of imprisonment which would not affect anyone after the death of the accused, it cannot be said that there is anyone interested in the appeal.
There is no, question, therefore, in such a case for proceeding further with the appeal.
HIDAYATULLAH, J.
The appellant was convicted under section 302 of the Indian Penal Code and sentenced to imprisonment for life by the High Court of Andhra Pradesh.
He was granted special leave to appeal by this Court.
During the pendency of this appeal the appellant died on August 30, 1963.
After his death his sons and daughters applied to this Court on October 5, 1963 for permission to continue to prosecute the appeal.
Their petition is all that we are concerned with at the present moment.
The appellant was working as Superintending Engineer (Electricity) in the service of the Government of Andhra Pradesh.
The case against him was that on August 10, 1959 he 256 committed the murder of his wife by shooting her in the back with a revolver.
He was acquitted by the Sessions Judge of Krishna Division, Masulipatnam but, on appeal by the State Government the order of acquittal was set aside and he was convicted and sentenced as above.
In view of the appellant 's death we are of course not interested any further in considering the details of the offence, if any, unless we allow the heirs of the appellant to prosecute the appeal after his death and this is precisely what the present petitioners claim they are entitled to do.
It is admitted, however, that no analogous contention was ever raised in this Court, though appeal on the death of a sole appellant were, before this, treated as abated.
One would expect that an appeal of this character would normally abate on the death of the appellant because a criminal prosecution is concerned primarily with the punishment of an offender and not with the trial of an abstract issue about the truth or falsity of a prosecution case.
The maxim actio perso nalis moritur cum persona is often invoked in this behalf.
The Criminal Procedure Code in section 431 also provides that all appeals filed under section 41 I A sub section 2 or section 417 shall finally abate on the death of the accused and every other appeal under Chapter XXXI shall finally abate on the death of the appellant, except an appeal against a sentence of fine.
The section cannot cover a, case such as the present because this appeal was not filed under any of the sections mentioned in section 431 or under Chapter XXXI.
It is contended that without the aid of a provision like section 431, Criminal Procedure Code, the appeal must be treated as continuing and it is pointed out that for this reason and for the additional reason that the powers of revision can be exercised suo motu this Court allowed legal representatives t` continue to prosecute criminal revisions under section 439 of the Code in Pranab Kumar Mitra vs The State of West Bengal and Another(1) and Pritam Singh vs The State(2).
It is urged that on a parity of reasonig this appeal can be continued by the heirs.
It is not my purpose to consider, whether in the absence of any direct injury to the living every criminal proceeding must come to an end after the death of the accused whether before his conviction or after.
But there must always be some discernible reason for permitting another person to continue an appeal whether civil or criminal after the death of the appellant.
An appeal is not a heritable asset and does not revolve as a matter of course upon an executor or heir.
Even under the civil law an express provision is required for substitution of another person in the place of the person deceased before the appeal can be continued and this is again subject to whether the cause of action survives or not.
The same principle is again to the (1) (2) ; 257 forefront in section 431 when it allows an appeal in respect of fine to be continued but not appeals involving imprisonment.
The intention there too appears to be to afford only those persons a right whose interests are directly jeopardized by the judgment.
In so far as personal punishment (other than a fine) is concerned that stands dissolved by the death of the offender and an appeal to get that punishment set aside becomes infructuous and abates.
The only question in this case is whether the principle laid down in the two cases of this Court cited above should govern special appeals or the principle underlying section 431.
It may be said at once that the former is not a direct precedent applicable to the present matter because there is no analogy between an appeal by special leave and a revision under the Code.
The latter can be suo motu but not the former.
The petitioners claim that the father, if he were acquitted, would have been entitled to claim his pay for the period upto his death since on his conviction he was removed from service by the Government and the amount thus involved is Rs. 40,000/ .
The petitioners say that if the appeal were now allowed they would be able to ask for this amount and in this way claim an interest in the appeal.
This is not a case where the legal representatives after the death of the offender have to meet the liability of a fine or are required to protect the assets which they claim should reach them.
This is a case where the petitioners claim to have the judgment of the High Court reexamined so that they may be able to prefer a claim to the salary to which their father would have been entitled if he had been acquitted of the criminal charge.
In my judgment.
no claim of the petitioners is jeopardized directly by the judgment.
Their claim is dependent upon the administrative action of Government which may not proceed upon the result of the criminal prosecution.
In other words, the claim on the strength of which the present petitioners seek to join in this appeal is too remote and not directly consequential upon the issue to be tried.
The appeal was only concerned with the correctness, or otherwise of the conviction and not with any monetary claims depending upon the result of the appeal.
In such a situation the ordinary rule that a criminal proceeding against a person comes to an end on his demise must apply also to special appeals in this Court, such as this, even though the provisions of the Criminal Procedure Code may not be directly applicable.
At the hearing counsel cited cases from the English Courts and the Supreme Court of the United States.
The English cases referred to are collected in Short & Mellor 's Practice of the Crown Office and Griffith 's Guide to Crown Practice and the cases of the United States are referred to in Annotations.
L/P(D)ISCI 9 . 258 in 87 Lawyer 's Edition 1234 and 1 Lawyer 's Edition II Series 1879.
The English practice appears to be that there must be a, direct monetary liability attaching to the living by reasons of the impugned judgment before they can be allowed to continue an appeal filed by a dead person.
See Hodgson vs Lakeman(1) and Regina vs Rowe(2).
The American practice also appears to be the same.
There is good reason for holding that a criminal prosecution in which the State is anxious to bring an offender to book with a view to getting him punished for a crime comes to an end on the death of the person arraigned.
The same principle must apply also to appeals after conviction, except in so far as a judgment already rendered touches assets which would come to the legal representatives or the executor as the case may be.
Beyond this it is not possible to conceive of remoter interests because if the law were to take into account such remote interests every appeal would have to be continued after the death of the appellant.
In my judgment, the present petitioners do not claim any direct interest and the appeal must, therefore, be taken to have abated.
I agree that the petition be dismissed and the appeal held to have abated.
MUDHOLKAR, J.
This appeal raises an interesting and important question.
It is whether the heirs at law of a deceased person who had brought an appeal to this Court by special leave in which he had challenged his conviction and sentence for an offence, are entitled to prosecute the appeal after his death during the pendency of the appeal.
The applicants are the children of the deceased who was a Superintending Engineer (Electricity) in the service of the Government of Andhra Pradesh.
He was charged with an offence under section 302, Indian Penal Code for having committed the murder of his wife by shooting her with a revolver.
During the investigation of the offence he was placed under suspension with effect from August 10, 1959 and was allowed subsistence allowance for some time.
His defence at the trial was that while his wife was picking up the revolver from the teapoy on which he had kept it, suspecting that he would shoot himself with it, it went off accidently and killed her.
This defence was accepted by the Sessions Judge and he was acquitted.
On appeal by the State the High Court of Andhra Pradesh set aside the acquittal and convicted him of an offence under section 302, I.P.C. and sentenced him to undergo imprisonment for life.
He thereupon sought and obtained special leave from this Court to prefer an appeal.
During the pendency of the appeal he died.
According to the applicants a sum of Rs. 40,000/ would be due to the deceas ed, being the difference between the subsistence allowance actually paid by the Government to him and the total emolu ments that would have been payable to him from the date of (2) (1) 259 suspension till his death and that they as his legal heirs would be entitled to act this amount in case the conviction and sentence are set aside by this Court.
In support of his contention that the appeal has not abated by reason of the death of the appellant Mr. K. R. Chaudhuri points out that section 431 of the Code of Criminal Procedure (hereafter referred as the Code) which speaks about appeals is limited in its application to appeals under Ch.
XXXI of the Code and would not fetter the powers of this Court under article 136 of the Constitution to hear an appeal brought before it by special leave even though the person who brought it is no longer alive.
It is no doubt true that section 431 of the Code only says that appeals under section 411A, sub section
(2) and section 417 shall finally abate on the death of the accused and every other appeal under Chapter XXXI except an appeal from a sentence of fine shall finally abate on the death of the appellant.
It does not, therefore, in terms apply to an appeal permitted to be preferred by this Court in exercise of its discretion under article 136 of the Constitution.
The argument of Mr. Chaudhuri is that the power conferred upon this Court by article 136 is wide and discretionary and is analogous to that conferred upon the High Court by section 439 read with section 435 of the Code.
Therefore, upon an analogy of the decision of this Court in Pranab Kumar Mitra vs The State of West Bengal and another(1) this Court has the power to hear the appeal and to permit the applicants to prosecute it.
He does not contend that the applicants have a right to be brought on the record in place of the deceased appellant but submits that to meet the ends of justice it would be right and proper to permit the applicants to prosecute the appeal because if it succeeds they will be able to claim from the Government the arrears with respect to salary due to their deceased father from the Government.
It seems to me that the decision upon which reliance has been placed has no bearing upon an appeal brought to this, Court by special leave.
It is no doubt true that the power conferred by section 435 of the Code on the High Court and certain other courts and by article 136 of the Constitution on this Court is discretionary.
In so far as the High Court and certain other courts are concerned the discretion is to call for and examine any record of any proceeding before an inferior criminal court situate within the local limits of its jurisdiction for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order passed by the inferior court and as to the regularity of any proceeding of such court.
Under section 435 these courts have power to act in this manner suo motu and section 440 provides that no party has a right to be heard either (1) [1959] Supp. 1 S.C.R. 63.
L/d)D)ISCI 9,a) . 260 personally or by a pleader before such court, with one exception.
That exception is that the High Court cannot make an order under section 439 of the Code to the prejudice of an accused person unless he is given an opportunity of being heard either personally or by pleader in his defence.
When the record comes before the High Court it may in its discretion exercise any of the powers conferred on a Court of appeal by sections 423, 426, 427 and 428 or on a Court by section 338 and has also the power to enhance the sentence.
Article 136 of the Constitution confers discretion upon this court whether to grant special leave or not.
But this Article does not confer any power upon this Court to call for the record of any court or tribunal suo motu for the purpose of examining it and making an appropriate order.
It only empowers this Court to grant leave to a person to bring his appeal before it and afford him an opportunity of showing such error as may be existing in the judgment or order appealed from.
There is a fundamental difference bet ween a power which is exercisable by a Court suo motu and a power which can be exercised only when it is moved in that behalf by a party.
For the exercise of suo motu power the appearance of a, party before the Court concerned is not a prerequisite.
Indeed as section 440 provides, it is for the Court to decide whether or not to allow the party to appear before it and be heard.
But of course the principle of natural justice would preclude a court even in such a case from making an order to the prejudice of a party without giving the party an opportunity to be heard.
In so far as an appeal is concerned, by whichever way it is brought, whether as of right conferred by a provision in the Constitution or by any other law or by special leave the appellant has a right to be heard and a right to prosecute the appeal.
A Court exercising suo motu powers may choose at any stage to drop the proceeding and not proceed to examine the records at all.
But as long as an appeal is pending before a Court and there is a person legally competent to prosecute it and there is no legal impediment to its being heard, the Court has no discretion to refuse to go on with the appeal even though initially it may have been brought before it by its leave.
As soon as the leave is granted a right accrues in favour of the party who has been granted leave.
It may be that where this Court finds that leave has been improperly obtained or given it may revoke the leave.
But that is quite different from saying that without revoking the leave it can drop the appeal.
This distinction between revisional powers and appellate powers has been adverted to in the decision relied upon(1) at p. 70.
Sinha, J. (as he then was) has observed: "The revisional powers of the High Court vested in it by section 439 of the Code, read with section 435, do not create any right in the litigant, but only conserve the power of the High Court to see that justice is (1) [1959] Supp. 1 S.C.R. 63.
261 done in accordance with the recognized rules of Criminal Jurisprudence, and that subordinate criminal courts do not exceed their jurisdiction, or abuse their powers vested in them by the Code.
On the other hand, as already indicated, a right of appeal is a statutory right which has got to be recognized by the courts, and the right of appeal, where one exists, cannot be denied in exercise of the discretionary powers even of the High Court.
" Thus, when the special leave granted by this Court has not been revoked it can exercise with respect to the appeal before it what may be called appellate powers.
While hearing an appeal from the decision of a High Court, this Court will, therefore, be competent to exercise only such powers as the High Court itself could exercise in relation to the appeal.
In so far as the procedure for hearing a criminal appeal by special leave is concerned this Court has framed certain rules.
Order XXI of Supreme Court Rules, 1950 contains those rules.
Rule 23 of that Order provides for the entering of appearance by parties in the appeal.
Rule 24 provides for the filing of statements of case by the parties.
Rule 25 provides for setting down the appeal for hearing.
Rule 26 empowers the Court to direct the engagement of an Advocate at the cost of the Government in a proper case where the accused person is not represented by an Advocate 'on record of his choice.
Rule 27 provides for giving a notice to the accused where he is not represented on the date fixed for the hearing of the appeal and permits the accused person if he so wishes to present his case by submitting his argument in writing and provides for the consideration of the written argument at the hearing.
Sub rule (2) of that rule dispenses with necessity of production of the accused person in custody at the hearing of the appeal.
There is no express rule which states as to what has to be done where the accused person who is an appellant is not present or represented at the hearing of the appeal.
Order XLV, rule 5, however, preserves the inherent power of the Court to make such orders as may be necessary to meet the ends of justice or to prevent the abuse of the process of the Court.
Thus this Court has the power to prevent the abuse of its process and it will be an abuse of its process if the appellant despite service of notice of the date of hearing chooses to remain absent at the hearing.
Now, just as the Court can, under r. 18 of 0.
XXI dismiss an appeal for non prosecution where the appellant refuses to take the necessary steps for bringing the appeal to hearing, it must be deemed to have similar power to dismiss it where the appellant is not present or is not represented.
Where the absence of the appellant is due to the fact that he is dead it would still be a case of non prosecution and, therefore, this Court would have the right and the duty to dismiss the appeal.
Since the power 262 to prosecute the appeal inhered in the appellant alone, no one: else can claim to exercise it unless the law conferred such a right upon that other person.
This the law may do expressly as.
it has done in 0.
XXII of the Code of Civil Procedure or impliedly as it has done in section 431 of the Code.
Apart from the fact that in a criminal matter the issue is personal between the accused person and the State the fact remains that the right of appeal is also personal to the appellant.
It cannot be allowed to be exercised by another unless there is some provision in law which would permit it to be exercised or unless such a course is permissible by reference to a principle.
There is admittedly no express provision permitting the substitution of the legal representatives of a deceased appellant in a criminal appeal brought to this Court by special leave.
We have, however, to bear in mind the policy of the law as enacted in section 431 of the Code.
The policy is that every criminal appeal under chapter XXXI will abate except an appeal from a sentence of fine.
Thus, instead of there being any principle on the strength of which the legal heirs of a person could be allowed to prosecute after his death an appeal brought by him challenging his conviction and sentence of imprisonment the policy of the law is definitely opposed to it.
Moreover, only a person who can properly represent a deceased appellant can be allowed to be brought on record in his place and prosecute the appeal.
That is the principle upon which the provisions of 0.
XXII of the Code of Civil Procedure are based.
That again is the principle followed by the Courts in England in allowing appeals in which the challenge was to a fine imposed upon the appellant to be continued by the executors and administrators of the deceased appellant.
As an instance of this would first refer to Hodgson vs Lakeman(1).
In that case Viscount Caldecote C.J., permitted the executors of the deceased appellant claiming an interest in the appeal against his conviction and sentence of fine to prosecute the appeal.
The fine, though a small one, would have been a burden on the estate and thus the executors could be said to have had an interest in having that burden removed.
This case was distinguished in Regina vs Rowe(2) In that case the widow of the deceased appellant sought leave to prosecute the appeal in which he had challenged his conviction on four counts of obtaining money by false pretences and the sentence of imprisonment to 18 months.
The ground on which the widow 's application was supported was that the conviction against her husband affected her chances of employment and her position among her friends and that if interest is the test, then the widow also had an interest.
This argument was repelled by Lord Goddard C.J. who said that the Court cannot take notice of that because the interest she (1) (2) 263 has was not a pecuniary one.
It was further urged before the Court that where any person might be prejudiced by a conviction against a deceased person, and an appeal was lodged before the death of that person, the Court should allow the appeal to be continued by that person so that if there had been a miscarriage of justice and the heirs of the deceased were living under the shadow of the fact that their relative had died a convict, the interests of justice would require that the appeal be heard.
To this argument the answer of the learned Chief Justice was that this would be a case for making an application for a tree pardon.
In the course of the judgment he observed: ". . . we cannot allow a widow or an executor or an administrator of a deceased person to appeal to this court unless they can show a legal interest.
If a person is sentenced to pay a fine and dies having appealed, or even if he dies after payment of the fine it might be immediately afterwards it may be that the court would allow executors or administrators to appeal merely on the ground that if the conviction were quashed they could recover the fine for the benefit of th e estate of the deceased which they are bound to administer.
In Hodgson vs Lakeman(1) to which our attention was called, which was a case before the Divisional Court, but the principle would be the same, the appellant was dead, and the court allowed the executors to continue the appeal because there was a pecuniary interest.
Supposing, as sometimes happens, a man is convicted on indictment and fined pound 500; the money has to be paid, and the Crown can recover that money whether he is alive or dead, for it can recover it against his estate, and, therefore, it would be an injustice if the executors were not allowed to appeal and to say that the conviction was wrong, because, if it was wrong, the money would be saved.
It may be that it is artificial to say that if there is a pecuniary penalty an appeal might lie, whereas if corporal punishment or imprisonment is imposed there cannot be an appeal, but at the same time I do not see any ground on which we can say in the present case that anybody has an interest.
It may be that the widow would be very glad to have her husband 's name cleared, but we cannot take any notice of that sentimental interest.
There is nobody affected now by the judgment of the court because 264 the judgment was a sentence of imprisonment and the prisoner has died.
It would be a very novel step if, in these circumstances, we said that the court would entertain an appeal.
" In Short and Mellor 's (The Practice on the Crown Side of the King 's Bench Division, second edition) it is stated at p. 425 that the practice does not seem to be uniform and reference is made to some cases.
In one of them Hesketh vs Atherton(1) the counsel was allowed to argue an appeal after the death of one of the parties.
But in Leach vs Wanstead School Board (2) (2) wherein a conviction against the father of a child for not sending the child to school was challenged in appeal and the father and the child had died in the meanwhile, the Court refused to allow the case to be argued on the ground that there was no interest surviving.
In Siberry vs Connolly(3) where there was a claim for seaman 's wages, the appellant 's executors were allowed to take the place of the deceased appellant.
In Constantine vs Illingworth(4) where the defendant in a criminal case had died, the Court ordered the case to be struck out.
The same was done in Jones vs Fallowfield(5).
In Rivers vs Glasse(6) where the respondent had died and the appellant had given notice to the executors to support the conviction, the Court heard and determined the case and gave costs to the respon dent 's executors.
The position so far as the United States is concerned is set out as follows(7): "The death of an accused ordinarily abates a criminal action, including review proceedings pending at that time.
The interest of the deceased 's representatives or next of kin in clearing his good name was held in United States vs Mook(8) not to be sufficient to allow the appellate court, after the defendant 's death pending his appeal from a conviction of violating the Interstate Commerce Act, to decide the appeal on the merits.
The court however, added: 'we think it may not be amiss to say that it seems to us that the next of kin of a convicted person who dies pending an appeal have an interest in clearing his good name, which Congress might well believe would justify a change in the law." ' Thus in that jurisdiction also the basis of intervention, when permitted, is a survival of an interest in the heirs or executors of the deceased.
That interest would only be a pecuniary one (1)Short and Mellor at p. 425.(2) ibid.
(3)ibid.
(4) ibid.
(5)ibid.
(6) ibid.
(7) ; Series, p. 1879.(8) 265 and where the estate is not affected by the conviction there would be no ground for allowing the intervention of the heir or executor.
It may be that the interest of the heirs of the deceased convict to clear his name should be recognised and they ought to be allowed an opportunity to clear it.
But unless it is recognised by the legislature the court cannot take notice of it.
So far as the Court is concerned, the only question arising in the appeal before us is whether the conviction and sentence of imprisonment are correct in law.
The only person who had an interest in the appeal before the Court in showing that both were not justified was the appellant and since he is dead, the interest which he had ceases to exist and cannot pass to anyone.
Another case which was referred to at the bar was The State of Kerala vs Narayani Amma Kamala Devi(1) in which the decision in Pranab Kumar Mitra 's case (2) was relied upon and reference was made to Imperatrix vs Dongaji Andaji(3) In that case also the question was whether the High Court could exercise its revisional powers against an accused person even after his death.
There the Court was not concerned with its own powers with respect to a criminal appeal brought before it by special leave.
It is then said that the applicants have an interest inas much as the estate of the deceased appellant would be enriched by Rs. 40,000/ if this Court ultimately finds the appellant innocent and if the Government, acting on the basis of the decision of this Court which is binding upon it, rescinds the suspension order passed against the appellant and in conformity with it pays the arrears of salary due to the appellant.
This interest is not a direct interest in the sense that it cannot arise out of the decision of this Court even if it is in favour of the appellant.
The only interest which the applicants have is a. contingent one and is not one which could flow directly out of the ultimate decision of this Court.
If we may mention, the argument advanced in Rowe 's case(4) before Lord Goddard C.J., that by clearing her deceased husband 's name the widow 's chances of securing employment would improve was not accepted as creating a pecuniary interest such as to justify granting her permission to prosecute the appeal.
Indeed, the legislature has, by limiting in section 431 of the Code the survival of appeals to appeals against sentences of fine has chosen to recognise only one kind of interest and no other.
There could be several other kinds of interest, as was suggested during the arguments at the bar.
But this Court, in (1)[1962] Supp. 3 S.C.R. 943.
( 2 ) [1959] Supp. 1 S.C.R. 63.
(3) (4) 266 exercise of its inherent powers or discretionary powers, would not be acting according to correct legal principles in recognising a kind of interest which the legislature has not chosen to recognise.
In the circumstances, therefore, I am clear that the applicants ought not to be granted leave to prosecute the appeal.
Leave to prosecute appeal refused.
[/INST]The appellant was convicted under section 302 of the Indian Penal Code and sentenced to imprisonment for life by the High Court for the offence of the murder of his wife.
He was granted special leave to appeal by this Court.
During the pendency of the hearing of this appeal the appellant died.
After his death his sons and daughter applied to this Court for permission to continue to prosecute the appeal.
It was pleaded by the legal representatives of the appellant that though that sentence of imprisonment could no longer be executed, it still affected the property of the deceased and the legal representatives were, therefore, interested in the appeal and should be permitted to continue it.
The appellant, who held a high office in the Government of Andhra Pradesh had been suspended during the investigation of the charge against him and he was dismissed from service under certain service rules on his conviction.
During this time the appellant had only been given a small allowance.
On these facts it was pleaded that if the conviction was set aside, the estate of the deceased would be entitled to receive the full salary from the Government.
Held (Per Sarkar, J.): (i) Neither section 431 nor the cases men tioned can be said to apply to the present case proprio vigore, for the present is not an appeal under the code of criminal procedure which is dealt with by section 431 nor is it a revisional application like the one which came up for consideration in Pranab Kumar Mitra 's case, while as for the English case, it is only of persuasive value.
Pranab Kumar Mitra vs The State of West Bengal, [1959] Supp. 1 S.C.R. 63 and Hodgson vs Lakeman, , distinguished.
(ii).The principle on which the hearing of a proceeding may be continued after the death of an accused would appear to be the effect of the sentence on his property in the hands of his legal representatives.
If the sentence affects that property, the legal representatives can be said to be interested in the proceeding and allowed to continue it.
This principle applies in appeals, revisions, and in petitions under article 136 of the Constitution.
A sentence of fine no doubt affects the property.
In the present case, however, the sentence was not of fine but of imprisonment which on the death of the accused has become infructuous.
In the present case the effect of the sentence imposed in this case being set aside would not directly entitle the legal representatives to the salary.
They will have to obtain necessary orders from the Government for the purpose.
252 Held (Per Hidayatullah, J.): (i) This was an appeal against a sentence of imprisonment and an appeal of this character would normally abate on the death of the appellant because a criminal prosecution is concerned primarily with the punish ment of an offender and not with the trial of an abstract issue about the truth or falsity of a prosecution case.
The same principle must apply to appeals after conviction, except in so far as a judgment already rendered touches assets which would come to the legal representative.
In so far as personal punishment (other than a fine) is concerned that stands dissolved by the death of the offender and an appeal to get that punishment set aside becomes infructuous and abates.
Pranab Kumar Mitra vs The State of West Bengal, [1959] Supp. 1 S.C.R. 63, Pritam Singh vs State, ; , distinguished.
Hodgson vs Lakeman, [1943] L.R.K.B. 15, Baghis vs Rowes , referred to.
(ii).The principle laid down in Pranab Kumar Mitra vs The State of.
West Bengal and Another and in Pritam Singh vs The State has.no application to the present matter because there is no analogy between an appeal by special leave and a revision under the code.
The present case is not a case where the legal representatives after the death of the offender have to meet the liability of a fine or are required to protect the assets which they claim should reach them.
In the present case no claim of the petitioners is jeopardized directly, by the judgment.
Their claim is dependent upon the administrative action of Government which may not proceed upon the result of criminal prosecution.
This appeal was only concerned with the correctness or otherwise of the conviction and not with any monetary claims depending upon the result of the appeal.
In such a situation the ordinary rule that a criminal proceeding against a person comes to an end on his demise must apply also to special appeals in this court, such as this, even though the provisions of the Criminal Procedure Code may not be directly applicable.
Held (Per Mudholkar, J.): (i) The decision of this court in Pranab Kumar Mitra vs The State of West Bengal has no, bear ing upon an appeal brought to this court by special leave.
It is no doubt true that the power confer red by section 435 of the Code on the High Court and certain other courts and by Article 136 of the Constitution on this Court is discretionary.
Under section 439 of the Code the High Court can exercise any of the powers conferred on a court of appeal by sections 423, 426, 427 and 428 or on a court by section 338 and has also the power to enhance the sentence.
Under Section 435 of the Code, the High Court can suo motu call for the record of any inferior court but this power cannot be exercised by this court under article 136 of the Constitution.
Therefore there is a fundamental difference between the power of the High Court in revision and the power of this Court in article 136 of the Constitution.
Pranab Kumar Mitra vs The State of West Bengal, [1959] Supp. 1 S.C.R. 63, distinguished.
(ii).In a criminal matter the issue is personal between the accused person and the State and the right of appeal is also personal to the appellant.
There is admittedly no express provision permitting the substitution of legal representatives of a decreased appellant in a criminal appeal brought to this Court by 253 special leave.
The policy of the law discernible from section 431 of the Code has to be borne in mind.
The policy under section 431 of the Code is that every criminal appeal under chapter XXXI will abate except an appeal from a sentence of fine.
There is no provision which prescribes the continuation of the appeal on the death of the appellant in cases where the sentence is of imprisonment.
The interest of the legal representatives in the present case is not a direct interest in the sense that it cannot arise out of the decision of this court even if it is in favour of the appellant.
The only interest which the applicants have is a contingent one and is not one which could flow directly out of the ultimate decision of this Court.
Hodgson vs Lakeman, (1943) L.R.K.B. 15, Regina vs Rowe, , Hesketh vs Atherton, Leach vs Wanstead School Board, Siberry vs Connolly, Constantine vs Illingworth, Jones vs Gallowfield, Rivers vs Glasse, (all cited in Short and Mellor, Practice on the Crown Side of the King 's Bench Division 2nd Ed.
at p. 425), United States vs Mook, , The State of Kerala vs Narayani Amma Kamala Devi, [1962] Supp.
3 S.C.R. 943 and Imperatrix vs Dongali Andaji, , referred to and discussed.
(iii). .The
Legislature has by limiting in section 431 of the Code the survival of appeals to appeals against sentences of fine has chosen to recognise only one kind of interest and no other.
This Court in exercise of its inherent powers or discretionary powers would not be acting according to correct legal principles in recognising a kind of interest which the legislature has not chosen to recognise.
In the circumstances the applicants ought not to be granted special leave to prosecute the appeal.
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<s>[INST] Summarize the judgementN: Criminal Appeal No. 318 of 1978.
From the Judgment and order dated 29th and 30th April, 1976 of the High Court of Bombay in Criminal Appeal No. 1044 of 1973 A.S. Bhasme for the Appellant.
909 Prem Malhotra for the Respondent.
The Judgment of the Court was delivered by VENKATACHALIAH, J.
This appeal, by special leave by the State of Maharashtra, arises out of and is directed against the judgment, dated, April 29 30, 1976 of the High Court of judicature at Bombay in Criminal Appeal No.1044/73 on its file setting aside respondent 's conviction and sentence dated, 21.7.73, under Section 5(1)(e) read with Section 5(2) of the Prevention of Corruption Act of 1947 ( 'Act ' for short) in Special Case No. 24/70 on the file of the Special Judge, Greater Bombay.
The special judge held respondent guilty of the charge of Criminal Misconduct in that respondent was in possession of property and pecuniary resources, disproportionate to his known sources of income for which he could not satisfactorily account; and sentenced respondent to undergo rigorous imprisonment for 3 years and to pay a fine of Rs.20,000.
The High Court allowing respondent 's appeal before it acquitted him of the charge.
The State has come up in appeal.
At the relevant time, respondent Pollonji Darabshaw Daruwalla was an Appraiser in the customs department at Bombay.
He and several other customs officers were suspected of their complicity in certain offences, concerning export of stainless steel ware to Hongkong.
On 9.12.1968, Police inspector (PW 34), armed with a warrant in this behalf searched the residential premises of the respondent in the course of the investigation of that case.
Though nothing incriminatory for purpose of that investigation was discovered; however, the search revealed respondent 's possession of furniture, refrigerator, tape recorder and cash of Rs.7593 which were susceptible of the suspicion of the commission of an offence under Section 5(1)(e) read with Section 5(2) of the 'Act '.
PW 34, accordingly, obtained the requisite authorisation to investigate into this offence and after investigation, sought and obtained on 26.
10.1970 sanction to prosecute respondent.
On 2.11.1970, the charge sheet was placed against the respondent for an offence under Section 5(1)(a) read with 5(2) of the Act.
The substance of the charge was that respondent, as a publicservant, between the period of 1.4.1958 and 31.12.1968 was in 910 possession of pecuniary resources and property of the value of Rs.2,62,122.15; that his known sources of income during the said period was Rs.85,114.12; that, therefore, the property possessed by the respondent was disproportionate to his known sources of income to the extent of Rs.1,71,647 for which respondent could not satisfactorily account and that, thereby respondent was guilty of Criminal Misconduct within the meaning of and punishable under Section 5(2) of the Act.
Respondent having pleaded not guilty, the matter went for trial .
In support of the charge, the prosecution examined 34 witnesses.
A number of documents pertaining to the respondent 's investments in Banks; in company deposits; and on shares both in his own name and jointly with his wife, as also documents pertaining to the salary and emoluments of the respondent between 1.4.1958 and 31.12.1968 were brought on record and marked in evidence.
In the course of the trial, for the most part, respondent was not defended by a counsel.
Many of the prosecution witnesses were not cross examined.
It was only at a late stage of the proceedings that an advocate appeared for him.
From what is disclosed by the trend of the answers, in the course of the examination under Section 342 Cr. P.C., the possession of the assets in the form of investments in Fixed Deposits with Banks and with companies and on shares in the joint name of the respondent and his wife was not disputed.
The defence was that respondent was in possession of substantial assets even anterior to 1.4.1958 and that respondent had also derived substantial assets from his wife 's side.
His wife was stated to be the only daughter of a practising doctor.
Respondent also claimed that he and his daughter were in receipt of gifts from his mother.
The trial court went through the somewhat complex exercise of computing and collating the particulars of the investments, made by the respondent in his own name and in the name of his wife from time to time over the years.
In Chart No. I, appended to and forming part of its judgment the trial court formulated what, according to it, were the results of the collation of these particulars as to the receipts and investments for the various years.
In Chart No. II, the pay and emoluments which respondent was in receipt of, for and during the relevant period were set out.
In Chart No. III, the trial court has set out the amounts of interest and dividends received by the respondent during the relevant years.
911 6.
The substance of the outcome of the exercise by the trial, in A relation to the total income of the respondent for the relevant period was referred to and summarized by the High Court thus: "The total of all these items aggregate of Rs.169736.69.
It is urged on behalf of the State that out of this, estimated expense of Rs.31,114.47 should be deducted because they were not available to the respondent to be accumulated as his assets.
So the total sources available to him were Rs.1,38,621.83.
" Referring to the total assets acquired by the respondent during the relevant period and the extent of the disproportion, the High Court noticed the results of the findings of the trial court thus: "It was urged that the total assets being Rs.2,21,606.45, the assets of worth Rs.827984.23 were in excess".
We have heard Shri Bhasme, leamed counsel in support of the appeal and Shri U.R. Lalit, who was requested to assist the court as Amicus Curiae in view of the circumstance that respondent remained unrepresented.
Learned Counsel have taken us through the judgment under appeal and the evidence on record on the material points.
From what we can gather from the somewhat spread out reasoning of the High Court, the considerations that principally weighed with the High Court in reaching such conclusions as it did on the material points in controversy before it, admit of being formulated thus.
(a) That the selection of the particular period (from 1.4.1958 to 3 1.12.1968) for the ascertainment and determination of disproportionate assets is itself arbitrary and caused prejudice to the respondent; The period of reckoning should have been from 1946 to 1968 as that would have given a fuller and a more complete picture; (b) That it was erroneous to proceed as was done by the trial H 912 court on the premise that respondent was the beneficial owner of the joint bank investments where his name was not the first name; That prosecution had failed to establish and it was erroneous on the part of the trial court to have assumed B that in respect of the deposits in which the wife 's name occurred first and respondent 's name second, the respondent alone was the beneficial owner (c) That the deduction of Rs.41,839.17 as the carried forward assets from the period prior to 1.4.1958 was inadequate and it should have been Rs.56,822.
The effect of this would be that the whole of the investments made in the first year of the accounting period viz, 1954, would be absorbed by the higher assets so carriedforward; (d) That a sum of Rs.6,000 which was the value of the probable gift from the mother and Rs.1,275 representing the brokerage on the fixed deposits had to be given credit to the respondent on the resources side; (e) That from the bank account of Veera Bai, the wife of the respondent, a sum of Rs.82,827.99 had been with drawn during the period between 1.4.1958 and 31.12.1968 and that only Rs.31,010.12 had been given credit to on the plus side in the accounting and that the balance of Rs.51,815.87 should be treated as belonging to Veera Bai in joint investments and should, therefore be excluded from the value of respondent 's assets.
The High Court, on the basis of these re calculations, held that in all a sum of Rs.77,215,03 could not be treated as the assets of the respondent and had to be deducted from a sum of Rs.2,21,66.45.
In other words, the High Court held that the value of the assets of Rs.82,984.23 said to be in excess of and disproportionate to the known sources of income should be reduced by Rs.77,215.03.
Concluding, the High Court observed: "32.
Now comes the question, whether a man after serving for 22 years from 1946 to 1968, on the prosecution own 913 showing, is able to save Rs. 1,38,822 can it be said that the assets of Rs. 1,41,495 as observed by us, are disproportionate assets as required under Section 5(1)(e) of the Act.
In this connection, in our opinion, the difference is so negligible that it cannot be said to be disproportionate".
Shri Bhasme for the appellant seriously assailed the reasoning of and the conclusion reached by the High Court on these points and more particularly on the points noticed at (a) and (b).
Learned counsel submitted that the view of the High Court on points (a) & (b) was manifestly erroneous and the High Court misdirected itself in law on these propositions.
We are inclined to agree with the learned counsel on the submission on points (a) and (b).
In order to establish that a public servant is in possession of pecuniary resources and property, disproportionate to his known sources of income, it is not imperative that the period of reckoning be spread out for the entire stretch of anterior service of the public servant.
There can be no general rule or criterion, valid for all cases, in regard to the choice of the period for which accounts are taken to establish criminal misconduct under Section 5(1)(e) of the 'Act '.
The choice of the period must necessarily be determined by the allegations of fact on which the prosecution is founded and rests.
However, the period must be such as to enable a true and comprehensive picture of the known sources of income and the pecuniary resources and property in possession of by the public servant either by himself or through any other person on his behalf, which are alleged to be so disproportionate.
In the facts and circumstances of a case, a ten year period cannot be said to be incapable of yielding such a true and comprehensive picture.
The assets spilling over from the anterior period, if their existence is probablised, would, of course, have to be given credit to on the income side and would go to reduce the extent and the quantum of the disproportion.
On this aspect, the High Court observed: ". 20.
But at the same time, it has also to be remembered that the prosecution, without showing any reason has selected to begin the calculation of the assets from 1958.
I do not see any substantial reason in the selection of the year 1958.
It is on record that from 1954, the accused had 914 become the Appraiser.
It is also on record that from year 1958 the accused had separated from his brother mother after the child was born to his wife.
When I a the Public Prosecutor for the reason for selecting the period of 1958 to 1968, he said that it was done because the prosecution could lead evidence so as to show that the investment during these 10 years would be disproportionate of assets compared to the moneys received.
Looking to the logic of the prosecution, if amounts invested upto 1958 excluded by themselves, I see considerable force in Vashi 's arguments that the first year of 1958 should also be considered along with the previous years.
There is no charm in selecting the year.
I think that the prosecution would have been in a better position instead of selecting the period of 1958 to 1968, it had taken the entire period service from 1946 to 1968 and given credit of the amount that he has earned against all the assets that he had collected.
It is therefore difficult to understand why the prosecution has chosen the period from 1958 to 1968 ". 20.
We have carefully considered this evidence of the Police Inspector but still we are not convinced about the selected of the period.
We feel that the prosecution by selecting the check period of 10 years, when the accused had put in service from 1946 to 1968, i.e. for 22 years has done something whereby the chances of prejudicing the case of the accused are there 11.
The assumptions implicit in the above observation of the High Court suffer from a basic fallacy.
It is for the prosecution to choose what according to it, is the period which having regard to the acquisitive activities of the public servant in amassing wealth, characterise and is late that period for special scrutiny.
It is always open to the public servant to satisfactorily account for the apparently disproportionate nature of his possession.
Once the prosecution establishes the essential ingredients of the offence of Criminal Misconduct by proving, by the standard of criminal evidence, that the publicservant is, or was at any time during the period of his offence, in possession of pecuniary resources or property disproportionate to his sources of income known to the prosecution, the prosecution discharges its burden of proof and the burden of proof is lifted from the shoulders of the prosecution and descends upon the shoulders of the defence.
It then becomes necessary for the public servant to satis 915 factorily account for the possession of such properties and pecuniary resources.
It is erroneous to predicate that the prosecution should also disprove the existence of the possible sources of income of the public servant.
Indeed in State of Maharashtra vs Wasudeo Ramchandra, A.I.R. 1981 SC 1189 this Court characterised the approach of that kind made by the High Court as erroneous.
It was observed: " .
The High Court, therefore, was in error in holding that a public servant charged for having disproportionate assets in his possession for which he cannot satisfactorily account, cannot be convicted of an offence under Section 5(2) read with Sections 5(1)(e) of the Act unless the prosecution disproves all possible sources of income In the present case, the selection of a ten year period between 1.4.1958 and 31.12.1968 cannot, by reason alone of the choice of the period, be said to detract from the maintainability of the prosecution.
Equally erroneous, in the view of the High Court on the proposition noticed at point (b).
The assumption that in all jointdeposits, the depositor first named alone is the beneficial owner and the depositor named second has no such beneficial interest is erroneous.
The matter is principally guided by the terms of the agreement, inter se, between the joint depositors.
If, however, the terms of the acceptance of the deposit by the depositee stipulate that the name of the beneficial owner shall alone be entered first, then the presumptive beneficial interest in favour of the first depositor might be assumed.
There is no such material before the court in this case.
Indeed, the answers of the respondent to the specific questions under Section 342 Cr.
P.C. pertaining to the nature of the deposits and the suggestion implicit in the questions as to the beneficial ownership in the respondent in the deposits do not support the view of the High Court and lend credence to any doubts in the matter.
Respondent virtually acknowledged his beneficial interest in the deposits in the course of his examination under Section 342.
The view of the High Court on point (b) is clearly unsustainable.
However, these errors of approach and of assumption and inference in the judgment under appeal do not, by themselves, detract from the conclusion reached by the High Court that, in the ultimate analysis, the prosecution has not established the case against respondent beyond reasonable doubt.
916 The discussion of and the conclusion reached on the contents and parts (c) to (e) by the High Court tends to show that the disproportion of the assets in relation to the known source of income is such that respondent should be given the benefit of doubt though however, on a consideration of the matter, if cannot be said that there is no disproportion or even a sizeable disproportion.
For instance, Shri Bhasme is right in his contention that the acceptance by the High Court of the case of the alleged gift from the mother is wholly unsupported by the evidence.
There are also other possible errors in the calculations in regard to point(e).
The finding becomes inescapable that the assets were in excess on the known sources of income.
But on the question whether the extent of the disproportion is such as to justify a conviction for criminal misconduct under Section 5(1)(e) read with Section 5(2), we think, we should not, in the circumstanees of the ease, interfere with the verdict of the High Court as, in our view, the difference would be considerably reduced in the light of the factors pointed out by the High Court.
A somewhat liberal view requires to be taken of what proportion of assets in excess of the known sources of income constitutes "disproportion" for purpose of Section 5(1)(e) of the Act.
We think that the respondent should have the benefit of doubt.
The appeal is accordingly dismissed.
S.L. Appeal dismissed.
[/INST]% The respondent, Pollonji Darabshaw Daruwalla, was an appraiser in the Customs Department.
The police searched his residential premises on a suspicion of his complicity in certain offences concerning the export of the Stainless Steel Ware, in the course of the investigation of that case.
Though nothing incriminatory for the purpose of that investigation was discovered, the search revealed that the respondent was in possession of property and pecuniary resources, disproportionate to his known sources of income between 1.4.1958 and 31.12.1968, for which he could not satisfactorily account for.
This led to the suspicion of the commission by the respondent of an offence under the Prevention of Corruption Act, 1947, and the respondent was charge sheeted for an offence under section 5(1)(e), read with section S(2) of the Act.
In support of the charge, a number of documents pertaining to the respondent 's investments in the banks, in the company deposits and on shares, both in his own name and jointly with his wife, as also the documents pertaining to the salary and emoluments of the respondent between 1.4.1958 and 31.12.1968 were brought on record in evidence.
The defence was that the respondent was in possession of substantial assets even anterior to 1.4.1958.
The Special Judge held the respondent guilty and sentenced him to rigorous imprisonment and fine.
The respondent filed an appeal before the High Court against the Judgment and order of the Special Judge.
The High Court allowed the appeal and acquitted the respondent.
The State appealed to this Court by special leave against the decision of the High Court.
Dismissing the appeal, the Court, ^ HELD: In order to establish that a public servant is in possession of pecuniary resources and property disproportionate to his known 907 sources of income, it is not imperative that the period of reckoning be spread out for the entire stretch of anterior service of the public servant.
There can be no general rule or criterion, valid for all cases, in regard to the choice of the period for which accounts are taken to establish criminal misconduct under section S(1)(e) of the Act.
The choice of the period must necessarily be determined by the allegations of fact on which the prosecution is founded and rests.
However, the period must be such as to enable a true and comprehensive picture of the known sources of the income and the pecuniary resources and property in possession of the public servant either by himself or through any other person on his behalf which are alleged to be so disproportionate.
A ten year period cannot be said to be incapable of yielding such a true and comprehensive picture.
The assets spilling over from the anterior period, if their existence is probablised, would, of course, have to be given credit to on the income side and would go to reduce the extent and quantum of the disproportion.
It is for the prosecution to choose what is the period, having regard to the acquisitive activities of the public servant, and characterise and isolate that period for special scrutiny.
In this case, the selection of a ten year period between 1.4.1958 and 31.12.1968, cannot, by reason alone of the choice of the period, be said to detract from the maintainability of the prosecution, and the view of the High Court on these points is erroneous.
[913C F; 914E; 915C D] Once the prosecution establishes the essential ingredients of the offence of criminal misconduct by proving, that the public servant is, or was, at any time during the period of his offence, in possession of pecuniary resources or property disproportionate to his sources of income known to the prosecution, the prosecution has discharged its burden of proof and the burden of proof is lifted from the shoulders of the prosecution and descends upon the shoulders of the defence.
It then becomes necessary for the public servant to satisfactorily account for the possession of such properties and pecuniary resources.
It is erroneous to predicate that the prosecution should also disprove the existence of the possible source of the public servant.
[914G H; 915A B] Equally erroneous and unsustainable is the view of the High Court on the proposition that the respondent was not the beneficial owner in the joint bank investments where the respondent 's name was not the first name but his wife 's name occurred first.
The assumption that in all the joint deposits, the depositor first named alone is the beneficial owner and the depositor named second has no such beneficial interest, is erroneous.
The matter is principally guided by the terms of the agreement, inter se between the joint depositors.
If, however, the 908 terms of the acceptance of the deposit by the depositee stipulate that the name of the beneficial owner shall alone be entered first, then the presumptive beneficial interest in favour of the first depositor might be assumed.
There was no such material before the Court in the case.
The respondent virtually acknowledged his beneficial interest in the deposits in the course of his examination under section 342, Cr.
P.C. [915D G] However, though there are errors of approach and of assumption and inference in the judgment under appeal, they did not by themselves detract from the conclusion reached by the High Court that in the ultimate analysis, the prosecution had not established the case against the respondent beyond reasonable doubt.
The conclusion reached by the High Court tends to show that the disproportion of the assets in relation to the known sources of income was such as to entitle the respondent to be given the benefit of doubt, though, however, on a consideration of the matter, it could not be said that there was no disproportion or even a sizeable disproportion; for instance, the acceptance by the High Court of the case of receipt by the respondent of the alleged gift from his mother, was wholly unsupported by the evidence.
There were also other possible errors in the calculations in regard to the carried forward assets, etc.
The finding became inescapable that the assets were in excess of the known sources of income.
But on the question whether the extent of the disproportion was such as to justify a conviction for criminal misconduct under section 5(l)(e) read with section 5(2), the Court thought it should not, in the circumstances of the case, interfere with the verdict of the High Court, as, in the Court 's view, the difference would be considerably reduced in the light of the factors pointed out by the High Court.
A somewhat liberal view was required to be taken of what proportion of assets in excess of the known sources of income constitutes "disproportion" for the purposes of section 5(1)(e) of the Act.
[915G H; 916A D] The respondent should have the benefit of doubt.
State of Maharashtra vs Wasudeo Ramachandra, A.I.R. 1989 S.C 1189, referred to.
[916E]
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<s>[INST] Summarize the judgementCriminal Appeal No. 128 of 1990.
From the Judgment and Order dated 19.8.1989 of the Patna High Court in Criminal Miscellaneous No. 2314 of 1989.
A.D. Sikri, Ranjan Mukherjee and D. Goburdhan for the Appellant.
R.K. Garg and A. Sharan for the Respondents.
The Judgment of the Court was delivered by FATHIMA BEEVI, J.
Special leave granted.
790 The legality of the order of the High Court dated 19.8.
1989 passed on an application made under section 482 Cr.
P.C. is challenged in this appeal.
In a case instituted on a private complaint by the appellant for offences under sec tions 452 and 323 I.P.C., the Judicial Magistrate First Class, Patna, in exercise of power under section 192(2) Cr.
P.C. transferred the case for enquiry under section 202 of the Code.
The Court of the Second Class Magistrate, after examining witnesses, by order dated 22.3.
1985 issued proc ess to the two accused, the respondents herein.
The order of the Magistrate issuing process was challenged by the re spondents under section 482 before the High Court.
The main ground urged before the High Court was that the First Class Magistrate had transferred the case without taking cogni zance of the offence and the subsequent proceedings were, therefore, illegal.
The High Court, by its order dated 20.8.88, dismissed the petition.
It was found that there was no such illegality.
The respondents again made Crl.
Petition 2314/89 under section 482 Cr.
P.C. before the High Court alleging, inter alia, that the record of the proceed ings on close scrutiny would indicate that the case had not been taken cognizance of before the transfer.
The learned Single Judge accepted the case of the respondents and quashed the proceedings by the impugned order.
The learned counsel for the appellant contended before us that the second application under section 482 Cr.
P.C. was not entertainable, the exercise of power under section 482, on a second application by the same party on the same ground virtually amounts to the review of the earlier order and is contrary to the spirit of section 362 of the Cr.
P.C. and the High Court was, therefore, clearly in error in having quashed the proceedings by adopting that course.
We find considerable force in the contention of the learned counsel.
The inherent power under section 482 is intended to prevent the abuse of the process of the Court and to secure ends of justice.
Such power cannot be exercised to do something which is expressly barred under the Code.
If any considera tion of the facts by way of review is not permissible under the Code and is expressly barred, it is not for the Court to exercise its inherent power to reconsider the matter and record a conflicting decision.
If there had been change in the circumstances of the case, it would be in order for the High Court to exercise its inherent powers in the prevailing circumstances and pass appropriate orders to secure the ends of justice or to prevent the abuse of the process of the Court.
Where there is no such changed circumstances and the decision has to be arrived at on the facts that existed as on the date of the earlier order, the exercise of the power to reconsider the 791 same materials to arrive at different conclusion is in effect a review, which is expressly barred under section 362.
In the present case, there had been a definite finding that the complaint was taken cognizance of by the Magistrate before he transferred the proceedings under section 192(2) for enquiry under section 202 Cr.
This finding has been arrived at after perusal of the record of the proceedings before the Magistrate and on a consideration of the report of the concerned Magistrate.
A reappraisal of the facts on record to determine whether such cognizance had been taken of in a subsequent proceeding is not, therefore, warranted.
The only ground on which relief was claimed is the alleged irregularity in the transfer of the proceedings.
It was not open to the parties to reagitate the question by a fresh application nor was the court empowered under section 482 to reconsider the matter.
Section 362 of the Code expressly provides that no court when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error save as otherwise provided by the Code.
Section 482 enables the High Court to make such order as may be necessary to give effect to any order under the Code or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.
The inherent pow ers, however, as much are controlled by principle and prece dent as are its express powers by statute.
If a matter is covered by an express letter of law, the court cannot give a go by to the statutory provisions and instead evolve a new provision in the garb of inherent jurisdiction.
In Superintendent & Remembrancer of Legal Affairs vs Mohan Singh, , this Court held that section 561A preserves the inherent power of the High Court to make such orders as it deemed fit to prevent abuse of the process of the Court or to secure the ends of justice and the High Court must therefore exercise its inherent powers having regard to the situation prevailing at the particular point of time when its inherent jurisdiction is sought to be invoked.
In that case the facts and circumstances obtaining at the time of the subsequent application were clearly different from what they were at the time of the earlier application.
The question as to the scope and ambit of the inherent power of the High Court vis a vis an earlier order made by it was, therefore, not concluded by this decision.
The inherent jurisdiction of the High Court cannot be invoked to override bar of review under section 362.
It is clearly stated in Sooraj 792 Devi vs Pyare Lal, ; that the inherent power of the court cannot be exercised for doing that which is specifically prohibited by the Code.
The law is therefore clear that the inherent power cannot be exercised for doing that which cannot be done on account of the bar under other provisions of the Code.
The court is not empowered to review its own decision under the purported exercise of inherent power.
We find that the impugned order in this case is in effect one reviewing the earlier order on a reconsideration of the same materials.
The High Court has grievously erred in doing so.
Even on merits, we do not find any compelling reasons to quash the proceedings at that stage.
We allow the appeal and set aside the order of the High Court.
G.N. Appeal allowed.
[/INST]This petition under Article 32 of the Constitution of India was filed by the wife of the detenu challenging the validity of the Detention Order dated 15.8.1989 passed against her husband by the Collector and District Magistrate of Kamarajar District Virudhunagar, Tamil Nadu on allega tions inter alia that the District Magistrate had issued the impugned order for detention of her husband, who is an active member of the All India Anna Drayida Munnetra Kazha gam party, an active social and political worker and ex member of the Tamil Nadu Legislative Assembly, at the behest of Respondent No. 3 a Minister in the present DMK Govern ment, on account of personal and political animosity between the two.
Counsel for the Detenu urged two grounds to attack the order of detention.
Firstly that the order did not specify the period of detention, and secondly that the sole ground of detention as reflected in the Grounds of Detention has no relevance to the maintenance of 'Public Order ' as the facts mentioned therein donot make out any case of violation of public order.
At best, it may be a case of law and order only which exhibits non application of mind by the detaining authority.
837 Allowing the writ petition and quashing the impugned order of detention on the ground of non application of mind by the Detaining Authority in passing the Detention order, this Court, HELD: (1) Since the Act does not require the detaining authority to specify the period for which a detenu is re quired to be detained the order of detention is not rendered invalid or illegal in the absence of such specification in the Detention order.
[843E] Commissioner of Police & Anr.
vs Gurbux Anandram Birya ni, [1988] Supp.
SCC 568 Over ruled.
Ashok Kumar vs Delhi Administration & Ors., , Ujagar Singh vs The State of Punjab, ; Suna Ullah Butt vs State of Jammu & Kashmir, ; ; Suresh Bhojraj Chelani vs State of Maharashtra, and A.K. Roy vs Union of India & Ors., ; , approved.
(2) In a case where the detaining authority may not be present at the place of the incident or the occurrence, he has to form the requisite opinion on the basis of materials placed before him by the sponsoring authority but where the detaining authority was himself present at the scene of occurrence he should have relied more on his own knowledge and observation then on the report of the sponsoring author ity.
[853H; 854A] In the instant case, the detaining authority though present at the scene of occurrence does not support the incident as presented to him by the sponsoring authority, and yet he issued the detention order on the report of sponsoring authority.
In these circumstances, there was nonapplication of mind by the detaining authority in making the order of detention.
[854B] Dr. Ram Manohar Lohia vs State of Bihar, ; ; Pushkar Mukher]ee & Ors.
vs The State of West Bengal, ; ; Shyamal Chakraborty vs Commissioner of Police Calcutta & Anr., ; ; Arun Ghosh vs State of West Bengal, ; Nagendra Nath Mondal vs State of West Bengal, ; ; Sudhir Kumar Saha vs Commissioner of Police, Calcutta, ; ; S.K. Kedar vs State of West Bengal, ; Kanu Biswas vs State of West Bengal, ; ; Kishori Mohan vs State of West Bengal, ; Amiya Kumar Karmakar vs State of West Bengal, and Manu Bhusan Roy Prodhan vs State of West Bengal & Ors.
, ; , referred to. 838
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<s>[INST] Summarize the judgementiminal Appeal No. 55 of 1965.
Appeal by special leave from the judgment and order dated June 16, 1964 of the Calcutta High Court in Criminal Misc.
Case No. 28 of 1964.
Debobrata Mukherjee and P. K. Chakravarty, for the appel lants.
D. N. Mukherjee for P. K. Bose, for respondent No. 1.
Niren De, Solicitor General, B. Sen and G. section Chatterjee, for the intervener.
Hidayatullah, C.J.
The five appellants are District Magis trate of Nadia and his four assistants who have been found guilty of contempt of the High Court of Calcutta and the Sessions Court of Nadia and sentenced to fines with imprisonment in default of payment.
They now appeal by special leave granted by this Court.
The facts are long and need a full narration.
306 One Birendra Kumar Sarkar, Sub Agent of Phosphate Co. Ltd. Krishnagar, District Nadia, was prosecuted for contravention of the Fertiliser Control Order, read with section 7(1) of the Essential Commodities Act and on his own plea was convicted and sentenced to Rs. 20 fine or simple imprisonment for 10 days.
We are not concerned with his conviction.
The fertiliser seized during investigation was sold by order of the Court and the sale proceeds held in deposit.
On the conviction of Birendra Kumar the amount in deposit (Rs. 4,215) was directed on March 11, 1963 to be returned to him.
The same day the Phosphate Co. Ltd. applied to take out the amount and the Magistrate reversed the earlier order and directed that the amount be paid to the Company.
Birendra Kumar appealed to the Sessions Judge, Nadia under section 520 of the Code of Criminal Procedure.
This appeal succeeded and on December 23, 1963, the Sessions Judge directed the Magistrate to deliver the amount to Sarkar upon his furnishing security and executing a bond to the satisfaction of the District Magistrate, Nadia.
On January 3, 1964 Sarkar produced a certified copy of this order and asked to be allowed to take out the amount and furnished a bond.
The bond was found in order by N. C. Mookherjee, Magistrate 1st Class, who recommended its acceptance.
It was then accepted by A. Sen, Additional District Magistrate, Nadia.
On January 11, 1964 the accountant attached to the Court of N. C. Mookerjee reported and the latter directed issuance of a pay order.
Sarkar received the pay order the same day and deposited it with his bankers (State Bank of India) on January 13, 1964.
On January 8, 1964 the Company expressed to the Sessions Court, its intention of moving an application for revision in the High Court at Calcutta against the order of December 23, 1963 and asked for stay.
Stay was not immediately granted.but notice F was issued to Sarkar to show cause on January 16, 1964.
Later a stay order was also sent.
On January 13, 1964 the High Court issued a rule and also directed stay of operation of the Sessions Judge 's order of December 23, 1963.
It will be seen from the above facts that the actual payment of money was made under the orders of the Sessions Judge passed on December 23, 1963 as far back as January 11, 1964.
The High Court has considered the question of the contempt of the Sessions Judge 's order from the angle of the kind of bond which was accepted, and the Officers who accepted it.
We shall come to it later.
We shall now trace the progress of the orders which were passed by the Sessions Judge and the High Court in proceedings subsequent to January 1964.
For this purpose it is sufficient to extract the summary of the events made by the High Court itself: 307 " The stay order dated 14th of January, 1964 was communicated by.
the Sessions Judge by his Memo.
No. 170 and it was received by the District Magistrates Office on 16th of January, 1964.
On 20th January, 1964 Memo No. 443 Jm.
containing the direction to carry out the order of the Sessions Judge dated 23rd December, 1963 was drafted by Pulak Kumar De and it was signed by another Magistrate Shri Jyotirmoy Ghose.
On 22nd January, 1964 on which date the Rule issued by this Court in Criminal Revision No. 60 of 1964 was also received in the District Magistrate 's Office.
It was sent to the trial Magistrate 's Court with Memo No. 549 Jm.
only on 29th January 1964 and was received in the trial Magistrate 's Court on 30th January, 1964.
In the meantime Sessions Judge 's Memo No. 170 that had been received in the District Magistrate 's Office on 16th of January 1964 was also dispatched to the trial Magi strate 's Court on 29th of January, 1964 by Memo.
No. 554 Jm.
and the trial Magistrate received it on 30th January, 1964.
Sessions Judge 's Memo.
No. 108 dated 11th January, 1964 which was received in the District Magistrate 's Office on 15th January, 1964 and is said to have be en dispatched to the trial Magistrate 's Court on 22nd January, 1964 with Memo.
No. 443 Jm.
is said to have been received by the Bench Clerks of the trying Magistrate on 25th January, 1964 and put up before the Magistrate only on 1st February, 1964.
" On the above facts the High Court framed the following questions: "(1) Has there been disobedience of the order of the Sessions Judge, Nadia that money should be given to Birendra Kumar Sarkar on a Bond to the satisfaction of the District Magistrate, Nadia ? (2) Was the Bond upon which pay order for the money had been made a document that complies with the order for the Sessions Judge of Nadia dated 23rd December, 1963 ? (3) Was Memo.
No. 443 Jm.
dated 20th January, 1964 directing to carry out Sessions Judge 's order dated 23rd December, 1963 after the order of stay made by the Sessions Judge on 14th January, 1964 was received in the District Magistrate 's office on 16th January 1964 by Memo.
No. 108 dated 11th January 1964 an intentional violation of the stay order? The first two questions were treated as interconnected and dealt with together.
The High Court found fault with the bond 308 and also opined that none else save the District Magistrate could accept the bond.
With all respect, the High Court erred on both the aspects.
The bond is reproduced below ': "BOND A bond is made this day by Sri Birendra Kumar Sarkar son of late Bilash Chandra Sarkar of Chand Sarkar, Krishnagar, Dt.
Nadia is hereby agreed and received Rs. 4,125 (Rupees four thousand one hundred and twenty five only) which has been deposited in the court in connection with G.R. Case No. 338 of 1961 and the said amount has been ordered by the Sessions Judge of Nadia in case (Criminal Appeal No. 75 of 1963), 1 Birendra Kumar Sarkar s/o late Bilash Chandra Sarkar bind myself and my heirs, executors, administrators and representatives to refund the entire money if disputes arises to the Government of West Bengal or its successors.
I bind myself, my heirs, executors, administrators and representatives firmly by this bond signed in my own hand dated this the 3rd day of January, 1964.
Sd/ Birendra Kumar Sarkar, 3 1 64 Signature of the executant Signed in my presence and identified.
Rajendranath Biswas, Muktear.
Krishnagar, 3 1 64" Now it is admitted that there is no prescribed form of bond applicable to the case.
The form had to be devised for the purpose.
The bond which was taken in an ordinary indemnify bond.
There is nothing in the words of section 517, Criminal Procedure Code, which excluded the use of an indemnity bond.
The Sessions Judge did not order that the bond should be taken in the name of any particular court.
A bond in the name of the Government of West Bengal substantially (if not wholly) complied with the order of the Sessions Judge.
It could be enforced against Sarkar without any trouble.
The further point that the District Magistrate alone could accept the bond ignores the powers of the Additional District Magistrate under the Code of Criminal Procedure.
The practice of courts in Bengal is also against the proposition because such bonds are usually considered for acceptance by Additional District Magistrates.
The High Court apparently thinks that the District Magistrate was a persona designate for the purpose.
We are unable to read such an inference in the order of the Sessions Judge which ran: 309 "The learned Magistrate be directed to deliver the sale proceeds which are now deposit (sic) in Court to the accused on the accused 's furnishing, bond of the amount covered by the sale proceeds to the satisfaction of the District Magistrate, Nadia.
" In our judgment the High Court could not base any action on such material.
It may be pointed out that the High Court did not throw into the balance the acceptance of the bond by the Additional District Magistrate holding that there was room for an error there but took serious note of the fact that the bond was not in the proper form.
We do not agree with the High Court.
This brings us to the last question.
The fact here is that the orders took some time before reaching their destination.
While we do not condone such delays, we think that the High Court was taking too strict a view of the matter.
Two things seems to have played a prominent part in the drawing of the inference against the concerned officers.
The first is that there was an intentional disobedience of the orders.
This the High Court visualised in the following terms: "That by itself bespeaks of a well throughout (sic) scheme to achieve an end and that end is the cherished goal to make over the money to Birendra Kumar Sarkar by violating the stay order of the Sessions Judge dated 14th January, 1964.
For carrying out that scheme the file in which the order sheet started on 3rd January, 1964, was started separately and to seclude the features in that file it was withheld from this Court when return was made to the Rule in Criminal Revision case No. 60 of 1964 until it was thought useful for making a defence in this Contempt Rule.
No other view of the matter could be suggested by the three learned Advocates appearing for the, several parties or the learned Advocate for the State, Mr. Fanindra Mohan Sanyal, and no other view is possible.
Now it seems quite impossible to subscribe to this opinion.
For a conspiracy to be hatched there must be some foundation of gain or purpose.
The conspirators (if they knew anything) would at least know that there was nothing to be gained by delaying the orders since the money was already paid out.
Once that had happened some fresh order would be necessary to demand back the amount from Sarkar or the bond would be enforced.
The stay orders were ineffective since there was nothing to stay.
To think that the officers (one and all) were actuated by a motive to frustrate the stay orders is to imagine a state of affairs for which there was no warrant at all.
There was thus no question of undermining the authority of the Court of Sessions Judge ' or 310 of bringing the 'administration of justice in the District of Nadia to ridicule '.
Nor can it be said that there was a deliberate interference with or obstruction to due course of justice.
There was no doubt some delay but that was a different matter and could be dealt with in other ways than punishment for an ;Imaginary contempt of court.
The second point which the High Court unfortunately placed at the very forefront was failure to offer an apology and noted with great show of emotion that none was offered.
Of course, an apology must be offered and that too clearly and at the earliest opportunity.
A person who offers a belated apology runs the risk that it may not be accepted for such an apology hardly shows the contrition which is the essence of the purging of a contempt.
However, a man may have the courage of his convictions and may stake his all on proving that he is not in contempt and may take the risk.
In the present case the appellants ran the gauntlet of such risk and may be said to have fairly succeeded.
The High Court was extremely hard upon the appellants in this case.
Details collected from the files of the case having no bearing upon the question of contempt were freely used.
They carry no convincement.
There are observations which in their tone do show that the matter was not approached in that cool manner in which the High Court considers contempt of itself or of courts subordinate to it.
This is a matter of regret to this Court.
A question whether there is contempt of court or not is a serious one.
The court is both the accuser as well as the judge of the accusation.
It behaves the court to act with as great circumspection as possible making all allowances for errors of judgment and difficulties arising from inveterate practices in courts and tribunals.
It is only when a clear case of contumacious conduct not explainable otherwise, arises that the condemner must be punished.
It must be realised that our system of courts often results in delay of one kind or another.
The remedy for it is reform and punishment departmentally.
Punishment under the law of Contempt is called for when the lapse is deliberate and in disregard of one 's duty and in defiance of authority.
To take action in an unclear case is to make the law of contempt do duty for other measures and is not to be encouraged.
In this case, no doubt there was some avoidable delay but as pointed out above it was the result of our system of transmission of orders of superior courts which must pass through several hands and not the product of design or defiance of the superior courts.
In these circumstances, it cannot be said that there was contempt of the authority of the High Court or of the Sessions Judge and the several appellants could not be convicted or punished.
In 311 this view of the matter we set aside their convictions and order refund of their fines.
We, however, caution all concerned that orders of stay, bail, injunctions received from superior courts must receive close and prompt attention and unnecessary delay in dispatching or dealing with them may well furnish grounds for an inference that it was due to a natural disinclination to deal with the matter born of indifference and sometimes even of contumaciousness.
G.C. Appeal allowed.
[/INST]Held, that sections 21, 30(2), 31, 55, 56 and 63 to 69 of the Madras Hindu Religious and Charitable Endowments Act, 1951 (Madras Act XIX of 1951) are ultra vires articles 19(1)(f), 25 and 26 of the Constitution of India.
Section 76(1) of the Act is void as the provision relating to the payment of annual contribution contained in it is a tax and not a fee and so it was beyond the legislative competence of the Madras State Legislature to enact such a provision.
That on the facts of the present case the imposition under a. 76(1) of the Act, although it is a tax, does not come within the latter part of article 27 because the object of the contribution under the section is not the fostering or preservation of the Hindu religion or any denomination under it but the proper administration of religious trusts and institutions wherever they exist.
130 1006 The word " property " as used in article 19(1)(f) of the Constitution should be given a liberal and wide connotation and should be extended to all well recognized types of interest which have the insignia or characteristics of proprietary right.
The ingredients of both office and property, of duties and personal interest are blended together in the rights of a Mahant and the Mahant has the right to enjoy this property or beneficial interest so long as he is entitled to hold his office.
Therefore he is entitled to claim the protection of article 19(1)(f).
A tax is a compulsory exaction of money by public authority for public purposes enforceable by law and is not payment for services rendered.
It is not possible to formulate a definition of fee that can apply to all cases as there are various kinds of fees.
But a fee may generally be defined as a charge for a special service rendered to individuals by some governmental agency.
The amount of fee levied is supposed to be based on the expenses incurred by the Government in rendering the service, though in many cases such expenses are arbitrarily assessed.
The distinction between a tax and a fee lies primarily in the fact that a tax is levied as part of a common burden, while a fee is a payment for a special benefit or privilege.
" Scope of articles 25 and 26 discussed.
Meaning of the term " Mathadhipati " and religion explained.
Vidya Varuthi vs Balusami (48 I.A. 302), Monahar vs Bhupendra , Ganesh vs Lal Behary (63 I.A. 448), Bhabatarini vs Ashdlata (70 I.A. 57), Angurbala vs Debabrata ([1951] S.C.R. 1125), Davis vs Benson; , , The State of West Bengal vs Subodh Gopal Bose (civil Appeal No. 107 of 1952 decided by the Supreme Court on the 17th December, 1953), Adelaide Company vs The Commonwealth ; , 127), Minersville School District, Board of Education etc.
vs Gobitis ; , West Virginia State Board of Education vs Barnette ; , Murdock vs Penissyl vania ; , Tones vs Opelika (316 U.S. 584), Matthew 's V. Chicory Marketing Board ; , 276), Lower Mainland Dairy vs Crystal Dairy Ltd. ([1933] A.C. 168) referred to.
(Findlay Shirras on Science of Public Finance, Vol.
I. p. 203).
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<s>[INST] Summarize the judgementN: Criminal Appeals Nos.
86 93 of 1974.
From the Judgment and Order dated 25 7 73 of the Orissa High Court in Criminal Misc.
Case Nos.
131 138 of 1972.
D. Mukerjee and B. Parthasarthy for the Appellant.
D. V. Patel and Vinoo Bhagat for the Respondent in (all the appeals).
The Judgment of the Court was delivered by KAILASAM, J.
These appeals are by State of Orissa by certificate granted by the Orissa High Court against the judgment in Criminal Miscellaneous Cases Nos. 131 to 138 of 1973.
The eight respondents before this Court filed a batch of eight criminal miscellaneous petitions under Section 561 A/ and 562 of the Code of Criminal Procedure for a review of the orders passed by the High Court in Criminal Reference Nos. 13 and 15 to 21 of 1972 on 7 5 73, enhancing their sentence of fine of Rs. 2,000/ to one of rigorous imprisonment for six months.
The facts of the case are briefly as follows: On 1 2 1967, the Vigilance police filed nine criminal cases against certain firms and their partners or proprietors under Section 20(e) of the Forward Contracts (Regulation) Act, 1952 (Act 74 of 1952).
The cases were tried by the Additional District Magistrate (Judicial), Cuttack.
The District Magistrate found the firms and persons, in management of the business, guilty of the offences with which they were charged and inflicted a consolidated fine of Rs. 2,000/ with the direction that, they would suffer simple imprisonment for three months in default of payment of fine.
Against their conviction and sentence, the accused preferred an appeal to the Sessions Judge.
The Sessions Judge, while dismissing the appeals, found that the law required imposition of a minimum sentence of fine of Rs. 1,000/ for each offence and as the sentence passed by the trial court was not in accordance with the law, he referred the matter to the High Court for passing of appropriate sentence.
The accused preferred Revision Petitions against the order of the Sessions Judge.
The Reference made by the Sessions Judge as well as the revision Petitions by the High Court.
The High Court, while dismissing the Revision Petitions preferred by the accused, accepted the Reference by the Sessions Judge and enhanced the sentence so far as the firms are concerned, to a sum of Rs. 3,900/ at the rate of rupees one thousand and three hundred for each offence.
As regards the Managers or the managing partners, the High Court 1117 sentenced them to six months rigorous imprisonment, i.e., two months for each deal The firms paid up their fines but the persons, who were awarded substantive sentence of imprisonment, filed criminal miscellaneous petitions before the High Court for a review of its order.
The High Court accepted the petitions for review and recalled its previous judgment imposing substantive sentence of six months rigorous imprisonment on the petitioners but imposed a fine of Rs. 3,900/ at the rate of Rs. 1,300/ for each of the offence on each of the petitioners who are the respondents in this Court.
Against the decision of the High Court, the State of Orissa applied for a certificate for preferring an appeal to this Court which was granted.
Before the High Court it was urged that the petitioners were not given notice of enhancement in the Reference cases in respect of fines imposed.
It was submitted that the notice was based on the recommendation of the learned Sessions Judge to pass appropriate sentence, but there was no indication in the notice, that the sentence would be enhanced to a substantive term of imprisonment.
The order of Reference by the Sessions Judge provided that, the sentence imposed by the trial court was illegal and therefore while maintaining the convictions, he set aside the consolidated sentence of fine and referred the matter to the High Court for passing appropriate sentences.
The learned Judge who dealt with the References made by the Sessions Judge passed an order in the following terms : "Admit.
Issue notice fixing 20.3.72 for appearance.
The acceptance of the reference may have the effect of enhancement of the sentence.
Let clear notice be given to show cause against enhancement of sentence.
" In pursuance of the order, the High Court sent a notice, directing the respondents to appear and show cause as to why the sentences, inflicted on them, should not be enhanced.
The submission, that was made on behalf of the respondents, was that, neither the parties nor the lawyers ever took it, that the notices were comprehensive notices, which would include enhancement of sentence by way of converting the fine into imprisonment.
The High Court accepted the plea on behalf of the respondent that the Criminal References read with the revisions would establish that the petitioners merely were given notice to show cause why the sentence of fine should not be regularised by way of enhancement of fine and that the notices ruled out enhancement by way of imprisonment since in this setting the notices were specifically in respect of fine and therefore imposition of sentence of imprisonment.
1118 was without jurisdiction.
We do not find any basis for the conclusion arrived at by the High Court.
The notice, under Section 439 (2) of the Criminal Procedure Code requires that no order, under Section 439, shall be made to the prejudice of the accused unless he has had an opportunity of being heard either personally or by pleader in his own defence, and sub section (6) states that "notwithstanding anything contained in this section, any convicted person, to whom an opportunity has been given under sub section (2) of showing cause why his sentence should not be enhanced, shall, in showing cause, be entitled also to show cause against his conviction.
The order of the learned Judge by whom the reference was received and the notice issued by the High Court clearly show that, the respondents were asked to show cause why their sentence should not be enhanced.
The view, taken by the High Court, that notice was only to show cause why the sentence should not be regularised by enhancement of the fine and not to a term of imprisonment is not borne out by the record.
Mr. Mukherjee, learned counsel appearing for the State of Orissa submitted that, apart from the merits, the High Court had no jurisdiction to review its own judgment, and as such, the order of the High Court passed in review will have to be set aside as being without jurisdiction.
On behalf of the respondent, Mr. D. J. Patel, submitted that, so far as the High Court is concerned, it has ample jurisdiction under Section 561 (A) and other provisions of the Code to review its own judgment.
Mr. Patel further submitted that Section 369 of the Criminal Procedure Code is not applicable to judgments on appeal passed by the High Court, much less to judgments of the High Court passed in exercise of its criminal jurisdiction under Section 439.
To support this contention, the learned counsel submitted that Chapter XXVI refers only to judgments of the trial court and cannot be made applicable to appellate judgments.
We referred to Section 424 which provides that, the rules, contained in Chapter XXVI as to the judgement of criminal court of original jurisdiction, shall apply, so far as may be applicable to the judgment to any appellate court other than the High Court.
The plea is that if Section 369 could be understood as being applicable to appellate judgments of the High Court also, there is no need for providing separately for the applicability of Chapter XXVI to the judgments of appellate courts other than the High Courts.
Reliance was placed on Section 430 for the submission that the finality provided for judgments, orders passed by the appellate court would also indicate that, Section 369 is not intended to apply to judgments of the appellate courts and to the High Court in appeals and in revisions.
In order to appreciate the contention of the parties the relevant sections may be set out.
1119 Section 369 as enacted in 1898, provided that "No Court other than a High Court, when it has signed its judgment, shall alter or review the same, except as provided in Section 395 and 484 or to correct a clerical error.
Despite the express exclusion of the High Courts from the operation of this provision, it was held that the High Court had no implied power to alter or review their own judgments whether under Section 369 or under Section 439 or otherwise.
It was accordingly proposed in 1921 that the words "other than a High Court" should be omitted to make it clear that Section 369 conferred no such power on the High Courts, as it was noticed that one or two other sections of the Code besides 395 and 484 and clause 26 of the Letters Patent of the High Courts empowered the High Courts to revise their judgments.
Hence the Section was redrafted.
Section 369 of the Code of Criminal Procedure 1898 reads as follows : "Save as otherwise provided by this Code or by any other law for the time being in force or, in the case of a High Court, by the Letters Patent or other instrument constitute such High Court, no court, when it has signed its judgment shall alter or review the same, except to correct a clerical error".
Under the Code of Criminal Procedure (Act 2 of 1974) the new Section 362 provides "Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error".
The words "or in the case of a High Court, by the Letters Patent or other instrument constituting such High Court" which were found in the corresponding Section 369 of the old Code have been omitted in the present section.
Hence an alteration or review by a High Court would be permissible as in the case of other Courts, where provision therefore is made in this Code or by any other law for the time being in force.
A reading of Section 369 discloses that the section prohibits all courts when it has signed its judgment to alter review the same except to correct a clerical error.
While, regarding other courts, the prohibitions subject to any provision in the Code of. . or any provision of any other law in force, in the case of the High Court it is provided that the prohibition will be subject to the Letters Patent or other instrument constituting such High Court.
Thus so far as the High Court is concerned, the prohibition against alteration and the 1120 review of the judgment will be subject to the Letters Patent or other instrument constituting such High Court.
The Letters Patent of the High Courts of Bombay, Calcutta and Madras provide that the High Courts will have original criminal jurisdiction as well as the appellate criminal jurisdiction as provided by clauses 22 to 24.
Clause 26 provides that such point or points of law reserved under clause 25 or on its being certified by the Advocate General that there is an error and that the points should be further considered, the High Court shall have full power to review the case.
No other provision is found in the Letters Patent enabling the High Court to review its own judgment.
No other instrument, relating to the power to review, in the constitution of the High Court, was brought to our notice.
Giving the plain meaning to Section 369, it is clear that no court, subject to exceptions made in the section, shall alter or review its judgment.
Two other sections were relied on by the defence as providing an exception to the rule laid down in Section 369.
They are Sections 424 and 430 of Code of Criminal Procedure.
Section 424 runs as follows: "424.
The rules contained in Chapter XXVI as to the judgment of a Criminal Court of original jurisdiction shall apply, so far as may be practicable, to the judgment of any appellate Court other than a High Court: Provided that unless the Appellate Court otherwise directs, the accused shall not be brought up, or required to attend, to hear judgment delivered".
The first part of Section 424 provides that the rules, contained in Chapter XXVI as to the judgment of a Criminal Court of original jurisdiction, shall apply, so far as may be practicable, to the judgment of any Appellate Court other than a High Court.
Chapter XXVI relates to the judgment.
Section 366 is the first section in the Chapter.
It prescribes the mode of delivering judgment, i.e. it shall be delivered in the open court and in the language of the court.
Sub Section (2) provides that the accused shall be required to attend, to hear judgment delivered.
Section 367 prescribes the language and contents of the judgment and provides that the judgment may be in the alternative.
When read with Section 424, it is seen that Sections 366, 367 and 368, which relate to the judgment of a criminal court of original jurisdiction, are made applicable, as far as may be to the judgment of the appellate court other than the High Court.
The effect of Section 424 Crl.
P.C. would be that the judgment of the appellate court should, as far as applicable, be in accordance with the requirements of Sections 366, 367 and 368 of the Code.
This rule is not made applicable 1121 to a High Court hearing an appeal.
The proviso to Section 424 is significant, in that, it states that unless the appellate court otherwise directs, the accused, shall not be brought up or required to attend to hear the judgment delivered.
This proviso makes an exception to the requirement, that is found in Section 366(2), which requires that the accused should attend when the judgment is delivered.
Section 367 prescribes the language of the judgment and requires the points for determination, the decision thereon, the reasons for the decision that it shall be dated and signed in open court.
While Section 369 prohibits altering or reviewing the judgment after a court has signed its judgment, section 424 requires that the judgment of the appellate court shall, as far as applicable, be in accordance with Sections 366, 367 and 368 of the Criminal Procedure Code, which deals with the trial court.
Sections 369 and 424 do not restrict the prohibition under Section 369 to the trial court alone.
The purpose of Section 424 is to prescribe mode of delivering of judgment, the language and the contents of the judgment while Section 369 is general in its application and prohibits all courts from altering or reviewing its judgment when once it has signed it.
The second section, that is relied on, is Section 430.
Section 430 provides, "When the judgment passed by an appellate court upon appeal shall be final except in the cases provided for in Section 417 and Chapter XXXII".
The section deals with the finality of orders on appeal.
An exception is made in the case of a judgment under Section 417 that is, in an appeal by a public prosecutor against an order of acquittal, whether made by the trial court or the appellate court.
So also, the provisions of Chapter XXXII is excepted in that the judgment of an appellate court will not be final when provision is made for reference and revision.
Neither Section 424 nor Section 430 deal with the prohibition imposed under Section 369 prohibiting the court from altering or reviewing its judgment when once it has signed it.
It was next submitted that in any event Section 561 A is wide enough to include a power of review by the High Court.
Section 561 A of Criminal Procedure Code runs as follows : "561A.
Nothing in this Code shall be deemed to limit or effect the inherent power of the High Court to make such orders, as may be necessary, to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice".
The inherent power of the High Court is restricted to making such orders, as may be necessary, to give effect to any order, under the Code or to prevent abuse of the process of any court or otherwise to 1122 secure the ends of justice.
The scope of the section has been explained.
In the two decisions of the Privy Council, which have been uniformly followed by this Court.
In Emperor vs Khwaja Nazir Ahmad the Privy Council, repelling the view that Section 561A of Criminal Procedure Code gave increased powers to the court which it did not possess before that section was enacted, observed, that "it was not so" and proceeded to state "The section gives no new powers, it only provides that those powers which the Court already inherently possess shall be preserved, and is inserted as.
Their Lordships think lest it should be considered, that the only powers possessed by the Court are those expressly conferred by the Criminal Procedure Code and that no inherent power had survived the passing of that Act.
Reiterating the same view the Privy Council in Lala Jairam Das and Others vs Emperor observed: that Section 561A of the Code confers no new powers.
It merely safeguards all existing inherent powers possessed by a High Court necessary (among other purposes) to secure the ends of justice.
This Court in State of Uttar Pradesh vs Mohammad Naim cited with approval the two decisions of the Privy Council referred to above.
Section 561A was added to the Code in 1923.
It purports to save the inherent powers of the High Court to make such orders as may be necessary to give effect to any order passed under the Code, to prevent abuse of the process of the Court and otherwise to secure the ends of justice.
The introduction of the section was because doubts were expressed about the existence of such inherent powers in the High Courts after the passing of the Criminal Procedure Code.
By the introduction of the section it was made clear that, the inherent powers of the High Court, for the purposes mentioned in the section, shall not be deemed to be limited or affected by the provisions of the Criminal Procedure Code.
Thus, inherent power cannot relate to any of the matters specifically dealt with by the Code.
It would follow that inherent powers cannot be invoked to exercise powers which would be inconsistent with any of the specific provisions of the Code.
The saving of inherent power is only for giving effect to orders passed under the Code, to prevent abuse of the process of any court or otherwise to secure the ends of justice.
Section 369 of the Criminal Procedure Code is understood as applying to judgments on appeal by the High Court, Section 561A cannot be invoked for enabling the Court to review its own order which 1123 is specifically prohibited by Section 369 by providing that, no court when it has signed its judgment, shall alter or review the same except to correct a clerical error.
Section 424 read along with Sections 366 and 367 would show that the requirements of the two sections in a judgment by a criminal court of original jurisdiction, shall also apply, as far as applicable to the judgment of the appellate court other than the High Court.
The proviso is significant.
It states that the appellate court, when delivering the judgment the accused shall not be brought up or required to attend unless otherwise directed to hear the judgment delivered.
The provisions of Section 366(2) require the court to secure the personal attendance of the accused at the time of delivery of the judgment, except where his personal attendance during the trial has been dispensed with.
The effect of Section 424 is generally that, the appellate court should comply with the requirements prescribed under Sections 366 and 367.
Section 430 deals with finality of orders on appeal, that is, the judgment passed by an appellate court shall be final unless otherwise provided for, but the finality of the appeal is subject to the provisions of section 417 of the Criminal Procedure Code which enable the State to prefer an appeal against an order of the trial court or by an appellate court.
Similarly a judgment by an appellate court is final subject to the Chapter which provides for reference and revision.
Section 424 deals with the general requirements of judgments and Section 430 with the finality of judgment on appeal unless otherwise provided for.
These two sections, it may be noted, do not deal with restriction against altering or reviewing the judgment except for correcting a clerical error.
A reading of Section 369 of Criminal Procedure Code would reveal that this Section is intended to apply to all courts, the provision being "no court when it has signed its judgment shall alter or review the same". 'no court ' would include 'all courts '.
The operation of the section is saved if it is provided by the Code or by any other law for the time being in force.
So far as the High Court is concerned, the Section provides that the prohibition will not apply if the Letters Patent or other instrument constituting such High Courts confers such a power.
We see no justification for restricting the application of the Section to judgments delivered by the High Court in criminal trials alone.
The reference to the High Court in the section would indicate that the High Court is also covered by the provisions of the section subject to the exception provided for.
The criminal jurisdiction as conferred by the Letters Patent on the High Court covers not only the original criminal jurisdiction but also appellate powers.
Though Section 369 appears in Chapter XXVI, we 1124 are not inclined to accept the contention put forward on behalf of the defence that it is applicable only to trial courts and in any event not to appellate judgments of the High Court.
Section 362 of the new Act has done away with the special provisions regarding the High Court and has made the section applicable to all courts.
On a careful reading of Sections 369 and 424 and 430, we are satisfied that Section 369 is general in its application.
The word 'no court ' would include all courts and apply in respect of all judgments.
Section 424 in confined, in its application, only to the mode of delivery of judgment, the language of the judgment, the contents of judgment etc.
and section 430 of Criminal Procedure Code to the finality of judgments on appeal, except as provided for.
Whether the judgment is by the trial court or the appellate court, Section 369 is universal in its application and when once a judgment is signed, it shall not be altered or reviewed except for correcting a clerical error.
Mr. Patel, the learned counsel for the respondents, submitted that this Court has laid down that Section 369 is applicable only to judgments of the trial court and therefore Section 369 cannot be construed as being applicable to appellate court, especially to High Court.
He relied on the decision in U.J.S. Chopra vs State of Bombay.
The question that arose for decision in the case was whether a revision preferred by the State of Bombay to the High Court praying for enhancement of sentence, passed on the accused, is maintainable after the appeal preferred by the accused to the High Court of Bombay, was summarily dismissed.
This court held that the summary dismissal of the appeal, preferred by the appellant, did not preclude him, from taking advantage of the provision of Section 439(6) of the Code of Criminal Procedure, and showing cause against his conviction when he was subsequently called upon to show cause why the sentence imposed on him should not be enhanced.
Two separate judgments were delivered by the three Judge Bench.
Justice Bhagwati along with Imam, J. spoke for the court while S.R. Das, J. delivered a separate judgment.
Justice Das, while repelling the contention that the power under Section 439(6) is conditioned or controlled by the provisions relating to finality of judgment embodied under Section 369 and 430 at page 108, observed: "There is indication in the Code itself that the purpose of Section 369 is not to prescribe a general rule of finality of all judgments of all criminal courts but is only to prescribe the finality of the judgment so far as the trial court is concerned.
That this Section does not, by itself, apply to the judgment of an appellate court is quite obvious, because if it did, there 1125 would have been no necessity for enacting Section 424 specifically making the rules contained in Chapter XXVI which includes Section 369 applicable to the judgment of any appellate Court other than High Court, nor for again prescribing by Section 430 a rule of finality for judgments and orders passed by an appellate Court".
The learned Judge concluded that the finality of section 369 attaches to the judgments pronounced by all trial courts including the High Court in the exercise of its original criminal jurisdiction, it certainly has no bearing on the question of finality of appellate judgments which is specifically provided by section 430 of the Code.
Bhagwati J. who spoke for the Court has not held that the provisions of section 369 are applicable only to judgments of the trial courts.
On the other hand, a reading of the judgment of Bhagwati J. would indicate that the learned Judge was inclined to hold that the finality provided for in section 369 of the Criminal Procedure Code is also applicable to the judgments rendered by the High Court in the exercise of its appellate or criminal jurisdiction.
At p. 144 of the Reports the learned Judge observed that once a judgment of the lower court is replaced by the judgment of the High Court, the High Court has no further powers to review or revise its own judgment and enhance the sentence which is thus passed by it upon the accused.
The principle as to the finality of judgments applied by the Court by virtue of the provisions of section 369 and section 430 of the Criminal Procedure Code should not have been confined merely to the question of con firming the conviction but also should have been extended to the con firming of the sentence insofar as the High Court did not see any reason to reduce the sentence already passed by the lower Court upon the accused.
Again dealing with the principle of finality the learned Judge observed that the principle of finality of judgments should therefore be extended not only to the question of the confirming of the conviction but also to the question as to the adequacy of the sentence, whether the sentence which is passed upon the accused by the lower Court should be reduced, confirmed or enhanced.
Once therefore the judgment of the High Court replaces that of the lower Court there is no question which can ever arise of the exercise by the High Court of its revisional powers under section 469 ( 1 ) of the Criminal Procedure Code.
Again at p. 162 the learned Judge reiterated the principle and observed "As we have observed that principle comes into operation when once a judgment of the High Court has replaced that of the lower Court and in those cases the High Court would not be competent to review or revise its own judgment." In referring to the import of section 369 on the powers of the High Court under section 439(6), Bhagwati J. held that section 369 in terms provides, 1126 "save as otherwise provided in this Code" and section 439(6) would be an otherwise provision which is saved by this non obstante clause appearing in section 369.
It is significant to note that both these amendments the one is section 369 and the other is section 439, were enacted by section 119 of Act XVIII of 1923 and the very purpose of these simultaneous amendment would appear to be to effectuate the right given to the accused to show cause against his conviction as enacted in section 439(6) of the Criminal Procedure Code".
As the majority judgment does not share the view expressed by Das J. quoted above reliance cannot be placed on the view of Das J.
The view expressed by Privy Council in Jai Ram Das 's(1) case that alteration by the High Court of its judgment is prohibited by section 369 of the Code was not brought to the notice of Das J. Later decision Of this Court particularly the decision in Superintendent and Remembrance of Legal Affairs, W.B. vs Mohan Singh and Others (2) held that when once the judgment has been pronounced by the High Court either in exercise of its appellate or its revisional jurisdiction, no review or revision can be entertained.
In the Full Bench decision of the Allahabad High Court in Raj Narain and other vs The State (2), Moothem J. observed: "It has commonly been assumed, even it would appear by the Privy Council in Jairam Das 's case, that this section applies also to the judgment of the appellate Court but it is clear that this is not so: U.J.S. Chopra vs State of Bombay ; In a latter decision in Nirbhay Singh vs State of Madhya Pradesh, (4) this Court, dealing with section 369, after referring to Chopra 's case observed that section 369 occurs in Chapter XXVI and prima facie applies to judgments of the court of first instance.
The Court did not proceed on the basis that it was settled law that section 369 is applicable only to judgments of trial courts.
Before concluding we will very briefly refer to cases of this Court cited by counsel on both sides.
1958 S.C.R.1226 relates to the power of the High Court to cancel bail.
The High Court took the view that under section 561A of the Code, it had inherent power to cancel the bail, and finding that on the material produced before the Court it would not be safe to permit the appellant to be at large cancelled the bail distinguishing the decision in 1945 Law Reports and 72 Indian Appeals (supra) and stated that the Privy Council was not called upon to consider the question about the inherent power of the High Court 1127 to cancel bail under section 561A.
In Sankata Singh vs State of U.P.,(1) this Court held that section 360 read with section 424 of the Code of Criminal Procedure specifically prohibits the altering or reviewing of its order by a court.
The accused applied before a succeeding Sessions Judge for re hearing of all appeal.
The learned Judge was of the view that the appellate court had no power to review or restore an appeal which has been disposed of.
The Supreme Court agreed with the view that the appellate court had no power to review or restore an appeal.
This court, expressing its opinion that the Sessions Court had no power to review or restore an appeal observed that a judgment.
which does not comply with the requirements of section 369 of the Code, may be liable to be set aside by a superior court but will not give the appellate court any power to.
set it aside himself and rehear the appeal observing that "section 369 read with section 424 of the Code makes it clear that the appellate court is not to alter or review the judgment once signed, except for the purpose of correcting a clerical error.
Reliance was placed on a decision of this Court in Superintendent and Remembrance of Legal Affairs W.B. vs Mohan Singh and others(2) by Mr. Patel, learned counsel for the respondent wherein it was held that rejection of a prior application for quashing is no bar for the High Court entertaining a subsequent application as quashing does not amount to review or revision.
This decision instead of supporting the respondent clearly lays down, following Chopra 's case (supra) that once a judgment has been pronounced by a High Court either in exercise of its appellate or its revisional jurisdiction, no review or revision can be entertained against that judgment as there are no provisions in the Criminal Procedure Code which would enable the High Court to review the same or to exercise revisional jurisdiction.
This Court entertained the application for quashing the proceedings on the ground that a subsequent application to quash would not amount to review or revise an order made by the Court.
The decision clearly lays down that a judgment of the High Court on appeal or revision cannot be reviewed or revised except in accordance with the provisions of the Criminal Procedure Code.
The provisions of section 561A of the Code cannot be revoked for exercise of a power which is specifically prohibited by the Code.
In the result we accept the contention put forward by Mr. Mukerjee for the State and hold that High Court has no power to revise its own order.
The appeal is allowed.
P.H.P. Appeal allowed.
[/INST]On the strength of the permission granted by the Revenue Divisional Officer, as required under clause 6 of the Orissa Scheduled Areas Transfer of Immovable Property by Scheduled Tribes Regulation 3 of 1956 and Rule 4 made thereunder, to sell his private property to a non scheduled Tribe person for a sum of Rs. 4000/ , Respondent 3 sold his property on January 2, 1964 by a registered deed of sale to the appellant, despite an attachment order passed by the Executing Court on July 13, 1963 on an application dated June 28, 1963 made by Respondent 1 to recover the decretal amount as per the money decree obtained by him on August 18, 1962 against Respondent 3 and his mother Respondent 4.
Later, Respondent No. 1 however, produced the copy of the order passed by the R.D.O. dated October 23, 1963, at the instance of appellant in the Executing Court and got the property put to sale on May 15, 1964.
In the court auction respondent 2 son of respondent 1 purchased the property.
On June 22, 1964, the appellant filed an application under order 21 Rules 89 and 90 and Section 47 and 151 C.P.C. for setting aside the auction sale on the ground that the attachment and the auction sale were void for want of permission from the competent authority under Orissa Regulation 2 of 1956 and also due to fraud committed by the decree holder.
The application was allowed followed by confirmation by the appellate judge, in appeal.
But the High Court in Second Appeal reversed it accepting the contention of res judicata.
Allowing the appeal by special leave, the Court.
^ HELD: 1.
Both clauses 6 of the "Orissa Scheduled Areas Transfer of Immovable Property by Scheduled Tribes Regulation 2 of 1956, and Rule 4 made thereunder, provide that no immovable property belonging to a member of the scheduled Tribe is liable to be attached or sold except in accordance with the permission granted by the competent authority.
Prior to the sale to the private party, the property was undoubtedly attached in execution proceedings on July 13, 1963, but the order of attachment was void, being contrary to the express inhibition contained in clause 6 of Regulation 2 of 1956 read with Rule 4 made thereunder.
[200E G] 2.
The auction sale is bad and invalid: It is elementary that what can be brought to sale in a Court sale is the right, title and interest of the judgment debtor and therefore, the auction purchaser can get nothing more than that right, title and interest.
In the instant case, the appellant having become an owner of the property on account of the 197 Private sale dated January 2, 1964 respondent 3 had no saleable interest left in the property which could be put to auction.
The auction sale therefore cannot displace the title of the appellant which is the same thing as saying that as between the title of the appellant and the so called title of the auction purchaser the appellant 's title must prevail.
[200G H, 201A] Moreover, as the condition imposed by the R.D.O. regarding the price was violated by the auction sale, the auction purchaser cannot get a valid title to the property under that sale.
In the private sale, the appellant purchased the property for Rs. 4,000/ and therefore the condition of the permission was complied with.
But the auction sale was held in satisfaction of the decretal dues which were far less than Rs. 4,000/ the decree itself being in the sum of Rs. 1,000/ and odd and the highest bid at the auction being of Rs. 3,000/ only.[201 B C] 3.
(a) The basic issue being the validity of auction sale in favour of respondent 2, no question of res judicata can arise.
the appellant claims through the judgment debtor and neither the latter nor the decree holder ever disputed that he, the judgment debtor, was a member of the Scheduled Tribe.
On the other hand both of them were conscious of the situation that the property could not be sold without the sanction of the R.D.O., Nowrangpur.
The decree holder himself apprised The Executing Court of that position.
The permission which was granted by the R.D.O., Nowrangpur at the instance of the appellant was produced by respondent 1 in the execution proceedings as if the permission was granted in sis favour for the sale by respondent 3 of his property.
The failure, therefore, of the judgment debtor to raise any particular contention cannot operate as res judicata actually or constructively, either against him or against the appellant.
[201 D F] (b) Whether "Bhotras" fall within any of the sub groups of the Scheduled Tribes enumerated in Part IX of the Schedule to the Constitution (Scheduled Tribes) Order, 1950 is a question which could not have been permitted to be raised for the first time in the Second Appeal.
Much less can it be allowed to be raised in this Court in an appeal under article 136 of the Constitution.[200C D]
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<s>[INST] Summarize the judgementAppeal No. 841 of 1974.
Appeal by Special Leave from the Judgment and Order dated 30 3 1970 of the Kerala High Court in Writ Appeal No. 39/70 and Civil Appeal No. 1575 of 1970.
Appeal by Special Leave from the Judgment and Order dated 22 12 1969 of the Kerala High Court in O.P. No. 211/65, 939 V. Sivarama Nair and ,4.
section Nambiar for the Appellants in both :the Appeals.
M.C. Bhandare and K.M.K. Nair for Respondent No. 1 in CA 841 and R. 2 in CA 1575/70.
(Mrs.) Shyamla Pappu and Girish Chandra for Respondent No. 1 in CA No. 1575/70.
K.S. Ramanurthi, N. Sudhakaran and P.K. Pillai for Respondent No. 45 in CA 1575/70.
The Judgment of the Court was delivered by CHANDRACHUD, J.
Since these two appeals involve identi cal questions, we propose to state the facts of one of these only.
The decision in Civil Appeal No. 1575 of 1970 will govern the other appeal.
The three appellants were .appointed as temporary Junior Engineers in the Madras High Way Subordinate Service under rule 10(a)(i)(1) of the Madras State and Subordinate Serv ices Rules.
Appellants 1 and 2 were appointed on June 6 and June 8, 1951 respectively while the third appellant was appointed on June 30, 1950.
A few years later they were appointed to the very same posts after selection by the Public Service Commission and in course of time, orders were issued under rule 23(a) of the aforesaid rules permit ting them to commence their probation from dates anterior to the dates of their appointments after selection by the Public Service Commission but subsequent to the dates of their initial 'appointments under rule 10(a)(i)(1).
The first appellant was permitted to commence his probationary period on July 4, 1954, the second on July 18, 1954 and the third on March 15, 1953.
On November 1, 1956, on the reorganisation of States, appellants were allotted as Junior Engineers to.
the Kerala State.
which was formed by inclusion therein of parts of the States of Madras and Travancore Cochin.
As in other States, so in Kerala, it became necessary to fix rules of seniority governing employees drawn from different States, parts of which were integrated in Kerala.
A conference of Chief Secretaries of various States was held on May 18 and 19, 1956, to consider problems arising out of reorganisation of States and the consequent integration of services.
Pursuant to the decision taken in that Conference, the Government of Kerala passed an order on December 29, 1956 providing that the relative seniority as between persons drawn from different States and holding posts declared to be equivalent shall be determined by considering the length of continuous service in the equated grade, whether such serv ice is temporary or officiating, quasi permanent or permanent.
The order, however, expressly provided that in the aforesaid determination, the period for which an ap pointment was held "in a purely stop gap or emergency ar rangement" was to be excluded.
On April 3, 1957 the.
Gov ernment of India issued a directive under section 117 of the States ReorganisatiOn Act stating that it was agreed that in determining the relative seniority as between two persons holding posts declared as equivalent to each other and drawn 'from different States the length 12 206sC1/77 940 of continuous service, whether temporary or permanent, in the particular grade should be taken into account, exclud ing "periods for which an appointment is held in a purely stop gap or fortuitous arrangement.
" On April 2, 1958 the Government of Kerala issued a clarificatory order stating that for computing length of continuous service "only short periods for which an appointment was held in purely stop gap or emergency appointment will be excluded.
" It issued another order on August 16, 1961 stating that one year of temporary service of Junior Engineers allotted from Madras would be excluded for the purposes of fixing their inter state seniority.
Representations were made against this order to the Government Of India which directed by an order dated March 1, 1962 that services rendered under provisional or emergency appointments by the Travancore Cochin or Madras personnel prior to November 1, 1956 before regulari sation of their appointments should be taken into account for the purposes of deciding interstate seniority, only if such service is either regularised, or it is in a time scale of pay and is reckoned for grant of increments in the time scale and is continuous.
On May 16, 1962 the Govern ment of Kerala passed an order modifying its earlier orders so as to conform to the decision taken by the Government of India on March 1, Consequently, in October 1962 a provi sional integrated gradation list of Junior Engineers was prepared by the State Government giving to the appellants ranks therein at serial nos.
145, 137 and 123 respectively.
Employees drawn from the Travancore Cochin area being evidently prejudiced by the decision of the Kerala Govern ment made representations to the Government of India which, on February 16, 1963 recommended three alternatives for the acceptance of Kerala Government.
The first alternative thus recommended was that the officers allocated to Kerala from the former Madras State may be allowed the benefit of emer gency service towards seniority in the equated category if such service would have been regularised from the date of their emergency appointment and if it would have been count ed for interstate seniority on November 1, 1956, had these officers remained in Madras.
The second alternative was that the principles laid down by the Government of Madras in their order dated July 17, 1957 be accepted.
By the third alternative it was stated that the Government of India would have no objection even if the State Government was to adopt the rule that interstate seniority would be determined on the basis of the length of continuous service in the equated grade subject to the exclusion of service rendered in purely stop gap or emergency arrangements and that only short periods for which appointment was held under such arrangements should be excluded.
On May 10, 1963 the Government of Kerala passed an order adopting the first two alternatives but not the third.
The appellants thereafter field a writ petition in the Kerala High Court which was disposed of in December 1964 by directing them to file representations to the Government of India on the basis of a certain decision rendered by the High Court earlier.
The appellants accordingly made repre sentations and on.
those being rejected, they filed a writ petition in the High Court in August 1965.
That writ peti tion having been dismissed, they have filed this appeal by special leave.
941 The question which arises for decision is whether the services rendered by the appellants under rule 10(a) (i) (1) of the Madras State and Subordinate Services Rules must be taken into account for the purpose of fixing.
their seniori ty in the service of the Kerala Government as from November 1, 1956.
It is urged on behalf of the appellants that the aforesaid service ought to be taken into account because such service can be taken into account under rule 23, sec ondly because such service is not liable to be excluded by reason of the directives issued earlier by the Government of India and thirdly because if the appellants had remained in Madras, the temporary service rendered by them would have been taken into account for fixing their seniority.
Counsel for the appellants says that they were granted increments from the date of theft initial appointments, that the temporary service rendered by them was counted for the.
purpose of eligibility for promotion to the higher post of Assistant Engineers, that they were duly qualified to hold the post of Junior Engineers, that they were entitled and permitted to appear for departmental tests which are open only to the probationers, that their service books were opened from the data of their initial appointments, and that the concurrence of the Public Service Commission was ob tained for continuing them in service after the expiry of three months and then again after the expiry of one year.
These facts and circumstances, according to the appellants, would justify the counting of temporary service rendered by them for the purpose of fixing their seniority.
Having given every consideration to these matters we think it impossible to accept the appeal.
A fact of funda mental importance which permeates every one of these consid erations is that the appellants were appointed under rule 10(a)(i)(1) of the Madras State and Subordinate Services Rules which runs thus: "10.
Temporary appointments. (a)(i)(1) Where it is necessary in the public interest owing to.
an emergency which has arisen to fill immediately a vacancy in a post borne on the cadre of a service, class or category and there would be undue delay in making such appointment in accordance with these rules and the Special Rules, the appointing au thority may temporarily appoint a person, otherwise than in accordance with the said rules.
" This provision contemplates the making of temporary appoint ments when it is necessary in the public interest to do so owing to an emergency which has arisen for filling a vacancy immediately.
Such appointments, in terms, are permitted to made otherwise than in accordance with the rules.
The letters of appointment issued to the appellants mention expressely that they were appointed under rule 10(a) (i)(1), that the appointments were "purely temporary necessitated on account of the non availability of regularly selected candi dates conferring no claim for future appointment as Junior Engineers . and that the appointment is liable to be terminated at any time without previous notice.
" In face of the provisions of the rule and the terms of the appointment it seems to us clear that the appellants Were appointed purely as a matter of stop gap or emergency arrangement.
Since 942 such service cannot be taken into account for purposes of seniority, the appellants cannot contend that the entire service rendered by them from the date of their initial appointment must count for purposes of seniority.
Clause (iii) of rule 10(a) makes 'this position clearer by providing that a person appointed under clause (i) shall, whether or ' not he possesses the qualifications prescribed for the service, be replaced as soon as possible by a member of the service or an approved candidate qualified to hold the post under the relevant rules.
The fact that the appellants were qualified to.
hold the posts cannot, there fore, entitle them to count for the purposes of seniority the period during which they served in a stop gap or emer gency arrangement.
Clause (v) of rule 10(a) provides that a person appointed under clause (i) shall not be regarded as a probationer, that he is not entitled by reason only of such appointment to any preferential claim to future appointment to the service .and that the services shall be liable to be terminated at any time without notice and without assigning any reason.
These provisions reflect significantly on the nature of the appointment held by the appellants and show that the appellants were appointed initially on a uniquely precarious tenure.
Such tenures hardly ever count for sen iority in any system of service jurisprudence.
It is now only necessary to consider the appellant 's argument that had they remained in Madras, their entire service would have counted for purposes of seniority.
In support of this argument reliance was placed on the corre spondence between the Governments of Kerala and Madras, but neither that correspondence nor a certain order dated June 11, 1960, which is at exhibit P 17 in the record, can avail the appellants.
In a way of saying, the proof of pudding is in the eating.
It is needless to speculate as to what course the appellants ' destiny would have taken had they remained in Madras, because the Government of Madras itself did not treat the entire service of the appellants as regular when they were selected by the Public Service Commission.
That parent government undoubtedly assigned to.
them artificial dates for fixing the commencement of their probationary periods but such dates, though anterior to the dates of their actual selection by the Public Service Commission, were quite subsequent to the dates of their initial appoint ment.
As stated earlier, the appellants were appointed initially in June 1951 and June 1950, but the Government of Madras, prior to the reorganisation of the States, had directed that their probationary periods should be deemed to commence in July 1954 and March 1953.
This shows that the services rendered by the appellants under rule 10(a)(i)(1) were treated by the Government which appointed them as a matter of stop gap, 'emergency or fortuitous arrangement.
The decision in C.P. Damodaran Nayar vs State of Kerala(1) on which the appellants ' counsel has placed reli ance for showing that temporary service of the kind rendered initially by the appellants can (1) ; 943 be counted for the purposes of seniority has no application to the instant case.
One of the appellants in that case was selected as a District Munsif by the Madras Public Service Commission and was posted as such on May 26, 1951.
He was in continuous service in than post since his appointment but on being allotted to the State of Kerala on November 1, 1956 his seniority was reckoned from October 6, 1951 on the footing that the said date was assigned to him as the date of commencement of his continuous service.
Dealing with the appeal arising out of the dismissal of his writ peti tion, this Court held that the service rendered by the appellant after his initial appointment was neither emergen cy service nor was it a purely stop gap or fortuitous ar rangement.
The distinguishing feature of that case, which is highlighted in the judgment of the Court, is that the appellant therein was "appointed in a regular manner through the Public Service Commission" and therefore his appointment could not "by any stretch of imagination" be described as having been made to fill a purely stop gap or fortuitous vacuum (p. 876).
In our case the initial appointment was not only made without any reference to the Public Service Commission but the various rules and the terms of the appel lants ' appointment to which we have drawn attention show that the appellants were appointed purely as a matter of fortuitous or stop gap arrangement.
The concurrence of the Public Service Commission to the continuance of the appel lants in the posts filled by them, first after the expiry of three months and then after the expiry of one year, was obtained not with a view to regularising the appointments since their inception but for the purpose of meeting the requirements of a provision under which such concurrence is necessary to obtain if an appointment made without selec tion by the Public Service Commission is required for any reason to be continued beyond three months or a year.
For these reasons we confirm the judgment of the High Court and dismiss this appeal.
There will be no order as to costs.
Civil Appeal No. 841 of 1974 will also stand dismissed but without an order of costs.
S.R. Appeals dis missed.
[/INST]The three appellants, who were appointed as temporary junior engineers in the Madras High Way Subordinate Service under rule 10(a)(i)(1) of the Madras State and Subordinate Services Rules on 13 6 1950, 6 6 1951 and 8 6 1951 respectively, on being selected by the Public Service Com mission and again appointed to the same posts were permitted by an order issued under rule 23(a) ibid to commence their probationary period with effect from 15 3 1953, 4th July, 1954 and 18th July 1954 respectively.
On 1 11 1956, on the re organisation of States, they were allotted as junior engineers in the Kerala State which was formed by inclusion therein of parts of the Slates of Madras and Travancore Cochin.
For the propose of fixing the interstate seniori ty, several orders were passed, from time to time, both by the Central Government and the Government of Kerala.
A provisional integrated gradation list of junior engineers was prepared by the State Government in October 1962 giving the appellants ranks therein at serial Nos. 123, 132 and 145 respectively.
On a representation by the employees of the Travancore Cochin area, the Government of India recommended three alternatives for the acceptance of the Kerala Govern ment on 16 2 1963.
They were: (1) The Officers allocated to Kerala from the former Madras State may be allowed the benefit of emergency service towards seniority in the equated category if such service would have been regula rised from the date of their emergency appointment and if it would have been counted for interstate seniority on Novem ber 1, 1956 had these officers remained in Madras.
(2) The principles.
laid down by the Government of Madras in their order dated July 17, 1957 be accepted and (3) The Government of India would have no objection even if the State Government was to adopt the rule that interstate seniority would be determined on the basis of the length of continuous service in the equated grade subject to the exclusion of service rendered in purely stop gap or emer gency arrangements and that only short periods for which appointment was held under such arrangements should be excluded.
The Government of Kerala passed an order on May 10, 1963 adopting the first two alternatives but not the third.
The writ petition filed by the appellants in the Kerala High Court challenging he said orders dated 10 5 1963 was rejected.
In appeal by special leave, the appellants contended: (1) The emergency service rendered under Rule 10(a)(i)(1) of the Rules ought to be taken into account because such service can be taken into account under Rule 23(a) ibid (ii) Such service is not liable to be excluded by reason of the directives issued earlier by the Government of .India on 3rd April 1957 and 1st March 1962, (iii) If the appellants had remained in Madras, the temporary service rendered by them would have been taken in.to account for fixing their seniority and (iv) Such service should count in view of the grant of increments to them from the date of their initial appointments in view of the temporary service rendered by them having been counted for the purpose of eligibility for promotion to the higher post of Assistant Engineers, they being duly qualified to hold the posts of Junior Engineers, they having been permitted to appear for departmental tests which are open only to the probationers, their service books having been opened from the. date of their appointment and the concurrence of the Public Service Commission having been obtained for continuing them in service after the expiry of three months and again after the expiry of one year of their emergency service.
938 Dismissing the. appeals, the Court, HELD: (1) A fact of fundamental importance which perme ates every one of these cOnsiderations is that the appel lants were appointed under rule 10(a) (i)(1) of the Madras State and Subordinate Services Rules.
In face of the provi sions of these rules and the express terms of their ap pointment, to the effect, "that appointments were under rule 10(a) (i) (1) purely temporary necessitated on account of the non availability of regularly selected candi dates, conferring no claim for future appointment as junior engineers and they were liable to be terminated at any time without previous notice", it is clear.
that the appointments were purely as a matter of stop gap or emergency arrange ment and such service cannot be taken into account for the purpose of seniority from the date of their initial appoint ment.
[941 E, H, 942 A] (2) Clauses (iii) and (iv) of rule 10(a) reflect signif icantly on the nature of the appointment held by the appel lants and show that the appellants were appointed initially on a uniquely precarious tenure.
Such tenures hardly even count for seniority in any system of service jurispru dence.
[942 C D] (3) The fact that the appellants were qualified to hold the posts cannot, in view of clause (iii) of rule 10(a) entitle them to count for the purpose of seniority the period during which they served in a stop gap or an emer gency arrangement.
[942 B] (4) The contention that if the appellants had remained in Madras their entire service would have counted for the purpose of seniority is without any merit and one of specu lation as to what course the appellants ' destiny would have taken had they remained in Madras.
The Government of Madras itself did not treat the entire service of the appellants as regular when they were selected by the Public Service Commission.
That parent government undoubtedly assigned to them artificial dates for fixing the commencement of their probationary periods but such dates, though anterior to the dates of their actual selection by the Public Service.
Com mission, were quite subsequent to the dates of their initial appointment.
The services rendered by them under rule 10(a) (i)(1) were treated by the Government which appointed them as a matter of stop gap, emergency or fortuitous arrange ment.
[942 D G] (5) The concurrence of the Public Service Commission to the continuance of the appellants in the post filled by them, first after the expiry of three months and then after the expiry of one year was obtained not with a view to regularising the appointments but for the purpose of meeting the requirements of a provision under which such concurrence is necessary to.
obtain if an appointment made without selection by the Public Service Commission is required for any reason to be continued beyond three months or a year.
[943 E F] (6) In the instant case, the initial appointment was not only made without any reference to the Public Service Com mission but the various rules and the terms of the appoint ment shove that the appellants were appointed purely as a matter of fortuitous or stop gap arrangement.
Their initial temporary services cannot therefore be counted for the purpose of seniority.
[943 B C] C.P. Damodaran Nayar vs State of Kerala ; , distinguished and held not applicable.
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<s>[INST] Summarize the judgementn No. 3 61 of 1968.
Petition under article 32 of the Constitution of India for writ in the nature of habeas corpus.
M.K. Ramamurthi, Shyamala Pappu and Vineet Kumar, for the petitioner.
R. Gopalakrishnan and R. N, Sachthey, for the respondent.
The Judgment of the Court was delivered by Shah, J.
On March 16, 1968 the petitioner was arrested and ordered to be detained under section 3(1) (,a) (i) of the Jammu and Kashmir Preventive Detention Act 13 of 1964.
On March 26, 1968, he was served with the grounds of detention.
On May 3, 1968, the petitioner moved a petition for a writ of habeas corpus in this Court.
The petition was rejected by this Court on October 10, 1968.
In the meanwhile the order dated March 16 1968, was revoked on September 16, 1968, and another order was served upon the petitioner on the same day.
On September 24, 1.968, he was served with the grounds of detention for the fresh order, and his case was referred to the Advisory.
Board on October 26, 1968.
On October 30, 1968, the Advisory Board recommended that the petitioner.
be detained.
The petitioner then moved this petition on November 11, 1968 a writ of habeas corpus.
Two contentions in the nature of preliminary objections were raised in support of the petition.
It was urged that (1) the petitioner was, in spite of a specific request, denied a personal hearing before the Advisory Board, and (2) that the Chief Minister who was in charge of the portfolio relating to preventive detention did not apply his mind to the case of the petitioner before making the order of detention.
An affidavit is filed by the Secretary to the Government of Jammu & Kashmir affirming that the petitioner made no request for production before the Board for a personal hearing.
He has also affirmed that the Chief Minister did consider the case of the petitioner and directed that the petitioner be detained in custody under the Preventive Detention Act.
In view of this affidavit, counsel for the petitioner did not press he two preliminary contentions.
576 Counsel urged that the order of detention was invalid because (1) that the case of the petitioner was not referred to the Advisory board till September 24, 1968 and on that account his detention was invalid, and he could not be continued in detention thereafter;(2) that in making the detention order the authorities acted mala fide; and (3) the grounds in support of the order were vague and indefinite By article 22 of the Constitution certain protection is conferred upon persons who are detained under orders of preventive detention But article 35 (c) in its application to the State of Jammu & Kashmir provides "no law with respect to preventive detention made by the Legislature of the State of Jammu and Kashmir, whether before or after the commencement of the Constitution (Application to Jammu and Kashmir) Order, 1954, shall be void on the ground that it is inconsistent with any of the provisions of this (Part III) Part, but any such law shall, to the extent of such in consistency, cease to have effect on the expiration of fifteen years from the commencement of the said Order, except as respects things done or omitted to be done before the expiration thereof.
" The protection of cls.
(5), (7) of article 22 insofar the, provision are inconsistent therewith does not avail the petitioner.
By s.3 the Government of Jammu and Kashmir is entitled, if satisfied with respect to any person that with a view to Preventing him from acting in any manner prejudicial to the security of the State or the maintenance of public order, to make an order direct that such person be detained.
By section 8 it is provided : "(1) When a person is detained in pursuance of a detention order, the authority making the order shall, as soon as may be, but not later than five days from the date of detention, communicate to him the on which the order has been made and shall afford him the earliest opportunity of making a representation against the order to the Government.
(2) Nothing in sub section (1) shall require the authority to disclose facts which it considers to be against the public interest to disclose.
" Section 9 provides for the constitution of Advisory Board and section 10 deals with references to the Advisory Board.that section the Government is required within thirty days from the date of detention under the order to place before the Advisory Board the grounds on which the order has been made and the 577 representation, it any, made by the person affected by the order.
By section 12 it is provided: "(1) In any case where the Advisory Board has reported that there is in its opinion sufficient cause for the detention of a person, the Government may confirm the detention order and continue the detention of the person concerned for such period as it thinks fit.
(2) In any case where the Advisory Board has rePorted that there is in its opinion no sufficient cause for the detention of the person concerned, the Government shall revoke the detention order and cause the person to be released forthwith.
,, Section 13 prescribes the maximum, period of detention for which any person may be detained in pursuance of any detention order.
Section 13A which was added by Act 8 of 1967 enables the State to detain a person for a period of two years.
Section 13A provides: "(1) Notwithstanding anything contained in this Act, any person detained under a detention order made in any of the following classes of cases or under any of the following circumstances may be detained for a period longer than three months, but not longer than six months, from the date of detention, without obtaining the opinion of any Advisory Board, namely, when such person has been detained with a view to preventing him from acting in any manner prejudicial to (i) the 'security of the State; (ii) the maintenance of public order; Provided that where any such person has been detained with a view to Preventing him from acting in any manner prejudicial to the security of the State grounds on which the detention order has been made are not communicated to him under the proviso to section 8 (1), such person may be detained for a period of two years from the date of detention without obtaining the opinion of the Advisory Board.
(2) In the case of every person detained with a view to preventing him from acting in any manner prejudicial to the security of the State or the maintenance of public order, the provisions of this Act shall have effect subject to the following modifications, namely: (a) in sub section (3) of section 3, for the words 'twelve days ', the words 'twenty four days ' shall be substituted.
578 (b) in sub section (1) of section 8, (i) for the words 'five days ' the words 'ten day 's shall be substituted; (ii) the following proviso shall be inserted at the end, namely Provided that nothing in this sub section shall apply to the case of any person detained with a view to preventing him from acting in any manner prejudicial to the security of the State, if the authority making the order, by the same or a subsequent order directs that the person detained may be informed that it would be against public interest to communicate to him.
the grounds on which the detention order has been made. ' (c) in section 10, (i) after the words, 'In every case where a detention order has been made under this Act ' occurring in the beginning, the brackets and words '[other than a case to which the proviso to section 8(1) applies] ' shall be inserted; and (ii) for the words 'thirty days ' the words 'sixty days ' shall be substituted, (b) in section 1 1, for the words 'ten weeks ' the words five months shall be substituted." The effect of section 13A insofar as it is relevant to this case is to authorise the State in the cases specified to detain a person without obtaining the opinion of the Advisory Board, if he is to be detained for a period longer than three months but not longer than six months from the date of detention.
By sub section
(2) the periods prescribed for the various steps under the Act are doubled; for making report to the District Magistrate when he exercises the power of detention the period is extended to twenty four days : for the Government to serve the grounds of the order under section 8(1) the period is extended to ten days; and for the Advisory Board to make its report in cases covered by section 13A the period is extended to sixty days.
Again by the proviso to section 8(1) the Government is entitled to withhold in serving grounds upon the detenu that it would be against public interest to communicate to him the grounds on which the detention order has been made, Relying upon the terms of section 10(1) as amended by section 13A it was urged that the Government was bound to refer the case of the petitioner within sixty days from the date of detention and ' since no reference was made the detention of the petitioner under the order dated March 16, 1968, was unauthorised.
This argu 579 ment is plainly unsustainable.
Section 13A opens with words "Notwithstanding anything contained in this Act", and provides that a person may be detained for a period not longer than six months without obtaining the opinion of the Advisory Board.
It is plainly contemplated thereby that the Government may decide not to refer the case of the detenu to the Advisory Board, because the period for which he is to.
be detained is not to exceed six months.
Section 13A is an exception to section 10 as well as to all other relevant provisions of the Act, and in case of conflicts.
13A prevails.
The, petitioner was detained for six months from March 16,.1968 to September 16, 1968 without obtaining the opinion of the Advisory Board.
We will be justified in accepting the contention of the State that it was intended, when the order was pass detaining the petitioner that he was not to be kept in detention for a period longer than six months and his case fell within the terms of section 13A (1) and on that account it was not necessary to obtain the opinion of the Advisory Board.
It was said by counsel for the petitioner that the plea of the State was inconsistent with the course of events, and the State Government had taken shelter under the provisions of section 13A (1) even though they had at no stage any desire to release the petitioner from jail at the expiry of or 'within six months.
The Court will not be justified in assuming from the circumstance that a fresh order has been issued that the Government acted mala fide in making the original order or the fresh order.
The only plea raised by the petitioner in support of that plea is in paragraph 1 5 of the p etition, that the cancellation of the earlier order of detention and the service of the fresh order of detention on the petitioner was "a part and parcel of the scheme of the State to suppress the peaceful trade union movement, and that the fresh order of detention was passed mala fide.
No particulars are furnished which justify an inference that in resorting to the provisions of the Act the Government 's action was actuated by ill will or taken for some collateral purpose.
Reliance was also placed upon the recitals 'in the grounds supplied to the petitioner on March 16, 1968 and under the fresh detention order dated September, 16, 1968, and it was contended that the grounds being identical an inference followed that the previous detention order was continued on the same grounds on which the original order was passed.
On comparing the grounds it cannot be said that they are identical.
It is stated in the last part of the Annexure to the grounds of detention under order dated September 16, 1968, that from the middle of January to March 1968 the petitioner went underground and during that period he used to attend secret meetings in which he used to stress upon the Government employees that their demands cannot be 580 conceded by the, Government unless they resort to violence that the petitioner was violent by nature and was a perpetual threat to the maintenance of public order.
It cannot also be said that merely because the previous order had been passed under which the 'Petitioner was intended to be detained for a period of six months and thereafter In consequence of further information the Government was required to issue a fresh order, the original order ,or the fresh order was illegal.
The plea that the grounds were vague and indefinite cannot also be accepted.
It is recited in the order that the Petitioner was informed that his detention was ordered on grounds specified in the Annexure appended thereto, which also contained facts relevant thereto except those which the Government considered to be against public interest to disclose.
By virtue of sub section
(2) of section 8, it is open to the Government not to disclose,, facts which it considers to be ag ainst the public interest to disclose.
In the present case the order clearly states that ' the Government were of the view that facts relevant to the grounds except those which the Government considered to be against public interest to disclose were intimated to the petitioner.
The Annexure may appear somewhat indefinite and vague.
But, that is obviously because facts which in the view of the Government, were against public interest to disclose, were withheld from the petitioner.
The Government have power to withhold information about those facts, and they did so.
The grounds cannot in the circumstances be said to be vague and indefinite.
One more question needs to be dealt with.
The petitioner who was present in the Court at the time 'of hearing of this petition complained that he is subjected to solitary confinement while in detention.
It must be emphasized that a, detenu is not a convict.
Our Constitution, notwithstanding the broad principles of the rule of law, equality and liberty of the individual enshrined therein, tolerates, on account of peculiar conditions prevailing, legislation which is a negation of the rule of law, equality and liberty.
But it is implicit in the Constitutional scheme that the power to detain is not a power to punish for offences which an executive authority in his subjective satisfaction believes a citizen to have committed.
Power to detain is primarily intended to be exercised in those rare cases when the larger interest of the State demand that restrictions shall be placed upon 'the liberty of a citizen curbing his future activities The restrictions so placed must, consistently with the effectiveness of detention, be minimal.
The petition fails and is dismissed.
V.P.S. Petition dismissed.
[/INST]The respondent held a licence for the supply of Electricity under the ' in the Godhra area of undivided BombaY. On the creation of the State of Gujarat the area went to that State.
The Electricity (Supply) Act came into force in 1948 and under it the condi tions in Schedule VI thereof were deemed to be incorporated in the licence of every licensee.
Under section 57 (2) (c) of the ' Act the Government could fix the rates for supply of electricity and under cl. 1 of the Schedule VI a licensee could reduce the rates for keeping the profit at a reasonable level.
A licensee had no, power to enhance the rates except by requesting the Government to fix new rates on the recommendation of a fresh rating committee.
In 1952 the Covernment fixed certain rates on the recommendations of a rating committee.
In 1956 the Supply Act of 1948 was amended.
By section 57A(1) (e) of the amended Act the rates fixed by the Government under section 57(A)(1)(d) on the recommendation of a rating committee were to enure for a maximum of three years.
Under of the amended Schedule VI the licensee shall so adjust his charges Cl.
the sale of electricity whether by enhancing or reducing them that his clear profit in any year of account shall not as far as possible exceed the amount of reasonable return.
In 1963 the respondent enhanced the rates of supply without having them fixed by the Government on the recommendations of a rating committee.
The appellants who were consumers of electricity in the Godhra area filed suits seeking, to restrain the respondent from enforcing the enhanced charges.
The suits were decreed by the trial court and the decrees were 'confirmed by the first appellate court and in second appeal by a single Judge.
In Letters Patent appeal however the High Court held that under the Supply Act as amended in 1956 the respondent had a unilateral right to enhance the charges subject to the conditions prescribed in, Schedule VI of the Act.
The appellants Came to this Court contending that they had a vested right in.
the rates fixed by Government in 1952, that under the amended Act the respondent did not have a unilateral right to enhance those rates, and that the amended provisions not being retrospective nor inconsistent with the old provisions the charges fixed by the Government in 1952 must in view of section 6 of the continue to be in operation.
HELD : The law declared by the Amending Act does not affect any right or privilege, accrued under the repealed provision.
It merely Prescribes as to what can or should be done in the future.
Therefore there is no basis for saying that it affects vested rights.
[847 F] For finding out the power of the licensee to alter the charges one has to look at the terms of the license in the light of the law as it stands, the 837 past history of that law being wholly irrelevant.
If the terms of the licence, including the deemed terms permit him to unilaterally alter the charges then he has that right.
In the present case looking at those terms, the respondent was certainly within its rights in enhancing the charges as admittedly it had followed the procedure prescribed by law.
[847 F G] The contention that there was no inconsistency between the present scheme relating to the enhancement of charges vis a vis the scheme provided under the Supply Act prior to its amendment in 1956 could not be accepted.
The two schemes are substantially different.
Under the former scheme once the Government fixed the charges the licensee could not en hance them but at present at the end of the period fixed in the Government order the licensee has a unilateral right to enhance the charges in accordance with the conditions prescribed in Schedule VI.
Therefore in, view of section 57 the provisions contained in that Schedule have an overriding effect.
[847 H 848 A] The intention of the legislature being clear and unambiguous there was no need to call into aid any rule of statutory construction or any legal presumption.
Further, there was no reason why those who obtained licences prior to the amendment of the Supply Act in 1956 'should be in a more disadvantageous position than those who got their licences thereafter.
Correspondingly there was no reason why those who are served by licencees who obtained their licences prior to the amendment of the Supply Act in 1956 should be placed in a better position than those served by licensees who obtained their licences thereafter.
[847 C] Section 57(A)(1)(e) was intended to meet the changing economic circumstances.
The purpose behind the new provisions appears to be to, permit the licencees to adjust their charges to get reasonable profits.
But at the same time a machinery has been provided to see whether any excess charges have been levied and if levied 'get the same refunded to the consumers.[847 E] In view of the above considerations and findings the appeals must fail.
State of Punjab V. Mohar Singh, ; and Deep Chand, vs State of U.P. & Ors.
[1959] 2 Supp.
S.C.R. 8, distinguished.
Amalgamated Electricity Co. Ltd. vs N. section Bhathena & Anr. ; , applied.
</s>
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<s>[INST] Summarize the judgementAppeal No. 354 of 1967.
Appeal from the judgment and decree dated August 25, 1965 of the Madras High Court in Appeal No. 177 of 1961.
section V. Gupte, R. Thiagarajan, Janendra Lal and B. R. Agar wala, for the appellant.
N. H. Hingorani and K. Hingorani, for the respondent.
The Judgment of the Court was delivered by Shah, J.
Perumal Nadar married Annapazham (daughter of Kailasa Nadar an Indian Christian) on November 29, 1950, at Kannimadam in the State of Travancore Cochin according to Hindu rites.
Annapazham gave birth to two children the first on September 14, 1951 and the other on March 5, 1958.
The elder child died shortly after its birth.
The younger named Ponnuswami acting through his mother Annapazham as his guardian filed an action in the Court of the Subordinate Judge, Tirunelveli, for separate possession of a half share in the properties of the joint family held by his father Perumal.
The suit was defended by 51 Perumal contending that he had not married Annapazham as claimed by her; that if it be proved that marriage ceremony had been performed, it was invalid, and in any event Ponnuswami was an illegitimate child and could not claim a share in his estate.
The Trial Court rejected the defence, and decreed the suit.
Perumal appealed to the High Court of Madras, but without success.
With certificate under article 133(1)(c) of the Constitution, this appeal is preferred.
Three contentions are urged in support of this appeal : (1) that Annapazham was an Indian Christian and a marriage between a Hindu and an Indian Christian is regarded by the Courts in India as void; (2) that the marriage was invalid because it was prohibited by the Madras Act 6 of 1949; (3) that Annapazham and Perumal were living apart for a long time before the birth of Ponnuswami and on that account Ponnuswami could not be regarded as a legitimate child of Perumal.
Annapazham was born of Christian parents and she followed the Christian faith.
She married Perumal when she was about 19 years of age.
It is not now in dispute that on November 19, 1950 she went through the ceremony of marriage and lived with Perumal as his wife for several years thereafter.
The children born to Annapazham in September 1951 and March 1958 were entered in the Register of Births as Hindus.
On the occasion of the marriage, printed invitations were sent to the relatives of Perumal and of Annapazham and an agreement was executed by Perumal and Annapazham reciting that: "Individual No. 1 (Perumal) among us has married Individual No. 2 (Annapazham) as settled by our parents and also with our full consent.
As our relatives are of the opinion that our marriage should be registered, this agreement has been registered in accordance therewith.
We have executed this agreement by consenting that both of us shall lead a family life as husband and wife from this day onwards, that we shall not part each other both in prosperity and adversity and that we shall have mutual rights in respect of the properties belonging to us, under the Hindu Mitakshara Law.
" The marriage ceremony was performed according to Hindu rites and customs : a bridal platform was constructed and Perumal tied the sacred than which it is customary for a Hindu husband to tie in acknowledgement of the marriage.
The High Court on a consideration of the evidence recorded the following finding: "Oral evidence was adduced to prove that the marriage was celebrated according to Hindu rites and Sams 52 karas.
Invitations were issued at the time of the marriage and usual customary tying of thali was observed.
After the marriage she ceased to attend the Church, abandoned the Christian faith and followed the Hindu customs and manner prevailing among the Hindu Nadar community of Travancore." Perumal who had previously been married to one Seethalakshmi agreed to and did go through the marriage ceremony.
It is in evidence that marriage between Hindu males belonging to the Nadar community and Christian females are common and the wife after the marriage is accepted as a member of the Hindu Nadar community.
Mr. Gupte on behalf of Perumal contends that a valid marri age mistake place between two Hindus only and not between a Hindu and a non Hindu and in the absence of any evidence to show that Annapazham was converted to Hinduism before she married Perumal, the marriage, even if performed according to the Hindu rites and ceremonies, is not valid in law.
Counsel also contended that the evidence that Annapazham lived after the marriage is a Hindu will not validate the marriage.
It is not necessary to decide in this case whether marriage between a Hindu male and an Indian Christian female may be regarded as valid for, in our judgment, the finding of the Courts below that Annapazham was converted to Hinduism before her marriage with Perumal is amply supported by evidence.
A person may be a Hindu by birth or by conversion.
A mere theoretical allegiance to the Hindu faith by a person born in another faith does not convert him into a Hindu, nor is a bare declaration that he is a Hindu sufficient to convert him to Hinduism.
But a bona fide intention to be converted to the Hindu faith, accompanied by conduct unequivocally expressing that intention may be sufficient evidence of conversion.
No formal ceremony of purification or expiation is necessary to effectuate conversion.
In Muthusami Mudaliar vs Masilamani alias Subramania Mu liar(1) the validity of a marriage according to Hindu rites between a Hindu and a Christian woman fell to be determined.
It was held that the marriage contracted according to Hindu rites by a Hindu with a Christian woman, who before marriage is converted to Hinduism, is valid, though the marriage was not in strict accordance with the Hindu system of law.
Such a marriage is still common among and recognised as valid by the custom of the caste to which the man belongs.
In Goona Durgaprasada Rao and Another vs Goona Sudarasa naswami and others(1), Mockett, J., observed that no gesture or (1) I.L.R. (2) I.L.R. 53 declaration may change a man 's religion, but when on the facts it appears that a man did change his religion and was accepted by his co religionists as having changed his religion and lived and died in that religion, absence of some formality cannot negative what is an actual fact.
Krishnaswami Ayyangar, J., observed that a Hindu who had converted himself to the Christian faith returned to Hinduism and contracted a second marriage during the life time of his first wife and remained and died a Hindu having been accepted as such by the community and co religionists without demur.
Absence of evidence of rituals relating to conversion cannot justify the Court in treating him as having remained a Christian.
The evidence clearly establishes that the parents of Anna pazham arranged the marriage.
The marriage was performed according to Hindu rites and ceremonies in the presence of relatives who were invited to attend : customary ceremonies peculiar to a marriage between Hindus were performed : no objection was raised to the marriage and after the marriage Annapazham was accepted by the local Hindu Nadar community as belonging to the Hindu faith, and the plaintiff was also treated as a Hindu.
On the evidence there can be no doubt that Annapazham bona fide intended to contract marriage with Perumal.
Absence of specific expiatory or purificatory ceremonies will not, in our judgment, be sufficient to hold that she was not converted to Hinduism before the marriage ceremony was performed.
The fact that Perumal chose to go through the marriage ceremony according to Hindu rites with Annapazham in the presence of a large number of persons clearly indicates that be accepted that Annapazham was converted to Hinduism before the marriage ceremony was performed.
The second contention has little substance.
The Madras Hindu (Bigamy Prevention and Divorce) Act 6 of 1949 provided by sections 3 & 4(1) : section 3 "This Act applies to Hindus domiciled in the State of Madras.
Explanation.
This Act shall also apply if either of the parties to the marriage was a Hindu domiciled in the State of Madras." section 4(1) "Notwithstanding any rule of law, custom or usage to the contrary, any marriage solemnized after the commencement of this Act between a man and a woman either of whom has a spouse living at the time of such solemnization shall be void, whether the marriage is solemnized within or outside the State of Madras : Provided. . . . . . " 54 Mr. Gupte contended that Perumal was domiciled in the village of Kannamkulam, Taluka Nanguneri, District Tirunelveli in the State of Madras and on that account governed by Madras Act 6 of 1949, and since Perumal had been previously married to Seethalakshmi who was alive, his marriage with Annapazham was invalid.
The Courts below have held that Perumal had married Seethalakshmi before he married Annapazham, and that Seethalakshmi was alive at the date of Perumal 's marriage with Annapazham.
But no contention was raised in the written statement filed by Perumal that he was domiciled in the State of Madras.
The marriage with Annapazham took place in Kannimadam which is admittedly within the territory of the State of Travancore Cochin and after the marriage Perumal and Annapazham lived at Kannimadam.
M. Thangiah Nadar P.W. 2, and Kailasa Nadar P.W. 4 have deposed that the families of Annapazham and Perumal were the subjects of the Travancore Maharaja and that evidence was not challenged.
Perumal and Annapazham were married according to the ceremonies which make a valid marriage: they had lived as husband and wife and if it was the case of Perumal that the marriage was, by reason of the prohibition contained in Madras Act 6 of 1949, invalid, it was for him to set up and to establish that plea by evidence.
It is true that an attempt was made after plaintiff closed her case to suggest to witnesses examined that he Perumal was a resident of Kannamkulam and that he occasionally visited Kannimadam where he had a house.
But no argument was raised that Perumal was domiciled in the State of Madras.
In the absence of any such contention, the Trial Court held that Perumal was not domiciled in the State of Madras.
It cannot be held in the absence of a specific plea and issue raised to that end that Perumal was domiciled in the State of Madras and was on that account governed by the provisions of the Madras Hindu (Bigamy Prevention and Divorce) Act 6 of 1949.
We agree with the High Court that it is not proved that Perumal was domiciled in the State of Madras at the date of his marriage with Annapazham.
Nor can we accept the contention that the plaintiff Ponnu swami is an illegitimate child.
If it be accepted that there was a valid marriage between Perumal and Annapazham and during the subsistence of the marriage the plaintiff was born, a conclusive established that at the time when the plaintiff was conceived, Peru presumption arises that he was the son of Perumal, unless it be mal had no access to Annapazham.
There is evidence on the record that there were in 1957 some disputes between Annapazham and Perumal.
Annapazham had lodged a complaint before the Magistrate 's court that Perumal had contracted marriage with one Bhagavathi.
That complaint was dismissed and the order was 55 confirmed by the High Court of Madras.
Because of this com plaint, the relations between the parties were strained and they were living apart.
But it is still common ground that Perumal and Annapazham were living in the same village, and unless Perumal was able to establish absence of access, the presumption raised by section 112 of the Indian Evidence Act will not be displaced.
In Chilukuri Venkateswarlu vs Chilukuri Venkatanarayana(1) in a suit filed by a Hindu son against his father for partition it was contended that the plaintiff was not the legitimate child of the defendant.
The defendant relied upon certain documents by which he had agreed to pay maintenance to the plaintiffs mother, and upon a deed gifting a house to her and assertions made in a previous suit that he had no intercourse with her after he married a second wife.
The Court in that case observed, following the judgment of the Privy Council in Karapaya vs Mayandi(1) that .,non access could be established not merely by positive or direct evidence; it can be proved undoubtedly like any other physical fact by evidence, either direct or circumstantial, which is relevant to the issue under the provisions of the Indian Evidence Act, though as the presumption of legitimacy is highly favoured by law it is necessary that proof of non access must be clear and satisfactory", and since on the basis of that proof there was evidence on the record that the plaintiffs mother lived in the house gifted to her by her husband and there was no impossibility of cohabitation between the parties, there was no acceptable evidence of non access.
In Ammathayee vs Kumaresain (3) this Court held that the conclusive presumption under section 112 of the Indian Evidence Act can.
only be displaced if it is shown that the parties to the marriage had no access at any time when the child could have been begotten, There is a concurrent finding of the Trial Court and the High Court that there is no evidence to establish that Perumal living in the same village as Annapazham had no access to Annapazham during the time when the plaintiff could have been begotten.
The appeal fails and is dismissed with costs.
G.C. Appeal dismissed.
(1) (2) I.L.R. 12 Rang.
[/INST]Rule 19(2) of the Displaced Persons (Compensation and Rehabilitation) Rules provides for the method of compensation to joint families which have migrated to India as a result of the partition of the country in 1947.
Rule 19(3)(b) provides that for the purpose of calculating the number of members of a joint family.
Under r. 19(2), a person who was a lineal descendant in the main line of another living member of the family entitled to claim partition shall be excluded.
A joint family consisting of a father and his sons had migrated to India from Sind.
The father made an application for the verification of claim in respect of the properties left by the family in Sind and the claim was verified.
One of the sons claimed that the father and sons should be treated as tenants in common.
The authorities under the Act held that the parties constituted a joint Hindu family 'and that in view of the r. 19 (3) (b), r. 19(2) was not applicable.
The High Court quashed the order holding that the living member of the family whose lineal descendants are to be excluded under r, 19(3) (b), must be a person other than their father, on the assumption that a person against whom partition can be claimed by the father must be some member of the family other than his lineal descendants.
In appeal to this Court, HELD : The special provision embodied in the rule is intended to treat a joint Hindu family consisting only of a father and his sons as one unit for the purpose of payment of compensation for the joint family property left in Pakistan.
The rule is rational and logical and its_language is not susceptible of the meaning given to it by the High Court, because under Hindu law a father and each of his sons are entitled to claim partition against each other.
[444 A B, C F]
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<s>[INST] Summarize the judgementCriminal Appeal No. 378 of 1986.
From the Judgment and Order dated 11.10.
1985 of the Bombay High Court in Crl.
Revision Appln.
No. 167 of 1985.
V.N. Ganpule for the Appellant.
A.M. Khanwilkar, A.S. Bhasme and G.B. Sathe for the Respondents.
The Judgment of the Court was delivered by DUTT, J.
The only point that is involved in this appeal by special leave is whether the respondent No. 1 is entitled to claim maintenance from the appellant, his married daugh ter, under section 125(1)(d) Cr.
The appellant Dr. Mrs. Vijaya Arbat, a medical practi tioner at Kalyan, District Thane, is the married daughter of the respondent No. 1 Kashirao Rajaram Sawai, by his first wife.
Her mother died in 1948.
Thereafter, the respondent No. 1 remarried and is living with his second wife.
The respondent No. 1 filed an application before the Judicial Magistrate, First Court, Kalyan, claiming maintenance from the appellant, his daughter, at the rate of Rs.500 per month on the ground that he was unable to maintain himself.
At the outset, the appellant raised a preliminary objec tion to the maintainability of the application on the ground that section 125(1)(d) Cr.
P.C. does not entitle a father to claim maintenance from his daughter.
The preliminary objec tion was overruled by the learned Magis 334 trate, and it was held by him that the application was maintainable.
Being aggrieved by the order of the learned Magistrate, the appellant moved the Bombay High Court in revision.
The High Court affirmed the order of the learned Magistrate and held that the application of a father for maintenance who is unable to maintain himself is maintain able against his married daughter having sufficient means.
In that view of the matter the High Court dismissed the revisional application of the appellant.
Hence this appeal by special leave.
Sub section (1) of section 125 Cr.
P.C. provides as under: "If any person having.
sufficient means ne glects or refuses to maintain (a) his wife, unable to maintain herself or (b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or (c) his legitimate or illegitimate child (not being a married daughter) who has at tained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or (d) his father or mother, unable to maintain himself or herself, a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate not exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct: Provided that the Magistrate may order the father of a minor female child referred to in clause (b) to make such allow ance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of sufficient means.
" Sub section (1) of section 125 confers power on the Magistrate of the First Class to order a person to make a monthly allowance for the 335 maintenance of some of his close relations like wife, chil dren, father and mother under certain circumstances.
It has been observed by this Court in Bhagwan Dutt vs Kamla Devi, ; that the object of section 125 Cr.
P.C. is to provide a summary remedy to save dependents from destitu tion and vagrancy and thus to serve a social purpose.
There can be no doubt that it is the moral obligation of a son or a daughter to maintain his or her parents.
It is not desirable that even though a son or a daughter has sufficient means, his or her parents would starve.
Apart from any law, the Indian society casts a duty on the chil dren of a person to maintain their parents if they are not in a position to maintain themselves.
It is also their duty to look after their parents when they become old and infirm.
The learned Counsel, appearing on behalf of the appel lant, has urged that under clause (d) of section 125(1) a father is not entitled to claim maintenance from his daugh ter whether married or not.
Our attention has been drawn to the use of the pronoun 'his ' in clause (d) and it is submit ted that the pronoun indicates that it is only the son who is burdened with the obligation to maintain his parents.
Counsel submits that if the legislature had intended that the maintenance can be claimed by the parents from the daughter as well, it would not have used the pronoun 'his '.
We are unable to accept this contention.
It is true that clause (d) has used the expression "his father or mother" but, in our opinion, the use of the word 'his ' does not exclude the parents claiming maintenance from their daugh ter.
Section 2(y) Cr.
P.C. provides that words and expres sions used herein and not defined but defined in the Indian Penal Code have the meanings respectively assigned to them in that Code.
Section 8 of the Indian Penal Code lays down that the pronoun 'he ' and its derivatives are used for any person whether male or female.
Thus, in view of section 8 IPC read with section 2(y) Cr.
P.C., the pronoun 'his ' in clause (d) of section 125(1) Cr.
P.C. also indicates a fe male.
Section 13(1) of the General Clauses Act lays down that in all Central Acts and Regulations, unless there is anything repugnant in the subject or context, words import ing the masculine gender shall be taken to include females.
Therefore, the pronoun 'his ' as used in clause (d) of sec tion 125(1) Cr.
P.C. includes both a male and a female.
In other words, the parents will be entitled to claim mainte nance against their daughter provided, however, the other conditions as mentioned in the section are fulfilled.
Before ordering maintenance in 336 favour of a father or a mother against their married daugh ter, the court must be satisfied that the daughter has sufficient means of her own independently of the means or income of her husband, and that the father or the mother, as the case may be, is unable to maintain himself or herself.
Much reliance has been placed by the learned Counsel for the appellant on a decision of the Kerala High Court in Raj Kumari vs Yashodha Devi, In that case it has been held by a learned Single Judge of the Kerala High Court, mainly relying upon the report of the Joint Committee on the Criminal Procedure Code Bill, 1973, that a daughter is not liable to maintain her parents who are unable to maintain themselves.
The Joint Committee in their report made the following recommendations: "The committee considers that the right of the parents not possessed of sufficient means, to be maintained by their son should be recog nised by making a provision that where the father or mother is unable to maintain himself or herself an order for payment of maintenance may be directed to a son who is possessed of sufficient means.
If there are two or more children the parents may seek the remedy against any one or more of them" (Emphasis supplied).
The learned Judge of the Kerala High Court did not refer in his judgment to the sentence which has been underlined.
It is true that in the first part of the report the word 'son ' has been used, but in the latter part which has been underlined the recommendation is that if there are two or more children the parents may seek the remedy against any one or more of them.
If the recommendation of the Joint Committee was that the liability to maintain the parents, unable to maintain themselves, would be on the son only, in that case, in the latter portion of the report the Joint Committee would not have used the word 'children ' which admittedly includes sons and daughters.
In our opinion, as we read the report of the Joint Committee, it did not place the burden of maintaining the parents only on the son, but recommended that the liability to maintain the parents should be of the sons and the daughters as well.
We have referred to the report of the Joint Committee inasmuch as the same has been relied upon in Raj Kumari 's case (supra) by the Kerala High Court and also on behalf of the appellant in the instant case.
When the statute provides that the pronoun 'his ' not only denotes a male but also a female, we do not think it necessary to refer to the report of the Joint Committee for the 337 interpretation of clause (d) of section 125(1) Cr.
The father or mother, unable to maintain himself or herself, can claim maintenance from their son or daughter.
The expression "his father or mother" is not confined only to the father or mother of the son but also to the father or mother of the daughter.
In other words, the expression "his father or mother" should also be construed as "her father or mother".
In M. Areera Beevi vs Dr. K.M. Sahib, [1983] Cr.L.J. 412, and Repalli Masthanamma vs Thota Sriramulu, , another Single Bench of the Kerala High Court and the Andhra Pradesh High Court have respectively taken the view that the parents who are unable to maintain them selves can claim maintenance also from their daughters under section 125(1)(d) Cr.
P.C. We are unable to accept the contention of the appellant that a married daughter has no obligation to maintain her parents even if they are unable to maintain themselves.
It has been rightly pointed out by the High Court that a daugh ter after her marriage does not cease to be a daughter of the father or mother.
It has been earlier noticed that it is the moral obligation of the children to maintain their parents.
In case the contention of the appellant that the daughter has no liability whatsoever to maintain her parents is accepted, in that case, parents having no son but only daughters and unable to maintain themselves, would go desti tute, if the daughters even though they have sufficient means refuse to maintain their parents.
After giving our best consideration to the question, we are of the view that section 125(1)(d) has imposed a liabil ity on both the son and the daughter to maintain their father or mother who is unable to maintain himself or her self.
Section 488 of the old Criminal Procedure Code did not contain a provision like clause (d) of section 125(1).
The legislature in enacting Criminal Procedure Code, 1973 thought it wise to provide for the maintenance of the par ents of a person when such parents are unable to maintain themselves.
The purpose of such enactment is to enforce social obligation and we do not think why the daughter should be excluded from such obligation to maintain their parents.
The judgment of the High Court is affirmed and this appeal is dismissed.
There will, however, be no order as to costs.
338 The learned Magistrate will now dispose of the applica tion under section 125(1)(d) Cr.
P.C. of the respondent on merits in accordance with law.
We make it clear that we have not expressed any opinion on the merits of the case.
S.R. Appeal dis missed.
[/INST]These two petitions challenged the constitutional validity of the Punjab Special Powers (Press) Act, 1956 (No. 38 of 1956) passed by the State Legislature in the wake of the serious communal tension that had arisen between the Hindus and the Akali Sikhs over the question of the partition of the State on a linguistic and communal basis.
The petitioners were the editors, printers and publishers, respectively, of the two daily newspapers, Pratap and Vir Arjun, printed and published simultaneously from jullundur and New Delhi, whose admitted policy was to support the "Save Hindi agitation".
Two notifications under section 2(1)(a) of the impugned Act were issued against the editor, printer and publisher of the two papers published from Jullundur by the Home Secretary prohibiting him from printing and publishing any matter relating to the 'Save Hindi agitation ' in the two papers for a period of two months.
Two other notifications in identical terms were issued under section 3(1) of the impugned Act against the other petitioner, the editor, printer and publisher of the two papers in New Delhi prohibiting him from bringing into the Punjab the newspapers printed and published in.
New Delhi from the date of the publication of the notifications.
Unlike section 2(1) of the impugned Act which provided a time limit for the operation of an order made thereunder as also for a representation to be made by the aggrieved person, section 3 of the Act made no such provision.
It was contended on behalf of the petitioners that both the sections were ultra vires the State Legislature inasmuch as they infringed articles 19(1)(a) and 19(1)(g) of the Constitution and were not saved by articles 19(2) and 19(6) of the Constitution.
It was urged that the sections imposed not merely restrictions but a total prohibition against the exercise of the said fundamental rights by prohibiting the publication of all matters relating to the 'Save Hindi agitation ' under section 2(1)(a) and by a complete prohibition of the entry of the two papers into the whole of the Punjab under section 3(1) of the Act, that even supposing 309 that the sections merely imposed restrictions and not a total prohibition, the restrictions were not reasonable, that the sections gave unfettered and uncontrolled discretion to the State Government and its delegate, that the Act did not provide for any safeguard against an abuse of the power, that the language of the sections being wide enough to cover restrictions both within and cutside the limits of constitutionally permissible legislative action they were ultra vires the Constitution and that the notification under section 2(1)(a) of the Act as made would prevent even the publication of anything against the 'Save Hindi agitation ' and should have been restricted to such matters alone as were likely to prejudicially affect the public order.
Held, that the restrictions imposed by section 2(1)(a) of the impugned Act were reasonable restrictions within the meaning of article 19(2) of the Constitution and the petition directed against the notifications issued thereunder must fail, but since section 3 Of the Act did not provide for any time limit for the operation of an order made thereunder nor for a representation by the aggrieved party to the State Government, the restrictions imposed by it were not reasonable restrictions under article 19(6) of the Constitution and the petition directed against the notifications made thereunder must succeed.
Held further, that there can be no doubt that the right of freedom of speech and expression carries with it the right to propagate one 's views and the several rights of freedom guaranteed by article 19(1) of the Constitution are exercisable throughout India but whether or not any restrictions put on those rights amount to a total prohibition of the exercise of such rights must be judged by reference to their ambit.
So judged, the restrictions imposed in the instant cases with regard to the publications relating to only one topic and the circulation of the papers only in a particular territory could not amount to a total prohibition of the exercise of the fundamental rights.
The expression "in the interest of" in articles 19(2) and 19(6) of the Constitution makes the protection they afford very wide and although free propagation and interchange of views are ordinarily in social interest, circumstances may arise when social interest in public order is greater and the imposition of reasonable restrictions on the freedom of speech and expression and on the freedom of carrying on trade or business becomes imperative.
Regard being had to the surrounding circumstances in which the impugned Act was passed, its object, the extent and urgency of the evil it sought to remedy, and the enormous power wielded by the Press, with modern facilities of quick circulation, and the consequence that any abuse of it might lead to, the restrictions imposed by the impugned Act must be held to be reasonable restrictions under the Articles.
The State of Madras vs V. G. Row, ; , followed.
310 It was only in the fitness of things that the State Legislature should have left the wide preventive powers under the sections to the discretion of the State Government, charged with the maintenance of law and order, or to its delegate, to be exercised on their subjective satisfaction.
To make the exercise of these powers justiciable and subject to judicial scrutiny would be to defeat the purpose of the enactment.
Dr. N. B. Khare vs The State of Delhi, ; , referred to.
But such discretion was by no means unfettered and uncontrolled.
The two sections laid down the principle that the State Government or its delegate could exercise such powers only if they were satisfied that such exercise was necessary for the purpose mentioned in the sections and not otherwise.
Where there was any abuse of such powers, therefore, what could be struck down was the abuse itself but not the statute.
Dwaraka Prasad Laxmi Nayain vs The State of Uttar Pradesh, ; , held inapplicable.
Harishankar Bagla vs The State of Madhya Pradesh, , relied on.
In view of the amended provisions of article 19(2) of the Constitution and the language of the two sections limiting the exercise of the powers to the purposes specifically mentioned therein, the principles enunciated by this Court in Ramesh Thappay 's case and applied to Chintaman Rao 's case could have no application to the instant cases.
Ramesh Thappay vs The State of Madras, ; and Chintaman Rao vs The State of Madhya Pradesh, (1950) S.C. R. 759, held inapplicable.
The two provisos to section 2(1)(a) and cl.
(b) of section 2(1) clearly show that the restrictions imposed by section 2 are reasonable restrictions on the exercise of the rights guaranteed by articles 19(1)(a) and 19(1)(g) and are, therefore, protected by articles 9(2) and 19(6) of the Constitution.
There could be no basis for the grievance that the notifica tion under section 2(1)(a) prevented the publication even of matters against the 'Save Hindi agitation '.
If there was a change in the policy of the papers, the time limit provided for the operation of the notifications and the right to make a representation provided ample remedies for the petitioner.
To introduce into the notifications the suggested qualification would be to make the exercise of the powers conferred by the section dependent on an objective test subject to judicial scrutiny and defeat the very purpose of the section.
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<s>[INST] Summarize the judgementvil Appeal No. 1747 (N) of 1973.
From the Judgment and Order dated 16.6.1972 of the Calcutta High Court in Appeal No. 54 of 1969.
C.S. Vaidayanathan, Pravir Choudhary, K.V. Mohan, H.K. Dutt and S.R. Bhat for the Appellant.
G.S. Chatterjee for the Respondent.
The Judgment of the Court was delivered by KHALID, J.
This is an appeal by special leave filed by the plaintiff bank against the judgment of the Calcutta High Court, arising from suit No. 547 of 1952, filed for recovery of a sum of Rs.17,091 0 1 with interest.
The question in volved in this appeal is a short one, but of general impor tance to banks in the country.
we have made it clear to the appellant bank that we are interested only in laying down the law in this appeal and not in giving a decree to the bank for this small amount, the claim for which originated nearly 35 years ago.
The learned counsel for the appellant bank has agreed to this suggestion.
The defendant in the suit was one Ramesh Chandra Roy Choudhury.
The plaintiff was the United Bank of India Ltd. The defendant had an over draft account with the bank.
He died on the 6th November, 1960.
On the 20th Dec., 1960 the widow of the defendant, 1092 Smt.
Kananbala Devi informed the Deshapriya Park Branch of the bank of the death of the defendant.
The bank had several branches in Calcutta.
One of the branches was the Royal Exchange Branch.
It was this branch that instituted the suit in question.
The applications for impleading the legal representa tives of the defendant and for setting aside abatement were made by a Chambers Summons on the 8th August, 1968 about 8 years after the death of the defendant.
The delay in making these applications was attempted to be explained with the plea that the Royal Exchange Branch of the bank had no knowledge of the death of the defendant till the Deshapriya Park Branch was informed of the death.
The High Court re jected the applications holding that "In our opinion it is no explanation to say that the Royal Exchange Branch of the plaintiff bank which had really instituted the suit could not and/or did not have knowledge of the death of Ramesh Chandra Roy Choudhury.
An intimation of the death of Ramesh Chandra Roy Choudhury to the bank in the Deshapriya Park Branch could not be treated as no intimation to the bank which happens to be the plaintiff in this suit.
In our view no sufficient cause was shown in the petition for setting aside the abatement and the learned Judge was right in dismissing the said application.
The appeal, therefore, fails and is dismissed" Hence this appeal.
The learned counsel for the appellant submits that it would be extremely dangerous for courts to impute knowledge of the death of a customer with all the branches of a bank, solely on the strength of information given to a particular branch of the bank.
It is submitted that in these days when banking business has expanded by leaps and bounds with branches spread over large areas, it would not be possible for a particular branch to know the death of one of its customers if that branch had not been informed of the death.
In the absence of highly technical modern methods or com puterised information to all the branches, of their custom ers and their details, no branch of a bank can be presumed to know whether a particular customer is alive or not unless that hank is given necessary information.
The submission that all branches of a bank should be imputed with constructive knowledge of the death of a cus tomer simply because one of the branches had been informed of it would result in adverse consequences and would defeat actions by banks for recovery of dues 1093 and would work great loss to banks and would harm public interest.
In this case, it is not stated or proved that the Royal Exchange Branch had information earlier about the death of the defendant.
To prove this we have two letters produced by the appellant: (1) dated 3rd June, 1968 and the other dated 17th June, 1968.
The two letters read as fol lows: 10 OLD POST OFFICE ST., CALCUTTA.
M/s. S.N. Sen & Co. Dear Sir, 3rd June, 1968.
United Bank of India Ltd. vs Ramesh Chandra Roy Choudhury.
As I have not yet been able to make contact with my client until now in spite of my at tempts on that behalf, please do not mention the suit tomorrow but mention the suit some time next week.
The suit was part heard about 9 or 10 years before and my client has not seen since then.
I hope you will mention the suit next week on previous notice to me.
Yours faithful ly, sd/ K.P. Mustaphy.
M/s. S.N. Sen & Co. Dear Sir, 17th June 1968.
Suit No. 547 of 1952 United Bank of India Ltd. V. Ramesh Chandra Roy Choudhury Kindly note that when the above suit will be mentioned by you before his Lordship the Hon 'ble Mr. Justice R.M. Dutt, I will submit his Lordship that as the defendant died in 1960, the suit has abated and cannot be pro ceeded with.
Yours faithful ly, Sd/ K.P. Mustaphy.
Both the letters are written by the counsel for the defend ant to 1094 the bank.
It is evident from the first letter that even on 3rd June, 1968, the counsel for the defendant did not know about the death of the defendant.
It was only thereafter that he came to know of the same.
This branch of law appears to be barren of authority.
A question akin to this is reported in 1918, The Times Law Reports, Volume XXXV, page 142.
The brief facts are as follows: The plaintiffs ' claim in the suit was on a cheque for a 100, dated February 5, 1918 drawn by the ,defendant and made payable to the order of a Mrs. N. Try, who endorsed it to the plaintiffs.
The defendant obtained leave to defend.
The bank had branch at Victoria street, Westminster. of which the manager was Mr. Stephen Trott.
Among their customers was Mrs. Try.
The bank had a branch at the Oxford street branch of the Bank and she asked the manager to cash it.
The amount was paid.
The manager had no notice that the cheque had been stopped.
The cheque when presented by the Victoria street Branch to the Oxford street Branch was returned marked "Ordered not to pay".
The cheque was stopped by a letter from the defendant to the Oxford street Branch.
That letter was undated.
It was under these circumstances that the action was brought.
The question was when the drawer of a cheque stops payment by a notice given only to that branch on which it is drawn and the payee afterwards endorses the cheque to anoth er branch of the same bank and the manager of that other branch advances money on the cheque in good faith and with out notice that the cheque had been stopped, whether the bank is entitled to recover against the drawer in an action on the cheque.
Here it was clear that the cheque was stopped on the Oxford street Branch and that there was no notice yet at the Victoria street Branch when the cheque was pre sented.
it was held that the bank was the holder of the cheque and the fact that the branch at Oxford street had notice not to pay the cheque did not affect the bank and, therefore, the bank was entitled to relief.
It was observed that there was a right to a separate notice of dishonour as between the different branches of a bank.
Though this judgment is not .on all fours with our case, we seek some assistance from it for our purpose and that limited purpose is that notice to one branch of a bank is no notice to the other branches.
That being so the fact that the Deshapriya Park Branch had knowledge of 1095 the death, will not be sufficient to impute Royal Exchange Branch with constructive notice and reject the applications to set aside abatement and to condone delay.
Of course, the law under the present Civil Procedure Code obviates this difficulty to some extent under Order 22 Rule 10 A, Under the rule, when a pleader appearing for a party to the suit comes to know of the death of that party, he shall inform the Court about it, whereupon the Court shall give notice of such death of the other party.
However, this provision not being absolutely mandatory and cast a duty only on the pleader, we thought it necessary to answer the question of law involved in this appeal.
For the foregoing reasons we hold that the High Court was in an error in rejecting the application to set aside abatement and to condone delay on the plea that notice to one branch will be notice to other branches.
We set aside the judgment of the High Court and allow this appeal with no order as to costs, As indicated above, the matter will rest here and the bank will not be permitted to proceed against the defendant or his legal representa tives to realize the amount involved in the suit.
The amount will be deemed to have been fully discharged.
We have only decided the question of law for the benefit of the banks and general public.
P.S.S. Appeal allowed.
[/INST]The first respondent and three others were alleged to have murdered the deceased.
The first respondent absconded after the occurrence and surrendered in court later.
The trial court rejected his bail application, and three succes sive bail applications were rejected by a Single Judge of the High Court.
The first respondent made another attempt in the High Court to get bail.
Having regard to the judicial discipline and prevailing practice in the High Court, anoth er Single Judge of the High Court, sitting as a Vacation Judge, ordered that the bail application be placed before the same learned Judge who had dealt with the case on earli er occasions.
However, a few days later, the Judge, after recalling his earlier order, granted bail on the ground that the trial could not be commenced or completed as directed by another Single Judge and because of the delay the accused was entitled to bail, and that the liberty of a citizen was involved.
The complainant has filed an appeal to this Court against the aforesaid order.
Allowing the appeal and setting aside the order of the High Court granting bail, this Court, HELD: 1.
Normally this Court does not interfere with bail matters and the orders of the High Court relating to grant or rejection of bail are generally accepted to be final but some disturbing features have persuaded this Court to interfere in the instant case, with the order of the High Court.
[38E] 2.
No doubt liberty of a citizen must be zealously safe guarded by 35 court.
Nonetheless, when a person is accused of a serious offence like murder and his successive bail applications are rejected on merit, there being prima facie material, the prosecution is entitled to place correct facts before the Court.
Liberty is to be secured through process of law, which is administered keeping in mind the interests of the accused, the near and dear of the victim who lost his life and who reel helpless and believe that there is no justice in the world as also the collective interest of the communi ty so that parties do not lose faith in the institution and indulge in private retribution.
[40C E] 3.
The convention that subsequent bail application should be placed before the same Judge who may have passed earlier orders has its roots in principle.
It prevents abuse of process of court inasmuch as an impression is not created that a litigant is shunning or selecting a court depending on whether the court is to his liking or not, and is encour aged to file successive applications without any new factor having cropped up.
If successive bail applications on the same subject are permitted to be disposed of by different Judges there would be conflicting orders and a litigant would be pestering every Judge till he gets an order to his liking resulting in the credibility of the court and the confidence of the other side being put in issue and there would be wastage of court 's time.
Judicial discipline re quires that such a matter must be placed before the same Judge, if he is available for orders.
[39B D] 4.
One of the salutory principles in granting bail is that the Court should be satisfied that the accused being enlarged on bail will not be in a position to tamper with the evidence.
When allegations of tampering of evidence are made, it is the duty of the court to satisfy itself whether those allegations have basis and if the allegations are not found to be concocted it would not be a proper exercise of jurisdiction in enlarging the accused on bail.
[40FH] 5.
In the instant case, as three successive bail appli cations made on behalf of the first respondent had been rejected and finally disposed of by the same Judge, it would have been appropriate and desirable and also in keeping with the prevailing practice in the High Court that the subse quent bail application also should have been placed before the same Judge for disposal.
In tact, being conscious of the long standing convention and judicial discipline, the Judge himself passed an order directing the bail application to be placed before the other Judge.
The Judge should have re spected his own earlier order and ought not to 36 have recalled it without the confidence of the parties in the judicial process being rudely shaken.
[38E G; 39E] 6.
The Judge was unduly influenced by the concept of liberty, disregarding the facts of the case.
There were serious allegations, but the Judge did not either consider or test the same.
Objections were raised against hearing of the bail application on a number of grounds and time was sought for filing a detailed counter affidavit which was refused.
He granted bail simply on the ground that liberty was involved, which is the case in every criminal case, more particularly in a murder case where a citizen who, let alone losing liberty, has lost his very life, and that because of the delay in the trial the accused was entitled to bail.
The Judge committed serious error in recallint his earlier order and enlarging the first respondent on bail.
[40E; H; 39G H; 41A]
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<s>[INST] Summarize the judgementAppeal No. 1116 of 1965.
Appeal from the order dated August 26, 1964 of the Punjab High Court in Civil Writ No. 498 D of 1964.
M.C. Chagla, Sardar Bahaclur, Ajit Prasad Jain, Vishnu B. Saharya ,and Yougindra Kaushalani, for the appellant.
V.A. Seyid Muhammad and S.P. Nayar, for the respondents.
862 The Judgment of the Court was delivered by Sikri, J.
The appellant, Durga Prashad, filed a petition under article 226 of the Constitution against the respondents.
The High Court of Punjab, Circuit Bench, Delhi, dismissed the petition in limine.
Thereupon the appellant applied for a certificate under article 133 (1)(a) of the Constitution.
The High Court gave this certificate on the ground that the value of the subject matter directly involved in the petition exceeds Rs. 20,000/ .
In our opinion this appeal must fail on the ground that the petition under article 226 of the Constitution was filed after great delay.
The relevant facts are as under.
The appellant was carrying on business of export and import, and exported goods of the value of Rs. 8,10,325/ , F.O.B. value Rs. 8,03,530.45, during the period August 25, 1958, to September 29, 1958.
On November 12, 1958, the appellant applied for an import licence for art silk yarn of the f.o.b. value of Rs. 8,03,530.45 nP under the Export Promotion Scheme.
The Export Promotion Scheme was discontinued with effect from March 6, 1959.
On October 9, 1959, import licence of the value of Rs. 3,27,841/ only was issued to the appellant by the Joint Chief Controller of Imports and Exports, Bombay.
His appeal against this order was rejected by the Joint Chief Controller on March 4, 1960.
It is alleged by the appellant that he was not given a hearing.
The appellant filed a second appeal to the Chief Controller of Imports and Exports, and this was dismissed on April 22, 1961.
Here again it is alleged that no ' hearing was given to the appellant.
He filed a representation against the order dated April 22, 1961, and on that representation a supplementary import licence for import of art silk yarn of the value of Rs. 30,000/ was issued to the appellant.
This exhausted all the remedies he had under para 85 of the order relating to the Export Promotion Scheme, but he instead of filing a writ chose to wait.
The appellant apparently approached the Minister of International Trade by letter dated April 6, 1964 this is the letter referred to in the letter of the Private Secretary to the Minister of International Trade and the Private Secretary, vide his letter dated April 16, 1964, wrote to him saying that his letter had been passed on to the Chief Controller of Imports and Exports, New Delhi, and if so desired the appellant may see him in the matter.
Apparently the Chief Controller invited him and on June 22, 1964, he was informed that no further licence would be issued to him.
On August 24, 1964, the appellant filed the petition above mentioned in the High Court.
No explanation has been given in the petition for the delay in filing the petition and it has not been explained what the appellant was doing between March 863 5, 1962, when the supplementary licence was issued, and April 6, 1964.
It is well settled that the relief under article 226 is discretionary, and one ground for refusing relief under article 226 is that the petitioner has filed the petition after delay for which there is no satisfactory explanation.
Gajendragadkar, C.J., speaking for the Constitution Bench, n Smt.
Narayani Debi Khaitan vs The State of Bihar(1), observed.
"It is well settled that under article 226, the power of the High Court to issue an appropriate writ is discretionary.
There can be no doubt that if a citizen moves the High Court under article 226 and contends that his fundamental rights have been contravened by any executive action, the High Court would naturally like to give relief to him; but even in such a case, if the petitioner has been guilty of laches, and there are other relevant circumstances which indicate that it would be inappropriate for the High Court to exercise its high prerogative jurisdiction in favour of the petitioner, ends of justice may require that the High Court should refuse to issue a writ.
There can be little doubt that if it is shown that a party moving the High Court under article 226 for a writ is, in substance, claiming a relief which under the law of limitation was barred at the time when the writ petition was filed, the High Court would refuse to grant any relief in its writ jurisdiction.
No hard and fast rule can be laid down as to when the High Court should refuse to exercise its jurisdiction in favour of a party who moves it after considerable delay and is otherwise guilty of laches.
That is a matter which must be left to the discretion of the High Court and like all matters left to the discretion of the Court, in this matter too discretion must be exercised judiciously and reasonably.
" Relying on the judgment of this Court in Maharashtra State Road Transport Corporation vs Shri Balwant Regular Motor service, Amravati(2) the learned counsel for the appellant contends hat the delay should not debar him from seeking relief because he respondents have not suffered in any manner because of the delay.
In this case Ramaswami, J., speaking for the Court, referred to an earlier decision in Moon Mills vs Industrial Court(a).
(1) C.A. No. 140 of 1964; judgment dated September 22, 1964.
(2) ; (3) A.I.R. 1967 S.C. 1450, 53, 54.
Sup CI/69 4 864 In that case Ramaswami, J.,. speaking for the Court, observed: "It is true that the issue of a writ of certiorari is largely a matter of sound discretion.
It is also true 'that the writ will not be granted if there is such negligence or omission on the part of the applicant to assert his right as, taken in conjunction with the lapse of time and other circumstances, causes prejudice to the adverse party.
The principle is to a great extent, though not identical with, similar to the exercise of discretion in the Court of Chancery.
" It would be noticed that Ramaswami, J., had first examined the question of delay and came to a finding that in fact there was n delay.
Ramaswami, J., observed: "On behalf of the respondent Mr. B. Sen, however, pointed out that the conduct of the appellant does not entitle it to the grant of a writ, because it has been guilty of acquiescence or delay.
It was pointed out that the award of Mr. What was given on April 25, 1958, but an application to the High Court for grant of a writ was made long after on November 16, 1959.
We do not think there is any substance in this argument, because the second respondent had made an application, dated August 19, 1958 to the Labour Court for enforcement of the award and the appellant had contested that application by a Written Statement, dated September 15, 1958.
The Labour Court allowed the application on August 4, 1959 and the appellant had preferred an appeal to the Industrial Court on August 31, 1959.
The decision of the industrial Court was given on October 24, 1959 and after the appeal was dismissed the appellant moved the High Court for grant of a writ on November 16, 1959.
" The appellant in this case had claimed a mandamus or direction to the respondents to issue to the appellant import licence for art silk yarn of the value of Rs. 8,03,530.45.
It is well know that the exchange position of this country and the policy of Government regarding International trade varies from year t year and it would be rather odd for this Court to direct that a Import licence be granted in the year 1968 in respect of allege,, default committed by the Government in 1959 or 1962.
In these matters it is essential that persons who are aggrieved by order of the Government should approach the High Court after exhausting the remedies provided by law, rule or order with utmost expedition.
865 The learned counsel for the appellant contends that this matter involved fundamental rights and this Court at least should not refuse to give relief on the ground of delay.
But we are exercising our jurisdiction not under article 32 but under article 226, and as observed.
by Gajendragadkar, C.J., in the passage extracted above, even in the case of alleged breach of fundamental rights the matter must be left to the discretion of the High Court.
In the result the appeal fails.
Parties will bear their own costs.
Y.P. Appeal dismissed.
[/INST]By a notification dated August 4. 1947 issued under section 12(1) of the ' Foreign Exchange Regulation.
Act, 1947 and the, Foreign Exchange Regulation Rules, 1952, and amended thereunder, the Central Government prohibited the export to countries mentioned in its Schedule.
of goods, except by post.
unless a declaration supported by such evidence as may be prescribed is furnished by the exporter to the prescribed authority that the amount representing the full export value of the goods has been paid or would be paid within the prescribed period.
In 1957, the respondents shipped goods after furnishing to the prescribed authority, namely, the Collector of Customs a declaration in the statutory form prescribed under the Foreign Exchange Regulation Rules, and the Collector of Customs passed the, goods for shipment.
In 1965, the Dy.
Collector of Customs issued a notice to the respondents calling upon them to show cause why a penalty under section 167(8) of the , should not be imposed, on the basis that the respondents under valued the goods deliberately, that they gave in the prescribed form false particulars supported by false evidence, that there was a failure to repatriate large amounts of foreign exchange contrary to the requirements of section 12(2) and r. 5, that section 12(1) of the Foreign Exchange Regulation Act and Rules required a declaration of the actual amount representing the full export value and a mere declaration of any value would not be sufficient compliance with the provisions, that under the circumstances by virtue of section 23 A of the Foreign Exchange Regulation Act, the exportation constituted an offence.
under section 167(8) of the .
the respondents thereupon.
filed a writ petition contending that the declaration to the Collector of Customs was sufficient compliance with the statutory provisions and that the Collector having passed the consignments for shipment, had no further jurisdiction to take proceedings against them.
A single Judge of the High Court dismissed the petitions, but on appeal, the Divisional Bench allowed the petitions.
In 'appeal to this Court.
HELD: Per Bachawat and Hegde, JJ.
On the facts set out in the show cause notice the respondents could not be held to have contravened section 12(1).
(1) The regulations contained in the Act are enacted in the economic and financial interest of the country.
Therefore, the rigour and sanctity of the regulations should be maintained but at the same time it should not be forgotten that section 12(1) is a penal section, and in interpreting it.
it is not competent to the Court to stretch its language in order to carry out the intention of the ' Legislature.
[752 E] 728 Tolaram Rehumal vs State of Bombay ; , 164, followed; Re.
H.P.C. Production Ltd. [1962] Ch.
Dn. 466, 473, ,red London & North Eastern Ry.
Co. vs Beriman, , 295, applied.
(2) Neither section 12(1) nor any other provision of the Act empowers the rule making authority to add to the restrictions imposed by the section, and for finding out the restrictions imposed by the section one can only look at that section.
The only restriction placed by section 12(1) read with the notification dated August 4, 1947 is that no one should export any goods from this country without furnishing the declaration mentioned in s.12(1).
The items of information called for in the prescribed form cannot be considered as restrictions imposed by section 12(1).
They are merely information called for the proper exercise of the powers under the Act.
In fact many of them do not relate to the restrictions imposed if the section.
[751 C F] (3) So far as goods sold to the foreign buyer are concerned it is possible for the exporter to know the, exact export value, but that would not be the position when the goods are sent on consignment basis, and, in such a case the: exporter can give only an estimated value.
If every declaration which does not state accurately the full export value of the goods exported is held to be, a contravention of section 12(1) then all exports on consignment basis must be held to contravene the restriction imposed by section 12(1), but, the Legislature could not have intended that minor mistakes in giving the full export value should be punished under section 23A.
Therefore, the declarations given in the present case do satisfy the requirements of section 12(1) though they did not correctly furnish all the information asked for in the form, and hence, there was no contravention of the section.
[751 H 752 D] (4) The main purpose of section 12(1) is to get a declaration from the exporter that he has either brought or will bring back the amount representing the full export value of the goods.
The scheme of the Act is that so far as customs authorities are concerned all that they have to see is that no goods are exported without furnishing the declaration prescribed under section 12(1).
Once that stage is passed the rest of the matter is left in the hands of the Reserve Bank and the Director of Enforcement under sections 12(5) and (6).
[752 B, 754 F] (5) Before a case can be held to fall within the scope of sections 23A and 167(8) of the , could be invoked, it must be shown that there has been a contravention of the restrictions imposed by section 12(1); but the language of section 12(1) does not permit the interpretation that the Legislature intended that the offences complained in these proceedings should be punishable under section 23A. The contravention complained of in this case are really contraventions of section 12(2) and r. 5 and they are punishable, the former, under section 23 and the latter.
under sections 22 and 23.
[751 B C, G] Per Sikri, J. dissenting.
On the facts alleged by the Customs authorities no case for the issue of a writ to the authorities had been made out.
(1) The Act was enacted in the interests of national economy.
Since a deliberate large.
scale contravention of its provisions would have serious effects, it should be construed so as to make it workable.
No subject can insist on an interpretation which will have the effect of sabotaging the national economy.
[739 H 740 A] 729 (2) As section 12(1) itself does not impose any restrictions and contemplates rules being made on: (a) evidence which is to support declaration; (b) authority to which the declaration is to be furnished; and (c) the manner of payment; the restrictions imposed by rules which are deferrable to the section must be treated as restrictions imposed by the section.
[740 H] Wellingdale vs Norris [1909] 1 K.B. '57, 64, Wicks vs Director of Public Prosecution, [1947] 1 All E.R. 205, 206, R. vs Wicks, , 53t and Rathbone vs Bumlock, , applied.
Dr. Indramani Payarelal Gupta vs W.R. Nathu, ; , 737, distinguished.
U.S.v.
George R. Eaton; , and Singer vs U.S. 89 L.Ed.258, 290.
referred to.
(3) Even in a case where the amount has not been received, there must be declaration of some actual figure, which, according to the declaration represents the 'full export value ' It may be an estimate if the goods have not been sold before the export, but a figure must be indicated.
The requirement of supporting evidence and r. 5(2)(ii) requiring the statement of the invoice value in the declaration indicate that an actual figure has to be mentioned.
SeCtion 12(1) and the notification impose a conditional prohibition an on exporter which he can lift by a unilateral declaration.
When such a power is conferred on an exporter by a statute good faith, on his part must be implied and is a condition prerequisite.
Section 22 provides that the declare shall not give any information which he knows or has reasonable cause to believe to be false or not true Clerical mistakes and mistakes made bona fide even in respect of material particulars would not come within the mischief of the section.
but a deliberate falsehood and deliberate evasion of the provisions of the section would be a contravention of section 12(1) for otherwise the ambit of the section read with section 23A would be narrowed to the point of extinction.
An exporter and persons concerned in the export, could with impunity give a deliberately false declaration but in apparent compliance with section 12(1) and deprive this country of foreign exchange.
There is no distinction, between an exporter and the persons concerned in the export when no declaration under section 12(1) is given at all and in a case where the exporter gives a deliberately false declaration for the purpose of the applicability of section 167(8) of the .
[1744 D 745 D] (4) Since the same contravention may attract penalties under the as well as the Foreign Exchange Act it will be incongruous to hold that the restrictions imposed by section 12(1) are different for the two acts.
[740 F G] The Mayor of Portsmouth vs Charles Smith, 10 A.C. 364, 371, applied.
(5) Section 23A of the Foreign Exchange, Act deems the restrictions imposed under section 12(1) to have been imposed under s, 19 of the , without prejudice to the provisions in section 23 dealing with penalty and procedure for contravention of the provisions of section 12 or any rule or direction or order made thereunder of Foreign Exchange Act and therefore, offenders who violate those restrictions could be proceed with both under the Foreign, Exchange Regulation Act as well as the .
It may be that action can be taken against an exporter under other sections of the Foreign Exchange ReguLation Act 730 or the , but that does not prevent action under section 23A read with section 12(1) with the aid of customs authorities, both against exporters and persons concerned in the prohibited export.
[745 E H]
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<s>[INST] Summarize the judgementAppeal No. 61/1959.
Appeal by special leave from the judgment and order dated December 4, 1957, of the Orissa High Court in O.J.C. No. 449 of 1956.
607 C. K. Daphtary, Solicitor General of India, D. N. Mukherjee and T. M. Sen, for the appellants.
The respondent did not appear.
September 8.
The Judgment of the Court was delivered by SHAH J.
The respondent was appointed in the year 1950 a Sub Inspector on probation in the Orissa Police force.
In view of the adverse reports received against him on July 28, 1954, notice was served on the respondent calling upon him to show cause why he should not be discharged from service " for gross neglect of duties and unsatisfactory work ".
In the notice, ten specific instances of neglect of duty and two instances of misconduct acceptance of illegal grati fication and fabrication of official record were set out.
By his explanation, the respondent submitted that action had already been taken against him by the Superintendent of Police in respect of instances of neglect of duty set out in the notice and no further action in respect thereof could on that account be taken against him, because to do so would amount to imposing double punishment.
He denied the charge relating to misconduct and submitted that it was based on the uncorroborated statements of witnesses who were inimical to him.
He also asked for an opportunity to cross examine those witnesses.
The Deputy Inspector General of Police considered the explanation and observed: "I have carefully gone through the representation of the probationary section I.
His argument that he has already been punished by the section P. for specific instances of bad ' work does not help him very much since all these instances of bad work during the period of probation have to be taken together in considering his merits for confirmation or otherwise.
The section 1. has already had long enough of chance to work under different section Ps.
though in one District, but he has not been able to procure a good chit from anyone.
He has also been adversely reported against after the representation dealt with therein was submitted.
It 78 608 is, therefore, no good retaining him further in service.
He is discharged from the date on which this order is served on him ".
The Deputy Inspector General of Police on December 11, 1954, in discharging the respondent from service, passed a formal order as follows: " Probationary section I. Ramnarayan Das of Cuttack District is discharged from service for unsatisfactory work and conduct with effect from the date the order is served on him ".
The respondent then presented a petition under article 226 of the Constitution in the High Court of Judicature, Orissa, challenging the validity of the order passed and praying for the issue of a writ in the nature of certiorari or any other writ quashing the order of discharge.
Inter alia, the respondent urged, (1) that the order of discharge was invalid since he was not given a reasonable opportunity to show cause against the action proposed to be taken in regard to him within the meaning of article 311(2) of the Consti tution, (2) that the order of discharge was invalid since he was not afforded an opportunity to be heard nor was any evidence taken on the charges framed.
The High Court by order dated December 4, 1957, set aside the order of discharge.
In the view of the High Court, the Deputy Inspector General of Police had taken into consideration allegations of corruption in passing the impugned order and also that he had refused to give to the respondent an opportunity to cross examine witnesses on whose statements the charge of misconduct was made.
The High Court observed that by discharging the respondent from service without holding an enquiry as contemplated by r. 55 of the Civil Services (Classification, Control and Appeal) Rules and without complying with the requirements of article 311(2) of the Constitution, an " indelible stigma affecting his future career " had been cast.
Against the order issuing the writ quashing the order discharging the respondent from service, this appeal has been preferred by special leave.
The respondent was undoubtedly at the time when proceedings were started against him and when he 609 was discharged from service, a probationer, and had no right to the post held by him.
Under the terms of his appointment the respondent was liable to be( discharged at any time during tile period of his probation.
By r. 668 of the Police Manual of the Orissa State, in so far as it is material, it is provided : " All officers shall in the first instance be appointed or promoted on probation.
Where the period of probation is not otherwise provided for in the Rules, it shall be for a period of two years in the case of executive officers.
The authority empowered to make such appointment or promotion may at any time during such probation period and without the formalities laid down in Rule 820 remove an executive officer directly appointed or revert such an officer promoted who has not fulfilled the conditions of his appointment or who has shown himself unfitted for such appointment or promotion ".
Rule 681 of the Police Manual by cl.
(b) in so far as it is material provides, " Those promoted from the rank of Assistant Sub Inspector shall be confirmed (Rule 659(e)) and those appointed direct shall be on probation for a period of two years.
At the end of that period, those pronounced competent and fit will be confirmed by the Deputy Inspector General.
The others will be discharged by the same authority ".
Rule 55 B of the Civil Services (Classification, Control and Appeal) Rules, in so far as it is material provides : " Where it is proposed to terminate the employment of a probationer, whether during or at the end of the period of probation, for any specific fault or on account of his unsuitability for the service, the probationer shall be apprised of the grounds of such proposal and given an opportunity to show cause against it, before orders are passed by the authority competent to terminate the employment".
Notice to show cause whether the employment of the respondent should be terminated was, by r. 55 B made obligatory.
The Deputy Inspector General of Police who had appointed the respondent apprised 610 him by notice of the grounds on which the order of discharge was proposed to be made and required him ,,to show cause why action as proposed should not be taken.
The notice consisted of two parts, (1) relating ;to ten heads of " gross neglect of duty and unsatisfactory work " and (2) " suspicious and un police man like conduct " in which specific instances of fabrication of public records and acceptance of illegal gratification were set out.
The Deputy Inspector General of Police by his order which ha; been set out hereinbefore, expressly observed that he had, in considering the case of the respondent for confirmation, to take into account the reports received by him.
The formal order communicated to the respondent also stated that the respondent was discharged from service for unsatisfactory work and conduct.
The reasons given in the order clearly indicate that the notice served upon the respondent was under r. 55 B of the Civil Services (Classification, Control and Appeal) Rules for ascertaining whether he should be confirmed or his employment terminated.
Prima facie, the order is one terminating employment of the respondent as a probationer, and it is not an order dismissing him from service.
The High Court has however held that the order of discharge amounted to imposing punishment, because the respondent had been " visited with evil consequences leaving an ineligible stigma on him affecting his future career ".
The respondent has not appeared before us to support the judgment of the High Court, but the learned Solicitor General who appeared in support of the appeal has very fairly invited our attention to all the materials on the record and the relevant authorities which have a bearing on the case of the respondent.
In Shyam Lal vs The State of Uttar Pradesh and the Union of India (1), it was held that compulsory retirement under the Civil Services (Classification, Control and Appeal) Rules of an officer did not amount to dismissal or removal within the meaning of article 311 of the Constitution.
In that case, the public servant (1) ; 611 concerned was served with a notice to show cause in respect of three specific items of misdemeanor as a public servant to which he submitted his explanation.
Thereafter, the President, after considering the case and the recommendation of the commission appointed to investigate the case, decided that the public servant should be retired forthwith from service ".
This order was challenged by a petition under 226 of the Constitution filed in the High Court at Allahabad.
In an appeal against the order dismissing the petition, this court held that the order compulsorily retiring the public servant involved " no element of charge or imputation " and did not amount to dismissal or removal within the meaning of article 311(2) of the Constitution and the order of the President was not liable to be challenged on the ground that the public servant had not been afforded full opportunity to show cause against the action proposed to be taken in regard to him.
In Parshottam Lal Dhingra vs Union of India (1) this court by a majority held that if an officer holding an officiating post had no right under the rules governing his service to continue in it, and such appointment under the general law being terminable at any time on reasonable notice, the reversion of the public servant to his substantive post did not operate as a forfeiture of any right: that order " visited him with no evil consequences " and could not be regarded as a reduction in rank by way of punishment.
Bose, J., who disagreed with the majority observed that the real test was whether evil consequences over and above those that ensued from a contractual termination, were likely to ensue as a consequence of the impugned order: if they were, article 311 of the Constitution would be attracted even though such evil consequences were not prescribed as penalties under the Rules.
In that case, Das; C. J., in delivering the judgment of the majority, entered upon an exhaustive review of the law applicable to the termination of employment of public servants and at pp.
861.863 summarised it as follows: (1) ; 612 " Any and every termination of service is not a dismissal, removal or reduction in rank.
A termination of service brought about by the exercise of a contractual right is not per se dismissal or removal, as has been held by this court in Satish Chander Anand vs The Union of India (1).
Like wise the termination of service by compulsory retirement in terms of a specific rule regulating the conditions of service is not tantamount to the infliction of a punishment and does not attract article 311(2) as has also been held by this court in Shyam Lal vs The State of Uttar Pradesh (2). .
In short, if the termination of service is founded on the right flowing from contract or the service rules then, prima facie, the termination is not a punishment and carries with it no evil consequences and so article 311 is not attracted.
But even if the Government has, by contract or under the rules, the right to terminate the employment without going through the procedure prescribed for inflicting the punishment of dismissal, or removal or reduction in rank, the Government may, nevertheless, choose to punish the servant and if the termination of service is sought to be founded on misconduct, negligence, inefficiency or other disqualification, then it is a punishment and the requirements of article 311 must be complied with.
As already stated, if the servant has got a right to continue in the post, then, unless the contract of employment or the rules provide to the contrary, his services cannot be terminated otherwise than for misconduct, negligence, inefficiency or other good and sufficient cause.
A termination of the service of such a servant on such grounds must be a punishment and, therefore, a dismissal or removal within article 31 1, for it operates as a forfeiture of his right and he is visited with the evil consequences of loss of pay and allowances.
It puts an indelible stigma on the officer affecting his future career. .
But the mere fact that the servant has no title to the post or the rank and the Government has, by contract, express or implied, or under the rules, the right to reduce him to a lower post does not mean that an order of reduction of a servant (1) ; (2) ; 613 to a lower post or rank cannot in any circumstances be a punishment.
The real test for determining whether the reduction in such cases is or is not by way of punishment is to find out if the order for the reduction also visits the servant with any penal consequences. .
The use of the expression, " terminate " or " discharge " is not conclusive.
In spite of the use of such innocuous expressions, the court has to apply the two tests mentioned above, namely, (1) Whether the servant had a right to the post or the rank or (2) Whether he has been visited with evil consequences of the kind hereinbefore referred to ? If the case satisfies either of the two tests then it must be held that the servant has been punished and the termination of his service must be taken as a dismissal or removal from service. . " The respondent had no right to the post held by him.
Under the terms of his employment, the respondent could be discharged in the manner provided by r. 55 B. Again mere termination of employment does not carry with it " any evil consequences " such as forfeiture of his pay or allowances, loss of his seniority, stoppage or postponement of his future chances of promotion etc.
It is then difficult to appreciate what " indelible stigma affecting the future career " of the respondent was cast on him by the order dis charging him from employment for unsatisfactory work and conduct.
The use of the expression " discharge " in the order terminating employment of a public servant is not decisive : it may, in certain cases amount to dismissal.
If a confirmed public servant holding a substantive post is discharged, the order would amount to dismissal or removal from service; but an order discharging a temporary public servant may or may not amount to dismissal.
Whether it amounts to an order of dismissal depends upon the nature of the enquiry, if any, the proceedings taken therein and the substance of the final order passed on such enquiry.
Where under the rules governing a public servant holding a post on probation, an order terminating the probation is to be preceded by a notice to show cause 614 why his service should not be terminated, and a notice is issued asking the public servant to show cause whether probation should be continued or the officer should be discharged from service the order discharging him cannot be said to amount to dismissal involving punishment.
Undoubtedly, the Government may hold a formal enquiry against a probationer on charges of misconduct with a view to dismiss him from service, and if an order terminating his employment is made in such an enquiry, without giving him reasonable opportunity to show cause against the action proposed to be taken against him within the meaning of article 311(2) of the Constitution, the order would undoubtedly be invalid.
The Solicitor General invited our attention to a recent judgment of this court, State of Bihar vs Gopi Kishore Prasad (1)in which, delivering the judgment of the court, the learned Chief Justice extracted five propositions from the authorities and particularly from Parshottam Lal Dhingra 's case (2), dealing with the termination of employment of temporary servants and probationers.
The third proposition set out in the judgment is as follows: " But instead of terminating such a person 's service without any enquiry, the employer chooses to hold an enquiry into his alleged misconduct, or inefficiency, or for some similar reason, the termination of service is by way of punishment, because it puts a stigma on his competence and thus affects his future career.
In such a case, he is entitled to the protection of article 311(2) of the Constitution ".
This proposition, in our judgment, does not derogate from the principle of the other cases relating to termination of employment of probationers decided by this court nor is it inconsistent with what we have observed earlier.
The enquiry against the respondent was for ascertaining whether he was fit to be ' confirmed.
An order discharging a public servant, even if a probationer, in an enquiry on charges of misconduct, negligence, inefficiency or other disqualification, may (1) A.I.R. [1960] section C. 689.
(2) ; 615 appropriately be regarded as one by way of punishment, but an order discharging a probationer following upon an enquiry to ascertain whether he should be 0 confirmed, is not of that nature.
In Gopi Kishore Prasad 's case (1), the public servant was discharged from service consequent upon an enquiry into alleged misconduct, the Enquiry Officer having found that the public servant was " unsuitable " for the post.
The order was not one merely discharging a probationer following upon an enquiry to ascertain whether he should be continued in service, but it was an order as observed by the court " clearly by way of punishment ".
There is in our judgment no real inconsistency between the observations made in parshottam.
Lal Dhingra 's case (2) and Gopi Kishore Prasad 's case (1).
The third proposition in the latter case refers to an enquiry into allegations of misconduct or inefficiency with a view, if they were found established, to imposing punishment and not to an enquiry whether a probationer should be confirmed.
Therefore the fact of the holding of an enquiry is not decisive of the question.
What is decisive is whether the order is by way of punishment, in the light of the tests laid down in Parshottam Lal Dhingra 's case (2).
We have carefully considered the evidence and the authorities to which our attention has been invited and we are definitely of opinion that the High Court was in error in holding that the order discharging the respondent from service amounted to dismissal which attracted the protection of article 311(2) of the Constitution.
In that view of the case, this appeal will be allowed and the petition for a writ dismissed.
There will be no order as to costs throughout.
Appeal allowed.
(1) A.I.R. 1960 S.C. 689.
[/INST]The respondent was appointed a Sub Inspector on probation in the Orissa Police Force.
A notice was served on him to show cause why he should not be discharged from service " for gross neglect of duties and unsatisfactory work ".
He submitted his explanation and asked for opportunity to cross examine certain witnesses.
The Deputy Inspector General of Police considered the explanation unsatisfactory and passed an order discharging the respondent from service " for unsatisfactory work and conduct ".
The respondent contended that the order was invalid on two grounds: (i) that he was not given a reasonable opportunity to show cause against the proposed action within the meaning of article 311(2), and (ii) that he was not afforded an opportunity to be heard nor was any evidence taken on the charges.
Held, that the order of discharge did not amount to dismis sal and did not attract the protection of article 311(2) of the Constitution and was a valid order.
The services of the respondent, ' who was a probationer, were terminated in accordance with the rules and not by way of punishment.
He had no right to the post held by him and under the terms of his appointment he was liable to be discharged at any time during the period of his probation.
The notice given to the respondent was under Rule 55 B of the Civil Services (Classification, Control and Appeal) Rules which made it obligatory to give such notice before terminating the services of a probationer.
The enquiry was merely for ascertaining whether he was fit to be confirmed.
Shyam Lal vs The State of U. P., ; and Purshottam Lal Dhingra vs Union of India, ; , referred to.
State of Bihar vs Gopi Kishore Prasad, A.I.R. 1960 S.C. 689, distinguished.
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<s>[INST] Summarize the judgementAppeal No. 2456 of 1966.
Appeal from the judgment and order dated January 27, 1964 of the Patna High Court in Misc.
Judicial Case No. 299 of 1958.
D. Narsaraju, section K. Aiyar, R. N. Sachthey and B. D. Sharma, for the appellant.
C. K. Daphtary, Narain Rao, V. D. Narayan and D. Goburdhun, for the respondent.
The Judgment of the Court was delivered by Shah, J.
Indetermining the taxable income of the respondent firm for the assessment year 1948 49 the Income tax Officer added to the income returned a sum of Rs. 1,60,000 as 'undisclosed receipts '.
The order was confirmed in ' appeal by the Appellate Assistant Commissioner, and by the Tribunal.
The Income tax Officer had in the meantime commenced a proceeding for the levy of penalty and in exercise of the power under section 28 (1) (c) of the Indian Income tax Act, 1922 he directed the respondent firm to pay Rs. 60,000 as penalty.
The Appellate Assistant Commissioner in appeal confirmed the order.
The Income tax Appellate Tribunal rejected the contention of the respondent that the order imposing penalty upon the firm after the original firm was dissolved was without jurisdiction.
The Tribunal referred at the instance of the respondent firm the following question to the High Court of Patna for opinion; "Whether on the facts and in the circumstances of the case the imposition of penalty under section 28 (1) (c) of the Indian Income tax Act, upon the petitioner firm (respondent) as constituted at the time of levy of penalty was legal and valid?" The High Court called for a supplementary statement of the case and pursuant thereto the Tribunal submitted a statement on the specified points raised by the order of the High Court that (1)The firm which carried on the business during the calendar year 1947 was dissolved on July 7, 1951 when Butto Kristo Roy, one of the partners, died.
(2)During the previous year 1947 there was no instrument of partnership in existence, but the terms of the oral partnership were the same as set out in the partnership deed dated October 17, 1949.
985 (3) The business of the firm was continued with effect from July 8, 1951 by the new firm as successor to the business of the old firm.
The terms of the partnership were the same as set out in the deed dated October 17, 1949 and the partners and their shares were also the same except that Baidyanath Roy took the place of Butto Kristo Roy.
(4) With effect from April 28, 1952, the business was carried on by a partnership constituted by Baidyanath Roy and Bijali Kanti Roy under an instrument dated August 27, 1952.
There was no dissolution of the firm, which was carrying on the business; there was only a change in the constitution of the old firm from April 28, 1952.
The High Court held that penalty could be legally levied only upon the original firm constituted in the account year relevant to the assessment year 1948 49 and not upon the new firm constituted under the deed dated April 27, 1952.
The Tribunal and the High Court approached the problem before them on the assumption that the source of the power of the Income tax Officer to impose a penalty was in section 44 of the Indian Income tax Act, 1922.
In so assuming, in our judgment, they were in error.
Section 44 of the Indian Income tax Act, 1922, as it stood at the relevant date, in so far as it is material provided : "Where any business, profession or vocation carried on by a firm has been discontinued every person who was at the time of such discontinuance a partner of such firm shall, in respect of the income, profits and gains of the firm be jointly and severally liable to assessment under Chapter IV and for the amount of tax payable and all the provisions of Chapter IV shall, so far as may be, apply to any such assessment".
The section is fairly plain : it applies to cases of discontinuance of the business of a firm and not where there is dissolution of the firm but not discontinuance of its business.
In section M. section Karuppiah Pillai vs Commissioner of Income tax, Madras(1), in dealing with the effect of section 44 of the Indian Income tax Act, 1922, before it was amended by Act 7 of 1939, a Full Bench of the Madras High Court observed "This section (s.44) only applies when there has been discontinuance of the, business, The section (1) 911.T.R. I. 986 says that if a business is discontinued the partners shall nevertheless be jointly and severally liable for the profits which had been earned".
In Shivram Poddar vs Income tax Officer, Central Circle II, Calcutta and Anr.(1) this Court examined the scheme of section 44 (before it was amended by the Finance Act of 1958) and its inter relation with the provisions of sections 25(1), (2), 26(1), (2) and 28 (1) (c) in some detail.
The Court observed : "Section 44 operates in two classes of cases; where there is discontinuance of business, profession or vocation carried on by a firm or association, and where there is dissolution of an association.
It follows that mere dissolution of a firm without discontinuance of the business will not attract the application of s.44 of the Act. .
The reason for this distinction appears from the scheme of the Income tax Act in its relation to assessment of the income of a firm.
A firm whether registered or unregistered is recognised under the Act as a unit of assessment (sections 3 and 2(2)), and its income is computed under clauses (3) and (4) of section 23.
as the income of any other unit.
Section 25(1) relates to assessment in cases of a discontinued business whether the business is carried on by a firm or by any other person. . .
Then there is the special provision relating to assessment when at the time of making an assessment it is found that a change has occurred in the constitution of a firm, or a firm has been newly constituted : section 26(1).
The date on which the change has occurred is immaterial; it may be in the year of account, in the year of assessment or even after the close of the year of assessment, The Income fax Officer has under section 26(1) to assess the firm as constituted at the time of making the assessment, but the income, profits and gains of the previous year have, for the purpose of inclusion in the total income of the partners, to be apportioned between the partners who were entitled to receive the same.
Subsection (2) of section 26 relates to assessment in the case of succession to a person (which expression includes a firm) carrying on a business by another person in such capacity. . .
Discontinuance of business has the same connotation in section 44 as if has in section 25 of the Act; it does not (1) 987 cover mere change in ownership or in the constitution of the unit of assessment.
Section 44 is, therefore, attracted only when the business of a firm is discontinued, i.e. when there is complete cessation of the busi ness and not when there is a change in the ownership of the firm, or in its constitution, because by reconstitution of the firm, no change is brought in the personality of the firm, and succession to the business and not discontinuance of the business results. .
But the Income tax Act recognises a firm for purposes of assessment as a unit independent of the partners constituting it; it invests the firm with a personality which survives reconstitution.
A firm discontinuing its business may be assessed in the manner provided by section 25(1) in the year of account in which it discontinues its business; it may also be assessed in the year of assessment.
In either case it is the assessment of the income of the firm.
Where the firm is dissolved, but the business is not discontinued, there being change in the constitution of the firm, assessment has to be made under section 26 (1), and if there be succession to the business assessment has to be made under section 26(2).
The provisions relating to assessment on reconstituted or newly constituted firms, and on succession to the business are obligatory.
Therefore, even when there is change in the ownership of the business carried on by a firm on reconstitution or because of a new constitution, assessment must still be made upon the firm.
When there is succession, the successor and the person succeeded have to be assessed each in respect of his actual share.
This scheme of assessment fumishes the reason for omitting reference to dissolution of a firm from section 44 when such dissolution is not accompanied by discontinuance of the business".
Two other cases decided by this Court may be briefly noticed.
In C. A. Abraham vs Income tax Officer, Kottayam and Another(1) there was discontinuance of the business of the firm consequent upon dissolution of the firm, section 44 was held applicable, and it was held that imposition or penalty being a process of assessment the.
Income tax Officer was not incompetent to levy penalty after discontinuance of the business.
In Commissioner of Income tax, Madras and Another vs section V. Angidi Chettiar (2) this Court held that the Income tax Officer could exercise under section 44 read with section 28 power to impose penalty upon the firm which discontinued its business on dissolution caused by the death of one of the partners (1) (2) 988 Section 44 therefore only applied to those cases in which there had been discontinuance of the business and not to case, in which the business continued after reconstitution of the firm or there was succession to the business.
Cases of reconstitution of the firm or succession to the business of the firm are covered by sections 26(1) and (2).
"Assessment" in Chapter IV of the Income tax Act, 1922, includes a proceeding for imposition of penalty.
Section 28 of the Act authorises the Income tax Officer, if satisfied, in the course of any proceeding under the Act that any person has, inter alia, concealed the particulars of his income or deliberately furnished inaccurate particulars of such income, to direct that such person shall pay by way of penalty, a sum of money not exceeding the amount specified therein in addition to the incometax and super tax payable by such person.
The expression " person" includes for the purpose of section 28, a firm registered or unregistered.
If there is reconstitution of the firm, by virtue of section 26, the Income tax Officer will in imposing the penalty proceed against the firm.
If there is discontinuance of the business penalty will be imposed against the partners of the firm.
Before the Tribunal and the High Court the case was argued on the footing that section 44 alone was applicable.
Whether under the terms of section 26 read with section 28, penalty may be imposed upon the new partners for the failure of the partners of the firm constituted in the year of account relating to the assessment 1948 49 was never investigated.
The question raised by the Tribunal is in terms sufficiently comprehensive to embrace an enquiry whether partners of the firm in existence on July 30, 1954, were liable to be assessed to penalty as successors in interest of the partners of the original firm in existence in the year of account relating to the assessment year 1948 49.
But in a reference under section 66 of the Indian Income tax Act, 1922, only the question which was either raised or argued before the Tribunal may be answered, even if the language of the question framed by the Tribunal may apparently include an enquiry into other matters which could have been, but were not, raised or argued.
The appeal fails and is dismissed.
In the circumstances of the case there will be no order as to costs in this Court.
G.C. Appeal dismissed.
[/INST]The Geneva Conventions Act 6 of 1960 was passed by the Indian Parliament to enable effect to be given to the International Conventions done at Geneva in 1949.
India and Portugal have both signed and ratified the Conventions.
The four Conventions were adopted in as many Schedules to the Act. 'Mc Fourth Convention was meant to apply to all cases of partial or total occupation of the territory of the contracting parties and gave protection to persons who, found themselves in case of a conflict or occupation in the hands of a Party to the conflict or Occupying Power of which they were not nationals.
In the case of occupied territory the Convention applies under article 6 for a period of one year after the general close of Military operations, but during the period of occupation the Occupying Power is bound by certain Articles including, inter alia, articles 1 12, 47 and 49.
By article 47 protected persons in occupied territory can not be deprived of the benefits of the Convention despite any change introduced as a result of the occupation or even annexation of whole or part of the territory by the Occupying Power.
article 49 forbids the deportation of protected persons 'from the occupied territory.
There is no definition of the term 'occupied ' in the Geneva Conventions but the Hague Regulations to which the Conventions are made supplementary defined a territory as occupied when it finds itself 'in fact placed under the authority of a hostile Army '.
The territory of Goa was a Portuguese colony for about 450 years, having been seized by force of arms.
On December 19, 1961 Goa was occupied by Indian Armed Forces following a short military action.
It then came under Indian Administration from December 20, 1961 and was governed under the Goa, Daman and Diu (Administration) Ordinance 1962 promulgated by the President of India.
The Ordinance was replaced on March 27, 1962 by Act 1 of 1962.
The same day the Constitution (Twelth Amendment) Act 1962 was enacted and was deemed to have come into force on December 20,, 1961.
By this amendment Goa was included in the Union Territories and a reference to Goa was inserted in article 240 of the Constitution.
Indian laws including the Citizenship Act of 1955, the and the were extended to Goa.
The Central Government also promulgated under section 7 of the , the Goa, Daman and Diu (Citizenship) Order 1962.
The second paragraph of the order conferred Indian Citizenship on certain classes of persons in these terri tories, giving an option to those desirous of retaining their previous citizenship or nationality of another country to make a declaration to that effect within one month of the Order.
88 The appellant who was a resident of Goa made pursuant to the above order his declaration of Portuguese nationality.
He was allowed to stay in India under a temporary residential permit till November 13.
, 1964.
After that date he did not ask for a renewal of the permit.
The Lt. Governor of Goa empowered under article 239 of the Constitution ordered him to leave India.
For disobeying the order he was prosecuted under section 14 read with section 3 (2) (c) of the .
Being convicted he appealed unsuccessfully to the Court of Session.
His revision petition being rejected by the Judicial Commissioner, he appealed by special leave to this Court.
The contention on behalf of the appellant were based on the Geneva Conventions which it was said had become a part of the law of India under Act 6 of 1960.
It was urged that after the United Nations Charter the acquisition of territory in International Law by 'force of arms could not confer title.
The amendment of the Constitution only legalised the annexation so far as India was concerned but in International Law the territory remained occupied because it had neither been ceded, nor had the Occupying Power withdrawn.
As a result, it was contended, the protection of articles 47 and 49 continued to be available to the appellant and by disobeying the deportation order he did not commit any offence.
HELD : (i) The appellant 's argument overlooked the cardinal principle of international law that the reception and residence of an alien is a matter of discretion and every State has by reason of its own territorial supremacy not only the legal right but also the competence to exclude aliens from the whole or any part of its territory.
Accordingly every country has adopted the passport system which document certifies nationality and entry into any State is only possible with the concurrence of the State.
Again a State exercises territorial supremacy over persons in its territory, whether its own subjects or aliens, and can make laws for regulating the entry, residence and eviction of aliens.
Therefore the application of the , the and Orders passed under them, to the appellant who had chosen Portuguese nationality was legally competent.
There is authority for the proposition that an alien excluded from the territory of a State cannot maintain an action in a Municipal Court to enforce his right.
[92 H 93 C] Oppen them International Law (Vol. 1) pp.
675/676, Brierly Law of Nations p. 217, and Musgrove vs Chun Teeong Toy, , referred to.
(ii)The Geneva Conventions Act also gives no specific right to anyone to approach the Court.
By itself it gives no special remedy.
It does give indirect protection by providing for penalties for breach of Convention.
The Conventions are not made enforceable by Government against itself, nor does the Act give a cause of action to any party, for the enforcement of the Conventions.
Thus there is only an obligation undertaken by the Government of India to respect the Conventions regarding the treatment of civilian population but there is no right created in favour of protected which the court has been asked to enforce.
If there is no provision of law which the courts can enforce the court may be powerless and has to leave the matter to the 'indignation of mankind '.
[97 B C] (iii)The Geneva Conventions too did not support the appellant 's claim to the benefit of article 49 of the Fourth Convention on the basis that Goa continued, even after its annexation by India, to be occupied territory B within the meaning of article 47.
(a)In the Hague Regulations to which the Geneva Conventions were supplementary the definition of 'occupation ' shows that a territory is con 89 sidered as occupied when it finds itself in fact placed under the authority of a hostile army.
This means that occupation is by military authorities i.e. belligerent occupation.
Under belligerent occupation, which is a de facto situation, the Occupied Power is not deprived of its sovereignty or its statehood.
All that happens is that pro tempore the Occupied Power cannot exercise its rights, its Government cannot function and authority is exercised by the occupying force.
In this connection the courts must take the Facts of State from the declaration of the State authorities.
[99 C F] United States vs Attstoctter et tit, (1947) U.S. Military Tribunal, Nuremburg L.R. 3 T.W.C. vi, 34, referred to.
(b) Annexation as distinguished from belligerent occupation occurs when the Occupying Power acquires and makes the occupied territory its own.
Annexation gives a de jure right to administer the territory.
Annexation means that there is not only possession but uncontested sovereignty over the territory.
[99 F G] Greenspan, The Modern Law of Land Warfare, p. 215; referred to.
There is however difference between true annexation on the one hand and premature annexation or 'anticipated annexation ' on the other.
Annexation is premature so long as hostilities are continuing and there is an opposing army in the field even if the Occupied Power is wholly excluded from the territory.
Anticipated annexation by unilateral action is not true annexation.
True annexation is only so when the territory is conquered and subjugated.
[99 C H; 100 A B] Oppenbeim : International Law (7th Edn.) pp.
846 847 (Vol. 1), 566 (Vol. 1), pp. 846 847 (Vol. 11), 430 439 (Vol. 11) and 599 et seq (Vol. 11); Greenspan pp.
215 et seq 600 603, Gould : Introduction to International Law pp.
652 656, 662 663; Brierly : Law of Nations, p. 155, referred to.
(c) When Conventions lays down that annexation has no effect they speak of premature or anticipated annexation.
It was so held by the Nuremburg Tribunal and the experts who drafted the Convention were inclined to add the word 'alleged ' before 'annexation ' in article 47 to distinguish between annexation following conquest and subjugation and annexation made while hostilities were going on subjugation puts an end to the State of war and destroys the source of authority of the existing Government.
In subjugation which is recognised as one of the modes of acquiring title not only the de facto but also the de jure title passes to the conqueror.
After subjugation the inhabitants must obey the laws such as they are and not resist them.
[10C D] (d) Under article 6 the Convention continues to apply to occupied territory for one year after the general close of hostilities for the reason that if the Occupied Power turns victorious the land would be freed in one year, and if the Occupying Power remains victorious, as hostilities cease, strong measures against the civilian population are no longer necessary.
Otherwise also, occupation, which means belligerent occupation comes to an end when hostilities cease and the territory becomes a part of the Occupying Power.
[100 F G] (e) Title to new territory is not dependent on recognition.
Despite the Stimson doctrine the conquest of Abyssinia by Italy was recognised because it was though that the State of affairs had come to stay.
Even after the adoption of the United Nations Charter events since the Second 2Sup.
CT/69 7 90 World War have shown that transfer of title to territory by conquest is still recognised.
If cession after defeat can create title, occupation combined with absence of opposition must lead to the same result.
[100 H 101 B] (f)In the present case the military engagement was only a few hours duration and there was no resistance at all.
It was hardly necessary to try to establish title by history traced to the early days nor any room for Schwarzenburger 's thesis that title is relative and grows with recognition.
True annexation followed here so close upon military occupation as to leave no real hiatus.
True annexation by conquest and subjugation was complete on December 20, 1961 and the Geneva Convention ceased to apply 'from that date.
It was not disputed that the annexation was lawful.
Therefore since occupation in the sense used in article 47 had ceased the protection must cease also.
[101 C F] Minquiers and Ecrenos, 1953 (I.C.J.) 47 and Schwarzenburger : A Manual of International Law, 5th Edn.
p. 12, referred to.
(iv)The national status of subject of the subjugated State is a matter for the State and courts of law can have no say in the matter.
Having chosen Portuguese nationality the appellant could only stay in India on taking out a permit.
He was therefore rightly convicted under the law applicable to him.
[101 H 102 B] Oppenheim International Law, Vol.
1 p. 573, referred to.
[On the view taken it was not considered necessary to.
decide the question whether deportation was an Act of State and the Municipal Courts could therefore give no remedy.] [101 G]
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<s>[INST] Summarize the judgementiminal Appeal No.165 of 1967.
Appeal by special leave from the order dated April 27, 1967 of the Bombay High Court, Nagpur Bench in Criminal Appeal No. 74 of 1967.
W. section Barlingay and A. G. Ranaparkhi, for the appellant.
H. R. Khanna and section P. Nayar, for the respondent.
89 The Judgment of the Court was delivered by Vaidialingam, J.
The appellant, who was the second accused, in Sessions Case No. 9 of 1967, and accused No. 1, were found guilty, under section 195 and section 196 read with section 34, I.P.C. and each of them has been convicted and sentenced to undergo three years ' rigorous imprisonment, for these offences and the sentences have been directed to run concurrently.
The case of the first accused, is not before us, in these proceedings.
The appellant challenged his conviction and sentence, passed against him, before the High Court of Bombay, in Criminal Appeal No. 74 of 1967.
A Division Bench of the High Court has, by its order dated April 27, 1967, summarily dismissed the appeal, in one word 'dismissed '.
The appellant has come up, to this Court, by special leave.
But this Court, by its order dated September 7, 1967, has granted special leave, limited to the question as,to whether the High Court was justified in dismissing the appeal, summarily.
That is the only point, that arises for consideration, in this appeal.
It is necessary, to set out briefly, the circumstances under which the appellant, who was, a police Sub Inspector, along with one Dilawar, who was accused No. 1, came to be charged sheeted and tried, in Sessions Case No. 9 of 1967.
In connection with a dacoity, which is alleged to have taken place, on July 18, 1965, when the Bombay Howrah Mail was stopped, at the outer signal of Nagpur Railway Station, one Ambadas and Deorao, and certain others, were prosecuted before the Additional Sessions Judge, Nagpur, in Sessions Case No. 8 of 1966.
In that trial, the prosecution had to prove certain recoveries made, on the basis of three memos, which have been marked, in the present Sessions Trial, as Exhibits 7, 8 and 14.
Those memos had been attested by two Panch witnesses, Pochanna and Abdul Gani.
Pochanna turned hostile and, therefore, the prosecution tried to establish the recoveries made, under these memos, by the other Panch witness.
Abdul Gani.
The first accused, in the present Sessions trial, gave evidence, on June 10, 1966, in Sessions Case No. 8 of 1966, that he is Abdul Gani and that he has attested the recovery memos.
The appellant, before us, was examined in that trial, on June 11, 1966, and he has stated that the witness, who has spoken to the recovery memos, was Abdul Gani and that he has attested the recovery memos; but, later on, the accused in the dacoity case, appear to have entertained a suspicion that the first accused, in these proceedings, who claim to be Abdul Gani and spoke to having attested the recovery memos, is not the real Abdul Gani, but Dilawar.
This suspicion was brought to the notice of the Sessions Judge, trying the dacoity case, on June 14, 1966.
The Sessions Judge, Sri Waikar, caused the present first accused, to be L10Sup.
CI/68 7 90 brought before him and further examined him, in Sessions Case No. 8 of 1966.
The witness appears to have stated that he was not Abdul Gani, but really Dilwar, and that he had come to the Court, on June 10, 1966, and given evidence, as Abdul Gani, on the compulsion and threat of the present appellant.
On the same day, i.e., June 14, 1966, Mr. Waikar issued a notice to the appellant, to show cause why a complain+ should not be laid against him, for offences under sections 195, 196, and 205, I.P.C. By the said notice, the appellant was directed to appear before the Court, on June 16, 1966.
The appellant appeared and pleaded, on June 16, 1966, that he had not committed any offence and that he bona fide believed that the present 1st accused was Abdul Gani, and that he had never compelled one Dilawar to appear before the Court and give evidence, as Abdul Gani The, appellant was further examined, in the dacoity case, on Juno 17, 1966, and he was also cross examined, by the accused, in the dacoity case, on June 22, 1966, the teamed Sessions Judge, Nagpur, ac quitted all the accused, in the dacoity case.
In the said judgment, the learned Sessions Judge has stated that the present accused No. 1, intentionally gave false evidence, and the appellant intentionally fabricated false evidence with the intent to procure conviction of the accused, in the dacoity case, and that it was highly expedient, in the interest of justice and in the interest of eradication of the evil of perjury and the fabrication of false evidence, that both of them should be prosecuted.
Thereupon, the learned Sessions Judge filed the complaint, against the appellant and Dilawar, on July 8, 19669 in the, Court of the Joint Magistrate, First Class, IV Court, Nagpur.
The Joint Magistrate, by his order dated January 27, 1967, held that a prima facie case, against both the accused, under sections 195 and 196 read with section 34, I.P.C., has been made out; and, accordingly, after framing charges, he committed them to the Sessions Court, to face trial.
The learned Sessions Judge, Nagpur, by his judgment, dated March 31, 1967, has found each of the accused, guilty under section 195 and section 196 read with section 34, I.P.C., and sentenced them, as mentioned earlier.
In view of the, fact that special leave has been limited to the question, as to, whether the, High Court was justified, in dismissing the appeal, summarily, and, as we are satisfied, after hearing arguments, on behalf of the appellant, and the State, that the appeal will have to be remanded, for fresh consideration, by the High Court, we do not propose to deal with the matter very elaborately.
We will only advert to some of the material circumstances, that have been placed, before us, by the learned counsel, 91 for the appellant, to hold that this was certainly not a case in which the, High Court was justified in dismissing the appeal, summarily.
On behalf of the appellant, learned counsel, Dr. Barlingay.
raised two contentions: (i) that the learned Sessions Judge, in convicting the appellant, has relied, mainly, on the evidence, given by Dilawar, on June 14, 1966, in Sessions Trial No. 8 of 1966, and on the statements, made by Dilawar, as first accused, when he was examined, under section 342, Cr.P.C., in the present Sessions Trial; and (ii) that the provisions of section 479A, Cr.
P.C., have not been complied with, when Mr. Waikar filed the complaint, as against the appellant, on July 8, 1966.
Mr. H. R. Khanna, learned counsel, appearing for the State of Maharashtra, on the other hand, submitted that the learned Sessions Judge has considered the question of non compliance with the provisions of section 479A, Cr.
P.C., and he has rejected the appellant 's contention, in that regard.
Counsel also pointed out that, apart from the evidence of Dilawar, in Sessions Case No. 8 of 1966, and his answers, given as co accused, in the present Sessions Case, there is, on record, other evidence, which have also been taken into account, by the learned Sessions Judge, for convicting the appellant.
When the High Court dismissed the appeal, though summarily, it must be presumed that the High Court has agreed with the views, expressed by the learned Sessions Judge, in the present judgment.
Therefore, we understood counsel to urge that the High Court was perfectly justified, in dismissing the appeal, summarily.
There is no controversy, that the appellant, who has been convicted, on trial, by the Sessions Judge, had a right of appeal, to the High Court, under section 410, Cr P.C. The appellant was also entitled, under section 418 Cr.
P.C., to agitate, in his appeal, before the High Court, findings of fact, recorded against him, as also questions of law, available to him.
No doubt, under section 421 Cr.
P.C., the Appellate Court may dismiss an appeal, summarily, if, on a perusal of the petition of appeal, and a copy of the judg ment appealed from, it considers that there is no sufficient ground for interference.
This section, has come up for consideration, before this Court, in Mushtak Hussein vs The State of Bombay(1).
This Court has held, therein, that in a case, which, prima facie, raises no arguable issue, a summary dismissal of the appeal, may be justified, but, in arguable cases, a summary rejection order must give some indication of the views of the High Court, on the point,, raised.
Again, in a case, where the High Court summarily dismissed an appeal, in one word 'dismissed ', this Court, in Shreekantiah Ramayya Munipalli V. The State of Bombay(1) (1) 19.
(2) ; 92 again reiterated the views expressed in the earlier decision, referred to above, and stated that summary rejection of appeals, which raise issues of substance and importance, was not justified.
After adverting to the two decisions, noted above, this Court, again in Chittaranjan Das vs State of West, Bengal(1), laid down that there ,can be no doubt, whatever, that in dealing with criminal appeals, brought before them, the High Courts should not summarily reject them, if they raise arguable and substantial points.
Bearing these principles in view, the question naturally arises as to whether the appeal filed, by the appellant, before the High Court of Bombay, raised any arguable point, or whether the questioned raised were substantial and important.
In support of the first contention, Dr. Barlingay drew our attention to the discussion, contained in the judgment of the learned Sessions Judge, wherein he has placed strong reliance, upon the evidence, given by Dilawar, in Sessions Case No. 8 of 1966.
He has also.
drawn our attention, to the reliance, placed by the learned Sessions Judge, upon the answers given by Dilawar, as co accused, when he was examined, under section 342 Cr.
P.C. The evidence given by Dilawar, in the dacoity case, counsel points out, is inadmissible, in these proceedings.
The answers giver.
by him, as co accused, when examined, under section 342 Cr.
P.C., cannot be taken into account, as against the appellant, whatever the position may be, so far as Dilawar himself, is concerned.
There is no other evidence, counsel points out, on record, which has been taken into account, by the learned Sessions Judge.
In any ;event, counsel urged, after eliminating the evidence, given by Dilawar in the dacoity case, and the answers given by him, in this trial, the High Court had to consider whether there was any other evidence, on record, which would justify the Sessions Court finding the appellant guilty.
By the dismissal of the appeal, sum marily, counsel points out, the High Court has omitted to consider the serious illegality, contained in the judgment of the Sessions Judge, in relying upon the evidence and statement of Dilawar.
The contention of the learned counsel, that a gross illegality has been committed, by the learned Sessions Judge in relying upon the evidence, given by Dilawar, in the dacoity case, and using the answers given by him, as a accused, against the appellant, in our opinion, is well founded.
In paragraph 5 of its judgment, the Session 's Court has referred to the fact that Dilawar, accused No. 1, admits all the facts alleged, by the prosecution, and that he has explained that he gave evidence as Abdul Gani at the instance of the appellant.
In considering, again, the question as to whether the appellant knew accused No. 1 as Dilawar or Abdul Gani, the learned Sessions Judge, in (1) ; 93 paragraph 20, refers to the statement of Dilawar, wherein he.
refers to the circumstances, under which the appellant compelled him to come to, the Court and pose himself as Abdul Gani.
The learned Sessions Judge also refers, in paragraph 21 of his judgment, that Dilawar has made a very clean breast of the whole matter, when he, was examined by Mr. Waikar, on June 14, 1966, in the dacoity case.
The learned Sessions Judge also refers to the fact that Dilawar has given a consistent version throughout, inculpating the appellant, both in his evidence in Sessions Case No,. 8 of 1966, as well as in his statement given, in the present Sessions Trial.
We are not referring to the various other points, adverted to, by the learned Sessions Judge.
We have adverted to the above circumstances, only for the purpose of holding that the learned Sessions Judge, in coming to the conclusion that the appellant is guilty, has placed considerable reliance on the evidence of Dilawar, given in the dacoity case and to his statements, made: under section 342 Cr.
P.C., as co accused, in the present trial.
The legal position is quite clear, viz., that the evidence,, given by Dilawar, in the dacoity case, cannot be used as evidence against the appellant, who, had no opportunity to cross examining Dilawar, in the said case; and the statements of Dilawar, as co accused, made under section 342 Cr.
P.C., in the present trial, cannot be used against the appellant.
We are not certainly inclined to accept the contention of the learned counsel, for the State, that these very serious illegalities, committed by the learned Sessions Judge, must be considered to have been, approved, by the learned Judges of the High Court, when they dismissed the appeal, summarily.
In fact, we are inclined to think, that, by dismissing the appeal summarily, the learned Judges of the High Court have omitted to note these serious illegalities, contained in the judgment of the learned Sessions Judge.
As to whether there is other evidence, on record, which would justify the conclusion that the appellant has been rightly convicted, is not a, matter on which it is necessary for us to embark upon, in this,, appeal.
That is essentially for the High Court, as a Court of appeal, to investigate, and come to a conclusion, one way or the other.
The second contention, urged by the learned counsel, for the appellant, is also, in our opinion, a very substantial one.
According to the learned counsel, after the judgment was delivered, in the dacoity case, on June 22, 1966, and before the complaint was filed, by Mr. Waikar, on July 8, 1966, against the appellant, the appellant was not given an opportunity of being heard, as required under section 479A, Cr.
This contention has been raised,, even before the Committing Magistrate, as a perusal of the order of that Magistrate, will show.
This objection, was again taken.
before the.
learned Sessions Judge.
The learned Sessions Judge 94 has taken the view that the show cause notice, issued.
by Mr. Waikar, to the appellant, on June 14, 1966, is a sufficient compliance with the provisions of that section.
The learned Sessions Judge is also of the view that, under section 479A, Cr.
P.C., it does not matter whether a notice is given before the finding is recorded in the judgment, or whether the notice is given, after the findings are recorded in the judgment.
The question, as to whether the appellant has been given an opportunity, of being heard, under section 479A, is again, not only in our opinion, an arguable point, but also a substantial and important one.
The discussion, contained above, will clearly show that the appeal, filed by the appellant, before the High Court of Bombay was an arguable one, and it also raised substantial and important questions, for consideration at the hands of the High Court.
We are therefore satisfied that the High Court was not justified, in dismissing the appeal, filed by the appellant, summarily.
In view of this conclusion, the order of the High Court, dated April 27, 1967, dismissing Crl.
Appeal No. 74 of 1967, is set aside, and the said appeal is remanded to the High Court, for fresh disposal, in the light of the observations, contained in this judgment.
This appeal is allowed, accordingly.
V.P.S. Appeal allowed and remanded.
[/INST]The difference between the relations of master and servant and of principal and agent may be said to be this: a principal has the right to direct what work the agent has to do: but a master has the further right to direct how the work is to be done.
The positions of an agent, a servant and independent contractor are distinguished as under: 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 reasonable orders given to him in the 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 principal, is not subject in its exercise to the direct control or supervision of the principal.
An agent, as such is not 9, servant, but a servant is generally for some purposes his master 's implied agent, the extent of the agency depending upon the duties or position of the servant.
Held, that the position of the appellants in the light of the principles stated above and the terms of the Agency Agreement was that of the agents of the Dewan Bahadur Ram Gopal Mills Ltd., and they carried on the general management of the business of the company subject to the control and supervision of the Directors.
394 The control and supervision of the Directors was, however, a general control and supervision and within the limits of their authority the appellants as the agents of the company had perfect discretion as to how that work of general management was to be clone both in regard to the method and the manner of such work and therefore the circumstances of the case together with the of power of sub delegation reserved under the Articles of Association established beyond doubt that the appellants were the agents of the company and not merely the servants of the company remu nerated by wages or salary.
Held further, that various factors along with the fixity of tenure, the nature of remuneration and the assignability of their rights were sufficient to prove that the activities of the appellants as the agents of the company constituted a business and the remuneration which the appellants received from the company under the terms of the Agency Agreement was income, profits or gains from business and the appellants were rightly assessed under the provisions of Hyderabad Excess Profits Tax Regulation.
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<s>[INST] Summarize the judgementminal Appeal No. 134 of 1955.
Appeal by special leave from the judgment and order dated ' January 13, 1955, of the Patna High Court in Criminal Appeal No. 339 of 1953, arising out of the judgment and order dated May 22, 1953, of the Court of the Special Judge at Gaya in Special Case No. 3 of 1952.
C. K. Daphtary, Solicitor General of India, A. K. Dutta and section P. Varina, for the appellant.
H. J. Umrigar and Ratnaparkhi, A. G., for the respondent.
March 21.
The Judgment of the Court was delivered by 197 section K. DAS J.
This appeal by special leave has been brought by the State of Bihar from the judgment and order of a learned single Judge of the High Court of Patna, dated January 13, 1955, by which the learned Judge set aside the conviction and sentence passed against the present respondent Basawan Singh and acquitted him of a charge under section 161, Indian Penal Code, on which charge he had been convicted by the learned Special Judge of Gaya by his judgment and order, dated May 22, 1953.
It is necessary to state here very briefly the salient facts of the prosecution case.
One Bhagwan Das (prosecution witness No. 7) had a ration shop at a short distance from police station Arwal in the district of Gaya.
One of the persons entitled to receive rationed articles from the said shop was Mahabir Prasad (prosecution witness No. 10), who was a brother of a businessman named Parmeshwar Prasad (prosecution witness No. 11).
Mahabir Prasad held a ration card for ten units, and on October 4, 1951, he purchased five maunds of wheat on the strength of his ration card from the shop of Bhagwan Das.
A cash memo was issued for the purpose, and the sale was entered in the register of the shop.
Mahabir Prasad carried the wheat in four bags on two ponies.
He himself went ahead on a cycle and the ponies followed him.
A gentleman named Ram Singhasan Singh, stated to be the Secretary of Arwal Thana Congress Committee, sent an information to the police station to the effect that Bhagwan Das had sold the wheat in what was called the " black market ".
On receipt of this information, Basawan Singh, who is respondent before us and who was at that time subinspector of police attached to the said police station, instituted a case under section 7 of the Essential Supplies (Temporary Powers) Act, 1946, against Bhagwan Das and Mahabir Prasad.
He seized the wheat which was being carried on the two ponies, went to the shop of Bhagwan Das and questioned him about the transaction.
Bhagwan Das denied the charge of blackmarketing and alleged that the transaction was a bona fide sale on the strength and authority of a ration 198 card.
He showed the duplicate copy of the cash memo and the entry in the sale register to the respondent.
The respondent then checked the stock of wheat in thee shop of Bhagwan Das and found that the stock tallied with the relevant entry in the, stock register.
In the meantime Mahabir Prasad who had been sent for also came to the shop with his cash memo and ration card.
These were shown to the respondent who, however, arrested both Bhagwan Das and Mahabir Prasad and took them to the police, station.
It was alleged that at the police station the respondent demanded Rs. 500 as a bribe from Mahabir Prasad.
Mahabir Prasad could not pay the amount, but said that he would consult his brother Parmeshwar Prasad and the latter would come and pay to the respondent whatever sum was thought necessary.
Both Bhagwan Das and Mahabir Prasad were then released on bail.
On the next day Bhagwan Das was called to the police station and a bribe Rs. 500 was demanded from him also.
It was alleged that the respondent told Bhagwan Das that if he did not pay the amount, the respondent would harass him; but if Bhagwan Das paid the amount, the respondent would submit a final report and no case would be started against him.
Bhagwan Das expressed his inability to pay such a, big amount and it was alleged that ultimately the amount was reduced to Rs. 300.
Bhagwan Das, however, did not pay it for some time, and the prosecution case was that the respondent took wheat from the shop of Bhagwan Das, without payment of any price, between the date October 26, 1951, and November 30, 19 1 ;in this way, seven maunds and ten seers of wheat it was alleged, were taken by the respondent from the shop of Bhagwan Das, though the sales were noted in the sale register in the names of various persons.
On December 1, 1951, the respondent, it was stated, agreed to accept Rs. 50 from Bhagwan Das in addition to the wheat already taken by him, in full satisfaction of the demand of Rs. 300.
When Bhagwan Das found that he had no other alternative but to pay the amount demanded by the 199 respondent, he decided to approach the Anti Corruption Department of the Government of Bihar.
One section P. Mukherji, Deputy Secretary to the Government of Bihar, was then in charge of the Department.
Bhagwan Das met Mukherji on two dates, December 3, 1951, and December 5, 1951, and filed a written petition to him.
Mukherji sent for his Deputy Superintendent of Police, a gentleman named Dharnidhar Misra, who was also attached to the Anti Corruption Department.
Bhagwan Das produced before Mukherji five Government currency notes of Rs. 10 each, the numbers of which were noted in his written petition.
Mukherji put his initials on these notes and then returned them to Bhagwan Das.
Mukherji then requested the District Magistrate of Patna to depute a first class Magistrate, and one Rudra Dev Sahai was so deputed.
It was settled that on December 8, 1951, at about 7 p.m. the bribe money in the shape of the initialled notes would be paid to the respondent, and it was arranged that Bhagwan Das would meet the officers from Patna on the canal road from Patna to Arwal at some distance from the police station.
Nothing, however, happened on December 8, 1951, because the respondent was away from the police station.
On the next day, that is December 9, 1951, the officers from Patna, namely Mukherji, Misra and Sahai, met Bhagwan Das at the appointed place at about 6.30 p.m.
Bhagwan Das then told the officers that Parmeshwar Prasad had also arrived there for paying Rs. 50 as bribe to the respondent for the release of the wheat which had been seized and which was still at the police station.
Parmeshwar Prasad was then brought to Mukherji at about 7.30 p.m.
Mukherji questioned him and recorded his statement which was endorsed by the Magistrate, Rudra Dev Sahai.
Parmeshwar Prasad then produced five notes of Rs. 10 each, the numbers of which were also noted in the statement.
The notes were then initialled by Mukherji.
After this, the party went to the police station.
The officers who had dressed themselves as ordinary villagers any posed to be relatives of Bhagwan Das squatted on the ground a few feet away 200 from the verandah of the quarters which the respondent occupied, and Bhagwan Das and Parmeshwar Prasad stood on the steps of the verandah where the respondent met them.
Leaving out details, which are not necessary for our purpose, what happened then was this.
Bhagwan Das paid Rs. 50 in currency notes which the respondent took in his left hand.
Parmeshwar Prasad also paid his amount in notes to the respondent.
The officers were then called.
The Magistrate and the Deputy Superintendent of Police disclosed their identity, and the Deputy Superintendent told the respondent that he had received a bribe.
The respondent tried to throw away the currency notes, but the 'Deputy Superintendent of Police caught hold of his left palm and the Magistrate caught hold of his right hand.
There was a scuffle, and the respondent was brought down from the verandah and was taken to an open place south west of the police station.
Nine currency notes were found 'in the hand of the respondent and they tallied with the numbers noted down earlier.
One currency note was not found till a search was made by means of a petromax lantern in the presence of two search witnesses, Ganesh Prasad (prosecution witness No. 5) and Janki Sao (prosecution witness No. 4).
The search was made at about 9 p.m. and the missing note was found in a crumpled condition in the southwestern corner of the verandah.
A report of the whole incident was then prepared by the Deputy Superintendent of Police and handed over to the officer in charge of Arwal police station.
The case was then investigated into by another Deputy Superintendent of Police one Hasan of Aurangabad.
After completion of investigation the Deputy Inspector General of Police, C.I.D., accorded sanction to the prosecution of the respondent on April 1, 1952.
Thereafter, the respondent was tried by the Special Judge of Gaya who, by his judgment and order dated May 22, 1953, found the respondent guilty of the offence under section 161, Indian Penal Code, and sentenced him to rigorous imprisonment for one year only.
It may be here stated that the defence of the 201 respondent was that in the case against Bhagwan Das and Mahabir Prasad, he had submitted a final report on October 8, 1951, to the effect that there was a mistake of fact with regard to the allegation of black marketing and that the case should be entered as false ', mistake of fact ", This report was supported by the Inspector of Police, Jehanabad, and accepted by the Sub divisional Magistrate on October 19, 1951.
The respondent denied that he ever demanded any bribe from either of the two aforesaid persons or that he had accepted as a bribe ten currency notes from Bhagwan Das and Parmeshwar Prasad on December 9, 1951.
It was suggested that the officers did not actually see what had happened on the steps of the verandah and were, deluded into thinking that nine currency notes were recovered from him and, with regard to the crumpled note found on the verandah, it was suggested that Bhagban Das might have planted it, when he bowed down before the respondent The learned Special judge accepted the prosecution evidence as trustworthy and rejected the defences as unworthy of credences.
Against his conviction the respondent filed an appeal to the High Court and the learned single Judge, who heard the appeal, acquitted the respondent on the main ground that there was no independent witness to support the testimony of the " raiding party " consisting of the two bribe givers, Bhagwan Das and Parmeshwar Prasad, and the two Magistrates and the police officer, namely.
Mukherji, Sahai and Misra.
The learned Judge referred to the decision of this Court in Rao Shiv Bahadur Singh vs State of Vindhya Pradesh (1), and he expressed the view that that decision laid down an invariable rule that in cases of this nature the testimony of those witnesses who form what is called the "raiding party" must be discarded, unless that testimony is corroborated by independent witnesses.
He then posed the question if there were any independent witnesses in the present case, and observed " There are no independent witnesses on the transaction itself.
It was submitted, however, that there (1) 26 202 are search witnesses and they are independent; indeed they are.
But they have proved nothing except this that at the quarters of the appellant a ten rupee note crushed was found and a few other articles.
They did not prove the transaction nor they were present at the time of the occurrence itself.
The prosecution case depends for all practical purposes on the evidence of the witnesses who are members of the raiding party.
" The principal questions which fall for decision in this appeal are: (1) whether the learned Judge is right in his view that the decision in Rao Shiv Bahadur Singh (1), lays down any universal or inflexible rule that the testimony of witnesses who form the raiding party must be discarded, unless corroborated by independent witnesses; (2) if not, what is the correct rule with regard to such testimony in cases of this nature; and (3) whether the learned Judge is right in his view that there is no independent corroboration of the testimony of the witnesses of the raiding party in the present case.
But before we consider these three ques tions, it is advisable to dispose of the findings of fact which have been affirmed on appeal or arrived at by the learned Judge.
In his judgment the learned Judge has observed: " The first point to be determined in this case is whether Bhagwan Das was in fact, arrested in connection with the case under the Essential Supplies (Temporary Powers) Act.
That has been well proved and it has not been challenged.
It is also established that the appellant did arrest Bhagwan Das as well as Mahabir Prasad and that on that very day Bhagwan Das was released.
It is also well established that Bhagwan Das had gone to Mr. Mukherji at Patna and related an incident and as a result of that a trap was laid and on the alleged date of occurrence the three officers, namely, Mr. Mukherji, Mr. Sahai and Mr. Misra, had gone to the Arwal police station followed by the Gorkha Police.
It is also well established that the appellant on the date of occurrence was in his quarters and that it is also established beyond doubt that Bhagwan Das and Parmeshwar were with the appellant in his quarters that evening.
(1) 203 It is also established that the three officers were just near the quarters of the appellant and they were dressed in dhotis, kurtas, etc., like "dehaties".
It is further established that the appellant was caught by Mr. Misra and Mr. Sahai and in his possession were found the nine notes of Rs. 10 each and that it was established that one Rs. 10 note was found in the verandah of the quarters.
It is, therefore, not necessary to discus& the evidence on these points because, as I have said, these facts are well established and admitted before me in the course of the argument.
" It is fairly obvious from the observations quoted above that the learned Judge accepted the testimony of the witnesses of the raiding party as to the essential parts of the prosecution case and in particular, their evidence to the effect that nine initialled notes of Rs. 10 each were found in the possession of the respondent; this finding which is tantamount to accepting the prosecution case as correct militates against his later observation that in the absence of independent corroboration, he cannot accept the testimony of the witnesses of the raiding party.
We say this without meaning any disrespect, but the learned Judge perhaps thought that the witnesses of the raiding party were intrinsically trustworthy and gave true evidence, yet he based his order of acquittal on what he thought was the effect of the decision in Rao Shiv Bahadur Singh (1), namely, the adoption of an inflexible rule, in the words of the learned Judge, " that the evidence of the raiding party is necessarily tainted. . and on their evidence alone, it would be difficult to carry the guilt home " to the respondent.
In two respects on questions of fact, the learned Judge expressed a view different from that of the trial Court: first, with regard to the motive or reason for the bribe and secondly, with regard to the purchase of 7 maunds 10 seers of wheat, without payment, between the dates October 26, 1951 to November 30,1951.
As to motive, the learned Judge referred to the circumstance that the respondent had already submitted a final report on (1) 204 October 8, 1951, which was accepted by the Sub divisional Magistrate on October 19, and, therefore, there was no case pending against Bhagwan Das and Mahabir Prasad and the motive for the bribe could not be what was alleged by the prosecution.
The learned Judge then indulged in a highly speculative finding to the effect that the " possession of the nine notes can be reasonably explained by the fact that his (the present respondent 's) advice was sought for a land dispute between the relations " (meaning thereby the two Magistrates and the Deputy Superintendent of Police who posed as relations of Bhagwan Das).
This line of reasoning adopted by the learned Judge completely overlooks certain salient facts and circumstances on which the trial Court had relied.
The trial Court had found, on the evidence given in the case, that Bhagwan Das had no information that the case against him had ended in a final report; besides the wheat seized had not been released and Mahabir Prasad naturally wanted the wheat back.
Then, again, there was nothing to prevent the respondent from demanding a bribe even after the submission of a final report, saying that he would otherwise harass Bhagwan Das and Mahabir Prasad, and, lastly, it was nobody 's case, nor was there any evidence in support of it, that the nine notes were accepted by the respondent for giving legal advice in a land dispute.
The suggestion of a land dispute was made to allay any suspicion as to the pre sence of Mukherji, Sahai and Misra, who were dressed as ordinary villagers; none of the witnesses said that the nine notes were paid for advice in connection with a land dispute.
The respondent himself did not suggest that he had accepted nine notes for giving legal advice; his case was that no notes were found on him.
In this state of the evidence the learned Judge was clearly in error in holding that the motive for the bribe was something other than what was alleged by the prosecution.
His finding on this point is based on no evidence and is mere speculation.
As to the 7 maunds and 10 seers of wheat, the learned Judge found that the prosecution had not satisfactorily proved that the respondent was supplied 205 with wheat without payment.
The trial Court pointed out, however, that at least two of the entries in the sale register of Bhagwan Das (exhibit 10/10 and 11/11) stood in the name of the respondent, and it was not the respondent 's case that he had paid for the wheat referred to in the two entries.
Whatever be the correct finding with regard to the sale or supply of these 7 maunds and 10 seers of wheat, we agree with the trial Court that the prosecution case is not essentially or vitally dependent on the sale or supply of 7 maunds 10 seers of wheat free of cost to the respondent.
The charge against the respondent is the acceptance of Rs. 100 as a bribe from Bhagwan Das and Parmeshwar Prasad on December 9, 1951.
That charge does not necessarily depend upon the truth or otherwise of the supply of 7 maunds and 10 seers of wheat between certain earlier dates.
Having dealt with the findings of fact, we proceed now to consider the principal questions which arise in this appeal.
We take first the decision in Rao Shiv Bahadur Singh (1).
It is not necessary to recapitulate all the facts of that case; it is sufficient to state that in the trap that was laid in that case, the most important witness was one Nagindas who offered the sum of Rs. 25,000, and the two important witnesses of the raiding party were Pandit Dhanraj, Superintendent, Special Police Establishment, Delhi, and Shanti Lal Ahuja, Additional District Magistrate, Delhi.
Nagindas, who was acting on behalf of his master Sir Chinubhai did not have the money to offer as a bribe, and the money was provided by the police authorities which money was offered by Nagindas in that case.
The first point for consideration in the case was whether Nagindas and one Pannalal, who was also a servant of Sir Chinubhai and who accompanied Nagindas, were accomplices and, therefore, their evidence should be treated on that basis.
This was answered in the negative, on the ground that neither of them was a willing party to the giving of the bribe and, therefore, they did not have the necessary criminal intent to be treated as abettors or accomplices.
(1) 206 This brings out the first distinction which has to be made: the distinction between a witness who is an accomplice and one who is not.
How the evidence of an accomplice is to be treated is no longer open to any doubt; the matter has been dealt with in a large number of decisions, and as was observed by this Court in Rameshwar vs The State of Rajasthan (1), the rule laid down in Rex vs Baskerville (2), with regard to the admissibility of the uncorroborated evidence of an accomplice is also the law in India.
The rule is that such evidence is admissible in law; but it has long been a rule of practice, which has virtually become equivalent to a rule of law, that the judge must warn the jury of the danger of convicting a prisoner on the un corroborated testimony of an accomplice.
In Rameshwar 's case(l) it was pointed out: " The only clarification necessary for purposes of this country is where this class of offence is sometimes tried by a judge without the aid of a jury.
In these cases it is necessary that the Judge should give some indication in his judgment that he has had this rule of caution in mind and should proceed to give reasons for considering it unnecessary to require corroboration on the facts of the particular case before him and show why he considers it safe to convict without corroboration in that particular case.
" If the witnesses are not accomplices, what then is their position ? In Rao Shiv Bahadur Singh 's case (3) it was observed, with regard to Nagindas and Pannalal, that they were partisan witnesses who were out to entrap the appellant in that case, and it was further observed: " A perusal of the evidence. . leaves in the mind the impression that they were not witnesses whose evidence could be taken at its face value.
" We have taken the observations quoted above from a full report of the decision, as the authorised report does not contain the discussion with regard to evidence.
It is thus clear that the decision did not lay down any universal or inflexible rule of rejection even with regard to the evidence of witnesses who may be called partisan or interested witnesses.
It is plain and obvious (1) ; 385 (3) (2) 207 that no such rule can be laid down; for the value of the testimony of a witness depends on diverse factors,, such as, the character of the witness, to what extent and in what manner he is interested, how he has fared in cross examination, etc.
There is no doubt that the testimony of partisan or interested witnesses must be scrutinised with care and there may be cases, as in Rao Shiv Bahadur Singh 's case (1), where the Court will as a matter of prudence look for independent corroboration.
It is wrong, however, to deduce from that decision any universal or inflexible rule that the evidence of the witnesses of the raiding party must be discarded, unless independent corroboration is available.
With regard to the other two witnesses, Pandit Dhanraj and Shanti Lal Ahuja, it was observed that the former was a willing tool in the hands of Nagindas, and the latter reduced himself to the position of a police witness; therefore, their evidence " was not such as to inspire confidence in the mind of the Court ".
Here again no universal or inflexible rule is being laid down.
It should be noticed that in Rao Shiv Bahadur Singh 's case (1) the police authorities provided the money, and that was taken into consideration in assessing the value of the testimony of Pandit Dhanraj and Shantilal Ahuja.
In the case before us, no such consideration arises, because the money was provided by Bhagwan Das and Parmeshwar Prasad, and the officers went there to see what happened.
We must make it clear that we do not wish it to be understood that we are deciding in this case that if the money offered as a bribe is provided by somebody other than the bribe giver, it makes a distinction in principle.
That question does not arise for decision here.
All that we say and have said so far is that in assessing the value of the testimony of a witness, diverse factors must arise for consideration and the comparative importance of this or that factor must depend on the facts or circumstances of each case.
No standard higher or stricter than this can be laid down, or was laid down in Rao Shiv Bahadur Singh 's decision (1).
We must advert here to two other aspects of that decision.
It was observed there in clear and emphatic (1) 208 words that it is the duty of the police authorities to prevent crimes being committed; but it is no part of their business to provide the instruments of the offence.
With these observations we are in agreement.
In Brannan vs Peck (1), a police officer went inside a public house and made a bet on a horse, which act amounted to an offence.
The motive in making that bet was to detect the offence under the Street Betting Act, 1906, which was being committed by the accused person in that case.
In these circumstances, Goddard C. J. made the following observations: " I hope the day is far distant, when it will become a common practice in this country for police officers to be told to commit an offence themselves for the purpose of getting evidence against someone ".
We also express the same hope for our country, but must hasten to add that in the case before us no offence was committed by any of the three officers, Mukherji, Sahai and Misra, in order to get evidence against the respondent.
This point was again emphasised in a later decision of this Court in Ramjanam Singh vs The State of Bihar (2).
It was therein observed: " The very best of men have moments of weakness and temptation, and even the worst, times when they repent of an evil thought and are given an inner strength to set Satan behind them and if they do, whether it is because of caution, or because of their better instincts, or because some other has shown them either the futility or the wickedness of wrongdoing, it behaves society and the State to protect them and help them in their good resolve; not to.
place further temptation in their way and start afresh a train of criminal thought which had been finally set aside.
This is the type of case to which the strictures of this Court in Shiv Bahadur Singh vs State of Vindhya Pradesh, ; at p. 334 apply.
" The other aspect of the decision in Rao Shiv Bahadur Singh 's case (3) is the employment of Magistrates as witnesses of police traps.
Here again, we are in full agreement with the view that the independence and impartiality of the judiciary requires that Magistrates (1) (3) (2) A.I.R. 1956 S.C. 643,651.
209 whose normal function is judicial should not be relegated to the position of partisan witnesses and " required to depose to matters transacted by them in their official capacity unregulated by any statutory rules of procedure or conduct whatever At the same time it is necessary to make some distinctions.
In a large part of the country now, the directive principle laid down in article 50 of the Constitution has been implemented, and there has been a separation of the judiciary from the executive.
The principles on which the employment of Magistrates as witnesses of police traps has been condemned have hardly any application where the Magistrates concerned are executive Magistrates who perform no judicial functions or where the officers concerned are officers of the Anti Corruption Department whose duty it is to detect offences of corruption.
In the case before us, Mukherji and Misra belonged to such a department.
Moreover, however inexpedient it may be to employ Magistrates as trap witnesses, their evidence has to be judged by the same standard as the evidence of other partisan or interested witnesses, and the inexpediency of employing Magistrates as trap witnesses cannot be exalted into an inflexible rule of total rejection of their evidence, in the absence of independent corroboration.
The learned Solicitor General referred in the course of his arguments to the difficulty of detecting corruption cases and of securing conviction in such cases.
We do not think that such a consideration should influence the mind of a judge.
Whatever be the difficulties, admissible evidence given in a case must be judged on its own merits, with due, regard to all the circumstances of the case.
In some of the cases which have been cited at the bar a distinction has been drawn between two kinds of 'traps ' legitimate and illegitimate as In re M. section Mohiddin (1), and in some other cases a distinction has been made between tainted evidence of an accomplice and interested testimony of a partisan witness and it has been said that the degree of corroboration necessary is higher in respect of tainted evidence than for partisan (1) 27 210 evidence (see Ram Chand Tolaram Khatri vs The, ,State (1)).
We think that for deciding the questions before us, such distinctions are somewhat artificial, and in the matter of assessment of the value of evidence and the degree of corroboration necessary to inspire confidence, no rigid formula can or should be laid down.
For the aforesaid reasons, we think that the learned Judge of the High Court did not correctly appreciate the effect of the decision in Rao Shiv Bahadur Singh 's case (2 ) and he was in error in thinking that that decision laid down any inflexible rule that the evidence of the witnesses of the raiding party must be discarded in the absence of any independent corroboration.
The correct rule is this : if any of the witnesses are accomplices who are particeps criminis in respect of the actual crime charged, their evidence must be treated as the evidence of accomplices is treated; if they are not accomplices but are partisan or interested witnesses, who are concerned in the success of the trap, their evidence must be tested in the same way as other interested evidence is tested by the application of diverse considerations which must vary from case to case, and in a proper case, the Court may even look for independent corroboration before convicting the accused person.
If a Magistrate puts himself in the position of a partisan or interested witness, he cannot claim any higher status and must be treated as any other interested witness.
This brings us to the last question: if in the present case, there is any independent corroboration.
We have pointed out that the two search witnesses Janki Sao and Ganesh Prasad (prosecution witnesses 4 and 5) were independent witnesses, who had nothing to do with the raiding party.
They found one crumpled ten rupee note, one of the series initialled by Mukherji and the numbers of which were noted in the statements of Bhagwan Das and Parmeshwar Prasad, at the southwestern corner of the verandah, where the respondent when seized by the raiding party tried to throw away the notes.
In our view, the evidence of the two search (1) A.I.R. 1956 Bom.
(2) 211 witnesses does provide independent corroboration, in a material particular, to the testimony of the raiding, party.
The crumpled note, one of the series testified ' to by the raiding party, could not come of itself to the verandah ; it could be found where it was actually found only if the testimony of the raiding party was true.
The learned Judge said that the search witnesses came later and did not see the actual transaction, that is, the giving and taking of the bribe.
That is correct; but independent corroboration does not mean that every detail of what the witnesses of the raiding party have said must be corroborated by independent witnesses.
As was observed by Lord Reading in Baskerville 's case (1) even in respect of the evidence of an accomplice, all that is required is that there must be " some additional evidence rendering it probable that the story of the accomplice is true and that it is reasonably safe to act upon it ".
In Rameshwar vs The State of Rajasthan (2), to which we have referred in an earlier paragraph, the nature and extent of corroboration required, when it is not considered safe to dispense with it, have been clearly explained and it is merely necessary to reiterate that corroboration need not be by direct evidence that the accused committed the crime; it is sufficient even though it is merely by circumstantial evidence of his connection with the crime.
While referring to the findings of fact we have pointed out that the learned Judge himself accepted as correct the prosecution case in its essential parts.
There is in our opinion no difficulty in accepting the testimony ' of the raiding party in this case, supported as it is by the independent testimony of the two search witnesses.
Learned counsel for the respondent has urged before us, as a last resort, that we should not exercise the extraordinary jurisdiction vested in this Court by article 136, in a case of acquittal by the High Court, unless exceptional or special circumstances are shown to exist or substantial and grave injustice has been done.
He has drawn attention to our decision in The (1) (2) ; , 385. 1 212 State Government, Madhya Pradesh vs Ramkrishna Ganpatrao Limsey and others (1).
In this case, the learned Judge accepted as correct all the essential facts constituting the offence with which the respondent was charged, but he passed an order of acquittal on a misconception as to the effect of a decision of this Court.
We have no doubt whatsoever that this is a fit case for the exorcise of our jurisdiction under article 136 of the Constitution.
In view of the findings of fact arrived at by the learned Judge, the only reasonable conclusion is that the respondent is guilty of the offence with which he was charged and the order of acquittal is clearly erroneous.
A point about the validity of the order sanctioning prosecution of the respondent was urged before the learned Special Judge, who held that the sanction was in order.
This point was not dealt with in the High Court.
But learned counsel for the respondent has frankly conceded before us that he cannot successfully urge that point here.
It is, therefore, un necessary to remand the appeal for a further hearing on merits.
The result, therefore, is that this appeal is allowed.
The judgment and order of the learned single Judge of the High Court of Patna, dated January 13, 1955, are set aside; the respondent is convicted of the offence under section 161, Indian Penal Code, and sentenced to rigorous imprisonment for one year, namely, the same sentence as was passed by the learned Special Judge of Gaya.
The respondent must now surrender to serve out his sentence.
Appeal allowed.
[/INST]The respondent, a sub inspector of police, was charged with acceptance of Rs. 100 as a bribe from two persons, B and P, for dropping a case which he had instituted against B under the Essential Supplies (Temporary Powers) Act, 1946.
The prosecution case was that when the demand for the bribe made by the respondent could not be avoided, B and P approached the Anticorrosive Department, and it was arranged that the respondent should be paid at the police station the bribe money in the shape of currency notes produced by B and P and initialled by M, who was in charge of the Anti Corruption Department, and that M, along with a Deputy Superintendent of the Department and a first class Magistrate, should be at the police station at the time of payment, dressed as ordinary villagers ; that as soon as the amounts in notes were received by the respondent the officers disclosed their identity, that thereupon the respondent tried to throw away the currency notes but that as a result of the officers catching hold of his hands the notes were found in his hand except one which was missing and that as a result of a search made in the presence of two search witnesses later the missing note was also found.
The respondent was tried by the Special judge who accepted the prosecution evidence and found him guilty of the offence under section 161 of the Indian Penal Code.
On appeal to the High Court the learned single judge who disposed of the appeal held that the respondent could not be convicted because (1) there was no independent witness to support the testimony of the " raiding party " consisting of the two bribegivers and the three officers, (2) the search witnesses did not prove the transaction nor were they present at the time of the occur rence, and (3) the decision in Rao Shiv Bahadur Singh vs State of Vindhya Pradesh, , had laid down an invariable rule that in cases of this nature the testimony of those witnesses who form what is called " the raiding party " must be discarded, unless that testimony is corroborated by independent witnesses.
The State appealed by special leave : Held, (1) that the evidence of the two search witnesses provided independent corroboration in a material particular to 196 the testimony of the raiding party, because the missing currency note, one of the series testified to by the raiding party, could be found where it was actually found only if the testimony of the raiding party was true.
(2)that corroboration need not be by direct evidence that the accused committed the crime; it is sufficient even though it is merely by circumstantial evidence of his connection with the crime.
Rameshwar vs The State of Rajasthan, ; , followed.
(3)that the decision in Rao Shiv Bahadur Singh vs State of Vindhya Pradesh, , has not laid down any inflexible rule that the evidence of the witnesses of the raiding party must be discarded in all cases in the absence of any independent corroboration.
The correct rule is that if any of the witnesses are accom plices, their evidence is admissible in law but the judge must warn the jury of the danger of convicting the accused on the uncorroborated testimony of an accomplice ; if the case is tried without the aid of a jury, the judge should indicate in his judgment that he had this rule of caution in mind and give reasons for considering it unnecessary to require corroboration; if, however, the witnesses are not accomplices but are merely partisan or interested witnesses, who are concerned in the success of the trap, their evidence must be tested in the same way as any other interested evidence is tested, and in a proper case, the Court may look for independent corroboration before convicting the accused person.
If a Magistrate puts himself in the position of a partisan or interested witness, he cannot claim any higher status and must be treated as any other interested witness.
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<s>[INST] Summarize the judgementCivil Appeal No. 481 of 1973.
From the Judgment and order dated the 9th February 1973 of the Mysore High Court at Bangalore in W.P. No. 1922 of 1970.
H. B. Datar and K. N. Bhat, for the appellant.
section section Javali and B. P. Singh, for the respondents Nos. 1, 3 13 The Judgment of the Court was delivered by GOSWAMI, J.
This appeal by special leave is directed against the judgment of the Mysore High Court (now High Court of Karnataka) of February 9" 1973, rejecting the appellant 's writ petition under article 226 of the Constitution by which the orders of the State Transport Appellate Tribunal and the Mysore Revenue Appellate Tribunal had been challenged.
189 Briefly the facts are as follows : The appellant was granted a stage carriage permit under section 48 of the (briefly the Act) for the route Devenagere to Shimoga via Honnali by the Regional Transport Authority, Shimoga, by its order dated May 3/4, 1963.
Some of the respondents preferred appeals against the said order to the State Transport Appellate Tribunal and obtained stay of the order The appeals were, however, dismissed on September 27, 1963.
Again, some of the respondents preferred further appeals to the Mysore Revenue Appellate Tribunal against the order of the State Transport Appellate Tribunal.
This time also the appeals met with the same fate and were dismissed on February 27, 1967.
It appears, however, that c no order of stay was granted by the Mysore Revenue Appellate Tribunal.
On April 25, 1967, the Secretary to the Regional Transport Authority, Shimoga, called upon the appellant to produce the relevant documents and the certificate of registration for making necessary entry in the permit.
The appellant produced the same on April 26, 1967, and the permit was issued on the same day.
Against the order of the issue of the permit, respondents 4 to 13 preferred appeals to the State Transport Appellate Tribunal on the ground that the Secretary to the Regional Transport Authority, Shimoga, had no jurisdiction to issue a permit under rule 119 of the Mysore Motor Vehicles Rules, 1963 (briefly the Rules) after a lapse of such a long time from the date of the grant of the permit.
It was contended that the issue of the permit was made beyond the prescribed period of limitation under rule 119.
It may be mentioned that at the time of the grant of the permit the Mysore Motor Vehicles Rules, 1945 (old Rules) were in force and rule 151 of the old Rules was replaced by rule 119 with effect from July 1, 1963.
It was contended by the appellant before the appellate authorities that there was no period of limitation under rule 151 of the old Rules, which was applicable to his case, for the issue of a permit.
The appeals of the respondents were allowed by the State Transport Appellate Tribunal by majority on January 29, 1969.
The District Judge Member, however, dissented.
An appeal filed by the appellant to the Revenue Appellate Tribunal against the order of the State Transport Appellate Tribunal was dismissed which led to the unsuccessful writ application in the High Court and hence this appeal.
The point that arises for consideration is whether any appeal lay under section 64 of the Act to the State Transport Appellate Tribunal against the issue of a permit in pursuance of an earlier resolution of the Regional Transport Authority granting the permit.
It is only necessary to read section 64(1) (a) which is material for the purpose of this appeal: 64(11 (a): "Any person aggrieved by the refusal of the State or a Regional Transport Authority to grant a permit, or by any condition attached to a permit granted to him may within the prescribed time and in the prescribed man 190 ner, appeal to the State Transport Appellate Tribunal constituted under sub section (2), who shall, after giving such person and the original authority an opportunity of being heard, give a decision thereon which shall be final".
We are not required to consider the other clauses of section 64(1) which are admittedly not relevant.
Section 64 has to be read with rule 178 of the Rules which prescribes the procedure for appeal to the various authorities Appeal is a creature of the statute.
There is no dispute that section 64 of the Act is the only section creating rights of appeal against the grant of permit and other matters with which we are not concerned here.
There is no appeal provided for under section 64 against an order issuing a permit in pursuance of the order granting the permit.
Issuance of the permit is only a ministerial act necessarily following the grant of the permit.
The appeals before the State Transport Appellate Tribunal and the further appeal to the Mysore Revenue Appellate Tribunal are, therefore, not competent under section 64 of the Act and both the Tribunals had no jurisdiction to entertain the appeals and to interfere with the order of the Regional Transport Authority granting the permit which had already been affirmed in appeal by the State Transport Appellate Tribunal and further in second appeal by the Mysore Revenue Appellate Tribunal.
There was, therefore, a clear error of jurisdiction on the part of both the Tribunals in interfering with the grant of the permit to the appellant.
The High Court was, therefore, not right in dismissing the writ application of the appellant which ought to have been allowed.
Although arguments were addressed by counsel with regard to old rule 151 and rule 119 of the Mysore Motor Vehicles Rules, 1963 we do not feel called upon to pronounce upon the legal effect of these rules in this appeal.
In the result the appeal is allowed.
The order of the High Court is set aside and necessarily the order of the State Transport Appellate.
Tribunal of January 29, 1969 and the order of the Mysore Revenue Appellate Tribunal of May 8, 1970, also fall.
The order granting the permit to the appellant stands restored There will be no order as to costs .
V.P.S. Appeal allowed.
[/INST]Section 2(v) of the defines an "undertaking" as an undertaking which is engaged in the production, supply, distribution or control of goods of any description or the provision of service of any kind.
Section 22 provides for the establishment of new under takings.
It says that no person or authority, other than government, shall, after the commencement of this Act.
establish any new undertaking which, when established would become an inter connected undertaking of an undertaking to which clause (a) of section 20 apples, except under, and in accordance with the previous permission of the Central Government, Sub section (2) of the section provides for an application for that purpose to the Central Government.
Section 23(4) lays down that if an undertaking to which Part A of Ch.
Ill applies proposes to acquire by purchase, take over or otherwise the whole or part of an undertaking which will or may result either (a) in the creation of an undertaking to which Part A would apply; or (b) in the undertaking becoming an inter connected undertaking of an undertaking to which Part A applies, it shall, before giving any effect to its proposals, make an application in writing to the Central Government in the prescribed form of its intention to make such acquisition.
stating therein information regarding its inter connection with other undertakings the scheme of finance with regard to the proposed acquisition and such other information as may be prescribed.
The appellant is a public limited company and is a subsidiary of United Breweries Ltd. and other companies interconnected with it.
The appellant 's undertaking consists of a sugar factory and a distillery for manufacture of liquor at Rosa, Shahjahanpnr and another distillery at Asansol.
The appellant 's sugar factory at Rosa had been facing difficulties for some years on account of inadequate supply of sugarcane and to ensure regular and adequate supply of sugarcane, the appellant proposed to float a company with a share capital of` Rs. 50 lakhs for the purpose of taking over the sugar unit of the appellant and for working it as an undertaking of the company to be formed.
The proposal was that the appellant would be entitled to an allotment of 100 percent shares in the new company and a further sum of Rs. 15,77,093/ as consideration for transfer of the sugar unit.
The appellant applied to the respondent for permission under section 372 of the Companies Act to acquire the 100 per cent shares of the new company upon its incorporation.
The appellant was told by the Central Government in its letter dated 5 1 1972 that sections 22 and 23 of the , would prima facie be attracted and that the appellant should file a separate application Under the relevant section.
The appellant filed an application dated 5 5 1972 purporting to be under section 23(4) of The Act.
The new company proposed to be set up by the appellant was incorporated on June, 15.
1973 under the name of Shahjahanpur Sugar Private Limited.
By order dated July 2, 1973.
the Central Government, in the Department of Company Affairs rejected the appellant 's application under section 372(4) of the Companies Act for investing Rs.50 lakhs in the equity share of the Capital of Shahjahanpur Sugar Private Limited.
By another order dated 30 6 1973, the central Government.
in the Department of company Affairs also rejected the appellant 's application under section 23(4) of the Act.
This appeal is against the order dated 30 6 1973 under section SS of the Act.
It was contended for the appellant that.
(i) in order that an enterprise may became an 'undertaking ' within the definition of the word 'undertaking ' in section 2(v) of the Act it is necessary that the enterprise must he engaged in produc 380 tion, supply, distribution or control of goods of any description or the provision Or service of any kind and that when the appellant proposed to form the new company for taking over the sugar unit of the appellant in consideration of 100 per cent shares in the new company, that company had not acquired the sugar unit of the appellant nor was it engaged in the production, supply, distribution or control of goods, etc.
as an enterprise of Shahjahanpur Sugar Privato Limited and so There was no proposal to acquire by purchase, take over or otherwise of the whole or part of any undertaking within the the meaning of section 23(4).
and (ii) in any event the proposal to acquire 100 per cent shares in Shahjahanpur Sugar Private Limited by the appellant would not involve a proposal to acquire an undertaking to be owned or even owned by Shahjahanpur Sugar Private Limited, as the acquisition of 100 per cent shares would only vest in the appellant, the right to control and manage the affairs of Shahjahanpur Sugar Private Limited.
Accepting the contentions and allowing the appeal, ^ HELD: (Per Ray C.J. and Mathew 1.) (i) The Sugar unit of the appellant was no doubt engaged in production of goods.
, when the proposal was made and was, therefore an undertaking but it was only an undertaking of the appellant.
as the sugar unit had not been transferred and had not become an enterprise of Shahjahanpur Sugar Private Limited.
The sugar unit did not become an undertaking of Shahjahanpur Sugar Private Limited ac it was not and could not be engaged in the production of goods, etc., on its behalf before it was transferred to it.
Sub section (4) of section 23 is confined to the case of a proposal to acquire an undertaking by purchase, take over or otherwise but, to become an undertaking, it must presently be engaged in the production of goods, etc.
The mere fact that the Memorandum of Association of Shahjahanpur Sugar Private Limited contained an object clause which provided for production of sugar would not necessarily mean that the company would go into production and thus become the owner of an undertaking as defined in s.2(v) of the Act.
Even if the phrase 'engaged in business ' in the definition conveys thc idea of ' embarking on it, it is not correct to say that Shahjahanpur Sugar Private Limited had embarked on the business of production of sugar merely because its memorandum of association provided that the object of the company was to produce sugar.
[387B C, E F] The Union of India vs Tata Engineering and Locomotive Co. Ltd., [1972] 74 Bombay Law Reporter, 1 and In re Canara Bank Ltd., A.I.R. referred to.
(ii) It is well settled that a company has seperate legal personality apart from its shareholders and it is only the company as a juristic person that could 1 own the undertaking.
Beyond obtaining control and the right of management of Shahjahanpur Sugar Private Limited, the purchase of 100 per cent shares had not the effect of an acquisition of the undertaking owned by it.
[388F G Per Krishna Iyer.
J. (concurring) (1) An `undertaking is defined as an undertaking. which itself disclosed the difficulty felt by the draftsmen in delineating the precise content.
Obviously, a dynamic economic concept cannot be , imprisoned into ineffectualness by a static strict construction.
`Is engaged in production ', in the context takes in not merely projects which have been completed and ,one into production but also blue prints.
It is descriptive of the series of ' steps culminating in production.
One is engaged in an undertaking of production of certain goods when he seriously set about the job of getting every thing essential lo enable production.
Economists, administrators and industrialists understand the expression in that sense and often times projects in immediate prospect are legitimately set down as undertakings engaged In the particular line.
Not the tense used but the integration of the steps is what is decisive.
What will materialse as a productive enterprise in futureo can be regarded currently as as undertaing, in the industrial sense.
[391F H] Massachusetts B & Insurance Co. vs U.S. ; , 138, and Gymkhana Club, [1968] 1 S.C.R. 742 referred to.
381 (2) Sections 22 and 23 (4), when placed in juxtaposition suggest that the appellant 's operation is to establish a new undertaking (out of its old sugar unit, though) which, in view of the share holding, will inevitably become an inter connected undertaking of Carew & Co. (the original undertaking, i.e. the appellant).
Not so much to acquire an existing undertaking as to establish, by a concealed expansionist objective, a new undertaking with sugar manufacture is the core of the operation.
Therefore, it is not section 23(4) that magnetizes the appellant 's proposal but, prima facie, Sec. 22.
[395EF] Per Fazal Ali, J. (Concurring) The object of the Act appears to be to pre vent concentration of wealth in the hands of a few and to curb monopolistic tendencies or expansionist industrial endeavours.
This objective is sought to be achieved by placing three tier curb on industrial activities to which the Act applies, namely: (1) By providing that if it is proposed to substantially expand the activities of a Company by issue of fresh capital or.
by installation of new machinery, then notice to the Central Government and its approval must be taken under section 21 of the Act.
(2) In the case of establishment of a new Company by insisting on the previous permission of the Central Government under section 22 of the Act.
(3) In the case of acquisition of an existing Company by another Company by requiring the sanction of the Central Government to be taken by such Company under section 23 of the Act.
The present case may fall within the second category.
[1398 H, 399AB]
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<s>[INST] Summarize the judgementCivil Appeal No. 57 of 1951.
Appeal from a judgment dated 18th May, 1948, of the High Court of East Punjab at Simla (Khosla and Teja Singh JJ.) in Letters Patent Appeal No. 189 of 1946 arising out of the judgment dated 11 th February, 1946, of the Senior Subordinate Judge, Ambala.
The facts are set out in the judgment.
Gopinath Kunzru (B.C. Misra, with him) for the appel lants.
Rang Behari Lal (N.C. Sen, with him) for the respond ents.
March 7.
The judgment of the Court was delivered by MUKHERJEA J.
This appeal is on behalf of the judgment debtor in a proceeding for execution of a money decree and it is directed against the judgment of a Letters Patent Bench of the Punjab High Court dated 18th of May, 1949.
by which the learned Judges 546 affirmed, in appeal, a decision of a single Judge of that court dated 29th October, 1946.
The original order against which the appeal was taken to the High Court was made by the Senior Subordinate Judge, Ambala, in Execution Case No. 18 of 1945 dismissing the objections preferred by the appel lants under section 47 of the Civil Procedure Code.
To appreciate the contentions that have been raised in this appeal, it would be necessary to give a short narrative of the material events in their chronological order.
On September 30, 1925, Baldev Das, the father of the appel lants, who was, at that time the manager of a joint Hindu family, consisting of himself and his sons, executed a mortgage bond in favour of Mst.
Naraini, the original re spondent No. 1, and another person named Talok Chand, by which certain movable properties belonging to the joint family were hypothecated to secure a loan of Rs 16,000.
On April 16, 1928, the appellants along with a minor brother of theirs named Sumer Chand filed a suit: being Suit No. 23 of 1928 in the Court of the Subordinate Judge of Shahjahanpur against their father Baldev Das for partition of the joint family properties.
The suit culminated in a final decree for partition on 20th July, 1928, and the joint family properties were divided by metes and bounds and separate possession was taken by the father and the sons.
On 29th September, 1934, Mst.
Naraini filed a suit in the Court of the Senior Subordinate Judge, Ambala, against Baldev Das for recovery of a sum of Rs. 12;500 only on the basis of the mortgage bond referred to above.
It was stated in the plaint that the money was borrowed by the defendant as manager of a joint Hindu family and the plaintiff prayed for a decree against the mortgaged property as well as against the joint family.
On 18th December, 1934, the appellants made an application before the Subordinate Judge under Order I, Rule 10, and Order XXXIV, Rule 1, Civil Procedure Code, praying that they might be added as parties defendants to the suit and the points in issue arising therein might be decided in their presence.
It was asserted in the 547 petition that Baldev Das was not the manager of a joint family and that the family properties had been partitioned by a decree of the court, as a result of which the proper ties alleged to be the subject matter of the mortgage were allotted to the share of the petitioners.
In reply to this petition, the plaintiff 's counsel stated in court on 7th February, 1935, that his client would give up the claim for a mortgage decree against the properties in suit and would be satisfied only with a money decree against Baldev Das personally.
The plaint was amended accordingly, deleting all reference to the joint family and abandoning the claim against the mortgaged property.
Upon this the appellants withdrew their application for being made parties to the suit and reserved their right to take proper legal action if and when necessary.
On April 17, 1935, Baldev Das died and on 2nd September following the appellants as well as their mother, who figures as respondent No. 5 in this appeal, were brought on the record as legal representatives of Baldev Das.
On October 9, 1935, the appellants filed a written statement in which a number of pleas were taken in answer to the plaintiff 's claim and it was asserted in paragraph 10 of the written statement that Baldev Das dealt Badri or specu lative transactions, and if any money was due to the plain tiff at all in connection with such transactions the debt was illegal and immoral and not binding on the family property.
On the same day the court recorded an order to the effect that as the plaintiff had given up her claim for a mortgage decree, the legal representatives of the deceased could not be allowed to raise pleas relating to the validity or otherwise of the mortgage.
On 20th November, 1935, the parties arrived at a compromise and on the basis of the same, a simple money decree was passed in favour of the plaintiff for the full amount claimed in the suit together with half costs amounting to Rs. 425 annas odd against the estates of Baldev Das in the hands of his legal representa tives.
After certain attempts at execution of this decree which did not prove successful, 548 the present application for execution was flied by the decree holder on March 13, 1945, in the court of the Senior Subordinate Judge, Ambala, and in accordance with the prayer contained therein, the court directed the attachment of certain immovable properties consisting of a number of shops in possession of the appellants and situated at a place called Abdullaput.
On April 23, 1945, the appellants filed objections under section 47, Civil Procedure Code, and they opposed the attachment of the properties substantially on the ground that those properties did not belong to Baldev Das but were the separate and exclusive properties of the objectors which they obtained on partition with their father long before the decree was passed.
It was asserted that these properties could not be made liable for the satisfac tion of the decretal dues which had to be realised under the terms of the decree itself from the estate left by Baldev Das.
After hearing the parties and the evidence adduced by them the Subordinate Judge came to the conclusion that there was in fact a partition between Baldev Das and his sons in the year 1928 and as a result of the same, the properties, which were attached at the instance of the decree holder, were allotted to the share of the sons.
The decree sought to be executed was obtained after the partition, but it was in respect of a debt which was contracted by the father prior to it.
It was held in these circumstances that the separate share of the sons which they obtained on partition was liable under the Hindu law for the pre partition debt of their father if it was not immoral and under section 53 of the Civil Procedure Code the decreeholder was entitled to execute the decree against such properties.
As no point was raised by the objectors in their petition alleging that the debt covered by the decree was tainted with immorality, the objections under section 47, Civil Procedure Code, were dismissed.
The objectors thereupon took an appeal to the High Court of East Punjab which was heard by Rahman J. sitting singly.
The learned judge dismissed the appeal and affirmed the decision of the Subordinate 549 Judge.
A further appeal taken to a Division Bench under the Letters Patent was also dismissed and it is the propriety of the judgment of the Letters Patent Bench that has been challenged before us in this appeal.
Mr. Kunzru appearing for the appellants put forward a three fold contention in support of the appeal.
He contended in the first place that under the terms of the compromise decree the decreeholder could proceed only against the properties of Baldev Das in the hands of his legal represen tatives and no property belonging to the appellants could be made liable for the satisfaction of the decree.
The second contention put forward is that as the decree in the present case was obtained after partition of the joint family property between the father and his sons, the separate property of the sons obtained on partition was not liable under Hindu law for the debt of the father.
It is urged last of all that in any event if there was any pious obligation on the part of the sons to pay the father 's debt incurred before partition, such obligation could be enforced against the sons, only in a properly constituted suit and not by way of execution of a decree obtained in a suit which was brought against the father alone during his lifetime and to which the sons were made parties only as legal representa tives after the father 's death.
As regards the first point, the determination of the question raised by Mr. Kunzru depends upon the construction to be put upon the terms of the compromise decree.
The operative portion of the decree as drawn up by the court stands as follows: "It is ordered that the parties having compromised, a decree in accordance with the terms of the compromise be and the same is hereby passed in favour of the plaintiff against the estate of Baldev Das deceased in possession of his legal representatives.
It is also ordered that the defendants do also pay Rs. 425 7 0, half costs of the suit.
" 71 550 There was no petition of compromise filed by the parties and made part of the decree, but there are on the record two statements, one made by Pannalal, the appellant No. 1, on behalf of himself and his mother, and the other by Lala Haraprasad, the special agent of the plaintiff, setting out terms of the compromise.
The terms are worded much in the same manner as in the decree itself and are to the effect that a decree for the amount in suit together with half costs would be awarded against the property of Baldev Das deceased.
It is argued by Mr. Kunzru that the expression "estate of Baldev Das deceased" occurring in the decree must mean and refer to the property belonging to Baldev Das at the date of his death and could not include any property which the sons obtained on partition with their father during the father 's lifetime and in respect of which the latter possessed no interest at the time of his death.
Stress is laid by the learned counsel in this connection on the fact that when the appellants were brought on the record as legal representatives of their deceased father in the mortgage suit, they specifically asserted in their written statement that there was a partition between them and their father long before the date of the suit as a result of which the hypothecated properties were allotted to them.
Upon that the plaintiff definitely abandoned her claim to a mortgage decree or to any relief against the joint family and agreed finally to have a money decree executable against the personal assets of Baldev Das in the hands of his heirs.
In these circumstances, it is urged that if it was the intention of the parties that the decreeholder would be entitled to proceed against the separate property of the sons nothing could have been easier than to insert a provi sion to that effect in the compromise decree.
There is undoubtedly apparent force in this contention but there is another aspect of the question which requires consideration.
The terms of the decree that was passed in this suit, though based on the consent of the parties, are precisely the same as are contemplated by section 52 (1) of the Civil procedure Code.
It was a decree for money 551 passed against the legal representatives of a deceased debtor and it provided expressly that the decretal amount was to be realised out of the estate of the deceased in the hands of the legal representatives.
It is argued on behalf of the respondent, and we think rightly, that as the decree fulfils the conditions of section 52 (1) of the Civil Proce dure Code, it would attract all the incidents which attach by law to a decree of that character.
Consequently the decreeholder would be entitled to call in aid the provision of section 53 of the Code; and if any property in the hands of the sons, other than what they received by inheritance from their father, is liable under the Hindu law to pay the father 's debts, such property could be reached by the de creeholder in execution of the decree by virtue of the provision of section 53 of the Civil Procedure Code.
Wheth er the property which the sons obtained on partition during the lifetime of the father is liable for a debt covered by a decree passed after partition and whether section 53 has at all any application to a case of this character are ques tions which we have to determine in connection with the second and the third points raised by appellants.
Section 53, Civil Procedure Code, it is admitted, being only a rule of procedure, cannot create or take away any substantive right.
It is only when the liability of the sons to pay the debts of their father in certain circumstances exists under the Hindu law, is the operation of the section attracted and not otherwise.
The only other question that can possibly arise by reason of the decree being a compromise decree is, whether the parties themselves have, by agreement, excluded the operation of section 53, Civil Procedure Code.
It is certainly possible for the parties to agree among themselves that the decree should be executed only against a particular property and no other, but when any statutory right is sought to be contracted out, it is necessary that express words of exclusion must be usedl.
Exclusion cannot be in ferred merely from the fact that the compromise made no reference to such right.
As nothing was said in the compro mise decree in the present case about the 552 right of the decreeholder to avail herself of other provi sions of the Code which might be available to her in law, we cannot say that the plaintiff has by agreement expressly given up those rights.
The first point, therefore, by itself is of no assistance to the appellants.
We now come to the other two points raised by Mr. Kunzru and as they are inter connected they can conveniently be taken up together.
These points involve consideration of the somewhat vexed question relating to the liability of a son under the Hindu law other than that of the Daybhag school to pay the debts of his father, provided they are not tainted with immorality.
In the opinion of the Hindu Smriti writers, debt is not merely a legal obligation, but non payment of debt is a sin, the consequences of which follow the debtor even after his death.
A text (1), which is attributed to Brihaspathi, lays down: "He who having received a sum lent or the like does not repay it to the owner, will be born hereafter in the credi tor 's house a slave, a servant, a woman or a quadruped.
" There are other texts which say that a person m debt goes to hell.
Hindu law givers therefore imposed a pious duty on the descendants of a man including his son, grandson and great grandson to pay off the debts of their ancestor and relieve him of the after death torments consequent on non payment.
In the original texts a difference has been made in regard to the obligation resting upon sons, grand sons and great grandsons in this respect.
The son is bound to discharge the ancestral debt as if it was his own, to gether with interest and irrespective of any assets that he might have received.
The liability of the grandson is much the same except that he has not to pay any interest; but in regard to the great grandson the liability arises only if he received assets from his ancestor.
It is now settled by judicial decisions that there is no difference as between son, grandson and great grandson so far as the obligation to pay the debts of the ancestor is concerned; but none of them has any personal (1) Vide Colebrooke 's Digest I, 228, 553 liability in the matter irrespective of receiving any assets (1).
The position, therefore, is that the son is not person ally liable for the debt of his father even if the debt was not incurred for an immoral purpose and the obligation is limited to the assets received by him in his share of the joint family property or to his interest in such property and it does not attach to his self acquisitions.
The duty being religious or moral, it ceases to exist if the debt is tainted with immorality or vice.
According to the text writers, this obligation arises normally on the death of the father; but even during the father 's lifetime the son is obliged to pay his father 's debts in certain exceptional circumstances, e.g., when the father is afflicted with disease or has become insane or too old or has been away from his country for a long time or has suffered civil death by becoming an anchorite (2).
It can now be taken to be fairly well settled that the pious liability of the son to pay the debts of his father exists whether the father 1s alive or dead (3).
Thus it is open to the father during his lifetime, to effect a transfer of any joint family property including the interests of his sons m the same to pay off an antecedent debt not incurred for family necessity or bene fit, provided it is not tainted with immorality.
It is equally open to the creditor to obtain a decree against the father and in execution of the same put up to sale not merely the father 's but also the son 's interest in the joint estate.
The creditor can make the sons parties to such suit and obtain an adjudication from the court that the debt was a proper debt payable by the sons.
But even if the sons are not made parties, they cannot resist the sale unless they succeed in establishing that the debts were contracted for immoral purposes.
These propositions can be said to be well recognised and reasonably beyond the region of controversy(4).
All of them, however, (1) Vide Masitullah vs Damodar Prasad, 53 I.A. 204.
(2) Vide Mayne 's Hindu Law, 11th edition, p. 408.
(3) Vide Brij Narain vs Mangla Prasad, 51 I.A. 129.
(4) Vide Girdharee Lall vs Kantoo Lall, 1 I.A. 321; Maddan Thakoor vs Kantoo Lall, 1 I.A, 333; Suraj Bunsi vs Sheo Prasad, 6 I.A.88; Brij Narain vs Mangla Prosad, 51 I.A. 129.
554 have reference to the period when the estate remains joint and there is existence of coparcenership between the father and the son.
There is no question that so long as the family remains undivided the father is entitled to alienate, for satisfying his own personal debts not tainted with immorality, the whole of the ancestral estate.
A creditor is also entitled to proceed against the entire estate for recovery of a debt taken by the father.
The position is somewhat altered when there is a disruption of the joint family by a partition between the father and the sons.
The question then arises, whether the sons remain liable for the debt of the father even after the family is divided; and can the creditor proceed against the shares that the sons obtain on partition for realization of his dues either by way of a suit or in execution of a decree obtained against the father alone ? It must be admitted that the law on the subject as developed by judicial decisions has not been always consist ent or uniform and the pronouncements of some of the Judges betray a lack of agreement in their approach to the various questions involved in working out the law.
As regards debts contracted by the father after parti tion, there is no dispute that the sons are not liable for such debts.
The share which the father receives on partition and which after his death comes to his sons, may certainly, at the hands of the latter, be available to the creditors of the father, but the shares allotted on partition to the sons can never be made liable for the post partition debts of the father (1).
The question that is material for our present purpose is, whether the sons can be made liable for an unsecured debt of the father incurred before partition, in respect to which the creditor filed his suit and obtained decree after the partition took place.
On this point admit tedly there is divergence of judicial opinion, though the majority of decided cases are in favour of the view that the separated share of a son remains liable even after partition for the pre partition debts of the father which (1) Vide Mayne 's Hindu Law, 11th Edition, 430.
555 are not illegal or immoral (1).
The reasons given in support of this view by different Judges are not the same and on the other side there are pronouncements of certain learned Judges, though few in number, expressing the view that once a partition takes place, the obligation of the sons to discharge the debts of their father comes to an end(2).
The minority view proceeds upon the footing that the pious obligation of the son is only to his father and corre sponding to this obligation of the son the father has a right to alienate the entire joint property including the son 's interest therein for satisfaction of an antecedent debt not contracted for immoral purposes.
What the creditor can do is to avail himself of this right of the father and work it out either by suit or execution proceedings; in other words, the remedy of a father 's simple contract credi tor during the father 's lifetime rests entirely on the right of the father himself to alienate the entire family property for satisfaction of his personal debts.
The father loses this right as soon as partition takes place and after that, the creditor cannot occupy a better position or be allowed to assert rights which the father himself could not possess.
The reasoning in support of the other view which has been accepted in the majority of the decided cases is thus expressed by Waller J. in his judgment in the Madras Full Bench case(3): "On principle, I can see no reason why a partition should exempt a son 's share from liability for a pre parti tion debt for which it was liable before partition.
The creditor advances money to the father on the credit of the joint family property.
Why should he be deprived of all but a fraction of his security by a transaction to which he was not a party and of which he (1) Vide Subramanya vs Sabapathi, ; Anna bat vs Shivappa, ; Jawahar Singh vs parduman, 14 Lab. 399; Atul Krishna vs Lala Nandanji.
14 Pat. 732 (F.B.); Bankey Lal vs Durga All 868 (F.B.); Raghunandan vs Matiram, 6 Luck.
497 (F.B.).
(2) Vide Krishnaswami, vs Ramaswami, ; V.P. Venkanna vs
V.S. Deekshatulu, ; Vide also the dissentient judgment of Ayyangar J. in Subramanya vs Sabapa thi, (3)Vide Subramanya vs Sabapathi, at 369 (F.B.).
556 was not aware ? and what becomes of the son 's pious obliga tion ? It was binding as regards the particular debt before partition; does it cease to apply to that debt simply be cause there has been a partition ?" The first part of the observation of the learned Judge does not impress us very much.
An unsecured creditor, who has lent money to the father, does not acquire any lien or charge over the family property, and no question of his security being diminished, at all arises.
In spite of his having borrowed money the father remains entitled to alien ate the property and a mere expectation of the creditor however reasonable it may be, cannot be guaranteed by law so long as he does not take steps necessary in law to give him adequate protection.
The extent of the pious obligation referred to in the latter part of the observation of the learned Judge certainly requires careful consideration.
We do not think that it is quite correct to say that the credi tor 's claim is based entirely upon the father 's power of dealing with the son 's interest in the joint estate.
The father 's right of alienating the family property for payment of his just debts may be one of the consequences of the pious obligation which the Hindu law imposes upon the sons or one of the means of enforcing it, but it is certainly not the measure of the entire obligation.
As we have said already, according to the strict Hindu theory, the obliga tion of the sons to pay the father 's debts normally arises when the father is dead, disabled or unheard of for a long time.
No question of alienation of the family property by the father arises in these events, although it is precisely under these circumstances that the son is obliged to dis charge the debts of his father.
As was said by Sulaiman A.C.J. in the case of Bankey Lal vs Durga Prasad(1): "The Hindu law texts based the liability on the pious obligation itself and not on the father 's power to sell the son 's share.
" It is thus necessary to see what exactly is the extent of the obligation which is recognised by the Hindu (1) (9931) 53 All. 868 at 876 (F.B.).
557 texts writers in regard to the payment by the son c the pre partition debts of his father.
Almost all the relevant texts on this point are to be found collected in the judg ments of Sulaiman A.C.J. and Mukherji J in the Allahabad Full Bench case referred to above A text of Narada recites(1): "What is left after the discharge of the father obliga tion and after the payment of the father 's debts shall be divided by the brothers so that the father, may not remain a debtor.
" Katyan also says(2): "The sons shall pay off the debts and the gift,, prom ised by the father and divide the remaining among them selves.
" There is a further passage in Manu(3): "After due division of the paternal estate if any debt or estate of the father be found out let the brother equally divide the same among themselves." According to Yagnavalka(4): "The sons should divide the wealth and the debts equal lyl.
" It is true that the partition contemplated in these passages is one after the death of the father.
but when ever the partition might take place, the view of the Hindu law givers undoubtedly is that the binding debts on the family property would have to be satisfied or provided for before the coparceners can divide the property.
In Sat Narain vs Das (5), the Judicial Committee pointed out that when the family estate is divided, it is necessary to take account of both the assets and the debts for which the undivided estate is liable.
It was argued in that case on behalf of the appellants that the pious obligation of the sons was an obligation not to object to the alienation of the joint estate by the (1) Narada., 13, 32.
(2)Hindu Law in its Sources by Dr. Ganga Nath Jha, Vol.
I. p quotation No. 211.
(3)Chap.
vs 218.
(4) J.C.Ghosh 's Hindu Law, Vol.
H, page 342.
(5) (1936) 63 I.A. 384 72 558 father for his antecedent debt unless they were immoral or illegal, but these debts were not a liability on the joint estate for which provision was required to be made before partition.
This contention did not find favour with the Judicial Committee and in their opinion, as they expressed in the judgment, the right thing to do was to make provision for discharge of such liability when there was partition of the joint estate.
If there is no such provision, "the debts are to be paid severally by all the sons according to their shares of inheritance," as enjoined by Vishnu(1).
In our opinion, this is the proper view to take regarding the liability of the sons under Hindu law for the pre partition debts of the father.
The sons are liable to pay these debts even after partition unless there was an arrangement for payment of these debts at the time when the partition took place.
This is substantially the view taken by the Allahabad High Court in the Full Bench case referred to above and it seems to us to be perfectly in accord with the princi ples of equity and justice.
The question now comes as to what is meant by an ar rangement for payment of debts.
The expressions "bona fide" and "mala fide" partition seem to have been frequently used in this connection in various decided cases.
The use of such expressions far from being useful does not unoften lead to error and confusion.
If by mala fide partition is meant a partition the object of which is to delay and defeat the creditors who have claims upon the joint family property, obviously this would be a fraudulent transaction not binding in law and it would be open to the creditors to avoid it by appropriate means.
So also a mere colourable partition not meant to operate between the parties can be ignored and the creditor can enforce his remedies as if the parties still continued to be joint.
But a partition need not be mala fide in the sense that the dominant intention of the parties was to defeat the claims of the creditors; if it makes no ar rangement or provision for the payment of the just debts payable (1) Vishnu, Chap.
6, verse 36.
559 out of the joint family property, the liability of the sons for payment of the pre partition debts of the father will still remain.
We desire only to point out that an arrange ment for payment of debts does not necessarily imply that a separate fund should be set apart for payment of these debts before the net assets are divided, or that some additional property must be given to the father over and above his legitimate share sufficient to meet the demands of his creditors.
Whether there is a proper arrangement for payment of the debts or not, would have to be decided on the facts and circumstances of each individual case.
We can conceive of cases where the property allotted to the father in his own legitimate share was considered more than enough for his own necessities and he undertook to pay off all his personal debts and release the sons from their obligation in respect thereof.
That may also be considered to be a proper ar rangement for payment of the creditor in the circumstances of a particular case.
After all the primary liability to pay his debts is upon the father himself and the sons should not be made liable if the property in the hands of the father is more than adequate for the purpose.
If the arrangement made at the time of partition is reasonable and proper, an unse cured creditor cannot have any reason to complain.
The fact that he is no party to such arrangement is, in our opinion, immaterial.
Of course, if the transaction is fraudulent or is not meant to be operative, it could be ignored or set aside; but otherwise it is the duty of unsecured creditor to be on his guard lest any family property over which he has no charge or lien is diminished for purposes of realization of his dues.
Thus, in our opinion, a son is liable, even after partition for the pre partition debts of his father which are not immoral or illegal and for the payment of which no arrangement was made at the date of the partition.
The question now is, how is this liability to be enforced by the creditor, either during the lifetime of the lather or after his death ? It has been held 560 in a large number of cases(1) all of which recognise the liability of the son to pay the pre partition debts of the father that a decree against the father alone obtained after partition in respect of such debt cannot be executed against the property that is allotted to the son on partition.
They concur in holding that a separate and independent suit must be instituted against the sons before their shares can be reached.
The principles underlying these decisions seems to us to be quite sound.
After a partition takes place, the father can no longer represent the family and a decree obtained against him alone, cannot be binding on the sepa rated sons.
In the second place, the power exercisable by the father of selling the interests of the sons for satis faction of his personal debts comes to an end with parti tion.
As the separated share of the sons cannot be said to belong to the father nor has he any disposing power over it or its profits which he can exercise for his benefit, the provision of section 60 of the Civil Procedure Code would operate as a bar to the attachment and sale of any such property in execution of a decree against the father.
The position has been correctly stated by the Nagpur High Court(2) in the following passages: "To say a son is under a pious obligation to pay cer tain debts is one thing; to say his property can be taken in execution is another.
In our view, property can only be attached and sold in execution if it falls within the kind of property that can be attached and sold.
What that is, is found by looking at section 60.
When one looks at section 60 one finds that the property in question should either belong to the judgment debtor or he should have a disposing power over it.
After partition, the share that goes to the son does not belong to the father and the father has no dispos ing power over it.
Therefore such property does not fall within section. . .
It by no means follows that a son cannot (1) Vide Kameswaramma vs Venkatasubba, 20; Subramanya vs Sabapathi, ; Thirumala Muthu vs Subramania, A.I.R. 1937 Mad. 458; Surajmal vs Motiram ; Atul Krishna vs Lala Nandanji, 14 Pat. 732; Govin dram vs Nathulal, I.L.R,.
(2) Jainarayan v, Sonaji, A.I.R. 1938 Nag.
24 at 29 561 be made liable.
He could be made liable for his father 's debts if he had become a surety; he can be made liable under the pious obligation rule.
In neither of the cases put, could his liability take the form of having his property seized in execution and sold without any prior proceedings brought against him, leaving him to raise the question whether his liability as surety or under the pious obliga tion rule precluded him from claiming in execution.
" It is not disputed that the provision of section 53 of the Civil Procedure Code cannot be extended to a case when the lather is still alive.
We now come to the last and the most controversial point in the case, namely, whether a decree passed against the separated sons as legal representatives of a deceased debtor in respect of a debt incurred before partition can be exe cuted against the shares obtained by such sons at the parti tion ? As has been said already, the shares of the separated sons in the family property may be made liable for pre partition debts, provided they are not tainted with immoral ity and no arrangement for payment of such debts was made at the time the partition.
The question, however, is whether this can be done in execution proceedings or a separate suit has to be brought for this purpose.
Mr. Kunzru argues that what could not be done during the lifetime of the lather in execution of a decree against him cannot possibly be done alter his death simply because the lather died during the pendency of the suit and the sons were made parties defend ants not in their own right but as representatives of their deceased lather.
It is pointed out that the appellants in the present case were not allowed to raise any plea which could not have been raised by their father and they never had any opportunity to show that they were under Hindu law not liable for these debts.
It is undoubtedly true that no liability can be enforced against the sons unless they are given an opportunity to show that they are not liable for debts under Hindu law; but this opportunity can certainly be given to 562 them in execution proceedings as well.
A decree against a father alone during his lifetime cannot possibly be executed against his sons as his legal representatives.
As we have said already, the decree against the father after the parti tion could not be taken to be a decree against the sons and no attachment and sale of the sons ' separated shares would be permissible under section 60, Civil Procedure Code.
The position, however, would be materially different if the sons are made parties to the suit as legal representatives of their father and a decree is passed against them limited to the assets of the deceased defendant in their hands.
A proceeding for execution of such a decree would attract the operation of section 47 of the Civil Procedure Code under which all questions relating to execution, discharge and satisfaction of the decree between the parties to the suit in which the decree was passed or their representatives would have to be decided in execution proceedings and not by a separate suit.
Section 52 (1), Civil Procedure Code, provides that when a decree is against the legal representa tives of a dead person and is one for recovery of money out of the properties of the deceased, it may be executed by attachment, and sale of any such property.
Then comes sec tion 53 which lays down that "for purposes of section 50 and section 52 property in the hands of a son or other descend ants which is liable under Hindu law for payment of the debt of a deceased ancestor in respect of which a decree has been passed, shall be deemed to be property of the deceased which has come to the hands of the son or other descendant as his legal representative.
" It is to be noted that before the Civil Procedure Code of 1908 came into force, there was a conflict of opinion as to whether the liability of a Hindu son to pay his father 's debts could or could not be enforced in execution proceedings.
Under the Hindu law an undivided son or other descendant who succeeds to the joint property on the death of his father or other ancestor does so by right of survivorship and not as heir.
In the old Code the term "legal representative" was not defined and 563 the question arose as to whether the son could be regarded as the legal representative of his father in regard to properties which he got by survivorship on the father 's death and whether a decree against the father could be enforced in execution against the son or a separate suit would have to be instituted for that purpose.
It was held by the Madras and the Allahabad High Courts that the liabil ity could not be enforced in execution proceedings, whereas the Calcutta and the Bombay High Courts held otherwise.
Section 53 in a sense gives legislative sanction to the view taken by the Calcutta and the Bombay High Courts.
One reason for introducing this section may have been or undoubtedly ,was to enable the decreeholder to proceed in execution against the property that vested in the son by survivorship after the death of the father against whom the decree was obtained; but the section has been worded in such a compre hensive manner that it is wide enough to include all cases where a son is in possession of ancestral property which is liable under the Hindu law to pay the debts of his father; and either the decree has been made against the son as legal representative of the father or the original decree being against the father, it is put into execution against the son as his legal representative under section 50 of the Civil Procedure Code.
In both these sets of circumstances the son is deemed by a fiction of law to be the legal representative of the deceased debtor in respect of the property which is in his hands and which is liable under the Hindu law to pay the debts of the father, although as a matter of fact he obtained the property not as a legal representative of the father at all.
As we said have already, section 53 of the Civil Procedure Code being a rule of procedure does not and cannot alter any principle of substantive law and it does not enlarge or curtail in any manner the obligation which exists under Hindu law regarding the liability of the son to pay his father 's debts.
It however lays down the procedure to be followed in cases coming under this SectiOn and if the son is bound under Hindu law to 564 pay the father 's debts from any ancestral property in his hands and the section is not limited to property obtained by survivorship a1one the remedy of the decreeholder against such property lies in the execution proceedings and not by way of a separate suit the son would certainty be at liberty to show that the property in his hands is for cer tain reasons not liable to pay the debts of his father and all these questions would have to be decided by the execut ing court under section 47, Civil Procedure Code.
This seems to us to be the true scope and the meaning of section 53, Civil Procedure Code.
In our opinion the correct view on this point was taken by Wort J. in his dissenting judgment in the Full Bench case of Atul Krishna vs Lala Nandanji (1) decided by the Patna High Court.
The majority decision in that case upon which stress is laid by Mr. Kunzru overlooks the point that section 47, Civil Procedure Code, could have no application when the decree against the father is sought to be executed against the sons during his lifetime and consequently the liability of the latter must have to be established in an independent proceeding.
In cases coming under sections 50 and 52 of the Civil Procedure Code on the other hand the decree would be capable of being executed against the sons as legal representatives of their father and it would only be a matter of procedure whether or not these questions should be allowed to be raised by the sons in execution proceedings under section 47, Civil Procedure Code.
It remains only to consider what order should be passed in this case having regard to the principles of law dis cussed above.
The High Court, in our opinion, was quite right in holding that the question of liability of the property obtained by the appellants in their share on parti tion with their father, for the decretal dues is to be determined in the execution proceeding itself and not by a separate suit.
It is not disputed before us that the debt which is covered by the decree in the present case is a pre partition debt.
The sons, (1) (1935) 14 Pat.
565 therefore, would be liable to pay the decretal amount, provided the debt was not immoral or illegal and no arrange ment was made for payment of this debt at the time when the partition took place.
Neither of these questions has been investigated by the courts below.
As regards the immorality of the debts, it is observed by the High Court that the point was not specifically taken in the objections of the appellants under section 47, Civil Procedure Code.
The validity of the partition again was challenged in a way by the decreeholder in his reply to the objections of the appellants, but the courts below did not advert to the real point that requires consideration in such cases.
The parti tion was not held to be invalid as being a fraud on the debtor but the question was not adverted to or considered whether it made any proper arrangement for payment of the just debts of the father.
In our opinion, the case should be reheard by the trial judge and both the points referred to above should be properly investigated.
The appellants did raise a point regarding their non liability for the decretal debt, in the suit itself when they were brought on the record as legal representatives after the death of their father.
The court, however, did not allow them to raise or substantiate this plea inasmuch as they were held incompe tent to put forward any defence which the father himself could not have taken.
Having regard to the conflicting judicial decisions on the subject, the appellants cannot properly be blamed for not raising this point again in the execution proceedings.
We think that they should now be given an opportunity to do so.
The result is that we set aside the judgments of the courts below and direct that the case should be heard de novo by the Subordinate Judge and that the appellants should be given an opportunity to put in a fresh petition of objection under section 47 of the Civil Procedure Code raising such points as they are competent to raise.
The decreeholder would have the right to reply to the same.
The court shall, after hearing such evidence as the parties might choose to adduce, decide 73 566 first of all whether the property attached is the ancestral property of the appellants and is liable to pay the just debts of their father.
It will consider in this connection whether the debts are illegal or immoral and as such not payable by the sons.
If this question is answered in favour of the appellants, obviously the execution petition will have to be dismissed.
If on the other hand it is found that the sons are liable for this debt, the other question for consideration would be whether there was any proper arrange ment made at the time of the partition for payment of the debts of the father.
The court below will decide these ques tions in the light of the principles which we have indicated above and will dispose of the case in accordance with law.
In the event of the appellants being held liable for payment of the decretal debt, it would be open to the executing court to make an order that the decreeholder should in the first instance proceed against the separate property of the father which was allotted to him on partition and which after his death devolved upon the sons; and only if such property is not sufficient for satisfaction of the decree, then the decree could be executed for the balance against the ancestral property in the hands of the appellants.
There will be no order for costs up to this stage.
Further costs will follow the result.
[/INST]The appellant was tried on a charge of murder by the Sessions judge with the aid of a jury.
The evidence against him consisted of the testimony of an approver and the proof of corroborative circumstances tending to connect him with the crime.
The jury found the appellant guilty and the Sessions judge accepting the verdict sentenced him to imprisonment for life.
An appeal to the High Court was dismissed as that Court found no misdirections in the charge to the jury.
The appellant contended that there was misdirection in the charge to the jury in that the jury was not told, as laid down in Sarwan Singh vs The State of Punjab, ; , that the approver 's evidence had to satisfy a double test i.e., he must be a reliable witness and his evidence must receive sufficient corroboration and in that the corroborating evidence was not sufficient to connect the appellant with the crime.
Held, that there were no misdirections in the charge.
The observations in Sarwan Singh 's case that it must be shown that the approver was a reliable witness were made in the special circumstances of that case where the approver had definitely been found to be so thoroughly discrepant as to be wholly unreliable.
In the present case there was nothing to show that the evidence of the approver was in any way unreliable.
Saywan Singh vs The State of Punjab, ; , dis tinguished.
The Sessions judge had correctly directed the jury that the corroboration of the evidence of the approver in material particulars must relate not only to the commission of the crime, but also to the evidence connecting or tending to connect the accused with the crime.
The circumstances proved in the case corroborated the approver 's evidence connecting the appellant with the crime.
Once there was evidence of such circumstances it was for the jury to decide whether they were sufficient corroboration of the approver 's evidence that the appellant murdered the deceased.
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<s>[INST] Summarize the judgementCivil Appeal No. 150 of 1963.
Appeal by special leave from the judgment and decree dated January 9, 1962 of the Calcutta High Court in Appeal from Original Decree No. 48 of 1961.
N.C. Chatterlee, R.K. Garg, S.C. Agarwal, M.K. Rarnatnurthi and D.P. Singh, for the appellant.
M.C. Setalvad and B.P. Maheshwari, for the respondent.
October 10, 1963.
The Judgment of the Court was delivered by RAGHUBAR DAYAL J.
Raj Kishore Tewari, appellant in this appeal by special leave, was occupying certain premises as sub tenant of Susil Chandra Banerjee, under a registered lease dated April 10, 1954.
His tenancy commenced from April 1, 1954.
The rent fixed was Rs. 220 per mensem.
Subsequent 123 ly it was reduced to Rs. 205 by an agreement dated June 9, 1954.
The tenancy was monthly.
Susil Chandra Banerjee was the tenant of Govindaram Bhansali from September 15, 1943, at a monthly rental of Rs. 153 plus certain other charges.
On June 16, 1955, the landlord obtained a decree of ejectment against Susil Chandra Banerjee.
In view of sub section
(2) of section 13 of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950 (Act XVII of 1950), hereinafter called the Act, the appellant became the tenant of the landlord after the determination of the tenancy of Susil Chandra Banerjee.
On March 19, 1957, the land lord respondent gave a notice to the appellant asking him to deliver possession of the premises on the expiry of the last day of April 1957, on the ground that he, being the statutory tenant, had not paid rents to him since June 16, 1955, and, as such, was not entitled to any protection under the West Bengal Premises Tenancy Act, 1956 (Act XII of 1956).
Subsequently, on June 10, 1957, the respondent instituted the suit for ejectment of the appellant from the premises.
The suit was resisted by the appellant on various grounds.
His defence was however struck off due to certain default.
Ultimately, the suit was decreed on December 15, 1959.
An appeal to the High Court was unsuccessful.
The High Court refused to give leave to appeal to this Court.
Thereafter, the appellant obtained special leave from this Court and filed the appeal.
The only point urged for the appellant is that the notice of ejectment dated March 19, 1957, was invalid in view of the fact that under the law the notice must be to require the appellant to deliver possession on the expiry of the month of tenancy, that the tenancy was from the 16th of a month as the decree for ejectment against the tenant of the first degree was passed on June 16, 1955, and that this notice required the delivery of possession on the expiry of the last day of April.
We may say that this point was not raised in the written statement.
It was however allowed to be raised in the appellate Court but was repelled.
124 The only point to determine in this appeal is the date from which the tenancy of the appellant vis a vis the respondent commenced.
The relevant portion of sub s.(2) of section 13 of the Act is: "(2) Where any premises or any part thereof have been or has been sub let by 'a tenant of the first degree ' or by a tenant inferior to a tenant of the first degree ', as defined in explanation to sub section (1), and the sub lease is binding on the landlord of such last mentioned tenant, if the tenancy of such tenant in either case is lawfully determined otherwise than by virtue of a decree in a suit obtained by the landlord by reason of any of the grounds specified in clause (h) of the proviso to sub section (1) of section 12, the sub lessee shall be deemed to be a tenant in respect of such premises or part, as the case may be, holding directly under the landlord of the tenant whose tenancy has been determined, on terms and conditions on which the sub lessee would have held under the tenant if the tenancy of the latter had not been so determined.
" There is nothing in these provisions which should persuade us to hold, as urged for the appellant, that the sub tenant becomes a tenant of the landlord from the date on which the tenancy of the tenant against whom a decree for ejectment is passed is determined.
The provisions only lay down that the sub tenant would become the tenant of the landlord if the tenancy in chief is determined lawfully.
On the other hand, this sub section lays down that the subtenant would be tenant on the terms and conditions on which the sub lessee would have held under the tenant if the tenancy of the tenant had not been determined.
This means that the terms and conditions of the tenancy between the erstwhile sub tenant and the landlord continue to be the same which were the terms and conditions of the sub tenancy.
Such terms and conditions of the tenancy in the case of the appellant were that he was to be a monthly tenant on the payment of a certain rent and that his tenancy was to 125 commence from the first day of April 1954.
It is clear therefore that his tenancy was by the calendar month.
It commenced on the first day of the month and expired on the last day of the month.
This period of monthly tenancy was in no way affected by the provisions of sub section
(2) of section 13 whose effect was simply this that the sub tenant instead of being sub tenant of the tenant who had been ejected, got a direct connection with the landlord and became his tenant in chief or, as the Act describes, tenant in the first degree.
The statutory provision just brought about a change in the landlord of the sub tenant.
The proprietor landlord took the place of the tenantin chief from whom the sub tenant had secured the tenancy.
We are therefore of opinion that the High Court was right in rejecting the contention of the appellant with respect to the invalidity of the notice for ejectment dated March 19, 1957.
The result is that the appeal fails and is dismissed with costs.
Appeal dismissed.
[/INST]The appellant was a sub tenant of S on a monthly basis commencing from April 1, 1954.
S was the tenant of the Respondent from September 15, 1943 on a monthly rental.
On June 16, 1955, the respondent obtained a decree of ejectment against section In view of sub s(2) of section 13 of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950, the appellant became the tenant of the respondent after the determination of the tenancy of section The respondant gave a notice to the appellant asking him to deliver possession of the premises on the expiry of the last day of April 122 1957, since he being a statutory tenant had not paid rent since June 16, 1955.
The respondant instituted a suit for ejectment, which was decreed, and an appeal to the High Court by the appellant was unsuccessful.
On appeal by special leave, it was contended that the notice was invalid for under the law the notice must be to require the appellant to deliver possession on the expiry of the month of tenancy, that the tenancy was from the 16th of a month as the decree for ejectment against S was passed on June 16, 1955 and that this notice required the delivery of possession on the expiry of the last day of April.
Held: The contention was untenable and rightly rejected by the High Court.
The provisions of Sub section
(2) of section 13 of the West Bengal Rent Control (Temporary Provisions) Act, 1950 only lay down that the sub tenant would become the tenant of the landlord if the tenancy in chief is determined, on the same terms and conditions on which the sub lessee would have held under the tenant if the tenancy of the tenant had not been determined.
This means that the terms and conditions of the tenancy between the erstwhile sub tenant and the landlord continue to be the same which were the terms and conditions of the sub tenancy.
The period of monthly tenancy commencing from the first of the month and expiring on the last day of the month, was in no way affected by the provisions of Sub section
(2) of section (13) whose effect was simply that the sub tenant instead of being sub tenant of the tenant who had been ejected, got a direct connection with the landlord and became his tenant in chief.
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<s>[INST] Summarize the judgementvil Appeals Nos. 46 to 48 of 1956.
Appeals from the judgment and order dated November 16, 1951, of the former Nagpur High Court in Misc.
Petitions Nos.
45,1568 and 1569 of 1951.
H. J. Umrigar, D. L. Jayawant and Naunit Lal, for the appellants in C. A. Nos. 46 and 47 of 56.
D. L. Jayawant and Naunit Lal, for the appellant in C. A. No. 48 of 56.
1054 R. Ganapathi Iyer and R. H. Dhebar, for the respon dent (In all the appeals).
December 3.
The following Judgment of the Court was delivered by VENKATARAMA AIYAR J.
These appeals are directed against the orders of the High Court of Nagpur dismissing the writ petitions filed by the appellants herein, and as they arise out of the same facts and raise the same points for determination, they were heard together, and will be disposed of by a common judgment.
The facts in Civil Appeal No. 46 of 1956 the facts in the connected appeals are similar and do not require to be stated are that the appellant was employed in 1939 in the Bengal Nagpur Railway as a clerk in the workshop at Nagpur.
In 1946 when the State took over the administration of the Railway, it gave option to the employees to continue in service on the terms set out in a document dated July 5, 1946.
The appellant accepted those terms and continued in service on the conditions mentioned in that document.
Acting in exercise of the powers conferred by sections 241(2), 247 and 266(3) of the Government of India Act, 1935, the Governor General promulgated certain rules called the Railway Services (Safeguarding of National Security) Rules, 1949, hereinafter referred to as the Security Rules, and they came into force on May 14, 1949.
It will be convenient at this stage to set out the Security Rules, in so far as they are material for the purpose of these appeals, as it is the validity of these rules that is the main point for determination by us.
Rules 3, 4, 5 and 7 are as follows: 3. " A member of the Railway Service who, in the opinion of the competent authority is engaged in or is reasonably suspected to be engaged in subversive activities, or is associated with others in subversive activities in such manner as to raise doubts about his reliability, may be compulsorily retired from service, or have his service terminated by the competent authority after he has been given due notice or pay in 1055 lieu of such notice in accordance with the terms of his service agreement: Provided that a member of the Railway Service shall not be so retired or have his service so terminated unless the competent authority is satisfied that his retention in public service is prejudicial to national security, and unless, where the competent authority is the Head of a Department, the prior approval of the Governor General has been obtained.
Where in the opinion of the competent authority, there are reasonable grounds for believing that a member of the Railway Service is liable to compulsory retirement from service or to have his service terminated under Rule 3, it shall (a) by an order in writing, require the said member of Railway service to proceed on such leave as may be admissible to him and from such date as may be specified in the order; (b) by a notice in writing inform him of the action proposed to be taken in regard to him under Rule 3; (c) give him a reasonable opportunity of showing cause against that action ; and (d) before passing a final order under Rule 3, take into consideration any representation made by him in this behalf.
Nothing contained in the Rules in Chapter XVII of the State Railway Establishment Code, Volume 1, shall apply to, or in respect of, any action taken or proposed to be taken under these rules.
Any person compulsorily retired from service or whose service is terminated under Rule 3 shall be entitled to such compensation, pension, gratuity and/ or Provident Fund benefits as would have been admissible to him under the Rules applicable to his service or post on the date of such retirement or termination of service if he had been discharged from service due to the abolition of his post without any alternative suitable employment being provided.
" On July 6, 1950, the General Manager of the Bengal Nagpur Railway issued a notice to the appellant 1056 under R. 3 of the Security Rules stating that in view of the facts recited therein, there was reason to believe that the appellant was engaged in subversive activities and calling upon him to show cause why his services should not be terminated.
He was also placed under suspension from that date.
On July 29, 1950, the appellant sent his explanation denying the allegations contained in the notice dated July 6, 1950.
The matter was then referred to the Committee of Advisers, who held an enquiry on September 8,1950, and after hearing the appellant found that the charges against him mentioned in the notice were true.
Acting on this report, the General Manager terminated the services of the appellant on April 3, 1951, giving him one month 's salary instead of notice.
Meantime, on February 3,1951, the appellant had filed the writ petition, out of which Civil Appeal No. 46 of 1956 arises, in the High Court of Nagpur challenging the validity of the notice dated July 6, 1950, and the order of suspension following thereon.
The order of dismissal dated April 3, 195 1, having been passed during the pendency of this Petition, the appellant had his petition amended by adding a prayer that that order also was bad.
The grounds urged in support of the petition were that the Security Rules under which action was taken were in contravention of articles 14, 19 (1)(c) and 311 of the Constitution, and that, in consequence, the orders passed in exercise of the powers conferred thereby were void.
The respondents resisted the application on the ground that the rules in question were valid, and that the orders passed thereunder were not open to attack.
The petition was heard along with others, in which the same questions were raised, and by their judgment dated November 16, 1951, the learned Judges held that it was unnecessary to decide whether the Security Rules were void as, assuming that they were, the orders terminating the services of the petitioners could be sustained under R. 148 of the Railway Establishment Code.
Sub rules (3) and (4) of R. 148 which bear on this point, are as follows: 1057 R. 148(3) Other (non pensionable) railway servants : "The service of other (non pensionable) railway servants shall be liable to termination on notice on.
either side for the periods shown below.
Such notice is not, however, required in cases of summary dismissal or discharge under the provisions of service agreements, retirement on attaining the age of superannuation, and termination of service due to mental or physical incapacity.
(4) In lieu of the notice prescribed in this rule, it shall be permissible on the part of the Railway Admi nistration to terminate the service of a Railway servant by paying him the pay for the period of notice." The learned Judges held that the appellants were non pensionable railway servants within sub r.(3), that they had been paid one month 's wages instead of notice under sub r.(4), and that, accordingly, the impugned orders were intra vires the powers of the respondents under R. 148, sub r.
In the result, the petitions were dismissed, and the present appeals have been preferred against these orders on a certificate under article 132 (1) and article 133(1)(c) of the Constitution.
The appellants complain that the ground on which the judgment proceeds was not put forward by the respondents in their pleadings and should not have been allowed to be taken by them, and that on the points actually in issue, it should have been held that the Security Rules were repugnant to articles 14, 19(1) (c) and 311 of the Constitution, and, therefore, void.
They further contend that even if the Security Rules were valid, the orders terminating the services were not justified by them, and that further, those orders were bad for the reason that they had not been made by the competent authorities.
The appellants also sought to raise the contention that the enquiry conducted by the authorities was defective, and that there was no proper hearing as provided by the rules, but we declined to hear them on that point, as that was not raised in their petitions.
1058 The points for decision in these appeals are: (I) Whether the orders terminating the services of the appellants can be upheld under R. 148 of the Railway Establishment Code; (II)Whether the Security Rules are bad as infringing (a) article 14, (b) article 19(1)(c) and (c) article 311 of the Constitution; (III)Whether the impugned orders are not valid, even according to the Security Rules; and (IV) Whether those orders were not passed by the competent authorities.
On the first question, it appears clearly from the record that the authorities purported to take action only under the Security Rules.
The notice dated July 6, 1950, was avowedly issued under R. 3 of those rules.
It was in the scrupulous observance of the procedure prescribed therein that the explanations of the appellants in answer to the charges were taken, and the matters were referred to the Committee of Advisers for enquiry.
And above all, the orders terminating the services of the appellants, in terms, recite that they were made under R. 3 of the rules, as for example, the notice dated April 3, 1951, given to the appellant in Civil Appeal No. 46 of 1956, which runs as follows: "I have considered your representation to me in reply to this office letter No. Con/T/2 I /MP/82 dated 6 7 1950 and am of the opinion that you are engaged and associated with others in subversive activities in such mariner as to raise doubts about your reliability and am satisfied that your retention in public service is prejudicial to national security.
I have decided with the prior approval of the President that your services should be terminated under Rule 3 of the Railway Services (Safeguarding of National Security) Rules, 1949.
" It should be added that while the appellants stated in their petitions that action had been taken against them under the Security Rules, and that those rules were ultra vires, the respondents did not plead that 1059 action was taken under R. 148 of the Railway Establishment Code.
They only contended that the Security Rules were valid.
In view of the above,the criticism of Mr. Umrigar for the appellants that the judgment under appeal proceeds on a ground which was, not merely, not in the contemplation of the authorities When they passed the orders in question, but was not even raised in the pleadings in Court, is not without substance.
It is argued that when an authority passes an order which is within its competence, it cannot fail merely because it purports to be made under a wrong pro.
vision if it can be shown to be within its powers under any other rule, and that the validity of an order should be judged on a consideration of its substance and not its form.
No exception can be taken to, this proposition, but it has not been the contention of the respondents at any stage that the orders in question were really made under R. 148(3) of the Railway Establishment Code, and that the reference to R. 3 of the Security Rules in the proceedings might be disregarded as due to mistake.
In the Court below, the learned Judges rested their conclusion on the ground that cl.
(10) of the service agreement dated July 5, 1946, provided that in respect of matters other than those specifically dealt with therein discharge is one of such other matters the Railway rules applicable to persons appointed on or after October 1, 1946 were applicable, that R. 148(3) was one of such rules, and that the appellants who were non pensionable railway servants were governed by that rule, and were liable to be discharged in accordance therewith.
But this reasoning ignores that under cl.
(10) of the service agreement, the Security Rules stand on the same footing as the rules in the Railway Establishment Code and constitute equally with R. 148 the conditions of service on which the appellants held the employment, and there must be convincing reasons why orders passed statedly under R. 3 should be held not to have been passed under that rule.
Before us, a different stand was taken by the respondents.
They did not 1135 1060 dispute that the action was really taken under R. 3 of the Security Rules, but they argued that the power to terminate the service under r. 3 was not something ;different from and independent of the power to discharge, conferred by R. 148, and that an order passed under R. 3 was, on its own terms, one made under R. 148(3).
The basis for this contention is the provision in R. 3 that the service may be terminated in accordance with the service agreement, after giving due notice or.
pay in lieu of such notice.
The appellants controvert this position.
They contend that the power to terminate the service under the Security Rules is altogether different from the power to discharge under R. 148, that the reference in R. 3 to the service agreement is only in respect of the notice to be given, there being different periods fixed under the rules in relation to different classes of employees, and that, in other respects, the Security Rules run on their own lines, and that action taken thereunder cannot be shunted on to R. 148.
We find 'considerable difficulty in acceding to the argument of the respondents.
The Security Rules apply to a special class of employees, those who are engaged or are likely to engage in subversive activities, and in conjunction with the instructions which were issued when they were promulgated, they form a self contained code prescribing a special and elaborate procedure to be followed, when action is to : be taken thereunder.
We see considerable force in the contention of the appellants that the of the service agreement in R. 3 has reference only to the nature of the notice to be given.
If the interpretation which the respondents seek to put on the Security Rules is correct, then it is difficult to see what purpose at all they serve.
Mr. Ganapathy Iyer for the respondents argues that they are intended to afford protection to persons who might be charged with being engaged in subversive activities.
If that is their purpose, then if action is taken thereunder but the procedure prescribed therein is not followed, the Order must be held to be bad, as the protection intended to be given has been denied to the employee, 1061 and R. 148 cannot be invoked to give validity to such order.
Indeed, that has been held in Sambandam vs General Manager, section I. Ry.
(1) and Prasadi vs Works Manager, Lillooah (2) ; and that is also conceded by .Mr.
Ganapathy Iyer.
If then the power to terminate the service under the Security Rules is different from the power to discharge under R. 148 when the procedure prescribed therein is not followed, it must be equally so when, as here, it has been followed, for the complexion of the rules cannot change according as they are complied with or not.
That means that the Security Rules have an independent operation of their own, quite apart from R. 148.
We do not, however, desire to express any final opinion on this question, as Mr. Ganapathy Iyer is willing that the validity of the orders in question might be determined on the footing that they were passed under R. 3 of the Security Rules, without reference to R. 148.
That renders it necessary to decide whether the Security Rules are unconstitutional, as contended by the appellants.
(Ila).
The first ground that is urged against the validity of the Security Rules is that they are repugnant to article 14.
It is said that these rules prescribe a special procedure where action is proposed to be taken against persons suspected of subversive activities, and that when the services of an employee are terminated under these rules, the consequence is to stamp him as unreliable and infamous, and there is thus discrimination, such as is hit by article 14.
It is admitted that if the persons dealt with under these rules form a distinct class having an intelligible differentia which bears a reasonable relation to the purposes of the rules, then there would be no infringement of Art.14.
But it is argued that the expression " subversive activities" which forms the basis of the classification is vague and undefined in that even lawful activities could be roped therein, and that such a classification cannot be said to be reasonable.
Reference was made to the charges which were served on the appellant in Civil Appeal No. 46 of 1956 as showing how even lawful activities (1) I.L.R. (2) A.I.R. 1957 Cal.
4. 1062 could be brought under the impugned rules.
The notice, so far as it is material, runs as follows: " Whereas in the opinion of the. .
General ,Manager, you are reasonably suspected to be a member and office secretary of the B. N. Rly.
Workers ' Union (Communist sponsored) and were thickly associated with communists such as Om Prakash Mehta, B.N. Mukherjee, R. L. Reddy, etc., in subversive activities in such manner as to raise doubts about your reliability and loyalty to the State in that, though a Government employee, you attended private meetings of the Communists, carried on agitation amongst the Railway workers for a general strike from November 1948 to January 1949 evidently to paralyse communication and movement of essential supplies and thereby create disorder and confusion in the country and that, consequently, you are liable to have your services terminated under rule 3 of the said Rules.
" It is argued that it is not unlawful to be a member of the Communist Party or to engage in trade union activities, and if this could form the basis of action under the rules, the classification must be held to be unreasonable.
Reliance was placed on the decision of this Court in The State of West Bengal vs Anwar Ali Sarkar (1), wherein it was held that a power conferred on the executive to select cases for trial by special courts under a procedure different from that of the ordinary courts with the object of ensuring " speedy trial " could not be upheld under article 14 as a valid classification, and on the decision of the Madras High Court in Ananthanarayanan vs Southern Railway(2), wherein it was hold that the words " subversive activities " in R. 3 lacked definiteness.
Now, the principles applicable for a determination whether there has been a proper and valid classification for purposes of article 14 have been the subject of consideration by this Court in a number of cases, and they were stated again quite recently in Budhan Choudhry and others vs The State of Bihar(3), and there is no need to repeat them.
The only point that (1) ; (2) A.I.R. 1956 Mad. 220.
(3) [1955]1 S.C.R. 1045, 1049.
1063 calls for decision in these appeals is whether the classi fication of persons on the basis of subversive activities is too vague to be the foundation of a valid classification.
Mr. Umrigar insists that it is, but his elaborate argument amounts to no more than this that the expression " subversive activities " may take in quite a variety of activities, and that its contents are therefore wide.
It may be that the connotation of that expression is wide, but that is not to say that it is vague or indefinite.
But whatever the position if the words "subversive activities " had stood by them selves, they are sufficiently qualified in the Security Rules to be definite.
Those rules have, for their object, the safeguarding of national security as recited in the short title.
That is again emphasised in R. 3, which provides that a member of the Railway service is not to be retired or his services terminated unless the authorities are satisfied " that his retention in public service is prejudicial to national security ".
In our judgment, the words " subversive activities " in the context of national security are sufficiently precise in their import to sustain a valid classification.
We are unable to agree with the opinion expressed in Ananthanarayanan vs Southern Railway (supra) at p. 223 that the language of R. 3 is indefinite, even when read with the words " national security".
We are also unable to agree with the argument of the appellants based on the charges made against the appellant in Civil Appeal No. 46 of 1956 in the notice dated July 6, 1950, that the expression "subversive activities " is wide enough to take in lawful activities as well, and must therefore be held to be unreasonable for purposes of classification under article 14.
The notice, it is true, refers to the appellant being a member of the Communist Party and to his activities in the trade union.
It is also true that it is not unlawful to be either a Communist or a trade unionist.
But it is not the necessary attribute either of a Communist or a trade unionist that he should indulge in subversive activities, and when action was taken against the appellant under the rules, it was not because he was a 1064 Communist or a trade unionist, but because he was engaged in subversive activities.
We hold that the Security Rules are not illegal as being repugnant to ,a article 14.
(IIb).
It is next contended that the impugned orders are in contravention of article 19(1)(c), and are therefore void.
The argument is that action has been taken against the appellants under the rules, because they are Communists and trade unionists, and the orders terminating their services under R. 3 amount, in substance, to a denial to them of the freedom to form associations, which is guaranted under article 19(1)(c).
We have already observed that that is not the true scope of the charges.
But apart from that, we do not see how any right of the appellants under article 19(1)(c) has been infringed.
The orders do not prevent them from continuing to be Communists or trade unionists.
Their rights in that behalf remain after the impugned orders precisely what they were before.
The real complaint of the appellants is that their services have been terminated; but that involves, apart from article 31 1, no infringement of any of their Constitutional rights.
The appellants have no doubt a fundamental right to form associations under article 19(1)(c), but they have no fundamental right to be continued in employment by the State, and when their services are terminated by the State they cannot complain of the infringement of any of their Constitutional rights, when no question of violation of article 311 arises.
This contention of the appellants must also be rejected.
(IIc).
'it is then contended that the procedure pres cribed by the Security Rules for the hearing of the charges does not satisfy the requirements of article 311, and that they are, in consequence, void.
But article 311 has application only when there is an order of dismissal or removal, and the question is whether an order terminating the services of the employees under R. 3 can be said to be an order dismissing or removing them.
Now, this Court has held in a series of decisions that it is not every termination of the services of an employee that falls within the operation of article 311, 1065 and that it is only when the order is by way of punishment that it is one of dismissal or removal under that Article.
Vide Satish Chandra Anand vs Union of India (1), Shyam Lal vs The State of Uttar Pradesh and the Union of India (2), State of Bombay vs Saubhagchand M. Doshi (3), and Parshotam Lal Dhingra vs Union of India (4).
The question as to what would amount to punishment for purposes of article 311 was also fully considered in Parshotam Lal Dhingra 's case (supra).
It was therein held that if a person had a right to continue in office either under the service rules or under a special agreement, a permature termination of his services would be a punishment.
And, likewise, if the order would result in loss of benefits already earned and accrued, that would also be punishment.
In the present case, the terms of employment provide for the services being terminated on a proper notice, and so, no question of permature termination arises.
Rule 7 of the Security Rules preserves the rights of the employee to all the benefits of pension, gratuities and the like, to which they would be entitled under the rules.
Thus, there is no forfeiture of benefits already acquired.
It was stated for the appellants that a person who was discharged under the rules was not eligible for re employment, and that that was punishment.
But the appellants are unable to point to any rule imposing that disability.
The order terminating the services under R. 3 of the Security Rules stands on the same footing as an order of discharge under R. 148, and it is neither one of dismissal nor of removal within the meaning of article 311.
This contention also must be overruled.
(111) It is next contended by Mr. Umrigar that the charges which were made against the appellant in Civil Appeal No. 46 of 1956 in the notice dated July 6, 1950, have reference to events which took place prior to the coming into force of the Security Rules, which was on May 14, 1949, and that the order terminating the services of the appellant based thereon is bad as giving retrospective operation to the rules, (I) ; (2) ; , (3) Civil Appeal No. 182 Of 1955.
(4) Civil Appeal No. 65 of 1957.
1066 and that the same is not warranted by the terms there of.
Now, the rules provide that action can be taken under them, if the employee is engaged or is reason;ably suspected to be engaged in subversive activities.
Where an authority has to form an opinion that an employee is likely to be engaged in subversive activities, it can only be as a matter of inference from the course of conduct of the employee, and his antecedents must furnish the best materials for the same.
The rules are clearly prospective in that action thereunder is to be taken in respect of subversive activities which either now exist or are likely to be indulged in, in future, that is to say, which are in esse or in posse.
That the materials for taking action in the latter case are drawn from the conduct of the employees prior to the enactment of the rules does not render their operation retrospective.
Vide the observations of Lord Denman C. J. in The Queen vs St. Mary, Whitechapel (1) and The Queen vs Christchurch (2).
This contention must also be rejected.
(IV) Lastly, it was contended that the impugned orders were not passed by the competent authorities under the Security Rules, and that they were, therefore, void.
This contention is based on the fact that the authority competent to pass the orders under R. 3 is, as regards the present appellants, the General Manager, and that the impugned orders were actually communicated to them by the Deputy Manager.
But it has been found as a fact that the orders had been actually passed by the General Manager, and that finding must be accepted.
In the result, the appeals fail, and are dismissed with costs.
The appellants who were permitted to file the appeals in forma pauperis will also pay the court fees payable to the Government.
Appeals dismissed.
(1) ; ; 116 E.R.811.
(2) ; ; , 825.
[/INST]The Services of the appellants who were Railway servants, were terminated for reasons of national security under section 3 of the Railway Services (Safeguarding of National Security) Rules, 1949.
Notices served on them under that section to show cause charged them as follows: "Whereas in the opinion of the.
General Manager, you are reasonably suspected to be a member and office secretary of the B. N. Rly., Workers ' Union (Communist sponsored) and were thickly associated with communists such as Om Prakash Mehta, B. N. Mukherjee, R. L. Reddi, etc., in subversive activities in such manner as to raise doubts about your reliability and loyalty to the State in that, though a Government employee, you attended private meetings of the Communists, carried on agitation amongst the Railway workers for a general strike from November 1948 to January 1949 evidently to paralyse communication and movement of essential supplies and thereby create disorder and confusion in the country and that, consequently, you are liable to have your services terminated under rule 3 Of the said Rules".
Orders of suspension were passed on them.
They made their representations.
The committee of Advisers on enquiry and after examining them found that the charges were true and the General Manager acting on its report terminated the services of the appellants, giving them a month 's salary in lieu of notice.
The appellants moved the High Court under article 226 of the Constitution and contended that the Security Rules contravened articles 14, 19(1)(c) and 311 of the Constitution and as such the orders terminating their services were void.
The High Court did not decide the Constitutional validity of the Security Rules and dismissed the petitions on other grounds.
Held, that the words 'subversive activities 'occurring in Rule 3 Of the Railway Services (Safeguarding of National Security) Rules, 1949, in the context of the objective of national security which they have in view, are sufficiently precise in import to 1053 sustain a valid classification and the Rules are not, therefore,invalid as being repugnant to article 14 of the Constitution.
Ananthanarayanan vs Southern Railway, A. I. R. 1956 Mad. 220, disapproved.
The charge shows that action was taken against the appellants not because they were Communists or trade unionists but because they were engaged in subversive activities.
The orders terminating their services could not,.
therefore, contravene article 19(1)(c) of the Constitution since they did not infringe any of the rights of the appellants guaranteed by that Article which remained precisely what they were before.
Article 311 of the Constitution can apply only when there is an order of dismissal or removal by way of punishment.
As the terms of employment of the appellants provided that their services could be terminated on a proper notice and R. 7 Of the Security Rules preserved such rights as benefits of pension, gratuities and the like to which an employee might be entitled under the service rules, there was neither premature termination nor forfeiture of benefits already acquired so as to amount to punishment.
The order ' terminating the services under R. 3 Of the Security Rules stood on the same footing as an order of discharge under R. 148 of the Railway Establishment Code and was neither one of dismissal nor removal within the meaning of article 311 of the Constitution.
Article 311 had, therefore, no application.
Parshotam Lal Dhingra vs Union of India, Civil Appeal No. 65 Of 1957, relied on.
Satish Chandra Anand vs Union of India, [1953] section C. R. 655, Shyam Lal vs The State of Uttar Pradesh and the Union of India, ; and State of Bombay vs Saubhagchand M. Doshi, Civil Appeal No. 182 Of 1955, referred to.
Although the Rules are clearly prospective in character, materials for taking action against an employee thereunder may be drawn from his conduct prior to the enactment of the Rules.
The Queen vs St. Mary, Whitechapel, ; and The Queen vs Christchurch, ; , referred to.
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<s>[INST] Summarize the judgementiminal Appeal No.100 of 1967.
Appeal from the judgment and order dated March 13,1967 of the Gujarat High Court in Criminal Appeal No. 566 of 1965.
J. L. Hathi, K. L. Hathi and K. N. Bhat, for the appellant.
section K. Dholakia, Badri Das Sharma and section P. Nayar, for the respondent.
The Judgment of the Court was delivered by Ray, J.
This is an appeal from the judgment of the High Court of Gujarat.
The appellants were charged with offences under sections 302 and 323 read with section 34 of the Indian Penal Code.
Accused Nos. 1 and 2 were charged for the individual offences under sections 302 and 323 of the Indian Penal Code for intentionally causing death of Amarji and for causing simple hurt to Vaghji Mansangji.
The deceased Amarji was the brother in .
law (sister 's husband) of Vaghji Mansangji.
Two important eyewitnesses were Pabaji Dajibha and Pachanji Kesarji.
Amarji 33 was Pabaji 's mother 's sister 's son.
Pachanji is the first cousin of Vaghji Mansangji.
Accused No. 3 Mulubha is the maternal uncle (mother 's bro ther) of accused No. 2 Ranubha Naranji and accused No. 1 Hethubha alias Jitubha is the son of another maternal uncle of accused No. 2.
Accused No. 2 was residing at Bhalot.
Vaghji also resided there.
About two months prior to the date of the occurrence on 26 January, 1965 at 8 p.m. there was a quarrel between the children of the house of accused No. 2 Ranubha and the children of the house of Vaghji.
There was exchange of words between the members of the two families.
Accused No. 2 Ranubha and his father Naranji assaulted the wife of Vaghji.
Vaghji then filed a complaint.
Ultimately, the complaint was compounded on the intervention of accused No. 3 Mulubha.
The prosecution case is that because of the behaviour of accused No. 2 Ranubha towards the wife of Vaghji, Ranubha had to leave his own village of Bhalot and had to go to reside with his maternal uncles at Bhuvad.
The further prosecution case is that the relations of Ranubha thereafter went to village Bhalot for fetching the goods of Ranubha and at that time they had threatened Vaghji and others that Ranubha had to leave the village and Vaghji and others would not be able to continue to, reside in the village.
On 26 January, 1965 Amarji, Pabaji Vaghji and Pachanji took their carts of fuel wood for selling it in the village Khedoi which is about 7 miles from Bhalot.
They left Bhalot at about 10 a.m. and reached Khedoi at about 1 p.m.
The cart loads of fuel wood were sold in Khadoi by about 5 p.m.
They made some purchases and then left Khedoi at about 7 p.m.
While returning home Amarjis cart was in the front and Pabaji, Pachanji and Vaghji followed him in.
that order.
There was not much distance between each cart.
When the carts had gone about 2 miles from Khedoi and they were about to enter village Mathda, the three accused persons were noticed waiting on the roads.
All of them caught hold of Amarji and attacked him who was in the first cart.
In the meantime, accused No. 3, Mulubha, caught hold of the hand of Pabaji and prevented him from going near Amarji.
Mulubha was armed with an axe.
Accused Nos. 1 and 2 dealt knife blows to Amarji.
The prosecution suggested that the accused persons realised their mistake that instead of Vaghji they had attacked Amarji, and so both the accused Nos. 1 and 2 left Amarji and went to the cart of Vaghji and gave blows with sticks to Vaghji.
On seeing the attack on vaghji Pabaji intervened and asked the accused to desist from attacking Vaghji any 34 longer as they had already killed Amarji.
Thereupon the accused stopped attacking Vaghji.
By this time Amarji had come staggering to the spot where Pabaji was standing.
Then Amarji was placed in one of the carts and Vaghji was made to sit in that cart.
Pachanji drove his cart first and the two carts without any drivers which had been formerly driven by Vaghji and Amarji, were kept in the middle and Pabaji with the two injured men in his cart was driving his cart last.
The carts were taken to village Khedoi.
It is the prosecution case that the three accused persons followed these carts up to a certain distance and then accused Nos '.
1 and 2 left while accused No. 3 disappeared near Khari Vadi.
Pabaji took the carts to Moti khedoi and saw police head constable Banesing who had come to Khedoi for patrolling work.
Banesing was attached to the police outpost at Bhuvad.
Banesing directed these persons to take Amarji to the Khedoi hospital.
By that time Amarji had died.
Banesing left Khedoi with Pabaji for Anjar police station which is about 8 miles from Khedoi.
They reached, Anjar at about 11 p.m. and Pabaji 's F.I.R. was recorded before police sub inspector Khambholja.
The police sub inspector then preceded to, Khedoi hospital.
Amarji was declared to be dead.
The police sub inspector recorded the statements of Vaghji and Pachanji and :then took steps in the investigation of the case.
At the trial all the three ' accused denied having committed the offence.
, The Sessions Judge acquitted all the three persons under section 302 read with section 34.
He however convicted all the accused for the offence punishable under section 304 Part II read,with section 34 and sentenced them to suffer rigorous imprisonment for five years.
Accused Nos. 1 and 2 were convicted for the offence under section 323 and accused No. 3 was convicted for the offence under section 323 read with section 34 of the Indian Penal Code.
Accused Nos. 1 and 2 were sentenced to suffer rigorous imprisonment for three months while accused No. 3 was sentenced to suffer rigorous imprisonment for two months.
All the sentences were to run concurrent All the accused filed appeals against their convictions.
Before the Division ' Bench in the High Court of Gujarat Divan, J. held that accused No. 1 alone was responsible for the fatal injury on Amarji and he was found guilty for the offence under section 302 while accused Nos. 2 and 3 were found, guilty for the offence under section 324 read with section 34.
Shelat, J. was of the view that all the accused must acquitted because he ' was not satisfied with the evidence and proof of the identity of the accused.
The case was then placed under Section 429 of Criminal ' Procedure Code before Mehta, J. who held that accused No. 1 35 must be Convicted for the offence under section 302 while accused Nos. 2 and 3 must be convicted for the offence under section 302 read with section 34 and all of them should be sentenced to suffer rigorous imprisonment for life.
The conviction of accused Nos. 1 and 2 under section 323 and of accused No. 3 under section 323 read with section 34 was upheld.
The conviction of all the accused under section 304 Part 11 was altered by convicting accused No. 1 under section 302 and accused Nos. 2 and 3 under section 302 read with section 34 of the Indian Penal Code.
Counsel for the appellants contended first that the third learned Judge under section 429 of the Criminal Procedure Code could only deal with the differences between the two learned Judges and not with the whole case.
The same contention had been advanced before Mehta, J. in the High Court who rightly held that under section 429 of the Criminal Procedure Code the whole case was to be dealt with by him.
This Court in Babu and Ors.
vs State of Uttar Peadesh (1) held that it was for tic third learned Judge to decide on what points the arguments would be heard and therefore he was free to resolve the differences as he thought fit.
Mehta, J. here dealt with the whole case.
Section 429 of the, Criminal Procedure Code states "that when the Judges comprising the Court of Appeal are equally divided in opinion, the case with their opinion thereon, shall be laid before another Judge of the same Court and such Judge, after such hearing, if any, as he thinks fit shall deliver his opinion, and the judgment or order shall follow such opinion".
Two things are noticeable; first, that the, case shall be laid before another Judge, and, secondly, the judgment and order will follow the opinion of the third learned Judge.
It is, therefore, manifest that the third learned Judge can or will deal with the whole case.
The second and the main contention of counsel for the ap pellants was that there was no common intention to kill Amarji.
The finding of fact is, ,that the attack the three accused was a concerted one under prearranged plan.
Amarji Was attacked by mistake :but whosoever inflicted, injury in the region of the collar bone of Amarji must be held guilty of murder.
under section 302.
Amarji was further found to have been attacked by accused Nos. 1 and 2 and accused No. 3 who was armed with an axe caught hold of the hand of Pabaji.
The injury on Amarji was an incised wound 1 3/4" *3/4" over the left side of the neck neck just above the left collar bone.
The direction of the wound was was towards right and downwards.
The other injury was incised (1) ; 36 wound 1" * 1/2" * 1/2" over the chest (right side) near the middle line between the 6th and 7 ribs.
The evidence establishes these features; first, that all the accused were related; secondly, they were residing at Bhuvad at the relevant time; thirdly, all the three accused made sudden appearance on the scene of the occurrence; fourthly, they started assault as soon as the carts arrived at the scene of the offence; fifthly, the way in which Amarji was attacked by accused Nos. 1 and 2 and stab wounds were infficted on him and the manner in which accused No. 3 held up Pabaji would show that the three accused were lying in wait under some pre arranged plan to attack these persons when they were returning to Bhalot.
It therefore follows that the attack took place in pursuance of the pre arranged plan and the rapidity with which the attacks Were made also shows the pre concerted plan.
The attack by accused Nos. 1 and 2 on Amarji and the holding up, of Pabaji by accused No. 3 all prove ,common intention, participation and united criminal behaviour of all and therefore accused No. 3 would be equally responsible with ,accused Nos. 1 and 2 who had attacked Amarji.
This Court in the case of Shankarlal Kachrabhai and Ors.
vs State of Gujarat(1) said that a mistake by one of the accused as to killing X in place of Y would not displace the common intention if the evidence showed the concerted action in furtherance of pre arranged plan.
The dominant feature of section 34 is the ,element of participation in actions.
This participation need not in all cases be by physical presence.
Common intention implies acting in concert.
There is a pre arranged plan which is proved either from conduct or from circumstances of from incriminating facts.
The principle of joint liability in the doing of a criminal act is embodied in section 34 of the Indian Penal Code.
The existence of common intention is to be the basis of liability.
That is why the prior concert and the pre arranged plan is the foundation of common intention to establish liability and guilt.
Applying these principles to the evidence in the present case it appears that there was pre arranged plan of the accused to commit offences.
All the accused were lying in wait to attack the party of Amarji, Vaghji, Pabaji and Pachanji.
Amarji was in the forefront.
The accused attacked him.
Vaghji was also attacked and prevented from going to the relief of Amarji.
The plea that Amarji was mistaken for Vaghji would not take away the common intention established by pre arranged plan and participation of all the accused in furtherance of common intention.
The act might be ,done by one of the several persons in furtherance of the common intention of them all, without each one of them having intended (1) ; 37 to do the particular act in exactly the same way as an act might be done by one member of an unlawful assembly in prosecution of the common intention which the other members of the unlawful assembly did not each intend to be done.
In view of the evidence that Amarji was killed in furtherance of the common intention of all the accused the appellants are guilty of murder. 'In Shankarlal 's case(1) this Court said that if the common intention was to kill A and if one of the accused killed B to wreck his private vengeance, it could not be possibly in furtherance of the common intention for which others can be liable.
But if on the other hand he killed B bona fide believing that he was A and the common intention was to kill A the killing of B was in furtherance of the common intention.
All the three accused in the present case were lying in wait and assaulted the driver of the first cart and stabbed him in pursuance of their prearranged plan Therefore, all the three accused including the appellant must share the liability of murder under section 302 read with section 34 of the Indian Penal Code.
Further, in view of the finding that the the concerted plan was to cause injuries to the intended victim with dangerous weapons with which the assailants were lying in wait, the liability of the appellant is established.
The conclusion of Mehta, J. is correct.
The appeal, there fore, fails and is dismissed.
The accused must surrender to the bail and serve out the sentences.
[/INST]The three appellants were charged with offences under sections 302 and 323 read with section 34, of the Penal Code and appellants 1 and 2 were charged with the individual offences under sections 302 and 323 for intentionally causing the death of A, mistaking him for V and for causing simple hurt to V. The Sessions Judge acquitted all the three accused under section 302 read with section 34 but convicted them under section 304 Part 11 read with section 34 and sentenced them to suffer rigorous imprisonment for five years.
Appellants 1 and 2 were also convicted for the offence under section 323 and appellant 3 was convicted for the offence under section 323 read with section 34.
All three were sentenced for these convictions to rigorous imprisonment for terms.
to run concurrently.
On appeal to a Division Bench of the High Court one learned Judge held, that the first appellant alone was responsible for the fatal injury on A and found him guilty under section .302, while the second and third appellants were found guilty under section 324 read with section 34.
The second learned Judge was of the view that all the accused must be acquitted as he was not satisfied with, the evidence and proof of. the identity.
of the accused.
The case was then placed before , a, third learned Judge under section 429 Cr.
P.C. who held that the first appellant must 'be convicted under section 302 while the second and third appellants must be convicted, under section 302 read with section 34 and all of them must be sentenced to suffer rigorous prisonment for life.
The conviction of the first and second appellants under section 323 and of the third appellant under section 323 read with section 34 was upheld.
In appeal to this Court it was contended (i) that the third learned Judge under section 429 Cr. P.C. could only,.deal with the differences between the two learned Judges and not with the whole case; and (ii) that there was no comnmittee intend on within the meaning of supp I.P.C. on the part of the three appellants to kill A as he was attacked by, mistake.
HELD : Dismissing the appeal.
(i) Section on of the Criminal Procedure Code.states "that when the judges comprising the Court of Appeal are equally divided in opinion the case with their opinion thereon shall be laid before another Judge of the same Court and such Judge, after hearing,if any, as he thinks fit, shall deliver his opinion, and the judgment or order shall follow such before another Judge, and, secondly, the Judgment and order will follow the, opinion of the third learned Judge.
It is, therefore, manifest that the third learned Judge can or will deal with the whole case.
[35 D F] 32 Babu and Ors.
vs State of Uttar Pradesh, [1965] 2 S.C.R. 771; referred to.
(ii) The plea that A was mistaken for V would not take away the common intention established by a pre arranged plan and participation of all the accused in furtherance of common intention.
The act might be done by one of the several persons in furtherance of the common intention of them all without each one of them having intended to do the particular act in exactly the same way as an act might be done by one member of an unlawful assembly in prosecution of the common intention which the other members of the unlawful assembly did not each intend to be don. .
[36 H] On the facts, it was clear that the attack took place in pursuance of a pre arranged plan.
, The attack by appellants 1 and 2 on A and the evidence showing that appellant 3 held back P during the attack all proved common intention, participation and united criminal behaviour of all; appellant 3 was therefore equally responsible and guilty with appellants 1 and 2 who had attacked A. Shankarlal Kachrabbhai and Ors.
vs State of Gujarat, ; ; referred to.
The dominant feature of section 34 is the element of participation in actions.
This participation need not in all cases be by physical presence.
Common intention implies acting in concert.
There is a pre arranged plan which is proved either from conduct or from circumstances or from incriminating facts.
The principle of joint liability in the doing of a criminal act is embodied in section 34 of the Indian Penal Code.
The existence of common intention is to be the basis of liability.
That is why the prior concert and the pre arranged plan is the foundation of common intention to establish liability and guilt.
[36 E]
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<s>[INST] Summarize the judgementCivil Appeal No. 843 of 1984 Appeal by Special leave from the Judgment and Order dated the 23rd September, 1981 of the Madhya Pradesh High Court in Civil Second Appeal No. 10 of 1971.
S.S. Khanduja for the Appellant.
G.D. Gupta and R.N. Poddar for Respondents.
The Order of the Court was delivered by DESAI, J. One Shri Sital Prasad Saxena filed Civil No. 46A of 1969 against (1) Union of India (2) Comptroller and Auditor General of India and (3) Accountant General Madhya Pradesh for a declaration about the status of his post and arrears of salary in respect of the post in which he was entitled to continue.
The suit came up for hearing before the 5th Civil Judge Class II, Gwalior who by his judgment and decree dated July 7, 1969 dismissed the suit.
Plaintiff Sital Prasad Saxena preferred civil appeal No. 36A of 1970 against that judgment and decree of the trial court in the District Court at Gwalior.
The appeal came up for hearing before the learned First Additional District Judge who agreed with the findings recorded by the trial court and accordingly by his judgment and order dated August 4, 1970 dismissed the appeal.
Plaintiff Sital Prasad Saxena preferred second appeal No. 10 of 1971 in the High Court of Madhya Pradesh Jabalpur Bench.
During the pendency of the appeal in the High Court, plaintiff appellant Sital Prasad Saxena expired on February 25, 1976.
One Mahendra Kumar Saxena claiming to be one of the sons of late Sital Prasad Saxena moved an application being I.A. No. 5582 of 1978 under Order XXII, rule 3 of the Code of Civil Procedure for 661 substitution of heirs and legal representatives of the deceased appellant with a view to prosecuting the appeal.
He simultaneously moved another application being I.A. No. 5744 of 1978 under Order XXII rule, 9 CPC requesting the Court that if the appeal has abated for failure to seek substitution within the prescribed period of limitation, the abatement of the appeal may be set aside.
He also moved another application being I.A. No. 5745 of 1978 for seeking condonation of delay under section 5 of the .
A learned Single Judge of the High Court by his order dated January 29, 1981 directed that all the three miscellaneous applications be transmitted to the trial Court for enquiry and report regarding the date of death of Sital Prasad Saxena and knowledge about the pendency of the appeal of the heirs and legal representatives in order to as certain whether the applicant had made out sufficient, cause for condoning the delay which if permitted, would enable the Court to set aside the abatement.
The trial Court after recording the evidence of the parties submitted the report which in terms included a finding that Mahendra Kumar Saxena had knowledge about the pendency of the second appeal before October 7, 1978, the date on which he moved the aforementioned applications.
It appears that on the receipt of the report of the trial Court Mahendra Kumar Saxena and other legal representatives of the deceased appellant move an application being I.A. No. 2722 of 1981 praying for an opportunity to examine another son of the deceased appellant, viz., Shailendra Kumar Saxena.
They also filed objections controverting the finding recorded by the trial Court.
It appears that the Union of India resisted the applications contending that the petitioner has failed to make out sufficient cause for the delay in seeking substitution and therefore no case is made out for condoning the delay and setting aside abatement.
The position adopted by Union of India is a bit surprising for us.
The High Court after minutely examining the rival contentions held that the conclusion reached by the trial Court is such that the learned Judge would not like to take a different view of the matter.
The approach of the High Court suggests that it was exercising revisional jurisdiction while examining the report of the trial Court.
This approach does not commend to us.
Accordingly the learned Judge rejected the various applications thereby declining to condone the delay which alone would permit him to set aside the abatement with 662 the result that appeal was disposed of as having abated.
Hence this appeal by special leave.
We heard Mr. S.S. Khanduja, learned counsel for the appellants and Mr. G.D. Gupta, learned counsel for the respondents Approach to the applications seeking condonation of delay in moving the application for substitution of parties who died during the pendency of civil appeal in the High Court has to be as observed by this Court in Bhagwan Swaroop vs Moolchand and Hans Raj vs Sunder Lal Aggarwal.
In the present case the High Court unfortunately committed an error in rejecting the application for condoning the delay.
It is the High Court which had to satisfy itself that the petitioner made out sufficient cause which prevented him from moving the application for substitution in time and not the trial Court.
The High Court may call for report of the trial Court but then cannot adopt the approach of a court exercising revisional jurisdiction.
It must examine the material collected by the trial Court and come to its own conclusion.
In this case the High Court observed that it was not persuaded to take a view different from the one taken by the trial Court.
This is impermissible.
The second error was that once an appeal is pending in the High Court, the heirs are not expected to keep a constant watch on the continued existence of parties to the appeal before the High Court which has a seat far away from where parties in rural areas may be residing.
And in a traditional rural family the father may not have informed his son about the litigation in which he was involved and was a party.
Let it be recalled what has been said umpteen times that rules of procedure are designed to advance justice and should be so interpreted and not to make them penal statutes for punishing erring parties.
The deceased appellant has left behind him his sons.
It is a moot point whether the father acquainted his son/sons about his litigation for seeking relief in respect of his service.
If this is the nature of litigation, we are not inclined to draw the inference drawn by the trial court that son/sons knew about the pendency of appeal.
Having heard learned counsel on either side we are satisfied that both the trial court as well as the High Court were in error in not condoning the delay in seeking substitution of heirs and legal representatives of the deceased/appellant in time.
Cause for delay as urged 663 appears to us to be sufficient which prevented them from moving the petition for substitution.
We are satisfied that sufficient cause was made for condoning the delay.
Accordingly, we first set aside the order passed in I.A. No. 5745 of 1978 under section 5 of the seeking condonation of delay and grant the same.
We set aside the order disposing of the appeal having abated and set aside the abatement.
We condone the delay in seeking substitution and grant substitution.
Accordingly, the heirs and legal representatives who applied for substitution in place of the deceased appellant are directed to be brought on record.
The appeal succeeds to this extent and is allowed and the orders of the High Court herein above set out are set aside and the matter is remitted to the High Court for disposal in the light of the observations made herein.
Since the matter is an old one the High Court may dispose of it as expeditiously as possible.
There will be no order as to costs.
The appeal is disposed of accordingly.
M.L.A Appeal allowed.
[/INST]The appellants and G were convicted of the offence of murder by the Sessions Court on the basis of the evidence of the approver, which it considered reliable, and the confession made by the first appellant which it found to be voluntary and true.
The High Court held that the evidence of the approver as against G was very discrepant and.
unreliable and set aside his conviction but, nevertheless, confirmed the conviction of the appellants.
The appellants appealed to the Supreme Court.
It was found (1) that the statement originally made by the approver as against the second appellant was wholly inconsistent and irreconcilable with the evidence given by him in Court and that the High Court did not consider the question as to whether the approver was a reliable witness at all, (2) that the Magistrate who recorded the confession did not fully comply with the procedure to be adopted to ensure that it was voluntary, (3) that the prosecution story as deposed to by the approver was inconsistent with the material statement in the confession, and (4) that the High Court while deciding whether the confession was voluntary assumed that it was true.
Held, that the conviction of the appellants must be set aside.
The appreciation of an approver 's evidence has to satisfy a double test.
It must show that be is a reliable witness and that his evidence receives sufficient corroboration.
The act of recording confessions under section 164 of the Code of Criminal Procedure is a solemn one and in discharging his duties under the said section the Magistrate must take care to see that the requirements of sub section
(3) Of section 164 are fully satisfied.
When an accused person is produced before the Magistrate by the investigating officer, it is of the utmost importance that the mind of the accused person should be completely freed from any possible influence of the police and he must be sent to jail custody and given adequate time to consider whether he should make a confession at all.
Ordinarily, he should be given at least 24 hours to decide.
Even if a confession is voluntary, it must also be established that it is true and, for that purpose, it is necessary to examine it 123 954 and compare it with the rest of the prosecution evidence and the probabilities of the case.
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<s>[INST] Summarize the judgementvil Appeal No. 41819 of 1989.
From the Judgment and Order dated 29.4.1988 of the Gujarat High Court in F.A. Nos.
848 849 of 1986.
V.B. Patel, D. Patel, T.H Pandey and R.P. Kapur for the Appellant.
Soli J. Sorabjee, Atul Setalwad, N.J. Mehta, P. Shah, S.K. Sharma, section Sharma and P.H. Parekh for the Respondents.
The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J.
This is an application for leave to appeal under Article 136 of the Constitution from the judgment and order of the High Court of Gujarat dated 29th April, 1988.
To appreciate the questions involved herein, few facts have to be emphasized.
In 1978, the State Government of Gujarat undertook a scheme known as 'Bhavnagar City Water Supply Scheme '.
The 322 Scheme was divided into two parts: (i) Raising Main; and (ii) Gravity Main.
Raising Main was divided into two sec tions, namely, 10.1 k.ms.
and 7.4 k.ms.
steel welded pipe line.
On or about 15/16th December, 1978, the State Govern ment issued letter of approval to the bargain between the parties on certain terms.
On 12th January, 1979, two contracts were awarded to the respondent No. 1 for Rs. 1,29,39,691 and Rs.94,30,435 which provided the dates of completion as February 1979 and the 3rd week of September, 1980 respectively.
On 29th March, 1981 the respondent No. 1 filed the Civil Suit No. 588 of 1981 in the City Civil Court with regard to measurements recorded by the Deputy Engineer and alleged underpayments.
On 4th June, 1981, the respondent No. 1 gave notice to the State Government and the petitioner Board requesting for reference of the alleged disputes to the arbitrator under clause 30 of the agreement.
On or about 8th July, 198 1 the respondent No. 1 gave notice under Section 8 of the Arbitra tion Act, 1940 (hereinafter called 'the Act ') calling upon the petitioner to concur in the appointment of one Shri G.G. Vaidhya.
On 21st July, 1981, he withdrew the Civil Suit No. 588 of 1981.
On 6th August, 1981, the respondent No. 1 filed Civil Miscellaneous Application No. 231 of 1981 in the Court of Civil Judge, (SD), Ahmedabad for appointment of the said Shri G.G. Vaidhya as the sole arbitrator.
On 7th November 1981, the petitioner filed reply contesting the arbitrabili ty of the various claims made in the application and inter alia contending that the application was not maintainable.
On or about 15th December, 1981 the learned Civil Judge appointed Shri G.G. Vaidhya as the sole arbitrator with a direction that he should first decide as to which disputes fell within the purview of clause 30 of the agreement.
On 5th May, 1982, Shri Vaidhya gave an interim award holding that the claims at section Nos.
10(g) and 10(1) only were not arbitrable and further that the other claims were arbitra ble.
A petition was filed in High Court which was dismissed and then there was an application to this Court under Arti cle 136 of the Constitution which was disposed of by consent on 30th November, 1983.
The said order inter alia provided that the parties had agreed to settle the matter amicably and one Shri Mohanbhai D. Patel, Retired Secretary, Public Works Department, Gujarat and at that time Sitting Member of the petitioner Board was appointed as the sole arbitrator in place of Shri Vaidhya to decide all disputes between the parties relating to the following works: "i) providing, fabricating, laying and joint ing 1000 mm dia.
10,000 M long steel welded pipe line under Bhavnagar 323 Emergency Water Supply Scheme based on She trunji Dam Agreement No. 5/2 1 of 1978 79.
ii) providing, fabricating laying and jointing 1000 mm dia 7,400 M long steel welded pipe line under Bhavnagar Emergency Water Supply Scheme based on Shetrunji Dam Agreement No. B 2/2 of 1978 79.
" It was further provided that all disputes concerning the said two works in question should be referred to the sole arbitrator and the Board could also be entitled to put counter claims before him.
The consent terms also provided the following terms: "That the arbitration proceedings shall be started de novo meaning thereby that the earlier appointment and proceedings before the Sole Arbitrator Shit G.G. Vaidhya shall be inoperative and void.
That the Board shall have a right to agitate all points both in fact and in law before the Sole Arbitrator as per the terms and condi tions of the contract including the question of arbitrability within the meaning of clause 30 of the contract.
Both parties shall have a right to be repre sented by an Advocate and/or their representa tives.
The expenses of arbitration shall be borne by .both the parties as per rules of Govern ment in this behalf.
That both parties shall agree to extend time as and when necessary for competition of arbitration proceedings.
That a formal agreement for arbitration shall be executed between the parties defining the scope of Arbitration.
_ That the provisions of the Indian shall apply to the proceedings before this Sole Arbitrator." On 31st March, 1984, Shri M.D. Patel was appointed as the sole arbitrator jointly by the parties, and on 2nd April, 1984 he accepted his appointment and directed the parties to file their claim statements within 15 days.
Thereafter, the respondent No. 1 filed claim to the tune of Rs.4,92,20,683 and a counter claim to the extent of 324 Rs.26,87,217.40.
On 22nd August, 1984 the parties appeared before the arbitrator after filing of claims and counter claims.
On 1st October, 1984 the petitioner filed an application before the arbitrator praying that preliminary issues be raised and decided first as to which of the disputes were arbitrable under clause 30 Of the agreement.
On 8th July, 1985, a lumpsum award was made by the arbitrator, and on 19th July, 1985 the parties were informed about the signing of the award.
On the same day the award filed by the re spondent No.1 's Advocate which was dated 8.7.1985 was regis tered as Civil Miscellaneous Application No. 144/85.
There after, notice was issued on the same day and served on the petitioner also on the same day.
The petitioner filed objec tions to the award and the Objection Petition was registered as Civil Miscellaneous Application No. 158/85.
Reply to the objections was filed by the respondent No. 1.
On 17th June, 1986, however, the learned Civil Judge directed that decree be passed in terms of the award.
Two appeals were filed by the petitioner.
On the 29th April, 1988 the High Court by a judgment dismissed the petition challenging the award and upheld the award.
Aggrieved thereby, the petitioner has moved this Court as mentioned hereinbefore.
Various grounds were urged in support of this applica tion.
It was contended, firstly, that there was an error apparent on the face of the award and that the award was bad.
It was submitted that the arbitrator had committed an error of law in not deciding or disclosing his mind about the arbitrability of claims or counter claims, more so when the Board 's application for deciding the same, was pending before the arbitrator.
Before the learned Trial Judge the Board had submitted an application to the arbitrator seeking to raise a preliminary issue regarding arbitrability of the claims.
As noted by the learned Trial Judge, it appears that the third meeting specifically mentioned that the claims were placed before the arbitrator and their contentions about the arbitrability were considered.
So, these issues were gone into and it appears that the parties had agreed and proceeded on the basis that the claims may be examined and it was not necessary to decide preissue of arbitrability and it was agreed that aH the claims be decided claimwise.
So, it cannot be said that the arbitrator had acted arbi trarily in discussing all the questions raised before him without first deciding the question of arbitrability or non arbitrability of an issue as such.
The Court in its judgment has discussed the conduct of the parties.
It appears that the Court found that the par ties themselves had 325 agreed that the arbitrator should decide claimwise and on merit.
The Court so found, and in or opinion, rightly.
The arbitrator so proceeded.
There was no error committed by the arbitrator in so conducting himself.
It was, secondly, contended that out of the numerous claims before the arbi trator, some of which, according to the petitioner, were ex facie not arbitrable and some were withdrawn including the claims for interest of Rs.54,61,073 and compound interest of Rs.82,26,039.
and in the award no basis or indication was given as to which claim was rejected and further of the amount which was awarded as claim and what amount towards element of interest.
It was, thirdly, contended that there was an error apparent on the face of the award inasmuch as the basis on which interest has been awarded has not been disclosed and whether the interest has been awarded from the date of the institution of the proceedings.
It was, fourth ly, contended that granting of interest pendente lite was contrary to the decision of this Court.
It was, lastly, contended that non speaking award had resulted in great prejudice inasmuch as against the claim of Rs. 1 lakh, Rs.57 lakhs have been awarded.
The scope and extent of examination by the Court of the award made by an arbitrator has been laid down in various decisions.
It has to be noted that there is a trend in modern times that reasons should be stated in the award though the question whether the reasons are necessary in ordinary arbitration awards between the parties is pending adjudication by the Constitution bench of this Court.
Even, however, if it be held that it is obligatory for the arbi trator to state reasons, it is not obligatory to give any detailed judgment.
An award of an arbitrator should be read reasonably as a whole to find out the implication and the meaning thereof.
Short intelligible indications of the grounds should be discernible to find out the mind of the arbitrator for his action even if it be enjoined that in all cases of award by any arbitrator reasons have to be stated.
The reasons should not only be intelligible but should also deal either expressly or impliedly with the substantial points that have been raised.
Even in a case where the arbitrator has to state reasons, the sufficiency of the reasons depends upon the facts and the circumstances of the case.
The Court, however, does not sit in appeal over the award and review the reasons.
The Court can set aside the award only if it is apparent from the award that there is no evidence to support the conclusion or if the award is based upon any legal proposition which is erroneous.
See the observations of this Court in Indian Oil Corporation Ltd. vs Indian Carbon Ltd.; , 326 In the instant case, the arbitrator by virtue of the terms mentioned in the order of this Court had to decide which of the disputes were arbitrable and which were not.
It is true that the arbitrator has not specifically stated in the award that he had to decide the question of arbitrabili ty.
The arbitrator has rested by stating that he had heard the parties on the point of arbitrability of the claim and the ,counter claim.
He has further stated that after 'con sidering all the above aspects ' and 'the question of arbi trability or non arbitrability ' he had made the award on certain aspects.
Reading the award along with the preamble, it appears clear that the arbitrator had decided the arbi trability and the amount he has awarded was on the points which were arbitrable.
The contention that the arbitrator had not decided the question of arbitrability as a prelimi nary issue cannot also be sustained.
A reference to the arbitrator 's proceedings which were discussed in detail by the High Court in the judgment under appeal reveal that the procedure adopted by the arbitrator, i.e., that he will finally decide the matters, indicated that the parties had agreed to and the arbitrator had proceeded with the consent of the parties in deciding the issues before him and in not deciding the question of arbitrability as a separate, dis tinct and preliminary issue.
The arbitrator has made his award beating all the aspects including the question of arbitrability in mind.
It was contended before us that the arbitrator has made a non speaking award.
It was obliged to make a speaking award, it was submitted by terms of the order of this Court.
We cannot sustain this submission because it is not obligatory as yet for the arbitrator to give reasons in his decision.
The arbitrator, however, has in this case indicated his mind.
It appears to us that the point that the non speaking award is per se bad was not agitated before the High Court.
We come to that conclusion from the perusal of the judgment under appeal though, howev er, this point has not been taken in the appellant 's appeal.
It is one thing to say that an award is unintelligible and is another to say that the award was bad because it was a non speaking award.
The point taken was that the award was unintelligible and not that it was non speaking.
But there was nothing unintelligible about the award.
We were invited to refer the matter to the Constitution Bench and await the disposal of this point by the Constitu tion Bench.
The contract in this case was entered into in 1978.
The proceedings for initiation of arbitration started in 1981.
The matter had come up to this Court before which resulted in the order dated 30th November, 1983.
Pursuant thereto, the award has been made and no grounds specifically were urged though they were taken in the appeal in the High 327 Court in the arguments before the High Court about the award being bad because it is non speaking.
In those circum stances, it will not be in consonance with justice for us to refer the matter to the Constitution Bench or to await the disposal of the point by the Constitution Bench.
It was further submitted before us that the award was unreasonable and that the arbitrator had awarded a large amount to money but the original claim was not so large and as such the award was disproportionate.
This contention, as it is, it appears from the judgment of the High Court, was not urged and canvassed before the High Court.
The claim and the counter claim together in its totality, in our opinion, does not make the award amount disproportionate.
Reasonableness as such of an award unless the award is per se preposterous or absurd is not a matter for the court to consider.
Ap praisement of evidence by the arbitrator is ordinarily not a matter for the court.
It is difficult to give an exact definition of the word 'reasonable '.
Reason varies in its conclusions according to the idiosyncrasy of the individual and the times and the circumstances in which he thinks.
The word 'reasonable ' has in law prima facie meaning of reasona ble in regard to those circumstances of which the actor, called upon to act reasonably, knows or ought to know.
See the observations on this point in Municipal Corporation of Delhi vs M/s. Jagan Nath Ashok Kumar & Anr., ; Judged by the aforesaid yardstick the award cannot be condemned as unreasonable.
There is, however, one infirmity in the award which is apparent on the face of the award which in the interest of justice as the law now stands declared by this Court, we should correct, viz., the question of interest pendente lite.
The right to get interest without the intervention of the Court and the powers of the court to grant interest on judgment have been examined by this Court in Executive Engineer (Irrigation) Balimela and Ors.
vs Abhaduta Jena & Ors., [1988] 1 SCC 418 which observations were also followed by this Court in State of Orissa & Ors.
vs Construction India, [1987] Supp.
SCC 709.
In accordance with the princi ples stated therein and the facts in this case, it appears that the principal amount awarded is Rs.57,65,273.
This is confirmed.
In this case, 2nd April, 1984 is the date of the reference to arbitration, on 22nd August, 1984 the arbitra tor entered upon the reference.
8th July, 1985 is the date of the award and 19th July, 1985, is the date of the publi cation of the award.
The interest awarded, in the instant case, covers three periods: (i) 6th August, 1981 to 21st August, 1984 prior to the commencement of the arbitration proceedings; (ii) 22nd August, 1984 to 19th July, 328 1985 pendente lite; and (iii) 19th July, 1985 to 17th June, 1986 (date of award to date of decree).
Having regard to the position in law emerging from the decision of this Court in Executive Engineer (Irrigation) Balimela & Ors.
(supra) and section 29 of the and section 34 of the Code of Civil Procedure, we would modify the grant of interest in this case.
The arbi trator has directed interest to be paid at 17% per annum from 6.8.1981 upto the date of decree viz., 17.6.1986.
Since in this case the reference to arbitration was made after the commencement of the , the arbitrator under section 3(1)(a) of the said Act was entitled to award inter est from 6.8.1981 till 21.8.1984 in view of this Court 's decision in Abhaduta Jena 's case (supra).
In the light of the same decision, he could not have awarded interest for the period from 22.8.1984 till the date of the publication of the award viz. 19.7.
So far as interest for the period from the date of the award (19.7.1985) till the date of the decree is concerned, the question was not specifical ly considered in Abhaduta Jena 's case (supra) but special leave had been refused against the order in so far as it allowed interest for this period.
We think interest should be allowed for this period, on the principle that this Court can, once proceedings under sections 15 to 17 are initiated, grant interest pending the litigation before it, i.e., from the date of the award to the date of the decree.
It may be doubtful whether this can be done in cases arising before the in view of the restricted scope of section 29 of the .
But there can be no doubt about the court 's power to grant this interest in cases governed by the as section 3(1)(a) which was applied by Abhaduta Jena to arbitrators will equally apply to enable this Court to do this in these proceedings.
In this connection, it is necessary to consider whether the date of commencement of the arbitration proceedings should be taken as the date of the reference or the date on which the arbitrator entered upon the reference as the date of the calculation of interest.
In this case, the proceed ings commenced on 2nd April, 1984 and the arbitrator entered upon the reference on 22nd August, 1984.
Having regard to the facts and the circumstances of the case, it is neces sary, in our opinion, to take 22nd August, 1984 as the date.
It is also necessary to consider whether the date of award should be taken as the date of its making or its publica tion.
The award was made on 8th July, 1985 and it was pub lished on 19th July, 1985, and, therefore, the latter date would be taken as the date of the award.
329 We would, however, delete the interest awarded by the arbitrator for the period from 22.8.1984 till the date of the award and confine the interest on the principal sum of Rs.57,65,273 to interest at 9 per cent from 6.8.1981 till 21.8.1984 (which has been worked out at Rs.29,82,443).
However, in exercise of our powers under section 3 of the and section 29 of the , we direct that the above principal sum or the unpaid part thereof should carry interest at the same rate from the date of the award (19.7.1985) till the date of actual pay ment.
The appeals are disposed of in the above terms.
N.V.K. Appeals disposed of.
[/INST]In 1978 the State Government undertook the construction of the 'Bhavnagar City Water Supply Scheme ', and on 12th January, 1979, two contracts in respect thereof were awarded to respondent No. 1.
On 29th March, 1981, respondent No. 1 filed a civil suit with regard to measurements recorded by the Deputy Engineer and alleged underpayments.
On 14th June, 1981, he gave notice to the State Government and the peti tioner Board requesting for reference of the disputes to an arbitrator as provided for under clause 30 of the Agreement, and gave notice under section 8 of the calling upon the petitioner to concur in the appointment of one Shri G.G. Vaidhya.
On 6th August, 1981 respondent No. 1 filed a civil miscellaneous application for appointment of the said Shri G.G. Vaidhya as the sole arbitrator after withdrawing the civil suit.
The petitioner contended that the application was not maintainable.
The Civil Judge howev er appointed the said Shri G.G. Vaidhya as sole arbitrator.
The arbitrator gave an interim award holding that only two claims were not arbitrable and that the other claims were arbitrable.
The High Court having dismissed the appeal, a further appeal was filed in this Court.
This appeal was, however, disposed of by con 319 sent on 30th November, 1983 to the effect that a retired Secretary, Public Department who was at that time sitting member of the petitioner Board be appointed as the sole arbitrator to decide all the disputes between the parties.
On 8th July, 1985, this sole arbitrator made a lump sum award.
The Civil Judge directed that the decree be passed in terms of the award, rejecting the objections of the peti tioner.
The High Court by a common judgment dismissed the two appeals of the petitioner challenging the award.
In the appeals to this Court by special leave, it was contended: (1) that the arbitrator had committed an error of law in not deciding or disclosing his mind about the arbi trability of the claim or counterclaims, (2) in the award no basis or indication was given as to which claim was reject ed, and further what amount was awarded as claim and what amount towards element of interest, (3) there was an error apparent on the face of the award inasmuch as the basis on which interest had been awarded had not been disclosed and whether the interest has been awarded from the date of the institution of the proceedings, (4) that the granting of interest pendente lite was contrary to the decision of this Court and (5) that the non speaking award had resulted in great prejudice to the petitioner inasmuch as against the claim of Rs.1 lakh, Rs.57 lakhs had been awarded.
Disposing of the appeals, the Court, HELD: 1(a) There is a trend in modern times that reasons should be stated in the award though the question whether the reasons are necessary in ordinary arbitration awards is pending adjudication by the Constitution Bench of this Court.
Even if it be held that it is obligatory for the arbitrator to state reasons, it is not obligatory to give any detailed judgment.
[325E] 1(b) An award Of an arbitrator should be read reasonably as a whole to find out the implication and the meaning thereof.
Short intelligible indications of the grounds shall be discernible to find out the mind of the arbitrator for his action.
[325F] l(c) The Court does not sit in appeal over the award and review the reasons.
The Court can set aside the award only if it is apparent from the award that there is no evidence to support the conclusion or if the award is based upon any legal proposition which is erroneous.
[325G H] 320 Indian Oil Corporation Ltd. vs Indian Corbon Ltd., ; , referred to.
l(d) It is one thing to say that an award is unintelli gible and it is another thing to say that the award was bad because it was a nonspeaking award.
[326F] In the instant case, the arbitrator, in pursuance to the order of this Court had to decide which of the disputes were arbitrable and which were not.
Reading the award along with the preamble, it appears clear that the arbitrator had decided the arbitrability and the amount which he has award ed was on the points which were arbitrable.
In such circum stances it will not be in consonance with justice to refer the matter to the Constitution Bench or to await the dispos al of the point by the Constitution Bench.
[326B, G] 2.
Reasonableness as such of an award unless per se preposterous or absurd is not a matter for the Court to consider.
Appraisement of evidence by the arbitrator is ordinarily not a matter for the Court.
It is difficult to give an exact definition of the word 'reasonable '.
The word 'reasonable ' has in law, prima facie meaning of reasonable in regard to those circumstances of which the actor, called upon to act reasonably, knows or ought to know.
The award in the instant case cannot be condemned as unreasonable.
[327C D] Municipal Corporation of Delhi vs M/s. Jagan Nath Ashok Kumar & Anr., ; referred to.
The grant of interest pendente lite is however one infirmity in.
the award which is apparent on the face of the award which in the interest of justice should be corrected.
[327E] Executive Engineer (Irrigation) Balimela and Ors.
vs Abhaduta Jena & Ors., [1988] 1 SCC 418 and State of Orissa & Ors.
vs Construction India, [1987] Supp.
SCC 709 referred to.
In the instant case, April 2, 1984 is the date of the reference to arbitration, on August 22, 1984 the arbitrator entered upon the reference.
July 8, 1985 is the date of the award and July 19, 1985 the date of publication of the award.
The latter date should be taken as the date of the award.
Since the reference to arbitration was made after the commencement of the the arbitrator under section 3(1)(a) of the said Act was entitled to award inter est from August 6, 321 1981 till August 21, 1984.
He could not have awarded inter est for the period from August 22, 1984 till the date of publication of the award viz. July 19, 1985.
[327G H; 328A] 4.
So far as interest for the period from the date of the award (July 19, 1985) till the date of the decree is concerned, interest should be allowed for this period, on the principle that this Court can, once proceeding under sections 15 to 17 are initiated, grant interest pending the litigation before it, i.e. from the date of the award to the date of the decree.
It may be doubtful whether this can be done ln cases arising before the in view of the restricted scope of section 29 of the .
[328D E] 5.
The interest awarded by the arbitrator for the period from August 22, 1984 till the date of award is deleted; and the interest on the principal sum is confined to 9% from August 6, 1981 till August 21, 1984.
However, exercising powers under section 3 of the and section 29 of the , the Court directed that the principal sum or unpaid part thereof should carry interest at the same rate from the date of the award (July 19, 1985) till the date of actual payment.
[329A B]
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<s>[INST] Summarize the judgementivil 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 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 judgementAppeals Nos. 344 346 of 1960.
Appeals by special leave from the judgment and order dated September 8. 1958, of the Madhya Pradesh High Court (Indore Bench), Indore, in Civil Second Appeals Nos.
11.0 1,12 of, 1952.
section T.Desai and J. B. Dadachanjifor the appellant.
B. Sen,J. Bhave and 1.
N. Shroff,for the respondent.
July 17.
The Judgment of the Court was delivered by HIDAYATULLAH, J.
These three consolidated appeals by special leave are against a common judgment and order of the High Court of Madhya Pradesh, dated September 8, 1958, in three second appeals filed under R. 13 of the Indore Industrial Tax Rules, 1927 of the former Holkar State, which were in force before the State became part of Madhya Bharat State.
They concern three assessments relating to the assessment years, 1941,1942 and 1943 respectively.
These second appeals were originally filed in the Madhya Bharat High Court as early as 1952 ; but the records of the appeals 'were destroyed by fire and had to be reconstructed.
By the time the appeals were ready, Madhya Bharat had merged in the new state of Madhya Pradesh, and the appeals were accordingly heard by a Divisional Bench of that High Court.
The appellant is a Textile Mill and a public Joint Stock Company called the Nandlal Bhandari Mills, Ltd. The appellant had appointed a" firm, Messrs Nandlal Bhandari and Sons as agents, secretaries and treasurers of the Mills, and under cl.
(6) of the agreement of agency, it agreed to pay to the agents an office allowance, commission on the Company 's net profits and commission on the sale proceeds.
of sales of yam, cloth, etc.
The 861 remuneration of the agents for the three accounting years was as follows : ___________________________________________________________ Remuneration As per Accounting Years, agree ment.
1941 1912 1943 Rs. Rs. Rs. __________________________________________________________ Clause 6 1500 18,000 18,00018,000 (a) Fixed P.M. for the for the monthly allow year.
ance as office allowance.
(b) Commission @ 16% 2,68,335 6,15,946 10,52,939 on the Com net on painy 's Net profits Profits.
(c) Commission @ 1 9 0 1,10,156 1,10156 1,64,751 2,71,672 on the sale Per Cent, proceeds of on sales sales of yarn, cloth etc.
___________________________________________________________ In computing the tax, the Mills claimed to deduct under R. 3(2)(ix) of the Rules the above amounts paid as remuneration.
The Rule reads : "(ix) any expenditure (not being in the nature of capital) incurred solely for the purposes of earning such profits or gains." The Assessing Officer accepted the appellant 's claim for deduction but only as.
to a part.
We are not required in these appeals to consider the correctness of the quantum of the deduction in view of what transpired later.
The Assessing Officer also disallowed certain other claims made by the appellant, which again need 'not be mentioned.
The appellant then.
appealed to the Appellate Authority, and on December 31, 1951 the Appellate Authority, while accepting some of 862 the appellant 's other contentions upheld the order refusing to deduct the agent,s commission on profits under R. 3(2)(ix).
Three second appeals were preferred in the Madhya Bharat High Court under R. 13 of the amended Rules.
They were dismissed by the High Court of Madhya Pradesh, and hence the present appeals.
The Indore Industrial Tax Rules were first promulgated in 1926 by a Cabinet Resolution (No. 373 dated March 22, 1926).
In 1927, by, Cabinet Resolution No. 1991 dated November 23 1927, the Rules were modified, and the new Rules, were made applicable retrospectively from May 1, 1926.
These Rules were framed for the levy of the tax and for ascertainment and determination of the income of cotton mills.
The taxcalled the "Industrial Tax" was leviable under R. 3, which imposed the charge.
It says that the Industrial Tax shall be payable by an assessee in respect of the profits or gains of any Cotton Mill industry carried on by him in the Holkar State.
Sub r.
(2) of R. 3 provides that such profits or gains are to be computed after making allowances, inter alia, for any expenditure incurred solely for the purpose of earning such profits or gains, R. 6, which is a part of the Rule imposing a charge, lays down the rates which are : (a) on all incomes up to Rs. 50,000, at 1 1/2 annas per rupee, and (b) above, at 2 1/2 annas per rupee.
The short question thus was whether in computing the profits and gains of the appellant, the remuneration paid to the agents was deductible under R. 3 (2) (ix).
It is necessary At this stage to see the legislative machinery existing in the Holkar State in 1927 and onwards.
On February 27, 1926, His Highness Maharaja Tukoji Rao III abdicated, and, his son, H.H. Maharaja Yeshwant Rao Holkar, became the Ruler, whose installation ceremony ' was performed on March 11, 1926.
A Regency Council was appointed under the orders of the 863 Government of India for the administration ' of the State during the minority of the Maharaja.
This Regency Council, which was called the Cabinet, was entrusted with the administration of the State according to existing rules and practice, under the supervision and with the advice of the Agent to the Governor General in Central India.
Prime Minister of the State was the Chairman.
H. H. Maharaja Yeshwant Rao Holkar attained majority on September 6, 1929 and resumed sovereign powers on May 9, 1930.
It was during the minority of the Ruler that the Cabinet had promulgated the amended Rules of 1927.
In 1931, the decision of the Privy Council in the well known case of Pondicherry Railway Co., Ltd. vs Commissioner oF Income tax (1) was rendered.
In that case, a Railway Company had agreed to make over to the French Colonial Government half of the Company 's net profits in consideration of a 99 year concession.
This was sought to be deducted by the Company from its assessable profits as an expenditure incurred solely for the purpose of earning such profits.
The Privy Council disallowed the deduction.
Lord Macmillan observed as follows : "A payment out of profits and conditional on profits being earned cannot accurately be described as a payment made to earn profits.
It assumes that profits have first come into existence.
But profits on their coming into existence attract tax at that point and the revenue is not concerned with the subsequent application of the profits.
" It seems that, as a result of this decision, a notification was issued in August, 1931, and another on February 2/3, 1932 by the Commerce.
and Industry Department of the Holkar State.
The latter notification reads as follows (1) (1931) L.R. 38 I.A. 239. 864 "Commerce and Industry Department Notification.
Notification No. 1 dated the 2nd/3rd Feb. 19 32.
In continuation of this office Notification No. 4733 dated the 6th December, 1927 (Vide Issue No. 11 dated the 12th December, 1927, of the Holkar Sirkar Gazette) embodying modified rules for the levy of the Industrial Tax the Cabinet,in their Resolution No. 1072 dated the 25th August, 1931, have ordered that the Agents ' Commission on 'Profits ' should not be allowed to be deducted from the assessable profits.
" It is, to be noticed that this notification refers to the earlier notification No. 4733 of December 6, 1927, under which were published the amended Industrial Tax Rules, 1927, and to the notification of August 1931.
The latter has not been produced before us.
This notification led to representations by the persons affected by it.
The Maharaja of Holkar thereupon referred the matter for the opinion of the, Full Bench of the High Court of the State.
It appears that the opinion of the High Court was in favour of disallowing such deductions.
On July 14, 1933, another notification (No. 13) was issued which reads as follows : "In continuation of this office Notification No. 1 dated 3rd February,, 1932, it is hereby published for the information of the mills and factories concerned that on submission of the Prime Minister 's (Legal Department) report No. 25 dated 11th May, 1933, His Highness the Maharaja is please to order (vide Huzur Shri Shankar, Order No. 173 dated 29th June,1933) that the opinion of the Full Bench of the High Court being that the Managing Agent 's Commission an profit 's is 865 not an item of expenditure incurred solely for the purpose of earning the said profit within the meaning of Rule 3(2)(ix) of the said Industrial Tax Rules and this being.
also the view of the Cabinet as expressed in their resolution No. 1072 dated 28th August, 1931, the aforesaid Cabinet Resolution be given effect to and the industrial tax due on the amount of the managing agent 's commission on profits be recovered with effect from the date of the said Cabinet Resolution.
" This notification, it is contended before this Court had not the force of law and was not enforceable against the appellants, who claim that they are entitled to show that the remuneration paid to the agents was deductible from the profits of the Mills before.
computing the Industrial Tax.
In this connection, the appellants wish to use the later decisions of the House of Lords in The Union Cold &wage Co., Ltd. vs Adamson(1) and of the Privy Council in The Indian Radio and Cable Communication Co., Ltd. vs Commissioner of I Income tax (2), in which the decision in the Pondicherry Railway Company case (3) was explained.
In the case before the Privy Council, Lord Maugham observed: "It is not universally true to say that a, payment the making of which is conditional on profits being earned cannot properly be described as an expenditure incurred for the purpose of earning such profits.
The typical exception is that of a payment to a, director or a manager of a commission on the profits of a company '.
If a company having made; an apparent net profit, of pound 10,000 has then to pay pound 1,000 to directors, or managers as the contractual recompense for their service during the year, it: is plain that the real net profit is only pound 9,000.
" (1) (2) (3) (1931) L.R. 58 (1) A. 239.
866 Lord Macmillan in the former case observed that the Pondicherry Railway Company case (1) must be read in the context of the facts of that case, and the obligation was first to find out the net profits of the company and then to divide them.
These two sets of cases proceed upon different principles.
If the agreement is to share the profits the expenditure cannot properly be treated as one incurred solely for the purpose of earning such profits; but if a slice of the profits is;to be paid to persons as remuneration to help in the earning of the profits, the deduction can be claimed.
All this would of course be pertinent to consider, if there was no legislative enactment on the subject.
If the matter was not one concluded by law, then there would be room for judicial interpretation of the Rule.
The rival claims in these appeals are thus confined to the legislative force of the notifications issued in 1931, 1932 and 1933 respectively,.
The appellant 's contention is that the notifications were not an act of legislation but an interpretation by the Sovereign.
Mr. Desai concedes that if they be regarded as legislation, then the later decisions of the Privy Council and some of this Court cannot be called in aid, because where the law itself speaks with clarity, judicial interpretation is out of place.
He contends, how ever that the two notifications were not framed as rules and were not expressly stated to be amendments of the rules then existing.
He points out that after the first notification which was nothing more than an administrative direction to the assessing officers to include in the profits the remuneration of the agents, the opinion of the High Court was obtained, and the second notification merely pointed out that the earlier notification was to be given effect to, and did no more than add a second administrative direction.
On the other side, it is contended that the Cabinet could make laws as often as it pleased and that (1) (1931) L. R. 58 I. A. 239.
867 the notifications must be read either as independent rules or as a legislative explanation of R. 3 (2) (ix).
In so far as the legislative supremacy of the Cabinet was concerned, no question was raised before us.
When the Indore Industrial Tax Rules, 1926 were framed, they came into existence by virtue of a Cabinet Resolution of that year.
When they were modified, they were superseded by yet another Cabinet Resolution of the year 1927, which promulgated the new Rules with retrospective effect from May 1926.
The source of the Rules 'was thus a Resolution of the Cabinet on both the occasions, and it is not denied that the Rules thus framed had legislative sanction and were unquestionable.
When the Cabinet promulgated its notifications in 1931, 1932 and 1933, it followed the same procedure, and it stated that the notification of 1932 was " 'in continuation of this office Notification No. 4733 dated December 6, 1927.
" This has reference to that notification under which the Indore Industrial Tax Rules, 1927 were orginally published.
From this, it follows that new Rules were framed by a resolution of the Cabinet and were promulgated by a notification in the Gazette as part of the Rules.
The mode followed in 1926 and 1927 was repeated in 1932 and 1933 and also presumably in 1931, though the notification of that year has not been printed in the record of this case.
This view was taken by the Full Bench of the ' Madhya Bharat High Court in Raj Kumar Mills Ltd. vs Madhya Bharat State (1).
The question which is involved in these appeals also arose in that case.
It was observed by the Full Bench : "This Notification makes it abundantly clear that His Highness the Maharaja ordered that the industrial tax due on the amount of the managing agent 's commission on profits be recovered.
This being.
an order of the (1) A.I.R. 1953 Madbya Bharat 135. 868 ruler, who enjoyed sovereign Powers, that order is not open to challenge.
This is a mandate emanating from a sovereign and as such has the force of law.
This Court has, therefore, no power to go behind the order and enquire as to whether the managing agent 's commission on profits is an item of expenditure solely incurred for the 'purpose of earning profits or not: In this view of the matter the point at issue is concluded by Huzur Shri Shanker order No. 173 dated 29th June, 1933.
" Thus view was affirmed by the High Court of Madhya Pradesh in the judgment under appeal.
In our judgment, the two notifications cannot be described as "judicial ,interpretation".
If any this, they must be interpreted as legislative exposition of R. 3(2)(ix) and in the nature of an explanation.
This Court in Ameer un nissa Begum vs Mahboob Begum in dealing with the 'Firmans" of His Exalted Highness the Nizam of Hyderabad, observed as follows : "It cannot be disputed that prior to the integration of Hyderabad State with the Indian Union and the coming into force of the Indian Constitution, the Nizam of Hyderabad enjoyed uncontrolled sovereign powers.
He was the supreme legislature, the supreme judiciary and the, supreme head of the executive, and there were no ;constitutional limitations upon his authority to act in any of these capacities.
The 'Firmans ' were expressions of the sovereign will of the Nizam and they were binding in the same way as any other law; nay they would override all other laws which were in conflict with them.
so long as a particular 'Firman ' held the field, that alone would govern or regulate (1)A.I.R. 869 the rights of the parties concerned, though it could be annulled or modified by a latter 'Firman ' at any time that the Nizam willed.
" The same can be said of the Ruler of the Holkar State.
When to the order of the Ruler was added the usual mode of making and promulgating rules, the position which emerges is really unassailable.
Mr. Desai in attempting to show that the ruling does not apply to the case, raised two contentions.
The first was based upon a more recent decision of this Court in Madhaorao vs State of Madhya Bharat (1), where certain Kalambandis of the Maharaja of Gwalior were considered.
This Court in deciding whether the Kalambandis were existing law under article 372 of the Constitution, observed : "In dealing with the question as to whether the orders issued by such an absolute monarch amount to a law or regulation having the force of law, or whether they constitute merely administrative orders, it is important to bear in mind that the distinction between executive orders and legislative commands is likely to be merely academic where the Ruler is the source of all power.
There was no constitutional limitation upon the authority of the Ruler to act in any capacity he liked ; he would be the supreme legislature, the supreme judiciary and the supreme head of the executive, and all his orders, however issued, would have the force of law and would govern and regulate the affairs of the State including the rights of its citizens.", It was, however, pointed out in the case that even where an order is issued by the sovereign ruler, one must look to the character of the order and its content to find out whether it enacted a binding rules (1) ; 870 Mr. Desai has constructed his entire argument on the basis of these observations, and has contended that the orders only expressed an opinion and did not bind.
He pointed out as the second limb of his argument that these notifications were not expressed as a rule but as an order, and that they did not seek to amend the rules, nor to add to them.
He referred to other notifications in which a legislative act was clearly discernible, as for example, Notification No. 22/Com.
dated May 17, 1946, by which for the existing Rule 4, a new Rule was substituted.
An examination of the Rules, however, shows that there was no set pattern of language.
Some of the Rules do not read like rules at all.
Notes have been appended to the rules, which are not rules proper, and R. 29 says : "All matters not dealt with in these rules may be submitted to the member incharge., Commerce and Industry Department for decision.
" The existence of such a rule seems to obliterate the frontiers between legislative, judicial and executive exercise of the power of a State, such as we understand it.
There being no invariable use of a clear cut legislative language, each general order emanating from the sovereign ruler and promulgated in the same manner as any other rule and having its roots in a resolution of the Cabinet must be regarded as one binding upon the subject.
This is the purport of the decisions of this Court, and the present case falls in line with those which have been previously decided.
There is nothing in the content, the character or the nature of these notifications, which would put them on a level lower than the Rules, which had been earlier promulgated.
In our opinion., the judgment of the High Court under appeal is correct, and the appeals are accordingly dismissed with costs, one set.
Appeals dismissed.
[/INST]The appellants, one a Sub Divisional Officer and the other a Naib Tehsildar, were entrusted with the duty of allotting land to displaced persons.
The first respondent forcibly occupied the land allotted to B.
On May 9, 1958, the first appellant ordered that B and other allottees similarly situated would be given possession of lands allotted to them on May 20, 1958.
On May 16, 1958.
the first respondent and others threatened with dispossession filed petitions in the High Court under article 226 of the constitution and obtained interim stay of delivery of possession till May 19, 1958, when the petitions would come up before the Division Bench for admission.
On May 19, 1958, the Division Bench extended the operation of the stay order until May 23, 1958.
The notice of the first stay order reached the appellants on May 19, 1958, but no notice of the second order was officially communicated to them till May 21, 1958.
It was alleged that on May 20, 1938, the appellants, although informed of the second stay order by certain interested persons and the Advocate for one of the parties, formally dispossessed the respondent in disobedience of the Court 's order and handed over possession of the land to B. On the complaint of the respondent the High Court field that the .appellants were guilty of contempt of Court and, instead of committing them for contempt, administrated a warning as the appellants honestly believed that they were not bound to stay delivery of possession in absence of an official communication.
The appellants appealed by special leave.
Held, (per Das and Subba Rao, JJ.)that in a case of contempt for disobedience of a prohibitive order, as distinguished from an order of affirmative nature, it was not necessary to show that notice of the prohibitory order was served upon the party against whom it was granted.
It would be sufficient if it was proved that the party had notice of it aliunde.
N.Baksi vs O. K. (Thosh, A. T. R. (19.)7) Patn.
528, referred to.
128 There may be circumstances where officials entrusted with the carrying out of a legal order might have valid reasons to doubt The authenticity of the order conveyed to them by interested parties.
But in the present case there could hardly be any such reasons.
The appellants had really no justification for doubting the authenticity of an order communicated to them by an Advocate.
Held, further.
that in a matter relating to contempt of court, there cannot be both justification and apology.
shareef vs The Hon 'ble Judges of the High Court of Nagpur; , , referred to.
Although the appellants might have honestly believed that they were not bound to bold their band in absence of an official communication, that would be no defence to the charge of contempt of court, but only a relevant consideration in awarding the sentence.
Per Daval, J. Contempt proceedings are criminal or quasi criminal in nature and it is essential that before any action can be taken the accusation must be specified in character.
In the instant case, the respondent did not state that he was formally dispossessed.
This would 'be for some reason if actual posssssion had been delivered.
He could not be said to have come to court with clean hands.
Further, the finding of the High Court that the appellants delivered possession honestly believing that they were not bound not to do so in the absence or the official communication meant that there was no defiance of the High Court 's order.
There could be no willful disobedience since there was no belief in the existence of the order.
It may not be necessary that the party against whom a prohibitory order was made must be served with the order, but it should have notice of the order before it could be expected to obey.
Such notice must be from sources connected with the court passing the order.
The alleged knowledge of the party cannot be made, to depend on the veracity of the witnesses examined by the party praying for action.
In re Bryant L.R (1987 6) In Ex Parte Langly, Exparte Smith.
In re Bishop L. R. and The Seraglio.
L. R. , discussed.
</s>
|
<s>[INST] Summarize the judgementivil Appeal Nos.
1231 of 1973 and 1408 of 197.
(From the Judgment and Order dated 11 5 1973 of the Delhi High Court in Civil Writ No. 690/72).
380 B. Sen, and L N. Shroff for the Appellant (in Appeal No. 1231/73) S.V. Gupte, P.P. Rao and A.K. Ganguli for Respondent Nos. 1 ,.
2, 4, 6 18, 20, 22, 23, 25 32, 34 and 35.
M.K. Ramamurthi, C. N. Murti and R. C Pathak for Re spondent 36.
M.K. Ramamurthi, C.N. Murti and R. C: Pathak for the Appellant (in Appeal No. 1408/74).
P.P. Rao and A.K. Ganguli for Respondents 1.2, 4, 6 18, 20, 22, 23, 25, 32, 34 & 35.
B. Sen and I. N. Shroff for Respondent 36.
The Judgment of the Court was delivered by BHAGWATI, J.
The Reserve Bank of India is the appel lant in ' Civil Appeal No. 1231 of 1973.
This appeal, on certificate, is directed against a judgment of the High Court of Delhi allowing Writ Petition No. 690 of 1972 filed by some of the employees of the Reserve Bank challenging the validity of the combined seniority Scheme issued by the Reserve Bank of India by its Circular dated 13th May, 1972.
This judgment of the High Court is also assailed by the All India Reserve Bank Employees Association (hereinafter referred to as the Association) by preferring Civil Appeal No. 1408 of 1974 after obtaining certificate from the High Court.
Both these appeals have been heard together since they are directed against the same judgment and all the arguments raised on behalf of the appellants are also common except one additional argument advanced on behalf of ,the Association in Civil Appeal No. 1408 of 1974.
The facts giving rise to these two appeals are a little important and it is necessary to state ,them in order to appreciate the questions arising for determination in the appeals.
The primary purpose for which the ,Reserve Bank of India was originally constituted was "to regulate the issue of bank notes and the keeping of the reserves with a view to securing monetary stability in India and generally to oper ate the currency and the credit system of the country to its advantage".
But in course of time other functions came to be added as a result of various statutes passed by the Parliament from time to time to meet the economic needs of the country.
The administrative machinery of the Reserve Bank ' for carrying out these diverse functions was at the material time divided into the following five groups of departments: (1) Group I: General Side.
that is, Banking Department, Issue Department, Public Debt Division and Exchange Control Department; (2) Group II: Department of ' Banking Operations, Development and InduStrial Finance Department and Department of Non banking Companies; (3) Group III: Agricultural Credit Department, (4) Group IV: Economic Department and Department of Statistics and (5) Group V: Industrial Development Bank of India.
The depart ments falling within the first group were known as the general departments, while the departments falling within the other four groups were known as the specialised depart ments.
Though recruitment to these different groups of departments was 381 made on a common basis, each group of departments was treat ed as a separate unit for the purpose of determining the seniority and promotion of the employees within that group and this was done on centrewise basis.
The result was that there was a separate seniority list for the employees in each group of departments at each centre of the Reserve Bank and the employees could seek confirmation and promotion only in the vacancies arising within their own group of departments at their own centre.
There were two grades of clerks in each group of departments, namely, Grade I and Grade II.
The pay scales of Grade I and Grade II clerks in all the groups of depart ments were the same and their conditions of service were also identical.
There was automatic promotion from Grade II to Grade I and when a clerk from Grade II was promoted to officiate in Grade I he got an additional officiating allow ance of Rs. 25/ per month.
While Grade 1 and Grade II clerks in the specialised departments were invariably gradu ates, those in the general departments were not always so.
Some out of them were graduates, while others were non graduates.
There were also several categories of non clerical posts in the general as well as specialised depart ments.
They were in Grade II and the pay scale this Grade was the same as that of Grade II clerks in the general and specialised departments.
It appears from the Circular of the Reserve Bank dated 13th May, 1963 that Stenographers, Typists and Coin/ Note Examiners, though falling within the category of non clerical staff, were sometimes transferred as Grade II clerks and by this circular, it was decided that "with effect from 1st July, 1963, the transfer of staff from one category to another should be governed" by the principles there set out.
Two categories of transfers were contemplated by this Circular: one was transfer by selection and the other was transfer on grounds of health.
The first category of transfers by selection required that the Stenog rapher, Typist or Coin/Note Examiner seeking transfer would have to be a graduate or should have passed both parts of the Institute of Bankers ' Examination and his applica tion for transfer would be considered by the manager from the point of view of his record of service and his suitabil ity for transfer to the clerical grade and he would then have to appear for interview before a selection board and it was only if he was selected that he would be transferred as Grade II clerk.
But once he was transferred as Grade II clerk, his seniority in the new cadre would be counted from the date on which he joined service, as a Typist or Coin/Note Examiner and in the case of a Stenographer, from the date on which he jointed service as a Typist or as a Stenographer in case he was directly recruited as such "provided that the said date shall not_ be earlier than the date on which the transferee acquired the degree or banking qualification by reason of which he became eligible for such transfer: that is to say, in the case of a Coin/Note Examiner/ Typist/Stenographer who graduates or acquires the banking qualifications after the date of his joining serv ice, he will be deemed to have joined service "only o, the date he acquired the said qualification".
382 The second category of transfers was on grounds of health.
However, that is not material for our purpose and we need not consider it.
It seems that in view 'of the expanding activities of the Reserve Bank in the Specialised Departments, there were greater opportunities for confirmation and promotion for employees in the specialised departments as compared to those available to employees in the general departments.
This gave rise to dissatisfaction amongst employees in the general department and they claimed for equalising the confirmation and promotional opportunities by having a combined seniority list for all employees in Class III irrespective of the departments to which they belonged basing promotions on such combined seniority list.
This question was also raised by the Association before the National Tribunal consisting of Mr. Justice K.T. Desai and it was pleaded by the Association that "all promotions should be made strictly according to the combined seniority irrespective of the cadre of department".
The Reserve Bank, on the other hand, sought to justify the maintenance of separate seniority lists for various departments on the ground that the work in each department was becoming more and more of a special nature and inter transferability was not only undesirable in the best interest of the Bank, but it was also hard to achieve.
The National Tribunal, while not accepting the demand of the Association and expressing its inability to give any direction to the Reserve Bank in regard to this question, made the following observations in its Award: " I can only, generally, observe that it is desirable that wherever it is possible, without detriment to the interests of the Bank and without affecting the efficiency, to group employees in a particular category serving in different depart ments at one Centre together for the purpose of being considered for promotion a common seniority list of such employees should be maintained.
The same would result in opening up equal avenues of promotion for a large number of employees and there would be lesser sense of frustration and greater peace of mind among the employees.
" These observations of the National Tribunal were ap proved by Hidayatullah, J., as he then was, speaking on behalf of this Court in All India Bank Employees Association vs Reserve Bank of India(1) at page 57.
In view of these observations of the National Tribu naI, which were endorsed by this Court, the Reserve Bank took the first step towards equalising the confirmation and promotional opportunities of employees in the General Departments by introducing the Optee Scheme of 1965 by a Circular dated 29th June, 1965.
Clause (1) of the Scheme provided that all vacancies in Grade II Clerks occurring in Specialised Departments in each centre upto 30th June, 1970 would be treated as expansion vacancies to be filled up by transfer of confirmed Grade II Clerks including officiat ing Grade I Clerks in the (1) ; 383 General Departments.
The manner in which these vacancies shall be filled was set out in clauses (2) and (3) which read inter alia as follows: "A circular will be issued inviting applica tions in form 'A ' from confirmed graduate Clerks Grade 1I (including officiating Clerks Gr.
I) of the General Side (Group 1) for the preparation of a panel of suitable employees who are willing to opt for transfer to any of the Departments in Groups II, 1II and V at each centre under the optee scheme.
As regards the non clerical staff trans ferred to the clerical cadre, only those who have been absorbed against permanent vacancies of clerks Gr.
II on the General Side will be eligible to opt for transfer.
(i) The panel will be a consolidated one, i.e., separate panels will not be prepared for each of the Departments in Groups II, 1II and V at each centre.
(ii) The option exercised by the employees will be subject to the approval of the 'Manager ' depending on their past record of service and suitability for transfer to departments in Groups II, III and V. (iii) (a) The position of employees on the panel, recruited directly as clerks Gr.
II from the waiting list of graduate clerks Gr.
II will be determined according to their dates of recruitment.
(b) In the case of employees recruited from the waiting list of undergraduate clerks Gr.
II who have become graduates while in service, and in the case of non clerical graduate staff transferred to the clerical cadre, their position in the panel will be determined according to their dates of graduation. (iv) As and when vacancies arise in the Depart ments in Groups II, III and V at each centre, they will be filled up by drawing on the panel, the first vacancy going to the first person on the panel, the second to the second and so on.
An employee will have no choice of the Department to which he will be posted.
The posting will be made in the order in which the vacancies arise.
(v) Officiating clerks Gr.
I will be trans ferred only in their substantive capacity as clerks Gr.
II (vi) (a) The seniority of the optees on transfer to the Departments in Groups II, III and V will be determined on the basis that their trans fers to the concerned Departments have been made in the interest of the Bank, that is to say, the substantive position of the transferee in the seniority list of the Department concerned will be fixed above and employee who joined service after the date of his recruitment 384 or date of graduation as the case may be and below the employee who joined service before the date of his recruitment/graduation . (c) The above method of fixation will, howev er be subject to the provision that if a substan tively junior employee in the Department to which the transferee is posted is already officiating in that Department in a higher grade on a longterm basis on the date the transferee reports for duty that officiating employee will be considered senior to the transferee.
The inter se seniority of the transferee posted to the same Departments in Group II, III and V will be fixed in the order in which their names are listed in the panel . (viii) The panel will be revised annually.
" It will be seen that under the Scheme the option to go over to the Specialised Departments was confined to confirmed Grade II Clerks.
and offici ating Grade 1 Clerks in the General Departments.
But there also, every Grade II Clerk and Officiat ing Grade I Clerk was not entitled to be absorbed in the Specialised Departments as of right, but he had to go through a process of selection and the option exercised by him was "subject to the approv al of the Manager depending on his past record of service and suitability for transfer" to the Spe cialised Departments.
If he exercised the option and was selected, he would be entitled to be ab sorbed only as Grade II Clerk in one of the Specia lised Departments with the result that if he was an officiating Grade I Clerk in the General Depart ments at the time of the exercise of the option, he would lose the benefit of officiation in Grade I in the General Departments as also the monetary bene fit of Rs. 25/ per month which he was getting during such officiation.
His seniority in the cadre of Grade II Clerks in the SpeciaIised Department in which he was absorbed would be liable to be deter mined on the basis of his length of service calcu lated from the date of his recruitment if he was also a graduate when he joined service or from the date of his graduation if he became a graduate whilst in service.
The rationale behind this provision obviously was that graduation being_ regarded as essential qualification for being a Grade II Clerk in the Specialised Departments, the length of service from the date of graduation alone.
should be taken for the purpose of determin ing the seniority of transferees from the General Departments.
The petitioners in Writ Petition No. 690 of 1972, who may for the sake of convenience be hereafter referred to as the petitioners.
were, at the time of the introduction of the Optee Scheme of 1965, confirmed Grade II Clerks in the General Departments and some of them were officiating in the General Departments as Grade I Clerks.
Though most of the petitioners were recruited as Grade II Clerks from the beginning, so far as petitioners 4, 9, 16, 18, 19, 23 and 26 were concerned, they were originally recruited to non cleri cal posts and subsequently transferred as Grade II clerks by selection and that is how at the date when the Optee Scheme of 1965 came into force, they were confirmed Grade II Clerks in 'the General Departments.
The 385 petitioners exercised the option under the Optee Scheme of 1965 and were absorbed substantively as confirmed Grade 1I Clerks in one or the other of the Specialised Departments.
Obviously, the consequence was that those of the petition ers who were officiating as Grade I Clerks in the General Departments lost their officiating position as a result of this transfer together with the attendant monetary benefit of Rs. 25/ per month.
Besides the petitioners, there were also other confirmed Grade I[ Clerks and Officiating Grade I Clerks in the General Departments who, having exercised the option and being selected, were taken over as confirmed Grade I1 Clerks in the Specialised Departments.
Some of them a few were, in due course, in order of seniority, promoted as Officiat ing Grade I Clerks in their respective Specialised Depart ments.
But before the turn of the petitioners for promo tion could arrive, a new Scheme was brought into force to which we shall presently refer.
It appears that the Asso ciation was not satisfied with the Optee Scheme of 1965 as it did not go far enough and equalised opportunities for only a section of the employees in the General Depart ments, namely confirmed Grade II Clerks and Officiating Grade I Clerks, leaving the rest in the same disadvantageous position as before.
The Association, therefore, continued to press its demand for complete equalisation of opportu nities and in 1969, the Reserve Bank took one further step with a view to partly satisfying that demand.
The Reserve Bank introduced another Scheme called the Optee Scheme of 1969 for transfer of confirmed Grade I Clerks in the Gener al Departments to the Specialised Departments to the extent of one third of the long term normal vacancies of Grade I Clerks arising in the Specialised Departments during the period from 1st February, 1969 to 30th June, 1970.
But this also did not satisfy the Association for what the Associa tion desired was full equalisation of opportunities between the General Departments and the Specialised Departments.
The Association continued to agitate for acceptance of its demand and ultimately, as a result of negotiations, an agreement dated 7th May, 1972 was arrived at between the.
Reserve Bank and the Association by which the demand of the Association was substantially conceded and the principle of a combined seniority list was accepted by the Reserve Bank.
The petitioners and some other employees were, however, not members of the Association and they refused to accept the terms of this agreement and hence the Reserve Bank issued a Circular dated 13th May, 1972 introducing d Scheme for combined seniority list and switched over from non clerical to clerical cadre with effect from 7th May, 1972.
This Scheme was substantially in the same terms as the agreement dated 7th May, 1972 and we shall hereafter, for the sake of convenience, refer to this Scheme as the Combined Seniority Scheme.
The Combined Seniority Scheme consisted broadly of two parts.
One part provided for the integration of the clerical staff of the General Departments with the clerical staff of the Specialised Departments and the other, for the switch over and integration of the non clerical staff with the clerical staff in all the Departments of the Reserve Bank 386 Clauses (8) and (9) dealt with the first part and they provided inter alia as follows: "8.
Combined Seniority between clerical staff in dif ferent departments The seniority lists of the staff mentioned below work ing in the general side and Specialised Departments (i.e. in all the Groups 1 to V of the Department wise grouping) will be merged into one with effect from 7th May, 1972 in accordance with the provisions of clause 10 in the manner set out below: (a) All Clerks Grade II, Field Investigators and Clerks Grade I (with less than one year total officiating service) will be placed in the combined seniority list, relative seniority of an employee being fixed according to the date of his first appointment as Clerk/Field Investigator.
(b) All confirmed Clerks Grade I, Clerks Grade I officiating as such on 7th May, 1972 with one year or more total officiating service, Assistants (temporary, officiating as well as confirmed) and Field Inspectors will be placed in the combined seniority list ranking as a group above the employ ees listed under sub clause (a) above.
The relative seniority of an employee will be fixed on the basis of the total length of service put in by him from the date he first started officiating as Clerk Grade I/Field Inspector after deducting therefrom periods during which he reverted as clerk Grade II/Field Investigator otherwise than on account of proceeding on leave.
(c) Fixation of seniority as referred to in sub clauses (a) and (b) above will be subject to the proviso that the inter se position as between two employees in the existing groupwise/departmentwise seniority lists is not disturbed to the detriment of any senior employee within the same group/department except as provided for in clause 6 and sub clause (e) below.
(d) x x x x (e) ' The seniority of class III personnel having been fixed as provided for in sub clauses (a) and (b) above the seniority of an optee, selected clerk in the existing specialised departments whose seniority compared to his juniors in the existing General side is adversely affected will be protected to the extent of his entitlement had he not opted/been selected under the optee/select ed scheme: Provided that he shall apply in this regard in writing within one month from the date of notification of the combined seniority list.
Applications 387 for such adjustments will not be entertained after expiry of the period stipulated above.
(i) (a) Employees officiating as Clerks Grade I on 7lb May, 1972.
An employee officiating as a Clerk Grade I as on 7th May 1972 will continue to officiate without prejudice to the claims of employees whose position may be above him in the.
combined seniority list.
he reverts, his next promotion will be according to his substantive seniority in the combined list.
Reversion only on account of proceeding on leave will not be deemed as reversion for the purpose this clause.
(b) Promotion as Clerks Grade I between 7th May 1972 and the notification of the combined seniority list.
Promotions during this period will be made with reference to the existing departmental/groupwise seniority list but without prejudice to the claims of seniors in the combined seniority list.
When the combined seniority list, becomes available, a review of all such promotions made in the interre gum will be made and senior employees not officiat ing in the higher grades will be promoted by re placing the junior employees.
The review will be completed within a period of two weeks.
(c) Promotions as Clerks Grade I thereafter.
Promotions will be made from the combined seniority list" The second part Was provided for in clauses (1) to (7) and these clauses, so far as material read thus: "1.
Combined seniority between clerical staff and eligible non clerical stall opting for switchover: (a) All employees in Class III non clerical cadre substantively in the categories that have been listed as groups I, Iii, IV and V in the annexure (Reference is not to the department wise groups) who are graduates or have passed both parts of Institute of Bankers Examination will be eligible to exercise an option in accordance with sub clause (a) or (b) of clause 2 to be transferred, automat ically and without any screening, to posts in the clerical cadre which are vacant and are other than of a purely stop gap or short term nature, subject to subclause (b) below.
Actual transfer to posi tions involving clerical duties will be effected in a phased manner as laid down in clause 7.
(b) On such option being exercised within the period of two months as per clause 2 (a), or one month as per clause 2 (b) as the case may be, the position of such optee will be fixed in the com bined seniority list by counting for the purpose of seniority in the clerical cadre onethird of his total non clerical service in Class III in the 388 Bank until 7th May 1972 or the date of acquiring the qualification i.e. the date of publication of the results of the examination, as the case may be (vide clauses 3(a) and 3(b).
(a) x x x x (b) Any employee who acquires the qualifica tion for eligibility after the 7th May 1972, will have, within one month of acquiring the said qualification, to exercise his option whether he desires to switch over to the clerical cadre with his seniority being determined as per clause I(b).
The option once exercised shall be final subject to the right of revocation and with the same consequences, as at subclause (a) above.
Those eligible but not exercising the option within the, aforesaid period of one month shall lose 'the right of option thereafter.
(a) The notional seniority in the clerical cadre of those employees who are eligible for switchover on the 7th May 1972 and exercise their option under clause 2(a) will be fixed with effect from 7th May 1972.
(b) In respect of employees who acquire the eligibility qualification in future and exercise their option under clause 2(b), their notional seniority in the clerical cadre will be fixed with effect from the date of acquiring such quali fication viz. date of publication of the results of the examination.
(c) Fixation of seniority whether under sub clause (a) or (b) will, however, be subject to the proviso that the inter se position as between two employ ees in the concerned seniority list of non cleri cal employees as it stood immediately before the 7th May 1972 or the date of acquiring the qualification for switchover is not disturbed to the detriment of a senior employee as in the relevant seniority list.
(Illustration for fixation of seniority is Enclo sure.
I) 4.(a) An employee opting for switchover will, for the, purpose of compilation of the combined sen iority list, be deemed to be a member of 'the clerical cadre with effect from the date as at clauses 3(a)and 3(b), as the case may be.
(b) Until such time as he is actually transferred to the clerical cadre an optee from the non cleri cal grade in which he is placed at the time of option and will accordingly remain eligible for promotion in the non clerical cadre; Provided that an employee officiating in a category that is listed as group II, VI, VII or VIII of Annexure as the ease may be confirmed in that category only if he revokes his earlier option before confirmation, for which he will have an opportunity.
" 389 _It may be pointed out that though the Optee Scheme of 1965 was originally intended to be operative only upto 30th June, 1970, it was .continued right upto the time that the Combined seniority Scheme came into force.
The effect of the Combined Seniority Scheme was .that it superseded the Optee Scheme of 19 '65.
The petitioners were ,aggrieved by the Combined Seniority Scheme since according to them it affected their chances of confirmation and promotion and placed them in a disadvantageous position and accordingly they filed Civil Writ No. 690 of 1972 in the Delhi High Court challenging the validity of the Combined Seniority Scheme on various grounds relatable to Articles 14 and 16 of the Constitution.
These grounds of challenge found favour with the Division Bench of the Delhi High Court which heard the petition and the Division Bench quashed and set aside the Combined Seniority Scheme on the view that it was viola tive of Articles 14 and 16 of the Constitution.
The three main grounds on which the Division Bench found fault with the Combined Seniority Scheme were first, that it discrimi nated against the petitioners vis a vis.
the others who had opted under the Optee Scheme of 1965 and who had obtained promotion as Grade I Clerks in their respective Specialised Departments before the introduction of the Combined Seniori ty Scheme;secondly, it discriminated against the petitioners in relation to the .
clerical staff in the General Depart ments who either did not exercise the option under the Optee Scheme of 1965 or having exercised the option, were not selected and thirdly, it treated alike the non clerical staff as well as the clerical staff by integrating them together in one cadre with a combined seniority list, though they formed two distinct and separate classes unequal to each other.
The Division Bench accordingly allowed the petition and struck down the Combined Seniority Scheme.
Two appeals were thereupon preferred to this Court after obtaining a certificate of fitness from the Delhi High Court, Civil Appeal No. 1231 of 1973 by the Reserve Bank and Civil Appeal No. 1408 of 1974 by the Association.
Both the Reserve Bank and the Association seek to sustain the validi ty of the Combined Seniority Scheme in these appeals sub stantially on the same grounds.
We will assume for the purpose of these appeals that the Reserve Bank is a "State" within the meaning of Article 12 of the Constitution and hence subject to the limitations imposed by Article 14 and 16.
It was in fact so held by the Delhi High Court and this view was not seriously assailed before us on behalf of the Reserve Bank.
The question which, therefore, requires to be considered is whether the Combined Seniority Scheme in any way falls foul of Articles 14 and 16.
The Delhi High Court relied on three grounds for invalidating the Combined Seniority Scheme under Articles 14 and 16 and the same three grounds were also canvassed before us in these appeals, but we do not think there is any sub stance in them.
We shall examine these grounds in the order in which they were advanced before us.
The first ground was that the Combined Seniority Scheme discriminated unjustly against the petitioners vis a vis those confirmed Grade II Clerks and Officiating Grade I Clerks in the General Departments who either did not exer cise the option under the Optee Scheme 390 of 1965, or, having exercised the option, were not selected.
The argument of the petitioners under tiffs head of chal lenge was that the Optee Scheme of 1965 was introduced by the Reserve Bank for the purpose of improving the promotion al opportunities of Grade II Clerks in the General Depart ments by absorbing them in the cadre of Grade II Clerks in the Specialised Departments where there were greater promotional opportunities by reason of a larger number of posts in the higher grades.
That was the implied assurance given by the Reserve Bank as part of the Optee Scheme of 1965 and the petitioners, acting on this assurance, exer cised the option to be transferred as confirmed Grade II Clerks in the Specialised Departments, some of them even giving up their officiating position as Grade I Clerks and losing in the process the officiating monetary allowance of Rs. 25/ per month.
The Reserve Bank was, in the circum stances, precluded from introducing the Combined Seniority Scheme which had the effect of prejudicing the promotional opportunities assured to the petitioners, until the peti tioners got their promotion to higher posts in the Specia lised Departments in accordance with such assurance.
The position, however, which obtained when the Combined Senior ity Scheme was brought into force was that the petitioners were still confirmed Grade II Clerks in the Specialised Departments, while, as compared to them, some of the Grade II Clerks in the General Departments, who were junior to the petitioners and who had either not exercised the option or, having exercised the option, were not selected were already promoted as Grade 1 Clerks in the General Departments.
In this situation, the effect of the Combined Seniority Scheme was that though theoretically, by reason of cl.
(8)(c), the petitioners were given seniority over these Grade II Clerks who had been promoted as Grade I Clerks in the General Departments, the latter retained their higher Grade I in the Combined Seniority Scheme and thus secured an advantage over the petitioners.
This was the anomalous and unjust result brought about by the Combined Seniority Scheme and that, according to the petitioners, introduced a serious infirmi ty.
This argument, we are afraid, is more an argument of hardship than of law and we do not think we can accept it.
When the petitioners opted to be transferred to the Specialised Departments under the Optee Scheme of 1965, they obviously did so as they thought that they would have quicker chances of promotion in the Specialised Department than in the General Departments.
But it appears that before their turn for promotion as Grade I Clerks in the Specialised Departments could come, some vacancies occurred in the cadre of Grade I Clerks in the General Departments and naturally they were filled up by promotion of Grade II Clerks in the General Departments.
Some of these Grade II Clerks who were promoted were junior to the petitioners, but they got an opportunity for promotion as the petitioners went out of the General Departments by exercising the option to be transferred to the Specialised Departments.
This was a wholly fortuitous possibly not anticipated by the petition ers or perhaps the petitioners might have thought that they would have an advantage in the matter subsequent promotions to posts higher 391 than Grade I Clerks.
Be that as it may, the fact remains that this was the position which obtained at the date when the Combined Seniority Scheme was introduced by the Reserve Bank.
The question is, was there anything which prevented the Reserve Bank from doing so ? We fail to see how from the mere introduction of the Optee Scheme of 1965, any promise or assurance could be spelt out on the part of the Reserve Bank not to take any steps towards integration of other employees not covered by the Optee Scheme of 1965.
The Reserve Bank could not, on any principle of law or by any process of implication, be held bound to hold its hands in the matter of further inte gration, until the petitioners were promoted in the Specia lised Departments.
And the question would again.be: promoted how far one stage or two stages or more than that ? It is obvious that the only object of the Optee Scheme of 1965 was to equalise the promotional opportunities of Grade II Clerks in the General Departments with those of Grade II Clerks in the Specialised Departments by giving an option to the former to be absorbed in the latter.
This object was car ried out as soon as the petitioners and other Grade II Clerks in the General Departments opted to be transferred to the Specialised Departments.
Then they became Grade H Clerks in the Specialised Departments having the same promotional opportunities as the original Grade II Clerks in the Specia lised Departments.
There was no assurance given by the Reserve Bank that the promotional opportunities available to Grade II Clerks in the Specialised Departments will not be diminished.
The Combined Seniority Scheme affected the promotional opportunities of all Grade II Clerks in the Specialised Departments, irrespective of whether they were original or transferee Grade II Clerks.
It did not discrim inate between transferee Grade II Clerks and original Grade II Clerks and treated them alike in bringing about total integration of the employees in the several Departments.
There was no breach of the principle that the promotional opportunities of transferee Grade II Clerks should be equal to those of original grade II Clerks.
Both were ef fected equally by the Combined Seniority Scheme.
Now under the Combined Seniority Scheme, the integration could only be on grade to grade basis and, therefore, if by the time the Combined Seniority Scheme came into force, Grade II Clerks, junior to tile petitioners, had become Grade I Clerks in the General Departments, they could be equated only with Grade I Clerks in the Specialised Departments and to this equation, no valid objection could be taken on behalf of the petition ers.
Undoubtedly, it would cause heart burning amongst the petitioners to find that Grade II Clerks, junior to them in the General Departments, have become Grade I Clerks in the integrated service, while they still continue to be Grade II Clerks, but that is a necessary consequence of integration.
Whenever services are integrated, some hardship is bound to result.
Reasonable anticipations may be belied.
The second ground on which the petitioners challenged the validity of the Combined Seniority Scheme was that it discriminated against the petitioners vis a vis other Grade II Clerks who had opted under the Optee Scheme of 1965 and obtained promotion as Grade I Clerks in their respective Specialised Departments before the introduction of the 9 1104SCI/76 392 Combined Seniority Scheme.
The contention of the petition ers was that some of the Grade I1 Clerks who had opted under the Optee Scheme of 1965 were promoted as Grade I Clerks, while the petitioners continued as Grade II Clerks and before their turn for promotion could arrive, the Combined Seniority Scheme was brought into force and that prejudi cially affected their promotional opportunities and thus brought about unjust discrimination between persons belong ing to the same class.
This contention has no force and must be rejected.
We have already discussed and shown that it was competent to the Reserve Bank to introduce the Com bined Seniority Scheme for the purpose of integrating the clerical staff in all the departments and the Reserve Bank was not bound to wait until all the transferee Grade II Clerks under the Optee Scheme of 1965 were promoted as Grade I Clerks in their respective Specialised Departments.
There was not such assurance given by the Reserve Bank when it introduced the Optee Scheme of 1965.
What it did was merely to equalise the opportunities Grade II Clerks in the General Departments with those of Grade II Clerks in the Specialised Departments.
The Reserve Bank did not undertake that it will not take any steps for bringing about total integration of the clerical services until all the transferee Grade II Clerks were promoted.
The Reserve Bank was entitled to introduce the Combined Seniority Scheme at any time it though fit and the validity of the Combined Seniority Scheme cannot be assailed on the ground that it was intro duced at a time when some of the transferee Grade II Clerks still remained to be promoted and was discriminatory against them.
It may be that some transferee Grade I1 Clerks had already obtained promotion as Grade I Clerks by the time the Combined Seniority Scheme was introduced, while others like the petitioners had not.
But that cannot be helped.
It is all part of the incidence of service and in law, no griev ance can be made against it.
That takes us to the last ground of challenge which relates to integration of non clerical with clerical serv ices.
This ground of challenge was advanced under three heads: first, non clerical services and clerical services were wholly different from each other and by integrating them into one cadre, the Reserve Bank failed to recognise their differences and treated unequals as equals, thereby offending the equality clause of the Constitution secondly, by permitting, in case of non clerical staff, one third of the total non clerical service until 7th May, 1972 and in case of those who become graduates or pass both parts of institute of Bankers Examination subsequent to 7th May, 1972 until the date of acquiring such qualification to be taken into account for the purpose of seniority, the Reserve Bank laid down a wholly irrational and unjust principle of sen iority in the integrated service and thereby violated the equal opportunity clause and lastly, the seniority of the petitioners was adversely affected by the integration with out giving any opportunity to them to represent against it and the Combined Seniority Scheme was, therefore, in viola tion of the principles of natural justice.
We have careful ly examined these three heads of challenge, but we do not find any substance in them.
They are based on a misconcep tion of the true nature of the process involved in integra tion of non clerical with clerical services.
There was, as already 393 pointed out above, a non clerical cadre in each Department of the Reserve Bank and it was decided by the Reserve Bank that the nonclerical cadres in all the Departments should be integrated with the clerical cadre.
With that end in view, the Combined Seniority Scheme gave an option to all employ ees in non clerical cadres to be transferred to posts in the clerical cadre, but in the interest of efficiency, pre scribed a qualification that only those employees in non clerical cadres would be entitled to be transferred who are either graduates or have passed both parts of Institute of Bankers Examination.
Now, when the employees from non clerical cadres are admitted in the clerical cadre, some rule would have to be made for determining their seniori ty vis a vis those in the clerical cadre.
They would have to be fitted into the clerical cadre and for that purpose, some rule would have to be devised for determining how they shall rank in seniority.
The Combined Seniority Scheme adopted the rule that for determining the seniority of non clerical staff who exercised the option and were admit ted in the clerical cadre, one third of their total non clerical service "until 7th May, 1972 or the date of acquir ing qualification" should be taken into account.
This was the manner in which the Combined Seniority Scheme sought to bring about integration of non clerical with.
clerical serv ices in the several departments of the Bank.
Now, the first question which arises for consideration is whether the Reserve Bank violated the constitutional princi ple of equality in bringing about integration of non cleri cal with clerical services.
We fail to see how integration of different cadres into one cadre can be said to involve any violation of the equality clause.
It is now well set tled, as a result of the decision of this Court in Kishori Mohanlal Bakshi vs Union of India(1) that Article 16 a fortiori also Article 14 do not forbid the creation of different cadres for government service.
And if that be so, equally these two Articles cannot stand in the way of the State integrating different cadres into one cadre.
It is entirely a matter for the State to decide whether to have several different cadres or one integrated cadre in its services.
That is a matter of policy which does not attract the applicability of the equality clause.
The integration of non clerical with clerical services sought to be effectuated by the Combined Seniority Scheme cannot in the circumstances be assailed as violative of the constitutional principle of equality.
Then we come to the question of the rule of seniority adopted by the Combined Seniority Scheme.
Now there can be no doubt that it is open to the State to lay down any rule which it thinks appropriate for determining seniority in service and it is not competent to the Court to strike down such rule on the ground that in its opinion another rule would have been better or more appropriate.
The only en quiry which the Court can make is whether the rule laid down by the State is arbitrary and irrational so that it results in inequality of opportunity amongst employees belonging to the same class.
Now, here, employees from non clerical cadres were being absorbed in the clerical cadre and, there fore, a rule for determining their seniority vis a vis (1) A.I.R. 1962 S.C. 1139.
394 those already in the clerical cadre had to be devised.
Obviously, if the non clerical service rendered by the ' employees from non clerical cadres were wholly ignored, it would have been most unjust to them.
Equally, it would have been unjust to employees in the clerical cadre, if the entire non clerical service of those coming from non cleri cal cadres were taken into account, for non clerical service cannot be equated with clerical service and the two cannot be treated on the same footing.
Reserve Bank, therefore, decided that one third of the non clerical service ren dered by employees coming from non clerical cadres should be taken into account for the purpose of determining seniority.
This rule attempted to strike a just balance between the conflicting claims of non clerical and clerical staff and it cannot be condemned as arbitrary or discriminatory.
Vide: Anand Parkash Saksena vs Union of India.(1) The last contention of the petitioners was that seniori ty is a civil right and the State cannot interfere with it to the prejudice of an employee without giving an opportuni ty to him to be heard and since the Combined Seniority Scheme adversely affected the seniority of the petitioners in the clerical cadre without giving them an opportunity to represent against it, it was void and inoperative.
There are two answers to this contention and each is, in our opinion, fatal.
In the first place, we do not find from the judgment of the High Court that this contention was at any time advanced before the High Court and, in the circum stance.s, we do not think it would be fight to permit it to be raised for the first time before this Court.
Secondly, even if this contention were allowed to be raised, we do not think it can be sustained.
Here, there was no question of any existing seniority being disturbed by change in the rule of seniority.
The problem was of fitting into the clerical cadre employees coming from non clerical cadres and for that purpose, a new rule was required to be made which would determine the seniority of these new entrants vis a vis those already in the clerical cadre.
Such rule did not affect seniority and hence there could be no question of giving the petitioners an opportunity to make representation against it.
These were the only contentions urged before us against the constitutional validity of the Combined Seniority Scheme and since there is no substance in them, we think that the High Court was in error in striking down the Combined Sen iority Scheme.
We accordingly allow the appeals, set aside the judgment and order of the High Court and uphold the validity of the Combined Seniority Scheme.
There will be no order as to costs.
V,P.S. Appeals allowed.
(1) [1968] 2 S.C.R. 611, 622.
[/INST]At every centre of the Reserve Bank of India there were five departments, the General Department and four Specialised Departments.
There was a separate seniority list for the employees in each Department at each centre and confirmation and promotion of employees was only in the vacancies arising within their Department at each centre.
There were two grades of clerks in each Department, namely, Grade I and Grade 11.
The pay scales of Grade I and Grade II clerks in all the departments were the same and their conditions of service were also identical.
There was automatic promotion from Grade II to Grade I and when a clerk from Grade H was promoted to officiate in Grade I, he got an additional officiating allowance of Rs. 25/ per month.
There were also several categories of non,clerical posts in the General as well as Specialised Departments, and their pay scale was the same as that of Grade II clerks.
In view of expanding activities in the Specialised Departments, there were great er opportunities for confirmation and promotion for employ ees in the Specialised Departments than in the General Department.
This gave rise to dissatisfaction amongst employees in the General Department and they claimed equal opportunities by having a combined seniority list for all the clerks for confirmation and promotion.
The Reserve Bank, sought to justify the separate seniority lists on the ground that the work in each department was of a special nature and inter transferability was undesirable and hard to achieve.
As a result of the recommendation Of the National Tribunal, however, the Reserve Bank introduced the Optee Scheme of 1965 as h first step towards equalization of opportunities.
Under the Scheme, the option to go over to the Specialised Departments was confined to confirmed Grade 11 clerks and officiating Grade I clerks in the General Department.
If he exercised the option, he was eligible to be selected.
If he was selected, he would be entitled to be absorbed only as Grade II clerk in one of the Specialised Departments with the result that if he was an officiating Grade I clerk in the General Department at the time of the exercise of the option, he would lose the benefit of officiation in Grade I in the General Department as also the monetary benefit of Rs. 25/ .
His seniority in the cadre of Grade II clerks in the Specialised Department in Which he was absorbed would be determined on the basis of his length of service calculated from the date of his recruitment if he was a graduate when he joined service, or from the date of his graduation if he became a graduate whilst in service.
The petitioners in the present case and some others were, at the time of introduction of the Optee Scheme, confirmed Grade II clerks in the General Department and some of them were officiating in the General Department as Grade I clerks.
They exercised the option under the Optee Scheme land were absorbed substantively as confirmed Grade II clerks in one or the other of the Specialised Departments.
The clerks, other than the petitioners were in due course, in order of seniority, promoted as officiating Grade I clerks in their respective Specialised Departments.
But before the turn of the petitioners for promotion came, a new ' Scheme was introduced on May 13, 1972 as a result of continuous agitation by the employees for full equalisation of opportunities between the General Department and the Specialised Departments.
This Scheme was known as the Combined Seniority Scheme, and it superseded the Optee Scheme.
It consisted of two parts.
One part provided for the integration of the clerical staff of the General Depart ment with the clerical staff of the Specialised Departments, and the other, 378 for the integration of the non clerical staff with the clerical staff in all the Departments.
The Combined Seniori ty Scheme gave an option to the non clerical employees to be transferred to posts in the clerical cadre, but in the interest of efficiency, prescribed a qualification that only those employees in non clerical cadres would be transferred who arc either graduates or have passed both parts of Insti tute of Bankers Examination.
For determining their seniori ty vis a vis those in the clerical cadre, the Combined Seniority Scheme adopted the rule that one third of their total non clerical service until 7th May, 1972 (the date on which agreement was reached between the Bank and its employ ees in the terms of the Combined Seniority Scheme) or the date of acquiring the qualification should be taken into account.
The petitioners successfully challenged the Combined Seniority Scheme in the High Court.
The High Court held that the Scheme was violative of articles 14 and 16 of the Constitution, because: (1) The position which obtained when the Combined Seniority Scheme was brought into force was that the petitioners were still confirmed Grade 11 clerks in the Specialised Departments, while some of the Grade II clerks in the General Departments, who were junior to them and who had either not exercised the option, or having exercised the option, were not selected, were promoted as Grade 1 Clerks in the General Departments.
The result was that these Grade 11 clerks who had been promoted as Grade I Clerks in the General Department were equated to Grade I Clerks in the Specialised Departments.
Therefore, according to the petitioners, the Combined Seniority Scheme had the effect of prejudicing the promotional opportunities assured to the petitioners under the Optee Scheme and hence the Combined Seniority Scheme discriminated against the petitioners in relation to the clerical staff in the General Department who either did not exercise the option under the Optee Scheme or having exercised the option, were not selected; (2) it discriminated against the petitioners vis a vis others who had opted under the Optee Scheme of 1965 and who had obtained promotion as Grade I clerks in their respective Specialised Departments before the intro duction of the Combined Seniority Scheme; and (3) (a) the Scheme treated alike the non clerical staff as well as the clerical staff by integrating them together in one cadre with a combined seniority list though they formed two dis tinct and separate classes, and thus violated the equali ty clause; (b) by permitting, in the case of non clerical staff, one third of the total non clerical service until 7th May, 1972 or the date of acquiring the qualification, to be taken into account for the purpose of seniority, the Bank laid down a wholly irrational and unjust principle of sen iority in the integrated service and violated the equal opportunity clause and; (c) the seniority of the petitioners was adversely affected by the integration without giving any opportunity to them and thus the introduction of the Com bined Seniority Scheme violated the principles of natural justice.
Allowing the appeal to this Court and upholding the validity of the Combined Seniority Scheme.
HELD: (1) Assuming that the Reserve Bank is State under article 12, and therefore subject to articles 14 and 16, by the mere introduction of the Optee Scheme no promise or assur ance could be spelt out on the part of the Bank not to take any steps towards integration of other employees not covered by the Optee Scheme.
The Reserve Bank could not, on any principle of law or by any process of implication, be held bound to hold its hands in the matter of further inte gration, until the petitioners were promoted in the Specia lised Departments.
The only object of the Optee Scheme was to equalise the promotional opportunities of Grade II clerks in the General Departments with those of Grade II clerks in the Specialised Departments by giving an option to the former to be absorbed in the latter.
This object was carried out as soon as the petitioners and other Grade II clerks in the General Departments opted to be transferred to the Specialised Departments.
Then they became Grade I1 clerks in the Specialised Departments having the same promo tional opportunities as the original Grade 1I clerks in the Specialised Departments.
There was no assurance given by the Bank that the promotional opportunities available to Grade II clerks in the Specialised Departments will not be dimin ished.
The Combined Seniority Scheme affected the promo tional opportunities of all Grade II clerks in the Specia lised Departments, irrespective of whether they were origi nal or transferee Grade II clerks.
It did not discriminate between transferee Grade II clerks and original 379 Grade II clerks.
There was no breach of the principle that the promotional opportunities of transferee Grade 11 clerks should be equal to those of original Grade II clerks.
The fact that some of the Grade II clerks, junior to the peti tioners, had become Grade I clerks in the General Depart ments, and so could be equated only with Grade I clerks in the Specialised Departments is a wholly fortuitous result.
It might cause heart burning amongst the petitioners that they still continue to be Grade II clerks but whenever services are integrated, some hardship is bound to result as a necessary consequence of integration.
B G] (2) The Reserve Bank did not undertake that it will not take any steps for bringing about total integration of the clerical services until all the transferee Grade II clerks were promoted.
The Reserve Bank was entitled to introduce the Combined Seniority Scheme at any time it thought fit and its validity cannot be assailed on the ground that it was introduced at a time when some of the transferee Grade II clerks still remained to be promoted and so was discrimina tory against them.
The fact that some transferee Grade II clerks had already obtained promotion as Grade I clerks in the Specialised Departments by the time the Combined Senior ity Scheme was introduced, is all part of the exigencies of service and in law no grievance can be made against it.
[392 D E] (3) (a) The integration of different cadres into one cadre cannot be said to involve any violation of the equali ty clause.
It is entirely a matter for the State to decide whether to have several different cadres or one integrated cadre in its services.
That is a matter of policy which does not attract the applicability of the equality clause.
The integration of non clerical with clerical service sought to be effectuated by the Combined Seniority Scheme cannot, in the circumstances, be assailed as violative of the prin ciple of quality.
[393 F] Kishori Mohanlal Bakshi vs Union of India AIR 1962 S.C. 1139 referred to (b) It is open to the State to lay down any rule which it thinks appropriate for determining seniority in service and it is not competent to the Court to strike down such a rule on the ground that in its opinion another rule would have been better or more appropriate.
The only enquiry which the Court can make is whether the rule laid down by the State is arbitrary and irrational so that it results in inequality of opportunity amongst employees belonging to the same class.
[393 G H] In the present case the employees from non clerical cadres were being absorbed in the clerical cadre, and, therefore, a rule for determining their seniority vis a vis those already in the clerical cadre had to be devised.
To ignore their .entire non clerical service would have been unjust to them, and to take into account their entire non clerical services would be unjust to those in the clerical service.
The Bank therefore, decided that one third of the non clerical service rendered by the employees coming from non clerical cadres should be taken into account for the purpose of determining seniority.
It strikes a just balance between the conflicting claims of non clerical and clerical staff and cannot be condemned as arbitrary or discriminato ry.
[394 A B] Anand Parkash Saksena vs Union of India [1968] 2 S.C.R. 611, referred to.
(c) (i) The contention that there was violation of princi ples of natural justice was not raised before the High Court; (ii) Even if the contention is allowed be raised in this Court, there was no question of any existing seniority of the petitioners being disturbed by changing the rule of seniority.
The problem was fitting into the clerical cadre employees coming from non clerical cadres.
For that purpose, a new rule was required to be made.
The rule did not affect the petitioners ' seniority, and hence, there was no question of giving the petitioners an opportunity to make representa tion against it.
[394 E]
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<s>[INST] Summarize the judgementCivil Appeal No.2215 of 1977.
From the Judgement and Order dated 237 1976 of the Madhya Pradesh High Court in Misc.
Appeal No.23 of 1976.
T.U.Metha, S.K. Gambhir, Vivek Gambhir and Surinder Karnail for the Appellants.
Uday U. Lalit and A.G.Ratnaparkhi for the Respondents.
The Judgement of the Courtwas delivered by SHAREMA,J,.
The question for decision in this appeal by special leave is whether a petition under s.11 of the , for declaring the marriage of the petitioner as nullity is maintainable after the death of the petitioners ' spouse.
The appellent No. 1, hereinafter referred to as the Maharani, was marriedto Maharaja Rameshwarsighji in1960 and a daughter, the appellant no.2, was born of the wedlock in 1964.
The relationship between the husband and the wife thereafter ceased to be cordial and the appellants started living in Bombay and the Maharaja within his estate in Madhya Pradesh.
According to the case of the respondent no.1 the Maharaja decided to remarry without legally separating from the appellant Maharani.
The respondent who is a relation of the Maharaj 's mother, respondent No.2, was misled both by theMaharaja and his mother in believing that the first marriage of the Maharaja had been dissolved and under the belief she married the Maharaja and the couple got several issues.
In 1974 when the Maharaja died, an application for grant of Letters of Administration was filed by the appellant Maharani and the respondent applied for probate on the basis of an alleged will which is denied by the appellant.
The proceedings are still pending.
In this background the respondent 197 No. 1 filed the present application under section 11 of the for declaring her marriage as nullity.
The Maharaja 's mother was impleaded as the sole respondent.
When the appellants learnt about the case, they intervened and were joined as parties.
The appellants challenged the maintainability of the application on the ground that the marriage could not be declared nullity after the death of the Maharaja.
Both the trial court and the High Court have rejected the appellants ' plea. 4.
mr. Mehta, the learned counsel for the appellants, has contended that having regard to the very special relationship between husband and wife, a marriage cannot dissolved or declared to be a nullity unless both of them are parties thereto.
The marital status of a person stands on a much higher footing than other positions one may hold in the society or may have in relation to a property; and cannot be allowed to be challenged lightly.
The marriage of a person, therefore, cannot be declared as a nullity after his death when he does not have an opportunity to contest.
He relied upon the language of s.11.
After its amendment in 1976 the section read this: "11.
Void marriages: Any marriage solemnized after the commencement of this Act shall be null and void and may , on a petition presented by either party thereto against the other party, be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (i),(iv) and (v) of Section 5." (emphasis added) 5.
The present proceeding was started in 1974, that is, before the amendment, and the section did not contain the words which have been underlined by us above.
At that time all that was required was that the application had to be filed by a party to the marriage under challenge.
On the plain language of the section as it stood then, it could not be claimed that in absence of the other spouse as a party to the proceeding, the same would not be maintainable.
The argument of Mr. Mehta is that the section had the same meaning before and after the amendment and the addition of the words in 1976 was merely clarificatory in nature.
He strongly relied upon the 69th Report of the Law Commission. 6.
The Report recommended several amendments in the which led to the passing of the Amending Act of 1976.
198 Reliance was placed on paragraph 6.1A of Chapter 6 of the Report which referred to the divergent views taken by the High Courts of Punjab and Madras on the question of maintainability of a petition under s.11 after the death of the other spouse.
The Commission, thereafter, observed thus: "We ought, however, to point out that in such a case, the proper remedy is a suit under the Specific Relief Act.
A petition under section 11 of the cannot be appropriate, because the other spouse is an essential party to any such petition.
This should be clarified by an amendment.
" It has been argued before us that the view of the Madras High Court referred to in the Report is the correct view which was accepted by the Law Commission, and since there was scope for controversy on the language of the section, the legislature agreeing with the Law Commission added the aforementioned additional words by way of clarification.
It is urged that such interpretation of the section did not lead to any injustice inasmuch as a suit for such a declaration was and is maintainable in the civil court.
Reliance has also been placed on "Rayden and Jackson 's Law and Practice in Divorce and Family matters." (15th Edn.), and several English cases in support of the proposition that on the death of a party to a matrimonial action the cause of action does not service.
Reference has been made to the case of Butterfield vs Butterfield, I.L.R. (Vol.50) Calcutta 153, where after the wife had obtained a decree nisi for dissolution of her marriage the husband died.
Following the English case of Stanhope vs Stanhope,[1886] 11 P.D.103, it was held that the decree could not be confirmed.
The learned counsel for the respondent relied upon certain observation made in other High Courts ' judgments supporting his stand.
He pointed out that having regard to the language of section 16, as it stood before the amendment, the children born of the respondent would not have been entitled to the benefit of the section in the absence of a decree declaring the marriage of their parents as nullity, and this was precisely the reason that the respondent had to commence the present litigation.
We have considered the argument of Mr. Mehta closely but do not find ourselves in a position to agree with him.
It is not correct to suggest that one uniform rule shall apply for deciding the maintainability of all proceedings involving issues relating to marital status.
The 199 question will be dependent upon the nature of the action and law governing the same.
The provisions of the relevant statute relating to a proceeding in question will be very material.
This aspect has been taken note of by Rayden and Jackson also in their book which has been relied upon by Mr. Mehta.
The passage at page 650 summarises the position in the following words: "Death of a party: effect on suit.
In many cases the fact of the death of one of the parties will render the process meaningless by reason of the circumstances that a marriage brought to an end by death could no longer be dissolved by an Act of the court.
But there is no general rule that, where one of the parties to a divorce suit has died, the suit abates, so that no further proceedings can be taken in it.
It has been said that it is unhelpful to refer to abatement at all.
The real question in such cases is whether, where one of the parties to a divorce suit has died, further proceedings in the suit can or cannot be taken.
The answer to that question, when it arises, depends in all cases on two matters and in some cases also on a third.
The first matter is the nature of the further proceedings sought to be taken.
The second matter is the true construction of the relevant statutory provision or provisions, or of a particular order made under them, or both.
The third matter is the applicability of section I (I) of the Law Reforms (Miscellaneous Provisions) Act 1934.
The dispute issue in the present appeal has to be answered by considering the nature of the proceedings and the true construction of the relevant provisions of the .
Under the general law a child for being legitimate has to be born in lawful wedlock, and if the marriage is void or declared to be so by the court, it will necessarily have the effect of bastardising the child born of the parties to such a marriage.
By enacting section 5(i) of the Act, the legislature abolished polygamy, which had always remained permissible and prevalent among the Hindus in the past.
The Act was bringing about a very significant departure in this regard; and taking into account the possibility of violation of the law in numerous cases atleast for sometime to come special provisions were included under s.16 of the Act with the object of protecting the legitimacy of the children.
The original section before the amendment of 1976 read as follows: "16.
Where a decree of nullity is granted in respect 200 of any marriage under section 11 or section 12, any child begotten or conceived before the decree is made who would have been the legitimate child of the parties to the marriage if it had been dissolved instead of having been declared null and void or annulled by a decree of nullity shall be deemed to be their legitimate child notwithstanding the decree of nullity.
Provided that nothing contained in this section shall be construed as conferring upon any child of a marriage which is declared null and void annulled by a decree of nullity any rights in or to the property of any person other than the parents in any case where, but for the passing of this Act, such child would have been incapable of possession of acquiring any such rights by reason of his not being the legitimate child of his parents.
" It will be seen that the benefit of the section was confined to only such cases where a decree of nullity was granted under section 11 or s.12.
it did not extend to other cases.
In 1976 s.11 was amended by inserting the words "against the other party", and along with the same s.16 was amended as it read now.
the following words in section 16(i). ". and whether or not a decree of nullity is granted in respect of that marriage under this Act and whether or not the marriage is held to be void otherwise than on a petition under this Act." enlarged the applicability of the beneficial provisions, so as not to deny the same to children who are placed in circumstances similar to those of the present respondent.
By the amendment in s.11, in so far the cases where marriage can be declared as nullity, the application of the rule protecting the legitimacy was widened.
If that had not been done, the children born of such marriage would have been deprived of the advantage on the death of either of the parents.
By the simultaneous amendment of the two sections it can safely be deduced that the Parliament did not hold identical views as expressed by the Law Commission 's Report.
Even if it be assumed that the meaning of the section was not free from ambiguity, the rule of beneficial construction is called for in ascertaining its meaning.
The intention of the legislature in enacting s.16 was to protect the legitimacy of the children who would have been 201 legitimate if the Act had not been passed in 1955.
There is no reason to interpret s.11 in a manner which would narrow down its field.
With respect to the nature of the proceeding, what the court has to do in an application under s.11 is not bring about any change in the marital status of the parties.
The effect of granting a decree of nullity is to discover the flaw in the marriage at the time of its performance and accordingly to grant a decree declaring it to be void.
we, therefore, hold that an application under s.11 before its amendment in 1976, was maintainable at the instance of a party to the marriage even after the death of the other spouse.
Accordingly, this appeal is dismissed with costs.
[/INST]The appellant No.1 Maharani was married to a Maharaja in 1960 and the daughter appellant no.2 was born of the wedlock in 1964.
The relationship between the husband and the wife thereafter ceased to be cordial and the appellant started living in Bombay and the Maharaja within his estate in Madhya Pradesh.
It is the case of the respondent No.1 that the Maharaja decided to remarry without legally separating from the appellant.
The respondent who is a relation of the Maharaja 's mother, respondent No.2,was misled both by the Maharaja and his mother, respondent No.2 was misled both by the Maharaja and his mother in believing that the first marriage of the Maharaja had been dissolved and under that belief she married the Maharaja had been dissolved and under that belief she married the Maharaja and several issues were born of this wedlock.
In 1974 when the Maharaja died, on application for grant of Letters of Administration was filed by the appellant Maharani, and the respondent No.1 applied for probate on the basis of an alleged will.
This will was denied by the appellants.
These proceedings are still pending.
Respondent No.1 filed an application under Section 11 of the for declaring her marriage as nullity, and the Maharaja 's mother was impleaded as the sole respondent.
The appellants intervened and were impleaded as parties.
The maintainability of the aforesaid application was challenged by the appellants on the ground that the marriage could not be declared 194 a nullity after the death of the Maharaja but both the trial court and the High Court have rejected this plea.
In the appeal to this Court it was contended on behalf of the appellants that having regard to the very special relationship between husband and wife,a marriage cannot be dissolved or declared to be a nullity unless both of them are parties thereto.
The martial status of a person sands on a much higher footing than other positions one may hold in the society and cannot be allowed to be challenged lightly,and that the marriage of a person, therefore, cannot be declared as nullity after his death when he does no have an opportunity to contest.
Reliance was placed upon the language of Section 11 of the .
On behalf of the respondent, it was pointed out that having regard to the language of Section 16 of the as it it stood before its amendment in 1976,he children born of the respondent would not have been entitled to the benefit of the section in absence of a decree declaring the marriage of their parents as nullity, and this was precisely the reason that the respondent had to commence the present litigation On the question: whether a petition under Section 11 of the for declaring the marriage of the petitioner as a nullity is maintainable after the death of the petitioner 's spouse.
Dismissing the appeal, this Court, HELD: 1 .An application under Section11 of the before its amendment in 1976, was maintainable at the instance of a party to the marriage even after the death of the other spouse.[201B].
In the instant case, the proceeding was started in 1974 that is, before the amendment was made in the Hindu Marriage Act,1955.
Section II did not contain the words "against the other party".
At that time all that was required was that the application had to be filed by a party to the marriage under challenge.
On the plain language of the section as it stood then,it could not be claimed that in absence of the other spouse as a party to the proceedings, the same would not be maintainable.[197F] 3.Under the general law a child for being legitimate has to be 195 born in lawful wedlock and if the marriage is void or declared to be so by the Court, it will necessarily have the effect ofbastardising the child born of the parties to such a marriage.[199F] 4.
By enacting Section 5(i) of the the legislature abolished polygamy, which had always remained permissible and prevalent among the Hindus in the past.
The Act was bringing about a very significant departure in this regard; and taking into account the possibility of violation of the law in numerous cases at least for sometime to come special provisions were included under Section 16 of the Act with the object of protecting the legitimacy of the children.[199G] 5.
The benefit of Section 16 was confined to only such cases where a decree of nullity was granted under Section 11 or section 12.
It did not extend to other cases.
in 1976 section 11 was amended by inserting the words "against the otherparty" and alongwith the same section 16 was amended.[200D] 6.
By the amendment in section 11, in so far the cases where marriage can be declared as nullity, the application of the rule protectingthe legitimacy was widened.
If that had notbeen,the children born of such marriages would have been deprived of the advantage on the death of either of the parents.
By the simultaneous amendment of the two sections it can safely be deducted that the Parliament did not hold identical views as expressed by the law Commission in its59th Report.[200F G] 7.
The intention of the legislature in enacting section 16 was to protect the legitimacy of the children who would have been legitimate if the Act had not been passed in 1955.[200H] 8.
There is no reason to interpret section 11 in a manner which would narrow down its field.
With respect to the nature of the proceedings, what the court has to do in an application under section 11 is not to bring about any change in the marital status of the parties.
The effectof granting a decree of nullity is to discover the flow in the marriage at the time of its performance and accordingly to grant a decree declaring it tobe void.
[201A B] Butterfield vs Butterfield; I.L.R.(Vol.50) Calcutta 153 and Stanhope vs Stanhope, , and Law Commission of India 59th Report Chapter 6, para 6.1A referred to.
196 9.It is not correct to suggest that one uniform rule shall apply for deciding the maintainability of all proceedings involving issues relating to marital status.
The question will be dependent upon on the nature of the action and law governing the same.
The provisions of the relevant statue relating to a question will be very material.[198H 199A] Rayden and Jackson 's Law and Practice in Divorce and Family Matters, (15th Edn.).
p.650, referred to.
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<s>[INST] Summarize the judgementivil Appeal No. 3573 of 1991.
From the Judgment and Order dated 25.6.1991 of the Bombay High Court in W.P. No. 1926 of 1991.
G. Ramaswamy, Attorney General, K.K. Jain, G. Banerjee, Pramod Dayal and Ajay K. Jain for the Appellants.
S.V. Mehta, A.K. Sanghi, Manjul Bajpai and section Grover for the Respondent.
Gopal Subramanium, Manjul Bajpai and section Grover for the Intervenor.
The Judgment of the Court was delivered by KANIA, J.
Leave granted.
Counsel heard.
This appeal is being disposed of, by consent, at the stage of granting of special leave in view of the urgency.
Appellant No. 1 is the Institute of Chartered Accountants of India, a body incorporated under the , (hereinafter referred to as "the Act").
Appellant No. 2 is the Secretary of Appellant No.1, Institute.
Appel lant No. 1 was formed with the object of regulating the profession of the Chartered Accountants.
Section 9 of the Act provides for the constitution of the Council of Appel lant No.1, Institute, and prescribes that the affairs of the said Institute shall be managed by the said Council which comprises not more than 24 persons elected by the fellows of the Institute and 6 persons nominated by the Central Govern ment.
Sub section (1) of Section 10 of the Act provides that the election of the said Council shall be conducted in the prescribed manner.
Section 30 of the Act confers powers upon the Council to make regulations for the purpose of carrying out the objects of the Act.
In exercise of the said powers, the Council framed regulations known as "the Chartered Accountants Regulations" (hereinafter referred to as "the Regulations").
Chapter VI of the said Regulations 924 deals with the topic of "Elections".
Regulation 82 provides that the Council shall notify in the Gazette of India, at least three months before the 'date of an election, the dates fixed for various stages of election of the members of the Council, like receipt of nominations.
scrutiny of nomi nations, withdrawal of nominations, polling dates and so on.
Regulation 87(1) provides that the Council shall publish in the Gazette of India a notice, setting out the number of members to be elected and calling for nominations of candi dates for election by a specified date, at least three months prior to the date of election.
Sub regulation (2) of Regulation 87 which is the regulation coming up for con struction before us reads as follows: (2) The nomination of a candidate shall be (i) In the appropriate form duly signed by the candidate and by the proposer and the seconder both of whom shall be persons entitled to vote in the election in the relevant regional constituency; and (ii) forwarded by registered post to the Secretary by name so as to reach him not later than 5 p.m. on the specified date.
Provided that a nomination delivered against an acknowledgement before the afore said time and date shall be deemed to have been so forwarded and so having reached if the Secretary is satisfied that the nomination has been duly fowarded by registered post at least 48 hours before the aforesaid time and date.
" Sub regulation (3)of Regulation 87 provides inter alia for the contents of the nominations.
We are not concerned with the rest of the regulations for the purpose of this appeal.
The final time for the receipt of the nominations ,was fixed as 5.00 p.m. on 20th May, 1991, and it was extended to 5.00 p.m. on 21st May, 1991.
The respondent forwarded his nominations by registered post to the Secretary on May 17, 1991, and May 18, 1991, respectively.
The nominations, however, did not reach the Secretary by 5.00 p.m. on May 21, 1991, being the final time and date prescribed for the receipt of the nominations.
Actually, they were received by the Secretary of 925 the Council by registered post on May 23, 1991, and May 27, 1991, respectively.
These nominations were rejected on the ground that they were received after the time fixed for the receipt of the nominations and the name of the respondent was not included in the list of the candidates who had filed their nominations for election to the Council.
Being ag grieved, the respondent filed a writ petition in the Bombay High Court seeking a writ of certiorari to quash the order rejecting his nominations.
The Division Bench of the Bombay High Court, which decided the writ petition, took the view that a plato reading of subregulation (2) of Regulation ' 87 made it clear that the Only mode prescribed by the Regula tions is to tender the nomination by registered post and the rigour of the rule that the nominations must reach before the specified date and specified time, Was relieved by the insertion of the proviso.
It was held by the Division Bench that once the Secretary was satisfied that a nomination had been duly fowarded by registered post to him at least 48 hours before the specified date and time, it must be deemed to have been received within the time provided.
On the basis of this conclusion the High Court made the rule absolute.
It is the correctness of this decision which is sought to be challenged before us.
It was submitted by learned 'Attorney General who ap peared on behalf of the appellants that under sub regulation (2) of Regulation 87, the general rule is that the nomina tions must be forwarded by registered post and must reach the Secretary of the Council not later than 5.00 p.m. on the specified date, the specified date in this case being May 21, 1991.
It was further urged by him that the proviso which, to a certain extent, relaxed this rule came into play only where a nomination was delivered to the Secretary against an acknowledgement before the specified time and specified date and the Secretary was satisfied that a valid nomination had been duly fowarded by registered post to him at least 48 hours before the specified date and time.
It was contended by learned Attorney General that the learned Judges of the Bombay High Court had erred in disregarding the opening part of the proviso which read "provided that a nomination delivered against an acknowledgement before the aforesaid time and date. . " In our view, there is a considerable force in the sub mission of learned Attorney General.
It is trite to say that in construing any regulation or rule it would not be proper to ignore any part of it except in special circumstances.
Moreover, accepting the construction placed by the Bombay High Court on the said proviso would lead to a startling result; for examle, a nomination might have to be treated as 926 received within the specified the and.date even though it might never have reached the Secretary at all or might reach the Secretary after the date of the election, merely because the Secretary is satisfied that the nomination had been duly forwarded to him by registered post at least 48 hours before the specified time and date.
1 is not unknown that the letters sent by registered post are occasionally received after a long delay of several weeks and on some occasions they do not reach at all.
If the construction placed on the said proviso in the impugned judgment were accepted, in such a case as aforestated the entire election would have to be set aside leading to great confusion and hardship.
This consequence must necessarily follow if the view taken by the Bombay High Court were to be accepted in our opinion,the entire scheme of sub regulation (2) and the proviso shows that one of the main pre conditions required before a nomi nation can be said to have been duly received, is that a valid nomination must be received by the Secretary before the specified time and date.
It is true that the rule, in terms, requires that the nominations should be sent by registered post, but taking into account the fact that such a nomination might not be received by the Secretary even though posted more than 48 hours before the specified time and date, it was provided that if the nomination was delivered, let us say, by hand to the Secretary before the specified time and date against acknowledgement, that nomination would be treated as having been validly received provided the Secretary was satisfied that the nomination was forwarded by registered post to him by the candidate 48 hours prior to the specified time and date.
It was contended on behalf of the respondent that in the light of the proviso to sub regulation (2) of Regulation 87 what was intended to be prescribed by the use of the expression so as to reach him not later than 5.00 p.m. on the specified date in clause (ii) of sub regulation (2) of Regulation 87, was that the nominations which had been forwarded by registered post to the Secretary 48 hours before the specified time and date of the election must be deemed to have reached the Secretary in time.
In our view, this contention is fallacious.
What is meant by the use of the aforesaid expression in sub regulation (2) of Regulation 87 is that the nomination must be forwarded by registered post to the.
Secretary so as to reach him in fact or actually reach him not later than 5.00 p.m. on the specified date.
The rigour of the rule is relaxed by the proviso under which if the nomination was delivered against an acknowledgement before the specified time and date, it would be deemed to have been forwarded and to have reached as provided in clause (ii) of sub regulation (2) referred to earlier pro vided the Secretary was satisfied that the nomi 927 nation had been duly forwarded by registered post at least 48 hours before the aforesaid time and date.
In view of the reasoning set out earlier, we set aside the judgment and order passed by the Bombay High Court and we hold that the nomination of the respondent was liable to be rejected on the ground that it was not received in time, as the respondent had failed to deliver to the Secretary against an acknowledgment a nomination before the specified time and date.
However, we find that, in the present case, the elections have already been postponed and the proposed dates for elections will now to be probably fixed in October or November, 1991.
In these circumstances, we direct that all the nominations received upto the end of August 1991 must be treated as received in time provided that the Secre tary is satisfied that they were forwarded by registered post 48 hours before the time and date specified earlier.
The Council may fix the elections on any date they consider proper.
The appeal is allowed to the extent aforesaid.
Looking to the facts and circumstances of the case, there will be no order as to costs.
We may suggest that if the Council so thinks, the regu lations may be suitably amended so as to leave no room for ambiguity, a difficult task indeed.
V.P.R. Appeal allowed.
[/INST]Appellant Company filed criminal complaints under Section 630(l)(b), Companies Act and Section 406, IPC against its employees (the first respondent of each appeal) as they did not vacate the company quarters after about six months even after retirement.
The Judicial Magistrate, First Class dismissed the complaints as the same were not filed within the period of limitation of six months from the date of retirement of the Respondents employees.
The High Court,holding that the offence under Section 630(1) was not a continuing offence, dismissed the Company 's revision petitions.
In the appeal to this Court on the question, whether the offence under Section 630(l)(b) of the Companies Act is a continuing offence for the purpose of limitation, allowing the Appeals of the Appellant Company, this Court, HELD: 1.
The beneficent provision contained in section 630, no doubt penal, has been purposely enacted by the legislature with the object of providing a summary procedure for retrieving the property of the company: (a) where an officer or employee of a company wrongfully obtains 397 possession of property of the company, or (b) where having been placed in possession of any such property during the course of his employment, wrongfully withholds possession of it after the termination of his employment.
It is the duty of the court to place a broad and liberal construction on the provision in furtherence of the object and purpose of the legislation which would suppress the mischief and advance the remedy.
[406B E] 2."Officer" or "employee" in s.630 of the Companies Act includes both present and past officers and employees.[405B C] 3.
The concept of continuing offence does not wipe out the original guilt, but it keeps the contravention alive day by day.
The courts when confronted with provisions which lay down a rule of limitation governing prosecutions should give due weight and consideration to the provisions of s.473 of the Code which is in the nature of an overriding provision and according to which, notwithstanding anything contained in the provisions of Chapter XXXVI of the Code of Criminal Procedure any court may take cognizance of an offence after the expiration of a period of limitation, if, inter alia, it is satisfied that it is necessary to do so in the interest of justice.
[409D G] 4.
The expression `continuing offence ' has not been defined in the Code.
The question whether a particular offence is a 'continuing offence ' or not must,therefore,necessarily depend upon the language of the statute which creates that offence, the nature of the offence and the purpose intended to be achieved by constituting the particular act as an offence.
[409F H] 5.The offence under section 630 is not such as can be said to have consummated once for all.
Wrongful withholding, or wrongfully obtaining possession and wrongful application of the company 's property, that is, for purposes other than those expressed or directed in the articles of the company and authorised by the Companies Act, can not be said to be terminated by a single act or fact but would subsist for the Period until the property in the offender 's possession is delivered up or refunded.
It is an offence committed over a span of time and the last act of the offence will control the commencement of the period of limitation and need be alleged.
The offence consists of a course of conduct arising from a singleness of thought, purpose of refusal to deliver up or refund which May be deemed a single impulse.
Considered from another angle, it consists of a continuous series of acts which endures after the period of consummation on refusal to deliver up or refund the property.
It is 398 not an instantaneous offence and limitation begins with the cessation of the criminal act, i.e., with the delivering up or refund of the property.
It will be a recurring or continuing offence until the wrongful possession, wrongful withholding or wrongful application is vacated or put an end to.
The offence continues until the property wrongfully obtained or wrongfully withheld or knowingly misapplied is delivered up or refunded to the company.
For failure to do so sub section (2) prescribes the punishment.
[409H 410E] 6.
The offence under section 630 of the Companies Act is not one time but a continuing offence and the period of limitation must be computed accordingly, and when so done, the complaints could not be said to have been barred by limitation.
[410D F] W.M.I. Cranes Ltd. vs G.G. Advani & Anr., [1984] 1 Kar.
Law Cronicle 462 overruled; Bhagirath Kanoria and Ors.
vs State of Madhya Pradesh with Bahadur Singh vs Provident Fund Inspector and Ors., A.I.R. 1984 S.C. 1688 referred; Baldev Krishna Sahi vs Shipping Corporation of India Ltd. and Anr., [1987] 4 S.C.C. 361; Amrit Lal Chum vs Devoprasad Dutta Roy and Anr.
; , ; State of Bihar vs Deokaran Nenshi, [19731 1 S.C.R. 1004; Bhagirath Kanoria & Ors.
vs State of Madhya Pradesh & Ors.
, ; followed.
Black 's Law Dictionary, Eighth Edition, (Special Deluxe); Salmond and Heuston on the Law of Torts, 19th Edn.
Page 50; Halsbury 's Laws of England.
4th Edn.
Vol 45, Para 1389 referred to.
</s>
|
<s>[INST] Summarize the judgementvil Appeals Nos.
1597 98 of 1988.
From the Judgment and Order dated 3.3.1988 of the Bombay High Court in W.P. Nos.
1409 & 1776 of 1986.
Dr. Y.S. Chitaley and Mrs. Urmila Sirur for the Appellant.
Ahok K. Gupta, S.J. Deshmukh, Ms. Vrinda Grover and Ms. Bina Gupta for Respondent Nos.
1 to 4.
The Judgment of the Court was delivered by SAWANT, J.
The present appeals arise out of a battle for recognition between the rival trade unions in proceedings under the Maharashtra Recognition of Trade Union & Preven tion of Unfair Labour Practices Act, 1971 (hereinafter referred to as the 'Act ').
The fourth respondent Company has two factories, one at Bhandup, Bombay employing about 1700 workers and the other at Aurangabad employing about 1000 workers.
The first respondent Union, viz., the Association of Engineering Work ers, Bombay obtained a certificate of recognition from Industrial Court, Thane under Section 12 of the Act, on April 7, 1977 for the Company 's undertaking at Bhandup.
While the first respondent Union was acting as such recog nised union, many of the workers claimed that they had resigned from the said Union and formed a new union called the Automobile Products of India Employee 's Union which is the appellant Union and registered it on January 7, 1981 under the .
On October 9, 1981, the appellant Union made an application to the Industrial Court, Thane under Section 13(1)(ii) of the Act for cancellation of the recognition of the first respondent Union on the ground that the latter 's membership in the Bhandup Undertaking had fallen below 30 per cent of the total strength of workmen in that Undertaking for the preceding six months.
In its reply dated November 16, 1981, the first respondent Union refuted the allegation in the application and contended that its membership was more than 30 per cent for the relevant peri od.
The appellant Union on March 1, 1982 submitted yet another application for cancellation of recognition of the first respondent Union this time under Section 13(1)(i) of the Act alleging that the recognition was obtained by the first respondent Union by misrepresentation and/or fraud, and that it was granted recognition also by mistake.
The Industrial Court rendered the relief in favour of the appel lant Union.
However, the said decision was set aside by the High Court and the decision of the High Court was upheld by this Court.
Here ended the first skirmish.
182 3.
The appellant Union thereafter started the second battle this time for its own recognition under Section 14 of the Act and the present appeals are an outcome of the said proceedings.
On July 29, 1982, the appellant Union filed an application under Section 14 of the Act for being registered itself as a recognised union in place of the first respond ent Union on the ground that it had the largest membership of the workers in the Bhandup undertaking, viz., 1036 out of a total of 1700 workers, i.e., about 69% of the total stength.
The first respondent Union in its reply of October 7, 1982 contested the appellant Union 's claim and pleaded that it had a membership of about 1400 workers.
Both the appellant Union and the first respondent Union furnished with their pleadings the details of their membership.
On August 19, 1985, the appellant Union made an application to the Industrial Court to hold an inquiry under Section 12(2) of the Act by directing the investigating officer to verify the membership of both the Unions.
On September 5, 1985, the Industrial Court gave directions to the Investigating Offi cer appointed under the Act to assist the Court, to investi gate the membership of both the Unions.
While the Investigating Officer was in the process of verifying the memberships of the two Unions, suggestions were made for deciding by secret ballot as to which of the Unions commanded the majority.
As per the suggestion, the first respondent Union on December 19, 1985 submitted a draft proposal to the Industrial Court as follows: 1.
The issue pertaining to recognition of any of the unions be decided by secret ballot and the Investigating Officer be directed to conduct the same ballot.
The Union which would have the majority of the votes would be treated as recognised trade union and the one which fails to get the majority would not raise any tech nicality or objection.
The union which thus fails to secure majority in the ballot would raise no objection for the period of three years to the union thus declared as the recognised union.
The appellant Union also submitted its draft proposal, at the same time, in more or less the same terms.
On the same day, i.e., December 19, 1985, the Industrial Court passed an order directing the Investigating Officer to hold a secret ballot in the premises of the Company within 30 days from the date of the order.
The employees who were entitled to vote in the ballot were those who were on the rolls of the 183 Company on July 1, 1985, those who joined employment of the Company, thereafter, being disentitled to do so.
According ly, a secret ballot was held on January 4, 1986.
The result of the ballot showed that in all 1585 workers voted, but only 1578 ballot papers were valid.
The appellant Union secured 798 votes whereas the first respondent Union secured 780 votes.
The Investigating Officer submitted his report to the Industrial Court on January 21, 1986.
On January 30, 1986, the first respondent submitted its objections contend ing that the cut off date of July 1, 1985 was not correct as the employees who were in employment of the Company and whose services were intermittently interrupted were not given an opportunity to exercise their votes, and that there should have been a proper notification with regard to the date of voting so that the employees who were away could have exercised their votes.
On February 10, 1986, the Indus trial Court passed an order granting recognition to the appellant Union in place of the first respondent Union, under Section 14 of the Act after disposing of the objec tions raised by the first respondent Union.
The Industrial Court held that since there was an agreement between the two unions, the procedure adopted to grant recognition to the union under the Act was a valid one.
The Industrial Court also held that there was no substance in the objections of the first respondent Union that by treating July 1, 1985 as the cut off date, the workers who were otherwise entitled to vote were deprived of their right to vote and also that the notice of the ballot which was given to the workers was proper one.
The Industrial Court further granted the request of the appellant Union for cancellation of the recognition of the respondent union.
under Section 13(1)(vii) of the Act as a consequence of the recognition of the appellant Union.
On February 11, 1986, the Industrial Court granted a certif icate of recognition to the appellant Union under Section 14 of the Act.
Against the said decision, two writ petitions were filed in the Bombay High Court under Article 227 of the Constitution of India, one, viz., Writ Petition No. 1409 of 1986 by two workers who were members of the first respond ent Union and the other, viz., Writ Petition No. 1776 of 1986 by the first respondent Union.
In both the petitions, it was alleged that the Industrial Court had violated the provisions of the Act relating to the grant of recognition of the Union by adopting a procedure which was not sanc tioned by it and which was, therefore, illegal and invalid.
Reliance was placed for this purpose on a decision of the Bombay High Court in Maharashtra General Karngar Union, Bombay vs Mazdoor Congress, Bombay & Ors., [1983] M.L.J. 147.
The appellant Union contested both the petitions con tending that 184 the petitioners there were estopped from challenging the procedure which was adopted by the Industrial Court by consent of the first respondent Union.
The High Court by its impugned decision allowed both the writ petitions and set aside the order of the Industrial Court mainly relying upon its earlier decision in Maharashtra General Kamgar Union, Bombay case (supra).
The present appeals are directed against the impugned decision passed in both the said writ petitions.
What, therefore, fails for our consideration in these appeals is whether the procedure adopted by the the Indus trial Court for granting recognition to the appellant Union was illegal.
To appreciate the answer, it is necessary first to appreciate the object and the scheme of the Act.
As has been stated in the Preamble of the Act, the State Government had appointed a committee called the "Committee on Unfair Labour Practices" for indentifying certain activities of employers and workers and their organisations which should be treated as unfair labour practices and for sug gesting actions to be taken against the employers and employees or their organisations for engaging in such unfair labour practices.
The Government, after considering the report of the Committee, was of the opinion that to deal with the unfair labour practices, it was necessary among other things, to provide for the recognition of trade unions for facilitating collective bargaining, and to state their rights and obligations, to confer certain powers on them and to provide for certain consequences for indulging m unfair labour practices.
It is further a common knowledge that although since long there was a strong demand from some sections for recog nising the bargaining agent of the workmen by a ballot secret or otherwise, the National Labour Commission did not countenance it for certain obvious reasons.
It was felt that the elective element would introduce unhealthy trends which would be injurious to the trade union movement, to industri al peace and stability endangering the interests of the workers, the employers and the society as a whole.
It was feared, and from what has become almost a normal feature today, we can say rightly, that the elective element will encourage the growth of mushroom unions just on the eve of election outbidding each other in promising returns to the workers merely to assort supremacy and unmindful of the health of the industry leading eventually to unwarranted industrial strife, stoppage of production and even closure of the establishment with a consequent loss of production and employment.
It was, therefore, thought prudent in the interests of stable industrial 185 relations and industrial peace to evolve a mechanism whereby the bargaining agent on behalf of the workers will have a durable stability as such agent, with a guarantee of unin terrupted loyalty of its members and an unquestionable representative character over a certain period of time.
That is why the concepts such as "recognised union" or "represen tive union" emerged and along with it the machinery to determine it.
The mechanism necessarily involved a process by which the workers who claimed that they were speaking through their bargaining agent had the responsibility to maintain their support to it over a reasonable period of time.
This could be ensured by them by continuing their membership of the union over a specific period.
The continu ation of their membership of the union concerned over a period ensured that their association with the bargaining agent was of a steady and durable character and their alle giance and loyalty to it were not of a fleeting moment but were born of a proper evaluation of all facts.
It is in the light of this background that we have.
to examine the scheme of the Act so far as it relates to the recognition and derecognition of the Unions.
Chapter III of the Act deals with the recognition of unions, whereas Chapter IV deals with their obligations and rights.
Chapter VI deals, among other things, with unfair labour practices on the part of the recognised unions and Chapter VII gives powers to Courts to declare certain acts of recognised unions as unfair labour practices.
Chapter VIII gives to the Courts the power to punish and Chapter IX, to impose penalty on the recognised unions.
The privileges given to the recognised unions and the obligations and responsibilies cast on them are also considerable.
Chapter III which deals with the recognition of unions makes it clear in Section 10 that the said Chapter shall apply to every undertaking where fifty or more employees are employed, or were employed on any day of the preceding 12 months.
If the number of employees employed in the undertak ing at any time falls below 50 continuously in a period of one year, the Chapter ceases to apply to such undertaking.
Section 11 of the Chapter then states the procedure for recognition of union.
A union which is desirous of being registered as a recognised union for any undertaking has to make an application to the Industrial Court for the purpose.
However, for making such application, the Union must have not less than 30 per cent of the total number of employees in that undertaking as its members for the whole of the period of six calendar months immediately preceding the calendar month in which it makes the application.
The Indus trial Court then has 186 to dispose of the application as far as possible within three months from the elate of the receipt of the applica tion if all the concerns of the undertaking are situated in the same local area; and in any other case, within four months.
Section 12 then lays down the manner in which the Indus trial Court will proceed to enquire into the application and grant recognition.
On receipt of the application, the Indus trial Court has to make a preliminary scrutiny of it to find out that it is in order.
The Court then has to cause a notice to be displayed on the notice board of the undertak ing for which the recognition is sought, stating therein that the Court intends to consider the said application on a date specified in the notice, and also calling upon the other union or unions, if any, in the undertaking as well as the employers and employees affected by the proposal for recognition, to show cause within a prescribed period as to why recognition should not be granted to the applicant union.
If after considering the objections, if any received, and if after holding such enquiry in the matter as it deems fit, the Industrial Court comes to the conclusion that the applicant union satisfies the condition stated in Section 11, viz., among other things, that it has a membership of not less than 30 per cent for the relevant period and that it also satisfies the conditions which are specified in Section 19 of the Act, the Court grants recognition to the applicant union and issues a certificate of such recognition to it.
On the other hand, if the Court comes to the conclu sion that any of the other unions has the largest membership of employees and the said other union has notified to the Court its claim to be registered as a recognised union and if that other union also satisfies the requisite conditions of Section 11 and 19 of the Act, the Court has to grant recognition to the said other union.
It is necessary, at this stage to state the conditions laid down in Section 19 which are necessary to be complied with by a union for recognition.
Section 19, which appears in Chapter IV dealing with the obligations and rights of recognised unions, lays down that the union which seeks recognition under the Act has to provide in its rules the following matters, and those matters have to be duly observed by it, viz., (i) the mem bership subscription of the union should not be less than fifty paise per month; (ii) the Executive Committee of the union must meet at intervals of not more than three months; (iii) all resolutions passed by the Executive Committee or the general body of the union have to be recorded in a minute book kept for the purpose; and (iv) the union 's accounts have to be audited at least once in each financial year by an auditor appointed by the State Government.
187 Section 12 then states that at any time there shall not be more than one recognised union in respect of the same undertaking.
The section also enjoins upon the Court not to recognise any union, if it is not satisfied that the appli cation for its recognition is not made bona fide in the interest of the employees but is made in the interest of the employer and to the prejudice of the interest of the employ ees.
So also the section mandates the Court not to recognise any union if at any time within six months immediately preceding the date of the application for recognition, the applicant union has instigated, aided or assisted the com mencement or continuation of a strike which is deemed to be illegal under the Act Section 13 provides for cancellation of the recognition of the union and suspension of its rights as a recognised union.
It states that if the Industrial Court is satisfied after holding an enquiry in the matter that: (i) the union was recognised under mistake, misrepresen tation or fraud, or (ii) the membership of the union has for a continuous period of six calendar months fallen below the minimum required under Section 11 for its recognition, viz., 30 per cent of the total strength of the employees; or (iii) the recognised union has, after its recognition, failed to observe the conditions specified in Section 19; or (iv) the recognised union is not being conducted bona fide and is being conducted in the interest of employer to the prejudice of the interest of the employees; or (v) it has instigated, aided or assisted the commencement or continuation of a strike which is deemed to be illegal under the Act; or (vi) its registration under the is cancelled; or (vii) another union has been recognised in place of the union recognised under the said Chapter, it would cancel its recognition.
The Industrial Court is also given the power to suspend the rights of the 188 recognised union for some specified period and it may not proceed to cancel the recognition, if it is satisfied that the former course is in the circumstances, a proper one.
Section 14 with which we are concerned then lays down the procedure for recognition of other union when there is already a recognised union in the field.
It states that any union can make an application for being registered as a recognised union in place of a recognised union which is already registered as such for the undertaking.
Such other union can make an application on the ground that it has the largest membership of employees employed in the undertaking.
The conditions precedent to making such application, howev er, are that: (i) a period of at least two years must have elapsed since the day of the registration of the recognised union; (ii) a period of one year should have elapsed since the date of disposal of the previous application for recognised of such union; (iii) the union must have satisfied the conditions neces sary for recognition specified under Section 11; and in addition, (iv) its membership during the whole of the period of six calendar months immediately preceding the calendar month in which such application is made must have been larger than the membership of the recognised union; (v) the provisions of Section 12 (which also include the conditions specified in Section 19), are satisfied.
If, however, the Court comes to the conclusion that any of the other unions has the largest membership of employees and such other union has also notified to the Court its claim to be registered as a recognised union and that such other union also satisfies the necessary conditions, the Court will grant recognition to the other union.
Section 15 provides for re recognition of the union whose recognition has been cancelled on the ground that it was recognised under a mistake or on the ground that its membership had for a continuous period of six calendar months fallen below the minimum required under Section 11, viz., below 30%.
Such an application can be made by the derecognised union after three months from the date of its derecogni 189 tion.
On such application being made, the provisions of Section 11 and 12 referred to above would apply to it as they applied to an application made for the union 's initial recognition.
However, this section also makes it clear that if the recognition of the union had been cancelled on any other ground, it cannot apply for re recognition within a period of one year from the date of such derecognition save with the permission of the Court.
Section 16 states that even if the recognition of union is cancelled, it will not relieve the union or any of its members from any penalty or liability incurred under the Act prior to such cancellation.
Section 18 provides for recogni tion of unions for more than one undertaking.
Section 20 which appears along with Section 19, 21 and 23 in Chapter IV dealing with the obligations and rights of recognised un ions, among other things, deals with the right of a recog nised union and of such officers and members of the office staff and members of the recognised union, as may be autho rised by or under rules made by the State Government.
Those rights include the right: (a) to collect sums payable by members to the union on the premises, where wages are paid to them; (b) to put up or cause to be put up a notice board on the premises of the undertaking in which its members are em ployed and to affix or cause to be affixed notice thereon; (c) for the purpose of the prevention or settlement of an industrial disputes (i) to hold discussions on the premises of the undertaking with the employees concerned, or its members (ii) to meet and discuss with the employer or any person appointed by him in that behalf the grievances of employees; (iii) to inspect, if necessary, any place in the undertaking where any employee is employed; (d) to appear on behalf of any employee or employees in any domestic or departmental enquiry.
The section also makes it clear that it is only the recog nised union.
190 when there is one, which shall have the right to appoint its nominees to represent workmen on the Works Committee consti tuted under Section 3 of the and it is only the recognised union which shall have the right to represent in certain proceedings under the said Act, and that the decisions arrived at or order made in such proceedings shall be binding on all the employees in such undertaking, and to that extent the provisions of the said Act shall stand amended.
Section 21 then states that when there is a recognised union, no employee in the undertaking shall be allowed to appear or act or allow to be represented in any proceedings relating to unfair labour practices specified in Items 2 and 6 of Schedule IV of the Act except through the recognised union.
The only exception to this rule is in the case of the undertakings governed by the Bombay Industrial Relations Act where the representatives of the employees under Section 30 of that Act are given the special privilege.
It is not necessary to deal with the other provisions of the Act.
It is thus clear that the recognition or derecogni tion of a union under the Act is not a matter which concerns only the contesting unions or its members.
It is a matter of utmost importance to the interests of all the workmen in the undertaking concerned and to the industry and society in general.
No union is entitled to be registered as a recog nised union under the Act merely because it satisfies the membership qualification.
The Industrial Court is forbidden from granting recognition to a union whatever its member ship, if the Court is satisfied that it is disqualified for reasons mentioned under Section 12(.5) and 12(6) or does not satisfy the conditions mentioned in Section 19.
A period of two years must further have elapsed since the registration of the recognised union, if there is one, before an applica tion for recognition of a new union is entertained.
A union whose recognition is cancelled on the ground specified in clause (ii) of Section 13 cannot make a fresh application for a period of three months, and if its recognition is cancelled on any other ground it cannot make a fresh appli cation for recognition for a period of one year from the date of the cancellation in the latter case without the permission of the Court.
In addition to the membership qualification, therefore, the Court has also to satisfy itself that the applicant union is not disentitled to recog nition or to apply for recognition, under the other provi sions of the Act.
As regards the membership qualification itself, the Act enjoins that for being recognised, the applicant union must have firstly a membership of a minimum of 30 per cent of the employees of the undertaking for the whole of the period of at least six calendar months 191 preceding the month in which the application for recognition is made.
When the applicant union seeks recognition for itself by displacing the existing recognised union, the applicant union has, in addition, to satisfy that not only it had 30 per cent of the membership during the six calendar months immediately preceding the calendar month in which it made its application, but had also a larger membership during the said period than the membership of the recognised union.
Even with regard to membership, therefore, what has to be satisfied by the concerned union is not only its minimum qualifying membership but also its competing superi ority in it over a continuous specified period.
What should further be not lost sight of is the paramount fact that it is the membership of the workmen of the union over a period vouched by the relevant documents and not their vote on a particular day which under the Act gives the Union its representative character.
It is its representative character determined by such membership that gives a union a right to make the application for recognition.
However overwhelming therefore the vote may be in its favour in a ballot, it will not entitle a union to recognition under the Act.
the recog nition by ballot or by any method other than that laid down in the Act is, therefore, alien to the Act.
The facts in the present case would reveal that what was done by the Industrial Court was to permit the registra tion of the union as a recognised one by a method which was clearly alien to the Act.
The Court in effect allowed the parties to circumvent the provisions of the Act and by adopting a simplistic method directed that whoever commanded a majority of votes of the employees voting on a particular day, would be entitled to the status of the recognised union.
In effect, therefore, the Court ignored in particular the mandatory provisions of Sections 10, 11, 12, 14 and 19 of the Act.
Not only that, but by adopting this method, the Court also failed to find out whether any of those workers who voted were members of any of the two unions at any time including on the day of the ballot.
This is apart from the fact that what has to be found out is the exclusive member ship of the contesting unions continuously over the speci fied period, the overlapping membership being ignored.
The consent of the parties to follow a procedure which is against the mandatory provisions of the Act, cannot cure the illegality.
For reasons which we have indicated earlier the legislature did not opt for the ballot as a method for determining the representative character of the union and laid down an elaborate procedure with necessary safeguards, to do so.
In the circumstances, to permit the parties by consent to substitute a procedure of their own is in effect to permit them 192 to substitute the provisions of the Act.
Hence, we are of the view that the order of the Industrial Court granting recognition under the Act to the appellant Union by following the method of ballot is prima facie illegal being in breach of the provisions of the Act.
The High Court had, therefore, rightly interfered with the said order by relying on its earlier decision in the case of the Maharashtra General Kamgar Union, (supra).
In the re sult, the appeals fail and are dismissed.
The matter is remanded to the Industrial Court for disposal according to law.
It is, however, made clear that if there are any set tlements which have been arrived at between the appellant Union and the respondent Company, they will be allowed to run their full course.
The appellant Union will not enter into any settlement during the pendency of the present proceedings and if any settlement is to be entered into, it should be done only with the consent of the respondent Union which has not lost its recognition as yet.
There will be no order as to costs.
N.V.K. Appeals dismissed.
[/INST]The fourth respondent, a company had two factories in the State of Bombay.
The first respondent Union obtained a certificate of recognition from the Industrial Court under section 12 of the Maharashtra Recognition of Trade Unions & Prevention of Unfair Labour Practices Act, 1971 for one of the company 's undertakings.
While it was acting as such recognised union, many of the workers claimed that they had resigned from the said union and formed a new union, the appellant Union had it registered on January 7, 1981.
The Appellant Union made an application to the Industri al Court under Section 13(1)(ii) on October 9, 1981 for cancellation of the recognition of the first respondent Union on the ground that the latter 's membership in the undertaking had fallen below 30 per cent of the total strength of workmen in the undertaking for the preceeding six months.
The allegations were refuted by the first re spondent Union and it was further contended that its member ship was more than 30 per cent for the relevant period.
Another application was submitted by the appellant Union on March 1, 1982 for cancellation of the recognition of the first respondent Union under Section13(1)(ii) alleging that the recognition was 178 obtained by misrepresentation and/or fraud, and that it was also granted recognition by mistake.
The Industrial Court rendered the relief in favour of the appellant Union, but the said decision was set aside by the High Court, and confirmed by this Court.
After sometime the appellant Union moved an application under section 14 for being registered itself as a recognised union in place of the first respondent Union on the ground that it had the largest membership of the workers in the undertaking, i.e. about 69% of the total strength.
This claim was contested by the first respondent Union, in its reply, and it was pleaded that it had a membership of 1400 workers.
Details of membership were furnished by the parties with their pleadings and an application was made by the appellant Union to the Industrial Court to hold an enquiry under section 12(2) by directing the Investigating Officer to verify the membership of both the Unions.
The Industrial Court thereupon gave directions to the Investigating Officer appointed under the Act to investigate the membership of both the Union.
While the investigation was in progress, both the Unions submitted draft proposals to the following effect: (1) The issue pertaining to recognition of any of the Unions be decided by secret ballot and the Investigating Officer be directed to conduct the same ballot; (2.) The union which would have the majority of the votes would be treated as recognised trade union and the one which fails to get the majority would not raise any technicality or objec tion and (3) The union which fails to secure majority in the ballot would raise no objection for the period of three years to the union thus declared as the recognised union.
The Industrial Court directed the Investigating Officer to hold a secret ballot in the premises of the Company and the employees who were entitled to vote in the ballot were those who were on the rolls of the Company on July 1, 1985.
A secret ballot was held and the appellant Union secured 798 votes whereas the first respondent Union secured 780 votes.
The first respondent Union submitted objections contend ing that he cut off date of July 1, 1985 was not correct as the employees who were in employment of the Company and whose services were intermitently interrupted were not given an opportunity to exercise their votes.
179 The Industrial Court disposing of the aforesaid objection, held that since there was an agreement between the two unions, the procedure adopted to grant recognition to the union under the Act was a valid one, and granted the request of the appellant Union for cancellation of the recognition of the respondent Union under section 13(1)(VII) of the Act, and as a consequence of the recognition, granted recognition to the appellant Union in place of the first respondent Union under section 14 of the Act, and granted the necessary certificate of recognition.
Writ petitions were filed in the High Court under Arti cle 227 of the Constitution by two workers of the first respondent Union, contesting the aforesaid order of the Industrial Court, and they were allowed.
The High Court relying on its earlier decision in Maharashtra General Kamgar Union, Bombay vs Mazdoor Congress, Bombay & Ors., , set aside the order of the Industrial Court.
In the appeals to this Court on the question: whether the procedure adopted by the Industrial Court for granting recognition to the appellant Union was illegal.
Dismissing the appeals, this Court, HELD: 1.
The order of the Industrial Court granting recognition under the Act to the appellant Union by follow ing the method of ballot is prima facie, illegal being in breach of the provisions of the Act.
The High Court had, therefore rightly interfered with the said order.
[192B] Maharashtra General Kamgar Union, Bombay vs Mazdoor Congress, Bombay & Ors., , approved.
Section 14 lays down the procedure for recognition of the other union when there is already a recognised union in the field.
The conditions precedent to making such applica tion are; (i) a period of at least two years must have elapsed since the day of the registration of the recognised union; (ii) a period of one year should have elapsed since the date of disposal of the previous application for recog nition of such union; (iii) the union must have satisfied the conditions necessary for recognition specified under section 11; and in addition; (iv) its membership during the whole of the period of six calendar months immediately preceding the calendar month in which such application is made must have been larger than the membership of the recog nised union; (v) the provisions of Section 12 (which also include the conditions specified in Section 19), are satis fied.
If, however, the Court comes to the conclu 180 sion that any of the other unions has the largest membership of employees and such other union has also notified to the Court its claim to be registered as a recognised union and that such other union also satisfies the necessary condi tions, the Court will grant recognition to the other union.
[188B, C G] 3.
The recognition or derecognition of a union under the Act is not a matter which concerns only the contesting unions or its members.
It is a matter of utmost importance to the interests of all the workmen in the undertaking concerned and to the industry and society in general.
No union is entitled to be registered as a 'recognised union under the Act merely because it satisfies the membership qualification.
[1901D E] 4.
The Industrial Court is forbidden from granting recognition to a union whatever its membership, if the Court is satisfied that it is disqualified for reasons mentioned under section 12(5) and 12(6) or does not satisfy the condi tions mentioned in section 19.
[190E] In the instant case what was done by the Industrial Court, was to permit the registration of the union as a recognised one by a method which was clearly alien to the Act.
The Court in effect allowed the parties to circumvent the provisions of the Act and by adopting a simplistic method directed that whoever command a majority of votes of the employees voting on a particular day, would be entitled to the status of the recognised union.
The Court thus ignored in particular the mandatory provisions of Sections 10, 11, 12, 14 and 19 of the Act.
Not only that, the Court also failed to find out whether any of those workers who voted were members of any of the two unions at any time including on the day of the ballot.
What had to be found out was the exclusive membership of the contesting unions con tinuously over the specified period the overlapping member ship being ignored, [191D G] 5.
The consent of the parties to follow a procedure which is against the mandatory provisions of the Act, cannot cure the illegality.
To permit the parties by consent to substitute a procedure of their own is in effect to permit them to substitute the provisions of the Act.
[191G, H; 192A] [Matter remanded to Industrial Court for disposal ac cording to law.] [192B] 181
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<s>[INST] Summarize the judgementivil Appeal No. 4042 of 1988.
From the Judgment and Order dated 17.12.
1987 of the Bombay High Court in W.P. No. 1048 of 1982.
S.C. Gupta and M.N. Shroff for the Appellant.
Anil Dev Singh, Ms. Nayana Buch, M.J. Paul, Kailash Vasdev, Ms. Subhashini and Mrs. Kitty Kumarmangalam for the Respondents.
The Judgment of the Court was delivered by THOMMEN, J.
This civil appeal by special leave is di rected against judgment dated 17.12.1987 of the High Court of Bombay in Writ Petition No. 1048 of 1982 instituted by the appellant, which is a Co operative Credit Society.
The 1st respondent is a Federation representing the employees of the appellant amongst others.
Setting aside the award of the Industrial Tribunal, the High Court held that the appellant was liable to pay its employees bonus at the rate of 20 per cent of its total annual earnings for the years 1975 76, 1976 77 and 1977 78.
The principal contention urged at the Bar against the impugned judgment is that the High Court went wrong in directing the appellant to pay bonus without regard to various amounts invested by it as permitted under the rele vant provisions of the Maharashtra Cooperative Societies Act, 1960 (the "Co operative Societies Act") and other amounts carried forward to its reserve fund.
The appellant 's counsel contends that the High Court did not correctly read the provisions of Section 6(d) of the (The "Bonus Act") and item (4) of the Third Schedule to the said Act.
Counsel further contends that the High Court was not justified in.
placing reliance on the Explanation to the Third Schedule to the Bonus Act as 268 it has no relevance to co operative societies.
The Explana tion, he says, is relevant only to items (1), (2) and (3) of the Third Schedule to the Bonus Act.
We shall now read the relevant provisions.
Section 6 of the Bonus Act refers to various sums which are deductible from gross profits.
It reads: "6.
Sums deductible from gross profits.
The following sums shall be deducted from the gross profits as prior charges, namely: (d) such further sums as are specified in respect of the employer in the Third Sched ule.
" The employer in question being a co operative society, it is item (4) of the Third Schedule to the Bonus Act that is applicable.
That reads: Item Category of employer Further sums to be deducted NO.
(2) (3) 4.
Co operative Society (i) 8.5 per cent of the capital invested by such society in its establishment as evidenced from its books of accounts at the commencement of the accounting year; (ii) such sums as has been carried forward in res pect of the accounting year to a reserve fund under any law relating to co operative societies for the time being in force.
269 In column (3) of item (4), two types of amounts are deductible from the gross profits as prior charges.
Firstly, 8.5 per cent of the capital invested by a co operative society in its establishment is deductible.
Secondly, amounts carried forward to a reserve fund in compliance with any provisions of law relating to co operative societies are also deductible.
(The expression 'capital ' is not defined under the Bonus Act.
It must, therefore, be understood in the sense in which that expression is generally understood.
That means all amounts which are classified as capital in contrast to revenue must qualify for deduction subject to the limit of 8.5 per cent, provided such capital is invested by the society in its establishment as evidenced by its books of accounts at the commencement of the accounting year.
Any such capital upto 8.5 per cent is thus deductible.
Furthermore, all sums which have been carried forward in respect of the relevant accounting year to a reserve fund as required under any law applicable to co operative societies for the time being in force are also deductible from gross profits.) This means that reserve fund created in terms of Section 66of the Co operative Societies Act is deductible under item (4) of the Third Schedule to the Bonus Act.
Section 66 reads.
(1) Every society which does, or can, derive a profit from its transactions shall maintain a reserve fund.
(2) Every society shall carry at least one fourth of the net profits each year to the reserve fund; and such reserve fund may sub ject to the rules made in this behalf, if any, be used in the business of the society or may, subject to the provisions of section 70, be invested, as the State Government may by general or special order direct, or may, with the previous sanction of the State Government, be used in part for some public purpose likely to promote the objects of this Act, or for some such purpose of the State, or of local interest: Provided that, the Registrar may, having regard to the financial position of any socie ty or class of societies, fix the contribution to be made to the reserve fund under this sub section at a lower rate, but not lower than one tenth of the net profits of the society or societies concerned." Accordingly, all such amounts held by the society as reserve fund in terms of Section 66 of the Co operative Societies Act must qualify for deduction.
The minimum re serve fund that is required to be 270 maintained by Section 66 of the Co operative Societies Act is one fourth of the net profits of each year.
(If larger amounts are carried forward to the reserve fund in terms of Section 66, all such amounts will come within the ambit of item (4) of the Third Schedule to the Bonus Act and qualify for deduction.) Accordingly, we hold that 8.5 per cent of the capital invested by the society in its establishment as disclosed by its books of accounts, together with amounts carried forward to a reserve fund in compliance with Section 66 and other provisions of the Co operative Societies Act read with the rules made thereunder (See Rule 54 of the Maharashtra Co operative Societies Act, 1954) will be de ductible in terms of Section 6 of the Bonus Act.
We must, however, point out that the High Court was not justified in placing any reliance on the Explanation to the Third Schedule to the Bonus Act for that has, as tightly pointed out by the appellant 's counsel, no relevance to a co operative society.
In this connection, we place on record that counsel on both sides agree that reference to 20 per cent in paragraph 11 of the judgment was wrong in respect of the year 1975 76.
They agree that for that year, the correct figure is 18.78 per cent.
Accordingly, we hold that reference to 20 per cent in paragraph 11 of the impugned judgment must be read as 18.78 per cent for the year 1975 76 and 20 per cent for the succeeding two years.
Subject to what we have stated above, we hold that the High Court was right in directing the appellant society to pay bonus to its employees.
The society is liable to pay bonus at the rate of 20 per cent for the years 1976 77 and 1977 78 and 18.78 per cent for the year 1975 76.
In the circumstances, the appeal must fail and is ac cordingly dismissed.
The parties shall bear their respective costs.
[/INST]Pursuant to the directions made by the Supreme Cour t, with a view to providing relief to delinquent childr en detained in jails, in 1986 the District Judges of the enti re country supplied the particulars of under trial and convic t ed children found in regular jails within their jurisdi c tion.
With the passage of time and the coming into force of the Juvenile Justice Act, 1986 it became necessary to g et fresh detailed reports for updating the information.
The Supreme Court issued directions and, HELD: 1.
Children require the protective umbrella of society for better growth and development as they are not in a position to claim their entitlement to attention, growi ng up, food, education and the like.
It is the responsibili ty of the society and is one of the paramount obligations of those who are in charge of governance of the country tod ay to attend to the children to make them appropriate citize ns of tomorrow.
[64A B] 2.
Every District Judge is directed to report to th is Court the figures as to the exact number of delinque nt juveniles still detained in regular jails and whether juv e nile courts, juvenile homes, special homes and observatio ns homes as provied in the Juvenile Justice Act, 1986 have be en established.
[62H; 63A] 61 2.1 A Senior Advocate of this Court is appointed as Commissioner to visit the jails in the three Districts of the State of Bihar, viz. Deogarh, Patna and Bhagalpur a nd collect the necessary particulars of juvenile delinquen ts housed in those jails and report to this Court.
He shall be provided all facilities by the State Government and sha ll also be entitled to reimbursement of his expense section [64H;65A B] 3.
Section 62 of the Juvenile Justice Act, 1986 empowe rs the State Government to make rules to carry out the purpos es of the Act.
The scheme of the Act is such that it cannot be properly enforced unless appropriate rules are framed a nd brought into force.
The District Judges while making the ir reports shall also indicate whether rules have been fram ed and whether such rules are already in force.
Counsel for t he respective States are directed to inform this Court by written Memorandum about the framing of rules and bringi ng them into force in the respective States.
If such rul es have not been framed in any State, such State or States a re directed to frame the same and bring them into force witho ut any further delay.
[63C E] 4.
For facilitating the monitoring of the implementati on of the Juvenile Justice Act, 1986, a group of nominat ed advocates is entrusted with the work of making a dra ft Scheme and placing it before the Court for its consider a tion.
[64D E] 5.
The Registry of this Court should have appropria te funds to meet the expenses from time to time.
The Union of India is directed to deposit a sum of Rs.50,000 while ea ch of the States of Bihar and West Bengal and Uttar Pradesh is directed to deposit a sum of Rs.15,000.
[65B C]
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<s>[INST] Summarize the judgementAppeals Nos. 1052, 1054 to 1058, 1060 to 1087, 1089 to 1095, 1097, 1100 to 1112, 1114 to 1118, 1120 to 1129, 1131 and 1133 to 1145 of 1968.
Appeals by special leave from the judgment and order, dated July 7, 1966 of the Kerala High Court in Writ Appeals Nos. 35, 38 to 40, 43, 44, 46, 47, 57, 59 60 to 69, 71 to 77, 79 to 82, 84 to 86, 88, 89.92 to 95, 97, 99, 102, 184 to 186, 190 to 195, 202, 217, 218, 222 to 224, 226, 227, 231 to 240, 242, 245,247, 249 to 252, 257, 273, 274, 305 to 307, and 312 of 1965 respectively and Civil Appeals Nos. 1146 and 1147 of 1968.
Appeals by special leave from the judgment and order, dated September 19, 1966 of the Kerala High Court in Writ Appeals Nos.
42 and 246 of 1965.
B.R.L. lyengar and ,A. G. Pudissery, for the appellant (in all the appeals).
Sardar Bahadur, Vishnu Bahadur and yougindra Khushalani, for the respondent (in C.As.
1080 and 1137 of 1968).
H.R. Gokhale and J. B. Dadachanji, for the respondent (in C.As.
Nos. 1094 and 1144 of 1968).
A.V.V. Nair, for the respondents Nos. 2 and 3 (in C.As.
1053, 1112 and 1139 of 1968).
Lily Thomas, for the respondent (in C.As.
1056, 1087 and 1128 of 1968) A. Sreedharan Nambiar, for the respondent (in C.As.
Nos; 1067, 1075, 1091 and 1136 of 1968).
M.C. Chagla, 1.
B. Dadachanji and Thomas Vallapally for intervener (in C.A. No. 1144 of 1968).
, Shah, J.
This group of appeals arises out of an order passed by the High Court of Kerala holding that the Kerala Buildings Tax Act 19 of 1961 is ultra.
vires the Legislature in that it infringes the equality clause of the Constitution.
The State Kerala has appealed against the decision With special leave granted by this Court.
647 The material provisions of the Kerala Buildings Act, 1961, may be briefly set out.
The Act extends to the whole of the State of Kerala; section 1 (2), and shall be deemed to have come into force with effect from March 2, 1961; section 1(3).
An "assessee" is defined by section 2(b) as meaning a person by whom building tax or any other sum of money is payable under the Act and includes every person in respect of whom any proceeding under the Act has been taken for the assessment of building tax payable by him.
Section 2(d) defines "building" as meaning a house, out house, garage or any other structure or part thereof whether of masonry, bricks, wood, metal, or other material, but does not include any portable shelter or any shed constructed principally of mud, bamboos, leaves, grass or thatch or a latrine which is not attached to the main structure.
"Floorage" is defined by section 2(e) as meaning the area included in the floor of a building, and where a building has more than one floor of a building, the aggregate area included in all the floors together.
By section 3 buildings owned by the State Government, the Central Government or any local authority and buildings used principally for religious, charitable or educational purposes or as factories or workshops are exempt from payment of tax under the Act.
By section 4 it is provided that there shall be a charge to tax in respect of every building the construction of which is completed on or after March 2, 1961, and which has a floor area of one thousand square feet or more, and that the building tax shall be payable by the owner of the building.
The Schedule to the Act sets out the rates of building tax.
Buildings having a total floor area of less than 1,000 sq.
ft. are not liable to pay tax.
The Act, on a bare perusal, discloses some singular provisions.
The liability to tax in respect of buildings having total floor area between 1,000 to 2,000 sq.
ft. varies between Rs. 100 to Rs. 200; for buildings with a floor area between 2,000 to 4,000 sq.
ft. varies between Rs. 400 to Rs. 800; for buildings having total floor area between 4,000 to 8,000 sq.
it varies between Rs. 1,200 to Rs. 2,400; for buildings, with total floor area of 8,000 to 12,000 sq.
it varies between Rs. 3,200 to Rs. 4,800; and in respect of buildings having total floor area exceeding 12,000 sq.
a rate of 50 np.
per sq.
foot i.e., Rs. 6,000 or more per annum.
For determining the quantum of tax the sole test is the area of the floor of the building.
The Act applies to the entire State of Kerala, and whether the building is situate in a large industrial town or in an insignificant village, the rate of tax is determined by the floor area: it does not depend upon the purpose for which the building is used, the nature of the structure, the town and locality in which the building is situate, the economic rent winch may be obtained from the building, the cost of the building and other related circumstances which may appropriately be taken into 648 consideration in any rational system of taxation of building.
Under the Seventh Schedule List H Entry 49, the State Legislature has the power to legislate for levying taxes on lands and buildings.
But that power cannot be used arbitrarily and in a manner inconsistent with the fundamental rights guaranteed to the people under the Constitution.
No tax may be levied or collected under our constitutional set up except by authority of law: and the law must not only be within the legislative competence of the State, but it must also not be inconsistent with any provision of the Constitution.
It has been frequently said by this Court that the validity of a taxing Statute is open to question on the ground that it infringes fundamental rights.
In K.T. Moopil Nair V. State of Kerala,(1) Sinha, C.J., delivering the judgment of the majority observed at p. 89: "Article 265 imposes a limitation on the taxing power of the State in so far as it provides that the State shall not levy or collect a tax, except by authority of law, that is to say, a tax cannot be levied or collected by a mere executive fiat.
It has to be done by authority of law, which must mean valid law.
In order that the law may be valid, the tax proposed to be levied must be within the legislative competence of the Legislature imposing a tax and authorising the collection thereof and, secondly, the tax must be subject to the conditions laid down in article 13 of the Constitution.
One of such conditions envisaged by article 13(2) is that the Legislature shall not make an) ' law which takes away or abridges the equality clause in article 14, which enjoins the State not to deny to any person equality before the law or the equal protection of the laws of the country.
It cannot be disputed that if the Act infringes the provisions of article 14 of the Constitution.
it must be struck down as unconstitutional.
: Similar observations were made in Khandige Sham Bhat V. Agricultural, Income tax Officer.
(2) The principles which have been expounded by this Court in determining whether there has been denial of equal protection of the laws are also well settled: see Shri Ram Krishna Dalmia V. Shri Justice S.R. Tendolkar and Ors.(3).
It is true that in the application of the principles, the Courts, in view of the inherent complexity of fiscal legislation admit a larger discretion to the Legislature in the matter of classification, so long as it adheres to the fundamental principles underlying the doctrine of equality.
The power of the Legislature to classify is, it is said, of "wide (1) ; (2) ; (3) ; 649 range and flexibility" so that it can adjust its system of taxation in all proper and reasonable ways Khandige Sham Bhat V. Agricultural Income tax Officer(1).
But in enacting the Kerala Building Tax Act, no attempt at any rational classification is made by the Legislature.
As already observed, the Legislature has not taken into consideration in imposing tax the class to which a building belongs, the nature of construction, the purpose for which it is used, its situation, its capacity for profitable user and other relevant circumstances which have a beating on matters of taxation.
They have adopted merely the floor area of the building as the basis of tax irrespective of all other considerations.
Where objects, persons or transactions essentially dissimilar are treated by the imposition of a uniform tax, discrimination may result, for, in our view, refusal to make a rational classification may itself in some cases operate as denial of equality.
This Court in a recent judgment has decided that the levy of tax in exercise of the power under Entry 49 List II of the Seventh Schedule in respect of factory buildings in a municipal area based on floor area was illegal: New Manek Chowk Spinning and Weaving Mills Co. Ltd. V. Municipal Corporation of the City of Ahmedabad(2).
The Court held in that case that the method of adopting a flat rate for a floor area for determining the annual value adopted by the Corporation of Ahmedabad in exercise of the powers conferred upon it by the Bombay Provincial Municipal Corporation Act 49 of 1949 was against the provisions of the Act and the Rules made thereunder as well as all recognized principles of valuation for the purpose of taxation.
If levy of tax in a municipal district based on floor area in respect of a factory building violates article 14 of the Constitution when the tax is sought to be levied by the Municipal Corporation, we see no reason to uphold the tax imposed under the impugned Act when the State, in exercise of legislative authority conferred by Entry 49 List II Sch. VII, imposes liability to tax buildings solely on floor area.
The vice of the Act in the present case is more pronounced than it was in New Manek Chowk Spinning & Weaving Mills Case(2).
In that case the Rules under which the tax was sought to be levied on the basis of floor area were restricted in their operation to factory buildings within the Corporation limits of Ahmedabad, whereas Act 19 of 1961 which is challenged in the present case applies to the whole State of Kerala in respect of buildings completed on or after March 2, 1961, whatever may be the nature or class of the building, the use to which it is put, materials used in its construction and the extent of profitable user to which the building may be put, its cost and its economic rental.
It is unnecessary in the circumstances to consider whether imposition of a tax only on buildings constructed (1) ; (2) [1967] 2 S.C.R. 679.
650 after March 2, 1961, and exempting buildings completed before that date may not violate article 14 of the Constituiton.
The High Court was, in our judgment, fight in holding that the charging section of the Act is violative of the equality clause of the Constitution.
The appeals therefore fail and are dismissed with costs.
Parties appearing in different groups of appeals through the same Advocate in tiffs Court will be entitled to one hearing fee.
G.C. Appeals dismissed.
[/INST]Under section 4 of the Kerala Buildings Tax Act, 1961, buildings constructed after the coming into force of the Act and having a floor area of one thousand square feet or more were subjected to tax on a graduated scale.
The tax was levied on the basis of floor area only and no classification was attempted.
The High Court in writ petitions filed by the present respondents held the charge to be invalid because of violation of the equality clause of the Constitution.
The State appealed.
HELD: (i) The law bY which a tax is levied must not only be within the competence of the legislature concerned but it must also not be inconsistent with any provision of the Constitution.
The validity of a taxing statute is open to question on the ground that it infringes the fundamental rights.
[648 B C] K.T. Moopil Nair vs State of Kerala, ; and Khandige Sham Bhat vs Agricultural Income tax Officer, ; , relied on.
(ii) In the application of the principles expounded by this Court for determining whether there has been denial of equal protection of the laws, the Courts, in view of the inherent complexity of fiscal legislation admit a larger discretion to the Legislature in the matter of classification, so long as k adheres to the fundamental principles underlying the doctrine of equality.
The power of the legislature to classify is of 'wide range and flexibility ' so that it can adjust its system of taxation in all proper and 'reasonable ways.
[648 H] But when objects persons or transactions essentially dissimilar are treated by the imposition of a uniform tax, discrimination may result, for, refusal to make a rational classification may itself in some cases result in denial of equality.
[649 C] in enacting the Kerala Building Tax Act no attempt at any rational classification has been made by the Legislature.
The Legislature has not taken into consideration in imposing tax the class to which a building belongs, the nature of construction, the purpose for which it is used, its situation, its capacity for profitable user and other relevant circumstances which have a bearing on matters of taxation.
They have adopted merely the floor area of the building as the basis of tax irrespective of all other considerations.
The High Court was therefore right in holding that the charging section of the Act was violative of the equality clause of the Constitution.
[649 B] Shri Ram Krishna Dalmia vs Shri Justice S.R. Tendolker & Ors. ; , referred to.
646 New Manek Chowk Spinning & Weaving Mills Co. Ltd. V. Municipal Corporation o/the City of Ahmedabad; , , applied.
[Question whether imposition of a tax only on buildings constructed after the coming into force of the Act and the exempting building completed before that date would violate article 14 of the constitution left open.] [650 A]
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<s>[INST] Summarize the judgementCivil Appeal No. 212 (NCE) of 1975.
From the Judgment and Order dated 26.6.1974 of the Kerala High Court in A.S. No. 510 of 1972.
V.C. Mahajan and C.V. Subba Rao for the Appellants.
T.S. Krishnamurthy and N. Sudhakaran for the Respondent.
The Judgment of the Court was delivered by: K. JAGANNATHA SHETTY, J.
This appeal by special leave is against a judgment and decree of a Division Bench of the High Court of Kerala.
PG NO 1076 Short factual background is this.
The respondent was appointed on October 15 1951 as an ordinary industrial labourer at Naval Base Cochin.
He was October 25 1968 his services however were terminated under Article 310 of the Constitution.
No reason was assigned.
He instituted a suit in forma pauperise for declaration that the termination of his service was illegal and void ab initio.
In the alternative he claimed damages or compensation of Rs.75 000 for illegal termination.
The trial court awarded him Rs.25 000 as damages together with interest at 6 per cent per annum for the illegal termination of his services.
That decree was confirmed by the High Court of Kerala.
This appeal is directed against that Judgment of the High Court.
On July 30, 1976 a Bench of this Court dismissed the appeal on merits.
But upon review that judgment was set aside and the appeal was ordered to be listed for fresh disposal.
So the matter has come up before us.
There is no dispute on the material facts.
There is no challenge that the respondent was a permanent and confirmed civilian worker in the Defence Department.
In fact.
it is all admitted position between the parties.
He had a right to continue till he attained the age of 60 years.
Article 459(b) of the Civil Service Regulations provides for that.
It reads: "(b) A workman who is governed by these Regulations shall be retained in service till the day he attains the age of sixty years.
In this clause ' a workman ' ' means a highly skilled.
skilled.
semi skilled or unskilled artisan employed on a monthly rate of pay in an industrial or a work charged establishment .
The courts below have proceeded on the basis that Article 311 (2) of the Constitution was not applicable to the respondent but the Central Civil Services (Classification Control and Appeal) Rules 1965 (for short " 1965 Rules ' ') were however.
applicable.
Mr. Mahajan for the appellants contends that the reasoning of the Courts below is untenable and uncalled for.
We think that the counsel is on terrafirma.
There cannot be any dispute as to the non applicability of Article 311(2) to PG NO 1077 the case of respondent.
A civilian employee in Defence Service who is paid salary out of the estimates of the Ministry of Defence does not enjoy the protection of Article 311(2).
In L.R. Khurana vs Union of India, ; at 911, this Court observed: "The question whether the case of the appellant was governed by Article 311 of the Constitution stands concluded by two decisions of this court.
In Jagatrai Mahinchand Ajwani vs Union of India, C.A. 1185 of 1965 dated 6.2.1967 it was held that an Engineer in the Military Service who was drawing his salary from the Defence Estimates could not claim the protection of Article 311(2) of the Constitution.
In that case also the appellant was found to have held a post connected with Defence as in the present case.
This decision was followed in section P. Behl vs Union of India, C.A. 1918 of 1966 dated 8.3.1968.
Both these decisions fully cover the case of the appellant so far as the applicability of Article 311 is concerned. ' ' Now the only question is whether the 1965 Rules framed under the proviso to Article 309 of the Constitution proprio vigore apply to the respondent or become inoperative in view of article 310 of the Constitution? Article 310(1) deals with the tenure of office of persons serving the Union or the State.
It provides: "Except as expressly provided by this Constitution, every person who is a member of a defence service or of a civil service of the Union or of an all lndia service or holds any post connected with defence or any civil post under the Union, holds office during the pleasure of the President, and every person who is a member of a civil service of a State or holds any civil post under a State holds office during the pleasure of the Governor of the State." The article 310(2) deals with cases of persons appointed under contract.
The doctrine of pleasure of the President is thus embodied under Article 310( l).
The scope of this Article coupled with Article 309 has been explained in Ramanatha Pillai vs The State of Kerala, [l974] SCR 515 at 52l, where this Court observed: Article 309 provides that subject to the provisions of the Constitution, Acts of the appropriate Legislature may PG NO 1078 regulate the recruitment and conditions of service of persons appointed, to public services and posts in connection with the affairs of the Union or of any State.
Therefore, Acts in respect of terms and conditions of service of persons are contemplated.
Such acts of Legislature must however be subject to the provisions of the Constitution.
This attracts Article 31()(1).
The proviso to Article 309 makes it competent to the President or such person as he may direct in the case of services and posts in connection with the affairs of the Union and for the Governor of a State or such person as he may direct in the case of services or posts in connection with the affairs of the State, to make rules regulating the recruitment and the conditions of service of persons appointed, to such services and posts under the Union and the State.
These Rules and the exercise of power conferred on the delegate must be subject to Article 310.
The result is that Article 309 cannot impair or affect the pleasure of the President or the Governor therein specified.
Article 309 is, therefore, to be read subject to Article 3l0.
The operation of Rules made under the proviso to Article 309 on the pleasure doctrine embodied under Article 310(1) has been considered by this Court in Union of India vs Tulsi Ram, ; where it was observed at 483: "The opening words of Article 309 make that article expressly 'Subject to the provisions of this Constitution '.
Rules made under the proviso to Article 309 or under Acts referable to that article must, therefore, be made subject to the provisions of the Constitution if they are to be valid.
Article 3 lO( 1) which embodies the pleasure doctrine is a provision contained in the Constitution.
Therefore, rules made under the proviso to Article 309 or under Acts referable to that article are subject to Article 310(1).
By the opening words of Article 310(l) the pleasure doctrine contained therein operates ' Except as expressly provided by this Constitution".
Article 31l is an express provision of the Constitution.
Therefore, rules made under the proviso to Article 309 or under Acts referable to Article 309 would be subject both to Article 3l0(1) and Article 311.
This position was pointed out by Subba Rao, J. as he then was.
in his separate but concurring judgment in Moti Ram Deka.
case PG NO 1079 ; at 734, namely.
that rules under Article 309 are subject to the pleasure doctrine and the pleasure doctrine is itself subject to the two limitations imposed thereon by Article 311.
In Tulsi Ram case, the decision in Challappan 's case (Divisional Personnel Officer, 5.Rly.
Y. 1.R. Challappan, [1976l l SCR 783) which had taken a contrary view.
has been expressly overruled on the ground that rules cannot do what the second proviso to Article 311(2) denies.
" By virtue of Article 311(2), no civil servant can be dismissed, removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being beard in respect of the charges.
Article 311(2) thus imposes a letter on the power of the President or the Governor to determine the tenure of a civil servant by the exercise of pleasure.
Tulsi Ram case concerned with the exclusion of Article 311(2) by reason of second proviso thereunder.
We are also concerned with the exclusion of Article 311(2), if not by second proviso but by the nature of post held by the respondent.
We have earlier said that the respondent is not entitled to protection of Article 311(2), since he occupied the post drawing his salary from the Defence Estimates.
That being the position, the exclusionary effect of Article 3l1(2) deprives him the protection which he is otherwise entitled to.
In other words, there is no letter in the exercise of the pleasure of the President or the Governor.
It was, however, argued for the respondent that 1965 Rules are applicable to the respondent, first, on the ground that Rule 3(1) thereof itself provides that it would be applicable, and second, that the Rules were framed by the President to control his own pleasure doctrine.
and therefore, cannot be excluded.
This contention, in our opinion, is basically faulty.
The 1965 Rules among others, provide procedure for imposing the three major penalties that are set out under Article 311(2).
When Article 311(2) itself stands excluded and the protection thereunder is withdrawn there is little that one could do under the 1965 Rules in favour of the respondent.
The said Rules cannot independently play any part since the rule making power under Article 309 is subject to Article 311.
This would be the legal and logical conclusion .
The next contention urged for the respondent depends upon the admission made by the appellants before the High Court.
The appel lants seem to have admitted before the PG NO 1080 High Court that the 1965 Rules would be applicable to the respondent.
Relying on this admission it was argued before us that the decree under appeal should not be set aside.
The poverty of the respondent and the long drawn litigation by which the respondent has suffered immeasurably were also high lighted.
We gave our anxious consideration to this part of the submission.
It is true that the parties appear to have proceeded before the High Court that the 1965 Rules would be attracted to the case of respondent.
It might be on a wrong assumption of law.
The appellants cannot he estopped to contend to the contrary.
They are not bound by such wrong assumption of law.
Nor it could be taken advantage of by the respondent.
But the submission made before us about the poverty of the respondent and the long drawn litigation seems to be appealing.
It is a plus point in his favour under equity.
This Court while granting special leave has imposed a condition on the appellants that they will bear the cost of the respondent in any event.
That was evidently because of the need to have the law clarified and inability of the respondent to come up to this Court.
There cannot be any dispute about the poverty surrounding him.
He has instituted the suit as an indigent person.
There is yet another aspect.
When the respondent commenced the litigation and continued up to the High Court the law on the question was nebulous.
It was only thereafter an authoritative pronouncement was made by this Court with regard to the impact of Rules made under the proviso to Article 309 on the pleasure doctrine under Article 310(1).
These facts and circumstances therefore call for a sympathetic consideration of the case of respondent.
This Court will not deny any equitable relief in deserving cases.
The case on hand cannot be an exception to that rule and indeed it is eminently a fit F case.
We therefore accept the submission made for the respondent and decline to disturb the decree under appeal.
In the result the appellants succeed on the question on law but the respondent retains the decree in his favour purely on compassionate grounds.
The appellants also must pay the cost to the respondent as already bound.
A.P.J. Appeal allowed.
[/INST]Clause 1, of the agreement arrived at between the con sumerrespondents and the appellant Electricity Board, pro vided for constant supply of electrical energy to the con sumers.
Clause 4 provided that even if the consumer does not consume electricity above the minimum guarantee then it will be incumbent upon the consumer to pay annual minimum charges.
Clause 13 provided for the contingency that if the consumer is prevented from receiving or using the electrical energy due to strikes, riots, fire, floods, explosions, act of God or any other case reasonably beyond the control of the Board or if the Board is prevented from supplying such electrical energy owing to any of the causes mentioned then the consumer was entitled to a proportionate reduction of the annual minimum guarantee bill as determined by the Chief Engineer.
The respondents were served with the hills for annual minimum guarantee for the years 1973 74 to 1982 83 by the Electricity Supply Division.
The respondents filed their claims, under clause 13, with the Chief Engineer denying their liability to pay any such charges because the Board did not supply constant supply as provided in clause 1.
It was alleged that during the period in question due to trip pings, load sheding and power cut the respondents suffered a great loss.
The Chief Engineer negatived the claims of the respondents.
A batch of writ petitions was filed in the High Court, challenging the order of the Chief Engineer.
Although in these petitions relief sought was proportionate reduction of the annual minimum guarantee 169 bills but in view of the interpretation of clauses 1, 4 and 13 the High Court quashed the demand made by the Electricity Board by holding that under clause 1 it was incumbent for the Electricity Board to supply constant electricity supply and that the consumers will be liable to pay annual minimum guarantee charges only if the Board supplies the power as provided in the agreement but the consumer does not utilise the power.
In these appeals by Special Leave, it was contended on behalf of the appellants that the 'constant supply ' men tioned in clause I cannot mean 'continuous supply '.
The respondent consumers could not deny the liability to pay annual minimum guarantee bills if the Electricity Board could not supply power for all the 24 hours due to circum stances beyond the control of the Electricity Board.
In case of shortage of supply due to circumstances beyond the con trol of the Board the consumers were entitled to a propor tionate reduction under clause 13 of the agreement.
Allowing the appeals, the Court, HELD: 1.
The High Court was not right in coming to the conclusion that the respondents were not liable at all to pay the annual minimum guarantee charges.
[175C] 1.1.
The High Court in its judgment clearly stated the hours every year in dispute when the power was not supplied and on this basis the respondent*consumers will only be entitled to proportionate reduction as ordinarily the con sumers are expected to have continuous power supply.
Clause 13 clearly provides for the proportionate reduction of the annual minimum guarantee bills.
[175D] 2.
Clause 1 talks of constant supply of electrical energy providing for voltage, cycles, phases and wires.
It does not talk of either of continuous or non continuons or intermittent supply.
[173E] 3.
The Respondent consumers are entitled to a propor tionate reduction of the minimum guarantee bill.
The inabil ity of the Electricity Board to supply electrical energy due to power cut or any other circumstance beyond its control as per the demand of the consumer according to the contract will be reflected in and considered as a circumstance beyond the control of the consumer which prevented it from consum ing electricity as per the contract and to the extent it wanted to consume.
[173G] 170 Northern India Iron & Steel Co. etc.
vs State of Haryana 4.
The Chief Engineer of the Electricity Board shall accordingly assess the proportionate reduction of the annual minimum guarantee bills in respect of disputed years on the basis of non supply as indicated in the High Court Judgment.
[175D E] 4.1.
Pending assessment, the power supply of the consum ers will not be disconnected on the ground of failure to pay the annual minimum guarantee bills.
[175E] 4.2.
The Electricity Board will be entitled to take recourse to the normal procedure if the consumers fail to pay after the proportionate reduction is made and fresh demand is made.
[175E F] Amalgamated Electricity Co. Ltd. vs Jalagaon Borough Municipality, ; ; M/s. Man Industrial Corpo ration vs Rajasthan State Electricity Board and others, AIR and Mukand Iron and Steel Works Ltd. vs Maharashtra State Electricity Board and another, AIR 1982 Bombay 580, referred to.
</s>
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<s>[INST] Summarize the judgementAppeal No.110 of 1957.
Appeal by special leave from the judgment and order dated February 25, 1955, of the former Bombay High Court in I.T.R. No. 57/X of 1954.
N. A. Palkhivala and I. N. Shroff, for the Appellant.
A. N. Kripal and D. Gupta, for the Respondent.
November 24.
The Judgment of the Court was delivered by KAPUR, J.
This is an appeal by special leave against the judgment and order of the High Court of Bombay answering the question submitted to it.
against the assessee firm who is the appellant before 653 us, the respondent being the Commissioner of Income tax.
The appeal relates to the assessment year 1949 50, the accounting year ended on July 25, 1948.
The appellant is a firm doing the business of importing dates from abroad and selling them in India.
During the accounting year the appellant imported dates from Iraq.
At the relevant time the import of dates by steamers was prohibited by two notifications dated December 12, 1946, and June 4, 1947, but they were permitted to be brought by country craft.
Goods which had been ordered by the appellant were received partly by steamer and partly by country craft.
Consignments, which were imported by steamer and were valued at Rs. 5 lacs were confiscated by the Customs Authorities under section 167, item 8 of the Sea Customs Act but under section 183 of that Act the, appellant was given an option to pay fines aggregating Rs. 1,63,950 which sum on appeal was reduced to Rs. 82,250.
This sum was paid and the dates were released.
On the sale of the goods certain profits accrued out of which it sought to deduct Rs. 82,250 paid as penalty on ordinary principles of commercial accounting.
The Income tax Officer disallowed this claim which was also disallowed by the Appellate Assistant Commissioner.
On appeal to the Income tax Appellate Tribunal this sum was held to be allowable by a majority of two to one.
At the instance of the respondent the Tribunal referred the following question to the High Court for its opinion: "Whether on the facts and in the circumstances of the case, the payment of Rs. 82,250 is an allowable expenditure under Section 10(2) (xv) of the Indian Income tax Act?" The High Court held that the above amount of Rs. 82,250 could not be said to have been paid for salvaging the goods but was paid as a penalty incurred in consequence of an illegal, act on the part of the appellant and was therefore not an allowable item under section 10(2)(xv) of the Income tax Act.
Against this judgment the appellant firm has come in appeal to this Court by special leave.
83 654 any contract of hire purchase was contemplated, cannot be applied simpliciter, because such a contract has in it not only the element of bailment but also the element of sale.
At common law the term 'hire purchase ' properly applies only to contracts of hire conferring an option to purchase, but it is often used to describe contracts which are in reality agreements to purchase chattels by instalments, subject to a condition that the property in them is not to pass until all instalments have been paid.
The distinction between these two types of hire purchase contracts is, however, a most important one, because under the latter type of contract there is a binding obligation on the hirer to buy and the hirer can therefore pass a good title to a purchaser or pledgee dealing with him in good faith and without notice of the rights of the true owner, whereas in the case of a contract which merely confers an option to purchase there is no binding obligation on the hirer to buy, and a purchaser or pledgee can obtain no better title than the hirer had, except in the case of a sale in market overt, the contract not being an agreement to buy within the Factors Act, 1889, or the Sale of Goods Act, 1893." The observations quoted above are based mostly on two leading cases which have come to be regarded as the locus classicus upon the subject, namely Lee vs Butler (1) in which the transaction was described by Lord Esher, M.R., as "Hire and Purchase Agreements" and Helby vs Matthews (2) in which the House of Lords distinguished the former case on the ground that in that case there was a binding contract to buy and not merely an option to buy, without any obligation to buy.
Both these cases were decided in terms of Factors Act of 1889 (52 & 53 Viet.
c. 45, section 9).
Both the kinds of agreements exemplified by the two leading cases aforesaid would now be included in the definition of 'hire purchase ' as contained in section 21 of the Hire Purchase Act, 1938 (1 & 2 Geo., 6, c. 53): " 'Hire purchase agreement ' means an agreement for the bailment of goods under which the bailee (1) (2) (1895] A.C. 471.
655 may buy the goods or under which the property in the goods will or may pass to the bailee, and where, by virtue of two or more agreements, none of which by itself constitutes a hire purchase agreement, there is a bailment of goods and either the bailee may buy the goods, or the property therein will or may pass to the bailee, the agreements shall be treated for the purposes of this Act as a single agreement made at the time when the last of the agreements was made.
" It is clear that under the Law, as it now stands, which has now been crystallised into the section of the Hire Purchase Act, quoted above, the transaction partakes of the nature of a contract or bailment with an element of sale, as aforesaid, added to it. 'in such an agreement, the hirer may not be bound to purchase the thing hired;.
he may or may not be.
But in either case, if there is an obligation to buy, or an option to buy, the goods delivered to the hirer by the owner on the terms that the hirer, on payment of a premium as also of a number of instalments, shall enjoy the use of the goods, which ultimately may become his property, the transaction amounts to one of hire purchase, even though the title to the goods has remained with the owner and shall not pass to the hirer until a certain event has happened, namely, that all the stipulated instalments have been paid, or that the hirer has exercised his option to finalise the purchase on payment of a sum, nominal or otherwise.
But it has been contended on behalf of the petitioners that there is no binding agreement to purchase the goods and that title is retained by the owner not as a security for payment of the price but absolutely.
According to third term of the agreement, on the hirer duly performing and observing the terms of the agreement, with particular reference to the payment of the monthly instalments, "the hiring shall come to an end and the vehicle shall, at the option of the hirer, become his absolute property; but until such payments as aforesaid have been made, the vehicle shall remain the property of the owners.
The hirer shall also have the option of purchasing the vehicle at any 656 belonging to him may be, the name and residence of the said person and the amount of penalty or increased rate of duty unrecovered; and such Magistrate shall thereupon proceed to enforce payment of the said amount in like manner as if such penalty or increased rate had been a fine inflicted by himself.
" These sections show the punishments provided for the breach of the prohibitions in regard to importation or exportation of goods under sections 18 and 19; the power of the Customs Authorities to give an option to pay in lieu of confiscation and how the penalties are to be imposed.
Therefore when the appellants incurred the liability they did so as a penalty for an infraction of the law; but it cannot be said that the money which they had to pay was not paid as a penalty and in fact under section 167(8) it was a penalty.
In support of his argument counsel for the appellant firm referred to Maqbool Hussain etc.
vs The State of Bombay etc.
(1) and to the following passage at p. 742 where Bhagwati, J., said: "Confiscation is no doubt one of the penalties which the Customs Authorities can impose but that is more in the nature of proceedings in rem than proceedings in personam, the object being to confiscate the offending goods which have been dealt with contrary to the provisions of the law and in respect of the confiscation also an option is given to the owner of the goods to pay in lieu of confiscation such fine as the officer thinks fit.
All this is for the enforcement of the levy of and safeguarding the recovery of the sea customs duties.
" Similar observations were made by section K. Das, J., in Shewpujanrai Indrasanrai Ltd. vs The Collector of Customs & Ors.
(2) where it was said that a distinction must be drawn between an action in rem and proceeding in personam and that confiscation of the goods is a proceeding in rem and the penalties are enforced against the goods whether the offender is known or not.
The view taken by this Court in the other two cases cited by counsel for the appellants, i.e., Leo Roy (1) ; (2) ; , 836.
657 Frey vs The Superintendent, District Jail, Amritsar (1) and Thomas Dana vs The State of Punjab (2) is the same.
In Dana case (2) Subba Rao, J., said at p. 298: "If the authority concerned makes an order of confiscation it is only a proceeding in rem and the penalty is enforced against the goods.
On the other hand, if it imposes a penalty against the person concerned, it is a proceeding against the person and he is punished for committing the offence.
It follows that in the case of confiscation there is no prosecution against the person or imposition of a penalty on him." In Maqbool Hussain 's case (3) the question for decision was whether after proceedings had been taken under the Sea Customs Act an accused person could be prosecuted and could or could not rely upon the plea of double jeopardy, it was held that he could not.
In Shewpujanrai 's case (4) the contention raised was that after proceedings had been taken under the Foreign Exchange Regulation Act it was not open to the Customs Authorities to take any action under the Sea Customs Act.
The other two cases were similar to Maqbool Hussain 's case (3).
The contention now raised before us is quite different.
What is to be decided in the present case is whether the penalty which was paid by the appellant firm was an allowable deduction within section 10(2)(xv) of the Income tax Act which provides: section 10(2)(xv) "any expenditure (not being in the nature of capital expenditure or personal expenses of the assessee) laid out or expended wholly and exclusively for the purpose of such business, profession or vocation.
" The words "for the purpose of such business" have been construed in Inland Revenue vs Anglo Brewing Co. Ltd. (5) to mean "for the purpose of keeping the trade going and of making it pay".
The essential condition of allowance is that the expenditure should have been laid out or expended wholly and exclusively for the purpose of such business.
(1) ; (2) [1959] Supp.
I S.C.R. 274, 298.
(3) ; (4) ; , 836.
(5) , 813.
658 In deciding this case, reference to decisions in some English cases will be fruitful.
In Commissioners of Inland Revenue vs Warnes & Co. (1), the assessee who carried on the business of oil exporters were sued for a penalty on an information exhibited by the Attorney General under the Sea Customs Consolidation Act for breach of orders and proclamations.
The matter was settled by consent on the assessee agreeing to pay a mitigated penalty of pound 2,000.
All imputations on the moral culpability of the assessees were withdrawn.
The provisions of the Act under which this information was lodged and penalty paid was similar to the provisions of the Indian Sea Customs Act.
This amount was held not to be a proper deduction because in order to be within the provision similar to section 10(2) (xv) of the Indian Act the loss had to be something within commercial contemplation and in the nature of a commercial loss.
Rowlatt, J., relying on the observation of Lord Loreburn, L. C., in Strong & Co. vs Woodifield (2) said at p. 452: "but it seems to me that a penal liability of this kind cannot be regarded as a loss connected with or arising out of a trade.
I think that a loss connected with or arising out of a trade must, at any rate, amount to something in the nature of a loss which is contemplable and in the nature of a commercial loss.
I do not intend that to be an exhaustive definition, but I do not think it is possible to say that when a fine which is what the penalty in the present case amounted to has been inflicted upon a trading body, it can be said that that is a "loss connected, with or arising out of" the trade within the meaning of this rule.
" This statement of the law was approved in the Commissioners of Inland Revenue vs Alexander Von Glehn & Co. Ltd. (3) where also in similar circumstances by consent of the assessee penalty of pound 3,000 was paid and the penalty plus the costs were claimed as deduction in arriving at the profits.
The Special Commissioners had found that the penalty and costs were incurred by the assessee in the course of carrying on (1) (2) ; (3) [1920] .2
K.B. 553.
659 their trade and so incidental thereto and were admissible deductions.
Rowlatt, J., on a reference held it to be a non deductible item.
This judgment was affirmed on appeal by the Court of Appeal.
Lord Sterndale, M. R., was of the opinion that it was immaterial whether technically the proceedings were criminal or not.
The money that was paid was paid as a penalty and it did not matter if in the information it was called a forfeiture.
It was argued by the assessee in that case that no moral obliquity was attributed to them and that it did not matter whether the expense was incurred in consequence of an infraction of the law or whether it was a penalty for doing an illegal act.
At p. 565 Lord Sterndale said: "Now what is the position here? This business could perfectly well be carried on without any infraction of the law.
This penalty was imposed because of an infraction of the law, and that does not seem to me to be, any more than the expense which had to be paid in Strong & Co. vs Woodifield (1) appeared to Lord Davey to be, a disbursement or expense which was laid out or expended for the purpose of such trade. ." Warrington L.J. said at p.569: "It is a sum which the persons conducting the trade have had to pay because in conducting it they have so acted as to render themselves liable to this penalty.
It is not a commercial loss, and I think when the Act speaks of a loss connected with or arising out of such trade it means a commercial loss, connected with or arising out of the trade.
" In Strong & Co. vs Woodifield (1) a brewing company owned a licensed house in which they carried on the business of inn keepers.
They incurred a liability to pay damages on account of injuries caused to a visitor, by the falling in of a chimney.
This sum was held not to be allowable as a deduction in computing the profits ' Lord Loreburn, L. C., in his speech said no sum could be deducted unless it be money wholly and exclusively laid out or expended for the purpose of such (1) ; 660 trade and that only such losses could be deducted as were connected with it in the sense that they were really incidental to the trade itself and they could not be deducted if they were mainly incidental to some other vocation or fell on the trader in some character other than that of a trader.
Lord Davey observed:"I think the disbursements permitted are such as are made for that purpose.
It is not enough that the disbursement is made in the course of, or arise out of, or is connected with the trade or is made out of the profits of the trade.
It must be made for the purpose of earning profits.
" The following passage from Lord Sterndale 's judgment at p. 566 in Von Glehn 's case (1) from which we have already quoted shows the effect of incurring a penalty as a result of a breach of the law: "During the course of the trading this company committed a breach of the law.
As I say, it has been agreed that they did not intend to do anything wrong in the sense that they were willingly and knowingly sending these goods to an enemy destination; but they committed a breach of the law, and for that breach of the law, they were fined.
That, as it seems to me, was not a loss connected with the business, but was a fine imposed upon the company personally, so far as a company can be considered to be a person, for a breach of the law which it had committed.
It is perhaps a little difficult to put the distinction into very exact language, but there seems to me to be a difference between a commercial loss in trading and a penalty imposed upon a person or a company for a breach of the law which they have committed in that trading.
For that reason I think that both the decision of Rowlatt, J., in this case, and his former decision in Inland Revenue Commissioners vs Warnes & Co. (2) which he followed were right, and that this appeal should be dismissed with costs." In Spofforth and Prince vs Glider (3) the assessee was a firm of chartered accountants, who claimed a deduction for certain legal costs paid in connection with a (1) [1920) 2 K.B. 55.3.
(2) (3) 661 successful defence of one of the partners in a Police Court.
The assessee firm also sought legal advice in regard to matters connected with some proceedings.
Summons were issued against the assessee firm but were eventually dismissed.
The assessee contended that the whole of the costs incurred in connection with the proceedings were "wholly and exclusively" laid out or expended for the appellant 's profession and were therefore allowable deductions.
The Special Commissioner had held against the assessee which was upheld by the Court.
The test laid down by Lord Davey in Strong & Co. vs Woodifield (1) was applied and applying that test it was held that except the expenses for obtaining legal advice the other expenses were not admissible.
In Farrie vs Hall (2) F, a sugar broker was sued in the High Court for libel and the Court held that F had acted maliciously and that the defence of privilege could not prevail and awarded damages against him.
F sought to claim the amount of damages as an allowable deduction contending that it was an expenditure laid out wholly and exclusively for the purposes of his trade or was a loss connected with or arising out of the trade.
Relying on the cases above mentioned this amount was disallowed because it fell on the assessee in his character of a calumniator of a rival sugar broker and it was only remotely connected with his trade as a sugar broker.
Therefore it was not laid out exclusively and wholly for the purpose of his business.
We were also referred to the observations of Danckwerts, J. in Newson vs Robertson (3) where it was said that if the expenditure is incurred by the tax payer for more than one purpose including the commercial purposes in the sense that it is incurred for the purposes of earning profits of the trade and also some outside purpose then the expenses cannot be claimed at all as not being wholly and exclusively laid out or expended for the purpose of the trade.
In that case expenses claimed by a Barrister for (1) ; (2) (3) , 459.
84 662 travelling between his house and his chambers were disallowed because his object and purpose in travelling was mixed and not wholly and exclusively for the purpose of the profession.
Coming now to Indian cases; In Mask & Co. vs Commissioner of Income tax, Madras (1) the assessee in breach of his contract sold crackers at a lower rate and a decree was passed against him for damages for breach of contract which he claimed as an allowable deduction.
It was held that as the assessee had disregarded the undertaking given and his conduct was palpably dishonest it did not constitute an allowable expenditure.
Sir Lionel Leach, C. J., after referring to Warne 's case (2) and Von Glehn 's case (3) held that the amount did not constitute an expenditure falling within section 10(2)(xii).
The Madras High Court in Senthikumara Nadar & Sons vs Commissioner of Income tax, Madras (4) held that payments of penalty for an in.
fraction of the law fell outside the scope of permissible deductions under section 10(2)(xv).
In that case the assessee had to pay liquidated damages which was akin to penalty incurred for an act opposed to public policy a policy underlying the Coffee Market Expansion Act, 1942, and which was left to the Coffee Board to enforce.
Reference was also made during the course of arguments to Commissioner of Income tax vs Hirjee (1).
In that case the assessee was prosecuted under the Hoarding and Profiteering Ordinance but was finally acquitted and claimed the amount spent in defending himself under section 10(2)(xv) in his assessment.
It was held that the distinction between the legal expenses on a successful and unsuccessful defence was not sound and that the deductibility of such expenses under section 10(2)(xv) must depend on the nature and purpose of the legal proceedings in relation to the business whose profits are in computation and are unaffected by the final outcome of the proceedings.
A review of these cases shows that expenses which (1) (3) (2) (4) (5) ; 663 are permitted as deductions are such as are made for the purpose of carrying on the business, i.e., to enable a person to carry on and earn profit in that business.
It is not enough that the disbursements are made in the course of or arise out of or are concerned with or made out of the profits of the business but they must also be for the purpose of earning the profits of the business.
As was pointed out in Von Glehn 's case (1) an expenditure is not deductible unless it is a commercial loss in trade and a penalty imposed for breach of the law during the course of trade cannot be described as such.
If a sum is paid by an assessee conducting his business, because in conducting it he has acted in a manner, which has rendered him liable to penalty it cannot be claimed as a deductible expense.
It must be a commercial loss and in its nature must be con templable as such.
Such penalties which are incurred by an assessee in proceedings launched against him for an infraction of the law cannot be called commercial losses incurred by an assessee in carrying on his business.
Infraction of the law is not a normal incident of business and therefore only such disbursements can be deducted as are really incidental to the business itself.
They cannot be deducted if they fall on the assessee in some character other than that of a trader.
Therefore where a penalty is incurred for the contravention of any specific statutory provision, it cannot be said to be a commercial loss falling on the assessee as a trader the test being that the expenses which are for the purpose of enabling a person to carry on trade for making profits in the business are permitted but not if they are merely connected with the business.
It was argued that unless the penalty is of a nature which is personal to the assessee and if it is merely ordered against the goods imported it is an allowable deduction.
That, in our opinion, is an erroneous distinction because disbursement is deductible only if it falls within section 10(2)(xv) of the Income tax Act and no such deduction can be made unless it falls within the test laid down in the cases discussed above and it can be said to be expenditure wholly and exclusively laid for the purpose of the business.
Can it be said (1) 664 that a penalty paid for an infraction of the law, even though it may involve no personal liability in the sense of a fine imposed for an offence committed, is wholly and exclusively laid for the business in the sense as those words are used in the cases that have been discussed above.
In our opinion, no expense which is paid by way of penalty for a breach of the law can be said to be an amount wholly and exclusively laid for the purpose of the business.
The distinction sought to be drawn between a personal liability and a liability of the kind now before us is not sustainable because anything done which is an infraction of the law and is visited with a penalty cannot on grounds of public policy be said to be a commercial expense for the purpose of a business or a disbursement made for the purposes of earning the profits of such business.
In our opinion the High Court rightly held that the amount claimed was not deductible and we therefore dismiss this appeal with costs.
Appeal dismissed.
[/INST]A Subordinate Judge dismissed an application by a decree holder for adjournment of an execution case and by the same order dismissed the execution case itself without informing the decree.
holder 's pleader that the application for adjournment had been dismissed and asking him whether be had to make any submission in 137 the matter of the execution case, and an application for restoration of the execution case setting aside the order of dismissal, the Subordinate Judge, finding that he had committed an error which had resulted in denial of justice restored the execution case in the exercise of the inherent powers of the court under section 151, Civil Procedure Code.
The judgment debtor preferred an appeal and an application, for revision to the High Court against this order.
The High Court held that the appeal was not maintainable but set aside the order of the Subordinate Judge in the exercise of its revisional powers and remanded the case to the Subordinate Judge for fresh disposal after considering whether it would have been possible for the decree holder to take any further steps in connection with the execution application after the dismissal of the application for adjournment: Held, (i) that the order of the Subordinate Judge dismissing the execution case without giving an opportunity to the decree holder 's pleader to state what he had to say the case itself was bad and was rightly set aside by the court its own initiative in exercise of its inherent powers.
(ii)The High Court had no jurisdiction in the exercise of its appellate powers to reverse the order of restoration as that order by itself did not amount to a final determination of any question relating to execution, discharge or satisfaction of a decree within the meaning of section 47, Criminal Procedure Code, and an order made under section 151, Criminal Procedure Code, simpliciter is not an appealable order.
Akshia Pillai vs Govindarajulu Chetty (A.I.R. 1924 Mad.
778), Govinda Padayachi vs Velu Murugiah Chettiar (A.I.R. and Noor Mohammad vs Sulaiman Khan (A.I.R. 1943 Oudh 35) distinguished.
(iii)As the order of the Subordinate Judge was one that he had jurisdiction to make, and as he had, in making that order, neither acted in excess of his jurisdiction or with material irregularity nor committed any breach of procedure, the High Court acted in excess of its revisional jurisdiction under section 115, Civil Procedure Code, and the order of remand and all proceedings taken subsequent to that order were illegal.
Section 115, Civil Procedure Code, applies to matters of jurisdiction alone, the irregular exercise or non exercise of it or the illegal assumption of it, and if a subordinate court had jurisdiction to make the order it has made and has not acted in breach of any provision of law or committed any error of procedure which is material and may have affected the ultimate decision, the High Court has no power to interfere, however profoundly it may differ from the conclusions of that court questions of fact or law.
Rajah Amir Hassan Khan vs Sheo Baksh Singh (1883 83) 11 I.A. 237, Bala Krishna Udayar vs Vasudeva Aiyar (1917) 44 IA.
261, Venkatagiri Ayyangar vs Hindu Religious Endowments Board 138 1949) 76 I.A. 67, Joy Chand Lal Babu vs Kamalaksha Chowdhury 1949)76 I.A.131 and Narayan Sonaji vs Sheshrao Vithoba (I.L.R. referred to.
Mohunt Bhagwan Ramanuj Das vs Khettar Moni Dassi and Gulab Chand Bargur vs Kabiruddin Ahmed , dissented from.
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<s>[INST] Summarize the judgementCivil Appeal No. 8491 of 1983.
From the Judgment and Order dated 5th October, 1982 of the Patna High Court at Patna in C.W.J.C. No. 1420 of 1982.
P.R. Mridul, and M.P. Jha, for the Appellant.
B.B. Singh, for the Respondents The Judgment of the Court was delivered by VENKATARAMIAH, J.
This is an appeal by special leave against the order dated October 5,1982 in C.W.J.C. No.1420 of 1982 on the file of the High Court of Patna dismissing the petition filed by the appellant under Article 226 of the Constitution.
The facts of the case are these: The appellant was directly recruited and appointed as a Deputy Superintendent of Police in the Police Department of the State of Bihar in the year 1964.
In 1973 he was eligible to be considered for appointment as a member of the Indian Police Service under the provisions of the Indian Police Service 301 (Recruitment) Rules, 1954 (hereinafter referred to as 'the Rules ') read with the Indian Police Service (Appointment by Promotion) Regulations, 1955 (hereinafter referred to as 'the Regulations ') framed under sub rule (1) of Rule 9 of the Rules.
His case was placed before the Committee constituted under Regulation 4 of the Regulations for the purpose of preparation of the list of suitable officers for promotion to the Indian Police Service Cadre of the State of Bihar in 1973, 1974, 1975 and 1976.
In the years 1973, 1974 and 1975, he could not be included in the select list as he was junior to those who were included in the select list.
In the year 1976 his name was not included in the select list as there was an adverse entry in his confidential roll of 1973 74.
The reasons given by the Committee for superseding the appellant based on the confidential roll were these: "Delayed disposal of pending papers and supervision notes.
Inadequate control over office, judgment, initiative, sense of responsibility and management reported to be just fair.
Censured by State Govt.
order dt.
20th Oct., 1975.
" The Selection Committee took the decision to supersede the appellant at its meeting held on December 22, 1976 in view of the above entry in the confidential roll of the appellant.
It is not disputed that the said adverse entry was communicated to the appellant in the year 1977 after the above meeting was over.
It appears that there were also adverse entries in the annual confidential roll of the appellant for the year 1974 75.
They were communicated to the appellant in the year 1976.
The appellant made representations in respect of both the adverse entries in time.
His main grievance was that they had been made by his official superior who was biased against him.
The adverse entry made in the confidential roll for the year 1973 74 was expunged by the State Government on December 3, 1980 and the adverse entries in the confidential roll for the year 1974 75 were expunged by two orders dated February 21, 1978 and October 7, 1980.
There was no meeting of the Selection Committee from 1977 to 1980.
It, however, met on March 11/12, 1981.
On this occasion the appellant represented to the Committee that the adverse entries in his confidential rolls had been removed by the State Government by various orders and requested them to consider his case for promotion to the Indian Police Service Cadre.
On this occasion the Committee did not look into the confidential rolls of the appellant for the years 1979 80 and 1980 81 which contained entries very favourable to the appellant for no fault of the appellant.
The Committee, however, 302 classified him as 'good ' but did not include him in the select list while some of his juniors were included.
The appellant represented to the Committee and the State Government against the decision taken by the Committee.
The Committee again met on October 14, 1981.
When nothing came out of the representations made by him, the appellant filed a writ petition questioning the validity of the decisions of the Selection Committee before the High Court of Patna.
The petition was dismissed at the stage of admission.
This appeal is filed by special leave against the order of the High Court.
The main point urged before us is that the Selection Committee had committed an illegality in rejecting the claim of the appellant for being included in the select list in the year 1976 by relying upon the adverse entries which had been made in his confidential rolls which had not been either communicated to him or against which he had made representation which had remained undisposed of and which had been subsequently expunged.
The true legal position governing such cases is laid down by this Court in Gurdial Singh Fijji vs State of Punjab & Ors,( ') which was a case arising under the Indian Administrative Service (Appointment by Promotion) Regulations, 1955 which more or less correspond to the Regulations applicable to the Indian Police Service.
In the above case Chandrachud, C.J. has observed thus: "The principle is well settled that in accordance with the rules of natural justice, an adverse report in a confidential roll cannot be acted upon to deny promotional opportunities unless it is communicated to the person concerned so that he has an opportunity to improve his work and conduct or to explain the circumstances leading to the report.
Such an opportunity is not an empty formality, its object, partially, being to enable the superior authorities to decide on a consideration of the explanation offered by the person concerned, whether the adverse report is justified.
Unfortunately, for one reason or another, not arising out of any fault on the part of the appellant, though the adverse report was communicated to him, the Government has not been able to consider his explanation and decide whether the report was justified.
In these circumstances it is difficult to support the non issuance of the integrity certificate to 303 the appellant.
The chain of reaction began with the adverse report and the infirmity in the link of causation is that no one has yet decided whether that report was justified.
We cannot speculate, in the absence of a proper pleading, whether the appellant was not found suitable otherwise, that is to say, for reasons other than those connected with the nonissuance of an integrity certificate to him.
" It is not disputed that the classification of officers whose cases are taken up for consideration into 'outstanding ', 'very good ', 'good ' or 'bad ' etc.
for purposes of promotion to the Indian Police Service Cadre is mainly based upon the remarks in the confidential rolls.
On December 22, 1976, when the Selection Committee met, the adverse remarks in the confidential roll for 1973 74 had not been communicated and the appellant 's representation regarding adverse remarks in the confidential roll for the year 1974 75 and censure against him had not been disposed of although it is alleged that one Shri Yamuna Ram against whom also adverse remarks had been made was included provisionally in the select list.
When the Selection Committee met on March 11 and 12, 1981 despite State Government 's suo motu decision not to retain adverse remarks for the year 1976 77 on records, the same had not been removed from the confidential roll.
This must have influenced the decision of the Selection Committee.
It is also seen that the confidential rolls of the appellant for the year 1979 80 and 1980 81 which contained entries favourable to the appellant were not placed before the Selection Committee.
On October 14,1981 when the Selection Committee met, it does not appear to have considered the representation made by the appellant against his non selection.
In addition to all these, the State Government has expunged the adverse remarks by its orders made from time to time.
These facts are not controverted by the respondents.
The facts of this case are distinguishable from the facts involved in the decision of this Court in R.L. Butail vs Union of India & Ors.
which is relied on by the respondents.
In that case the confidential report of the appellant therein for the year 1964 contained an adverse entry and he had made a representation regarding it, When the Departmental Promotion Committee met in March, 1966, the appellant 's representation regarding the adverse entry of 1964 was not placed before it and a decision adverse to the appellant was taken by the Committee without reference to the said representation.
The 304 appellant contended before this Court that the omission to consider his representation before the date of meeting of the Committee vitiated its decision.
The Court held that the omission either to place the said representation before the Committee or its non consideration before the date of the meeting had no effect on the decision of the Committee as the representation had actually been rejected subsequently with the result that the confidential report for the year 1964 remained unchanged.
The position in the case before us is different.
Here the adverse entries in question have in fact been expunged by the State Government subsequently.
It may be pertinent to state here that the practice of the Departmental Promotion Committee referred to in Butail 's case (supra) was that if in such a case a representation were to be accepted and in consequence the confidential report was altered or the adverse entries were expunged the Committee would have to review its recommendations in the light of such a result.
The appellant in the present case has pressed before us for a similar relief as the adverse entries made against him have been since expunged.
After giving our anxious consideration to the uncontroverted material placed before us we have reached the conclusion that the case of the appellant for promotion to the Indian Police Service Cadre has not been considered by the Committee in a just and fair way and his case has been disposed of contrary to the principles laid down in Gurdial Singh Fijji 's case (supra).
The decisions of the Selection Committee recorded at its meetings in which the case of the appellant was considered are vitiated by reason of reliance being placed on the adverse remarks which were later on expunged.
The High Court committed an error in dismissing the petition of the appellant and its order is, therefore, liable to be set aside.
We accordingly set aside the order of the High Court.
We hold that the appellant has made out a case for reconsideration of the question of his promotion to the Indian Police Service Cadre of the State of Bihar as on December 22, 1976 and if he is not selected as on that date for being considered again as on March 12, 1981.
If he is not selected as on March 12, 1981 his case has to be considered as on October 14, 1981.
The Selection Committee has now to reconsider the case of the appellant accordingly after taking into consideration the orders passed by the State Government subsequently on any adverse entry that may have been made earlier and any other order of similar nature pertaining to the service of the appellant.
If on such reconsideration the appellant is selected he shall be entitled to the seniority and all other consequential benefits flowing therefrom.
We issue a direction to the respondents to reconsider the case of the 305 appellant as stated above.
We hope that the above direction will be complied with expeditiously but not later than four months from today.
Before concluding we wish to state that the Central Government and the State Governments should now examine whether the present system of maintenance of confidential rolls should be continued.
Under the present system, entries are first made in the confidential roll of an officer behind his back and then he is given an opportunity to make a representation against any entry that may have been made against him by communicating the adverse entry after considerable delay.
Any representation made by him would be considered by a higher authority or the State Government or the Central Government, as the case may be, some years later, as it has happened in this case, by which time any evidence that may be there to show that the entries made were baseless may have vanished.
The predicament in which the officer against whom adverse remarks are made is then placed can easily be visualised.
Even the authority which has got to pass orders on the representation of the officer will find it difficult to deal with the matter satisfactorily after a long interval of time.
In the meanwhile the officer concerned would have missed many opportunities which would have advanced his prospects in the service.
In order to avoid such a contingency, the Government may consider the introduction of a system in which the officer who has to make entries in the confidential roll may be required to record his remarks in the presence of the officer against whom remarks are proposed to be made after giving him an opportunity to explain any circumstance that may appear to be against him with the right to make representation to higher authorities against any adverse remarks.
This course may obviate many times totally baseless remarks being made in the confidential roll and would minimise the unnecessary suffering to which the officer concerned will be exposed.
Another system which may be introduced is to ask the officer who records the confidential remarks to serve a copy of such remarks on the officer concerned before the confidential roll is submitted to the higher authorities so that his representation against the remarks may also reach the higher authority shortly after the confidential roll is received.
This would curtail the delay in taking action on the representation.
Suspensions, adverse remarks in confidential rolls and frequent transfers from one place to another are ordered or made many a time without justification and without giving a reasonable opportunity to the officer concerned and such actions surely result in the demoralisation of the services.
Courts can give very little relief in such cases.
The 306 Executive itself should, therefore, devise effective means to mitigate the hardship caused to the officers who are subjected to such treatment.
These questions require to be examined afresh in the light of the experience gained in recent years and solutions should be found to eliminate as far as possible complaints against misuse of these powers by official superiors who may not be well disposed towards the officer against whom such action is taken.
It is needless to state that a non disgruntled bureaucracy adds to the efficiency of administration.
The appeal is accordingly allowed with costs.
H.S.K. Appeal allowed.
[/INST]The appellant, a directly recruited Deputy Superintendent of Police in the Police Department of the Respondent State was considered in 1976 for appointment as a member of the India Police Service under the provisions of the Indian Police Service (Recruitment) Rules, 1954 read with the Indian Police Service (Appointment by promotion) Regulations, 1955.
The Selection Committee did not include the appellant in the select list because of an adverse entry in his confidential roll of 1973 74.
The appellant was communicated the said adverse entry only in 1977 which was later on expunged by the State Government in December 1980.
There were also adverse entries in the confidential roll of the appellant for the year 1974 75 which were communicated to him in 1976 and which were also later on expunged by the State Government in February, 1978 and October 1980.
The Selection Committee met again in March 1981, but this time also did not include the appellant in the select list while some of his juniors were included.
The appellant questioned the validity of the decision of the Selection Committee in a writ petition before the High Court.
The High Court dismissed the writ petition at the stage of admission.
Hence this appeal.
In this appeal the appellant urged that the Selection Committee was wrong in relying upon the adverse entries which had been made in his confidential rolls which had not been either communicated to him or against which he had made representation which had remained undisposed of and which had been subsequently expunged.
Allowing the appeal, ^ HELD: The principle is well settled that in accordance with the rules of natural justice, an adverse report in a confidential roll cannot be acted upon to deny promotional opportunities unless it is communicated to the person concerned so that he has an opportunity to improve his work and conduct or to explain the circumstances leading to the report.
Such an opportunity is not an empty formality, its object, partially, being to enable the superior authorities to decide on a consideration of the explanation offered by the person concerned, whether the adverse report is justified.
[302 F] Gurdial Singh Fijji vs State of Punjab & Ors., ; referred to.
In the instant case, the case of the appellant for promotion to the Indian 300 Police Service Cadre had not been considered by the committee in a just and fair way and his case has been disposed of contrary to the principles laid down in the Gurdial Singh Fijji 's case.
The decisions of the Selection Committee recorded at its meetings in which the case of the appellant was considered are vitiated by reason of reliance being placed on the adverse remarks which were later on expunged.
The High Court committed an error in dismissing the petition of the appellant.
The appellant has made out a case for reconsideration of the question of his promotion to the Indian Police Service Cadre of the State of Bihar as on December 22, 1976.
The Selection Committee has now to reconsider the case of the appellant accordingly.
[104 E G] R.L. Butail vs Union of India & Ors., [1971] 2 S.C.R. 55.
distinguished.
In order to avoid a contingency, as arose in this case, the Government may consider the introduction of a system in which the officer who has to make entries in the confidential roll may be required to record his remarks in the presence of the Officer against whom remarks are proposed to be made after giving him an opportunity to explain any circumstance that may appear to be against him with the right to make representation to higher authorities against any adverse remarks.
Another system which may be introduced is to ask the officer who records the confidential remarks to serve a copy of such remarks on the officer concerned before the confidential roll is submitted to the higher authorities so that his representation against the remarks may also reach the higher authority shortly after the confidential roll is received.
This would curtail the delay in taking action on the representation.
[105 E G]
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<s>[INST] Summarize the judgement: Contempt Appeal No. 19 of 1981.
From the judgment and order dated the 17th November, 1980 of the Himachal Pradesh High Court at Simla in Contempt Petition (Crl.) No. 7 of 1980.
V. M. Tarkunde, section section Ray, K.K.Venugopal, Dr. L. M. Singhvi, Kapil Sibbal, C. M. Nayar and L. K. Pandey for the Appellant.
L. N. Sinha, Attorney General for the Respondent (Registrar, High Court) K. Parasaran, Soli.
General and Miss A. Subhashini for the Respondent (State of H. P.) 538 The Judgment of the Court was delivered by CHANDRACHUD,C. J.
This is an appeal under sec.
19(1)b of the , ("the ",) against the judgment of the High Court of Himachal Pradesh dated November 17, 1980 in Contempt Case (Criminal) No. 7 of 1980, whereby the appellant was sentenced to simple imprisonment for six months and a fine of Rs. 200.
The appellant practises as an Advocate at Solan which is a district place in the State of Himachal Pradesh.
It appears that only one court generally sits at Solan which is that of the Senior Sub Judge cum Chief Judicial Magistrate.
The learned Judge, who presides over that Court, also exercises the powers of a Rent Controller and of the Court of Small Causes.
On June 18, 1980, Shri Kuldip Chand Sud, who was the Presiding Officer of the Court, was hearing a petition under the Rent in which the petitioner was represented by the appellant.
When the case was called out for hearing, the learned Judge noticed that the petitioner had not paid the process fee, as a result of which the summons could not be issued to the respondent.
The Judge therefore proceeded to dismiss the petition under Order 9, Rule 2 of the Civil Procedure Code.
Taking umbrage at the dismissal of the petition, the appellant hurled his shoe at the Judge which hit him on the shoulder.
The Judge asked his Orderly to take the appellant in custody but the appellant slipped away.
The Judge evidently wanted to proceed under section 228 of the Penal Code for which purpose he issued a warrant of arrest against the appellant.
The appellant successfully evaded the warrant and managed to prevent proceedings being taken by the Judge for the contempt of his court.
The Judge then made a reference to the High Court of Himachal Pradesh under section 15(2) of the .
The High Court issued notice to the appellant enclosing therewith a copy of the reference made by the Judge.
The appellant did not dispute in the High Court that he hurled a shoe at the Judge.
He explained his conduct by saying that he acted under an irresistible impulse generated by the provocative language used by the Judge.
The appellant 's version is like this: On the previous date of hearing, the Judge had directed the appellant to pay fresh process fee and to supply the address of the respondent to the Rent petition.
The appellant informed the Judge that he was unable to comply 539 with that order since the respondent had been admitted to a hospital and had since left the hospital.
The house in which the respondent lived was locked.
The Judge then declared that he proposed to take action under Order 9 Rule 2 of the Civil Procedure Code.
The appellant asked the Judge to record his statement as to why he was unable to pay the process fee and supply the address of the respondent.
Instead of recording the appellant 's statement, the Judge remarked: "You rascal, I will set you right".
The appellant protested at the abusive language used by the Judge, but the Judge retorted: "I repeat what I said".
The appellant thereafter lost control over himself and under the "extreme heat of moment and passion, his hand fell on his shoe" which he threw towards the dais.
Many persons were present in the court who witnessed the incident.
After hurling the shoe at the dais, the appellant took off his coat and tie and told the court: "An unfortunate incident has happened.
Do you want to take any action against me ? I surrender".
Upon this the Judge remarked: "You scoundrel get out of my court".
The appellant thereafter left the court room.
The High Court had called for the comments of the Judge on the version of the appellant, from which it was satisfied that the appellant was making a false allegation that the Judge had used abusive language against him.
The High Court also held that the appellant had given an untrue version of the very genesis of the incident since the Judge had not given any direction for furnishing the complete address of the respondent before him.
Many technical contentions were raised in the High Court, one of them being that section 10 of the was a bar to the High Court taking cognizance of the matter.
It is unnecessary to go into that question or into various other matters raised in the High Court on behalf of the appellant since, Shri V. M. Tarkunde and Shri section section Ray who appear on behalf of the appellant, stated before us that the appellant did not desire to take a contentious attitude.
It was stated on behalf of the appellant that he was prepared to tender an unconditional written apology to this Court and to produce evidence before us of his having tendered a similar apology to the trial court.
Such apologies have been duly tendered.
Learned counsel appearing on behalf of the appellant appealed to us in all their persuation that in view of the fact that the appellant 540 was genuinely repentant for his conduct, he should be enlarged on a mere admonition.
Counsel plead that the appellant evidently lost his balance and whether or not there was any justification for it, he acted under the impulse of grave passion for which he has been sufficiently punished by the publicity which the incident has received and the notoriety which he has invited for himself.
We had made it clear to the learned counsel at the very time when they conveyed to us the willingness of the appellant to apologise that we offer no promise or inducement that if the appellant apologises we will take a lenient view of the matter.
In our opinion the appellant is guilty of conduct which is highly unbecoming of a practising lawyer.
He hurled his shoe at the Judge in order evidently to overawe him and to bully him into accepting his submission that the case should not be dismissed under Order 9 Rule 2, C.P.C. The appellant did his best or worst to see that the petition was not dismissed for non payment of process fee and finding that the Judge was not willing to accept his argument, he took out his shoe in show of his physical prowess.
We cannot adequately condemn the appellant 's behaviour which strikes us as most reprehensible, remembering that, as a practising lawyer, he is an officer of the court.
Such incidents can easily multiply considering the devaluation of respect for all authority, whether in law, education or politics.
We do not, however, propose to impose a long sentence of imprisonment on the appellant, since he has tendered an unconditional apology to this Court and to learned trial Judge.
The appellant was present in our Court at the time when his appeal was argued and though, on such occasions, histrionics cannot entirely be ruled out, we did form an impression, backed by our small little experience of life and its affairs, that the appellant is deeply regretful and genuinely contrite.
He has suffered enough in mind and reputation and no greater purpose is going to be served by subjecting him to a long bodily suffering.
Accordingly, we reduce the sentence of six months to a period of one month, enhance the fine from Rs. 200 to Rs. 1000 and direct that the fine, if recovered, shall be paid over to a Legal Aid Society, if any, functioning in the State of Himachal Pradesh.
The High Court will decide which society should get the money, if there is more than one such society, of which there is precious little likelihood.
Order accordingly.
We will be failing in our duty if before parting with the case we did not draw attention to what the appellant 's counsel Shri 541 Bhagirath Das said in the High Court during the course of his arguments.
Shri Bhagirath Das told the learned Judges of the High Court: "Better part of discretion is to ignore it instead of fanning it.
It is a tussle between legal profession and judiciary".
(emphasis supplied since it must have been placed).
This part of the argument of the appellant 's counsel in the High Court is as much to be regretted as the conduct of the appellant before the learned trial Judge.
Discretion is undoubtedly the better part of valour but we did not know, until we read the argument advanced by the appellant 's counsel in the High Court, that the better part of discretion is to ignore that a practising advocate had hurled a shoe at a Judge.
We are also unable to understand how the High Court was "fanning" the incident by taking cognizance of it, which it was its clear duty to do.
It makes sorry reading that "a tussle between legal profession and judiciary" should find its culmination in a member of that noble profession throwing a shoe at a Judge.
Those who are informed of the question and think deeply upon it entertain no doubt that the Bar and the Bench are an integral part of the same mechanism which administers justice to the people.
Many members of the Bench are drawn from the Bar and their past association is a source of inspiration and pride to them.
It ought to be a matter of equal pride to the Bar.
It is unquestionably true that courtesy breeds courtesy and just as charity has to begin at home, courtesy must begin with the Judge.
A discourteous Judge is like an ill tuned instrument in the setting of a courtroom.
But members of the Bar will do well to remember that such flagrant violations of professional ethics and cultured conduct will only result in the ultimate destruction of a system without which no democracy can survive.
All this, of course, is said without meaning any disrespect to Shri Bhagirath Das.
Not he, but what he said, is the cause of this comment.
N.V.K. Appeal partly allowed.
[/INST]Two Trade Unions of Workmen function at appellant 's factory.
The State Government made a reference under the Industrial Dispute Act, 1947 for adjudication of an Industrial Dispute between the appellant and its workmen regarding their demands.
A joint charter of Demands was later submitted by the Unions raising certain other demands.
On behalf of one of the union a negotiation committee was formed composed of some of the office bearers of that union to participate in the negotiations for a settlement.
Ultimately a memorandum of settlement was signed.
The members of the negotiation committee of aforesaid union who happened to be office bearers of that union signed the settlement for their union.
The settlement covered the disputes mentioned in the reference and also certain other disputes between the management and workmen.
A joint petition for passing an award in terms of the settlement was filed before the tribunal.
A few days later the executive committee of the aforesaid Union rejected the agreement on the ground that the agreement had given rise to discontent among a section of the workers whose problems had not been satisfactorily solved.
The question was whether the agreement was a settlement within the meaning of section 2(p) of the from which the Union could not resile.
30 The Tribunal by its award held that the agreement was not a settlement within the meaning of section 2(p) of the Act.
Hence this appeal by special leave.
It was argued on behalf of the appellants that as the agreement was signed in the manner prescribed by rule 62(2)(b) of the Industrial Disputes (Bombay) Rules, 1957 and as the requirements of rule 62(4) have been complied with, the agreement must be accepted as a settlement within the meaning of section 2(p) of the , and as such was binding on the Union under Section 18(1) of the Act.
Dismissing the appeal, ^ HELD: 1.
In this case it has been found that the office bearers who signed the agreement were not competent to enter into a settlement with the company and as such it cannot be said that an agreement was reached between the employer and the workmen represented by the Union.
[35 E F] 2.
What is binding as a settlement under section 18 (1) of the is an agreement between the employer and workmen and the Tribunal found that there was no agreement between the Management and the Union.
[35 E F] Workmen of M/s Delhi Cloth & General Mills vs Management of M/s Delhi Cloth & General Mills ; referred to.
The procedure prescribed by either rule 58 of the Central Rules or Rule 62 of the Bombay Rules pre supposes the existence of a valid settlement.
But neither rule 58 of the Central Rules nor rule 62 of the Bombay Rules contains anything to suggest that any officer of a trade union who is entitled to sign a settlement reached between the parties must be deemed to have had the authority to enter into the settlement.
Rule 62 only prescribes the form of memorandum of settlement and by whom it should be signed and the question whether the procedure has been complied with will arise only if there is in existence a valid settlement.
[36 F H] The Sirsilk Ltd. and others vs Govt.
of Andhra Pradesh 31 Hindustan Housing Factory Ltd. vs Hindustan Housing Factory Employees ' Union & Others approved.
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<s>[INST] Summarize the judgementAppeal No. 853 of 1968.
Appeal under section 116 A of the Representation of the People Act, 1951 from the judgment and order dated January 15, 1968 of the Delhi High Court, Himachal Bench in C.O.P. No. 4 of 1967.
C.B. Agarwala, S.K. Bagga and section Bagga, for the appellant.
Sarjoo Prasad and Naunit Lal, for the respondent.
The Judgment of the Court was delivered by Hidayatullah, C.J.
This is an appeal against the judgment, dated January 15, 1968, of the High Court of Delhi (Himachal Bench) setting aside the election of the appellant to the Santokhgarh Assembly Constituency of Himachal Pradesh.
The election has been set aside on the ground of corrupt practice under section 123(6) of the Representation of People Act read with section 98(b) of the Act.
By a notification dated January 13, 1967 the electors of this constituency were invited to elect a member to the Assembly.
The the last date of withdrawal was January 23, 1967.
Three candidates contested the election.
The appellant was an independent candidate opposed by the respondent who was a Congress nominee and one Shanti Swarup, Jansangh candidate.
The poll took place throughout the constituency on February 18, 1967.
Votes were counted four days later at Una and the result was declared at follows: Vidya Sagar Joshi (Appellant) 8437 votes Surinder Nath Gautam 7695 votes (Election Petitioner) Shanti Swarup 2067 votes 1267 ballots were rejected as invalid.
Thus the present appellant was returned with a margin of 742 votes.
The returned candidate filed his return of election expenses showing an expenditure of Rs. 1,862.05P.
The limit of expenditure in this constituency was Rs. 2,000/ .
One of the contentions of the election petitioner was that he had filed a false return of his election expenses, that he had spent .an amount exceeding Rs. 2,000/ in the aggregate and therefore contravened the provisions of section 77 (3) 86 of the Representation of People Act, 1951 and therefore committed corrupt practice under section l23(6) of the Act.
The election petitioner therefore asked that his election be declared void.
There were other grounds also on which the election was challenged, but we need not refer to them since no point has been made before us.
The main item on which the expenses were said to be false was a deposit of Rs. 500/ as security and Rs. 200/ as application fee which the returned candidate had made with the Congress party on or before January 2, 1967.
The fee was not returnable, but as this payment was, made before the notification calling upon the voters to elect a member to the Assembly nothing turns upon it.
The returned candidate was denied the Congress ticket on or about January 10, 1967.
This was also.
before the said notification.
According to the rules of the Congress party the security deposit was refundable to a candidate if he or she was not selected.
It was however provided in the same rules that if the candidate contested the election against the official Congress candidate, the security deposit would be forfeited.
The returned candidate chose to stand as an independent candidate against the official Congress nominee and incurred the penalty of forfeiture.
This was after the date for the filing of the nomination paper (January 20, 1967).
He had time till January 23, 1967 to withdraw from the contest.
If he had done so the deposit would have presumably been returned to him.
As he became a contesting candidate the forfeiture of the deposit became a fact.
The case of the election petitioner was that if this deposit were added to the election expenses, the limit of Rs. 2,000/ was exceeded and therefore this amounted to a corrupt practice under section 123(6) read with section 77(3) of the Representation of People Act.
The High Court held in favour of the election petitioner and hence the appeal.
Section 77 of the Representation of People Act provides as follows.
: Section 77.
Account of election expenses 'and maximum thereof (1 ) Every candidate at an election shall either by himself or by his.
election agent, keep a separate and correct account of all expenditure in connection with the election incurred or authorised by him or by his election agent between the date of publication of the notification calling the election and the date of declaration of the result thereof, both dates inclusive.
The account shall contain such particulars, as may be prescribed.
87 (3) The total of the said expenditure shall not exceed such amount as may be prescribed.
The third sub section creates a bar against expenditure in excess of the prescribed amount.
In this case the prescribed amount was Rs. 2,000/ .
Section 123(6) provides that "the incurring or authorising of expenditure in contravention of section 77 is a corrupt practice.
" Therefore, if the amount of Rs. 500/was added to the election expenses as declared by the returned candidate he would be guilty of a corrupt practice, under the two sections quoted above.
The question, therefore, is whether this amount can be regarded as an election expense.
The first sub section of section 77 discloses what the candidate has.
to declare as part of his election expenses.
It speaks.
of "all expenditure in connection with the election incurred or authorised by him or by his election agent between the date of publication of the notification calling the election and the date of declaration of the result thereof, both dates inclusive.
" In the present case, therefore, the critical dates were January. 13, 1967 and February 22, 1967.
The amount in question was paid before the first date.
It was liable for confiscation not on the date on which the Congress ticket was refused to the returned candidate but on January 23, 1967 when he did not withdraw from the ' contest and offered himself as a contesting candidate against the official Congress candidate.
In other words, the payment was made before the period marked out by section 77 ( 1 ) but the expenditure became a fact between the two.
dates.
The contention of the returned candidate was that this was not an expenditure within the meaning of section 77(1) of the Representation of People Act and this is the short question, which falls for consideration in the present case.
Section 77 as flamed now departs in language from the earlier provision on the subject which was rule 117.
It read: "117.
Maximum election expenses No expense shall be incurred or authorised by a candidate or his election agent on account of or in respect of the conduct and management of an election in any one constituency in a State in excess of the maximum amount specified in respect of that constituency in Schedule V." The words "conduct and management of election" are not as wide as the words.
"all expenditure in connection with election incurred or authorised by him, "which now find place in section 77".
The question thus is what meaning must be given to the words used in section 77.
The critical words of section 77 are 'expenditure ' 'in connection with election ' and 'incurred or authorized '. 'Expenditure ' means the amount expended and 'expended ' means to.
pay away, lay. out or spend.
It really represents money out of pocket, a going out.
88 Now the amount paid away or paid out need not be all money which a man spends on himself during this time.
It is money in connection with ' his election.
These words mean not so much as 'consequent upon ' as 'having to do with '.
All money laid out and having to do.
with the election is contemplated.
But here again money which is liable to be refunded is not to be taken note of.
The word 'incurred ' shows a finality.
It has the sense of rendering oneself liable for the amount.
Therefore the section regards everything for which the candidate has rendered himself liable and of which he is out of pocket in connection with his election that is to say having to do with his election.
The candidate here put out this money for his election since he was trying to obtain a congress ticket.
If he had got the ticket and the money was refunded to.
him, this would not have counted as an expenditure since the expense would not have been incurred.
When the candidate knowing that the money would be lost went on to stand as an independent candidate, he was willing to let the money go and take a chance independently.
The case of the appellant is that this money was not used in furthering the prospect of his election.
On the other hand, it was in fact used against him by the Congress Party as he was opposed to that party 's candidate.
He contends that such an expense cannot be regarded as expense in connection with the election.
According to him the connection must be a connection of utility and not something which is of no use but rather against the chances of victory.
In this connection the learned counsel draws our attention to Halsbury 's Laws of England, Third Edition Volume 14, at page 177 paragraph 314.
It is stated there as follows: "While no attempt has been made by judges to define exhaustively the meaning of expenses incurred in the conduct or management of an election, it has been said that if expenses are, primarily or principally, expenses incurred for the promotion of the interests of the candidate, they are election expenses.
" It will be seen that the above passage refers to expenses incurred in the conduct or management of an election.
The learned counsel for the appellant and respondent relied upon two decisions of this Court.
Reliance was also placed upon two decisions of the Election Tribunals.
The decisions of the Election Tribunal are of the same Bench and concern Rule 117.
They need not be considered.
The two cases of this Court may be noticed.
In Haji Aziz and Abdul Shakoor Bros. vs Commissioner of Income Tax, Bombay City(1) the question arose under the Indian (1) ; 89 Income tax Act.
A firm importing dates was found to have breached some law and a penalty was imposed on it under the Sea Customs Act.
The firm sought to treat the penalty as expenses and they were disallowed by this Court.
Learned Counsel for the appellant relied on this case and claimed that the same principle applies and this penalty cannot be said to be an expenditure in connection with the election.
The analogy is not apt because not only the prescriptions of the two laws are different but the underlying principle is different also.
In Income tax laws the expenditure must be laid out wholly or exclusively for the purpose of the business etc.
Breaking laws and incurring penalty is not carrying on 'business and therefore the loss is not for the purposes of business.
Here the expenditure is to be included if it is incurred in connection with the election and the payment to secure the seat is an expenditure in connection with the election.
The ruling therefore, does not apply.
In the second case a congress candidate had paid a sum of Rs. 500/ of which Rs. 100/ were subscription for membership and Rs. 400/ were a deposit.
Later he paid Rs. 500/ as donation to the Congress.
He failed to include the two sums of Rs. 500/ each in his return of expenses.
The Tribunal found that both the sums were spent in connection with the election and by including them the limit was exceeded.
This Court affirmed the decision of the Tribunal.
The case was decided under r. 117.
The two sums were considered separately.
The contention was that under section 123 (7) and r. 117 the candidate was nominated only on November 16, 1951 and the first sum was paid on September 12, 1951.
The question then arose when the candidate became a candidate for the application of the Rule and section 123(7).
It was held that the candidate became a candidate when he unequivocally expressed his intention by making the payment.
The question of commencement of the candidature is now obviated by prescribing the two terminii between which the expense is to be counted.
In so far as the case goes it supports our view.
It is risky to quote the decision because the terms of the law on which it was declared were entirely different.
We can only say that there is nothing in it which militates against the view taken by us here.
On the whole, therefore, the judgment under appeal is correct.
The appeal fails and will be dismissed with costs.
Appeal dismissed.
[/INST]21 currency notes of Rs. 1,00.0 each were seized from the Appellant Bank by the police in the course of an investigation of a case against the third respondent of cheating the first and second respondents.
The seized currency notes were said to be part of the property obtained by the third respondent from the other two respondents.
The third respondent was acquitted by the trial court of the offence charged.
In the course of the trial the appellant made an application under section 517(1) of the Code of Criminal Procedure asking for the delivery of the currency notes to it on the ground that the appellant was an innocent third party who had received the said notes without any knowledge or suspicion of their having been involved in the commission of an offence.
By its order of 24th April 1962, the trial court allowed the application and directed that the currency notes 'should be returned to the appellant.
Subseqently an appeal filed by the State was allowed by the High Court which set aside the trial court 's order of acquittal of the third respondent and convicted him of the offence charged.
On an application made by the first respondent asking for delivery of the currency notes to him as they belonged to.
him and the second respondent, the High Court, by an order of April 5, 1963 directed that the notes be handed over to the first and second respondents.
In the appeal to this Court, it was contended, inter alia, on behalf of the appellant that the High Court had reversed the order of the trial court directing the return of the currency notes to the appellant without giving a notice to the appellant.
and without giving an opportunity of being heard; and that the order of April 5, 1963 was therefore violative of the principles of natural justice and was illegal.
The contention on behalf of the respondents was that there was no provision in section 520 of the Code of Criminal Procedure for giving notice to the affected parties and the order of the High Court could not be challenged on the ground that no hearing was given to the appellant.
It was also contended that the High Court had a discretion under the statute as to whom.
the property was to be returned and there was no reason why this Court should interfere with the exercise of discretion by the High Court.
HELD: The appeal must be allowed and the order of the High Court dated April 5, 1963 set 'aside.
The seized currency notes must be directed to be returned to, the appellant.
(1) It is mainfest that the High Court was bound to.
give notice to the 'appellant before reversing the order of the trial court directing the disposal of the property under section 517 of the Code of Criminal Procedure.
As no such notice was given to the appellant, the order of the High Court dated 5th April 1963 is vitiated in law.
Although the statute does not expressly require a notice to be issued, or a hearing to be given to the 217 parties adversely affected.
there is in the eye of law a necessary implication that the parties adversely affected should be heard before the Court makes an order for return of the seized property.
[220 C D, 221 E] Cooper vs Wandsworth Board of Works. ; , Ridge vs Baldwin, ; and Board of High School and Intermediate Education, U.P. Allahabad vs Ghanshyam Das Gupta and Ors, A.I.R. 1962 S.C. 1110, referred to.
(2) The appellant asserted that it had obtained the currency notes in the normal course of its business and without any knowledge or suspecion of their having been involved in the commission of any offence and that the respondents had not alleged fraud or lack of good faith on the part of the appellant.
In the circumstances the High Court should have directed the return of the currency notes to the appellant which had the "right to possess" the notes within the language of section 517 of the Code of Criminal Procedure.
Property in coins and currency notes passes by mere delivery and it is the clearest exception to the rule Nemo dat quod non habet.
[222 B. C] Whistler vs Forster, , referred to.
</s>
|
<s>[INST] Summarize the judgementURISDICTION: Civil Appeal Nos.
5439 52 of 1990 etc.
From the Judgments and Orders dated 20.8.1990/4.10.1990/ 15.10.1990 of the Central Administrative Tribunal, Principal Bench, Delhi in O.A. Nos.
1023, 309, 1705, 1058 & 1054 of 1989 and 1072, 1074, 1162, 1161, 1122, 1064, 536, 1230 of 1990 and M.P. No. 1354 of 1990 in O.A. No. 309 of 1989.
P.P. Rao, A.K. Behere, A.K. Sahu, C.N. Sreekumar, Gopal Subramanium, Madhan Panikhar, Mrs. Vimla Sinha, Gopal ,Singh, Salman Khurshid, Mrs. C.M. Chopra, A.M. Khanwilkar and Mrs. V.D. Khanna for 58 the Appellants.
Kapil Sibal, Additional Solicitor General, Ms. Kamini Jaiswal and C.V.S. Rao for the Respondents.
The Judgment of the Court was delivered by section RATNAVEL PANDIAN, J.
The above batch of Civil Appeals in which common questions of law arise, is preferred by special leave under Article 136 of the Constitution of India against the judgments dated 20.8.1990, 4.10.1990 and 5.10.1990 of the Central Administrative Tribunal, Principal Bench, New Delhi (hereinafter referred to as Tribunal) rendered in various affiliated groups of original applica tions (O.As) upholding the validity of the second proviso to Rule 4 of the Civil Services Examination Rules (hereinafter referred to as 'C.S.E. Rules ') introduced by Notification No. 13016/4/86 AIS(1) dated 13.12.1986 (Published in the Gazette of India Extraordinary, Part 1 Section 1).
Be it noted that similar notification has been/is being issued each year for the general information of the candidates setting down the terms and conditions, eligibility etc.
to sit for the Civil Service Examination of the concerned year.
While a substantial number of O.As filed before the Tribunal at Delhi were pending, a similar number of analo gous O.As filed before the Benches of Administrative Tribu nals at Patna, Allahabad, Chandigarh, Jabalpur, Hyderabad, Jodhpur and Eranakulam were transferred to the Tribunal at Delhi since common questions of law arose for determination in all the O.As.
The Tribunal rendered its main judgment in O.A.No.
206/89 Alok Kumar vs Union of India & Ors.
and 61 other O.As in which the facts appear to be common.
The other judgments were passed on the basis of the conclusions arrived in O.A. No. 206/89 and the connected batch of OAs.
Since the Tribu nal has set out only the facts in the case of Alok Kurnar (O.A. No. 206/89) treating it as a main application and illustrative of the questions raised, we would like to briefly indicate the facts of A1ok kumar 's case so that the impelling circumstances which led to the filing of these appeals and the common questions of law involved may be understood in the proper perspective in the light of the judgment of the Tribunal.
In this context, it may be noted that though no appeal has been filed against the Order in O.A.No.
206/89, we are given to understand that Alok Kumar who agitated his similar claim along with two others who were all allocated to Group 'A ' Services (I.R.P.S.) in O.A.No.
1071/1990 has 59 preferred Civil Appeal No. 5469 of 1990 against the judgment in the said O.A. No. 1072 of 1990.
Shri Alok Kumar filed his application in December 1986 to sit for the preliminary examination in 1987.
The prelimi nary examination was held by the Union Public Service Com mission ( 'UPSC for short ') in June 1987 and the result was declared in July 1987.
The C.S.E. (Main) Examination was held by the UPSC in November 1987.
The interviews took place in ' April 1988 and the final results were declared by the UPSC in June, 1988.
The applicant, Alok Kumar was selected for appointment to Central Service Group 'A ' post.
A commu nication to this effect was sent to him on 30.8.88 in which Alok Kumar 's attention was drawn to Rule 4 of the C.S.E. Rules 1987 pointing out that if he intended to appear in the Civil Services (Main) Examination in 1988 he would not be allowed to join the Probationary Training, along with the candidates of 1987 group but would only be allowed to join the Probationary Training along with the candidates who would be appointed on the basis of the CSE 1988.
The said letter also indicated that in the matter of seniority, he would be placed below all the candidates who would join training without postponement.
Therefore, he was required to furnish the information about his appearing in the CSE (Main) 1988 to the concerned cadre controlling authorities.
He was further informed that only on receipt of the above information, the concerned cadre controlling authority would permit him to abstrain from the Probationary Training.
The Joint Director, Estt.
G (R), Ministry of Railways (Railway Board) informed Alok Kumar about his selection for appoint ment to the Indian Railway Personnel Service and that the training would commence from 6.3.1989 and that he should report for training at the Railway Staff College, Vadodara.
Further he was informed that he once joined the Probationary Training along with 1987 batch, he would not be eligible for consideration of appointment on the basis of subsequent CSE conducted by the UPSC.
The case of Alok Kumar was that he did not intend to appear in the next CSE and he had already appeared for the CSE 1988 even before he received the offer of appointment dated 2.1.1989.
He was then intimated that if he had already joined the Probationary Training along with 1987 batch, he would not be eligible for consideration for appointment on the basis of subsequent CSE conducted by the UPSC.
Besides the main reliefs, Alok Kumar had prayed for an interim order to join and complete the current Probationary Training without being compelled to sign the undertaking sought to be obtained from him subject to final orders in the O.A.
The Division Bench of the Tribunal issued an interim order, as prayed for by Alok Kumar, allowing him to join the requisite training for 60 the service to which he had been allocated and allowed him to appear in the interview as and when he was called by the UPSC on the basis of 1988 Examination.
The respondents filed their reply explaining the circum stances under which the second proviso was introduced to rule 4 of CSE Rules, its scope and ambit and refuted all the intentions raised by Alok Kumar challenging the legality and constitutionality of the impugned proviso.
The Tribunal by its detailed and considered judgment has rendered its conclusions thus: "Having considered the matter in the above bunch of cases, we have come to the following conclusions: 1.
The 2nd proviso to Rule 4 of the Civil Services Examination Rules is valid.
The provisions of Rule 17 of the above Rules are also valid.
The above provisions are not hit by the provisions of articles 14 and 16 of the Constitu tion of India.
The restrictions imposed by the 2nd proviso to Rule 4 of the Civil Services Examination Rules are not bad in law.
(i) The letter issued by the Ministry of Personnel, Public Grievances and Pensions dated 30th August, 1988 and in particular, paragraph 3 thereof and paragraph 4 of the letter dated 2.1.1989, issued by the Cadre Controlling Authority, Ministry of Railways (Railway Board) are held to be bad in law and unenforceable.
Similar letters issued on different dates by other Cadre controlling Authorities are also unenforceable.
(ii) A candidate who has been allocated to the I.P.S. or to a Central Services, Group 'A ' may be allowed to sit at the next Civil Services Examination, provided he is within the permis sible age limit, without having to resign from the service to which he has been allocated, nor would he lose his original seniority in the service to which he is allocated if he is unable to take training with his own Batch.
Those applicants who have been allcoated to the I.P.S. or any Central Services, Group 'A ', can have one more attempt in the subsequent Civil Services Examination, for the Services in 61 dicated in rule 17 of the C.S.E. Rules.
The Cadre Controlling Authorities can grant one opportunity to such candidates.
All those candidates who have been allocat ed to any of the Central Services, Group 'A ', or I.P.S. and who have appeared in Civil Services Main Examination of a subsequent year under the interim orders of the Tribunal for the Civil Services Examinations 1988 or 1989 and have succeeded, are to be given benefit of their success subject to the provisions of Rule 17 of the C.S.E. Rules.
But this examina tion will not be available for any subsequent Civil Services Examination.
In the result, therefore, the Applications succeed only in part viz., quashing of the 3rd paragraph of the letter dated 30.8.1988 and 4th paragraph of the letter dated 2nd January, 1989 and similar paragraphs in the letters issued to the applicants by other cadre controlling authorities.
Further, a direction is given to the respondents that all those candidates who have been allocated to any of the Central Services, Group 'A ' or I.P.S. and who have appeared in Civil Services Main Examination, 1988 or 1989 under the interim orders of the Tribunal and are within the permissible age limit and have succeeded are to be given benefit of their success subject to the provisions of Rule 17 of the C.S.E. Rules.
The O.As are dismissed on all other counts.
" On the basis of the above directions given in paragraphs 5(ii), 6 and 7, we gave some interim directions on 7.12.1990 which are annexed to this judgment as Annexure `A '.
Several learned counsel appeared for the respective parties and advanced their submissions interpreting the rules and cited a plethora of decisions in support of their respective cases.
Whilst Mr. P.P. Rao, senior counsel as sisted by Mr. C.N. Sreekumar and others, Mr. Gopal Subrama niam, Mrs. C.M. Chopra, Mr. Gopal Singh and Mr. A.M. Khan wilkar appeared for the appellants in the various batches of cases, the learned Additional Solicitor General, Mr. Kapil Sibal assisted by Ms Kamini Jaiswal and Mr. CVS Rao appeared on behalf of the respondents/Union of India & Others.
The common substantial questions of law, propounded and posed for consideration in all the above appeals are: (1) Whether the second proviso to Rule 4 of the CSE Rules 1986 is invalid for the reason that it puts an embargo restricting the candi dates who are seeking to improve their posi tion vis a 62 vis their career in Government service? (2) Whether the second proviso under chal lenge travels beyond the intent of the main rule namely, Rule 4 of the CSE Rules? (3) Whether the proviso to Rule 17 of the CSE Rules is invalid on the ground that it places restriction on candidates who are seeking to improve their position vis a vis their career? (4) Whether the said second proviso to Rule 4 of CSE Rules is ultra vires to clause (iii a) of Regulation 4 of the Indian Administrative Service (Appointment by Competitive Examina tion) Regulations, 1955 (for short 'Regula tions ') inasmuch as the power to notify excep tions does not include the power to make candidates ineligible who are otherwise eligi ble in terms of clauses (i), (ii) and (iii) of Regulation 4? (5) Whether the said proviso which is an administrative instruction introduced by the impugned Notification is arbitrary and irra tional having no nexus with the object of recruitment to the post of Civil Services? (6) Whether the impugned second proviso is illegal since it makes a discrimination be tween the successful candidates of Central Service Group 'A ' and Group 'B ' as no embargo is placed restricting the candidates of Group 'B ' service, as in the case of Group 'A ' service and whether the reasons given by the Government to justify the introduction of the impugned proviso have any rational nexus to the object of the scheme of recruitment to the All India Services or/and whether such reasons are arbitrary, unfair and unjust? (7) Whether the restriction imposed on the number of attempts in pursuance of the im pugned proviso, in the case of Scheduled Castes/Scheduled Tribes candidates who were since then availing any number of attempts subject to the eligibility of age limit is unjustifiable and illegal and amounts to deprivation of the right conferred on them by the Constitution of India? (8) Whether the reasons given by the Govern ment to justify the introduction of the im pugned proviso have any rational 63 nexus to the object of the scheme of recruit ment to the All lndia Services or/and whether such reasons are arbitrary, unfair and unjust? (9) Whether the impugned second proviso is suffering from the vice of hostile discrimina tion and as such violative of Articles 14 and 16 of the Constitution of India.
Recruitment to All India and Central Services Brief Histo ry and Present position: Before entering into an extensive investigation and fullfledged discussion on the questions formulated above, we feel that in order to have a more comprehensive study of the development of the civil service in India a brief history of the past system of recruitment to All India and Central Services based on the then existing mode of selection and the development of the present scheme of examination and method of recruitment till the introduction of the impugned proviso to rule 4 of CSE Rules, is necessary so as to have the background of the entire system and to assimilate the compelling necessity warranting the introduction of the new proviso.
The Indian Civil Service (ICS) Examination was held only in England by the British Civil Service Commission till 1922 and thereafter in India.
Four years later, the newly formed Public Service Commission (India) began to conduct the ICS Examination on behalf of British Civil Service Commission and this position continued until 1937 when the Public Service Commission (India) was replaced by the Federal Public Service Commission under the Government of India Act, 1935.
Thereafter, the Indian Civil Service Examination in India was held by the Federal Public Service Commission independent of the British Civil Service Commission.
After 1943, recruitments to the Indian Civil Service, Indian Police besides the Indian Audit and Accounts Service and allied services were suspended.
In 1947 a combined examina tion was introduced for recruitment to the Indian Adminis trative Service, Indian Police Service and non technical Central Services.
Between the years 1947 50 a combined competitive examination was held once a year for recruitment for IAS, IFS, IPS and non technical Central Services.
After independence, new services known as the Indian Administra tive Services (IAS) and Indian Police Service (IPS) were established as All India Services.
In order to meet the country 's requirement for diplomatic personnel another service known as Indian Foreign Service (IFS) was estab lished.
The Service Commission was redesignated as the Union Public Service Commission in 1950 when the Constitution came into force.
64 While it was so, the U.P.S.C. appointed a Committee in February 1974 under the chairmanship of Dr. D.S. Kothari to make recommendations for further improvement in the system having regard to the needs of various services and accord ingly the said Committee undertook a painstaking research and carried on a comprehensive and analytical study and thorough examination of the various aspects of the problems connected with the reform in the existing examination and selection by going in great depth and detail and submitted its report on March 20, 1976 after taking into consideration of the fact of frequent receipt of complaints from the training centres and the data collected and made its recom mendations in evaluating the scheme of civil services by tracing its birth and breadth of the upper tier of this administrative machinery covering its entire field.
On the recommendations of the Kothari Committee the current scheme of Civil Services Examination was introduced from 1979, as per which the Civil Services Examination conducted by the U.P.S.C. has been and is catering to the All India Services viz. IAS, IFS and IPS; and 16 Central Group 'A ' Services and 8 Group 'B ' Services.
In order to be eligible to compete at the examination, a candidate must satisfy the conditions of eligibility, name ly, nationality, age and requisite qualifications as envis aged under Regulation 4 of the I.A.S. (Appointment by Competitive Examination) Regulation 1955.
In addition to the above qualifications, one more condition of eligibility is added under Regulation 4 (iii a) substituted vide Department of Personnel and A.R. notification No. 11028/1/78 A1S (1) A dated 30.12.1978, according to which unless covered by any of the exceptions that may from time to time be notified by the Central Government in this behalf, every candidate appearing for the examination after 1st January, 1979, who is otherwise eligible shall be permitted three attempts at the examination.
In other words, the number of attempts, a candidate can appear, is also made as one of the conditions of eligibility to sit for the IAS competitive examination.
It may be pointed out in this connection that by a subse quent notification dated 23.11.1981, Regulation 4 (iii a) was further clarified that the appearance of a candidate at the examination will be deemed to be an attempt at the examination irrespective of his disqualification or cancel lation as the case may be of his candidature.
An explanation is added to this, explaining "an attempt at a preliminary examination shall be deemed to be an attempt at the examina tion, within the meaning of this rule".
65 Civil Services Examination Present Scheme From the CSE held in 1979, each eligible candidate is permitted three attempts at the examination.
This restric tion on the number of attempts does not apply to the candi dates belonging to SC/ST and other specified categories as may be notified by the Central Government from time to time under Rule 6(b) of the CSE Rules but subject to the relaxa tion in the upper age limit of those candidates.
The scheme of selection of candidates for the Civil Services consists of three sequential stages, each making a significant and specific contribution to the total process.
They are: (1) Preliminary examination serving as a screening test; (2) The main examination which intended to assess the overall intellectual traits and depth of understanding of candidates; and (3) The interview (viva voce test).
Hermer Finer in his text book under the caption.
The Theory and Practice of Modern Government states: "The problem of selection for character is still the pons asinorum of recruitment to the public services everywhere.
The British Civil Service experiments with the interview.
" The purpose of viva voce test for the ICS Examination in 1935 could be best understood from the following extract of the Civil Service Commission 's pamphlet: "Viva voce the examination will be in mat ters of general interest; it is intended to test the candidate 's alertness, intelligence and intellectual outlook.
The candidate will be accorded an opportunity of furnishing the record of his life and education .
" It is apposite, in this connection, to have reference to an excerpt from the United Nations Handbook on Civil Service Laws and Practice, which reads thus: " . the written papers permit an assess ment of culture and intellectual competence.
This interview permits an assessment of quali ties of character which written papers ignore; it attempts to assess the man himself and not his intellectual abilities.
" 66 This Court in Lila Dhar vs State of Rajasthan and Oth ers, [1981] 4, SCC 159 while expressing its view about the importance and significance of the two tests, namely, the written and interview has observed thus: "The written examination assess the man 's intellect and the interview test the man himself and 'the twain shall meet ' for a proper selection".
AGE LIMIT Coming to the eligibility of age, it was initially fixed at 21 to 26 years and then reduced in 1948 to 21 to 25 years.
In the following year, the age range was further reduced to 21 to 24 years except for the Indian Railway Traffic Service for which it continued to be 21 to 25 years upto 1955.
The lower age limit for IPS was reduced to 20 years in the year 1951 keeping the upper age limit at 24 years.
The upper age limit for the Indian Railway Traffic Service was reduced to 24 in 1955.
The age limits for all other services remained at 21 to 24 years.
Thereafter, though the Public Services (Qualification for Recruitment) Committee appointed by the Government of India in 1955 recommended the reduction of the age range from 21 24 to 21 23 years, the Government did not agree with that recom mendation and kept the prescribed age limit of 20/21 to 24 years unaltered.
The Kothari Committee recommended that a candidate should not be less than 21 years of age and not more than 26 years on the 1st July of the year in which the candidate appears at the examination, with the usual relaxa tion of upper age limit for SC/ST and other categories as may be notified by the Government from time to time.
Howev er, the Committee did not recommend lower age limit of 20 years for the IPS, as was permitted.
The Government while not completely agreeing with Kothari 's Committee recommenda tions in regard to some aspects inclusive of age limit while implementing the recommendations, increased upper age limit to 28 years keeping the lower age limit of 21 years unal tered.
Thus, the age limit of 21 28 years was in operation from 1979 to 1987.
Then the Government re considered this issue and reduced the upper age limit to 26 years.
During the course of the hearing of these appeals, it has been stated at the bar that the Government of India in February/March 1990 amended the CSE Rules and increased the upper age limit from 26 years to 28 and then to 31 years for the CSE to be conducted by the UPSC.
Now by notification No. 13018/10/90 AIS (I) dated 5th January 1991, issued by the Ministry of Personnel, Public Grievances and Pensions (Deptt.
of Personnel and Training) published in the Gazette of India in Part I, Sec.
I the age eligibility for appearing at the examination in 1991 is that the candidate must have attained the age of 21 67 years and must not have attained 28 years on 1st August 1991 i.e. he must have been born not earlier than 2nd August, 1963 and not later than 1st August, 1970 but subject to the relaxation in the upper age limit to SC/ST and other catego ries specified under Rule 6(b) of the CSE Rules.
Number of Permissible Attempts Regarding the number of attempts, a candidate could make, the Public Services (Qualifications for Recruitment) Committee in 1955 recommended that in order to identify the best candidates the number of attempts at the combined examination should be limited to two by reducing the age limit to 21 23 years.
The Government accepted the recommen dation regarding restriction of the number of attempts to two instead of three, but provided that these were to be counted separately for the following categories of services Category I IAS and IFS Category II IPS and Police Service Class II of the Union Territories Category III Central Services Class I and Class II In view of the acceptance of the above recommendations, from 1961 onwards, the IAS etc.
examination became in effect three examinations.
Since the restriction on the number of chances were related not to the examination as a whole, but individual categories, theoretically a candidate could take as many chances as the age limit would permit.
Thereafter in 1972 the age limit was raised to 26 years and the reduction of attempts from three to two was not implemented following the recommendations of the Administrative Reforms Commis sion.
In fact since 1973, candidates were permitted to make three attempts for each of the three categories of services within the permissible age range.
It may be stated in this connection that the Kothari Committee had recommended only two attempts for the Civil Services Examination for not only the general candidates but also candidates belonging to the SC/ST but the Government did not agree with these recommen dations and permitted three attempts to general candidates and did not impose any restriction on the number of attempts on the candidates belonging to SC/ST but of course, subject to their upper age limit.
It will be worthwhile, in this context, to refer to the Report of the Committee to review the Scheme of Civil Services Examination under the 68 chairmanship of Dr. Satish Chandra, appointed by the UPSC on 12.9.1988 to review and evaluate the scheme of selection to the higher civil services introduced from 1979 in pursuance of the recommendations of the Committee on Recruitment Policy and Selection under the Chairmanship of Dr. D.S. Kothari and to make recommendations for further improvement of the system and the relevant excerpt of the report touch ing on this aspect is as follows: "We, therefore, recommend that for the general candidates the permissible number of attempts for the Civil Services Examination should continue to be three.
For the members of the Scheduled Castes and the Scheduled tribes, these should be limited to six.
" We are referring to the report of the committee chaired by Dr. Satish Chandra only for the purpose of showing the views expressed by it regarding the permissible number of attempts for the CSE that a candidate could make though this report was not available at the time of introduction of the impugned proviso.
It may be stated that the Government of India has decided to increase the number of attempts from 3 to 4 for the Civil Services Examination 1990.
Reference may also be made to the notification dated 5th January, 1991 issued by the Department of Personnel and Training by which Rule 4 was amended to the fact that "every candidate appearing at the examination who is otherwise eligible shall be permitted attempts at the examination." Salient Features of the New Scheme: Thus, the entire framework of the Civil services system have under gone a metamorphosis under the Government of India Acts of 1919 and 1935 and thereafter under our present Constitution of India.
Further, pursuant to the recommenda tions made by various Committees as seen earlier there has been radical change in the system of recruitment to the CSE regard to the scheme of examination, mode of selection, the number of attempts and the eligibility of age limit since such a system was introduced It is clear from the discussion that the totality of the above review on the entire system which system is a legacy of and modelled on the Bri one and a comprehensive survey on the different aspects of the recruitment for the higher civil services manifestly show that this system did not appear suddenly like a 'dues ex machina ' created by the legislative test, but 69 evolved in the direction of political objectivity and under went a long process of gradual transformation and the role and functions of this higher civil services in India after the advent of independence irrefragably play an important and crucial role not only in providing an element of common ality in administration in our parliamentary democracy but also in accelerating socio economic development of our country in the context of our constitutional objective of growth with the social justice.
The present time cycle of the CSE is such that it takes almost a year from the date of the preliminary examination to the commencement of the final results in that the prelim inary examination is held in the month of June and the result of the preliminary examination is announced by the UPSC at the end of July.
The Main examination is held in the first week of November, the result of which is usually announced by the third week of March and the interviews begin in the third week of April to the end of May and the results are announced in the month of June.
The merit list of successful candidates is prepared on the basis of their aggregate marks in the Main Examination and interview test and then the successful candidates are selected and allotted to different services based on their ranks and preference.
The top rankers in the merit list join the IAS or IFS and then the IPS.
The candidates who get into the merit list with low position are brought and classified either under Group 'A ' or Group 'B ' as the case may be, but having regard to their ranks in the order of merit and the selection of candidates in Group 'A ' or Group 'B ' is based within the zone of eligibility.
It may be noted that out of total 27 services/posts, as per notification dated 30.12.1989, the first three, namely, IAS, IFS and IPS are All India Services.
Of the rest, from IV to XIX are Central Services Group 'A ' and the remaining XX to XXVII are Group 'B ' services.
For all these services, the recruitment is made by combined competitive CSE.
Since the pleadings in all the appeals are substantially of the same paradigm and the issues of considerable impor tance raised are homogeneous and as the principal arguments were advanced in the same line except with some slight variation with regard to some particular issues relating to certain appeals and also the reply was commonly made, we propose to dispose of all the appeals by this common judg ment.
70 We may now in the above background of the history of the scheme of the Civil Services, proceed to consider the var ious contentions advanced by the respective parties on the validity of the impugned second proviso to Rule 4 of the C.S.E. Rules and for that purpose we, in order to have a proper understanding and appreciation of the scope, object, ambit and intent of the impugned proviso, shall re produce the relevant Rules 4, 8 and 17 and Regulation 4(iii a) of the I.A.S. (Appointment by Competitive Examination) Regula tions, 1955.
CSE RULES Rule 4: "Every candidate appearing at the examination, who is otherwise eligible, shall be permitted three attempts at the examina tion, irrespective of the number of attempts he has already availed of at the IAS etc.
Examination held in previous year.
The re striction shall be effective from the Civil Services Examination held in 1979.
Any at tempts made at the Civil Services (Prelimi nary) Examination held in 1979 and onwards will count as attempts for this purpose: Provided that this restriction on the number of attempts will not apply in the case of Scheduled Castes and Scheduled Tribes candi dates who are otherwise eligible: Provided further that a candidate who on the basis of the results of the previous Civil Services Examination, had been allocated to the I.P.S. or Central Services, Group 'A ' but who expressed his intention to appear in the next Civil Services Main Examination for competing for IAS, IFS, IPS or Central Serv ices, Group 'A ' and who was permitted to abstain from the probationary training in order to so appear, shall be eligible to do so, subject to the provisions of Rule 17.
If the candidate is allocated to a service on the basis of the next Civil Services Main Examina tion he shall join either that Service or the Service to which he was allocated on the basis of the previous Civil Services Examination failing which his allocation to the service based on one or both examination, as the case may be, shall stand cancelled and notwith standing anything contained in Rule 8, a candidate who accepts allocation to a Service and is appointed to a service shall not be eligible to appear again in the Civil Services Examination unless he has first resigned from the Service.
71 NOTE: 1.
An attempt at a preliminary examination shall be deemed to be in attempt of the Exami nation.
If a candidate actually appears in any one paper in the preliminary Examination he shall be deemed to have made an attempt at the examination.
Notwithstanding the disqualification/can cellation of candidature the fact of appear ance of the candidate at the examination will count as an attempt.
Rule 8: A candidate who is appointed to the Indian Administrative Service or the Indian Foreign Service on results of an earlier examination before the commencement of this examination and continues to be a member of that service will not be eligible to compete at this examination.
In case a candidate has been appointed to the IAS/IFS after the Preliminary Examination of this examination but before the Main Examina tion of this examination and he/she shall also not be eligible to appear in the Main Examina tion of this examination notwithstanding that he/she has qualified in the Preliminary Exami nation.
Also provided that if a candidate is appointed to IAS/IFS after the commencement of the Main Examination but before the result thereof and continues to be a member of that service, he/she shall not be considered for appointment to any service/post on the basis of the re sults of this examination.
Rule 17: Due consideration will be given at the time of making appointments on the results of the examination to the preferences ex pressed by a candidate for various services at the time of his application.
The appointment to various services will also be governed by the Rules/Regulations in force as applicable to the respective Services at the time of appointment.
72 Provided that a candidate who has been ap proved for appointment to Indian Police Serv ice/Central Service, Group 'A ' mentioned in Col. 2 below on the results of an earlier examination will be considered only for ap pointment in services mentioned against that service in Col. 3 below on the results of this examination.
Service to which approved Service for which No. for appointment eligible to compete 1 2 3 1.
Indian Police Service.
I.A.S., I.F.S., and Central Services, Group 2.
Central Services, Group 'A ' I.A.S.,I.F.S. and I.P.S. Provided further that a candidate who is appointed to a Central Service, Group 'B ' on the results of an earlier examination will be considered only for appointment to I.A.S., I.F.S., I.P.S. and Central Services, Group 'A '.
IAS (Appointment by Competitive Examination) Regulations, 1955 Regulation 4: Conditions of Eligibility: In order to be eligible to compete at the examination, a candidate must satisfy the following conditions, namely: (i) Nationality. . . . . (ii) Age . . . . . . (iii) Educational Qualifications. . . (iii a) Attempts at the examination Unless covered by any of the exceptions that may from time to time be notified by the Central Gov ernment in this behalf, every candidate ap pearing for the examination after 1st January 1979, who is otherwise eligible, shall be permitted three attempts at the examination;.
73 and the appearance of a candidate at the examination will be deemed to be an attempt at the examination irrespective of his disquali fication or cancellation, as the case may be, of his candidature.
Explanation An attempt at a preliminary examination shall be deemed to be an attempt at the examination, within the meaning of this rule.
questions 1 to 6: At the threshold we will take up the main question about the validity of the second proviso to Rule 4 of the C.S.E. Rules of 1986, which proviso is an additional one to the first proviso to Rule No. 4 and which applies only to the I.P.S and Central Services, Group 'A ' selectees.
This provi so consists of two parts of which the first part enumerates certain conditions on the fulfillment of which alone, an allottee to IPS or Central Services Group 'A ' on the basis of the results of the previous CSE will become eligible to re appear in the next CSE (Main) to improve his prospect with the hope of getting better position next year and joining in one of the more preferred services, namely, IAS, IFS, IPS or Central Services Group 'A ' subject to the condi tions, enumerated in Rule 17 of CSE Rules.
As per the first part of the proviso, the prerequisite conditions which are sine qua non are as follows: A Candidate who on the basis of the results of the previous CSE; i) should have been allocated to the IPS or Central Services Group 'A '; ii) The said candidate should have expressed his intention to appear in the next Civil Service Main Examination for competing for IAS, IFS, IPS or Central Services Group 'A ' subject to the provisions of Rule 17; iii) The said candidate should have been permitted to abstain from the Probationary Training in order to so appear.
The conditions in the second part of the proviso are as follows: 1) If a candidate (who is permitted to appear in the next CSE (Main) on fulfillment of the conditions, enumerated in the first part of this proviso) is allocated to a service on the basis of the next Civil Service (Main) Exami nation, he should either join 74 that service or the service to which he has already been allocated on the basis of the previous CSE; 2) If the candidate fails to join either of the services as mentioned in the first condi tion of this second part then his allocation to the service based on one or both examina tions, as the case may be, shall stand can celled; and 3) Notwithstanding anything contained in Rule 8, a candidate a) who accepts allocation to the service and b) who is appointed to a service shall not be eligible to appear again in CSE unless he has first resigned from the service.
The sum and substance of the above proviso is that a candidate who has already been allocated to the IPS/Central Services Group 'A ' and who in order to improve his efficacy of selection to higher civil service, expresses his inten tion to appear in the next CSE (Main) for competing for IAS, IFS, IPS or Central Services Group 'A ' and who has been permitted to abstain from the Probationary Training in order to do so, will become eligible to appear in the next CSE (Main) but subject to the provisions of Rule 17, and that the said candidate when allocated to a service on the basis of the next Civil Services (Main) Examination can either join that service or the service to which he has already been allocated on the basis of the previous CSE and that if he fails to join either of the services, his allocation based on one or both the examinations, as the case may be, will stand cancelled.
Further, notwithstanding anything contained in Rule 8, a candidate who accepts allocation to a service and is appointed to that service shall not be eligi ble to appear again in the CSE unless he has first resigned from the service.
In other words, a candidate failing within the ambit of this proviso can appear in the CSE for all the permitted attempts subject to his age limit if he intends to appear again in the CSE provided he first resigns from the service which he accepts on allocation and to which he is appointed.
The restriction/embargo contained in Rule 17 is, if a candidate has been approved for appointment to IPS, and expresses his intention to appear in the CSE (Main) for higher civil service, the services for which he is eligible to compete are IAS, IFS and Central Services Group 'A '.
Similarly, a candidate who has been approved for appointment to the Central Services Group 'A ' and expresses his inten tion to appear in the next CSE (Main), the services to which he will be eligible to compete are IAS, IFS and IPS.
The second proviso to Rule 17 provides that a candidate who is appointed to a Central Services Group 'B ' on the results of an earlier examination will be considered for appointment to IAS, IFS, 75 IPS and Central Services Group 'A '.
The impugned second proviso to Rule 4, as we have al ready pointed out, has been introduced by notification No. 13016/4/86 AIS (I) dated 13.12.1986.
The circumstances which necessitated and compelled the introduction of the above second 'proviso to Rule 4 was due to the receipts of various representations and frequent com plaints from the Academies and Training Insti tutes by the Government informing that the candidates who, taking advantage of the oppor tunity of mobility from one service to anoth er, were intending to appear in the next CSE (Main) in the hope of getting a better posi tion and in a more preferred service were neglecting their required training programmes whereunder they had to undergo specialised training and acquire the necessary potential to perform their tasks in the service to which they have been allocated and for which train ing, the Government incurs huge expenditure.
Therefore, the Government in order to overcome the problem of indiscipline amongst the proba tioners undergoing training, requested the kothari committee for making a comprehensive survey on the different aspects of the re cruitment scheme and to submit a report with its recommendations on the recruitment policy and selection methods so that the candidates who are selected and allocated to a service and sent for training may not take enmass leave for preparing and appearing in the next CSE by neglecting and pretermitting their training programmes and thereby creating a vacuum in the service for considerable time.
The said kothari committee, after deeply examining this serious problem, submitted its report, the relevant part of which is as follows: "3.59.
It may further be observed that the existing system which permits that candidates qualifying for and joining the police or the Central Services, may appear the Civil Serv ices Examination to improve their career opportunities, has come in for serious criti cism from the National Academy of Administra tion and the respective employing departments.
They complain that such probationers neglect their training at both the Academy and the Departmental Training Institutions until they exhaust the admissible number of chances.
The present practice obviously is not desirable.
The 76 number of such cases would be very small with the proposed restriction on the total number of attempts permitted to a candidate.
Even so, we think it wrong that the very first thing a young person should do in entering public service is to ignore his obligations to the service concerned, and instead spend his time and energy in preparation for re appearing at the UPSC examination to improve his prospect.
This sets a bad example and should be discour aged.
We recommend that commencing from the 1977 examination candidates once appointed to the All India or Central Services (Class I) should not be permitted to re appear at a subsequent examination without resigning from service.
(On introduction of Phase II of the Civil Services Examination Scheme, candidates joining the Foundation Course will not be permitted to re appear at the Main Examina tion.) ' ' The Thirteenth Report of the Estimates Committee (1985 86) also submitted its report on this aspect of the matter observing: "The committee urge upon the Government to review their decision regarding allowing the probationers to reappear in the Civil Services Examination to improve their prospects.
If it is still considered necessary to allow this, the Committee suggest that it may be limited to only one chance after a person enters a Civil service.
" The Central Government after considering the recommenda tions of the above Committees regarding allowing probation ers allocated to Civil Services to appear in the next CSE (Main), addressed the UPSC to initiate a review of the new system of CSE in pursuance of the recommendations of the Estimates Committee and thereafter, a meeting of all the cadre controlling authorities was convened by the Government and based on the consensus arrived at the meeting, Rules 4 and 17 of the Civil Services Examination Rules were amended by inserting the new provisos.
In this regard, it will be worthwhile to refer to Arti cle 51 A in Part IV A under the caption 'Fundamental Duties ' added by the Constitution (42nd Amendment) Act, 1976 in accordance with the recommendations of the Swaran Singh Committee.
The said Article contains a mandate of the Con stitution that it shall be the duty of every citizen of India to do the various things specified in Clauses (a) to (j) of which clause (j) commands that it is the duty of every citizen of India to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavour and achievement." 77 In our view, the effort taken by the Government in giving utmost importance to the training programme of the selectees so that this higher civil service being the top most service of the country is not wasted and does not become fruitless during the training period is in consonance with the provisions of Article 51 A (j).
The Constitution of India has laid down some basic principles relating to public services in Part XIV entitled 'Services under the Union and the State ' which has two Chapters, namely chapter I on "Services" covering Articles 308 to 314 of which Article 314 is now repealed by the Twentyeighth Amendment Act, 1972 and Chapter II on "Public Service Commissions" covering Articles 315 to 323.
We feel that it is not necessary to deal with the constitutional provisions relating to the executive power of the Union under Article 53 of the Constitution or the extent of the executive power of the Union under Article 73 of the Consti tution or recruitment and condition of service of persons serving the Union or the State as contemplated under Article 309 of the Constitution of India since it is not the case of the appellants that either the introduction of the proviso is in violation of any of the provisions of the constitution or the proviso suffers for want of jurisdiction or by im proper and irregular exercise of jurisdiction.
However, incidentally Mrs. Chopra urged that the second proviso is bad since the authorities have stepped out of the constitu tional limits in issuing the notification inserting the impugned proviso and that it has not been placed before the Houses of the Parliament.
This argument has to be simply mentioned to be rejected because the proviso has been intro duced by the Central Executive Authority under the powers flowing from Article 73 (1) (a) of the Constitution, accord ing to which the executive power of the Union subject to the provisions of the Constitution shall extend to the matters with respect to which Parliament has power to make laws, but of course subject to the proviso made thereunder and further this submission casually made was neither amplified nor pursued.
Needless to point out that whilst by virtue of clause 1 (a) of Article 73, the Union executive whose power which is co extensive with the legislative power of Parlia ment can make laws on matters enumerated in List I (Union List) and List II (Concurrent List) to the Seventh Schedule of the Constitution, under Article 162 of the Constitution, the executive power of the State executive which is co extensive with that of the State legislature can make laws in respect of matters enumerated in List III (State List) and also in respect of matters enumerated in List II (Con current List), subject to the provisions of the Constitu tion.
In the present case, the central executive authority has not either expressly or impliedly changed the policy of the Government by exercising unreasonable and arbitrary discretion and the present Rule 4 78 with its newly added second proviso does not repeal the essential features of the pre existing Rule 4 but only limits the ambit of the operation of Rule 4 under a given situation.
Hence, there is no substance in contending that the second proviso is bad and that the central executive authority has transgressed the constitutional limits.
However, the validity of second proviso the Rule 4 is challenged on Constitution about is violative of Article 14 ground that which we will deal at the later part of the judgment.
We feel that it would be appropriate, in this context, to recall the observations of this Court in L.I.C. of India vs Escorts Ltd., ; at page 1403 = ; The observation reads thus: "When construing statutes enacted in the national interest, we have necessarily to take the broad factual situations contemplated by the Act and interpret its provisions so as to advance and not to thwart the particular national interest whose advancement is pro posed by the legislation.
" In the above background, we shall now advert to the arguments advanced on behalf of the appellants.
Mr. P.P. Rao, senior counsel appearing for the appel lants forcibly and fervently contended that the second proviso to rule 4 of the impugned notification is ultra vires clause (iii a) of Regulation 4 of the Regulations, 1955 inasmuch as the power to notify exceptions does not include the power to make ineligible the candidates who are "otherwise eligible" in terms of Clauses (i), (ii) and (iii) of Regulation 4.
In other words, all candidates, who satis fy the requirements of nationality, age and educational qualifications prescribed in clauses (i) to (iii) of Regula tion 4, are entitled to the maximum number of attempts prescribed in clause (iii a) which initially was three attempts, since raised to four attempts w.e.f. 1.2.90.
He further submits that the expression 'in this behalf ' appear ing in the said clause (iii a) refers only to the number of attempts of candidates otherwise eligible in terms of clauses (i) to (iii) of Regulation 4 and that the obvious intention in conferring the power on the Central Government to 'notify exceptions 'in his behalf of candidates 'other wise eligible ' was to enable the Government to increase the number of attempts in deserving cases, such as candidates belonging to Scheduled Castes and Scheduled Tribes and other weaker sections including physically handicapped category and that consequently the Central Government has no power to add more conditions of eligibility to those stipulated in Regulation 4 itself.
79 According to him, the second part of the impugned proviso to Rule 4 of CSE Rules which insists that a candidate who was permitted to abstain from probationary training in order to appear at the next Civil Services (Main) Examination and who accepted the allocation to a service subsequently and is appointed to the service "shall not be eligible to appear again in the CSE (Main) unless he first resigns from the Service and in other words it declares a candidate, who is otherwise eligible in terms of Regulation 4 as ineligible unless he first resigns from the service.
This additional condition of eligibility, according to him, is clearly beyond the, scope of the limited power to notify exceptions to the number of attempts prescribed and, therefore ultra vires Regulation 4 (iii a).
Mr. Kapil Sibal, the Learned Additional Solicitor Gener al presented a plausible argument countering the pleadings of Mr. P.P. Rao and drew our attention to Rule 7 of IAS (Recruitment) Rules of 1954 which deals with the recruitment by competitive examination, and sub rule (2) which states that an examination, namely, the competitive examination for recruitment to the service shall be conducted by the Commis sion in accordance with such regulations as the Central Government may from time to time make in consultation with the Commission and State Governments.
According to him, the permissible number of attempts that a candidate can avail is also a condition of eligibility because the object is for a dual purpose, namely, 'to get the best and to retain the best ', and that Regulation 4 (iii a) should be read with Rule 4 of CSE as its part.
He continues to state that under Article 73 of the Constitution, subject to the provisions of the Constitution, the Central Government in exercise of its executive power can regulate the manner in which the right of a candidate in appearing for the competitive examination is to be exercised and, therefore, the restriction imposed in the second proviso to Rule 4 of CSE Rules is in no way ultra vires clause (iii a) of Regulation 4 of Regulations, 1955.
The source of power for the Central Government for making rules and regulations for 'Recruitment and the Condi tions of Services of Persons appointed to All India Serv ices ' in consultations with the Government of States con cerned as well making regulation under or in pursuance of any such right is derived from Section 3 of the All India Services Act, 1951.
The Regulations, 1955 were made by Central Government in pursuance of rule 7 of IAS (Recruitment) Rules of 1954 in consultation with the State Governments and the Union Public Service Commission.
Clause (iii a) of Regulation 4 was substituted vide Department of Personnel A & R Notification No. 11028/1/78/AIS dated 13.12.1978 and the latter part of which by another notification dated 23.11.1988.
We are concerned only 80 with the earlier part of the said clause as per which unless covered by any of the exceptions that may from time to time be notified by the Central Government, in this behalf, every candidate appearing for the examination after 1st January 1979, who is otherwise eligible, shall be permitted three attempts at the examination.
If Rule 4 of CSE Rules is examined in juxtaposition of clause (iii a) of Regulation 4, it is clear that both rule 4 of CSE Rules and Clause (iii a) of the Regulation 4 show that every eligible candidate appearing at the CSE should be permitted three attempts at the examination.
As we have pointed out in the earlier part of this judgment, the attempts are now increased to 4 under Rule 4 of the CSE Rules.
This increase of attempts by the Government is by virtue of its power which flows under Article 73 of the Constitution of India.
The eligibility of a candidate to appear in the CSE with regard to nationality, age and educational qualifications is given under clauses (i) to (iii) of Regulation 4 but the Government by exercise of its executive power has imposed certain restrictions under some specified circumstances.
Even today, in the normal course, every eligible candidate can appear in the examination for all the permissible attempts and the re striction of attempts is not applicable in the case of SC/ST who are otherwise eligible but subject to their upper age limit.
A plain and grammatical reading of clause (iii a) of Regulation shows that if the number of attempts are covered by any of the exception that may from time to time be notified by the Central Government in the behalf, then the notification will become enforceable and only in the ab sence of such notification, every candidate normally can appear for all the permitted attempts at the examination whether three or four.
The impugned second proviso does not restrict or put an embargo on the number of attempts in the normal course.
But the restriction is only when the conditions enumerated in the impugned proviso are satisfied.
In order to appreciate and understand the restriction imposed, in its proper perspective, we shall refer to cer tain decisions of this Court cited by both the parties, firstly with reference to the interpretation of statutes and second with regard to the construction of a proviso in relation to the subject matter covered by the section/rule to which the proviso is appended.
Before we cogitate and analyse this bone of contention in some detail, it will be convenient at this stage to pore over some of the well established rules of construction which would assist us to steer clear of the impasse entertained by the learned counsel, according to whom some complications are created by the impugned notification being ultra vires clause (iii a) of Regulation 4 of Regulations, 1955.
Maxwell on the "Interpretation of Statutes" 10th Edition page 7 states thus: " . . . if the choice is between two interpretations, the nar 81 rower of which would fail to achieve the manifest purpose of the legislation, we should avoid a construction which would reduce the legislation to futility and should rather accept the bolder construction based on the view that Parliament would legislate only for the purpose of bringing about an effective result.
" In "Principles of Statutory Interpretation" by Justice G.P. Singh, 4th Edition (1988) at page 18, it is stated thus: "it is a rule now firmly established that the intention of the legislature must be found by reading the statute as a whole".
It is said in "Craies on Statute Law, 5th Edition" as follows: "Manifest absurdity or futility, palpable injustice, or absurd inconvenience or anomaly to be avoided." In the same text book, 6th Edition at page 89, the following passage is found: "The argument from inconvenience and hardship is a dangerous one and is only admissible in construction where the meaning of the statute is obscure and there are alternative methods of constructions.
" Viscount Simon in King Emperor vs Benoari Lal Sharma, has said thus: "In construing enacted words, the Court is not concerned with the policy involved or with the results, injurious or otherwise, which may follow from giving effect to the language used.
" In Wardurton vs Loveland, [1832] 2 D & CH.
(H.L.)480 at 489, it is observed that: "Where the Language of an Act is Clear and explicit, we must give effect to it whatever may be the consequences for in that case the words of the statute speak the intention of the legislature".
82 See also Suffers vs Briggs, [1982] I A.C.1, 8.
This Court in Commissioner of Income Tax vs
section Teja Singh; , has expressed that a con struction which would defeat the object of legislature must, if that is possible, be avoided.
See also M. Pentiah and others vs Muddala Veeramallappa and Others, ; Desai, J speaking for the bench in Lt. Col. Prithi Pal Singh Bedi etc.
vs Union of India & Ors., at 404 has pointed out as follows: "The dominant purpose in construing a statute is to ascertain the intention of the Parlia ment.
One of the well recognised canons of construction is that the legislature speaks its mind by use of correct expression and unless there is any ambiguity in the language of the provision the Court should adopt liter al construction if it does not lead to an absurdity.
" The Constitution Bench of this court in A.R. Antulay vs
R.S. Nayak; , at 936 has observed thus: "It is a well established canon of construc tion that the Court should read the section as it is and cannot rewrite it to suit its con venience; nor does any canon of construction permit the court to read the section in such manner as to render it to some extent otiose." The Supreme Court in Maharashtra State Board of Second ary and Higher Secondary Education and another vs Paritosh Bhupesh Kurmarsheti etc.
; , ruled that the well established doctrine of interpretation is "That the provisions contained in a statutory enactment or in rules/regulations framed thereunder have to be so construed as to be in harmony with each other and that where under a specific section or rule a particular subject has received special treatment, such special provision will exclude the applicability of any general provision which might otherwise cover the said topic.
" In Philips India Ltd. vs Labour Court, Madras and Ors., , it is observed: "No canon of statutory construction is more firmly established than that the statute must be read as a whole.
This is a general rule of construction applicable to all statutes alike which 83 spoken of as construction ex visceribus actus.
" It has been held by this Court in Balasinor Nagrik Cooperative Bank Ltd. vs Babubhai Shankerlal Pandya and others.
[1987] 1 SCC at 608 as follows: "It is an elementary rule that construction of a section is to be made of all parts together.
It is not permissible to omit any part of it.
For, the principle that the statute must be read as a whole is equally applicable to different parts of the same section".
In Dr. Ajay Pradhan vs State of Madhya Pradesh and Others, ; at 518, the Court has registered its view in the matter of construing a statute thus: "If the precise words used are plain and unambiguous, we are bound to construe them in their ordinary sense and give them full ef fect.
The argument of inconvenience and hard ship is a dangerous one and is only admissible in construction where the meaning of the statute is obscure and there arc alternative methods of construction.
Where the language is explicit its consequences are for Parlia ment, and not for the courts, to consider.
" We think, it is not necessary to proliferate this judg ment by citing all the judgments and extracting the textual passages from the various Text Books on the principles of Interpretation of statutes.
However, it will suffice to say that while interpreting a statute the consideration of inconvenience and hardships should be avoided and that when the language is clear and explicit and the words used are plain and unambiguous, we are bound to construe them in their ordinary sense with reference to other clauses of the Act or Rules as the case may be, so far as possible, to make a consistent enactment of the whole statute or series of statutes/Rules/ Regulations relating to the subject matter.
Added to this, in construing a statute, the Court has to ascertain the intention of the law making authority in the backdrop of the dominant purpose and the underlying intend ment of the said statute and that every statute is to be interpreted without any violence to its language and applied as far as its explicit language admits consistent with the established rule of interpretation.
A proviso to a Section/Rule is expected to except or qualify something in the enacting part and presumed to be necessary.
Coming to the 84 broad general rule of construction of the proviso Maxwell on "The Interpretation of statute" in the 11th edition at page 155 has quoted a passage from Kent 's Commentary 0n American Law, 12th Edn.
Vol. 1, 463n, reading thus: "The true principle undoubtedly is, that the sound interpretation and meaning of the stat ute, on a view of the enacting clause, saving clause and proviso, taken and construed to gether is to prevail.
" Maxwell in his 12th Edition has quoted a passage from Att.
Gen. vs Chelsea Waterworks Co., [1731] Fitzg.
195 which reads that if a proviso cannot reasonably be construed otherwise than as contradicting the main enactment, then the proviso will prevail on the principle that "it speaks that last intention of the makers".
It is pointed out in Piper vs Harvey, [1958] 10.B.439 that if, however, the language of the proviso makes it plain that it was intended to have an operation more extensive than that of the provision which it immediately follows, it must be given such wider effect.
In R. vs Leeds Prison (Governor), Ex p. Stafford it is pointed out thus: "The main part of a section must not be con strued in such a way as to render a proviso to the section redundant.
" A Constitution Bench of this Court in Ram Narain Sons Ltd. and Ors.
vs Asstt.
Commissioner of Sales tax and Ors.
; , has made the following observations: "It is a cardinal rule of interpretation that a proviso to a particular provision of a statute only embraces the field which is covered by the main provision.
It carves out an exception to the main provision to which it has been enacted as proviso and to no other." Another Constitution Bench in Abdul Jabar Butt & Another vs State of Jammu and Kashmir, ; held that it is a fundamental rule of construction that a proviso must be considered with relation to the principal matter to which it stands as a proviso.
See also Commissioner of Income Tax vs
section Teja Singh; , 85 Kapur, J speaking for the bench of this Court in The Commissioner of Income Tax; Mysore, Travancore Cochin and Coorg, Bangalore vs The Indo Mercantile Bank Limited, ; reiterated the view expressed by Bhagwati, J as he then was in Ram Narain Sons Ltd. vs Assistant Com missioner of Sales Tax; ; at 493 and the observations by Lord Macmillan in Madras & Southern Mahratta Railway Co. vs Bezwada Municipality, 1944 L.R.71 I.A. 113, 122 and laid down the sphere of a proviso thus: "The territory of a proviso therefore is to carve out an exception to the main enactment and exclude something which otherwise would have been within the section.
It has to operate in the same field and if the language of the main enactment is clear it cannot be used for the purpose of interpreting the main enactment or to exclude by implication what the enactment clearly says unless the words of the proviso are such that that is its neces sary effect.
(Vide also Corporation of the Ci.tV of Toronto vs Attorney General for Canada, ,37 .
" M/s Mackinnon Mackenzie & Co. Ltd. vs Audrey D 'Cost and Another, [1987] 2 SCC 469 may also be referred to.
When the impugned second proviso to Rule 4 of the CSE Rules is interpreted in its grammatical meaning and cognate expressions and construed harmoniously with the substantive rule in the light of the above decisions of this Court as well as the views expressed by various authors in their Text Books on this subject, it is pellucid that the said proviso only carves out an exception to Rule 4 of the CSE Rules in given circumstances and under specified conditions and, therefore, the second proviso cannot be read in isolation and interpreted literally.
On the other hand the substantive Rule 4 is to be read in conjunction with the two provisos appended thereto so as to have a correct interpretation.
In the proviso, in dispute, there are no positive words or indications which would completely exclude the operation of the substantive rule the spirit of which is reflected in Regulation 4 of the Regulations, 1955.
In fact, Rule 4 as stood till 1986, in its normal course, allowed a candidate to appear for three attempts, since increased to 4 for 1990 and 1991 Examinations.
But the restriction is imposed by the second proviso only under certain circumstances as repeated ly indicated above.
Although the notification of 1986 introducing the impugned proviso, no doubt, has to be strictly construed, the Court cannot overlook the very aim and object of the proviso thereby either defeating its purpose or rendering it redundant or 86 inane or making it otiose.
Judged from any angle, we are not impressed by the contention of Mr. P.P. Rao that there is a violent breach of the provisions of the substantive Rule 4 of CSE Rules and Regulation 4 (iii a) and we are not able to persuade ourselves to hold that the impugned second proviso either subverts or destroys the basic objectives of Rule 4 and that it is ultra vires.
In this connection, it may be noted that the restric tion or embargo, as the one under consideration is not only placed on the candidates who on the basis of the result of the previous CSE had been allocated and appointed to IPS or Central Service Group 'A ' but also on the candidates ap pointed in the higher echelon of Civil Service, which we will presently deal with.
There is a far more restrictive rule in existence, namely Rule 8 of the CSE Rules according to which a candidate who is appointed to the Indian Adminis trative Service (IAS) or the Indian Foreign Service (IFS) on the result of an earlier examination before the commencement of the ensuing examination and continues to be a member of that service will not be eligible to compete at the subse quent examination,.
even if he/she is disillusioned and wants to switch over.
In other words, this rule precludes the candidates who have been appointed to the IAS or IFS, from sitting in the ensuing examination while in service.
Further, this rule states that in case, a candidate has been appointed to the IAS or IFS on the basis of the earlier examination and after the subsequent preliminary examina tion, but before the Main examination, that candidate, if continues to be a member of that service, shall not be eligible to appear in the ensuing main examination notwith standing that the said candidate has qualified himself in the preliminary examination.
Similarly if a candidate is appointed to the IAS or IFS after the commencement of the Main Examination but before the announcement of the result and continues to be a member of that service, the said candidate shall not be considered for appointments to any service/post on the basis of the result of this examination.
The purpose for incorporating this uncompromising and strin gent provision is that the candidates appointed to the IAS and IFS are required to man the key positions both in the Central and State Services wherein the appointees have to combine their intellectual capacity and the requisite traits of personality and also to exhibit higher intellectual proficiency and leadership.
Thus Rule 8 keeps up and main tains the phenomenon of the upper civil service, run under our constitution with all enduring features and facets of the said service on All India basis.
But there is no bar for a candidate who is appointed to the lAS/FS resigning from that service and sitting in the examination for IPS or any Central Service Group 'A '.
Under Rule 4 of CSE Rules not withstanding anything contained in Rule 8, a candidate who accepts allocation to a service and appointed to that 87 service shall not be eligible to appear again in the CSE unless he first resigns from that service.
In other words, a candidate who is allocated and appointed to a service can sit in the ensuing examination provided he first resigns from that service.
This restriction, in our view, is a reasonable one in order to achieve the desired result in the background of the situation and circumstances about which we have elaborately discussed albeit.
In conclusion, we hold that the second proviso to Rule 4 of CSE Rules does not travel beyond the intent of the main rule putting any unjustifiable embargo and that the proviso is not ultra vires Regulation 4 (iii a) of Regulations 1955 on the ground it makes the candidates ineligible who are otherwise eligible in terms of clauses (i) to (iii) of the said Regulation and that the proviso to Rule 17 is not invalid.
An enactment is never to be held invalid unless it be, beyond question, plainly and palpably in excess of legisla tive power or it is ultra vires or inconsistent with the statutory or constitutional provisions or it does not con form to the statutory or constitutional requirements or is made arbitrarily with bad faith of oblique motives or op posed to public policy.
In our considered opinion, the second proviso to Rule 4 of CSE Rules cannot be held to be invalid on any of the grounds mentioned above.
The next question that has arisen for consideration is, how far the principle of reasonable restriction can be applied in the formulation of the rules, keeping the rele vance of the recruitment scheme to the civil service.
Nei ther an omnibus answer or a simplistic solution would carry us far to face the public service reality in the modern state, the governing consideration of which is the context of actual situation, circumstances, resources and the socie tal goals of the particular State/country.
The further argument advanced in Civil Appeal Nos.
5506 5525 of 1990 (as appears from the written submission made by Mr. C.N. Sreekumar) is that on a correct interpreta tion of the impugned second proviso, the last clause of which reads "such candidate who accepts the service shall not be eligible to appear again in the Civil Services Exami nation unless he first resigns from the service" refers to only candidates, who on the basis of the result of the previous CSE had been allocated to the Central Services Group 'A ' but who expressed their intention to appear in the next CSE (Main) for competing for IAS, IFS, IPS or Central Services Group 'A ' and who are permitted to abstain from the probationary training in order to so appear and who joined Group 'A ' service subsequently on allocation either on the basis of the previous examination or the subsequent examina tion.
According to him, in other words, the candidates who did not avail the benefit of abstaining from the probation ary training 88 with the permission of the Government in order to appear at the next Civil Services (Main) Examination do not fail within the scope of the impugned restriction and they cannot be asked to resign as a condition precedent to their appear ing again in the CSE.
This tenuous argument does not appeal to us.
Firstly the expression "such candidate", is not used in the proviso, on the other hand, the words used are "a candidate" (vide publication of Gazette of India dated 13 12 86).
Secondly the last part of the proviso, as it stands, reads "a candidate who accepts allocation to a service and is appointed to a service shall not be eligible to appear again in the Civil Services Examination unless he has first resigned from the service.
" Thirdly a correct and proper reading of the last limb of the proviso clearly demonstrates that the expression "a candidate" refers only to the candidate, mentioned in the earlier part of the proviso.
Lastly, if such an interpretation is to be given on the wrong reading of the proviso, then the whole object of the proviso will be defeated.
Question No. 7 Mrs. C.M. Chopra scathingly attacks the judgment of the Tribunal inter alia contending that the protection guaran teed to the candidates belonging to Scheduled Castes and Scheduled Tribes under the Constitution more particularly under Article 335 of the Constitution of India cannot be taken away by an arbitrary executive action by introducing the second proviso, thereby reducing the number of permissi ble attempts for appearing in the CSE hitherto enjoyed by such candidates; that the right statutorily and constitu tionally vested on the SC/ST candidates, permitting them to make unlimited attempts, of course, subject to the upper age limit cannot be easily whittled down and that the second proviso is an independent proviso, having no relation to the first proviso and apriori it cannot control and prevail upon the first proviso which declares "that this restriction on the number of attempts will not apply in the case of Sched uled Castes and Scheduled Tribes who are otherwise eligible." According to her, the reservation policy guaran teed to the SC/ST candidates cannot be obliterated by an unreasonable and arbitrary executive action.
No doubt, it is true that while the substantive Rule 4 of the CSE Rules permits every candidate to appear for three attempts at the examination which is now increased to four the first proviso to this rule states that this restriction on the number of attempts at the examination is not applica ble in the case of SC/ST candidates who arc otherwise eligi ble.
However, even in the case of SC/ST candidates, there is a specific restriction so far as the upper age limit is concerned as envisaged under Rule 6 (b) of the CSE Rules.
Regulation 7(2) of Regulation, 1955 states that the 89 candidates belonging to any of the Scheduled Castes or the Scheduled Tribes may, to the extent of the number of vacan cies reserved for the Scheduled Castes and Scheduled Tribes cannot be filled on the basis of the standard determined by the Commission under sub regulation (1) be recommended by the Commission by a relaxed standard to make up the defi ciency in the reserved quota, subject to the fitness of these candidates for selection to the Service, irrespective of their ranks in order to merit at the examination.
Sub Regulation (1) of Regulation 7 reads that subject to the provision of Sub Regulation (2) the Commission (U.P.S.C.) shall forward to the Central Government a list arranged in order of merit of the candidates who have qualified by such standard as the Commission may determine.
In the normal course, a candidate belonging to SC/ST category can enjoy all the benefits under the rules and regulations.
But the restriction imposed under the second proviso is only for a specified category of candidates by treating all such candidates at par and without making any exception to the candidates belonging to SC/ST.
The submis sion made by Mrs. Chopra that the second proviso is an independent one does not merit consideration because the second proviso to Rule 4 begins with the words 'provided timber. " which expression would mean that a strict com pliance of the second proviso is an additional requirement to that of the substantive rule 4 and the first proviso.
The expression "provided further" spells out that the first proviso cannot be read in isolation or independent of the second proviso but it must be read in conjunction with the second proviso.
To put in other words, once the candidates belonging to SC or ST get through one common examination and interview test and are allocated and appointed to a service based on their ranks and performance and brought under the one and the same stream of category, then they too have to be treated among all other regularly and lawfully selected candidates and there cannot be any preferential treatment at that stage on the ground that they belong to SC or ST, though they may be entitled for all other statutory benefits such as to the relaxation of age, the reservation etc.
The unrestricted number of attempts, subject to the upper age limit, is available to the SC/ST candidates in the normal course but that is subject to the second proviso because when once they are allocated and appointed along with other candidates to a category/post, they are treated alike.
Ramaswami, J speaking for the Constitution Bench in C.A. Rajendran vs Union of India & Ors., ; at page 733 while interpreting Article 16(4) of the Constitution of India observed thus: 90 "Our conclusion therefore is that article 16(4) does not confer any right on the petitioner and there is no constitutional duty imposed on the Government to make a reservation for Scheduled Castes and Scheduled Tribes, either at the initial stage of recruitment or at the stage of promotion.
In other words, Art.16(4) is an enabling provision and confers a discre tionary power on the state to make a reserva tion of appointments in favour of backward class of citizens which, in its opinion, is not adequately represented in the Services of the State.
We are accordingly of the opinion that the petitioner is unable to make good his submission on this aspect of the case.
" A seven Judges Bench in State of Kerala vs
N.M. Thomas; , before which some important questions arose with regard to the intent of Article 16 of the Constitution, referred to and relied upon the observation in Rajendran 's case holding that reservation is not a constitutional com pulsion, but is a discretionary one.
In that case Krishna lyer, J agreeing with the majority view expressed his opin ion thus: "The State has been obligated to promote the economic interests of harijans and like back ward classes, Articles 46 and 335 being a testament and Articles 14 to 16 being the tool kit, if one may put it that way.
To blink at this panchsheel is to be unjust to the Constitution.
" Further, the learned Judge held: "Indeed, Article 335 is more specific and cannot be brushed aside or truncated in the operational ambit vis a vis Article 16(1) and (2) without hubristic aberration." In Akhil Bharatiya Soshit Karmachari Sangh (Railway) vs Union of India & Others, [1981]1 SCC 246, Krishna lyer, J observed that Article 16(4) is not a jarring note but auxil iary to fair fulfilment of Article 16(1) and further said, "Article 16(4) is not in the nature of an exception to Article 16(1).
It is a facet of Article 16(1) which fosters and furthers the idea of equality of opportunity with spe cial reference to an underprivileged and deprived class of citizens to whom egalite de droit (formal or legal equality) is not egalite de fait (practical or factual equality).
See also M.R. Balaji vs State of Mysore, [1963] Supp. 1 SCR 439, Triloki Nath vs State of J&K, ; and T. Devadasan vs Union of India, ; and Comp troller and Auditor General of India vs 91 K.S. Jagannathan; , at 684 (para 6).
The Constitution, no doubt, has laid a special responsi bility on the Government to protect the claims of SC/ST in the matter of public appointments under various Constitu tional provisions of which we shall presently refer to a few.
Article 16(4), as manifested from the various decisions of this court referred to hereinbefore, is an enabling provision conferring a discretionary power on the State for making any provision or reservation of appointments or posts in favour of any backward class of citizens, which in the opinion of the State, is not adequately represented in the service under the State.
The expression 'backward class ' obviously takes within its fold people belonging to SC and ST (vide Janki Prasad vs State of J&K, ; Clause 4 of Article 16 has to be interpreted in the back ground of Article 335 as ruled by this Court in General Manager vs Rangachari, ; and in Rajendran 's case referred to above.
Article 335 enjoins that the claims of the members of the SC and ST shall be taken into consid eration, consistently with the maintenance of efficiency of administration, in the making of appointments to services or posts in connection with the affairs of the Union or of a State.
Article 320(4) makes it clear that the Public Service Commission is not required to be consulted as respects the manner in which any provision referred to in article 16(4) may be made or as respects the manner in which effect may be given to Article 335.
The query before us is not in respect of the reservation of backward classes or in respect of the claims of SC and ST services/posts, but it is whether the candidates belonging to SC and ST are entitled to any exception from the opera tion of the proviso.
The answer to the above query would be an negative as we have aforesaid.
It may be true, as fervently submitted by Mrs. Chopra there may be some hard cases, but the hard cases cannot be allowed to make bad law.
Therefore, in the case on hand, as long as the second proviso does not suffer from any vice, it has to be construed, uniformly giving effect to all those falling under one category in the absence of any specific provision exempting any particular class or classes of candidates from the operation of the impugned proviso and no one can steal march over others falling under the same category.
Hence, the right of candidates belonging to SC and ST competing further to improve their career opportunities is limited to the extent permissible under the second provi so to Rule 4 read with Rule 17 of the C.S.E. Rules.
For the aforementioned reasons, we find no merits in the submission.
92 of Mrs. Chopra that the second proviso is not applicable to the candidates belonging to SC or ST.
Mr. Gopal Subramanian appearing on behalf of some of the appellants supplemented by the arguments of other counsel, stating that the very structure of the recruitment policy is itself disturbed to the great disadvantage of the candidates who since then have been enjoying the right to appear for 3 attempts as conferred by the substantive Rule 4 and that one of the present restrictions that the candidates should severe from the service, if intends to appear for the third time, after he has been allocated and appointed to a service is unjust, unreasonable and it seriously transgresses on the main provision and virtually interdicts the candidates from availing their statutorily conferred and protected right.
Therefore, such a serverance of status from the service is ex facie wrong, even if one can understand losing of senior ity.
We have already discussed this interpellation in exten so while dealing with similar contentions and our considered view expressed albeit will clearly answer this contention.
Hence, we hold that there is no question of severance of status as we have come to the conclusion that the restric tion imposed by the impugned proviso cannot be said to be unjust, unreasonable or arbitrary or change of any policy and moreover, the spirit of the main rule is not in any way disturbed.
In the result, we conclude that there is neither any tenable reason nor any logic in the above submission.
Question No. 8 Then a mordacious criticism was unleashed by all the learned counsel appearing on behalf of the appellants inter alia contending that the second proviso which is an administrative instruction is highly arbitrary and irration al having no nexus to the object of the scheme of recruit ment to the post of civil services and that there was inade quate attention paid to the nexus between the intent of the proviso and the object to be achieved.
The learned Additional Solicitor General controverted the above argument stating that the working system of the civil service in relation to its logical relationship of recruitment rules on different aspects has been exclusively investigated bearing in mind the process of rapid economic development with a democratic framework of Government on Indian scenario and the present proviso is having a dynamic, reasonable and relative nexus with the object to be achieved in the present system of the civil services within its administrative framework.
No denying the fact that the civil service being the top most service in 93 the country has got to be kept at height, distinct from other services since these top echelons have to govern a wide variety of departments.
Therefore, the persons joining this higher service should have breadth of interest and ability to acquire new knowledge and skill since those joining the service have to be engaged in multiple and multifarious activities as pointed out supra.
In order to achieve this object, the selectees of this higher civil services have to undergo .training in the National Academy/ Training institutes wherein they have to undergo careful programme of specialized training as probationers.
The various schemes of training are based on the conviction that splendid active experience is the real training and the selectees are to be trained in the academies in all kinds of work they have to handle afterwards with a band of senior chosen officers.
Training at the academy comprises a founda tion course followed by another course of practical train ing.
The rationale underlying the course at the training centres is that the officers of civil services must acquire an understanding of the constitutional, social, economic and administrative framework within which they have to function and also must have a complete sense of involvement in the training and thereafter in the service to which/she is appointed.
It is apparent that initial training is in the nature of providing young probationers an opportunity to counter act their weak points and at the same time develop their social abilities and as such the aspect of training is the most important of all.
It was brought to the notice of the Government that the probationers who have been allocated to the IPS and Group 'A ' service were more often than not completely neglecting their training in the academies/Training Institutes and also have gone on enmass leave thereby creating a complete vacuum in the academy and the Training Institutes for the purpose of preparing for the next CSE (Main) in the hope of getting a better position and a more preferred service like IAS, IFS etc.
without having a sense of involvement with the service to which they have been allocated and appointed on the basis of the earlier examination.
It seems that the Government had been facing this disturbed problem of indiscipline and inattentiveness among the probationers undergoing training who were busy themselves with the preparation for the ensu ing CSE.
As a result of this, bent on preparation for the CSE the training imparted was not seriously taken and the concentration of the probationers was only in the prepara tion of the next CSE.
Consequently, the standard of officers turned out of the academy on completion of their training declined very much.
Therefore, in order to overcome this problem it was suggested and considered that the probation ers selected and allocated to a service and sent for train ing should be debarred from appearing in the ensuing CSE so that they can 94 fully devote themselves to the training and take it more seriously.
Resultantly, the matter was considered in consul tation with the Department of Personnel and Training and it was agreed that the relevant rules should be amended so as to prevent the IPS and Group 'A ' probationers from joining training at the academy in case they intend to take another CSE.
These measures are taken for making probationers train ing more effective and meaningful.
Hence for the aforementioned reasons, we hold that there is a dynamic nexus between the impugned second proviso and the object to be achieved.
Question No. 9 We shall now pass on to the real and pivotal point in issue which has been hotly debated and eloquently articulat ed by all the learned counsel contending that the impugned proviso is discriminatory and violative of Articles 14 and 16 of the Constitution resulting in a disastrous effect.
All the learned counsel appearing in all the batches of the appeals amplified the above contention stating thus: In all, there are 46 Group 'A ' Central Services listed in the CCS Rules of which only for 16 Group 'A ' Services, recruitment is made through the Civil Services Examination conducted by UPSC annually and it is only in respect of the candidates already allocated and appointed to the IPS or to one or other of these 16 Group 'A ' services, the impugned proviso imposes an onerous restriction that they should first resign in order to appear at the next Civil Service Examination whereas there is no such restriction so far as candidates recruited through the same open competition to the remaining Group 'B ' services are concerned despite the fact that the level of responsibility is the same and the qualifications prescribed are comparable.
This kind of classification between these two groups has no rational nexus with the object of selection.
The reasons attributed for such a classification on the ground of neglect of train ing, financial loss, unemployment situation, loss to service are all common to all the Central Service Group 'A ' listed in the CCS Rules, and therefore, the impugned second proviso is held to be discriminatory against the candidates appoint ed to the IPS and 16 Group 'A ' services and as such it is violative of Article 14.
The impugned proviso makes a further discrimination vis a vis candidates appointed to Group 'B ' services, in that the said proviso by placing the onerous condition of resignation from service of candidates appointed to the IPS and Group 'A ' service in substance and effect and it 95 precludes them from competing for higher civil service with the candidates appointed to Group 'B ' service and thereby facilitates the selection of candidates with relatively inferior merit to posts of superior Group 'A ' services.
In other words, the impugned proviso excludes the candidates appointed to group 'A ' services from competition on the one hand and on the other facilitates selection from amongst less meritorious candidates appointed to Group 'B ' services to the highest and prestigious All India Services.
This defeats the very object of securing the services of most meritorious candidates to the most important All India Services and it is arbitrary for want of rational nexus between the classification of candidates with the proven superior merit and those of inferior merit and consequently the object of recruiting the most meritorious candidates to the top most All India Services is frustrated.
In addition to the above submission, reliance was placed on the dictum laid down in R.K. Dalmia vs Justice Tendolkar, ; at pages 296 297 holding, "In order to pass the test of permissible classifications two conditions must be fulfilled, namely (i) that the classification must be founded on an intelligible differentia with distinguishes persons or things that are grouped together from others left out of the group and, (ii) that that differentia must have a rational relation to the object, sought to be achieved by the statute in question.
" According to Mr. P.P. Rao, the recommendations of the Kothari Committee and the Estimates Committee are not en forceable proprio vigore and the executive authorities who are expected to act justly and reasonably, cannot usurp the functions of the Parliament and arbitrarily put a restric tion through the impugned proviso which restriction is highly tainted with hostility and discrimination subjecting the candidates allocated and appointed to the IPS and Group 'A ' services to a harassing and oppressive treatment.
Mr. Gopal Singh appearing for some of the appellants besides stating that he is adopting the submissions made by other learned counsel cited some decisions in support of his arguments that the discrimination now existing consequent upon the introduction of the second proviso offends Article 14 of the Constitution.
At the risk of repetition, it may be stated that under the present system of civil services, all candidates are selected through one common examination preliminary and main and interview test.
A list of selected candidates in the order of merit is published and thereafter the success ful candidates are allocated to different services namely IAS, IFS, IPS, Group 96 'A ' and Group 'B ' services based on their ranks and prefer ences.
Of the candidates, IAS and IFS are top rankers in the merit list.
In the notification dated 13.12.1986 issued by the Ministry of Personnel, there were only 28 services/posts of which the first three were IAS, IFS and IPS and of the remaining (iv) to (xviii) were Group 'A ' services and (xix) to (xxviii) were Group 'B ' services.
In the list of Group 'A ' services, items (xvii) and (xviii) were Grade II and III respectively.
In notification dated 19.12.1987, there were in total 27 services/posts of which the first three were the same and the services under (iv) to (xix) were Group 'A ' services and (xx) to (xxvii) were Group 'B ' services.
In the nomenclature of Group 'A ' and Group 'B ' services, there was slight variation.
In the subsequent notification issued on 17.12.1988, besides the first three services being the same, the total number of services in group 'A ' was 16 and in Group 'B ' the number of services was reduced to 7.
In 1989, the first three services remaining the same, there were 16 services under items (iv) to (xix) in Group 'A ' services and 8 services/posts in Group 'B ' Services under item (xx) to (xxvii).
In the notification issued on 5th January 1991, the total services were reduced from 27 to 26 and items (i) to (iii) remaining the same, there were 16 Group 'A ' services (iv to xix) and 7 services in Group 'B ' (xx to xxvi).
Thus, it is seen that there was inclusion or exclusion of one service or other besides the change of nomenclature in one or two services in the notifications for the CSE every year.
As envisaged in Rule 17, due consideration is given at the time of making appointments and on the results of the examination to the preferences expressed by a candidate for various services at the time of his application and the said appointments will be governed by the rules/regulations in force as applicable to the respective Services at the time of appointment.
As pointed out in detail in the preceding part of this judgment, under the first proviso to Rule 17, a candidate who has been approved and appointed to IPS or Central Services Group 'A ' will be eligible to compete for appointment in services mentioned against that service in column No. 3 of the table given in the said rule.
As per the second proviso appended to the said rule, a candidate who is appointed to a Central Service Group 'B ' on the results of an earlier examination will be eligible to compete for IAS, IFS, IPS and Central Services Group 'A ' and considered only for those appointments.
The intent of the above proviso proceeds on the footing that all Central Services of Group 'A ' stand on equal footing and likewise all Group 'B ' serv ices also stand on equal footing within their respective group of services/posts and that there is no point in com peting for any one of the services by a candidate within the same Group 'A ' or Group 'B ' services as the 97 case may be when he has already been allocated and appointed to one of those services in either of the groups to which he has been selected on his merit.
It cannot be disputed that the candidates allocated to Group 'A ' services are more meritorious compared to candi dates allocated to Group 'B ' services.
Consequently, those allocated to Group 'B ' services get lower position compared to those allocated to Group 'A ' services.
The pay scales in Group 'B ' services are comparatively less than those meant for IAS, IFS and IFS and Central Services Group 'A '.
There is a clear cut separation on the basis of ranking and merit and, therefore, it cannot be said by any stretch of imagina tion that both Group 'A ' and Group 'B ' services fall under one and the same category but on the other, these services are two distinct and separate categories failing under two different classifications.
The Additional Solicitor General refuting the arguments of Mr. P.P. Rao that there is a discrimination between Group 'A ' and Group 'B ' services, in that whilst an Under Secre tary, selected in Group 'A ' services, is not allowed to sit for examination by availing his third chance, a Section Officer coming under Group 'B ' services is permitted to sit for examination availing his chance without resigning from service, emphatically stated that this argument has no merit since in Group 'A ' services, there is a vertical movement.
The learned ASG further clarified that Group 'A ' and Group 'B ' services are two separate services, having different status, prospects, conditions of services and pay scales and both the services under the two groups are not similarly situated, besides the candidates in Group 'A ' services standing in higher rank and merit.
The Tribunal after deeply considering the similar con tention raised before it has concluded as follows: . .
We do not see any reasonable basis to urge that Group 'A ' and Group 'B ' Services should be treated at par.
Even their pay scales and conditions of service not the same as in the Group 'A ' Services.
It is, there fore, not a question of comparing these two Services and placing them at par.
In our opinion, there is no discrimination.
It will be noticed that the alleged discrimination is not on the basis of religion, race, caste, sex, descent, place of birth, residence or any of them.
The discrimination, if any, has a reasonable nexus with the objective for which it has been made.
The objective is to create five categories of Services consisting of IAS, IFS, IFS, Central Services Group 'A ' and Central Services Group 'B '.
We are fur 98 ther of the opinion that the Government having come across certain difficulties and problems in the matter of probationary training and the filling up of the vacancies in various Serv ices made these rules.
We do not find the argument of discrimination between Group 'A ' and Group 'B ' Services to be valid.
We, there fore, reject these arguments".
One other argument advanced on behalf of the appellants was that 'he candidates who have been allocated in Group 'A ' services and whose raining is postponed at their request have to loose their seniority whereas .he candidates who have been appointed to Group 'B ' services do not suffer such kind of disability and that they can even after their train ing retain their original seniority which they had at the time of initial selection.
This serious setback suffered by a candidate selected in Group 'A ' services, according to the counsel for the appellants, indicates that there is an apparent discrimination between the two sets of candidates.
This contention of the appellants, according to ASG, cannot be countenanced because the services under Group 'A ' and Group 'B ' are different services and, therefore, the condi tions of service of a particular service cannot be compared with other service especially when the services are not at par and more so when the other service, namely, Group 'B ' service is less in rank and merit to that of Group 'A ' Service.
In passing, all the learned counsel in assailing the validity of the impugned second proviso drew our attention to various Service Rules, such as Central Secretariat Serv ice Rules, Indian Revenue Service Rules, 1988, Indian Cus toms and Central Excise Service Group 'A ' Rules, 1987, Department of Revenue (Customs Appraiser) Recruitment Rules, 1988, Indian Railway Personnel Service (Recruitment) Rules, 1975 and Delhi and Andaman and Nicobar Islands Civil Service Rules, 1971 all made under Article 309 of the Constitution of India and attempted to show that various provisions of those rules relating to the recruitment and service condi tions go in support of their submissions that there is a hostile discrimination between the candidates of Group 'A ' services and Group 'B ' services.
In our considered opinion,.
this abortive attempt made by the learned counsel does not loom large and assume any significance in examining the broad aspect of the main issues involved and in testing the constitutionality of the said proviso.
Now, it necessarily follows whether the classification of these two services, one falling under Group 'A ' and another failing under Group 'B ' are based on intelligible differentia.
99 The Constitution Bench of this Court in R.K. Dalmia 's case (supra) after reiterating the legal principle enunciat ed by a Constitution Bench of Seven Judges of this Court in Budhart Choudhry vs State of Bihar, ; , has ruled thus: "It is now well established that while Article 14 forbids class legislation, it does not forbid reasonable classification for the purposes of legislation.
" Having regard to the objective in that case, it has been held: "In determining whether there is any intelli gible differentia on the basis of which the petitioners and their companies have been grouped together it is permissible to look not only at the facts appearing in the notifica tion but also the facts brought to the notice of the Court upon affidavits.
The facts in the present case afford sufficient support to the presumption of constitutionality of the noti fication and the petitions have failed to discharge the onus which was on them to prove that other people or companies similarly situated have been left out and that the petitioners and their companies have been singled out for discriminatory and hostile treatment.
" In Kumari Chitra Ghosh and Another vs Union of India and Others, ; , the facts were thus: The appellants filed a Writ Petition in the High Court challenging the authority of the Central Government to select candidates for certain reserved seats on the ground that they having secured 62.5 per cent marks would have got admission but for the reservation of seats which were filled by nominations by the Central Government.
The High Court dismissed the Writ Petition as well as the Review Petition.
Aggrieved by the judgment of the High Court, the appellants appealed to this Court.
Grover, J speaking for the Constitu tion Bench approved the dictum in R.K. Dalmia 's case (cited above) laying down the fulfilment of the two conditions as the test of permissible classification and held that the classification in that case was based on intelligible dif ferentia, observing thus: "It is the Central Government which bears the financial burden of running the medical col lege.
It is for h to lay down the criteria for eligibility.
From the very nature of things it is not possible to throw the admission open to students from all over the country.
The Gov ernment cannot be denied the right to 100 decide from what sources the admission will be made.
That essentially is a question of policy and depends inter alia on an overall assess ment and survey of the requirements of resi dents of particular territories and other categories of persons for whom it is necessary to provide facilities for medical education.
If the sources are properly classified whether on territorial, geographical or other reasona ble basis it is not for the Courts to inter fere with the manner and method of making the classification.
" In the above case, the Court has distinguished the decision in Rajendran 's case (referred to above).
Y.V. Chandrachud, J as he then was speaking for the Constitution Bench in State of Jammu & Kashmir vs Triloki Nath Khosa & Ors., ; in which it was contend ed on behalf of the State that is always open to the Govern ment to classify its employees so long as the classification is reasonable and has nexus with the object thereto, stated as follows: "Thus, it is no part of the appellants ' burden to justify the classification or to establish its constitutionality.
Formal education may not always produce excellence but a classifi cation founded on variant educational qualifi cations is for purposes of promotion to the post of an Executive Engineer, to say the least, not unjust on the fact of it and the onus therefore cannot shift from where it originally lay. . . . . . .
Classification is primarily for the legisla ture or for the statutory authority charged with the duty of framing the terms and condi tions of service, and if, looked at from the standpoint of the authority making it, the classification is found to rest on a reasona ble basis, it has to be up held. . .
Discrimination is the essence of classifica tion and does violence to the constitutional guarantee of equality only it rests on an unreasonable basis.
Equality is for equals .
That is to say that those who are similarly circumstanced are entitled to an equal treatment. .
Judicial scrutiny can therefore extend only to the considera tion whether the classification rests on a reasonable basis whether it bears nexus with the object in view.
It cannot extend to em 101 barking upon a nice or mathematical evaluation of the basis of classification, for were such an inquiry permissible it would be open to the courts to substitute their own judgment for that of the legislature or the rule making authority on the need to classify or the desirability of achieving a particular object.
" P.N. Bhagwati, J and Krishna lyer, J have concurred with the view expressed by chandrachud, J though they have added some more concurring observations of their own.
It will be apposite to recall an observation of this Court in A.S. Sangwan vs Union of India, [1980] Supp.
SCC 559 at 561 reading as follows: "A policy once formulated is not good for ever; it is perfectly within the competence of the Union of India to change it, rechange it, adjust it and readjust it according to the compulsions of circumstances and the impera tives of national considerations.
We cannot, as Court, give directives as to how the De fence Ministry should function except to State that the obligation not to act arbitrarily and to treat employees equally is binding on the Union of India because if functions under the Constitution and not over it . . .
It is entirely within the reasonable discre tion of the Union of India.
It may stick to the earlier policy or give it up.
But one imperative of the Constitution implicit in Article 14 is that if it does change its policy, it must do so fairly and should not give the impression that it is acting by any ulterior criteria or arbitrarily. ' ' See also Akhil Bharatiya Soshit Karamchari Sangh (Rail wav) 's case (already referred to).
In Deepak Sibal vs Punjab University, ; M.M. Dutt, J speaking for the Court has held thus: "In order to consider the question as to the reasonableness of the classification, it is necessary to take into account the objective for such classification.
If the objective be illogical, unfair and unjust, necessarily the classification will have to be held as unrea sonable.
Surrounding circumstances may be taken into consideration in support of the constitutionality of a law which is otherwise hostile or discriminatory in nature.
But the circumstances must be such as to justify the discriminatory treatment or the classification subserving the object sought to be achieved.
A classification by the identification of a source must 102 not be arbitrary, but should be on a reasona ble basis having a nexus with the object sought to be achieved by the rules for such admission.
A classification need not be made with mathematical precision but, if there be little or no difference between the person or things which have been grouped together and those left out of the group, the classifica tion cannot be said to be a reasonable one . . . . . .
It is true that a classification need not be made with mathematical precision but, if there be little or no difference between the persons or things which have been grouped together and those left out of the group, in that case, the classification can not be said to be a rea sonable one . . . . .
It is submitted that in making the classification the surrounding circumstances may be taken into account . . . . . follows from the observation that surrounding circumstances may be taken into consideration in support of the constitutionality of a law which is otherwise hostile or discriminatory in nature.
But the circumstances must be such as to justify the discriminatory treatment or the classification subserving the object sought to be achieved.
In the instant case, the circumstances which have been relied on by the respondents, namely, the possibility of production by them of bogus certificates and insecurity of their services are not, in our opinion, such circumstances as will justify the exclusion of the employees of private establishments from the evening classes.
" What falls instantly for determination is whether the differentia on which the classification is sought to be made has a rational relation with the object to be achieved.
We have already discussed this question in detail when we have separately examined the question as to whether the second proviso is related to the purposes stated therein.
Whereas Mr. Kapil Sibal has urged that it is always open to the Government to classify its employees as long as the classification is reasonable and has nexus to the object thereto, the rival contention is that there is no nexus between the classification and the object to be achieved thereby, that in fact the classification defeated that object, that if chances of sitting for examination are denied to a few with equals, there is inherent vice attached to such classification and that in such circumstances, the unreasonableness of the classification becomes patent.
It is further urged 103 on behalf of the appellants that this classification foments frustration amongst the selectees of group 'A ' services and produces inefficiency by placing men of lower efficiency in a very advantageous position.
Mr. P.P. Rao would urge that if there is a vertical movement in group 'A ' services as stated by Mr. Kapil Sibal, how can candidates in group 'B ' services be permitted to sit for examination of IAS, IFS and IPS by passing the meritorious candidates under group 'A ' and therefore the classification is per se irrational, unjust and discriminatory and as such ultra vires Article 14.
We shall now bestow out judicious thought over this matter and carefully examine the rival contentions of the rival parties in the light of the guiding principles, lucid ly laid down by this Court in a series of decisions, a few of which we have already referred to hereinbefore.
The selections for IAS.
IFS and IPS group 'A ' services and group 'B ' service are made by a combined competitive examination and viva voce test.
There cannot be any dispute that each service is a distinct and separate cadre, having its sepa rate field of operation, with different status, prospects, pay scales, the nature of duties, the responsibilities to the post and conditions of service etc.
Therefore, once a candidate is selected and appointed to a particular cadre, he cannot be allowed to say that he is at par with the others on the ground that all of them appeared and were selected by a combined competitive examination and viva voce test and that the qualifications prescribed are comparable.
In our considered view, the classification of the present case is not based on artificial inequalities but is hedged within the salient features and truly founded on substantial differences.
Judged from this point of view, it seems to us impossible to accept the submission that the classification rests on an unreal and unreasonable basis and that it is arbitrary or absurd.
In this connection, it may be noted that in fact the civil services in foreign countries too, such as United States of America, Great Britain, France and Canada grew up by degrees from time to time in tune with the concept of new ideas under the pressure of some necessity or influence of particular theories linked with the changing political ideology and social conditions and with a view to trimming the civil service scheme and this process of development is by way of evolution rather than revolution.
We may again hark pack to the case of the appellants and examine whether this classification offends Articles 14 and 16 of the Constitution of India.
Article 14 declares that the State shall not deny to any person 104 equality before the law or the equal protection of the law within the territory of India.
The cherished principle underlying the above Article is that there should be no discrimination between one person and another if as regards the subject matter of the legislation, their position is the same.
Vide Chiranjit Lal vs Union of India, ; or in other words its action must not be arbitrary, but must be based on some valid principle, which in itself must not be irrational or discriminatory (Vide Kasturi vs State of J & K (albeit).
As ruled by this Court in Ameeroonissa vs Mah boob, and Gopi Chand vs Delhi Administration, ; that differential treatment does not per se constitute violation of Article 14 and it denies equal protection only when there is no rational or reasonable basis for the differentiation.
Thus Article 14 condemns discrimination and forbids class legislation but permits classification founded on intelligible differentia having a rational relationship with the object sought to be achieved by the Act/Rule/Regulation in question.
The Government is legitimately empowered to frame rules of classification for securing the requisite standard of efficiency in services and the classification need not scientifically be perfect or logically complete.
As observed by this Court more than once, every classification is likely in some degree 10 produce some inequality.
The provisions of Article 14 of the Constitution have come up for discussion before this Court in a number of cases but we feel that in the present case, it is not neces sary to go in for any lengthy discussion as 10 the origin, meaning and the gradual development of the concept of prin ciples and enlargement of the scope and effect of this Article.
Suffice to mention a few decisions of this court relating to the issue under consideration, namely Chiranjit Lal Chowdhury vs The Union of India; Budhart Choudhry and Others vs The State of Bihar; R.K. Dalmia vs Justice Tendol kar (all cited above); E.P. Royappe vs State of Tamil Nadu, ; ; Maneka Gandhi vs Union of India, [1978] 1 SCC 248; Ramana vs International Airport Authority of India, AIR 1979 SC 1928; Union of India vs Tulsiram Patel, ; ; Swadeshi Cotton Mills vs Union of India, ; ; and Central Inland Water Transport Corpo ration vs Brojo Nath, AIR 1986 SC 1971.
In Devadasan vs Union of India, ; wherein Subba Rao, J as he then was, has dissented from the majority and pointed out that the expression "equality before the law or the equal protection of the laws '* means equality among equals and that Article 14 does not provide for an absolute equality of treatment to all persons in utter disregard in every conceivable circumstance of the differences.
105 In Birendra Kumar Nigam and Others vs Union of India,Writ Petition Nos. 220 222 of 1963 decided on 13.3.1964, three writ petitions were filed under Article 32 of the Constitution raising a common question regarding the constitutional validity of certain rules framed by the Union Ministry of Home Affairs and certain directions issued by it relative to the appearance of Assistants employed in the Central Secretariat Service in the competitive examination held by the Union Public Service Commission for recruitment to certain All India Services.
In each of the above three petitions, grounds of challenge was same viz., that the impugned rules and directions were violative of Articles 14 and 16 (1) of the Constitution.
The facts in relation to the three petitions were slightly different.
Therefore, by way of illustration we will tersely state the facts in Writ Petition No. 220 of 1963.
The petitioner in that case was appointed to the post of an Assistant in the Central Secretariat Service from 1956 and he joined the same on 29.8.56.
But in March of that year, he had already submitted his application to be includ ed as a candidate for competing in the combined examination for the several All India Services IAS, IFS, IPS and the several categories of the All India Central Services, the Examination for which was held in September 1956 but before that date he received an information from the Home Ministry that he could not appear for that examination because he was still on probation.
prior to the date on which he completed his probation and was confirmed as an Assistant, the Minis try of Home Affairs issued the impugned notification on 14.3.1957 pointing out that there was an acute shortage of Grade IV Assistants in the Secretariat Service and that the Assistants would not be permitted to compete at the examina tion to be held in 1957 and that those who were desirous of competing their candidature would be restricted to an ap pointment to Grade III of the Central Secretariat alone.
We are not giving the facts of other two writ petitions since the common question decided was the same.
Rajagopala Ayyangar, J while speaking for the Constitu tion Bench in that case has held: "If, as must must be, it is conceded that the existencies, convenience, or necessity or a particular department might justify the impo sition of a total ban on the employees in that department, from seeking employment in other departments, a partial ban which permits them to seek only certain posts in the 106 same department cannot be characterised as illegal as being discriminatory.
The mere fact therefore that under the rules officers in certain other departments are permitted to compete for a Class I post is no ground by itself for considering such a variation as an unreasonable discrimination, violative of Articles 14 and 16 (1) of the Constitution as not based on a classification having a ration al and reasonable relation to the object to be attained.
Of course, no rule imposes a ' ban on these employees resigning their posts and competing for posts in the open competition along with 'open market 'candidates." As we have repeatedly held that each of the civil services, namely IAS, IFS, IPS, Group 'A ' Services and Group 'B ' Services is a separate and determinate service forming a distinct cadre and that each of the services is founded on intelligible differentia which on rational grounds distinguishes persons grouped together from those left out and that the differences are real and substantial having a rational and reasonable nexus to the objects sought to be achieved and that there is no question of unfairness or arbitrariness in the executive action in adding the second proviso to the substantive rule 4 of CSE Rules.
When the submission of the learned counsel for the appellants is carefully exam ined in the backdrop of the legal principles and the factual position, we are in full agreement with conclusion arrived at by the Tribunal that the impugned second proviso to Rule 4 is not violative of Articles 14 or 16 of the Constitution of India.
In Summation: The impugned second proviso to Rule 4 of the CSE Rules introduced by Notification llll No. 13016/4/86 AIS(1) dated 13.12.1986 is legally and constitutionally valid and sus tainable in law and the said proviso neither travels beyond the intent of the main rule, namely, Rule 4 of the CSE Rules nor it is ultra vires Regulation 4 (iii a) of Regula tions, 1955 that it is neither arbitrary nor unreasonable and that there is a dynamic and rational nexus between the impugned second proviso and the object to be achieved.
There is no discrimination whatsoever involved on account of the introduction of the second proviso in question and the said proviso is not ultra vires Article 14 or Article 16 of the Constitution of India.
Before parting with the judgment, we feel that it has become necessary to give a specif ic direction to the respondents inclusive of the Union Public Service Commission in pursu ance of the earlier directions given in our order dated 7.12.1990 (vide Annexure 'A ') which directions were given in pursuance of various interim orders passed by the Central Administrative Tribunal, Principal Bench, New Delhi and thereafter finally in its final 107 judgments dated 20.8.90, 4.10.90 and 5.10.90.
For ready reference and to have a proper perspective, we would like to proliferate the following passage from our earlier order dated 7.12.1990: "Hence we permit all those candidates failing under Para Nos. 5 (ii), 6 and 7 to sit for the main examination subject to the condition that each candidate satisfies the Secretary, Union Public Service Commission.
that ' he/she falls within these categories and that the concern candidates have passed the preliminary exami nation of 1990 and have also applied for the main examination within the due date.
This permission is only for the ensuing examina tion.
As we are now permitting those who have passed the preliminary examination of 1990 and have applied for the main examination on the basis of the unquestioned and unchallenged directions given under paras 5(ii), 6 and 7 of the judgment of the CAT, Principal Bench, New Delhi, the same benefit is extended to the other appellants also who satisfy those condi tions as mentioned under paras 5(ii), 6 and 7.
" On the strength of the above order, we direct the re spondents inclusive of the Union Public Service Commission that all those candidates who have appeared for the Civil Services (Main) Examination, 1990, pursuant to our permis sion given in the order dated 7.12.90 and who have come out successfully in the said examination and thereby have quali fied themselves for the intervieW, that if those candidates completely and satisfactorily qualify themselves by getting through the written examinations as well as the interview shall be given proper allocation and appointment on the basis of their rank in the merit list, notwithstanding the restriction imposed by the second proviso and our present judgment upholding the validity of the said proviso since the respondents have not questioned and challenged the directions given by CAT, Principal Bench, Delhi in para graphs 5(ii), 6 and 7 of its judgment dated 20.8.1990.
We would like to make it clear that the unchallenged direction given by the CAT in its judgment as well as directions given by us in our order dated 7.12.90 are not controlled by any rider in the sense that the said directions were subject to the result of the cases and hence those directions would be confined only to those candidates who appeared for CSE, 1990 and no further.
The seniority of those successful candidates in CSE, 1990 would depend on the service to which they have qualified.
The seniority of the left out candidates would be maintained in case they have joined the service to which they have been allocated on the result of previous CSE and such candidates will not be subjected to suffer loss of seniority as held by the CAT, Delhi in its judgment.
108 In the result for the reasons aforementioned the judg ments of the Tribunal are confirmed subject to the above directions and all the appeals are dismissed accordingly.
No order as to costs.
ORDER We have heard all the learned counsel appearing in their respective appeals and also the learned Additional Solicitor for respondents for a very considerable length of time.
The main thrust of the argument advanced on behalf of all the appellants is that the second proviso to Rule 4 of the Civil Services Examination Rules (published in the Gazette of India, Extraordinary, Part I Section, dated December 17, 1988) is offending Article 14 of the Constitution of India and is contrary to law.
As the above question requires a careful examination with regard to the individual cases listed for consideration and as we are informed that the Central Services Examination Commences on 17.12.1990, we arc constrained to give the following directions on the basis of the conclusions arrived at by the Central Administrative Tribunal, Principal Bench, New Delhi in its judgment dated 20th August 1990.
The relevant conclusions as they appear from the concluding portion of the judgment of the Tribunal are as follows: 5(ii).
A candidate who has been allocated to the I.P.S. or to a Central Services, Group 'A ' May be allowed to sit at the next Civil Service Examination, provided he is within the permissible age limit, without having to resign from the service to which he has been allocated, nor would he lose his original seniority in the service to which he is allo cated if he is unable to take training with his own Batch.
Those applicants who have been allocated to the I.P.S. or any Central Services, Group 'A ', can have one more attempt in the subse quent Civil Services Examination for the services indicated in Rule 17 of the C.S.E. Rules.
The Cadre Controlling Authorities can grant one opportunity to such candidates.
All these candidates who have been allo cated to any of the Central Services, Group 'A ', or I.P.S. and who have appeared in Civil Services Main Examination of a subsequent year under the interim orders of the Tribunal for the Civil Services Examination in 1988 or 1989 and have succeeded, are to be given benefit of their success subject to the provisions of Rule 17 of the C.S.E. Rules.
But this exemp tion will not be available for any subsequent Civil Services Examination.
109 It is pertinent to note that the respondent has not challenged the above directions given in the concluding part of the judgment.
So far as the conclusions under para Nos. 6 and 7 reproduced above, the learned Additional Solicitor General states that the respondent has no objection to have them sustained.
So far as the directions under para No. 5 (ii) is concerned, the Tribunal has allowed the candidates who have been allocated to the I.P.S or the Central Serv ices, Group 'A ' to sit at the next Civil Service Examination subject to the condition that they must be within the per missible age limit and without having to resign from the service to which they have been allocated nor would they lose their original seniority in the service to which they are allocated if they are unable to take training with their own Batch.
The Tribunal has used their expression "may be allowed to sit at the next Civil Service Examination but it did not restrict it only with regard to the preliminary examination as now contended by the learned Additional Solicitor, according to whom those candidates are not eligi ble to sit for the main examination since the Tribunal has upheld the validity of the second proviso to Rule 4 of the CSE Rules.
In order to properly understand and appreciate the conclusions arrived at by the Tribunal under para 5(ii), we shall reproduce some interim orders made by the Tribunal during the hearing of the O.As.
In M.P. No. 1269/90 in OA No. 1074/90 dated 31.5.1990 which has given rise to SLP (Civil) Nos.
13525 38/90, the C.A.T., New Delhi has passed the following order: "We have heard the learned counsel for the parties and considered the matter.
In our opinion, a direction should be issued to the respondents to permit the applicants to appear in the preliminary C.S.E. 1990 without press ing for their resignations from the service and respondents may also grant them necessary leave etc.
This interim order will be subject to the order in O.A. 206/1989 and connected cases.
" Interim order passed on 4.6.1990 in Regn.
No. 0A/160/90 by CAT, New Delhi which has given rise to Civil Appeal No. 5470/90 reads thus: "The learned counsel for the applicant states that the applicant has applied for the 1990 Civil Services Preliminary Examination well in time and has also received Roll Number from the Union Public Service Commission and that he is not being allowed to appear in the Examination in view of the power conferred by the second proviso to Rule 4 of the Civil Services Examination 1987.
The examination is going to be held on 10.6.1990.
In view of this, we direct that if it is convenient and administratively possible, the respondents shall allow the ap 110 plicant provisionally to appear in the said examination.
Respondents may also consider granting him necessary leave etc.
for the purpose.
Issue dasti.
" In M.P. No. 1251/90 in O.A. No.944/1989 which has given rise to Civil Appeal No. 5471/90, CAT, New Delhi has passed the following order: "We have heard learned counsel for the parties and we think it will be in the interest of justice to allow the prayer for interim order to enable the petitioner to sit in the prelim inary C.S.E. 1990.
Learned counsel for the petitioner states that the petitioner has received the admission card.
He is directed to give the Registration No./Roll No. to the Secretary, UPSC by 4.6.1990.
We direct the respondents to permit the petitioner to appear in the preliminary C.S.E. 1990 without press ing for his resignation from the service and also grant him necessary leave etc.
for ap pearing in the said examination.
This interim order will be subject to the order in OA.
944/1989.
The Misc.
Petition is accordingly disposed of.
Order dasti.
" In OA 913/90 (MP 1133/90) and CA No. 914/90 (MP 1134/90), which have given rise to Civil Appeal Nos.
5506 5525/90 the Tribunal has passed the following order on 17.5.1990: "As regards interim relief, the respondents are directed to permit the appli cants to appear in the Civil Services Examina tion 1990 and to provide necessary facilities like leave etc.
to enable them to appear in the ensuing Civil Services Examination, 1990 subject to the decisions in the Bunch of eases including O.A.No.
206/89 Alok Kurnar& Ors.
vs U.O.I. List the matter on 29.5.1990.
Orders (Dasti)" It seems no clarification has been sought for from the Tribunal by the respondents as to whether the expression "next Civil Service Examination" is confined only to the preliminary or whether it includes the main examination also.
Though some of the interim orders passed by the Tribunal which we have extracted above show that the said interim orders were passed permitting the candidates to sit for the preliminary Central Service Examination of 1990 subject to the decisions of the O.As, in the final judgment, no restriction is shown.
In other words, the conclusion under para 5(ii) is 111 not limited subject to any contingency; but on the other hand, it is absolute.
Therefore, that expression in the absence of any specif ic restriction, has to include both the preliminary as well as the main examinations.
Hence in the absence of any chal lenge to the directions embodied in the impugned judgment, we hold that all those candidates falling under para No. 5(ii) can sit both for the preliminary as well as the main examinations Subject to their eligibility otherwise.
The condition incorporated in the later part of the impugned proviso that they should resign from the service to which they have been allocated would not operate against them for the main examination of 1990 lest that direction would be meaningless.
Hence we permit all those candidates falling under Para Nos.5(ii), 6 and 7 to sit for the main examination subject to the condition that each candidate satisfies the Secretary, Union Public Service Commission that he/she falls within these categories and that the concerned candidates have passed the preliminary examination of 1990 and have also applied for the main examination within the due date.
This permission is only for the ensuing examination.
As we are now permitting those who have passed the preliminary examination of 1990 and have applied for the main examina tion on the basis of the unquestioned and unchallenged directions given under paras 5(ii), 6 and 7 of the judgment of the CAT, Principal Bench, New Delhi, the same benefit is extended to the other appellants also who satisfy those conditions as mentioned under paras 5(ii), 6 and 7.
The Secretary, Union Public Service Commission will make the necessary arrangements enabling the candidates to sit for the main examination of 1990.
We will give the judgment touching on the constitution ality of the second proviso to Rule 4 of CSE Rules later.
We would once again like to state that the above directions are given only on the basis of the unchallenged conclusions arrived at by the Central Administrative Tribunal, Principal Bench, New Delhi.
T.N.A Appeals dismissed.
[/INST]Rule 4 of the Civil Services Examination Rules provide that every candidate appearing at the examination, who is otherwise eligible, shall be permitted three attempts at the examination.
(The attempts are now increased to four).
Under Proviso to the said Rule the restriction on the number of attempts is not applicable in the case of Scheduled Castes and Scheduled Tribes candidates who are otherwise eligible.
By a notification dated 13.12.1986 the Central Executive Authority inserted second proviso to Rule 4.
The said second proviso provided that a candidate who on the basis of the results of the previous Civil Services Examination, had been allocated to the I.P.S. or Central Services, Group 'A ' but who expressed his intention to appear in the next Civil Services Main Examination for competing for IAS, IFS, IPS or Central Services, Group 'A ' and who was permitted to abstain from the probationary training in order to so appear shall be eligible to do so, subject to the provisions of Rule 17 and that the said candidate when allocated to a service on the basis of the next Civil Services (Main) Examination can either join that service or the service to which he has already been allocated on the basis of the previous CSE and that if he fails to join either of the services, his alloca tion based on one or both the examinations, as the case may be, will stand cancelled.
Further, notwithstanding anything contained in Rule 8, a candidate who accepts allocation to a service and is appointed to that service shall not be eligi ble to appear again in the CSE unless he has first resigned from the service.
In other words, a candidate failing within the ambit of this proviso can appear in the CSE for all the permitted attempts subject to his age limit if he intends to appear again in the CSE provided he first resigns from the service which he accepts on allocation and to which he is appointed.
Rule 8 of the Civil Services Examination Rules precludes the candidate who have been appointed to the IAS, or IFS from sitting in the ensuing examination while in service.
The said rule provide that a candidate who is appointed to the Indian Administrative Service (IAS) or the Indian For eign Service (IFS) on the basis of result of an earlier examination before the commencement of the ensuing examina tion and 48 continues to be a member of that service will not be eligi ble to compete at the sub sequent examination, even if he is disillusioned and wants to switch over.
Further, this rule states that in case, a candidate has been appointed to the IAS or IFS on the basis of the earlier examination and after the subsequent preliminary examination, but before the main examination, the candidate, if continues to be a member of that service, shall not be eligible to appear in the ensu ing main examination notwithstanding that the said candidate has qualified himself in the preliminary examination.
Simi larly if a candidate is appointed to the IAS or IFS after the commencement of the Main examination but before the announcement of the result and continues to be a member of that service, the said candidate shall not be considered for appointment to any service/post on the basis of the result of this examination.
Rule 17 of the Civil Services Examination Rules provide that if a candidate has been approved for appointment to IPS and expresses his intention to appear in the CSE (Main) for higher civil service, the services for which he is eligible to compete are IAS, IFS and Central Services Group 'A '.
Similarly, a candidate who has been approved for appointment to the Central Services Group 'A ' and expresses his inten tion to appear in the next CSE (Main) the services to which he will be eligible to compete are IAS, IFS and IPS.
The second proviso to Rule 17 provides that a candidate who is appointed to a Central Services Group 'B ' on the result of an earlier examination will be considered for appointment to IAS, IFS, IPS and Central Services Group 'A '.
The eligibility of a candidate to appear in the Civil Services Examination with regard to nationality, age and qualifications is given under Regulation 4 of the IAS (Appointment by Competitive Examination) Regulations, 1955.
Clause (iii a) of the said Regulation provides that unless covered by any of the exceptions that may from time to time be notified by the Central Government in this behalf, every candidate appearing for the examination after 1st January, 1979, who is otherwise eligible, shall be permitted three attempts at the examination, and the appearance of a candi date at the examination will be deemed to be an attempt at the examination irrespective of his disqualification or cancellation as the case may be, of his candidature.
The legality and constitutionality of second proviso to Rule 4 and 49 Rule 17 was challenged before the Central Administrative Tribunal.
The Tribunal held that the second proviso to Rule 4 and Rule 17 were valid and were not hit by Article 14 and 16 of the Constitution.
In appeals to this court, it was contended on behalf of the appellants (1) that second proviso to Rule 4 of the CSE Rules was invalid because: (a) it puts embargo restricting the candidates who are seeking to improve their position vis a vis their career in government service; (b) it travels beyond the intent of main rule viz. Rule 4; (c) it is ultra vires to clause (iii a) of regulation 4 of the I.A.S (Appointment by competitive Examination) Regulation, 1955 in as much as the power to notify exceptions do not include the power to make candidates ineligible who are otherwise eligi ble in terms of clause (i) to (iii) of Regulation 4; (d) it is bad since the authorities have stepped out of the consti tutional limits in issuing the notification inserting the impugned proviso and that it has not been placed before the House of Parliament; (e) it is arbitrary and irrational having no nexus with the object of recruitment to the post of civil services; (f) it is violative of Articles 14 and 16 of the Constitution because it discriminates between group 'A ' and group 'B ' services i.e. it excludes the candidates appointed to group 'A ' services from competition while no such embargo is placed restricting the candidates to Group 'B ' services; (2) that the second proviso is not applicable to the candidates belonging to SC or ST; (3) Proviso to Rule 17 of the Civil Services Examination is invalid since it places restriction on candidates who are seeking to improve their position vis a vis their career.
DismiSsing the appeals, this Court, HELD: 1.
If Rule 4 of Civil Services Examination Rules is examined in juxtaposition of clause (iii a) of Regulation 4, it is clear that both Rule 4 of CSE Rules and Clause (iii a) of the Regulation 4 show that every eligible candi date appearing at the Civil Services Examination should be permitted three attempts at the examination which are now increased to four under Rule 4 of the CSE Rules.
The eligi bility of a candidate to appear in the CSE with regard to nationality, age and educational qualifications is given under clauses (i) to (iii) of Regulation 4 but the Govern ment by exercise of its executive power has imposed certain restrictions under some specified circumstances.
A plain and grammatical reading of clause (iii a) of Regulation 4 shows that if the number of 50 attempts are covered by any of the exceptions that may from time to time be notified by the Central Government in this behalf, then the notification will become enforceable and only in the absence of such notification, every candidate normally can appear for all permitted attempts at the examination whether three or four.
The impugned second proviso does not restrict or put an embargo on the number of attempts in the normal course.
But the restriction is only when the conditions enumerated in the impugned proviso are satisfied.
The restriction imposed by the impugned proviso cannot be said to be unjust, unreasonable or arbitrary or change of any policy.
Moreover, the spirit of the main rule is not in any way disturbed.
[80 B F, 92 D] 1.1 The restriction or embargo, as the one under consid eration is not only placed on the candidates who on the basis of the result of the previous CSE had been allocated and appointed to IPS or Central Services Group 'A ' but also on the candidates appointed in the higher echelon of civil service.
There is a far more restrictive rule in existence, namely Rule 8 of the CSE Rules which precludes the candi dates who have been appointed to the IAS or IFS, from sit ting in the ensuing examination while in service.
Further, this rule states that in case, a candidate has been appoint ed to the IAS or IFS on the basis of the earlier examination and after the subsequent preliminary examination, but before the Main examination, that candidate if continues to be a member of that service, shall not be eligible to appear in the ensuing main examination notwithstanding that the said candidate has qualified himself in the preliminary examina tion.
Similarly if a candidate is appointed to the IAS or IFS after the commencement of the main examination but before the announcement of the result and continues to be a member of that service, the said candidate shall not be considered for appointment to any service/post on the basis of the result of this examination.
But there is no bar for a candidate who is appointed to the IAS/IFS resigning from that service and sitting in the examination for IPS or any Central Service Group 'A '.
[86 B F, 86 G H] Under Rule 4 of CSE Rules notwithstanding anything contained in Rule 8, a candidate who accepts allocation to a service and appointed to that service shall not be eligible to appear again in the CSE unless he first resigns from that service.
In other words, a candidate who is allocated and appointed to a service can sit in the ensuing examination provided he first resigns from that service.
This restric tion, is a reasonable one in order to 51 achieve the desired result.
Thus the second proviso to Rule 4 of the CSE Rules does not travel beyond the intent of the main rule putting any unjustifiable embargo and the proviso is not ultra vires Regulation 4(iii a) of Regulations 1955 on the ground that it makes the candidates ineligible who are otherwise eligible in terms of clauses (i) to (iii) of the said Regulation and the proviso to Rule 17 is not in valid.
[86H, 87 A C] 2.
An enactment is never to be held invalid unless it be, beyond question, plainly and palpably in excess of legislative power or it is ultra vires or inconsistent with the statutory or constitutional provisions or it does not conform to the statutory or constitutional requirements or is made arbitrarily with bad faith or oblique motives or opposed to public policy.
[87 C D] 2.1 While interpreting a statute the consideration of inconvenience and hardships should be avoided and that when the language is clear and explicit and the words used are plain and unambiguous, the court is bound to construe them in their ordinary sense with reference to other clauses to the Act or Rules as the case may be, so far as possible, to make a consistent enactment of the whole statute or series of statutes/Rules/Regulations relating to the subject mat ter.
Added to this, in construing a statute, the court has to ascertain the intention of the law making authority in the backdrop of the dominant purpose and the underlying intendment of the said statute and that every statute is to be interpreted without any violence to its language and applied as far as its explicit language admits consistent with the established rule of interpretation.
[83 F G] Maxwell on the "Interpretation of statutes" 10th Edn.
page 7; Craies on Statute Law, 5th Edn.; 6th Edn., page 89; referred to.
King Emperor vs Benoari Lal Sharma, AIR 1945 PC 48; Wardurton vs Loveland, [1832] 2 D & CH.
(H.L.) 480;Suffers vs Briggs, ,8; Commissioner of Income Tax vs
section Teja Singh; , ; M. Pentiah and Ors.
vs Muddala Veeramallappa and Ors., ; ; It.
Col. Prithi Pal Singh Bedi etc.
vs Union of India & Ors.
, ; A.R. Auntlay vs
R.S. Nayak; , ; Maharashtra State Board of Secondary and Higher Secondary Education and Anr.
vs Paritosh Bhupesh Kurmar sheth etc.
, [1985] I S.C.R. 29; Philips India Ltd. vs Labour Court, Madras and Ors., ; ; Balasinor Nagrik Cooperative Bank Ltd. vs Babubhai Shankerlal Pandya and Ors., ; 52 Dr.
Ajay Pradhan vs State of Madhya Pradesh and Ors.
, ; ; LIC vs Escorts, ; , referred to.
2.2 A Proviso to a Section/Rule is expected to except or qualify something in the enacting part and presumed to be necessary.
When the impugned second proviso to Rule 4 of the CSE Rules is interpreted in its grammatical meaning and cognate expressions and construed harmoniously with the substantive rule, it is pellucid that the said proviso only carves out an exception to Rule 4 of the CSE Rules in given circumstances and under specified conditions and, therefore, the second proviso cannot be read in isolation and inter preted literally.
On the other hand the substantive Rule 4 is be read in conjunction with the two provisos appended thereto so as to have a correct interpretation.
[83H, 85 E F] 2.3 In the Proviso, in dispute, there are no positive words or indications which would completely exclude the operation of the substantive rule the spirit of which is reflected in Regulation 4 of the Regulations, 1955.
The restriction imposed by the second proviso is only under certain circumstances.
Although the notification introducing the impugned proviso, has to be strictly construed, the Court cannot overlook the very aim and object of the proviso thereby either defeating its purpose or rendering it redun dant or inane or making it otiose.
Judged from any angle, it is not possible to hold that there is a violent breach of the provisions of the substantive Rule 4 of CSE Rules and Regulation 4 (iii a) and it cannot.
be held that the im pugned second proviso either subverts or destroys basic objectives of Rule 4 and that it is ultra vires.
[85F H, 86 A B] Maxwell on "The Interpretation of statute", 11th edn.
page 155; Kent 's Commentary on American Law, 12th Edn.
1 463, referred to.
Gen. vs Chelsea Waterworks Co., [1731] Fitzg.
195; Piper vs Harvey,[1958] I Q.B. 439: R. vs Leeds Priso (Gover nor), ; Ram Narain Sons Ltd. and Ors.
vs Assit.
Commissioner of Sales Tax and Ors, ; ; Abdul Jabar Butt & lint.
vs State of Jammu and Kashmir, ; ; Commissioner of Income Tax vs section Teja Singh, ; ; The Commissioner of Income Tax Mysore Travancore Cochin and Coorg., Bangalore vs The Indo Mercantile Bank Ltd., ; ; Madras & Southern Mahratta Railway Co. vs Bezwada Municipality, [1944] L.R. 71 I.A. 113, Corpn.
of the City of Toronto vs Attorney General for Canada, [1946]A.C. 32; Mackinnon Mack enzie & Co. Ltd. vs Audrey D ' Cost and Anr., [1987] 2 SCC 469, referred to.
The argument that the second proviso is bad since the authorities have stepped out of the constitutional limits in issuing the notification inserting the impugned proviso and that it has not been placed before the Houses of the Parlia ment, has to be rejected because the proviso has been intro duced by the Central Executive Authority under the powers flowing from Article 73(1) (a) of the Constitution, accord ing to which the executive power of the Union subject to the provisions of the Constitution shall extend to the matters with respect to which Parliament has power to make laws, but of course subject to the proviso made thereunder.
Needless to point out that whilst by virtue of clause 1 (a) of Arti cle 73, the executive power of the Union which is co exten sive with the legislative power of Parliament can make laws on matters enumerated in List I (Union List) and List II (Concurrent list) to the Seventh Schedule of the Constitu tion, under Article 162 of the Constitution, the executive power of the State Executive which is coextensive with that of the State legislature can make laws in respect of matters enumerated in List III ( State List) and also in respect of matters enumerated in List II (Concurrent List), subject to the provisions of the Constitution.
[77 D G] 3.1 In the instant case, the Central executive authority has not either expressly or impliedly changed the policy of the Government by exercising unreasonable and arbitrary discretion and the present Rule 4 with its newly added second proviso does not repeal the essential features of the pre existing Rule 4 but only limits the ambit of the opera tion of the price 4 under a given situation.
Hence, there is no substance in the contention that the second proviso is bad and that the central executive authority has trans gressed the constitutional limits.
[77 H, 78 A] 4.
Article 14 declares that the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.
The cherished principle underlying the above Article is that there should be no discrimination between one person and another if as regards the subject matter of the legislation, their posi tion is the same.
[103 H, 104 A] 4.1 Differential treatment does not per se constitute violation of Article 14 and it denies equal protection only when there is no rational or reasonable basis for the dif ferentiation.
Thus Article 14 condemns discrimination and forbids class legislation but permits classification 54 founded on intelligible differentia having a rational rela tionship with the object sought to be achieved by the Act/Rule/Regulation in question.
The Government is legiti mately empowered to frame rules of classification for secur ing the requisite standard of efficiency in services and the classification need not scientifically be perfect or logi cally complete.
Every classification is likely in some degree to produce some inequality.
[104 B D] R.K. Dalmia vs Justice Tendolkar, ; ; Budhan Choudhry vs State of Bihar, ; ; Kumari Chitra Ghosh and Anr.
vs Union of India and Ors, ; ; State of Jammu & Kashmir vs Triloki Nath Khosa & Ors., ; ; A.S. Sangwan vs Union of India, ; Akhil Bhartiya Soshit Karamchari Sangh (Railway) vs Union of India & Ors., vs ; ; Deepak Sibal vs Punjab University ; ; Chiranjit Lal vs Union of India ; Ameeroo nissa vs Mahboob, ; Gopi Chand vs Delhi Admin istration; , ; E.P. Royappe vs Stale of Tamil Nadu, ; ; Maneka Gandhi vs Union of India [1978] 1 SCC 248; Ramana vs International Airport Authority of India, AIR ; Union of India vs Tulsiram Patel, ; ; Swadeshi Cotton Mills vs Union of India,[1981] 2 SCR 533; Central Inland Water Transport Corporation vs Brojo Nath, ; Devadasan vs Union of India; , ; Birendra Kumar Nigam and 0rs.
vs Union of India, W.P. Nos.
220 222 of 1963 decided on 133.64, referred to 4.2 The selections for IAS, IFS, and IPS Group 'A ' services and group 'B ' service are made by a combined com petitive examination and viva voce test.
There cannot be any dispute that each service is a distinct and separate cadre, having its separate field of operation, with different status, prospects, pay scales, the nature of duties, the responsibilities to he post and conditions of service etc.
Each of the services is founded on intelligible differentia which on rational grounds distinguishes persons grouped together from those left out and that the differences are real and substantial having a rational and reasonable nexus to the objects sought to be achieved.
Therefore, once a candidate is selected and appointed to a particular cadre he cannot be allowed to say that he is at par with the others on the ground that all of them appeared and were selected by a combined competitive examination and viva voce test and that the qualifications prescribed are comparable.
The classification of services is not based on artificial in equalities but is hedged within the salient features 55 and truly founded on substantial differences.
Judged from this point of view, it is not possible to hold that the classification rests on an unreal and unreasonable basis and that it is arbitrary or absurd.
[103C, 106C, 103 D E] 43 It cannot also be disputed that the candidates allocated to Group 'A ' services are more meritorious com pared to candidates allocated to Group 'B ' services.
Conse quently, those allocated to Group ' B ' services get lower position compared to those allocated to Group A ' services.
The pay scales in Group 'B ' services are comparatively less than those meant for IAS, IFS and IPS and Central Services Group 'A '.
There is a clear cut separation on the basis of ranking and merit and, therefore, it cannot be said by any stretch of imagination that both Group 'A ' and Group 'B ' services fail under one and the same category but on the other these services are two distinct and separate catego ries falling under two different classifications.
Therefore, there is no discrimination whatsoever involved on account of the introduction of the second proviso in question and the said proviso is not ultra vires of Article 14 or Article 16 of the Constitution of India.
[97 B C, 106G] 5.
In the normal course, a candidate belonging to SC/ST category can enjoy all the benefits under the rules and regulations.
But the restriction imposed under the second proviso is only for a specified category of candidates by treating all such candidates at par and without making any exception to the candidates belonging to SC/ST.
The submis sion that the second proviso is an independent one does not merit consideration because the second proviso to Rule 4 begins with the words 'provided further . . " which expression would mean that a strict compliance of the second proviso is an additional requirement to that of the substan tive rule 4 and the first proviso.
The expression "provided further" spells out that the first proviso cannot be read in isolation or independent of the second proviso but it must be read in conjunction with the second proviso.
[89 C E] 5.1 Once the candidates belonging to SC or ST get through one common examination and interview test and are allocated and appointed to a service based on their ranks and performance, and brought under the one and the same stream of category, then they too have to be treated among all other regularly and lawfully selected candidates and there 56 cannot be any preferential treatment at that stage on the ground that they belong to SC or ST, though they may be entitled for all other statutory benefits such as to the relaxation of age, the reservation etc.
The unrestricted number of attempts, subject to the upper age limit, is available to the SC/ST candidates in the normal course but that is subject to the second proviso because when once they are allocated and appointed along with other candidates to a category/post, they are treated alike.
Therefore, there is no merit in the submission that the second proviso is not applicable to the candidates belonging to SC or ST.
[89 E G,91H, 92 A] 5.2 There may be some hard cases, but the hard cases cannot be allowed to make bad law.
As long as the second proviso does not suffer from any vice, it has to be con strued, uniformly giving effect to all those falling under one category in the absence of any specific provision ex empting any particular class or classes of candidates from the operation of the impugned proviso and no one can steal march over others failing under the same category.
Hence the right of candidates belonging to SC and ST competing further to improve their career opportunities is limited to the extent permissible under the second proviso 10 Rule 4 read with Rule 17 of the C.S.E. Rules.
[91 F G] C.A. Rajendran vs Union of India & Ors '.
, ; ; State of Kerala vs N.N. Thomas, ; ; Akhil Bharriya Soshit Karamchari Sangh/Railway) vs Union of India [1963] Suppl.
1 SCR 439; Triloki Nath vs State of J&K ; ; T. Devadasan vs Union of India, ; ; Comptroller and Auditor General of India vs K.S. Jaganna than; , ; Janki Prasad vs State of J&K, ; ; General Manager vs Rangachan, AIR [1962] SC.
36, referred to.
There is no denying the fact that the civil service being the top most service in the country has got to be kept at height, distinct from other services since these top echelons have to govern a wide variety of departments.
Therefore, the person joining this higher service should have breadth of interest and ability to acquire new knowl edge and skill since those joining the service have to be engaged in multiple and multifarious activities.
In order to achieve this object, the selectees of this higher civil services have to undergo training in the National Academy/Training institutes wherein they have to undergo careful programme of specialized 57 training as probationers.
The various schemes of training are based on the conviction that splendid active experience is the real training and the selectees are to be trained in the academies in all kinds of work they have to handle afterwards with a band of senior chosen officers.
[92 H, 93 A B] 6.1 The rationale underlying the course at the training centres is that the officers of civil services must acquire an understanding of the constitutional, social, economic and administrative framework within which they have to function and also must have a complete sense of involvement in the training and thereafter in the service to which he is ap pointed.
The initial training is in the nature of providing young probationers an opportunity to counter act their weak points and at the same time develop their social abilities and as such the aspect of training is the most important of all.
[93 C D] Hermer Fines, the Theory and Practice of Modern Govern ment; United Nations Handbook on Civil Service Laws and Practice, referred to.
Lila Dhar vs State of Rajasthan & Ors., [1981] 4 SCC 159, referred to.
6.2 The effort taken by the Government in giving utmost importance to the training programme of the selectees so that this higher civil service being the top most service of the country is not wasted and does not become fruitless during the training period is in consonance with the provi sions of Article 51 A (j) of the Constitution.
[77 A] 63 There is a dynamic and rational nexus between the impugned second proviso and the object to be achieved.
</s>
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<s>[INST] Summarize the judgement201 of 1952) under article 32 of the Constitution for the enforcement of fundamental rights.
B. K. Varma.and G. C. Mathur for the petitioner.
M.C. Setalvad, Attorney General for India, (Porus A. Mehta, with him) for the respondent.
March 13.
The Judgment of the Court was delivered by BOSE J.
This is a petition under article 32 of the Constitution in which the petitioner seeks redress for what, according to him, is a breach of his fundamental rights under articles 14 and 16(1) of the Constitution.
It was argued at considerable length by the petitioner in person.
Then, when our judgment was nearly ready, he put in a petition asking for a rehearing and for permission to file some fresh papers.
When that was refused he came again on another,day and asked for leave to engage an agent and appear through counsel as he felt he had not been able to do justice to his case in person.
(It may be mentioned that though he had originally engaged an agent he dismissed him before the hearing when he appeared in person.) We granted his request and counsel reargued the case for him but has not carried the matter any further.
The facts are these.
657 In October,1945, the petitioner was employed by the Government of India on a five year contracting, the Directorate General of Resettlement and Employment of the Ministry of Labour.
This was after selection by the Federal Public Service Commission.
After a short period of practical training, he was posted in January, 1946, at Jabalpur as the Manager of the Sub Regional Employment Exchange and was later confirmed in this appointment.
This contract of service was due to expire in 1950.
Shortly before its expiration the Government of India made him a new offer, embodied in its letter dated the 30th June, 1950, to continue him in service on the expiry of his contract on the terms specified in that letter.
Among them were the following: (3) Other conditions of service: On the termination of your contract you will be allowed to continue in your post temporarily for the period of the Resettlement and Employment Organisation and will be governed by the Central Civil Services (Temporary Service) Rules, 1949, unless you are a permanent Government servant.
" He was asked in the letter to intimate to the Ministry of Labour whether he was willing to continue in service on those terms and he admits that he accepted the offer and continued in service, He was not a permanent Government servant though it was contended in argument that he was, for he was on a five year contract and the work for which he was employed, namely Resettlement and Employment, was itself only of a temporary character.
Therefore, the Temporary Service Rules applied.
On those rules, ' rule 5 is material.
It runs as follows: 5 (a) The service of a temporary Government servant who is not in quasi permanent service shall be liable to termination at any time by notice in writing given either by the Government servant to the appointing authority, or by the appointing authority to the Government servant.
658 (b) The period of such notice shall be one month, unless otherwise agreed to by the Government and by the Government servant.
" Quasi permanent service is defined in the rules and it is clear that the petitioner does not come within that class.
It is also an undisputed fact that there was no agreement between the petitioner and Government regarding the period of the notice.
Therefore, according to this rule, which was a term in the petitioner 's contract of further service, his services were liable to termination at any time by ' one month 's notice in writing.
This notice was given on 25th November, 1950, and he was told that his services would terminate on the expiry of one month from 1st December, 1950.
A large field was covered in the course of the arguments, and had the matter not been re argued we would, for the petitioner 's satisfaction, have dealt with the contentions raised more fully than will be necessary now that counsel has appeared.
The petition is under article 32(1) of the Constitution and so it must be shown that a fundamental right has been infringed.
It was argued that the rights infringed are the ones conferred by articles 14 and 16(1).
Taking article 14 first, it must be shown that the ,petitioner has been discriminated against in the exercise or enjoyment of some legal right which is open to others who are similarly situated.
The rights which he says have been infringed are those confered by article 31 1.
He says he has either been dismissed or removed from service without the safeguards which that article confers.
In our opinion, article 31 1 has no application because this is neither a dismissal nor a removal from service, nor is it a reduction in rank.
It is an ordinary case of a contract being termi nated by notice under one of its clauses.
The services in India have long been afforded certain statutory guarantees and safeguards against arbitrary dismissal or reduction in rank Under 659 section 240 of the Government of India Act, 1935, the safeguards were limited to those two cases.
Under.
the present Constitution, a third was added, namely removal from service.
In order to understand the difference between "dismissal" and "removal" from service, it will be necessary to turn to the Rule,; which governed, and with modifications still govern, the "services" in India because of article 313 of the Constitution.
Part XII of the Civil Services (Classification, Control and Appeal) Rules relating to Conduct and Discipline includes rule 49 which sets out the various penalties to which a member of the services can be subjected for indiscipline and misconduct.
They are seven in number and include censure, suspension, reduction in rank, removal from service and dismissal from service.
The Act of 1935 selected only two of these possible penalties as serious enough to merit statutory safeguards, namely reduction in rank and dismissal from service. 'The Constitution has added a third to the list.
The distinction which is drawn between the two is explained in rule 49.
There is first removal from service "which does not disqualify from future employment " and there is next dismissal from service "which ordinarily disqualifies from future employment.
" Then follows an Explanation: The discharge (c) of a person engaged under contract, in accordance with the terms of his contract, does not amount to removal or dismissal within the meaning of this rule.
" These terms are used in the same sense in article 3ll.
It follows that the article has no application here and so no question of discrimination arises, for the "law" whose protection the petitioner seeks has no application to him.
There was no compulsion on the petitioner to enter into the contract he did.
He was as free under the law as any other person to accept or to reject the 660 offer which was made to him.
Having accepted, he still has open to him all the right , and remedies available to other persons similarly situated to enforce any rights under his contract which have been denied to him, assuming there are any, and to pursue in the ordinary courts of the land such remedies for a breach as are open to him to exactly the same extent as other persons similarly situated.
He has not been discriminated against and he has not been denied the protection of any laws which others similarly situated could claim.
The remedy of a writ is misconceived.
Article 16(1) is equally inapplicable.
The whole matter rests in contract.
When the petitioner 's first contract (the five year one) came to an end, he was not a permanent Government servant and Government was not bound either to re employ him or to continue him in service.
On the other hand, it was open to Government to make him the offer it did of a continuation of his employment on a temporary and contractual basis.
Though the employment was continued, it was in point of fact, and in the eyes of the law, under a new and fresh contract which was quite separate and distinct from the old even though many of its terms were the same.
Article 16(1) deals with equality of opportunity in all matters relating to employment or appointment to any office under the State.
The petitioner has not been denied any opportunity of employment or of appointment.
He has been treated just like any other person to whom an offer of temporary employment under these conditions was made.
His grievance, when analysed, is not one of personal differentiation but is against an offer of temporary employment on special terms as opposed to permanent employment.
But of course the State can enter into contracts of temporary employment and impose special terms in each case, provided they are not inconsistent with the Constitution, and those who choose to accept those terms and enter into the contract are bound by them, even as the State is bound.
When the employment is permanent there are certain statutory guarantees but in the absence of 661 any such limitations government is, subject to the qualification mentioned above, as free to make special, contracts of, service with temporary employees, engaged in, works of a temporary nature, as any other employer.
Various matters relating to the merits of the case were referred to but we express no opinion about whether the petitioner has other rights which he can enforce in other ways.
We are dealing here with a writ under article 32 to enforce a fundamental right and the only point we decide is that no fundamental right has been infringed.
When the matter was first argued we had decided not to make any order about costs but now that the petitioner has persisted in reopening the case and calling the learned Attorney General here for a second time, we have no alternative but to dismiss the petition with costs.
Petition dismissed.
Agent for the petitioner: Bajinder Narain.
[/INST]In the 1967 election to the State Legislative Assembly, the appellant and the 1st respondent claiming to be Adi Dravidas, stood as candidates for a seat reserved for Scheduled Castes.
The respondent was declared elected.
The appellant`s election petition challenging the election was allowed by the High Court.
This Court dismissed the respondent 's appeal holding, (1) that the respondent was converted to Christianity in 1949, (2) that on such conversion he ceased to be an Adi Dravida, (3) that he was reconverted to Hinduism but 4) assuming that membership of a caste can be acquired on conversion or reconversion to Hinduism, the respondent had failed to establish that he became a member of the Adi Dravida caste after reconversion.
In the 1972 elections, the appellant and respondent again filed their nominations as Adi Dravidas for the seat reserved for Scheduled Castes.
On objection by the appellant, the Returning officer rejected the nomination of the respondent on the view that on conversion to Christianity, he ceased to be an Adi Dravida and that on reconversion, he could not claim the benefit of the Constitution (Scheduled Castes) order, 1950.
The appellant was declared elected.
The respondent challenged the election and the High Court held that the question (a) whether the respondent embraced Christianity in 1949, (b) whether on such conversion be ceased to be an Adi Dravida, and (c) whether he was reconverted to Hinduism, were concluded by the decision of this Court in the earlier case.
In fact, the respondent so conceded on the first two aspects.
The High Court, however, held that the respondent had established twelve cir circumstances, which happened subsequent to the earlier election showing that he was accepted into their fold by the members of the Adi Dravida caste, that he was, therefore, at the material time, an Adi Dravida professing Hindu religion as required by paragraphs 2 and 3 of the Constitution (Scheduled Castes) order, and that therefore, his nomination was improperly rejected.
Dismissing the appeal to this Court, ^ HELD: (1) The question whether the respondent abandoned Hinduism and embraced Christianity in 1949 is essentially a question of fact.
The respondent having conceded before the High Court, that in view of the decision of this Court in the earlier case, the question did not survive for consideration and the High Court, having acted on that concession, the respondent could not be permitted to raise an argument that the evidence did not establish that he embraced Christianity in 1949.
[89 D F] (2) Similarly.
the question whether the respondent was reconverted to Hinduism stands concluded by the decision of this Court in the earlier case and it must be held that since prior to January 1967, the respondent was reconverted to Hinduism, he was, at the material time, professing the Hindu religion so as to satisfy the requirement of para 3 of the Constitution (Scheduled Castes) order [94C D] 83 (3) The High Court was right in the view that on reconversion to Hinduism, A the respondent could once again reconvert to his original Adi Deavida caste if he was accepted, as such, by the other members of that caste; and that, in fact, the respondent after his reconversion to Hinduism, was recognised and accepted as a member of the Adi Dravida caste by the other members of that community [97A B, 98G] (a) Since a caste is a social combination of person governed by its rules and regulations, it may, if its rules and regulations so provide, admit a new B. member just as it may expel an existing member.
The rules and regulations of the caste may not have been formalised they may not exist in black and white: they may consist only of practices and usages.
If, according to the practice and usage of the caste any particular ceremonies are required to be performed for readmission to the caste, a reconvert to Hinduism would have to perform those ceremonies if he seeks readmission to the caste.
But, if no rites or ceremonies are required to be performed for readmission of a person as a member of the caste, the only thing necessary would be the acceptance of the person concerned by the other members of the caste.
[95 C F] C (b) The consistent view taken by the Courts from the time of the decision in Administrator General of Madras vs Anandachari (ILR , that is, since 1886, has been that on reconversion to Hinduism, a person can once again become a member of the caste in which he was born and to which he belonged before conversion to another religion if the members of the caste accept him as a member.
If a person who has embraced another religion can be reconverted to Hinduism, there is no rational principle why he should not be able to come back to his caste, if the other members of the caste are prepared to re admit him as a member.
It stands to reason that he should be able to come back to the fold to which he once belonged, provided the community is willing to take him within the fold.
[96 C R] Nathu vs Keshwaji I.L.R. Guruswami Nadar vs Irulappa Konar A.I.R. 1934 Mad.
630 and Durgaprasada Rao vs Sudarsanaswami, AIR 1940 Mad. 513, referred to.
(c) It is the orthodox Hindu Society, still dominated to a large extent, particularly in rural areas, by medievalistic outlook and status oriented approach which attaches social and economic disabilities to a person belonging to a Scheduled Caste and that is why, certain favoured treatment is given to him by the Constitution.
Once such a person ceases to be a Hindu and becomes a Christian the social and economic disabilities arising because of Hindu religion cease and hence, it is no longer necessary to give him protection; and for this reason, he is deemed not to belong to a Scheduled Caste.
But, when he is reconverted to Hinduism.
the social and economic disabilities once again revive and become attached to him, because, these are disabilities inflicted by Hinduism.
Therefore, the object and purpose of the Constitution (Scheduled Castes) order would be advanced rather than retarded by taking the view that on reconversion to Hinduism, a person can once again become a member of the Scheduled Caste to which he belonged prior to his conversion.
[96 F 97 A] (d) out of the 12 circumstances relied on by the High Court, 5 are not of A importance, namely, (1) that the respondent celebrated tho marriages of his younger brothers in the Adi Dravida manner; (ii) that the respondent was looked upon as a peace maker among the Adi Dravida Hindus of the locality; (iii) that the funeral ceremonies of the respondent 's father were performed " according to the Adi Dravida Hindu rites; (iv) that he participated in the first annual death ceremonies of another Adi Dravida; and (v) that the respondent participated in an All India Scheduled Castes Conference.
The other seven circumstances, however, establish that the respondent was accepted and treated as a member of the Adi Dravida community, namely, (1) that he was invited to lay the foundation stone for the construction of the wall of an Adi Dravida temple: (ii) that he was asked to take part in the celebrations connected with an Adi Dravida temple.
(iii) that he was asked to preside at a festival connected with an Adi Dravida temple; (iv) that he was a member of the Executive Committee of the Scheduled Caste Cell in the organisation of the Ruling 84 Congress; (v) that his children were registered in school as Adi Dravidas and that even the appellant had given a certificate that the respondent 's son was an Adi Dravida.
(vi) that he was treated as a member of the Adi Dravida caste and was never disowned by the members of the caste; and (vii) that a Scheduled Caste Conference was held in the locality with the object of re admitting the respondent into the fold of Adi Dravida Caste and that not only was the purificatory ceremony performed on him at the Conference with a view to clearing the doubt which had been cast on his membership of the Adi Dravida caste by the earlier decision of this Court, but also an address was presented to him felicitating him on the occasion.
[97 C 98 F] (4)(a) The question whether on conversion to Christianity the respondent ceased to be a member of the Adi Dravida caste is a mixed question of law and fact and a concession made by him in the High Court on that question does not preclude him from re agitating it in the appeal before this Court.
r[89 G H] (b) Further, the decision given in the earlier case relating to the 1967 elections on the basis of the evidence led in that case, cannot operate as res judicata ill the present case which relates to the 1972 election and where fresh evidence has been adduced by the parties and moreover, when all the parties in the present case are not the same as those in the earlier case.
[89 H 90 B] (c) When a 'caste ' is referred to in modern times, the reference is not to the 4 primary castes.
but to the innumerable castes and sub castes that prevail in Hindu society.
The general rule is that conversion operates as an expulsion from the caste, that is, a convert ceases to have any caste, because, caste is pre dominantly a feature of Hindu Society and ordinarily a person, who ceases to be a Hindu, would not be regarded by the other members of the caste as belonging to their fold.
But it is not an invariable rule that whenever a person renounces Hinduism and embraces another religious faith, he automatically ceases to be a member of the caste in which he was born and to which he be longed prior to his conversion.
Ultimately, it must depend on the structure of the caste and its rules and regulations whether a person would cease to belong to the caste on his abjuring Hinduism.
If the structure of the caste is such that its members, must necessarily belong to Hindu religion, a member, who Ceases to be a Hindu, would go out of the caste, because, no non Hindu can be in the caste according to its rules and regulations.
Where, on the other hand, having regard to its structure, as it has evolved over the years, a caste may consist not only of persons professing Hinduism but also persons professing some other religion as well, conversion from Hinduism to that other religion may not involve loss of caste, because, even persons professing that other religion ca be members of the caste.
This might happen where caste is based on economic or occupational characteristics and not on religious identity, or the cohesion of the caste as a social group is so strong that conversion into another religion does not operate to snap the bond between the convert and the social group.
This is indeed not an infrequent phenomenon in South India, where, in some of the castes, even after conversion to Christianity, a person is regarded as continuing to belong to the caste.
What is, therefore, material to consider is how the caste looks at the question of conversion.
Does it outcaste or excommunicate the convert or does it still treat him as continuing within its fold despite his conversion.
If the convert desires and intends to continue as a member of the caste and the caste also continues to treat him as a member notwithstanding his conversion, he would continue to be a member of the caste, and the views of the new faith hardly matter.
Paragraphs 2 and 3 of the Constitution (Scheduled Castes) order.
read together.
also recognise THAT there may be castes specified as Scheduled Castes which comprise persons belonging to a religion different from Hindu or Sikh religion.
In such castes, conversion of a person from Hinduism cannot have the effect of putting him out of the caste, though.
by reason of para 37 he would be deemed not to be a member of the Scheduled Caste.
B G; 93 C E, F H] Cooppoosami Chetty vs Duraisami Chetty, I.L.R. 33 Mad. 67; Muthusami vs Masilamani, I.L.R. G. Michael vs section Venkateswaran.
AIR 1952 Mad.
Kothapalli Narasayya vs Jammana Jogi, ; K. Narasimha Reddy vs G. Bhupathi, ; Gangat vs Returning Officer, [1975 85 1.
S.C.C. 589 and Chatturbhuj Vithaldas Jasani vs Moreshwar Prasahram, , referred to.
[It would therefore, prima facie, seem that on conversion to Christianity, the respondent did not automatically cease to belong to the Adi Dravida caste; but in view of the decision that on reconversion he was readmitted to the Adi Dravida faith, no final opinion was expressed on this point.] [94 B C]
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<s>[INST] Summarize the judgementCivil Appeal No. 1363 of 1974.
Appeal by special leave from the judgment and order dated the 20th May, 1971 of the Patna High Court at Patna in C.W.J.C. No. 306 L. N. Sinha and Girish Chandra, for the appellants section N. Mishra, B. P. Singh and A K Srivastava, for the respondents.
9 L522SCI/76 366 The Judgment of the Court was delivered by RAY, C.J.
This appeal by special leave turns on the question whether the Coal Mines Provident Fund Commissioner is to hear an employer before making an order requiring the employer to pay damages under section 10F of the Coal Mines Provident Fund and Bonus Scheme Act, 1948 (hereinafter referred to as the Act).
The employer being the respondent to this appeal was directed by a letter dated 3/4 January, 1969 to pay provident fund contributions amounting to Rs. 5821.21 for the months of July to September, 1968 and damages at the rate of 25 per cent on the above dues amounting to Rs. 1455.5O.
The employer was required to pay damages under the provisions of section 10F of the Act.
The employer filed an objection explaining the circumstances under which there was delay in the payment of provident fund contributions.
The employer prayed that damages might not be imposed at the rate of 25 per cent for the delay in payment.
The employer paid the provident fund contributions.
The employer was informed that damages charged on the delayed payments of provident fund contribution could not be waived.
The employer thereafter filed an application in the High Court for an order that the demand notice be quashed.
The High Court acceded to the application of the employer.
The High Court gave two reasons.
First, that the computation of amount of damages should arise upon consideration of facts and circumstances and a mechanical computation of damages is not contemplated.
Second, the authorities should have given opportunity to the employer to .
represent the case.
The High Court did not accept the contention of the employer that section 10F of the Act suffered from the vice of excessive delegation.
The provision contained in section 10F of the Act are as fol lows: "Where an employer makes default in the payment of any contribution or bonus or any charges payable by him under any scheme framed under this act, or where any person who is required to transfer provident fund accumulations in accordance with the provisions of section 3D makes default in the transfer of such accumulations, the Central Government may recover from such employer or person, as the case may be, such damages, not exceeding twenty five per cent of the amount of arrears, as it may think fit to impose.
" The Central Government under sub section (1) of section 10 C of the Act is authorised to delegate any power exercisable by it under the Act, or any Scheme framed thereunder, to the Coal Mines Provident Fund Commissioner or any other officer.
The Central Government in exercise of the power conferred under section 10C(1) of the Act by notification dated 1st October, 367 1966 directed that powers exercisable by it under sections 10A and A 10F of the Act and specified in column (1) of the Table attached to the notification shall, subject to the conditions specified in the corresponding entry in column (2) of the Table attached, be exercisable by the Coal Mines Provident Fund Commissioner appointed under section 3C(l) of the Act.
There is a Schedule attached to the notification where sliding scale of damages has been fixed by the Central Government under section 10F of the Act.
The Schedule attached to the notification is as follows: "Sliding rate of recovery of damages under section 10F of the Coal Mines Provident Fund and Bonus Scheme Act, 1949.
" C S.No. of Period of defaultault , duting one over over over over over the year.
month one two three four five or less month months months months months up to up to up to up to two three fourfive months months months months 2 3 4 5 6 7 Ist default 2% of S% of 18% of 15% of 20% of 25% of arrears alTears alTears arrears arTears arrears 2nddefault S% " IO% " 15% " 20% " 25% " 2S% " 3rd default IO% " IS% " 20% " 2S% " 2S% " 2S% " 4thdefault IS% " 20% " 2S% " 2S% " 2S% " 2S% 5th default 20% " 2S% " 2S% " 2S% " 2S% " 2S% " 6th or subsequent 2S% " 2S% " 2S% " 2S% " 2S% " 2S% " default li Under section 78 of the Act the Coal Mines Provident Fund Commissioner or any other officer authorised in that behalf by the Central Government may, by order, determine the amount due from any employer under any provision of this Act or any scheme framed thereunder and for this purpose may conduct such enquiry as he may deem necessary.
Section 78(3) also contemplates giving of reason able opportunity to represent the case.
The High Court held that the provisions of section 78 are attracted in the case of an order relating to determination of damages for delay in payment of contribution under the Act.
The Solicitor General contended that section 78 of the Act does not apply for two reasons.
First, section 78 of the Act would be applicable only where liability is to be determined.
Neither liability to pay nor default in payment is disputed in the present case.
Second, under section 10F of the Act the amount of damages is quantified and a 368 personal hearing is not necessary because the employer has said everything in his representation and an order for payment of damages is not one of punishment.
The provisions contained in section 78 of the Act indicate first that the Coal Mines Provident Fund Commissioner may determine the amount due from the employer, and, second, for this purpose he may conduct such enquiry as he may deem necessary.
Therefore, an enquiry is contemplated.
Section 78(3) speaks of reasonable opportunity being given to an employer to represent his case.
The provisions in section 10F of the Act also indicate that determination of damages is not a mechanical process.
The words of importance in section 10F of the Act are "such damages not exceeding 25 per cent of the amount of arrears as it may think fit to impose".
Here the two important features are these.
First, the words of importance are "damages not exceeding 25 per cent".
These words show that the determination of damages is not an inflexible application of a rigid formula.
Second, the words "as it may think fit to impose" in section 10F of the Act show that the authorities are required to apply their mind to the facts and circumstances of the case.
This Court in The India Sugars and Refineries Ltd. vs Amravathi Service Co op.
Society Ltd. & Anr. etc.(l) said that "situations in which a duty will arise to act judicially according to the natural justice cannot be exhaustively enumerated.
A duty to act judicially will arise in the exercise of a power to deprive a person of legitimate interest or expectation that addition price would be paid.
The facts which point to an exercise of powers judicially are the nature of the interest to be affected, the circumstances in which the power falls to be exercised and the nature of the sanctions, if any involved".
When a body or authority has to determine a matter involving rights judicially the principle of natural justice is implied if the decision of that body or authority affects individual rights or interests.
Again, in such cases having regard to the particular situation it would be unfair for the body or authority not to have allowed a reasonable opportunity to be heard.
(See State of Punjab vs K. R. Erry & Sobhag Rai Mehta.(2) The High Court was correct in holding that an opportunity should have been given to the employer to be heard before the damages were determined.
The appeal is, therefore, dismissed with costs.
section R.Appeal dismissed.
[/INST]Section IOF of the Coal Mines Provident Fund and Bonus Scheme Act 1948 is a penal section under which for default in the payment of any Provident Fund contribution, the Central Government may recover from such employer or person as the case may be, such damages, not exceeding 25% of the amount of arrears, as it may think fit to impose.
ln respect of tho period from July to September, 1968, the respondent employer was asked to pay a sum of Rs. 1455.50 as damages being 25% of the arrears of Provident Fund contributions by the appellant to which he filed an objection explaining the delay.
The employer ' request for waiving the damages was negatived.
The writ application of the employer against that order was allowed by the High Court on two grounds, viz. (i) that the computation of damages should arise upon consideration of the facts and circumstances, and (ii) the authorities should have given an opportunity to the employer to represent the case.
Dismissing the appeal by special leave, the Court. ^ HELD: ( I ) The provisions contained in a 78 of the Act indicate first that the Coal Mines Provident Fund Commissioner may determine the amount due from the employer, and second, for this purpose he may conduct such enquiry as he may deem necessary.
Therefore, an enquiry is contemplated.
Section 78 (3 ) speaks of reasonable opportunity being given to an employer to represent his case.
The provision in section 10F of the Act also indicates that determination of damage is not a mechanical process.
The words of importance in section 10F of the Act are "such damages not exceeding 25 per cent of tho amount of arrears as it may think fit to impose".
Here the two important features are these: First the words of importance are "damages not exceeding 25% show that the determination of damages is not an inflexible application of the rigid formula.
Second, the words "as it may think fit to impose" in section 10F show that the authorities are required to apply their mind to the facts and circumstances of the case.
[368A C] (2) When a body or authority has to determine a matter involving rights judicially, the principle of natural justice is implied if the decision of that body or authority affects individual rights or interest.
[368E E] Indian Sugars & Manufacturers Ltd vs Amravati Services Co operative Society Ltd. Anr.
r[1976] 2 S.C.R. 740 and State of Punjab vs K R. Erry k Sobhag Rai Mefta ; , applied.
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<s>[INST] Summarize the judgementN: Criminal Appeal No. 611 of 1981.
Appeal by Special leave from the Judgment and Order dated the 6th February, 1981 of the Allahabad High Court in Crl.
Appeal No. 11478 of 1980.
Dalveer Bhandari, H.M. Singh and Ranbir Singh Yadav for the Appellant.
R.L. Kohli and Girish Chandra for the Respondent.
Ram Jethmalani, Ms. Rani Jethmalani and S.B. Jethmalani for the Intervener.
The judgment of the Court was delivered by FAZAL ALI, J.
Our hard won freedom from British yoke ushered in a new era of progress and prosperity resulting in setting up of a large number of industries of all sorts and kinds in various spheres, some of them being Government controlled and some of them in the private sector.
Labour and industrial laws of the country passed after independence created a sense of new awakening in the labour force which became more and more conscious of the rights and privileges conferred on them by the laws.
Although disputes between the labour and management is now a common feature of the industrial life of the country yet seldom in the history of industrial disputes has it ever happened that a dispute assumed such large proportions as to take the toll of a human life resulting in a cold blooded murder in broad day light and that too in a court premises.
4 Such an extraordinary event is the subject matter of this appeal by special leave against the judgment of the Allahabad High Court where a Secretary of the labour Union seems to have run amuck and fired several shorts by a country made pistol shots on an officer of the management and killed him at the spot The facts of the case have been detailed in the judgment of the learned Sessions Judge and the High Court and need not be repeated.
The matter, therefore, lies within a narrow compass and we purpose only to examine the reasons and the inferences drawn by the High Court for acquitting the respondent, Madhu.
M/s. Hindustan Construction Company (hereinafter referred to as the 'company '), had undertaken the construction of Jamuna Hydel Project in Khadar, District Dehradun.
To begin with, it appears that there was some dispute about the dearness allowance claim of the labour from the management which was referred to the Industrial Tribunal.
The respondent, who was the Secretary of the Union, was looking after the case on behalf of the workers, while PWs 5 and 7 were the officers appearing on behalf of the management before the Tribunal.
The deceased, S.J. Sirgaonkar, was Deputy Personnel Manager of the Bombay Branch of M/s. Hindustan Construction Company.
He was shot dead by the respondent after he (deceased), alongwith the other officers of the management, had come out of the Tribunal 's office at Meerut after filing their written statements.
Thereafter one of the eye witnesses, S.K. Gui (PW 7) asked someone to give a telephone call to the police station, which was nearby, on receipt of which the police arrived at the spot, seized the pistol and took the accused and some of the witnesses to the police station where a form FIR was registered.
The Panchanama was prepared and other formalities were, however, done at the spot.
The learned Sessions Judge, after a careful consideration of the evidence of the three main eye witnesses (PWs 5, 6 and 7) as also the evidence of Durga Das (DW 1), came to a clear conclusion that the prosecution case against the respondent was fully proved and accordingly be convicted the respondent under 5 section 302, I.P.C. and sentenced him to imprisonment for life.
He also convicted the respondent under section 25(1)(a) of the Indian Arms Act and sentenced him to one year 's R.I. The respondent went up in appeal to the High Court against the decision of the Sessions Judge which was reversed by the High Court and the respondent was acquitted of the charges framed against him.
Normally, this Court does not interfere against the judgment of a High Court purely on appreciation of evidence.
But, in this case, there appears to be very special circumstances which have been either overlooked or not considered by the High Court.
Besides this, the High Court does not appear to have examined the intrinsic merits of the evidence of the witnesses but has proceeded to acquit the respondent on general grounds which, we shall show hereafter, are wholly untenable.
It appears that July 5, 1977 was the date fixed in the Industrial Tribunal, Meerut for the parties to file their written statements and in this connection the deceased alongwith the other eye witnesses (PWs 5, and 7) attended the Tribunal and PWs 5 and 7 filed their written statements.
P.W. 6 was, the standing counsel of the Company and had been representing the same in all labour disputes concerning the Company.
The respondent was holding the post of hydel lineman of the Project and was the Secretary of the labour Union.
DW 1, Durga Das, who was also at the spot was the Vice President of the said Union.
It appears that after filing the written statements at about 11.30 a.m. the witnesses and the respondent came out of the court premises and were talking between themselves.
As soon as the respondent and Sirgaonkar (the deceased) reached the main gate of the Tribunal building, the respondent is alleged to have taken out a country made pistol and fired five shots one after the other in quick succession, with the result that Sirgaonkar fell down and died at the spot.
Thereafter, the respondent threw away the pistol but he was surrounded by the witnesses and later handed over to the police on their arrival.
It is also alleged by the prosecution that while the firing was going on a telephonic message was sent to the police station Civil Lines, Meerut about the firing and it was received by Masroor Ali, PW 9, who made an entry to that effect in the general diary at 11.39 a.m.
The telephonic information merely conveyed the fact that gunshots 6 were being fired on receipt of the information, PW 10.
Ram Datt Gautam, the Sub Inspector of Police, proceeded to the place of occurrence and found the body of Sirgonkar Lying outside the main gate of the Tribunal building and the respondent being apprehended by the witnesses.
The police officer took the accused into custody and proceeded to the police station alongwith PW 7, S.K. Gui, where a regular FIR was registered.
The usual proceedings about the postmortem and inquest the followed and after a thorough investigation the police submitted a charge sheet against the respondent which resulted in his conviction by the Sessions Judge.
This, in short, is the prosecution case.
The main grounds on which the High Court has reversed the judgment of the Sessions Judge may be summarised as follows: Durga Das, DW 1 who was admittedly at the scene of the occurrence has stated that as the shooting started, PW 7 had given a telephonic message to the police station.
The High Court by an implied process of reasoning has observed that if PW 7 had given the telephonic message he would have mentioned the name of the assailant because he was a full fledged eye witness but since his name had not been mentioned it is the strongest possible circumstance to discredit the prosecution case.
We are, however, unable to agree with this somewhat involved reasoning of the High Court.
In fact, DW, 1, merely says that Gui telephoned to the police station about the firing and said something in English, The High Court seems to have presumed that from this the irresistible inference to be drawn is that Gui did not mention the name of the assailant of the deceased and on this ground alone the prosecution must fail.
This argument is based on a serious error.
In the first place, the telephonic message was an extremely cryptic one and could not be regarded as a FIR in any sense of the term.
Secondly, assuming that Gui had given the telephonic message in utter chaos and confusion when shots after shots were being fired at the deceased, there was no occasion for Gui to have narrated the entire story of the occurrence.
In fact, in his evidence Gui has denied that he personally telephoned the police but he stated that he asked somebody to telephone the police which appears to be both logical and natural.
Moreover such a cryptic information on telephone has been held by this 7 Court to be of no value at all.
In Tapindar Singh vs State of Punjab this Court in identical circumstances observed thus: "The telephone message was received by Hari Singh, A.S.I., Police Station, City Kotwali at 5.35 p.m.
On September 8, 1969.
The person conveying the information did not disclose his identity, nor did he give any other particulars and all that is said to have been conveyed was that firing had taken place at the taxi stand, Ludhiana.
This was, of course, recorded in the daily diary of the police station by the police officer responding to the telephone call.
But prime facie this cryptic and anonymous oral message which did not in terms clearly specify a cognizable offence cannot be treated as first information report The mere fact that this information was the first in point of time does not by itself clothe it with the character of first information report.
" In view of this decision, therefore, the fundamental reasoning of the High Court falls to the ground.
Moreover, Durga Das himself does not appear to be an independent witness but he was highly interested because being the Vice President of the labour Union he was looking after the case in tho Industrial Tribunal on behalf of the workers.
There is clear evidence of prosecution witnesses that even the brief case of the respondent was handled by DW 1 at the time of the occurrence.
Although DW 1 denied this fact, it is amply proved by the evidence of PW 5.
The only comment made against this witness was that he did not state this fact before the investigating officer.
But, as this was a matter of detail it may not have been necessary for him to have stated all possible details in his statement to the police.
This witness is corroborated by PW 6, an independent witness, who says that the brief case of the respondent was being carried by Durga Das.
It, therefore, appears that DW 1 being the Vice President of the Union and a pairvikar of the workers was highly interested and in the face of the evidence of independent witness like PW 6, there is no reason to disbelieve the evidence of PW 5 that the brief case of the respondent was being handled by DW 1.
We might state here that the High Court has applied two 8 different standards to assess the evidence of the prosecution and that of the defence.
While the High Court accepts the uncorroborated evidence of DW 1, who is as much interested in the dispute as the deceased, if not more, being Vice President of the Union and also in possession of the brief case of the respondent, yet it disbelieves the evidence of PWs 5 and 7 mainly on the ground that they were highly interested.
The relevant finding of the High Court on this point may be extracted thus: "In the first place, it shows that Subrat Kumar Gui and M.R. Bhaumik were mainly responsible for the prosecution of the case, although the deceased had been in general supervision of all labour disputes of the company at all the places.
In the second place, it also points out that these two witnesses were not happy with the appellant who had been representing the cause of the labourers before the Industrial Tribunal and that they were sore about his conduct.
In these circumstances these two witnesses could not be said to be independent " Here, the High Court completely lost sight of two important facts (1) that PWs 5 and 7 were high officers of the Company and were not likely to depose falsely on a matter like this, and (2) that PW 6, who was the standing counsel of the Company and other labour cases for more than 3 decades, fully corroborates the evidence of PWs 5 and 7.
We have examined the evidence of PWs S and 7 with very great care and caution but we are unable to find any discrepancy or defect in their evidence so as to lead any court to reject the same.
On the other hand, on a consideration of their evidence.
we are satisfied that are throughout consistent and congruous and that their evidence bears a ring of truth; We are indeed surprised how the High Court could disbelieve the evidence of the eye witnesses in the case of a cold blooded murder committed in broad day light where the respondent was caught red handed at the spot.
The High Court also over looked the crying conduct of the respondent who went on firing one shot after the other so as to make sure that Sirgaonkar does not survive at any cost.
Another ground on which the High Court has reversed the 9 judgment of the Sessions Judge is that it is difficult to believe that after the respondent threw the pistol he continued to remain at the spot and did not make any attempt to escape.
With due respect, this finding of the High Court is also most unrealistic.
There is clear evidence of PWs.
5, 6 and 7 that after the respondent threw down the pistol he was surrounded by the three witnesses so that he could not escape.
The High Court has failed to consider this important aspect of the matter.
Moreover, if a person commits a cold blooded murder in the premises of a court which is bound to be full of other litigants also, he cannot think of escaping and is bound to be caught by someone or the other.
The High Court was further of the view that it is extremely doubtful that the witnesses could see the incident from inside the court room as there was no door or window through which the incident could be seen.
To buttress this observation, the High Court seems to have relied on the evidence of DW 1 that the four persons, including DW 1, entered the court room as soon as the first shot was fired.
This statement is obviously wrong because all the three witnesses stated that the shots were fired while they were outside the court room and they actually saw the respondent firing the shots.
It was only after a few shots were fired that they entered the court room and even so they were able to see the whole occurrence from the glass panes of the court room.
There is absolutely no evidence on record to show that there were no glass panes in tho window and that the place of occurrence could not be visible from the court room.
In these circumstances the conclusion of the High Court is purely speculative and against the weight of evidence on the record.
The High Court seems to have placed some reliance on the evidence of D.W.1 but as he was highly interested, his evidence unless corroborated by independent evidence should not have been acted upon in the peculiar facts and circumstances of this case.
Lastly, the High Court seems to have completely overlooked the fact that there was no reason for three eye witnesses, one of whom was a standing counsel far about 30 years, to have falsely implicated the respondent merely because he was Secretary of the Union.
The consistent course of conduct of the respondent speaks volumes against his innocence.
He was caught red handed 10 at the spot and was surrounded by the witnesses so that he could not escape, and the police arrived within fifteen minutes of the occurrence and took him to the police station.
Some comment was made by the High Court about the delay in the inquest report but that does not appear to be of any consequence if the evidence of the three eye witnesses is to be believed.
We have given our anxious consideration to the evidence of the three witnesses (PWs 5, 6 and 7) and we find ourselves in complete agreement with the Sessions Judge that these witnesses were both reliable and trustworthy.
In fact, the High Court committed a grave error of law in not going into the intrinsic merits of the evidence of each of the eye witnesses and in discarding the same on general ground which also have no substance.
For the reasons given above, we are satisfied that this is not a case in which it could be said by any stretch of imagination that another reasonable view may be possible on the evidence and circumstances of the case, viz. that the accused was innocent.
The result is that the appeal is allowed, the judgment of the High Court is set aside and the appellant is convicted under s.302 of the Indian Panel Code to imprisonment for life as also under s.25(1)(a) of the Indian Arms Act to one year 's R.I. because he was undoubtedly found using a country made pistol which was recovered from the place of occurrence.
H.S.K. Appeal allowed.
[/INST]section 33(2) of the Representation of the People Act requires that when a nomination paper is filed in respect of a reserved seat in any constituency there must be a clear specification by the candidate of the particular caste or tribe to which he belonged and the area in relation to which that caste or tribe was a scheduled caste or scheduled tribe of the State.
The appellant, in order to contest State assembly election filed his nomination paper without making the declaration in the nomination paper itself but filed as annexure thereto a certificate issued by the Sub Divisional Magistrate certifying that the appellant belonged to a scheduled caste namely 'Lohar '.
The nominating paper was accepted by the Returning Officer and the appellant successfully contested the election.
The respondent, who lost in the election, challenged the election of the appellant on the ground inter alia that in the absence of the requisite declaration prescribed by section 33(2), the nomination paper of the appellant was invalid and was wrongly accepted.
The High Court took the view that since section 33 of the Act required that the nomination paper must be in the prescribed form the filing of any enclosure or certificate along with form was not contemplated.
Hence this appeal.
Allowing the appeal, ^ HELD: When the nomination paper has been made in the prescribed form, there is no legal prohibition against the other requisite particulars being furnished in a separate paper appended to the form instead of 64 writing them out in the form itself.
The annexure appended the form should be treated as part of the nomination paper.
[67 B C] While dealing with nomination papers pertaining to candidates belonging to scheduled castes and scheduled tribes, who, for well known historical reasons, are unfortunately, extremely backward socially, economically and educationally in comparison with other sections of our people, the Court has to place a liberal and benevolent interpretation on the provisions contained in section 33(2) of the Act rather than adopt a narrow, rigid, technical and purely literal construction.
[67 E F] section Sivaswami vs V. Malalkannan and other, [1984] 1 SCC 296, referred to.
In the instant case the requirement of section 33(2) is fully satisfied.
The certificate which was produced by the appellant as an annexure to the nomination paper has to be treated as forming part of the nomination paper and the declaration contained therein that the appellant belongs to the 'Lohar ' caste which is admittedly a scheduled caste in the entirety of the area concerned, must be understood and treated as a declaration by the appellant in the nomination form within the meaning of sub section
(2) of section 33.
Therefore the High Court was in error in holding that the nomination paper filed by the appellant was not valid and its acceptance by the Returning officer was improper.
[68D E; G]
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<s>[INST] Summarize the judgementiminal Appeals Nos.
150 152 of 1965.
Appeals by special leave from the judgment and order dated March 17, 1965 of the Mysore High Court in Criminal Appeals Nos.
93 to 95 of 1965.
B. R. L. Iyengar and B. R. G. K. Achar, for the appellant.
K. R. Chaudhury, for the respondents.
812 The Judgment of the Court was delivered by Mudholkar, J.
This judgment will also govern Criminal Ap peals Nos. 151 and 152 of 1965.
The respondent was at the relevant time a dealer at Bijapur in groundnuts, cotton seed and other commodities and was registered as a dealer under the Mysore Sales Tax Act, 1957.
For the period between November 12, 1958 and October 31, 1959 he was assessed to sales tax amounting to Rs. 9,864 31 ps.
by the Commercial Tax Officer, Bijapur in his order dated December 4, 1963.
On January 3, 1964 the Commercial Tax Officer served on him a notice of payment requiring him to pay the tax assessed on him within 21 days.
He was similarly assessed to pay tax for two subsequent periods by two separate orders passed by the Commercial Tax Officer.
Two separate notices of demand were served on him requiring him to pay the tax assessed within 21 days.
It is common ground that the respondent did not comply with any of the three notices.
Three separate complaints were, therefore, preferred against him by the Commercial Tax Officer before the Judicial Magistrate, First Class, second court, Bijapur for offences punishable under section 29(1)(d) of the Act.
The respondent had preferred appeals against each of the three orders ,of assessment under sub section
(1) of section 20 of the Act.
He did not, however, pay the tax assessed against him or any portion thereof as contemplated in the second proviso of sub section
(1) of section 20 nor did he seek or obtain from the appellate authority any order under the proviso to sub section
(5) of section 20.
The learned Magistrate held that since the respondent had preferred appeals against the orders of assessment and those appeals were still pending when the complaints were made before him the respondent was not liable for offences under section 29 (1) (d).
On this ground the learned Magistrate acquitted the respondent in all the three cases.
Appeals preferred by the State of Mysore against the orders of acquittal passed in favour of the respondent were rejected by the High Court on the ground that as the State could avail itself of other remedies under the Act for enforcing the payment of tax levied on the respondent it did not think it fit to exercise its discretion under section 421 (1) of the Code of Criminal Procedure and entertain the appeals.
Mr. Chaudhuri refers to the proviso to sub section
(3) of section 13 and contends that unless the requirements of the proviso are satisfied he is not liable to be proceeded against under section 29 (1) (d).
In order to appreciate his argument it is desirable to reproduce the provision relied upon by him.
Sub section (3) of section 13 reads as follows "Any tax assessed, or any other amount due under this Act from a dealer, may without prejudice to any other mode of collection, be recovered (a) as if it were an arrear of land revenue, or 813 (b) on application to any Magistrate, by such Magistrate as if it were a fine imposed by him: Provided that no proceeding for such recovery shall be taken or continued as long as he has, in regard to the payment of such tax or other amount, as the case may be, complied with an order by any of the authorities to whom the dealer has appealed, or applied for revision, under sections 20, 21, 22 23 or 24.
" The matter dealt with by section 13 is "payment and recovery of tax".
The substantive part of the provision renders an assessee in arrears of tax liable to be proceeded against under either cl.
(a) or cl.
(b) of the provision.
Mr. Chaudhury, however, contends that by virtue of the proviso an assessee will not be liable to be proceeded against unless it is shown that he has failed to comply with an order made by the appropriate authority under one of the sections refered to in the proviso.
He points out that though he has preferred appeals under section 20 of the Act no order has been made by the appellate authority in any of the appeals dealing with the question of payment or otherwise of the tax and that,the refore,there has been no failure on the part of the respondent to comply with an order made by the appropriate authority.
Mr. Chaudhury in effect wants us to construe the proviso as if it contemplated the creation of liability to pay the tax by an order of the appropriate authority under one of the sections specified in the proviso.
There is no warrant for such a construction.
The liability to pay tax is created by the order of assessment.
Where tax so assessed is not paid despite service of notice of demand the substantive portion of sub section
(3) of section 13 renders the assessee liable to be proceeded against under cl.
(a) or cl.
(b) of that provision.
The assessee who has moved the appropriate authority under one of the provisions referred to in the proviso has, however, been afforded interim protection from action under cl.
(a) or cl.
(b) provided that he approaches the appropriate authority and obtains from that authority an order of stay of proceedings under cl.
(a) or cl.
That, however, is not enough.
If the order of the appropriate authority lays down any condition the proviso requires that the assessee must comply with those conditions before he can obtain interim relief under the proviso.
Apart from that, we fail to see how the proviso to sub section
(3) of section 13 can at all be an answer to a prosecution under section 29 (1) (d).
What is rendered an offence under section 29 (1) (d) is the failure of the assessee to pay the tax within the time allowed.
But where, as here, the assessee has not paid the tax within the time allowed by a notice of demand he immediately renders himself liable to be proceeded against under section 29 (1) (d).
Mr. Chaudhury then contended that in view of the fact that an appeal has been preferred the liability of the assessee to pay 814 the tax must be deemed to have been suspended during the pendency of the appeal.
This argument ignores the specific provisions of sub section
(5) of section 20 and the proviso thereto.
They read thus : "Notwithstanding that an appeal has been preferred under sub section (1), the tax shall be paid in accordance with the assessment made in the case : Provided that the appellate authority may, in its discretion give such directions as it thinks fit in regard to the payment of the tax before the disposal of the appeal, if the appellant furnishes sufficient security to its satisfaction in such form and in such manner as may be prescribed.
" The provision we have just quoted is a complete answer to Mr. Chaudhuri 's contention.
Mr. Chaudhury then contended that there was no wilful default on the part of the respondent.
It is difficult to appreciate what he means by saying that there was no wilful default.
The respondent knew that he was required to pay the tax within certain time and also knew that he had not complied with the notice of demand.
His action in not paying the tax was quite clearly deliberate and, therefore, wilful.
There is no substance in this contention.
We are, therefore clear that the acquittal of the respondent for offences in the case was unwarranted.
We would, therefore, have, after setting aside his acquittal in each of the three cases, convicted and sentenced him under section 29 (1) (d) of the Act but for the fact that when special leave was granted an undertaking was given by the State that irrespective of the result of the appeal the respondent would not be prosecuted.
Probably what was meant was that the State would not press for conviction and sentence of the respondent.
Therefore, though we allow the appeals and set aside the acquittal of the respondent in the three cases we leave the matter just there.
Appeals allowed.
[/INST]The appellant (holder of an inam in Madhya Pradesh) served a notice an his tenant, the respondent, terminating to tenancy on the ground that he wanted the land for personal cultivation and filed a suit for ejectment.
The trial court decreed the suit.
During the pendency of the appeal in the District Court, article 32 of 1954 was enacted, and pursuant to its provisions the hearing of the appeal was stayed.
After the Madhya Pradesh Land Revenue Code came into force in 1959, the District Court held that by virtue of section 185 of that Code the respondent acquired the rights, of an occupancy tenant and dismissed the suit.
The High Court confirmed the judgment of the District Court.
In appeal to this Court, it was contended that : (i) the rights of an occupancy tenant arise in favour of a personl under section 185(1) (i) (a) only if there was between him and the landlord a subsisting tenancy at the date when the Code came into force and since under the law in force before the commencement of the Code, the respondent had ceased to be a tenant because of the notice terminating the contract of tenancy the respondent was not invested with the rights of an occupany tenant; and (ii) bi virtue of sections 261 and 262(2), the operation of section 185 is expressly excluded when a person, against whom ejectment proceedings have been instituted prior to the commencement of the Code in enforcement of a right then acquired, claims the status of an occupancy tenant.
HELD : (i) The respondent acquired the right of an occupancy tenant under the Code, because the expression "tenant" in section 185 (1) (ii) (a) includes a person whose tenancy was terminated before the commencement of the Code.
The definition of the expression "tenant" in the Code postulates a subsisting tenancy, but the position of a tenant prior to the date on which the Code was brought into force is not dealt with in the definition.
In the context in which the expression "tenant" occurs in section 185(1), that definition could not be intended to apply in deter ining the conditions which invest a holder of land with the status of an occupancy tenant at the commencement of, the Code.
Therefore having regard to the object of the enactment the expression should be ascribed the meaning it 'has in Act 32 of 1954.
Under sections 3 & 4 of that Act a person who was inducted into the land as a tenant and who continued 'to hold the land at the commencement of the Act was entitled to protection against eviction and continue as tenant, notwithstanding that under the law in force prior to the commencement of the Act.
the contractual relationship of landlord and tenant was determined.
[432 D; 432 14 433 C] 428 There is no reason to think that the Legislature sought to make a A distinction between tenants of Inam land in section 185 (1) (ii) (a) and ryotwari sub lessees of other lands in section 185(1)(ii)(b).
Therefore, if the expression "ryotwari sub lessee ' in section 185(1)(ii)(b) includes a sub lessee whose tenaure was terminated before the commencement of the Code, a tenant of inam land, whose tenancy has been terminated would also be included in the protection, provided at some time prior to the date on which the Code was brought into force, he was in possession of the land as a tenant, and he continued to hold the land till the date of the commencement of the Code.
[434 E H] (ii) The provisions of the Code appeal to tenants in proceedings for ejectment pending at the commencement of the Code.
The proviso to section 261 protects a right which had been acquired under a law repeated by the Code and the right could be enforced as if the code had not been passed.
But the right to evict a tenant was governed by the general law of landlord and tenant and was not acquired under any repealed law.
The proviso had no operation and a legal proceeding pending at the date of the commencement of the Code will be disposed of according to the law enacted in the Code.
Therefore, the tenant could not ' be evicted otherwise than in the manner and for reasons mentioned in a. 193 of the Code but, personal requirement for cultivation of land is not a ground on which a claim for ejectment could be maintained.
[435 G436 A] Section 262(2) is only procedural it provides that a civil court will continue to have jurisdiction to dispose of a civil suit pending before it at the commencement of the Code, Which, if it had been instituted after the Code was passed would have been tried by a revenue court; and in the disposal of such a suit, the civil court will be governed by the procedural law applicable there to prior to the commencement of the Code.
It does not nullify the statutory conferment of occupancy right upon persons in the position of tenants against whom proceedings were taken at the date when the Code was brought into force.
[436 B D]
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<s>[INST] Summarize the judgementivil Appeals Nos.
2075 & 2076 of 1968.
From the judgment and decree dated the 29th March & 1st April 1968 of the Gujarat High Court in First Appeals Nos. 769 and 1029 of 1960.
A.K. Sen, L.M. Singhvi.
section K. Bagga and Mrs. Bagga, for the appellant.
R.P. Bhatt, B.S. Trivedi H. section Parihar and I.N. Shroff, for the respondent.
The Judgment of the Court was delivered by KHANNA, J.
These two appeals on certificate by Mohatta Brothers plaintiff firm are directed against the judgment of Gujarat High Court whereby that court reversed on appeal the judgment of the trial court awarding a decree for recovery of Rs. 77,286/0 Anna/2 Pies in favour of the plaintiff appellant against the respondent company and dismissed the suit.
The plaintiff is a partnership firm doing business under the name and style of Mohatta Brothers.
The plaintiff firm carried on the business of managing agency of the defendant company up to September 4, 1950.
Sometime before that date, it appears the plaintiff firm expressed an intention of giving up the post of managing agents.
July 31, 1950 Chaturbhujdas on behalf of M/s. Chaturbhujdas, Kharawala Mohatta & Co. submitted scheme exhibit 168 in consultation with the plaintiff.
Paras 5, 6 and 7 of the scheme were as under: "(5) Before our this Scheme is approved by the Company the present Directors shall submit before the Company 1024 the Balance Sheets and the Profit and Loss Account upto the end of the year 1949 and get the same passed, and they shall get the Proforma Balance Sheet upto the date 31 7 50 prepared by the Auditors of the Company and shall hand over the same to us, and this Scheme has been given while understanding that at present everything is according to the list of machinery given to us by the present Agents.
And no one has any kind of charge or debt claimable from the Company till this day excepting the appropriate amount of Rs. 4,77,850/ due to the Agents and their kith and Kin till this day and the list of which is given to us.
We give this Scheme believing the said fact true.
(6) The amounts of the Agents of the Company and their kith and kin which may have been deposited in the Company on the day the date 31 7 50 and which come to about Rs. 4,77,850/ as told by the present Agents are to be kept credited in their accounts and interest thereon is not to be given from the date 1 8 50.
And when our Scheme is approved they have not to take any interest on the said amounts from the Company for five years from the date we start the work of the Mills and they have not to withdraw the said amounts for a period of ten years thereafter but the same are to be kept credited in the Company with interest at six per cent.
But the Company shall return the amount earlier if it so desires.
(7) At present the amount of Rs. 3,46,466 11 8 is due to the Punjab National Bank Ltd. by the Company and the demand of giving bonus to the workers for the year 1949 is outstanding from the Company.
The present Agent states that in both of the said matters payments can be made from the amounts obtained by selling the goods of stores, etc.
which is lying with the Company at present, the list of which is given to us by the present Agents, and from the amounts of E.P.T. deposit and advance payments of the income tax.
On making arrangement accordingly if the debt of the Bank is not fully paid or the liability of bonus is not fully fulfilled and if the Company is found responsible in any way, then the same is to be fulfilled by the present Agent.
But after fulfilling all liabilities accordingly if any amount remains in balance the same shall be treated as assets of the Company and half of the said amount shall be returned to wards the above mentioned amount deposited in the Company and which belongs to the present Agent and their kith and kin.
But on fulfilling completely the liability of the Bank from the sale of goods of the Stores, etc.
if there does not remain sufficient surplus or before getting the amount of E.P.T. deposit and income tax advance payment if the amount of bonus is required to be paid then the present Managing Agents has to give that amount first.
" 1025 On the following day, i.e. August 1, 1950, the following letter was addressed by the plaintiff firm to the Board of Directors of the defendant company : "We Messrs Mohatta Brothers, the Secretaries, Treasurers & Agents of the company hereby beg to tender our resignation as Secretaries, Treasurers and Agents of the Company on condition of the scheme of Sheth Chaturbhujdas Chimanlal dated 31 7 50 duly approved by the Board of Directors, being passed by the share holders of the company in the Extraordinary General Meeting of the company to be held on 4th September, 1950.
FOR MOHATTA BROTHERS Ahmedabad Shivaratan G. Mohatta Chandratan G. Moondhra D.R. Moondhra Brijratan section Mohatta S.R. Mohatta Satyavati Mohatta" A notice was then issued for convening a general meeting of the defendant company on September 4, 1950 for sanctioning the said scheme.
The said scheme was approved by the shareholders on September 4, 1950.
Accordingly, as from that date Messrs Chaturbhujdas Kharawala Mohatta & Co. took over as the new managing agents of the defendant company instead of the plaintiff firm.
The plaintiff 's case was that the liability of the Punjab National Bank was fully discharged by sale of the stores.
No bonus was held to be payable by the Industrial Court to the employees of the company for the year 1949.
It was stated that there was surplus left after discharging the liability of the Punjab National Bank from earmarked assets consisting of excess profit tax deposits, income tax advance amount and the amounts realised from the sale of the stores.
The plaintiff firm claimed half the surplus in terms of clause (7) of the scheme towards the deposit amounts of the plaintiff.
Prayer was made for accounts of the surplus and decree for the amount due as per terms of the scheme with 9 per cent interest.
It may be stated that the plaintiff firm with effect from April 1, 1949 consisted of five partners.
In addition to those five partners, Shashi Kumar, who was a minor and whose mother Satyavati was his guardian, was entitled to four Anna share in a rupee in the profits of the partnership but was not liable for its losses.
Partnership deed exhibit 116 was executed for this purpose on May 19, 1949 and was signed by the five partners and Satyavati.
On October 24, 1949 another partnership deed exhibit 116 was executed wherein Satyavati was shown as a partner of the plaintiff firm instead of her minor son Shashi Kumar.
1026 The suit was resisted by the defendant company.
Besides taking other pleas with which we are not concerned, the defendant contended that the plaintiff firm could not maintain the suit as the constitution of the old firm which acted as managing agents of the defendant company had been changed on October 24, 1949.
From that date, it was stated, the plaintiff firm consisted of six partners, including Satyavati.
The newly constituted firm, according to the defendant company, had not been registered and as such the suit was not maintainable.
The trial court held that the new partnership deed exhibit 116 by which Satyavati became a partner was not acted upon.
As the original partnership mentioned in the partnership deed dated May 19, 1949 had been registered, the plaintiffs suit was held to be not barred by section 69 of the Indian Partnership Act.
It is not necessary to refer to the other issues and the findings of the trial court on those issues.
Suffice it to say that the defendant was held entitled to deduct certain amounts from the amount claimed by the plaintiff.
The trial court accordingly passed the following order : "The plaintiff has filed this suit for account as the account was to be taken of the realisation and expenses of the stores.
But by pursis Exhibit 424 the parties have agreed about the net realisation of the stores and have therefore urged that no Commissioner be appointed and a final decree be passed.
The real account was to be taken of the actual receipts and expenses of the sale of stores.
But now nothing is required to be done and hence there is no necessity of passing any preliminary decree.
The plaintiffs as shown above are entitled to receive Rs. 77,286 0 2, from defendant towards their deposit amount being the net surplus which they are entitled.
Hence defendants are liable to pay the said amount to plaintiff.
The plaintiff should pay the remaining Court fee stamp within a month.
I, therefore, pass the following order.
ORDER Defendants do pay Rs. 77,286 0 2 and the cost of the suit to plaintiff with future interest at 6 per cent from 1st January, 1956.
The plaintiff should pay the remaining Court fees within a month.
Defendants to bear their own cost." Two cross appeals were filed against the judgment and decree of the trial Court.
One appeal was by the defendant company praying for the dismissal of the plaintiff 's suit.
The other appeal was by the plaintiff firm claiming for enhancement of the amount decreed by the trial court.
One of the contentions advanced by the defendant company was as under : "The plaintiff firm was not entitled to file a suit as the plaintiff firm was differently constituted from the firm of Mohatta Brothers as on 31st July 1950, and, in any event, as the minor Shashi kumar had become major in 1953 and had 1027 become a partner of the plaintiff firm Mohatta Brothers, Ahmedabad, and as even the name of Satyavati Devi who was the partner suing did not appear in the entry in the register of firms the present suit was barred under section 69(2) of the Act.
" Dealing with the above contention, the High Court disagreed with the finding of the trial court that partnership deed exhibit 116 dated October 24, 1949 had not been acted upon.
The learned Judges of the High Court held so far as the first part of the above contention is concerned that when a firm is reconstituted by introduction of a new partner, it would remain the same registered firm, and there would be no necessity of fresh registration if the continuing firm was registered with the Registrar of the Firms under section 59 of the Indian Partnership Act.
Dealing with the contention that Shashi Kumar had become major, the High Court found that there was no evidence to show the age of Shashi Kumar and the whole argument in this respect was based on mere conjecture.
On the latter part of the submission, the High Court held that the mandatory condition under section 69(2) of the Indian Partnership Act was not fulfilled in the present case as the name of Satyavati who was a partner of the reconstituted firm and in whose favour a cause of action had accrued was not shown in the register of the firms.
This defect was held to be fatal.
The High Court in this context observed .
"In view of this legal position which we have discussed the second mandatory condition under section 69(2) is not fulfilled in the present case as the name of Satyavati who was partner of the reconstituted firm and in whose favour the cause of action had accrued is not shown in the register of firms.
This defect would be fatal as the first defect of want of registration of the firm itself and in both the cases we would have no option but to dismiss the suit.
In that view of the matter it would be wholly unnecessary to go into any of the other contentions which have been raised in these two appeals and to record any finding on the issues relating to the merits of the case or as regards the other appeal of the plaintiff as well.
Howsoever much we may regret to dismiss the plaintiff 's suit which apparently is well founded by up holding this technical objection of the defendant company, we are bound to dismiss this suit as in law a non compliance of this second mandatory condition is also equally fatal as the non compliance of first condition.
At the same time, however, in the circumstances of the cases while dismissing the plaintiff 's suit we would order both the parties shall bear their own costs all throughout.
" In appeal before us Mr. Sen on behalf of the appellants has assailed the judgment of the High Court in so far as it has disagreed with the finding of the trial court that Satyavati was not a partner of the plaintiff firm and the deed of partnership dated October 24, 1949 had not been acted upon.
Mr. Sen has also questioned the correctness of the view taken by the High Court regarding the construction of section 1028 69(2) of the Indian Partnership Act.
As against that, Mr. Bhatt on behalf of the respondents has canvassed for the correctness of the view taken by the High Court.
both on the question of fact as well as on the question of law.
After hearing the learned counsel for the parties and after having been taken through the relevant material on the record, we are of the opinion that the trial court took a correct view of the matter in so far as it has held that Satyavati did not become a partner of the plaintiff firm and that the deed of partnership dated October 24, 1949 was not acted upon.
The main consideration which prevailed with the High Court in holding that Satyavati became a partner of the plaintiff firm was the execution of deed of partnership dated October 24, 1949.
According to this deed, Satyavati became a partner to the extent of 4 Annas share out of 16 Annas, which had been previously held by her minor son Shashi Kumar.
Shashi Kumar under the deed of partnership of May 19, 1949 was entitled to the share of profits to the extent of four Annas in a rupee and was not liable for the losses which were to be borne by the other five partners.
Satyavati became entitled under the deed of October 24, 1949 not only to the share of profit to the extent of 4 Annas in a rupee but also became liable to share losses to that extent.
The other circumstance relied upon by the High Court was resolution dated January 21, 1950 passed by the Board of Directors of the defendant company.
That meeting was presided over by Shivratan G. Mohatta, partner of the plaintiff firm.
In that resolution there was reference to partnership deeds dated May 19, 1949 and October 24, 1949 which had been received along with letter dated December 1, 1949 from Mohatta Brothers.
The Board of Directors took note of the changes mentioned in the above two partnership deeds and agreed to accept the partners therein mentioned.
The third circumstance relied upon by the High Court is letter dated August 1, which was sent on behalf of the plaintiff firm, Mohatta Brothers, for the purpose of tendering resignation as Secretaries, Treasurers and Agents of the defendant company.
This letter was signed, besides the other partners, by Satyavati.
There was, however, no indication in the letter as to whether Satyavati signed it in her capacity as a partner or as the guardian of her minor son Shashi Kumar.
As against the circumstances relied upon by the High Court, we find that in the register relating to the registration of firms kept under the Indian Partnership Act, an entry was made on May 5, 1952 relating to the registration of the plaintiff firm.
The above entry was plainly in pursuance of application filed on behalf of the plaintiff firm shortly before the making of that entry.
The above entry shows that the position taken up on behalf of the plaintiff firm even in the year 1952 was that there were only five partners of the plaintiff firm and that in addition to that, Shashi Kumar minor was admitted to the benefit of partnership.
The entry thus reveals that even in the year 1952 the stand of the partners of the plaintiff firm was that Satyavati was not a partner of the plaintiff firm and that it was her minor son 1029 Shashi Kumar who was entitled to share in the profits of the partnership.
This entry would be inexplicable if Satyavati had become a partner of the plaintiff firm with effect from October 24, 1949.
Another circumstance which goes to show that Satyavati did not become a partner of the plaintiff firm is the entry in the registers of the defendant company.
According to section 87 of the Indian Companies Act 1913, which was the Act in force at the relevant time, every company shall keep inter alia at its registered office a register d managing agents containing with respect to each of them the following particulars, that is to say, in the case of a firm, the full name, address and nationality of each partner, and the date on which each became a partner.
The entry which was made in the register of the defendant company regarding the partners of its managing agents showed that after April 1, 1949 there were five partners besides Shashi Kumar minor under the guardianship of his mother Satyavati, of the firm of the managing agents Mohatta Brothers.
Although the above entry was made on October 6, 1949, no subsequent entry was made there after showing Satyavati as partner of the firm of Mohatta Brothers.
Had Satyavati in fact become a partner since October 24, 1949 of Mohatta Brothers, it seems unlikely that an entry to that effect would Not be made in the register of the defendant company.
It may also be mentioned in the above context that return has to be sent to the Registrar of Firms under section 87 regarding any change in the particulars required to be contained in the register.
Failure to comply with the above directions entailed imposition of fine.
The third significant circumstance which tends to show that Satyavati despite the execution of the deed of partnership dated October 24, 1949 did not become a partner of the plaintiff firm is evidenced by applications in connection with the registration of that firm which were presented to the income tax authorities under section 26A of the Indian Income tax Act, to 286 are the applications which were filed on behalf of the plaintiff firm for the years 1949 50 to 1956 57.
In all these applications, Shashi Kumar minor under the guardianship of Satyavati was shown entitled to 4 Annas share in a rupee in the plaintiff firm.
Satyavati was not shown in any of these applications as partner of the plaintiff firm.
All these applications which were signed by Satyavati clearly go to show that during these years she did not claim herself to be partner of the plaintiff firm.
on the contrary, she acknowledged that it was her minor son Shashi Kumar who was entitled to 4 Annas share in the profits of the partnership.
Documentary evidence which has been brought on the record, in our opinion, clearly lends support to the statement of Shivratan (PW 1) that partnership deed dated`October 24, 1949 was not acted upon and that Satyavati did not become a partner of the plaintiff firm.
Jivan Das PW, who was an employee or the defendant company, has likewise deposed that Satyavati was never a partner of Mohatta Brothers.
During the hearing of the appeal, affidavit of Satyavati has been filed stating that she was never a partner of Mohatta Brothers and it 1030 was her son Shashi Kumar who was at all material times admitted to the benefit of the partnership.
Mr. Bhatt has objected to this Court taking notice of the contents of the affidavit of Satyavati including her disclaimer of any interest in the plaintiff firm.
In this respect we are of the view that even without the above affidavit, the material on the record clearly goes to show that Satyavati was not a partner of the plaintiff firm.
In addition to what has been pointed out, we find that in the statement of accounts of the plaintiff firm it is Shashi Kumar and not Satyavati who is shown to have 4 Annas share in the plaintiff firm.
Entries show that Shashi Kumar shared the profits as well as the losses in that proportion.
The significant thing which emerges from the account books is that Satyavati was not shown as the person entitled to 4 Annas share in the partnership firm.
Soon after the present suit had been filed, on application filed on behalf of the defendants under order XXX, Rule 2 of the Code of Civil Procedure, names of the partners of the plaintiff firm were declared on behalf of the plaintiff firm.
In the declaration the name of Satyavati was not mentioned as one of the partners of the plaintiff firm.
The question as to who should share the profits of the plaintiff firm and should be otherwise entitled to its assets is essentially a matter for the partners of the plaintiff firm.
The facts of the case disclose that the partners of the plaintiff firm have agreed between themselves that so far as the 4 Annas share in the profits and assets of the plaintiff firm are concerned, it would be Shashi Kumar who would be entitled to the same.
That position is also accepted by Satyavati in the applications in connection with the registration of the firm to the income tax authorities.
It would, in our opinion, be a wholly untenable plea for the defendant from whom money is claimed, to urge that even though Satyavati as well as the other partners claim that it is not she but her son Shashi Kumar who is entitled to 4 Annas share in the partnership, the court should hold that it is Satyavati who is entitled to that share.
The distinction between a plaintiff firm and a defendant firm in the above context should not be lost sight of.
So far as a defendant firm against whom a suit for recovery of money has been filed is concerned, it would be open to the plaintiff to prove that a person is a partner of the defendant firm despite the denial of that fact by that person as well as the other partners of the defendant firm.
The reason for that is that a creditor of a defendant firm can, except in some cases to which it is not necessary to refer, also proceed against the personal assets of each and every partner.
Such a consideration does not hold good when the dispute relates to the question as to who are the partners of the plaintiff firm.
It has been mentioned above that Shivratan stated in the course of his deposition that partnership deed dated October 24, 1949 had not been acted upon.
This statement is against the pecuniary interest of Shivratan.
It is plain that if Satyavati were a partner of the plaintiff firm, Shivratan and other partners would have to bear losses to the extent of 12 Annas in a rupee.
As against that, if Shashi Kumar be entitled to share profits to the extent of 4 Annas in a rupee and be not 1031 liable for the losses, in such an event Shivratan and other partners A would have to bear the losses to the full extent of 16 Annas in a rupee.
If despite that fact, Shivratan has deposed that Satayvati did not be come a partner of the plaintiff firm and the deed of partnership dated October 24, 1949 was not acted upon, his statement in this respect should not, in our view, be rejected, especially when there is over r whelming documentary evidence which lends support to the above statement.
The entire course of dealings shows that despite the execution of the deed of partnership dated October 24, 1949, the said partnership deed was not acted upon and the relations between the partners of the plaintiff firm continued to be governed by the deed of partnership dated May 19, 1949 according to which it was not Satyavati but her son Shashi Kumar who was entitled to four Annas share in the partnership.
The question, to which a reference has been made in the course of arguments, as to when it was decided not to act upon the deed of partnership dated October 24, 1949 is hardly of much importance, the material thing is that the said deed was not given effect to or acted upon by the parties concerned.
The firm which came into existence as per deed of partnership dated May 19, 1949 was admittedly registered under the Indian Partnership Act and its partners were shown in the Register of Firms.
Looking to all the facts we are of the opinion that the trial court took a correct view of the matter in so far as it held that Satyavati had not become a partner of the plaintiff firm and that the deed of partner ship dated October 24, 1949 had not been acted upon.
The High Court, in our opinion, was in error in reversing that finding of the trial court.
In view of this conclusion of ours, it is not necessary to go into the legal question as to, what should be the proper construction of section 69(2) of the Indian Partnership Act.
Learned counsel for the parties are agreed that such question would arise only in case we had marked the finding of the High Court that Satyavati had become a prtner of the plaintiff firm and that the deed of partnership dated October 24, 1949 had been acted upon.
F The High Court did not deal with the merits of the cross appeals filed by the parties in view of its finding on the point as to whether Satyavati had become partner of the plaintiff firm and the construction it placed upon section 69(2) of the Indian Partnership Act.
In the light of the conclusion we have arrived at, it becomes essential to remand the matter to the High Court so that the cross appeals filed by the parties may be disposed of on merits.
We accordingly accept the appeals, set aside the judgment of the High Court and remand the case to it for disposal of the appeals filed by the parties on merits Looking to all the circumstances, we leave the parties to bear their own costs of these appeals.
As the matter has been pending for a long time, the High Court may dispose of the appeals at an early date.
V.P.S. Appeals allowed.
[/INST]The appellant, a registered partnership firm, was the managing agent of (he respondent.
After submitting its resignation to the board of directors of the respondent company, the appellant filed a suit claiming a sum of money in accordance with an agreed scheme.
The appellant firm consisted of 5 partners with effect from April 1, 1949, and in addition, a minor was entitled to a 4 anna share in the profits of the partnership but was not liable for the losses.
The minor was represented by his mother as guardian.
On October 24, 1949, another partnership deed was executed wherein the mother was shown as a partner of the appellant firm with a 4 anna share and the minor 's name was omitted.
The respondent contended that the suit was not maintainable.
because the constitution of the old firm had been changed on October 24, 1949, and that the newly constituted firm consisting of 6 partners had not been registered.
The trial court held that the new partnership deed was not acted upon and decreed the suit for a part of the amount claimed.
There were appeals by both sides.
The High Court disagreed with the finding of the trial court that the later partnership deed had not been acted upon and held that the mandatory condition of section 69(2), Indian Partnership Act, was not fulfilled as the name Of the mother.
who was a partner in the reconstituted firm and in whose favour cause of action had accrued, was not shown in the register of firms, and that this defect was fatal to the suit.
Allowing the appellant 's appeal to this Court and remanding the appeal to the High Court for disposal on merits, ^ HELD: The trial court took the correct view of the matter in so far as it held that the later partnership deed was not acted upon and that the mother did not become a partner of the appellant firm.
[1028B] (1) The question as to when it was decided not to act upon the later deed is not material.
The evidence of one of the partners of the appellant firm that it was not acted upon and that the mother was not a partner is admissible and is fully corroborated by the documentary evidence.
It is a statement made by him against his own Pecuniary interest, because, if the mother was a partner, the loss of the other partners would extend only to 12 anna share in the rupee; whereas if she was not a partner then they would have to bear losses to the full extent of 16 annas in the rupee.
[1029G H; 1030H 1031D] (2) In the register relating to the registration of firms kept under the Indian Partnership Act, an entry relating to the registration of the appellant firm dated May 5, 1952.
reveals that even in the year 1952, the stand of the partners of the appellant firm was that the mother was not a partner and that it was only her minor son who was entitled to a share in the profits of the partnership.
[1028G 1029A] (3) In the statement of accounts of the appellant firm it is only the minor that is shown to have a 4 anna share and not his mother.
[1030B C] (4) Applications in connection with the registration of that firm were pre rented to the Income Tax Authorities under section 26A, Indian Income Tax Act, 1922.
All there applications were signed by the mother and they show that the mother never claimed to be a partner of the appellant firm and that, on the contrary.
she acknowledged that it was her minor son who was entitled to the 4 anna share in the profits.
[1029E G] 1023 (5) The directors of the respondent company had passed a resolution in 1950 referring to the two partnership deeds.
But the entry which was made in the register of the respondent company regarding the partners of its managing agents as required by section 87, Indian Companies Act, 1913, shows that after April 1, 1949, there were only 5 partners, besides the minor under the guardianship of his mother of the appellant firm.
If the mother had become a partner since October 24, 1949, it is unlikely that an entry to that effect would not have been made in the register of the defendant company, because, under section 87, a return has to be sent to the Registrar of Firms regarding any change in the particulars required to be contained in the register and non compliance with the requirement would entail imposition of fine.
[1029A E] (6) The letter of resignation sent by the appellant firm was signed by the mother also, but there was no indication whether she signed in her capacity as partner or as the guardian of her minor son.
[1028F G] (7) Soon after the presentation of the suit, on an application under order XXX, r. 2, C.P.C., filed by the respondents, the appellant firm declared the names of its partners and the declaration did not show the mother as one of the partners.
The question as to who should share the profits of the appellant firm and should be otherwise entitled to its assets is essentially a matter for the partners of that firm.
Unlike the case of a defendant firm from which money is claimed where each partner may be personally liable, in the case of the plaintiff (appellant) firm claiming money, it would be a wholly untenable plea for the defendants, from whom money is claimed, to urge that even though the mother as well as other partners claimed that it was not she but her minor son that was entitled to the 4 anna share in the partnership, the Court should hold that it was the mother who was entitled to that share.
[1030C G]
</s>
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<s>[INST] Summarize the judgementCivil Appeal No. 626 of 1982.
Appeal by Special leave from the Judgment and Order dated the 24th November, 1981 of the Delhi High Court in Civil Revision No. 854 of 1981.
A. Subba Rao for the Appellant.
R.K. Jain and P.K Jain for the Respondent.
The Judgment of the Court was delivered by MADON, J.
This Appeal by Special Leave granted by this Court is directed against the judgment and order of the High Court of Delhi dismissing the revision petition under section 25B (8) of the Delhi Rent Control Act, 1958 (Act No. 59 of 1958) (hereinafter for the sake of brevity referred to as 'the Act '), filed by the Appellant against an order of eviction passed against him by the Rent Controller, Delhi, on an application filed by the Respondent on the ground specified in section 14A (1) of the Act.
The Appellant was the tenant of the Respondent in respect of premises situate at 3474, Gali` Kartar Singh, Subzi Mandi, Delhi, consisting of one room and two tin shedsata rent of Rs. 10.50 per month excluding water, electricity and other charges Prior to January 1975, the Respondent was an employee in the Posts and Telegraphs.
Audit and Accounts Department of the Government of India, and in January 1975 he was sent on deputation to the Union Public Service Commission.
He retired on May 1, 1978 During the course of his service, in October, 1972, the Respondent was allotted Government residential accommodation at Timarpur, Delhi, by the Directorate of Estates, Government of India.
The Respondent occupied the said accommodation from November 1, 1972.
By a general order issued by the Ministry of Works and Housing in the form of an office memorandum, namely, O.M No, 12031 (1)/ 74 Pol.
II dated September 9, 1975, and subsequently clarified by another order, namely, O.M. No. 12031 (1)/74 Pol.
II dated December 12, 1975, the Government of India directed that all Government servants who had their own dwelling houses at the place of posting within the limits of any local or adjoining muni 1028 cipality should vacate the Government accommodation allotted to them within three months from October 1, 1975, or in default to pay market rent in respect thereof.
Consequently the Respondent was required to vacate the Government accommodation allotted to him by December 31, 1975, or to pay the market rent in respect thereof with effect from January 1, 1976.
The Respondent, therefore, vacated the Government accommodation in his occupation on December 27, 1975, and went to reside in other premises belonging to him adjoining the premises let to the Appellant.
Thereafter, on May 17, 1976, the Respondent filed an application under section 25B of the Act on the ground specified in section 14A (1) thereof, being Suit No. E 798 of 1976.
During the pendency of the said eviction application, by a special order dated December 24, 1975, but signed on September 25, 1976, the Respondent was given notice that if he failed to vacate the said Government accommodation in his occupation by December 31, 1975, he would be charged market rent with effect from January 1, 1976, at the rate fixed by the Government from time to time.
After the summons had been duly served on him, the Appellant filed an affidavit stating the grounds on which he sought to contest the said eviction application and obtained leave from the Rent Controller, Delhi, to contest the said application.
A number of defences were taken by the Appellant, all of which were negatived by the Rent Controller.
The Rent Controller considered the accommodation in the respective occupation of the parties and held that the Respondent 's family consisted of himself, his wife, his, married sons and their wives, eight grand children and two married daughters with their children and that it could not be said that the premises occupied by the Respondent constituted reasonably suitable residential accommodation.
The Rent Controller further held that section 14A (1) of the Act did not contain a condition that the Government servant who made an application under section 14A (1) should not be in possession of reasonably suitable alternative accommodation as was the case under clause (e) of the proviso to sub section (1) of section 14 of the Act and that even if such a factor were to be taken into consideration, it could not be said that the Respondent, was in occupation of reasonably suitable alternative accommodation.
Accordingly, on August 1, 1981, the Rent Controller passed an order of eviction against the Appellant and directed it not to be executed for a period of two months.
The Rent Controller directed the parties to bear their own costs of the said eviction application.
The Appellant thereupon filed in the High Court of Delhi a 1029 revision petition under section 25B (8) of the Act The said revision petition was dismissed on November 24, 1981.
It is against this judgment and order of the Delhi High Court that the present Appeal by Special Leave has been filed by the Appellant.
The first contention raised on behalf of the Appellant at the hearing of this Appeal was that the Respondent was not entitled to rely upon the said special order dated December 25, 1975, inasmuch as it was signed on September 25, 1976, and the fact that it was signed nine months later than the date it bears clearly showed that the Respondent had manoeuvred to obtain this order.
In our opinion, the said special order dated December 24, 1975, is irrelevant inasmuch as the foundation of the Respondent 's said eviction application was not the said special order but the said general order dated September 9, 1975, as clarified by the said order dated December 12, 1975.
We may also mention here that the Government policy as embodied in the said general order and its clarification has been modified from time to time.
We are, however, not concerned in this Appeal with any of the subsequent modifications of the said policy.
The next point which was urged before us and which requires our serious consideration is that the Respondent 's said eviction application was not maintainable.
The maintainability of the said eviction application was impugned on two grounds: (1) the Respondent was not in occupation of the Government accommodation allotted to him on the date when he filed his application, and (2) on the date when he filed his application, the Respondent was already residing in premises belonging to him.
In order to test the correctness of these contentions, it is necessary to refer to the relevant provisions of the Act.
As the long title of the Act shows that it is "An Act to provide for the control of rents and evictions and of rates of hotels and lodging houses, and for the lease of vacant premises to Government, in certain areas in the Union Territory of Delhi. ' Under section 14 (1) of the Act a landlord is disentitled from obtaining possession of any premises let out by him except on one of the grounds set out in the proviso to that sub section.
The relevant provisions of the said section 14 (1) are as follows: " 14.
Protection of tenant against eviction.
(1) Notwithstanding anything to the contrary contain 1030 ed 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: 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: x x x x x (e) that the premises let for residential purposes 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 land lord or such person has no other reasonably suitable residential accommodation; x x x x x (6) Where a landlord has acquired any premises by transfer, no application for the recovery of possession of such premises shall lie under sub section (l) on the ground specified in clause (e) of the proviso thereto, unless a period of five years has elapsed from the date of the acquisition.
x x x x x (7) Where an order for the recovery of possession of any premises is made on the ground specified in clause (e) of the proviso to sub section (1), the landlord shall not be entitled to obtain possession thereof before the expiration of a period of six months from the date of the order.
The right of a landlord to recover possession on the ground specified in clause (e) of the proviso to section 14 (1) of tho Act is thus circumscribed by three restrictions: (1) the landlord of the person for whose benefit the premises are held should not have other reasonably suitable residential accommodation; (2) if the premises of which the landlord desires to recover possession have been acquired by him by transfer, no application for the recovery 1031 of such premises can be filed unless a period of five years has elapsed from the date of the acquisition of such premises; and (3) if the landlord obtains an order for the recovery of possession of the premises, he is not entitled to obtain possession of such premises before the expiration of a period of six months from the date of the order or, in other words, the tenant is statutorily given a period of six months to vacate the premises.
Section 35 of the Act provides for appointment of Controllers and Additional Controllers.
Section 37 of the Act prescribes the procedure to be followed by the Controller which expression, under clause (b) of section 2, includes an Additional Controller.
Under section 37 no order which prejudicially affects any person is to be made by the Controller without giving him a reasonable opportunity of showing cause against the order proposed to be made and until his objections, if any, and any evidence he may produce in support of the same have been considered by the Controller.
The Controller is to follow as far as may be the practice and procedure of a Court of Small Causes, including the recording of evidence, while holding an inquiry in any proceeding before him.
Under section 38 an appeal lies to the Rent Control Tribunal from every order made by the Controller under the Act, and a second appeal from an order made by the Tribunal lies to the High Court if the appeal involves a substantial question of law.
On December 1, 1975, the President of India promulgated the Delhi Rent Control (Amendment) Ordinance, 1975 (Ord.
No. 24 of 1975).
The said Ordinance was repealed and replaced by the Delhi Rent Control (Amendment) Act, 1976 (Act No. 18 of 1976).
The said Amendment Act came into force with retrospective effect from December 1, 1975, being the date of the said Ordinance.
By the said Ordinance and the said Amendment Act which replaced it, the definition of 'tenant ' in clause (1) of section 2 was substituted and a new section, namely, section 14A, and a new Chapter IIIA, were inserted in the Act.
Section 14A(1) provides as follows: 14"A(1) Right to recover immediate possession of premises to accrue to certain persons.
(1) Where a landlord who, being a person in occupation of any residential premises allotted to him by the Central Government or any local authority is required, by, or in pursuance of, any general or special order made by that Government or authority, to vacate such residential 1032 accommodation, or in default, to incur certain obligations, on the ground that he owns, in the Union Territory of Delhi, a residential accommodation either in his own name or in the name of his wife or dependent child, there shall accrue, on and from the date of such order, to such land lord, notwithstanding anything contained elsewhere in this Act or in any other law for the time being in force or in any contract (whether express or implied), custom or usage to the contrary, a right to recover immediately possession of any premises let out by him: Provided that nothing in this section shall be construed as conferring a right on a landlord owning, in the Union territory of Delhi, two or more dwelling houses, whether in his own name or in the name of his wife or dependent child, to recover the possession of more than one dwelling house and it shall be lawful for such landlord to indicate the dwelling house, possession of which he intends to recover." Chapter IIIA is entitled 'Summary Trial of Certain Applications '.
It consists of three sections, namely sections 25A, 25B and 25C. Section 25A provides that the provisions of Chapter IIlA or any rule made thereunder shall have effect notwithstanding anything inconsistent therewith contained elsewhere in the Act or in any other law for the time being in force.
Section 25B prescribes, as its marginal heading shows, a special procedure for the disposal of applications for eviction on the ground of bona fide requirement '.
Under section 25B every application by a landlord for the recovery of possession of and premises on the ground specified in clause (e) of the proviso to section 14(1), or under section 14A, is to be dealt with in accordance with the special procedure prescribed by that section.
The special procedure which has been prescribed for these cases is that on an application being filed on either of these two grounds, the Controller is to issue a summons in the form specified in the Third Schedule to the Act.
This summons is to call upon the tenant to appear before the Controller within fifteen days of the service of the summons and to obtain leave of the Controller to contest the application for eviction, and it intimates to him that in default of his doing so the applicant would be entitled after expiry of the said period of fifteen days to obtain an order for his eviction.
Leave to appear and to contest the application is to be obtained by the tenant on an application made to the Controller 1033 supported by an affidavit.
This affidavit is to disclose such facts A as would disentitle the landlord from obtaining an order for the recovery of possession of the premises on the ground specified in clause (e) of the proviso to section 14(1) or under section 14A.
When leave is granted, to the tenant to contest the application, the Controller is to commence the hearing of the application as early as practicable.
In holding such an inquiry, the Controller is to follow the practice and procedure of a Court of Small Causes, including the recording of evidence.
No appeal or second appeal is to lie against an order for the recovery of possession of any premises made by the Controller in accordance with this special procedure.
The High Court is, however, given the right to call for the records of the case for the purpose of satisfying itself that an order made by the Controller under this section is according to law and to pass such order in respect thereto as it thinks fit.
Section 25C provides as follows: "25C. Act to have effect in a modified form in relation to certain persons: (1) Nothing contained in sub section (6) of section 14 shall apply to a landlord who, being a person in occupation of any residential premises allotted to him by the Central Government or any local authority is required by, or in pursuance of, an order made by that Government or authority to vacate such residential accommodation, or, in default, to incur certain obligations, on the ground that he owns a residential accommodation either in his own name or in the name of his wife or dependent child in the Union Territory of Delhi.
(2) In the case of a landlord who, being a person of the category specified in sub section (1), has obtained, on the ground specified in clause (e) of the proviso to sub section (1) of section 14, or under section 14A, an order for the eviction of a tenant from any premises, the provisions of sub section (7) of section 14 shall have affect as if for the words "six months," occurring therein, the words "two months" were substituted.
" It is now well settled that though the Statement of Objects and Reasons accompanying a legislative Bill cannot be used to determine the true meaning and effect of the substantive provisions of 1034 a statute, it is permissible to refer to the Statement of Objects and Reasons accompanying a Bill for the purpose of understanding the background, the antecedent state of affairs, the surrounding circumstances in relation to the statute, and the evil which the statute sought to remedy.
It will, therefore, be convenient to reproduce at this stage the Statement of Objects and reasons accompanying Bill No. XII of 1976 which when enacted became the Delhi Rent Control (Amendment) Act, 1976.
The said Statement of Objects and Reasons is as follows: "There has been a persistent demand for amendments to the Delhi Rent Control Act, 1958 with a view to confer ring a right of tenancy on certain heirs/successors of a deceased statutory tenant so that they may be protected from eviction by landlords and also for simplifying the procedure for eviction of tenants in case the landlord requires the premises bonafide for his personal occupation.
Further, Government decided on the 9th September, 1975 that a person who owns his own house in his place of work should vacate the Government accommodation allotted to him before the 31st December, 1975.
Government considered that in the circumstances, the Act required to be amended urgently.
As the Parliament was not in session, the Delhi Rent Control (Amendment) Ordinance, 1975 was promulgated on the 1st December, 1975.
The Bill seeks to replace the said Ordinance.
" The aforesaid general order of the Government was issued on September 9, 1975.
The said Ordinance was promulgated on December 1, 1975.
This proximity of dates and the provisions of section 14A(1) make it clear that a new ground of eviction was provided by section 14A(1) in order to enable a person who has to vacate the Government accommodation allotted to him by December 31, 1975, to recover possession of premises let by him.
The fact that section 14A was inserted in view of the said Government order dated September 9, 1975, has also been expressly stated in the Statement of Objects and Reasons accompanying the said Bill No. XII of 1976.
This object is further brought out by the provisions 1035 of section 25B which was inserted in the Act by the said Ordinance and re enacted by the said Amendment Act.
As mentioned earlier, by section 25B a special procedure has been prescribed for applications made on the ground specified in clause (e) of the proviso to section 14(1) or under section 14A. By the special procedure provided in section 25B the delay normally involved in following the procedure under section 37 of the Act, is sought co be cut down and the tenant is made to apply and obtain leave to contest the eviction application.
Further, the tenant 's right of appeal and second appeal have been taken away and the only remedy left to him against an order of eviction passed by the Controller under section 25B is to approach the High Court in revision.
Thus, the object underlying section 14A is that a person who is compelled to vacate residential accommodation allotted to him on the ground that he owns other residential premises in the Union Territory of Delhi either in his own name or in the name of wife or dependent child should not be left without a roof over his or should not be made to incur heavy financial obligation by continuing to reside in the accommodation allotted to him by paying market rent in respect thereof to tho Central Government or the local authority, as the case may be.
Turning now to the merits of tho present Appeal, it is not disputed that the premises let to the Appellant and the premises belonging to the Respondent which the Respondent occupied after giving up the Government 'accommodation allotted to him are separate premises and that each constitutes a dwelling house under the proviso to section 14A(1).
It is also not disputed that the Central Government issued the said general order dated September 9, 1975, and subsequently clarified it by another order dated December 12, 1975.
It is equally not in dispute that on the date when the respondent filed his said eviction application he was residing in premises belonging to him.
It is in the light of these admitted facts and the statutory provisions referred to above that we must now consider the question of maintainability of tho eviction application filed by the Respondent.
The first ground of challenge to the maintainability of the said eviction application is that a landlord who is not in occupation of the residential accommodation allotted to him either by the Central Government or a local authority on the date when he files an application under section 14A (1) is not entitled to maintain it.
It was submitted on behalf of the Appellant that though such a 1036 condition was not expressly provided in section 14A, it should be read into that section as being implicit in it.
We find no merit in this submission.
Admittedly, the section does not contain any such condition.
The object of section 14A (1) is to provide an additional ground of eviction to a landlord who had been allotted residential accommodation by the Central Government or a local authority and who is required by a general or special order of that Government or authority to vacate that accommodation or in default, to incur certain obligations, for example, payment of market rent, on the ground that he owns in the Union Territory of Delhi a residential accommodation either in his own name or in the name of his wife or dependent child.
Being asked to vacate on the ground that he owns his own residential accommodation, he must be in a position to move into such accommodation It is for this reason that the section expressly states that ' There shall accrue, on and from the date of such order, to such landlord a right to recover immediately possession of any premises let out by him".
To accept the contention of the Appellant would be to postpone the accrual of the right given by section 14A to the date of the filing of the application.
In order to recover possession of residential accommodation let out by him, a landlord to whom residential accommodation had been allotted by the Central Government or any local authority cannot be obliged to continue to reside in such accommodation by paying market rent in respect thereof.
On the passing of a general or special order of the nature specified in section 14A (1) the landlord may vacate the accommodation allotted to him and find accommodation for himself elsewhere, either by renting premises or in a hostel, hotel, lodging house, boarding house or with a relative.
He is not thereby debarred from filing an application under section 14A(1).
Does the same position, however, prevail when on the passing of such general or special order the landlord vacates the accommodation allotted to him and moves into other premises owned by him either in his own name or in the name of his wife or dependent child ? The consideration of this question brings us to the second ground of challenge to the maintainability of the Respondent 's said eviction application.
This is a more formidable challenge and in our opinion, it must succeed.
It was urged by Mr. R.K. Jain on behalf of the Respondent that there was no such restriction provided in section 14A (1).
We are unable to accept this submission.
The object underlying the Act and the subsequent enactment of section 14A would be defeated, if this contention were to be accepted.
The Act, like other Rent Acts, has been passed to secure tenants 1037 in their accommodation at a reasonable rent.
This is apparent from the long title and the provisions of the Act.
Various States had enacted Rent Acts in order to prevent landlords from profiteering from the situation brought about as a result of increase in population and shortage of accommodation.
By these Rent Acts, the right which a landlord has under the , to recover possession of the property let by him to a tenant on the expiry of the lease or on determination of the tenancy has been taken away and the landlord can recover possession of such premises only on one of the grounds provided by the particular Rent Act.
To permit an allottee of residential accommodation belonging to the Central Government or a local authority who owns a residential accommodation either in his own name or in the name of his wife or dependent child to file an application to evict a tenant from other premises belonging to him which he has let out would be to permit him to move into one of the premises owned by him and to let out the other premises and thus to profiteer from the general or special order mentioned in section l4A(1).
That he cannot do so is clear from the proviso to section 14A (1).
Under the said proviso, if an allottee of such accommodation owns in the Union Territory of Delhi two or more dwelling houses, either in his own name or in the name of his wife or dependent child, which he has let out, he cannot recover possession of more than one of these dwelling houses but he has to select one of them and file an application under section 14A (1) in respect thereof only.
If such a landlord cannot file an application under section 14A (1) when he owns two dwelling houses which have been let out by him, to recover possession of both these dwelling houses but can do so only in respect of one of them, he equally cannot file an application under section 14A(1) when he has let out one of such dwelling houses and the other dwelling house is available to him for his residence or when he has already moved into the other dwelling house.
Can such a person, however, file an application under section 14A (1) on the ground that a dwelling house owned by him either in his own name or in the name of his wife or dependent child and available for his residence is not reasonably suitable for his residential accommodation? The answer to this question must also be in the negative.
Section 14A does not contain a condition that a person who has or had to vacate the accommodation allotted to him by the Central Government or any local authority by reason of a general or special order mentioned in section 14A (1) has "no other reasonably suitable residential accommodation" as clause 1038 (e) of the proviso to section 14 (1) does.
Under section 14A (1) such allottee should have no other dwelling house which he owns either in his own name or in the name of his wife or dependent child for him to move into.
If such dwelling house is not adequate or suitable for his residence, he must proceed under clause (e) of the proviso to section 14 (1).
That this is the only remedy open to him is clear from the provisions of section 25C.
As we have seen, a landlord who desires to recover possession of premises on the ground specified in the said clause (e), which premises have been acquired by him by transfer, he cannot under clause (6) of section 14 file an application under the said clause (e) for a period of five years from the date of the acquisition of those premises by him.
Further, such an applicant if he succeeds in getting an order of eviction is not entitled to obtain possession of the premises for a period of six months from the date of the eviction order.
In the case of a landlord referred to in section 14A (1) these two conditions have been relaxed by section 25C.
Under section 25C(1) even though the premises which have been let out by such landlord have been acquired by him by transfer, clause (6) of section 14 does not apply to him and he does not have to wait for a period of five years or for any length of time before filing an application for the recovery of possession of such premises Further, the period of six months during which the order of eviction cannot be executed under sub section (7) of section 14 is reduced by section 25C (2) in the case of such a landlord to two months.
These provisions clearly show that if a landlord referred to in section 14A(1) has other residential accommodation of his own either in his own name or in the name of his wife or dependent child which accommodation is not reasonably suitable for his residence cannot proceed under section 14A (1) but must file an application on the ground specified in clause (e) of the proviso to section 14 (1).
The Rent Controller was, therefore, in error in considering the respective needs of the parties and the suitability of accommodation occupied by the Respondent.
To summarize our conclusions: (1) It is not necessary that a person in occupation of residential premises allotted to him by the Central Government or a local authority who is required by or in pursuance of a general or special order made by that by that Government or authority to vacate such accommodation or, in default, to incur certain obligations, such as payment of market rent, on the ground that he owns in the 1039 Union Territory of Delhi a residential accommodation either in his own name or in the name of his wife or dependent child should be in occupation of the accommodation allotted to him on the date when he files an eviction application under section 14A (1) of the Delhi Rent Control Act, 1958, to recover possession of the residential premises which he so own and which has been let by him.
(2) If such person has, however, other premises which he owns either in his own name or in the name of his wife or dependent child which are available to him for his residential accommodation or into which he has already moved, he cannot maintain an application under section 14A (1) of the Act.
(3) Even if the other premises owned by him either in his own name or in the name of his wife or dependent child are not reasonably suitable for his accommodation, he cannot maintain an application under section 14A (1) but must file an application on the ground specified in clause (e) of the proviso to sub section (1) of section 14 of the Act.
In the result, this Appeal must succeed.
We accordingly allow this Appeal and reverse the order of the Delhi High Court dismissing Civil Revision Petition No. 854 of 1981 filed by the Appellant and allow the said revision petition and dismiss the Eviction Suit No. 798 of 1976 filed by the Respondent in the Court of the Rent Controller, Delhi.
The Respondent will pay to the Appellant the costs if this Appeal which we quantify at Rs. 800.
N.V.K. Appeal allowed.
[/INST]Standing Order 31 of the 1st Respondent/Public Sector Undertaking prescribed a detailed procedure for dealing with cases of misconduct; and for imposing major penalty, the employer had to draw up a chargesheet and give an opportunity to the delinquent workman to make his representation within 7 days.
If the allegations were controverted, an enquiry had to be held by an officer to be nominated by the management and in such an enquiry reasonable opportunity of explaining and defending the alleged misconduct had to be given to the workman.
Suspension of the delinquent workman pending enquiry was also permitted.
At the end of the enquiry, if the charges were held proved, and it was provisionally decided to impose a major penalty, tho delinquent workman bad to be afforded a further reasonable opportunity to represent why the penalty should not be imposed on him.
Standing Order 32 provided for a special procedure in case of a workman was convicted for a criminal offence in a court of law or where the General Manager was satisfied for reasons to be recorded in writing that it was inexpedient or against the interests of security to continue to employ the workmen ', viz., the workman could be removed or dismissed from service without following the procedure laid down in Standing Order No. 31.
429 The appellant an Assistant in the 1st Respondent undertaking was A removed from service on the ground that it was no longer expedient to employ him.
The management dispensed with the departmental enquiry, after looking into the secret report of one of their officers that the appellant had misbehaved with the wife of an employee and that a complaint in respect thereof had been lodged with the police.
In the reference to the Industrial Tribunal, the Tribunal held that as the employer dispensed with the disciplinary enquiry in exercise of the power conferred by Standing Order 32, it could not be said that the dismissal from service was not justified, and that if there were allegations of misconduct, the employer was quite competent to pass an order of removal from service without holding any enquiry any in view of the provisions contained in Standing Order 32, and rejected the reference.
Allowing the appeal, by the employee to this Court, ^ HELD: 1.
The reasons for dispensing with the enquiry do not spell out what was the nature of the misconduct alleged to have been committed by the appellant and what prompted the General Manager to dispense with the enquiry.
[437D] 2.
As there was no justification for dispensing with the enquiry, imposition of penaly of dismissal without the disciplinary enquiry as contemplated by Standing Order 31 is illegal and invalid.
[437F] 3 The respondent shall recall and cancel the order dated August 24, 1970 removing the appellant from service and reinstate him and on the same day the appellant shall tender resignation of his post which shall be accepted by the respondent.
The respondent shall pay as and by way of back wages and future wages, a sum of Rs. l.5 lakhs to the appellant within 2 months which shall be spread over from year to year commencing from the date of removal from service.
The appellant shall be entitled to relief under Section 89 of the Income tax Act, 1961 for which he shall make the necessary application to the appropriate authority.
who would consider granting of relief.
[438C D;F] F 4.
Where an order casts a stigma or affects livelihood, before making the order, principles of natural justice in a reasonable opportunity to present one s case and controvert the adverse evidence must have full play.
Even he Constitution which permits dispensing with the inquiry under Article 311 (2) a safeguard is introduced that the concerned authority must specify reasons for its decision why it was not reasonably practicable to hold the inquiry.
[435 A B] 5.
(i) Standing Order 32, nowhere obligates the General Manager to record reasons for dispensing with the inquiry as prescribed by Standing Order 31.
On the contrary, the language of Standing Order 32 enjoins a duty upon the General Manager to record reasons for his satisfaction why it was inexpedient ar against the interest of the security of the State to continue to employ the workman.
Ressons for dispensing with the enquiry an reasons for not continuing to employ the workman stand, wholly apart from each other.
[435C D] 430 (ii) A Standing Order which confers such arbitrary.
uncanalised and drastic power to dismiss an employee by merely stating that it is inexpedient or against the interest of security to continue to employ the workman is violative of the basis c requirement of natural justice, as tho General Manger can impose penalty of such a drastic nature as to affect the livelihood and put a stigma on the character of the workman without recording reasons why disciplinary enquiry is dispensed with and, what was the misconduct 13 alleged against the employee.
[435D E] 6 When the decision of the employer to dispense with the enquiry is questioned, the employer must be in a position to satisfy the Court that holding of the enquiry will be either counter productive or may cause such irreparable and irreversible damage which in the facts and circumstances of the case need not be suffered This minimum requirement cannot and should not be dispensed with.
[436B C] L. Michael and Anr.
vs M/s. Johnston Pumps India Ltd ; , referred to.
It is time for the 1st respondent public sector undertaking to recast Standing Order 32, and to bring it in tune with the philosophy of the Constitution failing which the vires of the said standing Order would have to be examined in an appropriate proceeding.
[438D]
</s>
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<s>[INST] Summarize the judgementWrit Petition (Crimi nal) No. 2 16 of 1989 (Under Article 32 of the Constitution of India) Surya Kant and M.C. Mehta for the Petitioner.
Anil Dev Singh, Girish Chandra, Ms. A. Subhashini and Dalveer Bhandari for the Respondent.
777 The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J.
This is a petition under Article 32 of the Constitution filed by one Madhu Mehta, who is the National Convenor of Hindustani Andolan.
This petition seeks a writ of Habeas Corpus or an appropriate direction with regard to one Shri Gyasi Ram, S/o Shri Param aged above 60 years, who, it is claimed, has been waiting decision on his Mercy Petition pending before the President of India for about 8 or 9 years.
The said Gyasi Ram was at all relevant time lodged in "DEATH CELL, CENTRAL JAIL" JHANSI having been convicted for an offence punishable under section 302 of Indian Penal Code and sentenced to death by the learned Sessions Judge, Jhansi on October 19, 1978.
It appears that Gyasi Ram was convicted and sentenced to death by the learned Sessions Judge, Jhansi on 19th October, 1978 for committing murder, which has been described by the Under Secretary (Judicial), Ministry of Home Affairs, Govt.
of India, as the 'cold blooded murder ' of a Government servant, namely, Bhagwan Singh, who was the resident of Mauranipur Tehsil, in District Jhansi, Uttar Pradesh.
There then were arrears of land revenue due from Gyasi Ram and also one Mool Chand.
For the purpose of realising the said arrears of land revenue, their property was attached by Amin Bhagwan Singh and the same was put to sale by auction.
The auction took place on 26th December, 1976 and after the auction while the said Amin was returning along with his Peon Sripat from village Kakwara after delivering the sale certificate to the auction purchaser, they were way laid by Daya Ram (son of Mool Chand) and Gyasi Ram, the convicts involved in this case.
In the evidence, it was stated that Daya Ram who was armed with pistol fired at the deceased Amin Bhagwan Singh who fell down from his cycle.
While Daya Ram held down Amin Bhagwan Singh, Gyasi Ram, the person about whom this peti tion is concerned, cut Bhagwan Singh 's throat with the sword he was carrying and inflicted other injuries also.
After this incident, both Daya Ram and Gyasi Ram, it has been stated, escaped.
Gyasi Ram was, however, arrested, tried, convicted and sentenced to death, as mentioned hereinbefore.
The death sentence was passed on Gyasi Ram by the learned Sessions Judge on 19th October, 1976.
The Allahabad High Court confirmed this death sentenced on 28th February, 1979.
This Court dismissed his Criminal Appeal No. 362/79 on 17th March, 1981.
Mercy Petition was filed by the wife of the convicted to the President of India on 18th December, 1981.
It appears that Mercy Petition has still not been disposed of.
Daya Ram had absconded and could not be put on trial along with Gyasi Ram.
It appears further that Gyasi Ram 's Mercy Petitions dated 6th October, 778 1981 and 26th November, 1981 were rejected by the Governor of Uttar Pradesh on the 26th November, 1981 and were re ceived in the Ministry of Home Affairs on the 5th December, 1981 for the consideration of the President of India.
From the affidavit filed on behalf of the Government of India, it appears that after processing the case, the matter was put up before the President of India on 21st April, 1983 for his orders on the Mercy Petitions and that the President after examining the case file, returned the file on 30th July, 1983 for further consideration.
While the Ministry of Home Affairs was processing the case of Gyasi Ram further, the intimation was received from this Court on 13th November, 1984 that Daya Ram, son of Mool Chand had also filed a Special Leave Petition against the judgment date 17th Octo ber, 1984 of the Allahabad High Court by which the sentence of death was confirmed on him.
It appears from the order of this Court dated 18th February, 1985 dismissing Daya Ram 's Special Leave Petition that this Daya Ram was the same person who was Gyasi Ram 's partner in the crime as mentioned hereinbefore.
Subsequently, .two Mercy Petitions were filed on behalf of Daya Ram which were forwarded for the consider ation of the Governor of Uttar Pradesh in the first instance by the Ministry of Home Affairs dated 9th April, 1984 and 9th August, 1985 respectively.
These still remain undisposed of.
It has been asserted on behalf of the Government of India in the half yearly return dated 8th August, 1985 submitted by the Government of Uttar Pradesh that it was reported that they had received a Mercy Petition from Daya Ram.
Thereafter, in successive half yearly reports, the last of these being dated 16th January, 1989, the State Govern ment had been saying that the Mercy Petition of Daya Ram was still under consideration.
It is the version of the Govern ment that in view of the implications of Daya Ram and Gyasi Ram in the same crime, it was considered, it is stated, that the decision on the Mercy Petition of Daya Ram by the Gover nor of Uttar Pradesh would have a direct bearing on the consideration of the Mercy Petition of Gyasi Ram by the President of India.
It was, accordingly, felt, so it is .asserted, that it was desirable to await the decision of the Governor of Uttar Pradesh on Daya Ram 's Mercy Petition.
But it was only on 18th January, 1989 that by a Wireless Message, the Central Government asked the State Government to let the Ministry of Home Affairs know the decision of the Governor on Daya Ram 's Mercy Petition and to send it immedi ately for consideration of the President of India so that the cases of Gyasi Ram and Daya Ram could be submitted together to the President.
But the Government did not move.
It is further stated that in reply to the Wireless Message of 18th January, 1989 the State Government through its letter dated 1st February, 1989 intimated that the Mercy Petition of 779 Daya Ram was still under consideration.
Thereafter, there was another request to the Chief Secretary by demi official letter of the Ministry of Home Affairs dated 3rd February, 1989 to expedite consideration of Daya Ram 's Mercy Petition.
And upon this, it is stated that by a telex message dated 15th March, 1989, the State Government had intimated that the Governor of Uttar Pradesh had rejected the Mercy Peti tion and that formal letter of State Government would fol low.
It was stated on behalf of the Government of India that Mercy Petition of Daya Ram was received by the Ministry of Home Affairs on 21st March, 1989 along with the letter.
In the affidavit, it is stated that after collecting certain further information from the Supreme Court Registry, the Ministry of Home Affairs "was now ready to process the Mercy Petitions of Gyasi Ram and Daya Ram and submit the same to the President of India for consideration".
The deponent was good enough to state in the affidavit that the delay factor would be kept in view while taking a final decision in the case of Gyasi Ram and he was fully aware of the agony of Gyasi Ram and members of his family.
It was stated that in view of the reasons stated above, it was not possible to avoid the delay.
The learned District and Sessions Judge, Jhansi had, in the meantime, visited the said convict Gyasi Ram in jail on 22nd May, 1988 and had sent a report to the Inspector Gener al of Prisons stating "Gyasi 's mental state is such that he might commit suicide by hanging his head on the iron grill of his cell if a decision on his petition is not taken soon.
If he is to be hanged, it should be done without any delay or he should be released".
The Inspector General 's Office further sent an official to Delhi to expedite the case.
Thereafter, this petition was filed for the condemned pris oner.
Gyasi Ram, until the orders of this Court passed in these proceedings on the 3rd May, 1989, was kept in the Death Cell and it is only pursuant to the orders of this Court that the prisoner was allowed to stay in the Ordinary Cell during the day time.
The petitioner moved this Court on 11th April, 1989 and the notice was issued returnable on 19th April, 1989.
Time was taken to file affidavit and the order of this Court dated 3rd May, 1989 was passed.
The matter was adjourned for three months.
Affidavits have been filed but his Mercy Petition still remains undisposed of.
The question is: what is to be done? This question of delay in these matters has been examined by this Court from time to time, and how far delay in execution of death sentence necessitates the commutation of the death sentence or re lease of the condemned prisoner, has been a matter of some controversy and debate.
In T.V. Vatheeswaran vs State of Tamil Nadu, , a bench of two learned Judges considered this 780 aspect.
Speaking for this Court, Chinnappa Reddy, J. stated in that decision that Article 21 of the Constitution enjoins that any procedure, which deprives a person of his life or liberty must be just, fair and reasonable.
It implies humane conditions of detention, preventive or punitive. 'Procedure established by law ' does not end with the pronouncement of sentence; it includes the carrying out of sentence.
Pro longed detention to await the execution of a sentence of death is an unjust, unfair and unreasonable procedure and the only way to undo the wrong is to quash the sentence of death.
Reddy, J. was of the view that the sentence of death is one thing; sentence of death followed by lengthy impris onment prior to execution is another.
A period of anguish and suffering is an inevitable consequence of sentence of death, but a prolongation of it beyond the time necessary for appeal and consideration of reprieve is not.
And it was no answer to say that the man would struggle to stay alive.
It was, therefore, found in that case that a delay exceeding two years in the execution of a sentence of death should be considered sufficient to entitle the person under sentence of death to invoke Article 21 and demand the quashing of the sentence of death.
This Court did so and substituted the sentence of imprisonment in that case.
That decision was rendered on 16th February, 1983.
The validity of that deci sion did not last long.
On 24th March, 1983, in Sher Singh & Ors.
vs The State of Punjab, ; , a bench of three learned Judges of this Court held that the prolonged delay in the execution of a death sentence is unquestionably an important consideration for determining whether the sentence should be allowed to be executed.
But no hard and fast rule that 'delay exceeding two years in the execution of a sentence of death should be considered sufficient to entitle the person under sentence of death to invoke Article 21 and demand the quashing of the sentence of death ' can be laid down as has been done in Vatheeswaran 's case (supra).
It is not necessary, therefore, to go into the aspect of this matter any more.
Chief Justice Chandrachud observed that a self imposed rule should be followed by the executive authority rigorously that every mercy petition should be disposed of within a period of three months from the date on which it was received.
Long and interminable delay in the disposal of these petitions, it was observed, are serious hurdles in the dispensation of justice and indeed, such delays tend to shake the confidence of the people in the very system of justice.
The learned Chief Justice stated that undoubtedly, the executive has the power, in appropri ate cases, to act under the aforesaid provisions but, all exercise of power is preconditioned by the duty to be fair and quick.
Delay defeats justice, it was observed.
In this background, we have to consider the reasons given in the affidavit in this case.
We have set out the 781 reasons advanced on behalf of the Government.
They are self explanatory.
These do not, in our opinion, indicate any justifiable ground for keeping the Mercy Petitions of Daya Ram and Gyasi Ram pending for such a long time.
Indeed, it is not disputed from the affidavit of the Under Secretary, Ministry of Home Affairs, Government of India that in the half yearly return dated 8th October, 1985 and thereafter in the successive half yearly returns of the Uttar Pradesh Government upto 16th January, 1989 year after year, the Mercy Petitions of Daya Ram remained unattended and undis posed of and consequently the Mercy Petition made to the President of India by Gyasi Ram was also undisposed.
The time and the manner in which the Mercy Petition has been dealt with in this case in respect of Gyasi Ram make sad reading and speak of the deplorable lack of speed and promp titude which in these matters should be there.
In the mean time, there is no denying the fact that Gyasi Ram has suf fered a great deal of mental pain and agony.
His condition has been described by the learned Sessions Judge as indicat ed hereinbefore.
Whether death sentence is the appropriate punishment for the crime of murder, cold blooded in certain cases, is another debate.
This Court in Bachan Singh vs State of Punjab; , at page 221 of the report, observed as follows: "To sum up, the question whether or not death penalty serves any penological purpose is a difficult, complex and intractable issue.
It has evoked strong, divergent views.
For the purpose of testing the constitutionality of the impugned provision as to death penalty in Section 302, IPC on the ground of reasonable ness in the light of Articles 19 and 21 of the Constitution,, it is not necessary to express any categorical opinion, one way or the other, as to which of these two antithetical views, held by the Abolitionists and Retentionists, is correct.
It is sufficient to say that the very fact that persons of reason, learning and light are rationally and deeply divided in their opinion, on this issue, is a ground among others, for rejecting the petitioners ' argument that retention of death penalty in the impugned provision is totally devoid of reason and purpose.
If, notwithstanding the view of Abolitionists to the contrary, a very large segment of people, the world over, including sociologists, legislators, jurists, judges and administrators still firmly believe in the worth and necessity of capital punish ment for the protection of society, if in the perspective of prevailing crime conditions in India, contemporary public 782 opinion channelised through the people 's representatives in Parliament, has repeatedly in the last three decades, rejected all at tempts, including the one made recently, to abolish or specifically restrict the area of death penalty, if death penalty is still a recognised legal sanction for murder or some types of murder in most of the civilised countries in the world, if the framers of the Indian Constitution were fully aware . of the existence of death penalty as punishment for murder, under the Indian Penal Code, if Thirty fifth Report and subsequent reports of the Law Commission suggesting retention of death penalty, and recommending revision of the Criminal Procedure Code and the insertion of the new sections 235(2) and 354(3) in that Code providing for pre sentence hearing and sentencing procedure on conviction for murder and other capital offences were before the Parliament and presumably considered by it when in 1972 73 it look up revision of the Code of 1898 and replaced it by the Code of Criminal Procedure, 1973, it is not possible to hold that the provision of death penalty as an alternative punishment for murder, in section 302, Penal Code is unreasonable and not in the public interest.
We would, there fore, conclude that the impugned provision in section 302, violates neither the letter nor the ethos of Article 19.
" In that decision, Bhagwati, J. (as the learned Chief Justice then was), dissented.
He held that death sentence was bad morally as well as constitutionally.
It is no longer necessary in view of the majority judgment to deal with these views in detail.
This aspect was examined in several cases and a bench of five learned Judges considered this question again in Smt.
Triveniben vs State of Gujarat, ; , where Oza, J. speaking for the majority analysed the trend and observed at p. 688 that it was not necessary to go into the jurisprudential theories of punish ment deterrent or retributive in view of what has been laid down in Bachan Singh 's case (supra) with which learned Judges therein agreed.
It is well settled now that undue long delay in execution of the sentence of death would entitle the condemned person to approach this Court or to be approached under Article 32 of the Constitution, but this Court would only examine the nature of delay caused and circumstances that ensued after sentence was finally con firmed by the judicial proces and will have no jurisdiction to reopen the conclusions reached by the Court while finally maintaining the sentence of death.
But the court is entitled and indeed obliged to 783 consider the question of inordinate delay in the light of all circumstances of the case to decide whether the execu tion of sentence should be carried out or should be altered into imprisonment for life.
No fixed period of delay can be considered to be decisive.
It has been emphasised that Article 21 is relevant in all stages.
Speedy trial in crimi nal cases though may not be fundamental right, is implicit in the broad sweep and content of Article 21.
Speedy trial is part of one 's fundamental right to life and liberty.
This principle is no less important for disposal of mercy peti tion.
It has been universally recognised that a condemned person has to suffer a degree of mental torture even though there is no physical mistreatment and no primitive torture.
See the 'observations of Shetty, J. in Triveniben 's case (supra) at p. 7 13 7 14 of the report, where it has been observed that as between funeral fire and mental worry, it is the latter which is more devastating, for funeral fire burns only the dead body while the mental worry burns the living one.
In the instant case, Gyasi Ram has suffered a great deal of mental agony for over eight years.
It is not disputed that there has been long delay.
We do not find reasons sufficiently commensurate to justify such long delay.
The convict has suffered mental agony of living under the shadow of death for long, far too long.
He should not suffer that agony any longer.
In the aforesaid facts and the circumstances of the case, therefore, we direct that the death sentence should not be carried out and the sentence imposed upon him be altered to imprisonment for life.
We order accordingly.
This Writ Petition is disposed of with the aforesaid direc tion.
Y. Lal Petition dis posed of.
[/INST]The Commissioner of Police, Ahmedabad, Respondent No. 1 therein passed an order of detention dated 23.5.1988 against Abdul Latif Abdul Wahab, petitioner 's brother under section 3(2) of the Gujarat Prevention of Anti Social Activities Act, 1985 and served the same on the detenu, while he was in jail, in pursuance of an order of remand made by the Desig nated Court, Ahmedabad in CR No. 40 of 1987.
The petitioner, detenu 's brother challenged the validity of this order on the ground, amongst others, that there has been absolute non application of mind on the part of the detaining author ity in making the order of detention.
The grounds of detention furnished to the detenu, makes mention of three criminal cases viz. Case No. 372/85, Case No. 456/87 and Case No. 2/88 pending against the detenu at P.S. Kalupur, out of which case No. 372/85 is stated to be pending in Court and the other two pending for examination.
The detaining authority acting on the basis of the said complaints apprehended that detenu 's criminal activities will adversely affect the public order because the activi ties, the weapons kept by the detenu and his associates cannot except create terror in the State of Gujarat.
The detaining authority further felt that the detenu though in jail, there are full possibilities that he may be released on bail in that offence.
It may be pointed out that in case No. 2/88, the name of the detenu does not find place in the FIR.
Likewise in case No. 372/85 aforesaid, detenu 's name is not there.
891 In case No. 456/87, registered on 16.10.87 the detenu was arrested the same day.
The case related to the seizure of a revolver from the person of detenu.
The detaining authority while issuing the order of detention against the detenu, did not at all consider the fact that the Designated Court declined to grant bail to the detenu by its order dt.
May 13, 1988.
The detaining authority also was not aware that no application for bail by detenu was filed between May 13 to May 23, 1988 i.e. when the detention order was made.
The Court in order to decide the various contentions advanced by the parties felt it necessary to consider the background as well as the various detention orders passed against the detenu.
The first in the series is an order dt.
11th September, 1984 when the Respondent No. 1 issued to the detenu a notice to show cause why he should not be externed from the boundaries of Ahmedabad and the surroundings rural areas.
In 1985 the detenu was arrested u/s 307, 143, 147, 148 & 324, I.P.C. CR case No. 37/85 wherein he was granted bail by the Sessions Judge on February 14, 1985.
On 24th March 1985, Commr. of Police passed an order of detenu 's detention.
On 6th July 1985 charge sheet in CR Case No. 37 of 1985 was submitted.
On 27th September, 1985 inquiry into the externment proceedings was completed.
On Dec. 12, 1985 the detenu surrendered and was taken into custody.
On May 26, 1986, the detenu was acquitted in that case.
The detenu was released from the jail on June 23, 1986 and as soon as he came out of the jail, an order of detention under Preven tion of Anti Social Activities Act was served on the detenu there and then and he was once again taken into custody.
It may be mentioned in this connection that on Jan. 18, 1986, the order of externment of the detenu from Ahmedabad city and rural areas of Gandhi Nagar etc. was made when the detenu was in jail.
The State Govt.
on appeal by the detenu confirmed the order of externment.
However on August 7, 1986, the Govt.
revoked the order of detention, as Advisory Board could not be constituted.
On the same day the State Govt.
passed the second order of detention under PASA and the same was served on the detenu the same day.
The detenu challenged the validity of both the externment order as also the detention order in the High Court.
The High Court re jected the petition challenging the order of detention and he filed petition for special leave in this Court.
This Court released the detenu on parole on 23.1.87 as he was to participate in municipal elections which were to take place on 25th Jan. 1987.
The detenu was released on parole on 24th Jan. 1987.
He won the election from all the wards wherefrom he had contested.
This Court on February 9, 1987 quashed the detention order and 892 directed the respondents to set the detenu at liberty.
On February 14, 1987 when the detenu went to the police station with his advocate to mark his presence as required by the earlier bail order, he was again taken into custody for breach of order of externment of 18.1.1986.
He was granted bail.
On February 15, 1987 an order of detention under section 8(a) of the National Security Act was passed against the detenu.
The detenu challenged the same but in the meantime Advisory Board released him.
On October 16, 1987, the detenu was again arrested for an incident of Feb. 14, 1986.
He applied for bail before the Designated Court which was refused.
Against that order he preferred an appeal to this Court under section 16 of the Terrorists and Disruptive Activities (Prevention) Act 1985.
This Court set aside the order of the Designated Court and remitted the matter back to the said Court with a direction to decide the matter afresh and enlarge the detenu on bail pending the disposal of the application for bail.
Another order of detention was passed against the detenu on Jan. 25, 1988 which was later withdrawn as the Advisory Board declined to confirm the same.
The detenu was released on March 14, 1988.
At the hearing of the appeal by this Court on 7.4.88 an application was made that the detenu has absconded whereupon this Court ordered that the detenu should surrender within a week 's time.
He accordingly surrendered on April 13, 1988.
On May 23, 1988 the order of detention in question was made which is hereby challenged.
The contention raised on behalf of the petitioner is that in the grounds of detention furnished in support of the order of detention, no prejudicial act on the part of the detenu is alleged between March 14, 1988 and April 13, 1988 during which small period he was a free man; as he was in jail for nearly three years prior to March 14, 1988 except for short periods when he was on parole, and after April 13, 1988 again he was under custody.
It is urged that no preju dicial activity has been shown, when the detenu was on parole.
As such the action of the respondent is wholly vindictive and in total defiance of law.
According to him there has been no application of mind at all to the most glaring fact that the Designated Court in defiance of this Court 's order did not grant interim bail to the detenu by its order dt.
13.5.88.
There was no possibility therefore of the detenu being released on bail.
It was thus impossi 893 ble to prove the statement made in the grounds of detention that there were full possibilities that the detenu may be released on bail in this case.
Allowing the petition, this Court, HELD: The detention of a person without a trial is a very serious encroachment on his personal freedom and so at every stage, all questions in relation to the detention must be carefully and solemnly considered.
[901G] The past conduct or antecedent history of a person can be taken into account in making a detention order but the past conduct or antecedent history of the person, on which the authority purports to act, should ordinarily be proxi mate in point of time and would have a rational connection with the conclusion drawn by the authority that the deten tion of the person after his release is necessary.
[901F G] There must be awareness in the mind of the detaining authority that the detenu is in custody at the time of service of the order of detention on him, and cogent rele vant materials and fresh facts have been disclosed which necessitate the making of an order of detention.
[905D E] In the instant 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.
The statement in the grounds of detention that at present you are in jail yet "there are full possibilities that you may be released on bail in this offence also" clearly shows that the detaining authority was completely unaware of the fact that no appli cation for bail was made on behalf of the detenu for his release before the Designated Court and as such the possi bility of his coming out on bail is non existent.
This fact of non awareness of the detaining authority clearly estab lishes that the subjective satisfaction was not arrived at by the detaining authority on consideration of relevant materials.
The only period during which he was free person was from March 14, 1988 to April 13 1988.
During this period no act prejudicial to the maintenance of public order has been alleged to have been committed by the detenu.
[905E G; 906E F] A mere bald statement that the detenu is in jail custo dy is likely to be released on bail and there are full possibilities that he may continue 894 the 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 subjective satisfaction by the detaining authority in making the order of detention in question.
[907C D] The order of detention was accordingly quashed and the detenu directed to be set at liberty forthwith.
[907D] Rameshwar Shaw Burdwan & Anr.
vs Distt.
Magistrate Burdwan & Anr., ; referred to; Alijan Mian vs Distt.
Magistrate Dhanbad & Ors.
, [1983] 4 SCC 301 referred to; Ramesh Yadav vs Distt.
Magistrate, Etah & Ors., referred to; Suraj Pal Sahu vs State of Maharashtra & Ors., ; referred to; Vijay Narain Singh vs State of Bihar & Ors., referred to; Raj Kumar Singh vs State of Bihar & Ors., ; referred to; Binod Singh vs Distt.
Magis trate Dhanbad & Ors., ; at 420 21; Poonam Lata vs
M.L. Wadhawan and Anr., ; referred to and Smt.
Shashi Aggarwal vs State of U.P. & Ors., ; at 440, referred to.
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<s>[INST] Summarize the judgementivil Appeal Nos.1761 62 of 1991 From the Judgment and Order dated 13.8.90 of the Madras High Court in C.M.P. No. 10274 and 10275 of 90. 233 WITH C.A. No. 1763 18 of 1991.
V. Krishnamurthy for the Appellants.
Mrs. N. Chidambaram, K.Parasaran, M.N. Krishnamani, G. Srinivasan, B.Rabu Manohar G.Vijay Anand, V. Balachandran and Ajit K. Sinha for the Respondents.
The following Order of the Court was delivered: Leave granted.
In the State of Tamil Nadu a number of educational institutions were set up for running courses for teachers training.
The respondent Institutions and certain other institutions sought recognition from the Director and the Joint Director of Education of the State of Tamil Nadu for running the teachers training courses.
In some cases the recognition was not a corded as the institutions did not fulfill the conditions required for setting up the Teachers Training Institution while in other cases the application for recognition was pending consideration.
Indisputably none of the respondent Institutions had been accorded recognition but they admitted students to the course of study for conferring the Diploma in Teachers sTraining.
Since, the Education Department of the State Government was not willing to allow the students of such Institutions to appear at the public examination held by the Government, the affected institutions filed writ petitions before the High Court claiming relief for issuance of mandamus directing the Government to recognise the Institutions and also for a direction permitting the students to appear at the public examination with a further direction for declaring the result of the examination.
A learned Single Judge of the High Court referred the matter to Full Bench.
The Full Bench considered the question: "Whether the students of unrecognized Educational Institutions can be permitted to write the public examinations held by the Government." The Full Bench on an elaborate discussion held that in the absence of recognition accorded to an Educational Institution, the students of such Institutions were not entitled to appear at the public examination held by the Government.
In this view of the Full Bench the students were not entitled to any relief but the Full Bench adopted a peculiar course to grant relief.
The Full Bench on account of the "persistent and persuasive stand of the 234 petitioners" issued directions to the State Government and the Education Department on humanitarian ground directing them to hold supplementary examination for enabling the student of the concerned unrecognized Institution to appear at the examination with a condition that the declaration of their result will be subject to the ultimate settlement of the question of recognition.
With these directions the Full Bench disposed of the writ petitions before it by its order dated 24.7.1990.
The writ petitions out of which the present appeals have arisen were filed by the unrecognized Educational Institutions.
These petitions were heard by a Division Bench of the High Court.
The Division Bench following the decision of the Full Bench in Writ Petition No. 2712 of 1990 and other connected matters (fathima Secondary Grade Teachers Training Institute vs Commissioner and Secretary to Government, Education Department), issued similar directions permitting the student to appear at the examination and directing the State Government to arrange for supplementary examination to enable the students to appear at that examination.
These appeals are directed against the order of the Division Bench.
After hearing learned counsel for the parties were are of the opinion that these appeals must succeed.
There is no dispute that the respondent educational Institutions were established for imparting education in Teachers Training Course without obtaining recognition from the Education Department of the State Government.
In the absence of recognition from the Education Department the students pursuing their studies in these Institutions could not appear at the public examination held by the Education Department The Full Bench rightly held that students of unrecognized educational institutions could not be permitted to appear at the public examination held by the Government.
On its own finding, the Full Bench should have refused relief in the petitioners, but it was persuaded to issue directions on humanitarian ground which were in effect destructive of its own findings, and the law laid down by it.
The Full Bench issued directions permitting the students to appear at the examination and directing the appellant authorities to make a special provision for supplementary examination.
These directions in our opinion were unauthorised and wholly unjustified.
The practice of admitting students by unauthorised educational Institutions and then seeking permission for permitting the students to appear at the examination has been looked with disfavour by this Court.
235 In Nageshwaramma vs State of Andhra Pradesh, [1986] Supl.
SCC 166 this Court observed that if permission was granted to the student of an unrecognised Institution to appear at the examination, it would amount, to encouraging and condoning the establishment of unauthorised institutions.
The Court declared that the Jurisdiction of this Court under Article 32 or of the High Court under Article 226 of the Constitution should not be frittered away for such of purpose.
In A.P. Christains Medical Educational Society vs Government of Andhra Pradesh & Anr., ; a similar request made on behalf of the institution and the student for permitting them to appear at the examination even though affiliation had not been granted, was rejected by this court.
The court observed that any direction of the nature sought for permitting the students to appear at the examination without the institution being affiliated or recognised would be in clear transgression of the provision of the Act and the regulations.
The Court cannot be a party to direct the students to disobey the statute as that would be destructive of the rule of law.
The full Bench noted these decisions and observations and yet is granted relief to the students on humanitarian ground Courts can not grant relief to a party on humanitarian grounds contrary to law.
Since the students of unrecognised institutions were legally not entitled to appear at the examination held by the Education Department of the Government, the High Court acted in violation of law in granting permission to such students for appearing at the public examination.
The directions issued by the full Bench are destructive of the rule of law.
Since the Division Bench,issued the impugned orders following the judgment of the Full Bench, the impugned orders are not sustainable in law.
Nalini Chidambaram contended that under Section 9 of the Tamil Nadu Act a minority community is entitled to establish an educational institution without obtaining permission from the Government and the students of such institution are entitled to appear at the public examinations.
We find no merit in the submission.
Under Article 30 of the Constitution minorities based on religion or language, have fundamental freedom to establish educational institutions their own choice, but the State has right to prescribe regulatory provisions for ensuring educational excellence.
Minority institutions which do not seek recognition are free to function according to their own choice, but if such an institution seeks recognition from the State, it has to comply with prescribed conditions for granting recognition, and in that event the minority institution has to follow prescribed syllabus for examination, courses of study and other allied matters.
These conditions are necessary to be followed to ensure efficiency and educational standard in 236 minority institutions.
See: All Bihar Christian Schools Association & Anr.
vs State of Bihar & Ors.
, [1988] 1 S.C.C. 206.
We are, therefore, of the opinion that even if a minority community has fundamental right to establish and administer educational institution, it has no right to insist upon the State to allow students to appear at the public examinations without recognition or without complying with the conditions prescribed for such recognition.
We, accordingly, allow the appeals and set aside the order of the High Court and dismiss the writ petitions filed by the respondents.
There will be no order as to costs.
G.N. Appeals allowed.
[/INST]In the appellant State, there were number of educational institutions running teachers straining course.
Recognition was not accorded to some institutions as they did not fulfill the conditions.
In other cases, the recognition was under consideration.
Admittedly, none of the respondent institutions was accorded recognition.
Since the Education Department did not permit their students to appear at the Public Examination, the respondent institutions filed a Writ Petition before the High Court praying for direction to the appellant State to recognise the institutions and also for a direction permitting their students to appear at the Public Examination.
Following the decision of the Full Bench in similar cases, the Division Bench directed the appellant State to arrange for supplementary examination in respect of the students of the respondent institutions.
Against the said Judgment the State has preferred these appeals, by special leave.
Allowing the appeals, this court, HELD: 1.1.
In the absence of recognition from the Education Department the students pursuing their studies in such Institution could not appear at the public examination held by the Education Department.
The Full Bench rightly held that students of unrecognized educational 232 institutions could not be permitted to appear at the public examination held by the Government.
On its own findings,s the Full Bench should have refused relief to the petitioners.
The Full Bench 's directions permitting the student to appear at the examination and directing the appellant authorities to make a special provision for supplementary examination were unauthorized and wholly unjustified.
[234E G] 1.2.
The Court cannot be a party to direct the students in disobey the statue as that would be destructive of the rule of law.
Courts cannot grant relief to a party on humanitarian ground contrary to law.
Since the Division Bench issued the said orders following the Judgment of the Full Bench, the orders are not sustainable in law.
Nageshwaramma vs State of Andhra Pradesh, [1986](Suppl.) SCC 166 and A.P. Christians Medical Educational Society vs Government of Andhra Pradesh & Anr., ; , relied on.
2.1 Under Article 30 of the Constitution minorities based on religion or language, have fundamental freedom to establish educational institutions of their own choice, but the State has the right to prescribe regulatory provisions for ensuring educational excellence.
Minority institutions which do not seek recognition are free to function according to their own choice, but if such an institution seeks recognition from the State it has to comply with the prescribed conditions for granting recognition and in that event the minority institution has to follow the prescribed syllabus for examination, courses of study and other allied matters.
These conditions are necessary to be followed to ensure efficiency and educational standard in minority institutions.
[235C F] 2.2.
Even if a minority community has fundamental right to establish and administer educational institution, it has no right to insist upon the State to allow its students to appear at the public examination without recognition or without complying with the conditions prescribed for such recognition.
[236A B] All Bihar Christian Schools Association & Anr.
vs State of Bihar & Ors.
, ; , relied on.
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<s>[INST] Summarize the judgementCivil Appeal No. 988 of 1968.
(From the Judgment and order dated the 8 4 1965 of the Punjab High Court, Circuit Bench Delhi now the High Court of Delhi in Civil Writ No. 228 G of 1962).
Hardyal Hardy, B. P. Maheshwari, Suresh Sethi and Bikaramjit Nayar; for the appellant.
A. K. Sen, D. P. Bhandare, Mrs. Laxmi Arvind Mathur and section section Khanduja; for the respondents.
The Judgment of the Court was delivered by GUPTA, J.
Respondent Kalu Ram was pavement vendor in Connaught place, New Delhi.
In 1950 the appellant.
New Delhi Municipal Committee, provided a number of displaced persons with small pre fabricated stalls to enable them to do their business.
Kalu 88 Ram who was also a displaced person was allotted one such stall on Irwin Road.
Rupees thirty was the licencee fee payable per month by the allottees of these stalls.
Later, the allottees, including the respondent, applied to the Rent Controller for reducing the rent.
It is not necessary to refer to the various proceedings arising from these applications for fixation of standard rent which were ultimately dismissed by the Circuit Bench of the Punjab High Court at Delhi as not maintainable.
In the meantime, many of the allottees fell in arrears in paying the licence fees.
So far as the respondent is concerned, the appellant took no steps to recover the dues till December 1960 when it demanded the entire amount in arrears from May 1950 to April 1957.
The respondent not having paid, the appellant asked the Estate Officer, appointed under section 3 of the , to take steps to recover the amount in arrears under section 7 of that Act.
The Estate Officer, who is the second respondent herein, made an order on September 28, 1961 under section 7(1) of the Act asking the respondent to pay the sum overruling his objection that the claim was barred by limitation.
The respondent 's appeal to the Additional District Judge from the Estate Officer 's order was disallowed.
The respondent then filed a writ petition before the Circuit Bench of the Punjab High Court at Delhi challenging the order against him.
One of the grounds of challenge was that section 7 could not be resorted to for recovery of the sum as the claim was time barred.
The High Court accepted the contention and allowed the petition.
In this appeal by certificate, the appellant, New Delhi Municipal Committee, questions the correctness of the High Court 's decision.
The only contention raised before us by Mr. Hardy appearing for the appellant is that the High Court was wrong in holding that the amount in question could not be recovered under section 7 because the time for instituting a suit to recover the sum had expired.
Admittedly, any suit instituted on the date when the Estate Officer made his order under section 7(1) would have been barred by time.
Mr. Hardy argued that the Limitation Act only barred the remedy by way of suit and did not extinguish the right, and section 7 of the providing a different and special mode of recovery was therefore available to recover rent in arrears beyond three years.
Section 7 as it stood at the relevant time reads : Power to recover rent or damages in respect of public premises as arrears of land revenue.
(1) Where any person is in arrears of rent payable in respect of any public premises, the estate officer may, by order, require that person to pay the same within such time and in such instalments as may be specified in the order.
(2) Where any person is, or has at any time been in unauthorised occupation of any public premises, the 89 estate officer may, having regard to such principles of assessment of damages as may be prescribed, assess the damages on account of the use and occupation of such premises and may, by order, require that person to pay the damages within such time and in such instalments as may be specified in the order: Provided that no such order shall be made until after the issue of a notice in writing to the person calling upon him to show cause within such time as may be specified in the notice why such order should not be made, and until his objections, if any, and any evidence he may produce in support of the same, have been considered by the estate officer.
(3) If any person refuses or fails to pay the arrears of rent or any instalments thereof payable under sub section (1) or the damages or any instalment thereof payable under sub section (2) within the time specified in the order relating thereto the estate officer may issue a certificate for the amount due to the Collector who shall proceed to recover the same as an arrear of land revenue.
" As would appear from the terms of the section, it provides a summary procedure for the recovery of arrears of rent.
It was argued that since section 7 did not put a time limit for taking steps under that section and as the limitation prescribed for a suit to recover the amount did not apply to a proceeding under this section, the High Court was in error in upholding the respondent 's objection.
In support of his contention that a debt remained due though barred by limitation, Mr. Hardy relied on a number of authorities, both Indian and English.
We do not consider it necessary to refer to these decisions because the proposition is not disputed that the statute of limitation bars the remedy without touching the right.
Section 28 of the Indian Limitation Act, 1908 which was in force at the relevant time however provided that the right to any property was extinguished on the expiry of the period prescribed by the Act for instituting a suit for possession of the property.
But on the facts of this case no question of a suit for possession of any property arises and section 28 has no application.
It is not questioned that a creditor whose suit is barred by limitation, if he has any other legal remedy permitting him to enforce his claim, would be free to avail of it.
But the question in every such case is whether the particular statute permits such a course.
Does section 7 of the create a right to realise arrears of rent without any limitation of time ? Under section 7 the Estate Officer may order any person who is in arrears of rent 'payable ' in respect of any public premises to pay the same within such time and in such instalments as he may specify in the order.
Before however the order is made, a notice must issue calling upon the defaulter to show cause way such order should not he made and, if he raised any objection, the Estate Officer must consider the same and the evidence produced in support of it.
Thus the Estate Officer has to determine 90 upon hearing the objection the amount of rent in arrears which is 'payable. ' The word 'payable ' is somewhat indefinite in import and its meaning must he gathered from the context in which it occurs.
'Payable ' generally means that which should be paid.
If the person in arrears raises a dispute as to the amount, the Estate Officer in determining the amount payable cannot ignore the existing laws.
If the recovery of any amount is barred by the law of limitation, it is difficult to hold that the Estate Officer could still insist that the said amount was payable.
When a duty is cast on an authority to determine the arrears of rent, the determination must be in accordance with law.
Section 7 only provides a special procedure for the realisation of rent in arrears and does not constitute a source or foundation of a right to claim a debt otherwise time barred.
Construing the expression "any money due" in section 186 of the Indian Companies Act, 1913 the Privy Council held in Hans Raj Gupta and others vs Official Liquidators of the Dehradun Mussorie Electric Tramway Company Ltd.(1) that this meant moneys due and recoverable in suit by the company, and observed: "it is a section which creates a special procedure for obtaining payment of moneys; it is not a section which purports to create a foundation upon which to base a claim for payment.
It creates no new rights.
" We are clear that the word "payable" in section 7, in the context in which its occurs, means "legally recoverable." Admittedly a suit to recover the arrears instituted on the day the order under section 7 was made would have been barred by limitation.
The amount in question was therefore irrecoverable.
This being the position, the appeal fails and is dismissed with costs.
M.R. Appeal dismissed.
[/INST]In 1950, the appellant allotted small pre fabricated stalls to several displaced persons including the respondent, at the licence fee of rupee thirty payable per month.
Later, these allottees applied for a fixation of standard rent but ultimately lost in the Punjab High Court at Delhi, Meanwhile, the respondent fell in arrears in paying the licence fee.
In December, 1960, the appellant demanded from him the entire amount in arrears from May 1950 to April 1957 but he failed to pay.
In September 1961, the Estate Officer ordered the respondent under section 7(1) of the Act, to pay the sum, overruling his objection that the claim was barred by limitation.
The respondent 's appeal to the Additional District Judge was rejected, but the Punjab High Court at Delhi allowed his writ petition on the ground that section 7 could not be availed in case of time barred claims.
The appellant contended before this Court that the Limitation Act only barred the remedy by way of suit and did not extinguish the right which could still be exercised through section 7 of the Act.
Section 7 did not put a time limit for taking action under it, and was, therefore, not subject to the limitation prescribed for a suit to recover the amount.
Dismissing the appeal, the Court, ^ HELD: Section 7 only provides a special procedure for the realisation of rent in arrears and does not constitute a source or foundation of a right to claim a debt otherwise time barred.
The word "payable" in Section 7 in the context in which it occurs, means "legally recoverable".
[90 B & D] Hans Raj Gupta and others vs Official Liquidator of the Dehradun Mussoorie Electric Tramway Co. Ltd. 60 I.A. 13, followed.
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<s>[INST] Summarize the judgement: Special Leave Petition (Crl.) No. 489 of 1979.
From the Judgment and Order dated 9 11 1978 of the Kerala High Court in Crl.
R.P. No. 260/77.
K. T. Harendra Nath and T. T. Kunhikannan for the Petitioner.
The Order of the Court was delivered by KRISHNA IYER, J. The Petitioner has pressed before us certain points of law which have not been urged before the High Court and so we are unable to examine the tenability of those points.
For this reason, petition must be dismissed.
Counsel drew our attention to the fact that although the episode, which is the subject matter of the prosecution under section 16 (1A) (i) read with section 7(i) and section 2(1A) of the prevention of Food Adulteration Act, took place allegedly in 1972.
There was inexplicable, inordinate delay in trial.
The case was tried in 1977 which, according to counsel, prejudiced the petitioner considerably.
We are aghast at the traumatic impact on criminal justice inflicted by delayed trials when human memory becomes faded and vivid testimony is withheld.
The present case is an instance in point.
We feel strongly that the trial courts in the country should ensure that, in the spirit of Article 21 of the Constitution, food adulteration cases, 5 which involve imprisonment, are tried expeditiously so that neither the prosecution nor the accused is prejudiced by unusual procrastination.
We express the hope that the High Court concerned will issue peremptory directions to trial Judges demanding expeditious disposal of such cases.
In the present case, prosecution evidence, as regards taking of samples, is perhaps not as good as it would have been had the trial been prompt.
We do not want forensic martyrdoms for prosecutions in food adulteration cases, thanks to tarred trials blamable on the judicial process.
The State Government has a duty to sanction the required courts in obedience to the mandate of Article 21 which implies judicial justice without undue delay.
Maybe, there is some grievance for the petitioner that he was disabled in defending himself properly, hampered by the lapse of five years, but unfortunately the point was not pressed before the High Court; and, we do not think it proper to investigate the substantiality of the prejudice.
As for the sentence, true that, in this case, it is not shown that the petitioner is a big merchant.
Perhaps he was a petty dealer and counsel represents that the trade has been wound up.
It is also submitted that the petitioner has served about three months out of the six months of imprisonment.
Having regard to the totality of circumstances, it is open to the petitioner to move the State Government to remit the remaining portion of the sentence, if so advised, and it would be for the Government to consider at all whether it should exercise its power of remission and its impact on society.
N.K.A. Petition dismissed.
[/INST]HELD : The trial courts in the country should ensure that in the spirit of Article 21 of the Constitution, food adulteration cases which involve imprisonment are tried expeditiously so that neither the prosecution nor the accused is prejudiced by unusual judicial procrastination.
The High Court concerned should issue peremptory directions to the trial judges demanding expeditious disposal of cases.
The State Government has a duty to sanction the required courts in obedience to the mandate of Article 21 which implies judicial justice without undue delay.
[4H, 5A B] It would be for the State Government in the instant case to consider at all whether it should exercise its power of remission and its impact on the society.
[5D E]
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<s>[INST] Summarize the judgementAppeal No. 425 of 1958.
Appeal by special leave from the Decision dated October 9, 1956 of the Labour Appellate Tribunal of India, Bombay, in Appeal (Bom.) No. 111 of 1956.
M. C. Setalvad, Attorney General of India, section N. Andley, J. B. Dadachanji, Rameshwar Nath and P. L. Vohra, for the appellants.
M. section K. Sastri, for the respondent.
March 15.
The Judgment of the Court was delivered by GAJENDRAGADKAR, J.
This appeal by special leave raises a short question about the construction of the notification No. 1131 46 issued by the Government of Bombay on October, 4, 1952, under section 2(4) of the Bombay Industrial Relations Act, 1946 (Bom.
11 of 1947) (hereinafter called the Act).
The respondent, 306 who was a stenographer employed by the appellant, the Godavari Sugar Mills Ltd., at its head office in Bombay was dismissed by the appellant on April 22, 1955.
He had been working as a stenographer for some years past on a salary of Rs. 135 plus Rs. 27 as dearness allowance.
He was charged with having committed acts of disobedience and insubordination, and after a proper enquiry where he was given an opportunity to defend himself, he was found guilty of the alleged misconduct; that is why his services were terminated ; that is the appellant 's case.
The respondent challenged the legality and propriety of his dismissal by an application before the Labour Court at Bombay; he purported to make this application under section 42(4) read with section 78 (1) (a) (i) and (iii) of the Act.
The appellant in reply challenged the competence of the application on the ground that the Act did not apply to the respondent 's case, and so the Labour Court had no jurisdiction to entertain it.
Both the parties agreed that the question of jurisdiction thus raised by the appellant should be tried as a preliminary issue; and so the Labour Court considered the said objection and upheld it.
It held that the notification in question on which the respondent relied did not apply to the head office of the appellant at Bombay; accordingly the Labour Court dismissed the respondent 's application.
The respondent challenged the correctness of this decision by preferring an appeal before the Industrial Court.
His appeal, however, failed since the Industrial Court agreed with the Labour.
Court in holding that the notification did not apply to the head office of the appellant.
The matter was then taken by the respondent before the Labour Appellate Tribunal and this time the respondent succeeded, the Labour Appellate Tribunal having held that the notification applied to the head office and that the respondent was entitled to claim the benefit of the provisions of the Act.
On this finding the Labour Appellate Tribunal set aside the order passed by the courts below and remanded the case to the Labour Court for disposal on the merits in accordance with law.
It is this order which has given rise to the present appeal and the only question which it 307 raises for our decision is whether the notification in question applies to the head office of the appellant at Bombay.
The Act has been passed by the Bombay Legislature in order to regulate relations of employers and employees, to make provision for settlement of indus trial disputes and to provide for certain other purposes.
It has made elaborate provisions in order to carry out its object, and has conferred some benefits on the employees in addition to those which have been conferred on them by the Central Industrial Disputes Act, XIV of 1947.
Under section 42(4) of the Act, for instance, an employee desiring a change in respect of any order passed by the employer under standing orders can make an application to the Labour Court in that behalf subject to the proviso which it is unnecessary to set out.
Section 78(1)(a)(iii) requires the Labour Court to decide whether any change made by an employer or desired by an employee should be made.
An order of dismissal passed by an employer can, therefore, be challenged by the employee directly by an application before the Labour Court under the Act, whereas under the Central Act a complaint against wrongful dismissal can become an industrial dispute only if it is sponsored by the relevant union or taken up by a group of employees and is referred to the industrial tribunal for adjudication under section 10 of the Act Since the respondent claims a special benefit under the Act he contends that his case falls under the notification.
It is common ground that if the notification applies to the case of the respondent the application made by him to the Labour Court would be competent and would have to be considered on the merits; on the other hand, if the said notification does not apply then the application is incompetent and must be dismissed in limine on that ground.
Let us now read the notification.
It has been issued by the Government of Bombay in exercise of the powers conferred on it by section 2, sub section
(4), of the Act, and in supersession of an earlier notification, and it provides that " the Government of Bombay is pleased to direct that all the provisions of the said Act shall 308 apply to the following industry, viz., the manufacture of sugar and its by products Including (1) the growing of sugarcane on farms belonging to or attached to concerns engaged in the said manufacture, and (2) all agricultural and industrial operations connected with the growing of sugarcane or the said manufacture, engaged in such concerns.
Note: For the purposes of this notification all service or employment connected with the conduct of the above industry shall be deemed to be part of the industry when engaged in or by an employer engaged in that industry ".
It is significant that the notification applies not to sugar industry as such but to the manufacture of sugar and its by products.
If the expression " sugar industry " had been used it would have been possible to construe that expression in a broader sense having regard to the wide definition of the word " industry " prescribed in section 2(19) of the Act; but the notification has deliberately adopted a different phraseology and has brought within its purview not the sugar industry as such but the manufacture of sugar and its by products.
Unfortunately the Labour Appellate Tribunal has read the notification as though it referred to the sugar industry as such.
That is a serious infirmity in the decision of the Labour Appellate Tribunal.
Besides, the inclusion of the two items specified in cls.
(1) and (2) is also significant.
Section 2(19)(b)(i) shows that " industry " includes agriculture and agricultural operations.
Now, if the manufacture of sugar and its by products had the same meaning as the expression sugar industry, then the two items added by cls.
(1) and (2) would have been included in the said expression by virtue of the definition of " industry " itself and the addition of the two clauses would have been superfluous.
The fact that the two items have been included specifically clearly indicates that the first part of the notification would not have applied to them, and it is with a view to extend the scope of the said clause that the inclusive words introducing the two items have been used.
This fact also shows the limited interpretation which must be put on the words " the manufacture of sugar and its by products 309 It is true that the note added to the notification purports to include within the scope of the notification some cases of service and employment by the, deeming process.
Unfortunately the last clause in the note is unhappily worded and it is difficult to understand what exactly it was intended to mean.
Even so, though by the first part of the note some ' kinds of service or employment are deemed to be part of the industry in question by virtue of the fact that they are connected with the conduct of the said industry, the latter part of the note requires that the said service or employment must be engaged in that industry.
It is possible that the workers engaged in manuring or a clerk in the manure depot which is required to issue manure to the agricultural farm which grows sugarcane may for instance be included within the scope of the notification by virtue of the note; but it is difficult to see how the respondent, who is an employee in the head office at Bombay, can claim the benefit of this note.
The addition made by the deeming clause on the strength of the connection of certain services and employments with the conduct of the industry is also controlled by the requirement that the said services or employments must be engaged in that industry so that connection with the industry has nevertheless to be established before the note can be applied to the respondent.
It has been urged before us by Mr. Sastri, for the respondent, that at the head office there is accounts department, the establishment section, stores purchase section and legal department, and he pointed out that the machinery which is purchased for the industry is landed at Bombay, received by the head office and is then sent to the factories.
In fact the factories and the offices attached to them are situated at Lakshmiwadi and Sakharwadi respectively and are separated by hundreds of miles from the head office at Bombay.
The fact that the machinery required at the factories is received at the head office and has to be forwarded to the respective factories cannot, in, our opinion, assist the respondent in contending that the head office itself and all the employees engaged in it fall within the note to the notification.
The object of the 40 310 notification appears to be to confine its benefit to service or employment which is connected with the manufacture of sugar and its by products including the two items specified in cl.
(1) and cl.
(2) Subsidiary services such as those we have indicated are also included by virtue of the note; but in our opinion it is difficult to extend the scope of the notification to the head office of the appellant.
We must accordingly hold that the Labour Appellate Tribunal erred in law in holding that the case of the respondent was governed by the notification.
Incidentally we would like to add that the registrar appointed under section 11 of the Act has consistently refused to recognise the staff of the head office as coming under the notification, and it is common ground that the consistent practice in the matter so far is against the plea raised by the respondent.
It is perfectly true that in construing the notification the prevailing practice can have no relevance; but if after construing the notification we come to the con clusion that the head office is outside the purview of the notification it would not be irrelevant to refer to the prevailing practice which happens to be consistent with the construction we have placed on the notification.
It appears that in the courts below reference was made to a similar notification issued in respect of textile industry under section 2, sub section
(3) of the Act and the relevant decisions construing the said notification were cited.
We do not think any useful purpose will be served by considering the said notification and the decisions thereunder.
In the result the appeal is allowed, the order passed by the Labour Appellate Tribunal is set aside and the respondent 's application is dismissed.
There will be no order as to costs.
Appeal allowed.
[/INST]Under Hindu law, though an illegitimate son of a Sudra cannot enforce partition during his father 's lifetime, he can enforce partition after his father 's death if the father was separate from his collaterals and has left separate property and legitimate sons.
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<s>[INST] Summarize the judgementiminal Appeal No. 22 of 1953.
Appeal by special leave from the Judgment and Order dated the 19th November, 1952, of the High Court of Judicature of Punjab at Simla in Criminal Appeal No. 102 of 1952 and Criminal Revision Nos.
423 146 and 499 of 1952 of the Court of the Sessions Judge, Jullundur, in Sessions Case No. 30 of 1951 and Sessions Trial No. 5 of 1951.
Jai Gopal Sethi (R. L. Kohli and Deva Singh, with him) for the appellants.
Gopal Singh for the respondent.
May 15.
The Judgment of the Court was delivered by BosE J.
Four persons appeal against sentences of death passed upon them in convictions for a double murder, the victims being two brothers, Rattan Singh and Bawa Singh.
The learned Sessions Judge convicted three others also but sentenced all, including the four appellants, to transportation for life.
The High Court acquitted three of the seven but sustained the convictions of the four appellants and enhanced their sentences in each case to death.
The prosecution story is simple.
All seven accused belong to the same village and belong to the same faction or "party", as Mst.
Punnan (P.W. 2) calls it.
Of the seven, the appellants Dalip Singh and Battan Singh are brothers.
Jarnail Singh who was acquitted is a son of Battan Singh.
The remaining four, including the appellants Sadhu Singh and Kundan Singh, are not related to the other three and, except for the evidence that they belong to the same party, are not shown to have any common interest with the other three.
The appellants Dalip Singh and Battan Singh are said to have assaulted the two dead men Rattan and Bawa about twenty years before the occurrence.
They were prosecuted and convicted and served short terms of imprisonment.
Dalip Singh and Battan Singh are also said to be dacoits and it is said that they believed that the two dead men used to furnish information against them to the police.
This is said to be the motive for the murders.
Why the others should have joined in, except on the basis that they belong to the same "Party", is not disclosed.
147 The prosecution case is as follows: On 16th June, 1951, Rattan Singh was taking some food out to a well a short distance from his house for himself and his son.
This was about 2 p.m.
Just as he left the house, his wife Mst.
Punnan (P.W. 2) heard cries of alarm and on rushing out with her daughter Mst.
Charni (P.W. 11) saw all seven accused assaulting her husband.
They beat him up till he fell to the ground.
As soon as Rattan Singh fell down, they left him and rushed to his (Rattan Singh 's) Haveli where the other brother Bawa Singh was lying on a cot, shouting that they would also make short work of him.
All seven belaboured him on the cot, then they dragged him out and beat him up some more.
After this they returned to where Rattan Singh was still lying on the ground and gave him some more blows.
Then they ran away.
Bawa Singh died very shortly after the assault.
The other brother survived a little longer but he also died not long after.
According to Mst.
Punnan (P.W. 2) the accused were armed as follows: The appellants Dalip Singh and Sadhu Singh with barchhas; the appellant Battan Singh and two of the accused who have been acquitted with lathis; the appellant Kundan Singh had a takwa a hatchet with along handle, and the accused Kehar Singh, who has been acquitted, had a khunda a hefty stick with a curved iron end.
The medical evidence discloses that Rattan Singh had nineteen injuries on his person.
Of these, only two, on the head, would have been fatal in themselves.
The rest were on non vital parts like the foot, ankle, leg, knee, thigh, buttock, forearm and wrist, but of these six were grievous.
The doctor says death was caused by shook produced by the multiple injuries aided by haemorrhage in the brain due to injury No. 14.
The other brother Bawa had sixteen injuries but except for two the rest were on non vital parts.
One of the two was on the head and the other ruptured the 148 spleen.
The rest were on the ankle, leg, knee, thigh, elbow, thumb and wrist, but eleven of them were grievous.
In his case the doctor put the death down to rupture of the spleen.
In Rattan Singh 's case, only one of the injuries was inflicted by a sharp edged pointed weapon and all the rest by blunt weapons.
The two on the head were inflicted by blunt weapons.
In Bawa Singh 's case, four wounds were caused by a sharp edged or pointed sharp edged weapon.
The others were all inflicted by blunt weapons.
Here again, the fatal injury which ruptured the spleen was caused by a blunt weapon.
This analysis would appear to indicate that neither of the appellants Dalip Singh and Sadhu Singh, who carried spears, nor the appellant Kundan Singh, who carried a hatchet, aimed at any vital part; and of those who had blunt weapons, the appellant Battan Singh who had a lathi has alone been convicted while Indar Singh and Jarnail Singh, who also had lathis, and kehar Singh, who had a khunda, have all been acquitted; and yet Battan Singh alone could hardly have been responsible for eighteen injuries on Rattan Singh and nine on Bawa Singh.
The appellant Dalip Singh was arrested on the 17th June and the other three on the 18th.
Each was wearing blood stained clothes.
The learned Sessions Judge did not attach much importance to the bloodstained clothes, nor did he regard the recovery of certain weapons, some of which were blood stained, as of much consequence.
But he was impressed with the evidence of the two eyewitnesses Mst.
Punnan (P.W. 2) and Mst.
Charni (P. W. 11) and believing them convicted each of the seven accused under section 302 read with section 149, Indian Penal Code.
He said that as the fatal injuries could not be attributed to any one of the accused he refrained from passing the sentence of death.
All the assessors considered all seven accused guilty.
The learned High Court Judges did not attach any importance to the recovery of the weapons because 149 for one thing they were not recovered till the 30th, that is to say, not until fourteen days after the murders, and when found, one set pointed out by Jarnail Singh, who has been acquitted, was found in Dalip Singh 's field and another set, pointed out by Sadhu Singh, was found in Kehar Singh 's field.
But they considered the blood stained clothes an important factor.
They were not prepared to believe the two eye witnesses all the way, partly because they were of opinion that a part of their story was doubtful and seemed to have been introduced at the instance of the police and partly because they considered that when the fate of seven men hangs on the testimony of two women "ordinary prudence" requires corroboration.
They found corroboration in the case of the four appellants because of the blood stained clothes and none in the case of the others.
Accordingly, they convicted the four appellants and acquitted the others.
Now this has led the learned Judges into an inconsistency and it is that which led to the granting of special leave to appeal.
The learned Judges say that their conclusion is that (1) "generally the story related by Mst.
Punnan and Mst.
Charni is true; (2) that certainly not less than five persons took part in the beating of the two deceased; and (3) that the corroboration required by prudence is afforded by the presence of the blood stained clothes found on the persons of the four appellants who have been convicted.
" As regards the three accused whom they acquitted the learned Judges say The other three accused may or may not have taken part in the affair.
" Now it is clear from the above that it is impossible to ascribe any particular injury to any particular person.
Therefore ' it is impossible to convict any one of the accused of murder simpliciter under section 302, 21 150 nor do the learned Judges attempt to do that.
They convict under section 302 read with section 149.
But section 149 requires the presence of five persons who share the common object.
It is true that in one place the learned Judges say that there were certainly not less than five present but in the very next breath they say that the three whom they acquit "may or may not have taken part in the affair".
If those three are eliminated, then we are left with only four and that militates against their previous finding that they were at least five.
Before section 149 can be called in aid, the court must find with certainty that there were at least five persons sharing the common object.
A finding that three of them "may or may not have been there" betrays uncertainty on this vital point and it consequently becomes impossible to allow the conviction to rest on this uncertain foundation.
This is not to say that five persons must always be convicted before section 149 can be applied.
There are cases and cases.
It is possible in some eases for Judges to conclude that though five were unquestionably there the identity of one or more is in doubt.
In that case, a conviction of the rest with the aid of section 149 would be good.
But if that is the conclusion it behoves a court, particularly in a murder case where sentences of transportation in no less than four cases have been enhanced to death, to say so with unerring certainty.
Men cannot be hanged on vacillating and vaguely uncertain conclusions.
In fairness to the learned Judges we have examined the evidence with care to see whether, if that was in their minds, such a conclusion could be reached in this particular case on the evidence here.
That it might be reached in other cases on other facts is undoubted, but we are concerned here with the evidence in this case.
Now mistaken identity has never been suggested.
The accused are all men of the same village and the eye witnesses know them by name.
The murder took 151 place in daylight and within a few feet of the two eye witnesses.
If the witnesses had said, "I know there were five assailants and I am certain of A, P and C.
I am not certain of the other two but think they were D and E", a conviction of A, B and C, provided the witnesses are believed, would be proper, But when the witnesses are in no doubt either about the number or the identity and there is no suggestion about mistaken identity and when further, the circumstances shut out any reasonable possibility of that, then hesitation on the part of the Judge can only be ascribed, not to any doubt about identity but to doubt about the number taking part.
The doubt is not whether D and E have been mistaken for somebody else but whether D and E have been wrongly included to swell the number to five.
Again, it is possible for a witness to say that "A, B, C, D, E and others, some ten or fifteen in number, were the assailants".
In that event, assuming always that the evidence is otherwise accepted, it is possible to drop out D and E and still convict A, B and C with the aid of section 149.
But that again is not the case here.
No one suggests that there were more than seven; no one suggests that the seven, or any of them, were, or could be, other than the seven named.
Nor is it possible in this case to have recourse to section 34 because the appellants have not been charged with that even in the alternative, and the common intention required by section 34 and the common object required by section 149 are far from being the same thing.
In the circumstances, we find ourselves unable to allow the conviction to rest on the insecure foundations laid by the High Court.
We have accordingly reviewed the evidence for ourselves.
Mr. Sethi took us elaborately through it.
In our opinion, the learned Sessions Judge 's conclusions are right.
We are unable to agree with the learned Judges of the High Court that the testimony of the two eyewitnesses requires corroboration.
If the foundation 152 for such an observation is based on the fact that the witnesses are women and that the fate of seven men hangs on their testimony, we know of no such rule.
If it is grounded on the reason that they are closely related to the deceased we are unable to concur.
This is a fallacy common to many criminal cases and one which another Bench of this court endeavoured to dispel in Rameshwar vs The State of Rajasthan(1).
We find, however, that it unfortunately still persists, if not in the judgments of the courts, at any rate in the arguments of counsel.
A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely.
Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person.
It is true, when feelings run high and there is personal cause ' for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth.
However, we are not attempting any sweeping generalisation.
Each case must be judged on its own facts.
Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence.
There is no such general rule.
Each case must be limited to and be governed by its own facts.
This is not to say that in a given case a Judge for reasons special to that case and to that witness cannot say that he is not prepared to believe the witness because of his general unreliability, or for other reasons, unless he is corroborated.
Of course, that can be done.
But the basis for such a conclusion must rest on facts special to the particular instance and cannot be grounded on a supposedly general rule of prudence enjoined by law as in the case of accomplices.
(1) ; at 390.
153 Now what is the ground for suspecting the testimony of these two witnesses? The only other reason given by the learned High Court Judges is that they have introduced a false element into their story at the instigation of the police in order to save the "face" of the lambardars.
But if that is so, it throws a cloak of, unreliability over the whole of their testimony and, therefore, though it may be safe to accept their story where the corroborative element of the blood stained clothes is to be found, it would be as unsafe to believe, on the strength of their testimony, that at least five persons were present as it would be to accept that the ones who have been acquitted were present; and once we reach that conclusion section 149 drops out of the case.
We have carefully weighed the evidence of these women in the light of the criticisms advanced against them by Mr. Sethi, most of which are to be found in the judgments of the lower courts, and we are impressed by the fact that the learned Sessions Judge who saw them in the witness box was impressed with their demeanour and by the way they stood up to the crossexamination, and also by the fact that the learned High Court Judges appear to believe them to the extent that at least five persons were concerned.
Some of the accused have made general and sweeping statements to the effect that the prosecution witnesses are inimical to them but no one has suggested why.
In the long cross examination of these witnesses not a single question has been addressed to them to indicate any cause of enmity against any of the accused other than the appellants Dalip Singh and Battan Singh.
A general question was asked, and it was suggested that there was some boundary dispute between Mst.
Punnan 's husband and the accused Indar Singh and Kundan Singh but that was not followed up by other evidence and neither Kundan Singh nor Indar Singh suggests that there was any such dispute in their examinations under section 342, Criminal Procedure Code.
Kehar Singh says vaguely that he has inherited land which will pass to the line 154 of Rattan and Bawa if he dies without heirs but lie has made no effort to substantiate this.
The questions put in cross examination therefore remain just shots in the dark and leave the testimony of the two women unimpaired.
The first information report was made by Mst.
Pullnan (P.W. 2) herself.
It was made very promptly though this was attacked by Mr. Sethi.
It was made at 8 30 p.m. within 6 1/2 hours of the occurrence at a place 12 miles from the police station.
The victims did not die at once and it was only natural that Mst.
Punnan 's first thoughts should have been to tend them Next, she had to walk part of the distance and the rest she covered in a lorry, and above all she has not been cross examined regarding delay.
We consider that a report made within 61 hours in such circumstances is prompt.
Now the important thing about this report is that it names the seven accused, no less and no more, and from start to finish Mst.
Punnan has adhered to that story without breaking down in cross examination and without any attempt to embellish it by adding more names; and in this she is supported by Mst.
Charni (P.W. 11).
Next, the bloodstained clothes found on the persons of the four appellants afford strong corroboration as against them, and as two courts have believed the witnesses to that extent all we need do is to concentrate on the other three accused who have been acquitted in order to see whether there were seven persons as Mst.
Punnan says and to see whether the conclusion of the High Court that there were at least five present is sound.
We do not think the discovery of tile weapons can be, lightly excluded.
One set was pointed out by Jarnail Singh.
In itself that might not mean much but it is unquestionable corroboration as against Jarnail Singh unless the fact of discovery is disbelieved or is considered to be a fraud.
But that is not the finding of either court.
The first court, believes the evidence and the High Court does not disbelieve it but 155 considers the incident as of small probative value.
It may be in itself, but it is a corroborative element in the case of two witnesses who do not require corroboration and that makes it all the more safe to accept their testimony.
Next comes the discovery of another set of weapons by Sadhu Singh.
He was already implicated by reason of some blood stained clothes but the importance of the discovery in his case lies in the fact that the weapons were found in the field of Kehar Singh.
It is certainly a circumstance to be taken into consideration that these weapons should be found in the field of a man who was named from the start.
Then comes the fact that Mst.
Punnan (P.W. 2) not only named the various assailants in her first information report but stated exactly what sort of weapon each was carrying.
Here again she is consistent from start to finish except for an unessential difference in the case of Jarnail.
In the first information report she said he had a dang while in her evidence she says he had a lathi, but as a dang is a big lathi that is not a real discrepancy.
This, in our opinion, is impressive consistency, especially as it tallies in general with the postmortem findings.
Now the fact that weapons of this description, four stained with human blood, are discovered at the instance of two persons she has named from the beginning in the fields of others whom she has also named from the start certainly does not tend to weaken her testimony.
The only accused who is not in some way independently linked up with the testimony of these two women is Indar.
But when their stories find corroboration on so many important particulars we see no reason why they should be disbelieved as regards Indar, always remembering that these are not witnesses who require corroboration under the law.
In our opinion, the High Court was unnecessarily cautious in acquitting the other three accused when the learned Judges were convinced that at least five persons were, concerned, 156 We have taken into consideration the fact that the High Court considers that the portion of Mst.
Punnan 's story regarding the lambardars has been falsely introduced by the police, also that both courts have rejected the evidence about the dying declaration.
Despite that, we agree with the learned Sessions Judge that Mst.
Punnan and Mst.
Charni are to be believed regarding the main facts and that they correctly named all seven accused as the assailants.
On that finding the conviction under section 302 read with section 149 can be sustained.
We accordingly uphold these convictions.
The acquittals in the other the cases will of course stand but the mere fact that these persons have, in our opinion, been wrongly acquitted cannot affect the conviction in the other cases.
On the question of sentence, it would have been necessary for us to interfere in any event because a question of principle is involved.
In a case of murder, the death sentence should ordinarily be imposed unless the trying Judge for reasons which should normally be recorded considers it proper to award the lesser penalty.
But the discretion is his and if he gives reasons on which a judicial mind could properly found, an appellate court should not interfere.
The power to enhance a sentence from transportation to death should very rarely be exercised and only for the strongest possible reasons.
It is not enough for an appellate court to say, or think, that if left to itself it would have awarded the greater penalty because the discretion does not belong to the appellate court but to the trial Judge and the only ground on which an appellate court can interfere is that the discretion has been improperly exercised, as for example where no reasons are given and none can be inferred from the circumstances of the case, or where the facts are so gross that no normal judicial mind would have awarded the lesser penalty.
None of these elements is present here.
This is a case in which no one has been convicted for his own act but is being held vicariously responsible for the act of another or others.
In cases where the facts are more 157 fully known and it is possible to determine who inflicted blows which were fatal and who took a lesser part, it is a sound exercise of judicial discretion to discriminate in the matter of punishment.
It is an equally sound exercise of judicial discretion to refrain from sentencing all to death when it is evident that some would not have been if the facts had been more fully known and it had been possible to determine, for example, who hit on the head or who only on a thumb or an ankle; and when there are no means of deter mining who dealt the fatal blow, a judicial mind can legitimately decide to award the lesser penalty in all the cases.
We make it plain that a Judge is not bound to do so, for he has as much right to exercise his discretion one way as the other.
It is impossible to lay down a hard and fast rule for each case must depend on its own facts.
But if a Judge does do so for reasons such as those indicated above, then it is impossible to hold that there has not been a proper exercise of judicial discretion.
Now the High Court do not consider these facts at all.
They give no reasons and dispose of the matter in one sentence as follows: "I would dismiss the appeals of the other four and accepting the revision petitions change their sentences from transportation to death.
" That, in our opinion, is not a proper way to interfere with a judicial discretion when a question of enhancement is concerned.
We are unable to hold that the discretion was improperly exercised by the learned Sessions Judge.
Whether we ourselves would have acted differently had we been the trial court is not the proper criterion.
We accordingly accept the appeals on the question of sentence and reduce the sentence in each case to that of transportation for life.
Except for that, the appeal is dismissed.
Sentence reduced.
Appeal dismissed.
[/INST]Before section 149 of the Indian Penal Code can be applied, the court must find with certainty that there were at least live persons sharing the common object.
This does not, however, mean that five persons must always be convicted before section 149 can be applied.
If the judge concludes that five persons were unquestionably present and shared the common object, though the identity of some of them is in doubt, the conviction of the rest would be good; but if this is his conclusion, it behoves him, particularly in a murder case where heavy sentences have been imposed, to say so with certainty.
Rameshwar vs The State of Rajasthan ([1952] S.C.R. 377) referred to.
The power to enhance a sentence from transportation to death should very rarely be exercised and only for the strongest reasons.
It is not enough for the appellate court to say or think that if left to itself it would have awarded the greater penalty because the discretion does not belong to the appellate court but to the trial judge, and the only ground on which the appellate court can interfere is that the discretion has been improperly exercised, as for instance where no reasons have been given and none can be inferred from the circumstances of the case or where the facts are so gross that no normal judicial mind would have awarded the lesser penalty.
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<s>[INST] Summarize the judgementition No. 449 of 1979 (Under Article 32 of the Constitution) R. K. Garg and D. K. Garg for the Petitioner.
The Order of the Court was delivered by KRISHNA IYER, J.
The adventurous petitioner imaginatively challenges the vires of Section 7 read with Section 16 of the Prevention of Food Adulteration Act and the relevant rules framed thereunder.
The gravamen of his charge is that the above provisions, read together, impose an inflexible minimum sentence of six months R.I. of offender 's guilty of sale of adulterated food, excluding in the process even the need to prove mens rea in the accused.
This absolute liability, with mandatory sentence, dependent on sophisticated chemical tests and complicated formulae, is oppressively unreasonable in the illiterate, agrestic realities of little Indian retail trade.
Such, in one sentence, is the submission of counsel.
The primary props to support this broad submission may be briefly noticed.
Counsel complains that there is no classification as between injurious pollutants and innocuous adulterants while proscribing the sentence.
Nor is there any intelligent differentiation between petty dealers and giant offenders, and vendors, big and small, are put on the Procrustean bed of stern punishment alike.
Articles 14, 19 and 21 are the constitutional artillery employed by counsel to shoot down the said provisions of the Act.
Frankly, we are not impressed with the consternation about the constitutionality even if the potential for victimisation affecting smaller people may be real and elicit our commiseration.
We may dwell for a moment on the latter grievance against the law a little later.
First, we will repel the vice of unconstitutionality.
Let us be clear about the basics.
Policy is for Parliament, constitutionality for the Court.
Protection of public health and regulation of noxious trade belong to the police power of the State and legislation like the Prevention of Food Adulteration Act is of that genre.
If a sentence, as here, is prescribed as a mandatory minimum and that is too cruel to comport with article 21 and too torturesome to be reasonably justifiable or socially defensible under article 19 then a case for judicial review may arise.
But we see none here.
Nor can we agree that judge proof sentencing is per se bad.
Sometimes judicial 257 fluctuations in punishment, especially on the softer side where white collar criminals are involved, induce legislative standardisation of sentences, to avoid giving societal protection in hostage to fortune.
There is a wide play still left for the court, and mandatory minima are familiar from the days of the Penal Code (Vide Sec. 302).
The prescription of equal protection is not breached either, because within the range of judicial discretion the court deals out to each what he deserves according to established principles.
Shri R. K. Garg feelingly urged that the poor and the weak, who are the larger, lower sector of retail traders, will have to suffer the standardised imprisonment if Food Inspectors can challan them in Court and, on some minor variation in the chemical composition of food sold, get them convicted sans mens rea merely because, along the chain, some bigger trader has fobbed off inferior commodities on them.
We are disturbed that it is possible that small men become the victims of harsh law when there is no executive policy which guides prosecution of offenders.
Petty victuallers and big sharks operate on society in different degrees and draconian equality will be tempered by flexible policy.
This is a matter of penal policy in constitutionality and so it is, in a sense, out of bounds for judicial advice.
Even so, we feel constrained to state that public authorities entrusted with the enforcement of regulatory provisions to protect society may, in proper cases, examine those prosecutions which are harassments to the humbler folk even if they technically violate the law and cause only minimal harm to society and decide whether they should at all sanction their prosecution.
The Legislature, in its wisdom, may also consider the advisability of resting power somewhere to reduce the sentence without the bigger offender escaping through these wider meshes meant for the smaller offenders.
Even otherwise, there is a general power in the Executive to commute sentences and such power can be put into action on a principled basis when small men get caught by the law.
We dismiss the Writ petition since there is no constitutional invalidity made out and the grounds urged are more appropriately an appeal to the Parliament and the Executive.
V.D.K. Petition dismissed.
[/INST]A Hindu undivided family consisting of the father (Karta) and his three sons carried on business.
Land was acquired in the name of the Karta and the price was paid out of the books of the family, and a building was constructed on the land.
Another building was constructed on another plot of land.
On a partial partition of the above Hindu undivided family its business was taken over by a partnership firm consisting of the Karta and the two elder sons and the firm debited a certain sum of money in the building account of the firm for the assessment year 1955 56 and a similar sum in respect of the other property for the assessment year 1956 57.
The appellants (assessees) who were members of the partnership firm, filed separate returns in their individual status for the assessment years 1955 56 and 1956 57 claiming that the two properties belonged to the four members of the family in their individual capacity.
The Income Tax Officer however regarded the properties as belonging to the partnership firm, and in the assessment proceedings of the firm for the said years, estimated the cost of construction at a higher figure, than the cost disclosed, and made additions accordingly to the returned income of the firm.
Allowing the appeals of the partnership firm the Appellate Assistant Commissioner deleted the additions holding that as the money was advanced by the firm and debited to the account of each co owner, the partnership firm was not the owner of the properties and therefore it could not be said to have earned any concealed income.
The Income Tax Officer then initiated proceedings under section 147(a) of the I.T. Act 1961 against the individual assessees for the assessment years 1955 56 and 1956 57 and the additions on account of concealed income originally made in the assessments of the partnership firm were divided between the assessees and included in their individual assessment, rejecting the plea of the assessees that there was no case for invoking the said section, as they had already disclosed that they had invested in the properties when filing their original individual returns.
On appeal the Appellate Assistant Commissioner though agreeing that there was no default on the part of the assessees to warrant proceedings under section 147(a) and though ordinarily the assessments would be barred by limitation, maintained the assessments on the ground that section 153(3)(ii) of the Act applied.
273 The Income Tax Appellate Tribunal though rejecting the contention that the assessees were not covered by the expression "any person" in section 153(3)(ii), pointed out that the provision could not be availed of by the Income Tax Officer as there was neither any "finding" nor a "direction" on the earlier order of the Appellate Assistant Commissioner in consequence of which, or to give effect to which, the impugned assessment could be said to have been made and that no opportunity had been afforded to the assessees of being heard as was required by Explanation 3 to section 153(3) before that earlier order was made.
It held that the Appellate Assistant Commissioner had no jurisdiction to convert the assessments made by the Income Tax Officer under section 147(a) to "assessments passed under section 153(3)(ii)".
The High Court on Reference by the Tribunal observed that the finding that the properties did not belong to the partnership firm and therefore the excess amount of the cost of construction could not be regarded as the concealed income of the firm, was necessary for the disposal of the appeals filed by the firm and as a corollary it was held that the buildings belonged to the co owners.
This necessitated the "direction" to the Income Tax officer that he was free to assess the excess amount in the hands of the co owners.
It held that the Appellate Assistant Commissioner could convert the provisions of section 147(i) into those of section 153(3)(ii) of the Act and that the provisions of section 153(3)(ii) of the Act applied to the case.
In the assessee 's appeals to this Court on the question whether section 153(3)(ii) can be invoked.
Allowing the appeals, ^ HELD: (1) The provisions of section 153(3)(ii) of the Income Tax Act, 1961 are not applicable to the instant case.
[280 C] (2) The expression "finding" and "direction" are limited in meaning.
A finding given in an appeal, revision or reference arising out of an assessment must be a finding necessary for the disposal of the particular case, that is to say, in respect of the particular assessee and in relation to the particular assessment year.
To be a necessary finding, it must be directly involved in the disposal of the case.
[277G] (3) Where the facts show that the income can belong either to A or B and to no one else, a finding that it belongs to B or does not belong to B would be determinative of the issue whether it can be taxed as A 's income.
A finding respecting B is intimately involved as a step in the process of reaching the ultimate finding respecting A.
If, however, the finding as to A 's liability can be directly arrived at without necessitating a finding in respect of B, then a finding made in respect of B is an incidental finding only.
It is not a finding necessary for the disposal of the case pertaining to A.
The same principles apply when the question is whether the income under enquiry is taxable in the assessment year under consideration or any other assessment year.
[278A B] (4) It is now well settled that the expression "direction" in section 153(3) (ii) of the Act must mean an express direction necessary for the disposal of the case before the authority or court.
It must also be a direction which the authority or court is empowered to give while deciding the case before it.
[278C] 274 5.
(i) Section 153(3) (ii) is not a provision enlarging the jurisdiction of the authority or court.
It is a provision which merely raises the bar of limitation for making an assessment order under section 143 or section 144 or section 147.
[278D] Income Tax Officer, A Ward, Sitapur vs Murlidhar Bhagwan Das, ; N. Kt.
Sivalingam Chettiar vs Commissioner of Income tax, Madras, ; referred to.
In the instant case all that has been recorded is the finding that the partner ship firm is not the owner of the properties.
The finding proceeds on the basis that the cost has been debited in the accounts of the four co owners.
But that does not mean, that the excess over the disclosed cost of construction constitutes the concealed income of the assessees.
The finding that the excess represents their individual income requires a proper enquiry and for that purpose an opportunity of being heard is needed to be given to the assessees.
That is plainly required by Explanation 3 to section 153(3).
The finding contemplated in Explanation 3, is a finding that the amount represents the income of another person.
[278H 279B, D] (ii) It is one thing for the partners of a firm to be required to explain the source of a receipt by the firm, it is quite another for them in their individual status to be asked to explain the source of amounts received by them as separate individuals.
[279C] (iii) The observation of the Appellate Assistant Commissioner cannot be described as such a finding in relation to the assessee.
[279D] (iv) It is also not possible to say that the order of the Appellate Assistant Commissioner contains a direction that the excess should be assessed in the hands of the co owners.
The observation that the Income Tax Officer "is free to take action" cannot be described as a "direction".
A direction by a statutory authority is in the nature of an order requiring positive compliance.
When it is left to the option and direction of the Income Tax Officer whether or not to take action it cannot be described as a direction.
[279E F] (v) The order of the Appellate Assistant Commissioner contains neither a 'finding ' nor a 'direction ' within the meaning of section 153(3)(ii) of the Act in consequence of which or to give effect to which the impugned assessment proceedings can be said to have been taken.
[279G] Commissioner of Income tax, Andhra Pradesh vs Vadde Pullaiah & Co., ; referred to.
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<s>[INST] Summarize the judgementAppeal No. 638 of 1952.
Appeal by special leave from the judgment and decree dated May 21, 1957 of the Assam High Court in First Appeal No. 7, of 1962.
N.C. Chatterjee and D.N. Mukherjee, for the appellants.
S.C. Nath, P.K. Chatterjee for R. Gopalakrishnan, for the respondent.
The Judgment of RAGHUBAR DAYAL, BACHAWAT and RAMASWAMI JJ.
was delivered by BACHWAT J. MUDHOLKAR J. delivered a separate Judgment.
Bachawat .1.
The appellants carrying on business at Raha in Nowgong District had dealings with the respondents, carrying on business at Gauhati.
As a result of the said dealings, the appellants were indebted to the respondents in a sum of Rs. 9,447 4 9.
In order to satisfy the dues of the respondents, the appellants sent to the respondents a cheque for Rs. 9,461 4 0 dated August 31, 1948.
The cheque was drawn by a third party, Messrs. Nathuram Jaidayal of Sibsagar on the Tripura Modern Bank, Sibsagar Branch, in favour of the appellants, who endorsed it to the respondents.
On September 4, 1948, the respondents sent the cheque to their bankers, the Calcutta Commercial Bank, Gauhati for collection.
On the same day, the Calcutta Commercial Bank, Gauhati sent the cheque to the Tripura Modern Bank, Sibsagar for encashment.
The Tripura Modern Bank, Sibsagar debited the accounts of their constituents.
Messrs Nahuram Jaidayal with the sum of Rs. 9,461 4 0, and after deducting Rs. 6 4 0 on account of commission charges, sent to the Calcutta Commercial Bank, Gauhati a draft for Rs. 9,435/ dated September 14, 1948 towards payment of the cheque.
The draft was drawn by the Tripura Modern Bank, Sibsagar on its Calcutta Head Office, and was marked current for three months from the date of the issue.
On receipt of the draft, the Calcutta Commercial Bank, Gauhati sent it to their Head Office at Calcutta for collection.
But the Calcutta Commercial Bank never presented the draft to the Tripura Modern Bank, and made no attempts to collect the amount of the draft.
105 In the meantime, the respondents wrote to the appellants informing them that cash payment for the cheque has not been received, and on September 18, 1948 the appellants replied asking the respondents to get back the cheque.
But the cheque was never returned to the respondents.
On September 17, 1948, the Calcutta Commercial Bank closed its business, and subsequently, it was ordered to be wound up.
On October 16, 1948, the Tripura Modern Bank also closed its business.
and in view of its inability to pay its dues, was compelled to enter into a scheme of arrangement with its creditors.
On November 19, 1948, the respondents requested the Tripura Modern Bank to pay the amount of the draft to them and not 10 the Calcutta Commercial Bank.
But no payment was made by the Tripura Modern Bank either to the respondents or to the Calcutta Commercial Bank.
On March 8, 1949, the respondents instituted the suit, out of which the appeal arises, claiming payment of their dues from the appellants on the footing that the cheque dated August 31, 1948 was received by the respondents as a conditional payment, and as the cheque was not cashed, the respondents were entitled to enforce their original claim.
The Subordinate Judge, Lower Assam District, dismissed the suit.
On appeal, the High Court reversed the judgment appealed from, and decreed the suit.
The appellants now appeal to this Court by special leave.
The High Court rightly held that the respondents originally received the cheque dated August 31, 1948 as a conditional payment of their dues, and if nothing else happened, the original debt Would have revived on non payment of the cheque.
But we think that having regard to the laches of the respondents in the collection of the draft and the consequential prejudice to the appellants, the respondents must be deemed to have retained the draft as absolute payment of the cheque, and on the payment of the cheque, the original debt stood discharged.
In Chitty on Contracts, 22nd Edn., article 1079, the law is stated thus: "Where a negotiable instrument, upon which the debtor is not primarily liable, is accepted by the creditor as conditional payment, he is bound to do all that a holder of such an instrument may do in order to get payment; thus it is his duty to present a cheque within a reasonable time, and if he fails to do.
so, and the debtor is thereby prejudiced, the creditor is guilty of laches and makes the cheque his own, so that it amounts to payment of the debt.
" In Addison 's Treatise on the Law of Contracts, 11th Edn., p. 156, it is stated: "If the debtor makes an order upon his banker for payment of the amount of the debt, and the creditor accepts it, and keeps it in his hands an unreasonable time before 106 presenting it for payment, and the banker becomes insolvent, the debtor is discharged on account of the laches of the creditor." In Hobkins vs Ware(1), it was held that a creditor who takes from his debtor 's agent on account of the debt the cheque of the agent, is bound to present it for payment within a reasonable time; and if he fails to do so and by his delay alters for the worse the position of the debtor, the debtor is discharged, although he was not a party to the cheque.
In the old case of Chamblerlyn vs Delarive(2) it was held that if a creditor accepting a note or draft of his debtor upon a third person holds it an unreasonable time before he demands the money, and the person upon whom it is drawn becomes insolvent, it is the creditor 's own loss, though the draft be not a bill of exchange or negotiable.
Now, in the instant case, the respondents accepted from their debtors, the appellants, a cheque drawn by a third party on the Tripura Modern Bank and endorsed by the appellants.
The respondents through their collecting agents, the Calcutta Commercial Bank, presented the cheque for collection to the Tripura Modern Bank, and instead of obtaining cash payment, received a draft drawn by the Sibsagar Branch of the Tripura Modern Bank on its Head Office.
Having accepted this draft in course of collection of the cheque, the respondents vis a vis the appellants were in no better position than they would have been, if they had accepted the draft from the appellants directly as conditional payment of the cheque.
In the circumstances, the respondents owed a duty to the appellants to present the draft for payment within a reasonable time.
The draft could be presented for payment at any time during the period of three months from the date of its issue.
Instead of presenting the draft for payment, the respondents collecting agents kept it in their hands, and made no attempts to cash it.
P.W. 3, an employee of the Calcutta Commercial Bank, said that the draft, was sent by the Gauhati Office of the Bank to its head office by registered post, but the head office had closed its business and the draft came back to the Gauhati office undelivered.
The closure of the business of the collecting agents was not a lawful excuse for not obtaining delivery of the draft and not presenting it for payment within a reasonable time.
P.W. 3 admitted that had the draft been presented for payment to the Tripura Modern Bank before October 16, 1948, it would have been paid on presentation, and the money could not be realised only because the Calcutta Commercial Bank had closed in the meantime.
The Tripura Modern Bank closed its ,business on October 16, 1948.
Because of its inability to pay its debts, the Tripura Modern Bank is now working under a scheme of arrangement.
The failure of the respondents and their agents to cash the draft within a reasonable time altered the position of the appellants for the worse, and caused prejudice to them.
In the circumstances, the respondents must be regarded as having kept the (1)L.R. (2) ; ; 107 draft in absolute payment of the cheque.
The cheque must be treated as duly paid and consequently, the original debt stood discharged.
The High Court was on error in holding that the failure to obtain payment of the draft was not due to the laches of the respondents ' collecting agents.
In one part of the judgment, the High Court wrongly assumed.
contrary to fact, that the Tripura Modern Bank had stopped business on September 16, 1948 and therefore the draft could not be cashed on presentation, whereas, in fact, the Tripura Modern Bank had stopped business a month later on October 16, 1948.
Moreover, the High Court wrongly assumed that the appellants did not suffer any loss on account of the delay in the presentation of the draft.
There is clear evidence on the record that the draft would have been cashed, if it had been presented for payment before October 16, 1948.
Mr. Chatterjee also contended that the respondents ' collecting agents must be deemed to have accepted the demand draft on September 14, 1948 as absolute payment of the cheque, and that the cheque was, in the eye of law, paid and discharged on that date.
There is a lengthy discussion on this point in the judgment of the High Court, but we do not think it necessary to decide this, question.
In the result.
the appeal is allowed, the judgment and decree passed by the High Court are set aside, and those of the trial Court are restored.
The respondents shall pay to the appellants the costs in this Court.
The parties will pay and bear their own costs in the Courts below.
Mudholkar, j. I agree with my brother Bachawat that this appeal should be allowed; but I would prefer to rest my decision upon a different ground.
It is not necessary to repeat here the .facts which have been set out in my learned brother 's judgment.
Mr. N.C. Chatterjee, appearing for the defendants appellants, urged two grounds, the first of which was that the plaintiffs respondents had accepted the draft for Rs. 9,455/ dated September 14, 1948 drawn by the Tristan Modern Bank, Sibsagar on its Head Office at Calcutta in payment of the cheque for Rs. 9,461 4 0 drawn on the Tripura Modern Bank, Sibsagar which the appellants had endorsed, in favour of the respondents in satisfaction of the amount due upon that cheque and that, therefore, the subsequent dishonor of the draft would not revive the appellants ' liability to pay Rs. 9,455/to the respondents.
The other ground was that the appellants were discharged from liability because of the laches of the respondents in not presenting the draft for encashment within reasonable time of the drawing of that draft.
My learned brother has rested his decision on the second ground.
In my view, however, it is not necessary to express any opinion upon the second ground as the first ground urged by Mr. Chatterjee is a good answer to the respondent 's claim.
108 It is a well accepted rule of English law, which has been applied in this country also, that when a debt becomes due the debtor must tender to the creditor the exact amount of the debt in cash or other legal tender and that where a cheque is tendered by the debtor to the creditor the payment may be absolute or conditional, the strong presumption being in favour of conditional payment.
(see Chalmers on Bills of Exchange, p. 301, 12th ed.).
Therefore, when the respondents accepted the cheque drawn by Messrs Nathuram Jaidayal of Sibsagar in favour of the appellants and endorsed by the appellants in their favour and sent it to the Calcutta Commercial Bank Ltd., Gauhati Branch for collection they must have accepted it as conditional payment.
The respondents ' bank, instead of collecting cash from the Tripura Modern Bank Ltd., Sibsagar, sought to collect the amount by draft.
The reason for this given by Debendra Chandra Mazumdar, P.W. 3, who was Assistant Accountant at the Gauhati Branch of the Calcutta Commercial Bank Ltd. at the relevant time was that the Bank usually collected money from other banks by draft.
There is nothing to indicate in his evidence that this was the prevailing practice in the Banks carrying on business in Assam.
According to him, the respondents ' bank asked for a draft payable at Gauhati but the Tripura Modern Bank Ltd. sent one payable at Calcutta.
The respondents ' bank, however, accepted the draft and sent it by registered post to Calcutta for collection.
Some time thereafter the respondents ' bank closed business and the demand draft was returned undelivered.
The respondents ' Bank made over the draft to the respondents.
It may be mentioned that though the Tripura Modern Bank Ltd., had branch at Gauhati the respondents ' Bank did not object to a draft payable at Calcutta thinking that the money due thereunder could be collected earlier from the Calcutta branch of the Tripura Modern Bank.
The matter, however, did not rest there.
After the respondents ' Bank went into liquidation the respondents wrote a letter on November 19, 1948 to the Agent of the Tripura Modern Bank Ltd., Calcutta saying that the demand draft belonged to them and not to the Calcutta Commercial Bank Ltd., who were only acting as their agents for collection purposes and that the amount for which the draft was drawn should be paid to them and not to the Calcutta Commercial Bank or any one on its behalf.
This letter clearly shows that the respondents accepted the draft in full payment of the amount due to them under the cheque which the appellants had endorsed in their favour.
Thus, though the cheque endorsed by the appellants in favour of the respondents was only a conditional payment of the amount for which the cheque was drawn the respondents by accepting the demand draft drawn by the Tripura Modern Bank, Sibsagar on its Calcutta Branch must be deemed to have accepted that draft as a legal tender or as absolute payment of the amount payable order the cheque endorsed in their favour by the appellant.
Thehrights thereafter would rest only upon the demand draft and not upon the original debt which the appellant owed to them.
It may be mentioned that the 109 Tripura Modern Bank had not gone into liquidation till a month later and would, as stated by Debendra Chandra Mazumdar, P.W3, have been able to meet the draft had it been presented to its Calcutta Branch within reasonable time from the date on which it was drawn.
It is because the respondents ' Bank went into liquidation just about the time the registered letter containing the draft was sent to Calcutta and no one took .delivery of it that the draft could not be presented to the Calcutta Branch of the Tripura Modern Bank.
The remedy of the respondents, therefore, could be against their own bank, that is, the Calcutta Commercial Bank or against the Tripura Modern Bank but certainly not against the appellants.
Reliance, however, was placed by Mr. S.C. Nath for the respondents upon the letter dated September 10, 1949 written by the appellant to the respondents in which the appellant wrote as follows. " . . and received your letter.
You wrote that the payment of Rs. 9,461 4 0 had not been received.
Please get the cheque back.
We have written to the drawer, which please note.
" According to learned counsel, therefore, the appellant must be deemed to have accepted its liability upon the cheque which it had endorsed in favour of the respondents.
There is no reference in this letter to the demand draft and it is quite clear therefore what the appellant said was in ignorance of the fact that the respondents bank had accepted a demand draft in payment of the cheque.
It may be mentioned that the Tripura Modern Bank, Sibsagar had actually debited the account of the drawer of the cheque with the amount for which the cheque had been drawn.
The cheque had thus been honoured by them.
But instead of paying cash they issued a demand draft at the instance of the respondents bank.
This letter, therefore, does not improve matters for the respondents.
For these reasons the appeal is allowed, the decree of the High Court is set aside and that of the trial court restored.
The respondents will pay the appellants costs in this Court and in the Courts below and bear their own costs.
Appeal allowed.
[/INST]In payment of an amount due from them to the respondents, the appellants sent to the respondents on August 31, 1948 a cheque which had been drawn on the Sibsagar branch of a Tripura Bank in favour of the appellants by a third party and thereafter endorsed by the appellants to the respondents.
On September, 4, 1948, the respondents forwarded the cheque to their bankers, a Gauhati Bank who.
in turn, sent the cheque to the Tripura Bank at Sibsagar for encashment.
That bank debited the amount of the cheque to the account of the third party and sent to the respondent 's Gauhati Bank a draft which was payable at its own Head Office at Calcutta.
Thereafter the respondents ' Gauhati Bank forwarded the. draft to their Head Office at Calcutta for collection but the latter never presented the draft and made no attempt to collect the amount of the draft.
In the meantime, the respondents bank closed its business on September 17, 1948 and was ordered to be wound up.
About a month later, the Tripura Bank also closed its business and was compelled to enter into a scheme of arrangement with its creditors.
Upon the failure of their attempts to obtain payment of the draft amount from the Tripura Bank, the respondents instituted a suit against the appellants claiming payment of their dues on the ground that the cheque dated August 31, 1948 was received by the respondents as a conditional payment, and as the cheque had not been cashed, the respondents were entitled to enforce their original claim.
The sub Judge dismissed the suit but the High Court in appeal reversed the decision and decree the suit.
On appeal to the Supreme Court, HELD: (per Raghubar Dayal, Bachawat and Ramaswami, J J)Although the respondents originally received the cheque as a conditional payment of their dues, and if nothing else had happened, the original debt would have revived on non payment of the cheque, having regard to the laches of the respondents in the collection of the draft and the consequential prejudice to the appellants, the respondents must be deemed to have retained the draft as absolute payment of the cheque and on the payment of the cheque, the original debt stood discharged.
[105 E F] Chetty on Contracts, 22nd Edn. article 1079; Addison 's Treating on the Law of Contracts, 11th Edn.
p. 156; Hobkins vs Ware, ; Chamberlyn vs Delarive, ; , referred to.
(per Mudholkar.
J.): There was evidence to show that respondents ' bank, instead of collecting cash from the Tripura Bank at Sibsagar, sought, for reasons 0 their own, to collect the amount by draft.
Furthermore, after the respondent bank went into liquidation, the respondents wrote to the Tripura Bank stating that the 104 amount of the demand draft belonged to them and not to their bankers who were only acting as their agents for collection purposes and that accordingly the draft amount should be paid to them.
Thus, though the cheque endorsed by the appellants in favour of the respondents was only a conditional payment of the amount for which the cheque was drawn, the respondents, by accepting the demand draft drawn by the Tripura Bank must be deemed to have accepted the draft as a legal tender or as absolute payment of the amount payable under the cheque endorsed in their favour by the appellant.
Their rights thereafter would rest only upon the demand draft and not upon the original debt which the appellant owed to them.
The remedy of the respondents, therefore, could be against their own bank, or against the Tripura Bank, but not against the appellants.
[108 E, 109 C]
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<s>[INST] Summarize the judgementr Petition (Civil) No. 344 of 1983.
Under article 139A of the Constitution of India for transfer of Writ Petition No. 475 of 1983 pending before the Rajasthan High Court.
D. Bhandari for the Petitioner (Not Present) B. D. Sharma for the Respondent.
The Order of the court was delivered by 200 CHINNAPPA REDDY, J.
This petition is totally bereft of any statement of facts.
It has been drafted and filed in a most casual and careless manner.
All that is stated in the petition is that the Writ Petition pending in the Rajasthan High Court raises exactly the same questions as those raised in SLP (Civil) No. 7561/83 pending in this Court and the writ petition may, therefore, be transferred to this Court.
Nothing else is mentioned.
No facts relating to either case are mentioned.
Even the alleged common questions are not stated.
We can only say that it is most discourteous and disrespectful to the highest court in the country to file such indifferent petitions.
The advocate is not discharging his duty either to the court or to the client.
Transfer petition is dismissed.
H.S.K. Petition dismissed.
[/INST]The appellant was dismissed from the post of "Branch Manager" by respondent No. 3, Bank, after an inquiry relating to fraudulent encasement of a draft by one Labh singh.
His demand in regard to his dismissal, was referred by the Govt.
of Punjab to the Conciliation Officer, who recommended that the appellant 's case should be forwarded for adjudication on the question whether his dismissal from service was justified.
The Labour Commissioner, exercising the powers of the State Government, declined to refer the dispute to the Labour Court for adjudication but without giving any reasons for his conclusion that the appellant was not a "workman".
The appellant challenged before the High Court the decision of the Labour Commissioner in writ petition which was dismissed summarily.
Hence this appeal.
The grievance of the appellant is that the Labour Commissioner ought to have given reasons in support of his decision.
Allowing the appeal, ^ HELD: 1.
All that the Labour Commissioner has stated in the order is that the post held by the appellant did not fall within the category of "workman" but no reasons are given to justify that conclusion.
He ought to have given reasons why he came to the conclusion that the appellant is not a "workman" within the meaning of section 2(s) of the .
[319 D E] 2.
In the instant case, the Court keeping in view that remanding the matter to the Labour Commissioner for giving his reasons will entail delay, directed the Labour Commissioner, Chandigarh to make a reference either to the Labour Court or to the Industrial Tribunal section 12(5) of the Industrial 318 Disputes Act 1947 for adjudication of the question as to whether the dismissal of the appellant from the service of the Bank is legal and justified.
[319 E E]
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<s>[INST] Summarize the judgement(Civil) No. 3 of 1983.
(Under Article 32 of the Constitution of India).
WITH W.P. Nos.
4OO 402, 425, 492, 2493 2495, 2526 2528 of 1983 and 1256 of 1987.
Soli J. Sorabjee, Ravinder Narain, DA.
Dave and P.H. Parekh, for the Petitioners.
A.K. Ganguli, T.V.S.N. Chari Ms. Radha Rangaswamy and P. Parmeshwaran for the Respondents.
The Judgment of the Court was delivered by YOGESHWAR DAYAL J.
This order will dispose of the aforesaid writ petitions under Article 32 of the Constitution of India.
All these cases come under Item 18.1 and/or 18 III and/or 18E of the Tariff contained in the schedule attached to the Central Excise and Salt Act 1944 (hereinafter referred to as 'the Act ').
For facility of reference we are giving the facts of the case of Civil Writ Petition No. 3 of 1983.
144 This Writ Petition is stated to be covered by the decision of this Court in J.K Cotton Spinning and Weaving Mills Ltd. & another vs Union of India and others; , and the surviving prayer in the writ petition is to declare that the duty of excise in respect of Tariff Item Nos. 18 (A) (a), 18 (III) (ii) and 18E is to be levied and collected on the weight of the unsized yarn and not on the basis of the weight of the sized yarn".
Before we deal with the objections of the learned counsel for the respondents, it would be useful to examine the points which were involved in the aforesaid case of J.K Cotton Mills.
The appellants in the said case had a composite mill wherein it manufactured fabrics of different types.
In order to manufacture the said fabrics, yarn was obtained at an intermediate stage.
The yarn so obtained was further processed in an integrated process in the said composite mill for weaving the same into fabrics.
The appellants did not dispute that the different kinds of fabrics which were manufactured in the miff were liable to payment of excise duty on their removal from the factory.
They also did not dispute their liability in respect of yarn which was also removed from the factory.
It was the contention of the appellants therein that no duty of excise could be levied and collected in respect of yam which was obtained at an intermediate stage and, thereafter subjected to an integrated process for the manufacture of different fabrics.
On a writ petition, by those appellants, the Delhi High Court by its judgment dated 16th October, 1980 held that yarn obtained and further processed within the factory for the manufacture of fabrics could not be subjected to duty of excise.
It was the case of the appellants that in spite of the said decision of the Delhi High Court, the Central Board of Excise had wrongly issued a circular dated 24th September, 1980 purporting to interpret Rules 9 and 49 of the Central Excise Rules, 1944 (hereinafter referred to as the Rules ') and directing the subordinate excise authorities to levy and collect duty of excise in accordance therewith.
In the said circular, the Board had directed the subordinate excise authorities that use of goods in manufacture of another commodity even within the place/premises that have been specified in this behalf by the Central Excise Officers in terms of the powers conferred under Rule 9 of the Rules, will attract duty".
As the said circular was being implemented to the prejudice of the appellants, they filed the writ petition before the Delhi High Court, inter alia, challenging the validity of the said circular.
During the pendency of the writ petition in the Delhi High Court, the 145 Central Government by Notification No. 20/82 C.E. dated 20th February, 1982 amended Rules 9 and 49 of the Rules.
Section 51 of the Finance Act provides that the amendments in Rules 9 and 49 of the Rules shall be deemed to have, and to have always had the effect on and from the date on which the Rules came into force i.e. 28th February, 1944.
After the said amendments of the Rules with retrospective effect, the appellants amended the Writ petition and challenged the constitutional validity of Section 51 of the Finance Act, 1982 and of the amendments to Rules 9 and 49 of the Rules.
The High Court came to the conclusion that section 51 of the Finance Act, 1982 and Rules 9 and 49 of the Rules, as amended, were valid.
It was further held that the retrospective effect given by Section 51 of the Finance Act, 1982 will be subject to the provisions of Sections 11A and 11B of the Act.
It was further held that the yam which is produced at an intermediate stage in the mill of the appellants therein and subjected to the integrated process of weaving the same into fabrics, will be liable to payment of excise duty in view of the amended provisions of Rules 9 and 49 of the Rules.
But the sized yam which is actually put into the integrated process will not again be subjected to payment of excise duty for, the unsized yarn, which is sized for the purpose, does not change the nature of the commodity as yarn.
The Writ Petition was accordingly allowed in part, as stated aforesaid, and it was this decision which came up in appeal before this Court.
This Court agreed with the Delhi High Court and upheld the vires of Rules 9 and 49 of the Rules as well as Section 51 of the Finance Act, 1982.
This Court also agreed with the High Court that the retrospective effect given by section 51 of the Finance Act, 1982 will be subject to the Provisions of Sections 11A and 11B of the Act.
This Court also agreed with the view of the High Court that the yarn which is produced at an intermediate stage in the mill of the appellants and subjected to integrated process of weaving the same into fabrics, would be liable to payment of excise duty in view of the amended provisions of the Rules, But, this Court further agreed with the High Court, the sized yarn which is actually put into the integrated process will not again be subjected to payment of excise duty for, the unsized yarn, which is sized for the purpose does not change the nature of the commodity as yarn.
This Court observed at pages 720 and 721 of the report as under: "In the instant case, the appellants are liable to pay excise duty on the yarn which is obtained at an intermediate stage and, thereafter, further processed in an integrated process for weav 146 ing the same into fabrics.
Although it has been alleged that the yam is obtained at an intermediate stage of an integrated process of manufacture of fabrics, it appears to be not so.
After the yarn is produced it is sized and, thereafter, subjected to a process of weaving the same into fabrics.
Be that as it may, as we have held that the commodity which is obtained at an intermediate stage of an integrated process of manufacture of another commodity, is liable to the payment of excise duty, the yarn that is produced by the appellants is also liable to payment of excise duty.
In our view, the High Court by the impugned judgment has rightly held that the appellants are not liable to pay any excise duty on the yarn after it is sized for the purpose of weaving the same into fabrics.
No distinction can be made between unsized yarn and sized yarn, for the unsized yarn when converted into sized yarn does not lose its character as yarn.
" The petitioner herein on the other hand approached the Gujarat High Court and the Gujarat High Court by its judgment dated 30th July, 1981 had, before the issuance of the impugned circular dated 24th May, 1982, taken the view that no duty can be levied on the weight of sizing material contained in yarn, falling under Tariff Item No. 18 111 or 18 E and directed that the duty levied should be refunded because the duty has been levied not on the basis of yam at the spindle stage, but on the weight of the sized yarn.
After the decision of the Gujarat High Court the Central Government had amended Rules 9 and 49 of the Rules and Section 51 of the Finance Act, 1982, had made them effective retrospectively.
The present writ petition filled in this Court had inter alia pleaded that the retrospective amendment of Rules 9 and 49 of the Rules as well as Section 51 of the Finance Act, 1982 be declared as ultra vires of the Constitution.
This Court upheld the validity of the Section as well as the retrospective applicability of the Rules but took the view that this would be subjected to the provisions of Sections 11A and 11B of the Act and at the same time declared that the appellants were not liable to pay excise duty on the yarn after it is sized for a purpose of weaving the same into fabrics.
It will be noticed that under items 18.1, 18.III and 18E the measure is "per kilogram".
At this stage items 18.1, 18.111 and 18E of the Tariff may be noticed 147 "18.
I. Man made fibres, other than mineral fibres : (i) Non cellulosic Eighty five rupees per kilogram (ii) Cellulosic Ten rupees per kilogram '18.III.
Cellulosic spun yarn: Yam, in which man made fibre of cellulosic origin predomi nates in weight and, in or in relation to the manufacture of which any process is ordinarily carried on with the aid of power (i) not containing, any manmade fibres of non cellulosic origin.
six paise per count per kilogram (ii) containing man made fibres of non cellulosic origin.
Eighteen Rupees per kilogram.
Explanation 1: "Count" means the size of grey yarn (excluding any sizing material) expressed in English Count.
Eighteen Rupees per kilogram "18E.
Non cellulosic Spun Yam: Spun (discontinuous) yarn, in which man made fibres of noncellulosic origin, other than acrylic fibre, predominate in weight and, in or in relation to the manufacture of which any process is ordinarily carried on with the aid of power.
Twenty four rupees per kilogram.
148 Explanation : Explanation III under sub item III of item No. 18 shall, so far as may be, apply in relation to this item as it applies in relation to that item.
" It will be noticed from the aforesaid items that the measure for imposition of excise duty is by weight "per kilogram" in all the three items, namely 18.1, 18.111 and 18E. Therefore, the aforesaid decision in J.K. Couon Mills will be applicable to all types of cases under Items 18.1, 18.111 and 18E. After the decision of the Gujarat High Court, instead of granting the refund, the Superintendent of Central Excise, Range IV, Division V, Ahmedabad, issued impugned notices, collectively annexed as Annexures 'B ' and 'C ' to the present writ petition in pursuance of the directives dated 24th May, 1982 which are subject matter of challenge in the present writ petition.
On behalf of the respondents Mr. Ganguly learned counsel submitted that this Hon 'ble Court ought not to entertain the present writ petition under Article 32 of the Constitution.
He, however, could not dispute that the matter is directly covered by the decision of this Court in the aforesaid case of J.K Cotton Mills.
These petitions were admitted to hearing in view of the pendency of the aforesaid appeal in the case of J.K Cotton Mills and in view of the decision of the Delhi High Court which was appealed against in the aforesaid case of J.K Couon Mills.
Practically nine years have gone by now and the impugned show cause notices have been issued by virtue of the same directives which were subject matter of the aforesaid case of J.K.cotton Mills.
In view of this peculiar fact it would not be in the interest of justice if the parties are directed to contest the individual show cause notices issued by the respondents in view of the aforesaid directives.
In order to avoid multiplicity of proceedings involving time and expense, we quash the impugned notices in all the cases.
The result is that all the aforesaid writ petitions are accepted and the impugned show cause notices are quashed.
There will be no order as to costs.
G.N. Petitions allowed.
[/INST]IDCO and JOPL entered Into an agreement whereunder IDCO agreed to supply to JOPL 5000 tens of MS rounds for export on terms and conditions mentioned therein.
The goods were not supplied.
By a letter dated September 12, 1969, IDCO cancelled the agreement and intimated to JOPL that its offer which had culminated in the agreement, should be treated as withdrawn.
Some correspondence followed.
Thereafter JOPL 's claim for damages against IDCO for breach of contract was referred to the Chief Secretary, who was named in the agreement, for arbitration.
He declined to act as arbitrator.
An arbitrator was thereafter appointed by the Subordinate Judge, Bhubaneswar under S.20 of the .
He gave his award on September 24, 1985.
In the award the arbitrator briefly stated the facts, the issues settled for adjudication and that the parties had produced a large number of documents, examined witnesses and advanced elaborate arguments.
Having carefully considered them, he set out the conclusions and awarded JOPL Rs. 11,00,344 with pendente lite interest @ 6%.
IDCO challenged the award before the Subordinate Judge, Bhubaneswar who dismissed the petition and made the award a rule of the Court In appeal before the Orissa High Court, the learned Judge rejected all contentions of IDCO except one namely that In answering three issues the arbitrator had arrived at Inconsistent conclusions apparent on the face of the award, which had a bearing on the question of awarding of damages.
He therefore directed that the records be sent back to the 229 230 arbitrator for making a fresh award.
Cross appeals were filed in the Supreme Court.
JOPL contended that there was no inconsistency on the face ' of the award which vitiated it.
For IDCO, it was contended that the award was bad in law, and in any event the High Court was in error in sending the matter back to the arbitrator for making a fresh award.
Dismissing the appeal of IODC, this Court, HELD: 1.
A speaking or reasoned award is one which discusses or sets out the reasons which led the arbitrator to make the award.
Setting out the conclusions upon the questions or issues that arise in arbitration proceedings without discussing the reasons for coming to these con clusions does not make an award a reasoned or speaking award.
The arbitrator has in the award only answered the issues that were framed.
He had not discussed or set out the reasons for the answers.
The award is, therefore, not a speaking or reasoned award.
[234E F] 2.
That the arbitrator merely referred to the pleadings does not mean that the pleadings are incorporated in the award.
[234F] Allen Berry and Co. vs Union of India, AIR 1971 SC 6% and Ciacomo Costa Fu Andrea vs British Italian Trading Co. Ltd, , followed.
In answering issue no.2, the arbitrator construed only such clause of the agreement as was relevant to decide the issue.
Such clause alone would be incorporated in the award and could be looked at by the court to determine if the arbitrator had misconstrued it.
(pp.9 10) [236B] 4.
Even assuming the incorporation of the agreement, an error apparent on the face of the award had to be shown.
(p.10) [236D] Bungo Steel Furniture Pvt. Ltd. vs Union of India, ; , relied on.
In the circumstances of the case, merely because the arbitrator had not mentioned the pleadings and order of reference does not mean that the issues framed did not reflect the referred disputes.
(pp.11 and 12) [237B] 231 6.
That the original foreign sale contracts had not been sent to IDCO does not ipso facto lead to the conclusion that the arbitrator had no material before him upon which he could find in monetary terms the damages suffered by JOPL.
[237E] 7.
In the facts of the case, there are no inconsistencies upon the face of the award as can be characterised as errors that vitiate the award.
An award has to be read as a whole and harmoniously.
The grounds upon which an award can be set aside are limited.
The court should be very circumspect about setting aside an award reached by an arbitrator for parties have agreed that the disputes that may arise or have arisen between them should be resolved not by a court of law but by arbitration.
[239H, 240A] 8.
Evidence of a "malady of the racket of arbitration ' should make the court scrutinies the award carefully in each case, but would not make the court declare all high amounts of awards would be bad per se.
(p.17) [240B C] State of Orissa vs Gangaram Chhapolia, and State of Orissa vs Dandasi Sahu, ;
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<s>[INST] Summarize the judgementAppeal No. 564 of 1967.
Appeal by special leave from the judgment and order dated August 9, 1966 of the Allahabad High Court in S.T.R. No. 563 of 1962.
P. Rana, for the appellant.
The respondent did not appear.
The Judgment of the Court was delivered by Grover, J.
The only point for decision in this appeal by special leave is whether the cloth manufactured by means of 942 looms worked by power can be regarded as "cloth manufactured by mills" for which sales tax was payable at the rate of 6 pies in a rupee in terms of the notification dated June 8, 1948 issued under section 3A of the U.P. Sales Tax Act, 1948.
The general rate of tax on sale of cloth otherwise was 3 pies per rupee.
The High Court on a reference made under the relevant provisions of the Act held that cloth manufactured by means of power looms could not fall under the term "cloth manufactured by the mills".
The approach of the High Court was that since the word "mills" had not been defined either by the Act or by the notification mentioned before the meaning of the words "cloth manufactured by the mills" must be considered according to the common understanding of mankind.
Reference was made to the dictionary meaning as given in Webster ' New International Dictionary, Vol. 2.
According to the dictionary two things were required (1) a building and (2) a machinery, in order to constitute a "mill".
The meaning of the word "machine", according to the dictionary in a popular and mechanical sense is. . . . more or less complex combination of mechanical parts, as levers, gears sprocket wheels, pulleys, shafts and spindles, ropes, chains, and bands, cams and other turning and sliding pieces, springs, confined fluids etc., together with the frame work and fastenings, supporting and connecting them, as when it is designed to operate upon material to change it in some pre conceived and definite manner. . .
According to the High Court looms which are merely worked by power would hardly fall within the meaning of the word "ma chine".
It has been pointed out that looms worked by hand or by power have not been shown by any evidence to be different.
It does not appear to have been disputed before the High Court that a building having looms worked by manual labour would not be a mill.
The court found no difference between building containing looms worked by manual labour or by power.
According to Words and Phrases, Vol.
27 the term "mill" in modem usage, includes various machines or combinations of machinery, as cotton mills, fulling mills, powder mills, etc., to some of which the term "manufactory" or "factory" is also applied.
In our judgment although the dictionary meaning may be of considerable assistance in deciding the point before us but what has to be seen is the context in which the word "mills" is used in the notification.
It is common ground that if cloth was manufactured by looms worked by manual labour the notification was not applicable and the rate of tax per rupee was 3 pies but if he cloth was manufactured by mills then the rate was to be 6 pies.
Thus cloth has been divided broadly into two categories, mill made and loom made.
It is quite obvious that loom made cloth would include all cloth manufactured on looms.
It is difficult to understand how the energy by which the looms are worked 943 would make any difference.
In other words whether the energy is supplied manually or by power cannot convert the essential character of the cloth, namely, its manufacture on looms.
As regards mill made cloth the actual process of weaving Is more or less automatic, preconceived and definite and it involves the functioning of machinery.
Ramchandra Iyer J., in Sri Dhandapani Power loom Factory, Erode vs Commercial Tax Officer, Coimbatore and Anr.(1), was right in observing that mill cloth is a familiar variety of cloth and everybody knows what a am is.
In popular language, a power loom cloth is never associated with a mill cloth.
According to Mcnaghten J., in Ellerker vs Union Cold Storage Co. Ltd., (2) a mill is building where goods are subjected to treatment or processing of some sort and where machinery is used for that purpose.
The illustrations given were: "The miller in his corn mill grinds wheat into flour, ,or oats into oatmeal.
So too, at a scutching mill the miller scutches the flax, to prepare it for spinning.
The saw mill, the rolling mill, the flatting mill, the puffing mill and the cotton mill are all buildings where goods are treated or subjected to some process.
" It must be remembered that the meaning of the word "mill" ,or "mills" would vary according to the context in which that word is used.
In the above case a company carried on a large ,cold storage business.
In some of the cold stores part of the building was used for the manufacture of ice for sale; others were ,only used for the purpose of storage.
It was held that all the premises fell within the meaning of the words in Schedule D Cases 1 and 11, r. 5(2) of the Income tax Act which were : Mills factories or other similar premises.
Counsel for the appellant has sought to argue that once the looms worked by power are used In a building the essential characteristics of "mills" would be satisfied and if any cloth is manufactured on those looms it would be cloth manufactured by " mills" within the meaning of the notification.
The falacy (1) 12 section T. C. 304.
(2) 944 in this argument is that by the same reasoning a building in which looms worked by manual labour are to be found would also have to be regarded as "mills".
This would be contrary to the accepted and popular meaning of handloom or power loom cloth and mill made cloth.
We are satisfied that the distinction which was kept in view when the notification was promulgated was between the aforesaid two categories or types of cloth involving essentially a difference in the process by which it was manufactured.
We would accordingly uphold the view of the High Court and dismiss the appeal.
There will be no order as to costs.
K. B.N. Appeal dismissed.
[/INST]The appellants were accused of an offence under, section 302 read with section 34 of the Indian Penal Code.
Apart from P who was injured in the incident there were, according to the prosecution, two other eye witnesses M and D who.
knew the appellants from before.
The names of the appellants were mentioned in the First Information Report but not their parentage.
The appellants, at the stage of inquiry, made an application to the Additional District Magistrate (Judicial) requesting that a test identification parade be held.
According to the appellants P knew them from before but not the other two alleged eye witnesses.
The Magistrate rejected the application on the ground that the charge sheet had, already been filed.
The same request made at the trial stage to the Sessions Judge was again rejected on the ground it was not bona fide.
The trial court, believing the eye witnesses, convicted the appellants.
The High Court upheld their conviction and did not accept their plea that the trial had been vitiated because they had been denied a test identification parade.
In appeal to this Court by special leave, HELD: As laid down by this Court in Perkash Chand Sogani 's case the absenceof test identification in all cases is not fatal, andif the accused person is well known by sight it would be waste of time to put him up for identification.
But if there is any doubt in the matter the prosecution should hold an identification parade specially if an accused says that the alleged eyewitnesses did not know him previously.
It may be that there is no express provision in the Code of Criminal Procedure enabling an accused to insist on an identification parade but if the accused ' does make an application and that application is turned down and it transpires during the course of the trial that the witnesses did not know the accused previously, the prosecution will, unless there is some evidence,, run the risk of losing the case on this point.
[924 G 925 C] Perkash Chand Sogani vs State of Rajasthan, Cr.
92/1956 dt.
15 1 1957, applied.
Sajjan Singh vs Emperor, A.I.R. 1945 Laj. 48, State of U.P. vs Jagnoo, A.I.R. 1962 All.
333, In re Sangish, A.I.R. 1948 Mad. 113, Awadh Singh & Ors.
vs Patna State, A.I.R. 1954 Pat 483, Provash Kumar Bose vs The King, A.I.R. 1951 Cal.
475, Kanta Prasad vs Delhi Administration ; 1221, referred to.
In the present case it could be said about D that his knowledge of the accused was very scant.
The claim of the other witness M that he had known the accused for about four years was not challenged in crossexamination.
Therefore on the facts of the case the trial of the appellants.
918 Could not be held to be vitiated because of the denial of test identification although the reason given by the Magistrate for refusing it, namely, that the cbarge sheet had already been filed, was wrong.
[925 G 926 C]
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<s>[INST] Summarize the judgementivil Appeal Nos.
2255 56 of 1979.
From the Judgment and order dated 20.12.1978 of the Rajasthan High Court in Special Appeal Nos. 40 and 39 of 196.
V.M. Tarkunde, Tapas C. Ray, Chandmal Lodha, S.K. Jain, Dalveer Bhandari and Badridas Sharma for the appearing parties.
The Judgment of the Court was delivered by RANGANATH MISRA, J.
These are appeals by special leave.
Two of them being Civil Appeals 2255 and 2256 of 1979 are by the Municipal Board of Abu Road.
The rest of the appeals are by assessees living within the municipal area of Sujangarh.
The common ques 586 tion involved in these appeals is as to whether the levy of octroi by different municipalities within the State of Rajasthan on varying basis some on weight of the material and others on the ad valorem basis of the price thereof at varying rates is valid in law.
l he High Court decided against the Abu Road municipality while a different bench of that Court in the cases of Sujangarh municipality decided in its favour on the same question.
Entry 52 of List II of Schedule VII read with Article 246(3) of the Constitution authorises the State Legislature to raise a tax on the entry of goods into a local area for consumption, use or sale.
The Rajasthan Municipalities Act, 1959 (hereinafter referred to as the Act) in Chapter VII makes provisions for imposition of taxes.
Section 104 deals with obligatory taxes while section 105 authorises imposition of other taxes.
As far as relevant, section 104 provides: "(1) Every Board shall levy, at such rate and from such date as the State Government may in each case direct by notification in the official gazette and in such manner as is laid down in this Act and as may be provided in the rules made by the State Government in this behalf, the following taxes, namely (i) . . . . . . (ii) an octroi on goods and animals brought within the limits of the municipality for consumption, use or sale therein; and (iii). . . . . . . . . . . (2) A direction under sub section (1) may provide for the levy of taxes at different rates in different municipalities having regard to their varying local conditions and needs, and on the same considerations and by a like direction, the State Government may, from time to time (i) vary uniformally or differently in relation to different municipalities, the rates of taxes levied, or ( (ii). . . . . . 587 Abu Road municipality prior to 1956 was a part of the State of Bombay and with effect from Ist November 1956, as a result of the States Reorganisation Act of 1956, became a part of the State of Rajasthan.
While within the State of Bombay the Abu Road municipality had prescribed octroi duty on cloth at the rate of 1.9 annas per cent ad valorem and the rate continued till it was varied after promulgation of the Rajasthan Municipalities Act of 1959.
The rates in cities like Jaipur were on the basis of weight.
Judicial notice can be taken of the fact that the areas which now constitute the State of Rajasthan prior to independence of India were independent States of different dimensions and the local conditions and needs of the people inhabiting those areas considerably varied.
There were 13 different Acts then in vogue governing the municipalities within that State.
The Rajasthan Municipalities Act was, therefore, introduced to consolidate and amend the law relating to municipalities in that State.
In February, 1962, the State Government by notification dated 13th February, 1962 issued under section 104 of the Act fixed the rate of octroi at 0.50 paise in place of 1.9 annas with effect from 15th February, 1962.
By notification dated 10th of April, 1964, published in the Gazette on 20th of August, 1964, the State Government in exercise of powers under section 104 of the Act revised the rates of octroi and so far as the municipal board of Abu Road was concerned, Item 62 of the Schedule provided the rate of 1 per cent ad valorem on cloth.
This led to the challenge before the High Court.
The leamed Single Judge who dealt with the writ petitions relied upon the provisions of section 104 of the Act as it then stood and came to hold that the provisions of section 104(1) of the Act were valid but the notification in respect of the municipal board of Abu Road relating to cloth was bad.
During the pendency of the appeals before the Division Bench of the High Court, sub section (2) of section 104 was added by section 12 of the Rajasthan Municipalities (Amendment) Act of 1978.
The Division Bench overlooked this amendment and reiterated the reasons of the learned Single Judge and dismissed the appeals by judgment dated 20th of December, 1978.
The state Government authorised levy of octroi on all types of cloth at the rate of one and a half per cent ad valorem in respect of Sujangarh Municipal Board by notification dated 3rd January,1976.
34 writ petitions were filed before the High court challenging the levy.
It was contended inter alia that there was unreasonable discrimination between the citizens and traders of cloth within Sujangarh Municipal area on the one hand and those of Jodhpur, Jaipur and other named towns on the other, as by authorising levy of octroi at different rates 588 and on different basis discrimination resulted.
Reliance was placed on the decision in the Abu Board municipal cases but the Single Judge as also the Division Bench did not entertain the challenge by relying upon the amended provision of section 104 of the Act.
That is how that group of appeals too has come before this Court by special leave.
There is no dispute as to exigibility of octroi.
Every municipality under the Act is a body corporate.
Section 7 of the Act provides for it.
People residing within each municipal area can be classified as one group different from those residing in any other municipality since octroi is to be levied by the municipality as provided in section 104(1) of the Act subject to the control regarding the rates of levy by the State Government.
The plea of discrimination on the basis of the rates prevalent in another municipality cannot be entertained.
The scheme in section 104 of the Act takes note of the position that local conditions and needs varied and accordingly both in the proviso to sub section ( I) as also in sub section (2) itself, emphasis on that feature has been put.
It is thus open to the State Government on the basis of local conditions and needs to prescribe different rates in relation to different municipalities in the matter of rates of taxes to be levied.
Varying duty of octroi is, therefore, not open to challenge.
The Division Bench while dealing with the appeals of Abu Road municipality should have taken note of the amendment of sub section (2) with retrospective effect.
In some of the municipalities the levy is on the value of the goods while in others it is on the basis of the weight.
Here again, the State Government seems to have applied its mind and has authorised charge of octroi on weight basis taking into consideration the special circumstances.
In bigger municipalities where there are wholesale markets particularly of cloth, a reduced rate of octroi has been prescribed to encourage larger import.
In smaller municipalities where the import is for direct consumption the levy is on ad valorem basis at a higher rate.
The State Government seems to have also taken into consideration that in smaller municipalities there is not much of demand for costly and fine clothes which have higher price while the position is otherwise in bigger municipal areas.
This appears to be the justification for adopting the weight basis in respect of larger municipalities and ad valorem basis for the smaller municipalities.
This again seems to be a legitimate basis and we do not think any valid objection is available against this differential treatment.
Law is well settled that if unequals are treated unequally there is no discrimination and Article 14 of the Constitution is not available to be invoked.
589 In view of what we have said above, the appeals preferred by A Municipal Board of Abu Road will have to succeed.
They are allowed.
Other group of appeals relating to Sujangarh Municipality have to be dismissed.
Parties are directed to bear their own costs throughout.
Before we part with the cases we would like to suggest that in the backdrop of a consolidating and uniform municipal legislation now operating in the field, the State Government may rationalise the rate structure prevalent in different municipal areas so that assessment of octroi would be convenient, a common method would be adopted and the challenge which is raised now and again though we have made it clear that it would be competent for the State Government to allow varying rates in different municipalities keeping the provisions in section l04 of the Act in view may be avoided.
H.L.C. Appeals allowed.
[/INST]% The University of Gujarat held election of 28 members of the Court of the University out of 42 members, as the election with regard to the 14 seats had been stayed by an order of the High Court.
The respondents teachers filed a writ petition in the High Court for setting aside the election of the 28 members and holding fresh election for all the seats.
The High Court set aside the election to the 28 seats and directed the holding of fresh election for all the 42 seats.
Aggrieved by the decision of the High Court in the writ petition, the appellant appealed to this Court.
Allowing the appeal, the Court, ^ HELD: The High Court committed an error in entertaining the writ petition and interfering with the election.
Election to the membership of the court of the University and the determination of the disputes relating thereto, are regulated by the provisions of the Gujarat University Act, 1949.
Under section 58 as substituted by the Gujarat Act 9 of 1983.
Under the provisions of the Act, if a dispute arises with regard inter alia to the election of any member of any authority or other body of the University, it shall be referred to the State Government, which shall decide the matter and the decision of the Government shall be final.
It is well settled that where a statute provides for an election and a machinery or forum to determine any dispute arising out of that election, the aggrieved person should pursue his remedy before the forum provided by the statute.
It is not permissible to invoke the jurisdiction of the High Court by a writ petition, by passing the machinery provided by the Act for the determination of the election dispute.
The remedy provided by the statute must be followed except where exceptional, extraordinary circumstances exist to justify the by passing of the alternative remedies.
In the present case, there existed no circumstance, justifying departure from this rule and the High Court was not right in entertaining the writ petition.
[902B; 903B C, G H; 904B] 900 K.K Shrivastava etc.
vs Bhupendra Kumar Jain & Ors., AIR 1977 SC 1703; Ramjibhai Ukabhai Parmar vs Manilal Purushottam Solanki & Anr., , referred to.
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<s>[INST] Summarize the judgementminal Appeal No. 667 of 1980.
From the Judgment and Order dated 31.7.1980 of the Allahabad High Court in Crl.
Appln.
No. 5296 of 1979.
M.V. Goswami for the Appellants.
Vishnu Mathur, A.S. Pundir and R.C. Verma for the Respondents.
The Judgment of the Court was delivered by SAWANT, J.
The admitted facts in the present case are as follows.
The suit property consists of house No. 336 of village Khonda, District Mathura.
The dispute with regard to the possession of the property arose between the appellants and the respondent Ramshri.
She filed an application under Section 145 of Criminal Procedure Code [Code] before the Sub Divisional Magistrate, Sadabad in which she claimed ownership of the suit property.
On 31st May, 1976, the learned Magistrate passed a preliminary order under Section 145 of the Code and thereafter on 22nd April, 1977 made an order of attachment under Section 146 directing that the attachment would continue till the competent civil court determined the rights of the parties with regard to the said property.
Against this order, a Revision being Cr.
Revision No. 27/1977 was filed by the appellants before the Sessions Judge who by his interim order dated 23rd April, 1977 stayed operation of the learned Magistrate 's order.
However, before the interim stay order could be communicated, the attachment had already been effected.
The learned Sessions Judge, therefore, again, by another interim dated 26th April, 1977 directed the police to restore the possession the property to the appellants from whom allegedly the possession of the property was taken.
The possession was restored to the appellants on 28th April, 1977.
The said Revision application was dismissed on 18th August, 1977.
Though, on account of the dismissal of the Revision, the order of attachment passed by the Magistrate revived, the learned Magistrate passed a fresh order dated 31st January, 1978 under Section 146 attaching the property in dispute.
Against the said order, once more a revision being Cr.
19/1978 was preferred by the appellants to the 5 Sessions Judge who on 2nd February, 1978 passed an order staying the fresh order of attachment passed by the Magistrate.
Thereafter, the appellants filed a suit for permanent injunction against the 1st Respondent and her husband, and in that claimed an interim injunction against them.
The trial court dismissed the application for interim injunction.
Against the order of dismissal, the appellant filed an appeal to the District Court, and the appellate court by its order dated 18th May, 1978, allowed the appeal and issued an interim injunction against 1st respondent and her husband.
Thereafter Cr.
Revision No. 19/1978 preferred by the appellant before the Sessions Judge was dismissed on 15th June, 1978 also on the ground that the civil suit was preferred by the Appellant.
Again, although the order of attachment stood revived and the order of interim injunction by the Civil Court still continued, the Magistrate on 25th July, 1978 passed another order attaching the property.
Against this third order of attachment passed by the Magistrate, a revision was filed by the Appellants before the Sessions Judge and the Sessions Judge by his order dated 26th July, 1978 stayed the order of attachment issued on 25th July, 1978, upto 10th August, 1978.
On 26th July, 1978, the appellant filed an application before the Magistrate for withdrawal of attachment on the ground that there was no apprehension of a breach of the peace.
On this application, on 17th October 1978, the Magistrate ordered withdrawal of attachment.
Against this order, the 1st Respondent filed revision being Cr.
180/78 before the Sessions Judge who dismissed the same on 14th May, 1979.
Respondent No. 1 thereafter, preferred an application under Section 482 of the Code before the High Court for quashing the order withdrawing the attachment and directing the attachment to continue.
The High Court by the impugned order took the view that it was not open to the learned Magistrate to withdraw the attachment till the competent Court had decided the matter finally and restored the attachment.
On these facts, two questions arise in this appeal viz. whether the High Court could entertain the second revision application in exercise of its inherent powers under Section 482 of the Code and whether the interpretation placed by the High Court on the provisions of Sections 145 and 146 of the Code is correct.
There is no doubt that the learned Magistrate had committed an error in passing the subsequent orders of attachment when the first attachment was never finally vacated and had revived the moment the revision application filed against it was dismissed by the learned Sessions Judge.
It appears that none of the parties including the Sessions Judge realised this error on the part of the Magistrate.
The learned Sessions Judge had also committed a patent mistake in entertaining revision application against the fresh orders of attachment and granting interim stays when he had dismissed revision application against the order of attachment earlier.
Let that be as it is.
The question that falls for our consideration now is whether the High Court could have utilised the powers under Section 482 of the Code and entertained a second revision application at the instance of the 1st respondent.
Admittedly the 1st respondent had preferred a Criminal Application being Cr.
180/78 to the Sessions Court against the order passed by the Magistrate on 17th October, 1978 withdrawing the attachment.
The Sessions Judge had dismissed the said application on 14th May, 1979.
Section 397 (3) bars a second revision application by the same party.
It is now well settled that the inherent powers under Section 482 of the Code cannot be utilised for exercising powers which are expressly barred by the Code.
Hence the High Court had clearly erred in entertaining the second revision at the instance of 1st respondent.
On this short ground itself, the impugned order of the High Court can be set aside.
However, since the High Court has also proceeded to interpret the provisions of Sections 145 and 146 of the Code, it has become necessary to set things right on that score as well.
We are afraid that the High Court has erred in holding that the order passed by the Sub Divisional Magistrate on 17th October, 1978 [17.9.78 (sic.)] withdrawing attachment, was without jurisdiction.
The provisions of Section 146 of the Code are clear in this respect.
The Section reads as follows: "146.
Power to attach subject of dispute and to appoint receiver.
(1) If the Magistrate at any time after making the order under sub section (1) of Section 145 considers the case to be one of emergency, or if he decides that none of the parties was then in such possession as is referred to in Section 145, or if he is unable to satisfy himself as to which of them was then in such 7 possession of the subject of dispute, he may attach the subject of dispute until a competent Court has determined the rights of the parties thereto with regard to the person entitled to the possession thereof: Provided that such Magistrate may withdraw the attachment at any time if he is satisfied that there is no longer any likelihood of breach of the peace with regard to the subject of dispute.
(2) When the Magistrate attaches the subject of dispute, he may, if no receiver in relation to such subject of dispute has been appointed by any Civil Court, make such arrangements as he considers proper for looking after the property or if he thinks fit, appoint a receiver thereof, who shall have, subject to the control of the Magistrate, all the powers of a receiver appointed under the Code of Civil Procedure, 1908 (5 of 1908): Provided that in the event of a receiver being subsequently appointed in relation to the subject of dispute by any Civil Court, the Magistrate [a] shall order the receiver appointed by him to hand over the possession of the subject of dispute to the receiver appointed by the Civil Court and shall thereafter discharge the receiver appointed by him: [b] may make such other incidental or consequential orders as may be just.
" It is obvious from sub section (1) of Section 146, that the Magistrate is given power to attach the subject of dispute "until the competent Court has determined the rights of the parties thereto with regard to the person entitled to the possession there or.
The determination by a competent Court of the rights of the parties spoken of there has not necessarily to be a final determination.
The determination may be even tentative at the interim stage when the competent Court passes an order of interim injunction or appoints a receiver in respect of the subject matter of the dispute pending the final decision in the suit.
The moment the competent Court does so, even at the interim stage, the order of attachment passed by the Magistrate has to come to an end.
Otherwise, there will be inconsistency 8 between the order passed by the civil court and the order of attachment passed by the Magistrate.
The proviso to sub section (1) of Section 146 itself takes cognizance of such a situation when it states that "Magistrate may withdraw the attachment at any time if he is satisfied that there is no longer any likelihood of any breach of peace with regard to the subject of dispute '.
When a civil Court passes an order of injunction or receiver, it is the civil Court which is seized of the matter and any breach of its order can be punished by it according to law.
Hence on the passing of the interlocutory order by the civil Court, it can legitimately be said that there is no longer any likelihood of the breach of the peace with regard to the subject of dispute.
The fact that the Magistrate can withdraw the order of attachment passed by him even during the pendency of the dispute in the civil Court is made further clear by the provisions of sub section (2) of Section 146.
When the civil Court appoints a receiver, the order of attachment passed by the Magistrate necessarily gives way to the order of the Civil Court appointing the receiver.
It is only when the civil Court does not appoint the receiver that the Magistrate may make arrangements for looking after the property or even appoint a receiver himself However, even when such a receiver is appointed and the civil Court subsequently appoints a receiver of its own, the Magistrate has to order the receiver appointed by him to hand over the possession of the subject in dispute to the receiver appointed by the civil Court and discharge the receiver appointed by him.
He has also to pass such other incidental or consequential orders as he thinks just.
Such order may include an order of withdrawal of the attachment in view of the seizure of the matter by the civil Court and the consequent want of apprehension of breach of the peace.
It is, therefore, not correct to say as held by the High Court that the property continues to remain under attachment of the Magisterial order till the rights of the parties are decided finally by the competent Court of law.
That appears to be the purport of the High Court 's order since in the present case the appellate civil Court has already passed an order of injunction against the 1st Respondent and her husband by virtue of which the possession continues to be with the appellants.
In this view of the matter, the Magistrate had not erred in withdrawing the attachment by his order dated 17th October, 1978.
For both these reasons, the appeal is allowed and the impugned order of the High Court is set aside.
It is necessary to add that the suit as filed by the Appellants is only for a permanent injunction.
The appellants must amend the plaint for claiming also the declaration of their title to the property in question.
N.P.V. Apppeal allowed.
[/INST]There was a dispute between the appellants and the first respondent, regarding the possession of a house.
On an application filed by the respondent under Section 145 of Criminal Procedure Code, 1973, before the Sub Divisional Magistrate, claiming ownership of the suit property, the Magistrate passed a preliminary order under Section 145 of the Code, and thereafter, made an order of attachment under Section 146 directing that the attachment would continue till the competent civil court determined the rights of the parties.
On a revision riled by the appellants, the Sessions Judge granted an interim stay of Magistrate 's order.
Subsequently, the Revision application was dismissed.
Ile Magistrate passed a fresh attachment order under Section 146.
Once more in revision the Sessions Judge passed an order staying the fresh order of attachment.
Thereafter, the appellants riled a suit for permanent injuction and also an interim injunction.
The trial court dismissed the application for interim injunction.
On appeal, the District Court issued an interim injunction against 1st respondent and her husband.
Subsequently, the 2 Criminal Revision preferred by the appellant was dismissed by the Sessions Judge also on the ground that the civil suit was preferred by the appellant.
Once again, the Magistrate passed another order attaching the property but this third order of attachment was stayed by the Sessions Judge for a period of 15 days.
Thereafter, on an application by the appellants for withdrawal of attachment on the ground that there was no apprehension of a breach of the peace, the Magistrate order withdrawal of attachment.
The Revision filed by the 1st respondent against the Magistrate 's order was dismissed by the Sessions Judge.
On an application under Section 482 of the Code filed by Respondent No.1 for quashing the order withdrawing the attachment and for directing the attachment to continue, the High Court held that it was not open to the Magistrate to withdraw the attachment till the competent court had decided the matter finally and restored the attachment.
Hence the appeal.
Allowing the appeal, this Court HELD : 1.1.
The determination by a competent court of the rights of the parties spoken in Section 146(1) of the Criminal Procedure Code, 1973, has not necessarily to be a final determination.
The determination may be even tentative at the interim stage when the competent court passes an order of interim injunction or appoints a receiver in respect of the subject matter of the dispute pending the final decision in the suit.
The moment the competent court does so, even at the interim stage, the order of attachment passed by the Magistrate has to come to an end.
Otherwise, there will be inconsistency between the order passed by the civil court and the order of attachment passed by the Magistrate.
The proviso to sub section (1) of Section 146 itself takes cognizance of such a situation.
When a civil court passes an order of injunction of receiver, it is the civil court which is seized of the matter and any breach of its order can be punished by it according to law.
Hence, on the passing of the interlocutory order by the civil court, there is no longer any likelihood of the breach of the peace with regard to the subject of dispute.
Under Section 146(2) the Magistrate can withdraw the order of attachment passed by him even during the pendency of the dispute in the civil court.
When the civil court appoints a receiver, the order of attachment passed by the Magistrate, necessarily 3 gives way to the order of the civil court appointing the receiver.
It is only when the civil court does not appoint the receiver that the Magistrate may make arrangements for looking after the property or even appoint a receiver himself However, even when such a receiver is appointed and the civil court subsequently appoints a receiver of its own, the Magistrate has to order the receiver appointed by him to hand over the possession of the subject in dispute to the receiver appointed by the civil court and discharge the receiver appointed by him.
He has also to pass such other incidental or consequential orders as he thinks just.
Such order may include an order of withdrawal of the attachment, in view of the seizure of the matter by the civil court and the consequent want of apprehension of breach of the peace.
It is, therefore, not correct to say that the property continues to remain under attachment of the Magisterial order till the rights of the parties are decided finally by the competent court of law.
[7G H, 8A C, D F] 1,2.
In tic present case, the Appellate Civil Court has already passed an order of injunction against the 1st respondent and her husband by virtue of which the possession continues to be with the appellants.
Therefore, the Magistrate had not erred in withdrawing the attachment.
The High Court has erred in holding that the order passed by the Sub Divisional Magistrate withdrawing attachment was without jurisdiction.
[8G H, 6E] 2.1.
Section 397 (3) bars a second revision application by the same party.
It is now well settled that the inherent powers under Section 482 of the Code cannot be utilised for exercising powers which are expressly barred by the Code.
[6D] 2.2.
In the instant case, admittedly, the 1st respondent had preferred a Criminal Application to the Sessions Court against the order passed by the Magistrate, withdrawing the attachment.
The Sessions Judge had dismissed the said application.
Hence, the High Court had clearly erred in entertaining the second revision at the instance of 1st respondent.
[6C,E] 3.
The Magistrate had committed an error in passing the subsequent orders of attachment when the first attachment was never finally vacated and had revived the moment the revision application flied against It was dismissed by the Sessions Judge.
None of the parties, including the Sessions Judge, realised this error on the part of the Magistrate.
The Sessions Judge had also committed a patent mistake in entertaining 4 revision application against the fresh orders of attachment and granting interim stays when he had dismissed revision application against the order of attachment earlier.
[6A B]
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<s>[INST] Summarize the judgementCivil Appeal No. 438 of 1967. 'Appeal from the judgment and order dated April 11, 1966 of the Rajasthan High Court in D.B. Civil Reference (Estate Duty Act) No. 16 of 1963.
M.C. Chagla, B.D. Sharma and M. D. Bhargava, for the appellant.
Jagdish Swarup, Solicitor General, T.A. Ramachandran, R.N. Sachthey and B.D. Sharma, for the respondent.
C.J. Purnabai widow of Sagarmal Mody held on April 1, 1953 three deposit receipts of the aggregate face value of Rs. 6,26,724 14 0 with the State Bank of Bikaner.
By her letter dated July 22, 1952 Purnabai informed the Bank that she intended to make a gift of the amounts of two out of the three receipts to Suryakant son of her adopted son Satyanarayana, and requested that the receipts be renewed for three months in the joint names of "Purnabai Sagarmal Mody and/or Surya Kant section Mody payable to either or survivor." and that the renewed fixed deposit receipts be sent to Satyanarayana at Bombay.
Pursuant to this letter two fresh receipts were issued on August 3, 1953 for Rs. 5,00,000 and Rs. 45,793/4/ .
It 'appears that a receipt for Rs. 80,931 / 10/ was previously obtained in the joint names of Purnabai and Suryakant on July 4, 1953.
714 On August 16, 1953 Puranabai executed a deed of gift in favour of Suryakant in respect of the three receipts containing the following recitals: "Out of natural love and affection I have towards the said Suryakant son of Satyanarayana I hand over to the said Satyanarayana as the father and natural guardian of the said Suryakant Fixed Deposit Receipts total for Rs. 6,26,724/14/ .
F.D.R.N. 222/ 8293 dated 3 8 53 for Rs. 45,793/4/ , F.D.R.N. 221/ 8292 dated 3 8 53 for Rs. 5,00,000/ of the Bank of Bikaner Ltd., Jaipur and F.D.R. No. 11446 dated 4 7 53 for Rs. 80,931/10/ of Bank of Bikaner Ltd., Jhunjhunu in the name of Purnabai Sagarmal and Suryakant Satyanarayana Mody payable to either or survivor as and by way of gift to the said Suryakant on the 15th day of August 1953 and that the said Satyanarayana for and on behalf of and as the.
natural guardian of the said Suryakant accepted the said gift of Rs. 6,26,724/ .
. . gifted by me as aforesaid.
" The gift deed contained a confirmation by Satyanarayana that he had accepted the gift for and on behalf of and as natural guardian of Suryakant "to the intent and effect that the said Suryakant shall be the absolute owner of the sum gifted.
" On August 17, 1953 Purnabai addressed a letter to the Manager of the Bank enclosing a copy of the declaration of gift and intimated that her grand son Suryakant was the sole owner of the amount of the two fixed deposit receipts and till Suryakant section Mody attained the age of majority the receipts should remain in the joint names as they then stood.
From time to time Purnabai presented the receipts for renewal when they matured and obtained fresh receipts in the joint names of herself ,and Suryakant.
On August, 25 1955 the receipt for Rs. S0,931/10/ was encashed and out ' of the amount of Rs. 86,732/ realized, Rs. 5,000/ were invested in the name of Suryakant in National Savings Certificates.
The balance was also deposited alone with a firm in Bombay also.
in the name of Suryakant alone.
The other two receipts were renewed in the joint names of Purnabai and Suryakant.
After the death of Purnabai on February 15, 1956, the two receipts were encashed by Suryakant.
The Assistant Controller of Estates duty in procedings for assessment of estate duty held inter alia that possession and enjoyment of the gifted property was not assumed by the donee to the entire exclusion of the 715 donor, and on that account the amount of the two receipts and interest thereon formed part of the estate of Purnabai and was, liable to estate duty.
Regarding the third receipt for Rs. 80,931/10/ the Assistant Controller observed that even though the earlier receipt was discharged on August 25, 1955 i.e. within two years of the death of Purnabai and the amount was invested in the name of Suryakant, by virtue of the provisions of the the amount held in the name of Suryakant alone, was for assessment of estate duty liable.
to be included in the estate.
of Purnabai.
In appeal the Central Board of Revenue confirmed the order.
The Board held that at all material times during the currency of the fixed deposit Purnabai had the right to receive the money from the Bank by giving discharge for the same and that whenever the Fixed Deposit Receipts matured during the lifetime of Purnabai, the receipts were, in fact, discharged by her alone and in the circumstances it could not be said that the property was held ' by the donee to the entire exclusion of the donor.
The Board of Revenue referred the following question the High Court of Rajasthan for opinion: "Whether on the 'facts and in the circumstances of the case the sum of Rs. 6,85,193/ was correctly included in the estate of the deceased as property deemed to pass on her death under section 10 of the ?" The High Court of Rajasthan answered the question in the affirmative.
With certificate granted by the High Court this appeal has been preferred.
The deposit receipts were renewed from time to time after August 16, 1953 in the joint names of Purnabai and Suryakant till August 25, 1955 under their terms the receipts could be encashed by either or the survivor.
Even after Purnabai made a gift of the amount represented by the three receipts, she continued to obtain the receipts in the joint names, presumably with the object of not parting with control over those receipts.
Counsel for the appellant however contended that the fixed deposit receipts were held by Purnabai in her name as benamidar for Suryakant.
Counsel placed strong reliance upon the letters dated July 22, 1953, August 17, 1953 and the terms of the deed of gift dated August 16, 1953.
By the letter dated July 22, 1953 the Manager of the Bank was informed that in respect of two out of the three receipts Purnabai intended to make a gift and the . 716 Manager was requested that the receipts be made in the joint .names of Purnabai and Suryakant.
It was expressly recited in the letter: "I intend to gift the entire amount of the receipts to my grandson Mr. Suryakant section Mody hence you are requested to prepare the receipts in joint names as under: "Purnabai Sagarmall Mody and/or Suryakant section Mody payable to either or survivor.
" The deed of gift also recites that Purnabai had made a gift of the amount of Rs. 6,26,724/14/ represented by the previous receipts in favour of Suryakant, and that the gift was accepted by Satyanarayana on behalf of Suryakant.
The letter dated August 17, 1953 recites that a copy of the deed of declaration of gift.
was sent to the Bank for record and information and proceeds to state: "Further I would like to state that now Suryakant section Mody is the sole owner of the above Fixed Deposit Receipts in question till Suryakant section Mody attains majority the receipts should remain in joint names as it stands now.
" is clear that Purnabai desired to make a gift of the amount represented by the previous deposit receipts and did in fact execute a deed of gift.
The Bank had notice of the gift deed.
Counsel for the appellant contends that Purnabai did everything possible to divest herself of her interest in the money held by her, in deposit with the Bank, and retained no interest therein and that in obtaining renewal of the receipts in the joint names of herself and of Suryakant, she was merely a benamidar 'and in any event was acting on behalf of Suryakant.
Counsel further contends that the Bank having notice of the gift could not have parted with the money except only for the benefit of the minor and by obtaining renewal of the receipt in favour of the minor Suryakant and Purnabai, the latter retained no possession or enjoyment of the money represented by the receipts.
Counsel invited our attention to a decision of the Madras High Court in Imperial Bank of India, Madras vs section Krishnamurthi and another(1) in which Beasely, C.J. speaking for the Court observed that when a Bank having notice that the administrators of the estate of the depositor intended to commit a breach of trust by seeking to invest monies contrary to express directions of the will paid out the money, the Bank was liable to make good to the beneficiary (1) A.I.R. 1933 Madras, 628.
717 the money deposited by the testator.
In that case one Naidu had deposited a sum of money with the Imperial Bank of India in fixed deposits.
Naidu died having bequeathed by his will the amount deposited to Iris son Krishnamurthi who was then a minor.
Naidu had appointed by his will two persons to be guardians of Krishnamurthi with authority to receive the amount in fixed deposit with the Imperial Bank and to apply the same for the maintenance and education of Krishnamurthi.
The guardians obtained from the High Court of Madras grant of letters of administration with copy of the will annexed.
After the death of one of the guardians the surviving guardian withdrew the money from the Bank on the pretext that he wanted to invest it on more advantageous terms in house property or some other form of in vestment and misappropriated it.
On attaining the age of majority Krishnamurthi sued the Bank.
It was held by the High Court that the Bank knowing of the trust created by the will had parted with and delivered the amount deposited to the administrator who intended to commit a breach of the trust.
The learned Chief Justice quoted a passage from Hart 's Law of Banking (Edn. 3) at p. 159 that "A banker who receives into his possession moneys of which his customer to his knowledge became the owner in a fiduciary character, contracts the duty and to part with them at the mandate of his customer for purposes which are inconsistent with the customer 's fiduciary character and duty," and upheld the claim of Krishnamurthi.
It is unnecessary to consider whether.
in the present case the investment was made by renewal of fixed deposit receipts after August 16, 1953 for a purpose which the Bank knew was inconsistent with Purnabai 's fiduciary character and duty.
We are not concerned in this case to decide whether the Bank could have refused to pay the amount of the renewed deposit receipts if demanded by Purnabai.
Whether the amount of deposit receipts was liable to estate duty must be determined on the true effect of section 10 of the 34 of 1953.
Section 10 of that Act provides: "Property taken under any gift, whenever made, shall be deemed to pass on the donor 's death to the extent that bona fide possession and enjoyment of it was not immediately assumed by the donee and thenceforward retained to the entire exclusion of the donor or of any benefit to him by contract or otherwise: Provided that the property shall not be deemed to pass by reason only_ that it was not, as from the date of the gift, exclusively retained as aforesaid, if by means of the surrender of the reserved benefit or otherwise, it is subsequently enjoyed to the entire exclusion of the 718 donor or of any benefit to him for at least two years before the death.
Provided . . " The phraseology of the section is somewhat involved.
The purport of the section is however clear.
The section clearly means that if in respect of any property which is gifted, bona fide possession and enjoyment is not immediately assumed by the donee and thenceforward retained by him to the entire exclusion of the donor or of any benefit to him therein the property gifted shall not be excluded from the estate subject to estate duty.
The question which must be determined therefore is whether in the present case the donee Suryakant did under the deed of gift immediately assume bona fide possession and enjoyment of the fixed deposit receipts gifted to him, and thenceforward retained the same to the entire exclusion of Purnabai or of any benefit arising to her by contract or otherwise.
The conduct of Purnabai clearly indicates that she had no intention to part with control over the property; the deposit receipts were obtained in joint names, and Purnabai had authority to withdraw the amount from the Bank, without consulting the guardian of Suryakant.
The deposit receipts were renewed on several occasions even after the execution of the deed of gift in the joint.
names of Purnabai and Suryakant.
Purnabai alone presented the fixed deposit recepits for renewal.
She could under the terms of the receipts receive the moneys to the entire exclusion of Suryakant.
We are unable to hold, in the circumstances, that bona fide possession and enjoyment of the property gifted was immediately assumed by Suryakant and thenceforward retained by him to the entire exclusion of Purnabai.
The right retained by Purnabai to have the receipts made out in her name jointly with Suryakant and the power to recover the amount from the Bank without the concurrence of Suryakant clearly indicate that she was not excluded, but she had retained important benefits in herself in the fixed deposit receipts.
It is true that the third receipt was encashed during the life time of Purnabai, and the amount was invested in the name of Suryakant alone.
But the encashment and reinvestment were within two years of the death of Purnabai and the amounts so reinvested were liable to be included in the estate of Purnabai.
The argument that fixed deposit receipts had remained exclusively in the possession of Satyanarayana as guardian of Suryakant and they were obtained by him from Purnabai for the purpose of renewal is not supported by any evidence.
There is 719 also no evidence that in obtaining the receipts in the joint names Purnabai acted as a guardian of Suryakant nor that she was a benamidar of Suryakant.
We are of the view that the High Court was right in answering the question against the appellant.
The appeal fails and is dismissed with costs.
R.K.P.S. Appeal dismissed.
[/INST]A complaint under section 7 read with section 16 of the Prevention of Food Adulteration Act, 1964 was filed against the respondent.
It was filed by the Municipal Prosecutor who had been authorised to file such complaints by a resolution passed by the appellant corporation under section 20 of the aforesaid Act.
On the respondent being acquitted the appellant corporation filed an application in the High Court for special leave to appeal under section 417 of the Code of Criminal Procedure.
The application was allowed.
When the appeal came up for hearing a preliminary objection was raised by the respondent that the complaint having been filed by the Municipal Prosecutor the corporation was not a 'complainant ' within the meaning of section 417(3) of the Code of Criminal Procedure and therefore special leave to appeal should not have been granted.
The High Court upheld the preliminary objection and dismissed the appeal.
By special leave the corporation appealed to this Court.
HELD : (i) Under section 476(1)(h) of the Delhi Municipal Corporation Act the person competent to institute legal proceedings is the Commissioner.
However the present case was governed not by that provision but by section 20 of the Prevention of Food Adulteration Act, 1964 which provides that a prosecution under that Act may be instituted "by 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".
Section 2(vii) of the Prevention of Food Adulteration Act defines a "local autho rity" to mean "in the case of a local area which is a municipality, the municipal board or municipal corporation".
The Delhi Municipal Corporation was a local authority within the meaning of section 20, [581 H; 582 C, G H; 584 A] (ii)The Municipal Prosecutor had filed the complaint against the respondent under authority given to him by the resolution of the Delhi Municipal Corporation under section 20 of the Prevention of Food Adulteration Act.
in filing the complaint the said prosecutor was not acting on his own personal behalf but was acting as an agent authorised by the Delhi Municipal Corporation to file the complaint.
It must therefore be deemed in law that the Delhi Municipal Corporation was the 'complainant ' in the case, for according to the Latin maxim.
"One who does an act through another is deemed in law to do it himself." [583 H; 584 C D] Being thus the complainant in the case the appellant Corporation could properly file the application under section 417 of the Code of Criminal Procedure.
[Case remanded to High Court for disposal according to law.] [584 E] 580 Ballavdas Agarwala vs J. C. Chakravarty, [1962] 3 S.C.R. 739 and Nazir Ahmad vs King Emperor, 63 I.A. 372 as 381, referred to.
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<s>[INST] Summarize the judgementCivil Appeal No. 1507 of 1969 Appeal from the Judgment and order dated the 12th March, 1968 of the Punjab and Haryana High Court in Civil Writ No. 1376 of 1967.
WITH Civil Appeal Nos.
1202 20 of 1970 919 From the Judgment and Order dated the 23rd day of July, 1967 of the Punjab and Haryana High Court in Civil Writ Petition Nos.
2934 & 2955 of 1968 and L.P.A. Nos.
597 599/68, Civil Writ Nos.
242 45/69, 423, 471, 477, 783 785, 787 89 & 792 of 1969.
AND Civil Appeals Nos.
1564 67 of 1970 Appeals from the Judgment and Order dated the 20th November, 1969 of the Punjab and Haryana High Court in L.P.A. Nos.
57 59 69.
AND Civil Appeals Nos.
743 94 of 1974.
From the Judgment and Order dated the 23rd July, 1969 of the Punjab and Haryana High Court in Civil Writ Nos. 343, 334, 353, 354, 365, 379, 381, 384, 385, 421, 422, 424, 456 481, 493, 518, 519, 520, 529 of 1969, 2933, 2948, 2949, 2956, 2975 78, 3021, 3111, 3188 of 68, 254, 264, 307, 308, 715, 706, 674, 662, 661, 604, 596, 588, 554, 737, 786, 791, 798, 828, 836, 945, 839 of 1969.
R.N. Poddar for the Appellants in CA.
I.S. Goel and R.N. Poddar for the Appellants in CA.
1202 20.
M.S. Gujral and R.N. Poddar for the Appellants in CA.
743 794/74.
K.G. Bhagat, Additional Soliciter General and R.N. Poddar for the Appellants in CAs.
1564 67/70.
T.S. Munjral and H.K. Puri for Respondent in CA.
P.R. Mridul, V.S. Desai, section Rangarajan in CAs.
1204 to and in CA.
743, 762 & 770.
T.S. Munjral, K.C. Dua and Poonam Malhotra for the Respondents in CAs 1204 06, 1564 67, 743, 762, 764, 765 770.
R.C. Bhatia and P.C. Kapoor for Respondents in CAs.
1202 03, 1207 20, 744 761, 768, 766 769 & 771 794.
920 The Judgment of the Court was delivered by CHANDRACHUD, CJ.
These appeals have a long history.
Liquor vends were put to auction by the Excise Department of the Government of Haryana whereupon, the highest bidders were given the necessary licences to sell liquor.
Some of the licensees committed default in the payment of amounts due from them under the terms of the auction.
Thereupon, the vends were reauctioned except for three vends which, though published for reauction, were given by private negotiations.
The original licensees, who were called upon to pay the difference between the amount which they were liable to pay and the amount realised by resale of the vends, filed writ petitions in the High Court of Punjab and Haryana contending that the State Government had no power to demand the various amounts which they had allegedly defaulted in paying.
The High Court accepted that contention, holding that the State Government had no authority to demand the amounts for failure to pay which, the vends were put to resale.
As a necessary consequence of that finding, the fresh grants made by reauction or private treaty were held invalid.
The result of this was that the writ petitioners stood relieved of their obligation to make good the shortfall.
This is the broad history of these appeals.
We will take up Civil Appeal No. 1507 of 1969 for consideration first.
The facts of that case and the events lending to the present proceedings are mentioned in a judgment of this Court reported in State of Haryana vs Jage Ram(1).
In this case, an auction was held on March 27, 1967 for the grant of a retail vend known as Biswan Meel, Sonepat, for the year 1967 68.
The respondents Jage Ram and others offered the highest bid in that auction.
Under Condition 14 (iii) of the auction, respondents became liable to pay an amount calculated at the rate of Rs. 17.60 per litre, which came to Rs. 10,92,960.00.
They paid a security deposit for the due performance of the terms of the auction but they committed default in payment of instalments which fell due on April 10 and April 25, 1967.
On May 17, 1967 the Excise authorities cancelled the licence of the respondents and informed them that the vend will be resold on May 23, 1967 at the risk of the respondents.
In pursuance of the order dated May, 17, the Biswan Meel vend was reauctioned on May 23, the highest bid offered being in the sum of Rs. 2,46,000.00.
On July 11, respondents were called upon by a notice to pay a sum of 921 Rs. 7, 41,577.40, being the difference between the amount which they were liable to pay under the terms of the original auction and the amount fetched in the reauction.
Thereupon, respondents filed a writ petition in the High Court challenging the legality of that notice.
The High Court allowed the writ petition, quashed the order cancelling the respondents ' licence as also the notice calling upon them to make good the shortfall of seven lakh rupees and odd.
The High Court gave to the State of Punjab a certificate to appeal to this Court.
The appeal came up for hearing before a three Judge Bench which by its aforesaid Judgment dated April 21, 1980 held that the writ jurisdiction of the High Court under Article 226 cannot be used for avoiding contractual obligations.
On merits, it was held by this Court following a Constitution Bench decision in Har Shanker vs The Deputy Excise and Taxation Commissioner,(1) that since rights in regard to the manufacture and sale of intoxicants are vested in the State, it is open to the State to part with these rights, which are in the nature of a privilege, for consideration.
The Court further held that the amounts which the State Government had charged to the respondents were neither in the nature of a tax nor in the nature of an excise duty but were in the nature of a price which the State Government was entitled to charge as consideration for parting with its privilege in favour of the licensees.
After setting aside the judgment of the High Court and upholding the demand made by the State Government upon the respondents, the question naturally arose whether the respondents could be held liable for the shortfall between the bid offered by them and the amount realised in the reauction.
It was urged by the respondents that the reauction which was held on May 23, 1967 was not in accordance with the relevant Rules and therefore, they could not be called upon to pay the difference between the amount which they were originally liable to pay and the amount which was fetched in the reauction of the vend.
To be more specific, it was contended on behalf of the respondents that no notice of the intended resale was given as required by Rule 36 (3) of the Punjab Liquor Licence Rules, 1956, that no notice was published or affixed at any conspicous public place notifying the proposed resale, nor indeed was the resale announced by the beat of drums.
According to the respondents, one 922 Lal Chand went to the office of the Excise and Taxation Officer, Rohtak, and managed to have his bid accepted in the resale of the vend.
Respondents further urged that through the resale of the vend was to be effective for a period of about 10 months out of the 12 months for which the vend was originally auctioned, there was a large shortfall of over Rs. 7 lakhs on account of the fact that due publicity was not given to the resale.
By the aforesaid judgment dated April 21, 1980 this Court remanded the matter to the High Court and called for its findings on two questions: (1) Whether it was necessary according to the Rules which were in force at the relevant time to give publicity to the reauction, and (2) if so, whether such publicity was in fact given to the reauction.
The High Court has transmitted its findings to this Court, which are against the respondents.
The High Court has held by its order dated September 29, 1980 that the Rules relied upon by the respondents by which publicity is required to be given to the resale are directory and not mandatory and that these rules were substantially complied with.
These findings are assailed by the respondents who, by reason of the findings of the High Court, are virtually in the position of appellants now.
The finding of the High Court that the rules were substantially complied with is based on an affidavit filed by Shri N.S. Bedi, Deputy Excise and Taxation Commissioner, Sonepat, in which he has stated that 'all possible steps were taken in connection with the publicity done for the reauction of the vend '.
The affidavit says that telegrams were issued on May 19, 1967 by the Excise and Taxation Officer, Rohtak to the Excise and Taxation Officers of Hissar, Karnal, Gurgaon, Mohindergarh, Ambala and Jind informing them that the reauction will be held on May 23, 1967 at 10.00 a.m. and asking them to give due publicity to the reauction.
The affidavit further says that letters were also written on May 20, 1967 to the 'important licensees of the State ' informing them of the date and time of the reauction and requesting them to attend it.
The affidavit asserts that 40 bids were recorded in the reauction and the 40th bid, being the highest, was accepted.
It seems to us impossible to accept the findings of the High Court.
We will not enter into the controversy whether the rules 923 governing reauction of vends, of which respondents allege breach, are directory or mandatory in character.
Even assuming for the purpose of argument that they are directory, we are unable to hold that they have been substantially complied with.
Rule 36 (24) of the Punjab Liquor Licence Rules, 1956 as amended by the Notification dated March 31, 1967 says that when a licence is cancelled, it may be resold by public auction or by private contract in accordance with the procedure laid down in the other clauses of Rule 36.
Clause (3) of Rule 36 runs thus : "36(3) The Collector will give timely notice of the date and place of the auction: (a) the condition to which the auction will be subject; (b) the number and situation of the shops to be licensed for the sale of (country liquor); (c) the prices, if any, fixed for the retail vend of country spirit or; (d) the occasions, if any, on which the shops will be closed; and (e) any other information which may be of use to intending bidders." No notice as required by this sub rule was given to the public at all.
Neither the time nor the date of the reauction, nor the location or description of the vend which was to be put to reauction, nor the conditions of the reauction were ever published by the Excise authorities prior to the reauction.
What was done by the concerned authorities was to send telegrams to Excise Officers of five districts with a request that they should give publicity to the reauction.
The officers of those five districts seem to have sat cool over those telegrams because there is no evidence showing that they took any steps for publishing the reauction.
A curious feature of this case is that the Excise authorities claim to have sent letters to five private licensees informing them that the reauction was fixed for the 23rd of May 1967 at 10.00 a.m.
These letters are at Annexure R 8 and are dated May 20, 1967.
20th May fell on a Saturday and the reauction was fixed for 23rd May which was the following Tuesday.
924 In the normal course, these letters would have been received by the addressees on Monday, that is, a day or less prior to the date of the reauction which was to be held the next morning at 10 O 'clock.
In these circumstances, it is difficult to hold that any publicity as such was given to the reauction.
When a rule requires 'publicity ' to be given to an auction sale, what is necessarily implied is that due steps must be taken to give sufficiently advance intimation of the intended sale and its material terms to the members of the public or, at least, to that section of the public which normally engages in the kind of business which is the subject matter of the auction sale.
Even the five special invitees would have found it difficult to come prepared to take part in resale which was held on 23rd May.
They were not invited to a wedding feast.
They were invited to attend the resale of a liquor vend and it is well known that a certain amount has to be paid by the successful bidder on the fall of the hammer.
We are also unable to appreciate that the Excise authorities of the Government of Haryana should have picked and chosen some five particular persons as recipients of the notice of reauction.
How their names transpired and what is their particular status, respectability and standing in the liquor trade, are matters on which no light is thrown.
There is no material before us on which to doubt the integrity of the authorities who were connected with the reauction.
But their conduct must be above suspicion.
The bid sheet shows that only six persons offered bids in the reauction and none of the five invitees was amongst those six.
It appears that a small, closely knit group participted in the reauction, successfully keeping out others who might have of offered adequate bids in the reauction, were they to have notice thereof.
Indeed, the amount which was fetched in the reauction itself furnishes prima facie evidence that all was not well with the reauction.
The respondents had given their original bid in the sum of Rs. 10,92,960.00 which covered a period of one year from April 1, 1967 to March 31, 1968.
The reauction was held on May 23, 1967 for a licence which was to be effective for the little over 10 months.
It is surprising that the reauction should have fetched a bid of as small an amount as Rs. 2,46,000.
Since the reauction was not held in accordance with the rules, either in their letter or in their spirit, and since, especially, due publicity was not given to the reauction, it is impossible to uphold reauction and mulet the respondents in the resultant shortfall.
We 925 are of the opinion that rule 36(3) of the Rules was not even substantially complied with.
It is reasonable to assume that since due publicity was not given to the reauction, adequate bids were not received, resulting in prejudice to the respondents.
Accordingly, we set aside the finding of the High Court that the relevant rules governing reauction of vends were complied with substantially.
Since the reauction did not conform to the rules and the respondents were prejudice thereby, they cannot be held liable to make good the difference between the amount which was payable by them and the amount which was fetched at the reauction.
The result is that the appeal filed by the State of Haryana is dismissed, though for different reasons, and the respondents absolved from their liability to pay the amount which is demanded of them by the notice dated May 7, 1967 issued by the Collector and Deputy Excise and Taxation Commissioner, Haryana.
That disposes of Civil Appeal No. 1507 of 1969.
We will now take up for consideration two other groups of appeals, viz, Civil Appeals 1202 to 1220 of 1970 and Civil Appeals 743 to 794 of 1974.
No question of reauction arises in these groups of appeals except in Civil Appeals Nos.
1204, 1205 and 1206 of 1970.
We shall deal with those three appeals separately a little later.
The question which arises in the remaining appeals in these two groups, as regards the power of the State Government to charge the particular amount to the licensees is concluded by the judgments of this Court in Har Shunkar vs The Deputy Excise and Taxation Commissioner, State of Haryana vs Jage Ram (supra) and State of Punjab vs Ajudhia Nath(1).
It was held in those decisions that the State Government has the power to charge the particular amounts to the licensees.
The judgments of the High Court denying to the State Government that power must therefore be set aside and to that extent the appeals filed by the State of Haryana allowed.
The appeals which now remain for consideration are Civil Appeals 1204 to 1206 of 1970 and Civil Appeals 1564 to 1567 of 1970.
In these cases also, as in all other cases which are being disposed of by this judgment, the power of the State Government to 926 levy the particular charge must be upheld in view of the aforesaid three judgments.
The judgment of the High Court in these cases shall therefore have to be set aside to the extent to which the High Court had denied that power to the State Government.
But the further question which arises in these appeals is whether the respondents can be called upon to pay the difference between the amounts which they were liable to pay under the terms of the original auction in their favour and the amounts which were fetched in the resale of the vends.
The facts of these groups of cases are even more peculiar than the facts of Civil Appeal No. 1507 of 1969 with which we have dealt at the outset of this judgment.
In these cases, it was originally intended to reauction the vends in respect of which the respondents had committed default and some publicity, not due or adequate by any standard, was given to the reauction.
The reauctions commenced as scheduled but the Excise authorities changed their mind in midstream and decided, without any rhyme or reason, to withdraw the reauctions and to grant fresh licences by private negotiations on the spot.
We agree fully with the very careful judgment of Justice Bal Raj Tuli that due publicity was not given to the reauction.
It is stated in the affidavit filed on behalf of the State Government in the High Court that, directions were given to the Excise and Taxation Officer, Gurgaon by a circular letter that he should give wide publicity to the reauction due to be held on July 24, 1968.
The circular letter was not placed on the record, nor was the High Court a apprised as to how the Excise and Taxation Officers of the Governments of Haryana and Punjab gave publicity in their respective districts to the proposed reauctions.
It is significant that the respondents wrote letters to the Excise and Taxation Officer, Gurgaon on July 20, 1968 complaining that due publicity was not being given to the reauctions and that the Rules required such publicity to be given.
In spite of this, no steps were taken to comply with the requirement of the rules, even though the cost of publicity would have been required to be borne by the respondents themselves.
It was urged that Hindi handbills were distributed in Delhi advertising the auction.
Even those handbills do not contain the requisite information which is required to be published under rule 36(3).
Tuli, J. was therefore right in not treating the handbills as constituting due publicity to the reauctions.
927 If the reauctions cannot be upheld since due publicity was not given to them, the grant of licences by private negotiations during the course of reauctions would also have to be set aside.
Assuming that there were valid reasons for revoking the decision to hold the reauctions, like the paucity of adequate bids at the reauctions, the reauctions should have been postponed and due publicity given to the decision to grant licences by private negotiations.
By rule 36(24), power has been conferred to resell vend by public auction or by private contract.
But this latter power has to be exercised with great care and circumspection.
Public auction has to be the normal mode of selling public property.
It is open to public gaze and eschews many temptations to which private contracts are subject.
It is only when at public auction is not feasible or has failed to attract bidders after due publicity, that a private contract can be negotiated for disposing of public property or rights in such property.
Not only is no reason forthcoming why the intention to hold a public auction was abandoned after the auction had commenced but the proceedings were not adjourned even for a few days in order to publicise the intention to resell the vends by private contract.
The Excise authorities could not have abruptly decided to jettison the original intention of holding a public auction and grant licences by private negotiations on the spur of the moment, that very day and at that very hour.
The decision smacks of arbitrariness, is unfair and unreasonable, and cannot be allowed to stand.
For these reasons, respondents in Civil Appeals 1204 to 1206 of 1970 and Civil Appeals 1564 to 1567 of 1970, are not liable to pay the difference between the amounts which they were liable to pay under the original auctions and the amounts which they were liable to pay under the original auctions and the amounts which were fetched by the re grant of licences by private contracts.
The aforesaid discussion will show that the appeals filed by the State of Haryana succeed to the extent that the State Government has the power to levy the charge which it demanded of the respondents.
The finding of the High Court that the State Government has no such power is incorrect and must be set aside.
The findings called for by us from the High Court on the question whether due publicity was given to the reauctions are set aside.
We hold that due and adequate publicity was not given to the reauctions.
We also hold that the regrant of licences by private negotiations is not in conformity with the Rules and must be struck down in the circumstances of the case.
As a result of the infirmities from which the reauctions and the re grant of licences by private 928 contract suffer, respondents in whose cases fresh licences were granted either in reauctions or by private contract will not be liable to make good the shortfall.
The reauctions were necessitated on account of the default committed by the respondents, but the reason of the shortfall is the laxity and arbitrariness with which the resale of the vends was held or fresh licences granted by private contract.
There will be no order as to costs in any of these appeals.
Order accordingly.
H.L.C. Dismissing the appeals in which liquor vends was resold and allowing And appeals in which liquor vends was not resold.
[/INST]The first respondent who lost to the appellant by 24 votes in the Assembly Elections filed an election petition in the High Court under section 81 of the Representation of the People Act, 1951 asking for the appellant 's election to be set aside and for declaration that he should be declared as the successful candidate.
In para 9(i) of the petition the respondent pleaded that 74 ballot papers cast in his favour were wrongly rejected on the ground that they did not contain the signature of the Presiding Officer.
The High Court ordered inspection of these ballot papers.
The High Court held that the rejection of these 74 ballot papers for want of the Presiding Officer 's signature was not justified and gave the respondent No. 1 credit of all those votes and on that basis while setting aside the election of the appellant, declared the first respondent to have been duly elected.
Hence this appeal.
The appellant urged that the pleading in para 9(i) of the Election petition did not amount to a concise statement of the material facts as required by law; the High Court went wrong in allowing inspection of the ballot papers; the 74 ballot papers in dispute did not contain the signature of the presiding officer and were rightly rejected at the counting in view of the mandatory provision in rule 56(2) of the Conduct of Elections Rules, 1961 and the High Court 's view that in the absence of a prayer for recrimination under section 97 of the Act, the appellant was precluded from asking for a recount of the other rejected ballot papers is not tenable in law.
Dismissing the appeal, HELD: An election petition is presented in terms of section 81 of the Act.
Section 83 prescribed as to what the petition should contain.
Clause (a) of sub section
(1) of section 83 states that an election petition shall contain a concise statement of the material facts on which the petitioner relies.
In the instant 119 case the number of ballot papers alleged to have been wrongly rejected has been furnished, the counting table number has been given, the booth number has also been disclosed and the ground for rejection has even been pleaded.
The only specific detail which was wanting was the serial number of the ballot papers.
This particular was not available to the election petitioner in spite of attempts made on his behalf.
The Court, therefore, agrees with the High Court that in the facts and circumstances of the case the pleading in paragraph 9(i) set out the material facts in a proper way and no defect can be found with it.
The High Court had rightly ordered the inspection of the ballot papers.
[126 B C; H; 127 A; 128 F G; 127 F] Samant N. Balakrishan etc., vs George Fernandez and Ors, etc.; , explained and distinguished, Bhabhi vs Sheo Govind and Ors., [1975] Suppl.
S.C.R. 202, referred to.
Rule 38(1) of the Conduct of Election Rules, 1961 provides inter alia that every ballot paper before it is issued to an elector shall be stamped on the back with a distinguishing mark and shall be signed in full on its back by the presiding officer.
The distinguishing mark can be put by anyone but the signature has got to be of the presiding officer and obviously he has to personally do that job.
Rule 56(2)(h) provides that the returning officer shall reject a ballot paper if it does not bear both the distinguishing mark and the signature as mentioned in sub rule (1) of rule 38.
There is a proviso to sub rule (2) of rule 56 which says that where the returning officer is satisfied that any such defect as is mentioned in clause (h) has been caused by any mistake or failure on the part of a presiding officer or polling officer, the ballot paper shall not be rejected merely on the ground of such defect.
The proviso, once it is applicable is a mandate that the ballot paper is not to be rejected.
[129 F G; 130 G; 129 E F; 130 E; 131 H] In the instant case the 74 ballot papers in dispute were rejected because they did not contain the signature of the presiding officer as required under rule 38(1).
To see whether the proviso to sub rule (2) of rule 56 was applicable, it has to be found out whether the absence of the signature of the presiding officer on these ballot papers was on account of mistake or of his failure.
On the submissions at the bar, the question of mistake does not arise.
It was the obligation of the presiding officer to put his signature on the ballot papers before they were issued to the voters.
Every voter has the right to vote and in the democratic set up prevailing in the country no person entitled to share the franchise can be denied the privilege.
Nor can the candidate be made to suffer.
Keeping this position in view the Court is of the definite view that the present case is one of the failure on the part of the presiding officer, who had been taken ill on the date of poll and was away from the place of polling for quite some time, to put his signature on those ballot papers so as to satisfy the requirement of law.
The ballot papers therefore were not liable to be rejected as the proviso applied and the High Court came to the correct conclusion in counting these ballot papers and giving credit thereof to the respondent No. 1.
[130 C; F G; 131 F H; 130 H; 131 E; H; 132 A] 120 In a case in which the election petition claims that the election of the returned candidate is void, and also asks for a declaration that the petitioner himself or some other person has been duly elected, section 100 as well as section 101 of the Act would apply, and it is in respect of the additional claim for such declaration that section 97 comes into play.
Section 97(1) thus allows the returned candidate to recriminate and raise pleas in support of his case that the other person in whose favour a declaration is claimed by the petition cannot be said to be validity elected, and these would be pleas of attack and it would be open to the returned candidate to take these pleas, because when he recriminates, he really becomes a counter petitioner challenging the validity of the election of the alternative candidate.
The result of section 97(1) therefore is that in dealing with a composite election petition, the Tribunal enquires into not only the case made out by the petitioner, but also the counter claim made by the returned candidate.
That being the nature of the proceedings contemplated by section 97(1), it is not surprising that the returned candidate is required to make his recrimination and serve notice in that behalf in the manner and within the time specified by section 97(1) proviso and section 97(2).
If the returned candidate does not recriminate as required by section 97, then he cannot make any attack against the alternative claim made by the petition.
[135 A F] Kum.
Shradha Devi vs Krishna Chandra Pant & Ors.
, ; ; Jabar Singh vs Genda Lal, ; and P. Malaichami vs M. Andi Ambalam & Ors. ; referred to.
In the instant election petition two reliefs had been claimed, firstly, for setting aside the election of the returned candidate, i.e. the appellant, and secondly, for a declaration that the election petitioner (respondent No. 1) was the duly elected candidate.
The relief claimed was in terms of section 100(1)(d) (iii) and section 101(a) of the Act.
Admittedly no application for recrimination was filed by the appellant.
In the absence of a recrimination petition conforming to the requirement of section 97 of the Act the appellant who happens to be an advocate and is presumed to know the law, was not entitled to combat the claim of the election petitioner on the ground that if the remaining rejected ballot papers had been counted the election petitioner would not have been found to have polled the majority of the valid votes.
[132 D E; 133 A; 138 C D]
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<s>[INST] Summarize the judgementicable to the members of the Subordinate Judicial Service and the question of confirmation of judi 494 cial officer was completely within the domain of control of the HighCourt under Article 235 of the Constitution the findings of the High Court that the officers should not be confirmed cannot be accepted.
[499E F] The judgment and orders of the Division Bench set aside.
Appellants reinstated in service with the arrears of pay since the date of termination.
The orders of the Full Bench quashing the impugned order of termination of respondent in C.A. No. 2860 of 1985 affirmed, but not the reasons for such quashing.
[499G H] & CIVIL APPELLATE JURISDICTION: Civil Appeals Nos.
59 & 60 of 1982 etc.
From the Judgment and Order dated 9.4.1981 of the Madhya Pradesh High Court in Misc.
Petition Nos.
61 and 120 of 1980.
Dr. Y.S. Chitale, G.L. Sanghi, Mrs. A.K. Verma, Miss F. Desai, section Sukumaran, D.N. Mishra, Vivek Gambhir and S.K. Gambhir for the Appellants.
R.P. Bhatt, T.C. Sharma, Shri Narain and Sandeep Narain for the Respondents.
The Judgment of the Court was delivered by DUTT, J.
The only question that arises for consideration in these appeals by special leave is whether Rule 3 A of M.P. Government Service (Temporary & Quasi Permanent Service) Rules, 1960, hereinafter referred to as 'the Rules ', is applicable to the members of the Subordinate Judicial Service of the Madhya Pradesh Government.
In Civil Appeals Nos.
59 & 60 of 1982, both the appellants were appointed Civil judges on temporary and officiating basis for a period of six months for training and thereafter for a period of two years on probation.
It is not necessary to state in detail the facts, and suffice it to say that both the appellants were not ultimately confirmed by the High Court after the expiry of the period of probation or the extended period of probation.
The High Court recommended the termination of services of the appellants to the State Government and pursuant to such recommendation, the State Government terminated the services of the appellants under Rule 12 of the Rules.
Being aggrieved by the orders of termination of their services, the appellants filed writ petitions 495 before the Madhya Pradesh High Court.
It was contended by them A that in view of Rule 3 A of the Rules, they should be deemed to be in guasi permanent service.
Rule 3 A provides as follows: "R. 3 A. Government servant in respect of whom a declaration under clause (ii) of Rule 3 has not been issued but has been in temporary service continuously for five years in a service or post in respect of which such declaration could be made shall be deemed to be in quasi permanent service unless for reasons to be recorded in writing the appointing authority otherwise order.
" As a declaration under clause (ii) of Rule 3 had not been issued and as the appellants were in temporary service continuously for five years in the post of Civil Judges in respect of which such declaration could be made, it was contended they should be deemed to be in quasi permanent service, and that, accordingly, the orders of termination of their services were illegal and invalid.
It was, however, contended on behalf of the respondents that the question of confirmation came within the purview of Article 235 of the Constitution of India vesting in the High Court control over subordinate courts and, consequently, the provision of Rule 3 A had no application to the members of Subordinate Judicial Service.
The Division Bench of the High Court took the view that if in Rule 3 A in place of the words "appointing authority", the words "competent authority" be read, it would be consistent with Article 235 of the Constitution.
The Division Bench overruled the contention of the appellants that although the High Court considered them unfit for confirmation, yet Rule 3 A would apply as it did not record any reason why they should not be deemed to be in quasi permanent service, as provided in Rule 3 A.
The Division Bench observed as follows: "It was also argued by the learned counsel for the Petitioners that the case of the petitioners was considered by the High Court only for their confirmation and not suitability for employment in a quasi permanent capacity, when a resolution was passed declaring them to be unfit for confirmation.
On this basis, it was argued that the High Court 's resolution could not, therefore, be construed as 'otherwise order ' contemplated by the latter part of Rule 3 A. There is no merit in this contention.
The resolution passed in the Court meeting adjudging them not fit for confirmation 496 satisfies the requirement, as continuance in quasi permanent capacity is included within the ambit or confirmation against the post held by the petitioners.
" Accordingly, the Division Bench dismissed the writ petitions filed by the appellants.
In Civil Appeal No. 2860 of 1985, the High Court of Madhya Pradesh has assailed the judgment and order of its Full Bench.
The respondent, in that appeal also, was appointed a Civil Judge on a temporary and officiating basis for a period of six months for training and thereafter for a period of two years on probation.
In his case also, the High Court did not confirm him after the expiry of the probationary period and he continued without an order of confirmation or discharge.
In a Full Court Meeting held on February 27, 1981, it was decided not to confirm the respondent, presumable in view of certain adverse remarks against him which were directed to be communicated to him.
Ultimately, his services were terminated under Rule 12 of the Rules.
Aggrieved by the order of termination, the respondent filed a writ petition in the High Court of Madhya Pradesh.
The learned Single Judge referred the petition to the Full Bench for answering the following question: "Whether the resolution of the Court Meeting dated 27.2.
1981 satisfies the requirement of an otherwise order of the appointing authority by recording reasons in writing as contemplated under Rule 3 A of the Madhya Pradesh Government Servants (Temporary and Quasi Permanent Ser vice) Rules, 1960?" The Full bench approved of the view expressed by the Division Bench in its judgment which is under appeal in the above Civil Appeals Nos.
59 & 60 of 1982 to the extent that in Rule 3 A in place of the words "appointing authority", the words "competent authority" should be read so as to make the rule workable and consistent with Article 235 of the Constitution.
The Full Bench, however, did not agree with the Division Bench that the finding of the High Court in its resolution that the respondent was not fit for confirmation, could not be regarded as 'reasons ' within the meaning of Rule 3 A, but was the 'conclusion ' of the High Court.
The full Bench also made a distinction between 'reason ' and 'conclusion ' and took the view that as no reason was given by the High Court as to why the respondent should not be deemed to be in quasi permanent service, the impugned order of 497 termination of the service of the respondent was illegal and invalid.
In that view of the matter, the Full Bench quashed the impugned order of termination of the respondent and allowed the writ petition, although the learned Single Judge referred the writ petition to the Full Bench for answering the question as mentioned above.
Dr. Chitale, learned Counsel appearing on behalf of the High Court, submits that both the Division Bench and the Full Bench proceeded on an erroneous view that Rule 3 A would apply to the members of the Subordinate Judicial Service.
He has drawn our attention to the Madhya Pradesh Judicial Service (Classification, Requirement & Conditions of Service) Rules, 1955, hereinafter referred to as 'M.P. Judicial Service Rules ', framed under the proviso to Article 309 of the Constitution.
There can be no doubt the M.P. Judicial Service Rules are special rules applying to the members of the Subordinate Judicial Service of the State of Madhya Pradesh.
Rule 16 provides as follows: "R. 16.
( 1) Every person appointed to the cadre by direct recruitment shall be required to undergo training for a period of one year at the end of which he shall be placed on probation for a period of one year.
(2) The training shall be such as may be prescribed by the High Court.
(3) Every such person shall be required to pass the departmental examinations prescribed for Civil Judges.
(4) The probationers may, at the end of the period of their probation, be confirmed subject to their fitness for confirmation and to having passed the departmental examinations by the higher standard.
(5) The High Court may in any case recommend the extension of the period of probation by a period not exceeding one year.
If the person concerned is not considered fit for confirmation at the end of such period, or fails to pass the prescribed departmental examinations, his services shall be dispensed with." Rule 16(5) provides, inter alia, that if the person concerned is not considered for confirmation at the end of the probationary period, his services.
shall be dispensed with.
Whether a member of Subordinate 498 Judicial Service should be confirmed or not is absolutely the concern of the High Court.
The question of confirmation falls squarely within Article 235 of the Constitution and no rule framed by the State Government can interfere with the control vested in the High Court under Article 235.
In B.S. Yadav vs State of Haryana, ; a Constitution Bench of this Court held that the question whether a particular judicial officer has successfully completed his probation or not is a matter which is exclusively within the domain of the High Court to decide.
In an earlier decision of this Court in High Court of Punjab & Haryana vs State of Haryana, ; it was held that the confirmation of persons appointed to be or promoted to be District Judges was clearly within the control of the High Court under Article 235 of the Constitution.
In view of the above decisions of this Court, it must be held that both the Full Bench and the Division Bench were wrong in placing reliance upon Rule 3 A of the Rules.
As the High Court did not confirm the appellants in Civil Appeals Nos.
59 & 60 of 1982 and the respondent in Civil Appeal No. 2860 of 1985, the question of their being deemed to be in quasi permanent service does not arise.
Further, as the question of confirmation was completely within the domain of the control of the High Court under Article 235 of the Constitution, there was no necessity to read the words "competent authority" in place of the words "appointing authority", for Rule 3 A was inapplicable to the members of the Subordinate Judicial Service.
Moreover, as already noticed, there is a specific provision for termination of service of a judicial officer who is found by the High Court to be unfit for confirmation as provided in Rule 16(5) of the M.P. Judicial Service Rules.
Dr. Chitale, learned Counsel for the High Court, has produced before us the confidential service records of all these judicial officers.
We have carefully gone through the yearly reports of the appellants in Civil Appeal Nos.
59 & 60 of 1982.
Whatever might be the adverse remarks against the appellant No. 1, the report of the learned District & Sessions Judge dated March 31, 1978, is quite favourable except that it has been pointed out in the report that she should be careful to see that all her judgments are properly paragraphed and findings are noted against all issues.
Further, it has been observed that there is need for improvement in the quality of her work.
In view of the said report of the District & Sessions Judge, we do not think that the High 499 Court was justified in not confirming the appellant.
So far as appellant No. 2 in Civil Appeal Nos.
59 & 60 of 1982 is concerned, the report for the period from 1 4 1977 to 31 3 1978 contains the remark "very good".
It was also recorded under the general remarks "He is very industrious.
During the year under report he disposed of 68 old civil suits; ' In the report for the period ending September 30, 1978 it has been observed "His reputation is bad at present.
He has been asked to improve his image." This observation is somewhat vague.
The report for the period ending March 31, 1979 is, however, completely in favour of the appellant.
The performances of the appellant have been found to be highly satisfactory.
As regards the respondent in Civil Appeal No. 2860 of 1985, although he succeeded before the Full Bench on a technical plea based on Rule 3 A of the Rules which is not applicable, we are of the view that the High Court had justification for not confirming the respondent.
It, however, appears from the records that the respondent has improved much and, indeed, the report for the period from 24 10 1985 to 31 3 1986 shows that his performances for the said period were satisfactory.
The subsequent report for the period from 1 4 1986 to 31 3 1987 also shows that on the whole his performances were satisfactory.
Accordingly, we are not inclined to interfere with the order of the Full Bench.
In the circumstances, although we accept the contention made on behalf of the High Court that Rule 3 A of the Rules was not applicable to the members of the Subordinate Judicial Service, and that the question of confirmation of judicial officer was completely within the domain of control of the High Court under Article 235 of the Constitution, we are unable to accept the finding of the High Court that the appellants in Civil Appeals Nos.
59 & 60 of 1982 and the respondent in Civil Appeal No. 2860 of 1985 should not be confirmed as Civil Judges.
In view of the discussion made above, we set aside the judgment and order of the Division Bench in Civil Appeals Nos.
59 & 60 of 1982 and also the impugned orders terminating the services of the appellants.
The appellants are reinstated in service with arrears of pay, since the date of termination, to be paid within three months from date.
So far as Civil Appeal No. 2860 of 1985 is concerned, we affirm the order of the Full Bench quashing the impugned order of termination of services of the respondent, but not the reasons for such quash 500 ing and direct that for a period of three years the respondent shall be The appeals are disposed of as above.
There will, however, be no order as to costs in any of them.
N.P.V. Appeals disposed of.
[/INST]% The petitioners, who were engaged on terms of casual labour for periods varying between 10 and 16 years in the Construction Department of the Signal Unit in the Northern Railway, filed writ petitions in this Court alleging that though they had put in continuous service for quite a long period, the Railway Administration the respondent, had not treated them as temporary servants and had applied discriminatory rates of wages, and prayed for a direction to treat them at par with maintenance workers, and to declare that they were entitled to equal pay for equal work and absorption in the regular cadre in The permanent category as per the circulars issued by the respondents.
The respondents in their counter affidavits contested the claim of the petitioners contending that out of the forty four petitioners, sixteen bad been empanelled, five of whom had been given temporary appointments, eleven had refused to join and seventeen had been given temporary status, and that by the Railway Board 's directions on January 1, 1984, project casual labourers were now entitled to all privileges that were applicable to open line temporary railway servants, that temporary status will first be given in the cadre of Khallasis and then promotion to skilled category, after conducting trade test, and that the employees in the open line acquired temporary status on completion of 120 days of service whereas such status was acquired by the casual labour in project work on completion of 360 days as formulated under orders of this Court.
Disposing of the writ petitions, ^ HELD: Casual labour seems to be the requirement of the Railway 139 administration and cannot be avoided.
The Railway Establishment A Manual has made provisions for their protection, but implementation is not effected.
Several instructions were issued by the Railway Board and the Northern Railway Headquarters to remove the difficulties faced by the casual labour but there is slackness in enforcing them.
This Court hopes and trusts that such an unfortunate situation will not arise again and in the event of any such allegation coming to the Court, the Administration will have to be blamed.
[144F G] No doubt, the petitioners have put in more than 360 days of service.
But keeping the prevailing practice, distinction between the casual labour employed in the open line, and in the project line cannot be obliterated.
[141D F] The Railway Administration should take prompt steps to screen such of the petitioners who have not yet been tested for the purpose of regularising their services.
[144C] The respondents are directed to consider the claims of the petitioners promptly and make appropriate orders for their regularisation.
[144D E] The petitioners are entitled to the same pay as is admissible to others, either in the project or in the open line.
Retiral benefit of pension is not admissible.[144D,B]
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<s>[INST] Summarize the judgementCivil Appeal No. 1177 (NCE) of 1986.
From the Judgment and order dated 17.1.1986 of the Allahabad High Court (Election Tribunal) in Election Petition No. 54 of 1985.
R.K. Garg and Ravi Parkash Gupta for the Appellant.
Qamarrudin and Mrs. Qamarrudin for the Respondents.
The Judgment of the Court was delivered by 633 VENKATARAMIAH, J.
This appeal is filed under section 116A of the Representation of the People Act, 195 l (hereinafter referred A to as 'the Act ') by the appellant against the Judgment dated January 17, 1986 of the High Court of Allahabad in Election Petition No. 34 of 1985 dismissing the Election Petition.
The election to the Uttar Pradesh State Legislative Assembly from Constituenc No. 41 Gunnaur, Village Mirzapur, District Baduan took place in early March, 1985.
16 candidates contested at the said election.
Respondent No. I Smt.
Pushpa Devi was declared elected having secured 23006 votes.
The next highest number of votes was secured by Shri Naurangi Singh.
He secured 20735 votes.
The difference between the votes secured by Respondent No. l and the votes secured by Respondent No. 2 was in the order of 227 l votes.
Respondent No. 8, who was working as a teacher in the Babu Ram Singh Intermediate College, Baburala, Baduan was also one of the candidates in the election.
He secured 3606 votes, which were more than the difference between the votes secured by Respondent No., and by Respondent No. 2.
The appellant, who was an elector at the said election, filed the Election Petition, out of which this appeal arises, contending that Respondent No. 8, who was working as a teacher in the Babu Ram Singh Intermediate College, Baburala, Baduan, was holding an office of profit under the State Government and, therefore, the acceptance of his nomination by the Returning officer was illegal.
Since Respondent No. 8 secured 3606 votes, which were higher than the difference between the votes secured by Respondent No. I and the votes secured by Respondent No. 2, the election of Respondent No. I should be considered as having been materially affected by the wrongful acceptance of the nomination paper of Respondent No. 8 and the election of Respondent No. 1 was liable to be set aside.
The Election Petition was contested by Respondent No. 1.
It was pleaded by Respondent No. 1 that the acceptance of the nomination paper of Respondent No. 8 was not illegal since Respondent No. 8 was not holding an office of profit under the State Government and secondly even if the acceptance of the nomination paper of Respondent No. 8 was illegal, the election could not be set aside since the result of the election was not materially affected thereby.
The High Court held that the acceptance of the nomination paper of Respondent No. 8 was not illegal as Respondent No. 8 was not holding an office of profit under the State Government and it further held that even if the acceptance of the nomination paper of Respondent No. 8 was illegal, the appellant had not established that the result of the election of Respondent No. I had been materially affected on the facts and in the H 634 circumstances of the case.
The High Court accordingly dismissed the petition.
Aggrieved by the judgment of the High Court the appellant has filed this appeal.
Since it is possible to dispose of this appeal on the second ground we do not propose to express any opinion in this case on the question whether Respondent No. 8 was, in fact, holding an office of profit under the State Government or not on the date on which the nomination paper was filed or on the date of the election.
We leave the said question open.
In order to decide the second question it is necessary to set out the relevant part of section 100 of the Act which reads thus: "100.
Grounds for declaring election to be void (1) Subject to the provisions of sub section (2) if the High Court is of opinion . . . . . . . . . (c) that any nomination has been improperly rejected; or (d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected (i) by the improper acceptance of any nomination, or. . " Section 100 of the Act makes a distinction between the effect of improper rejection of any nomination and the effect of the improper acceptance of any nomination on the election.
If a nomination of any person at an election has been improperly rejected the election of the returned candidate is liable to be set aside without any further proof because it is difficult to visualise the number of votes which the person whose nomination has been rejected would have secured at the election and there is every likelihood of the returned candidate not securing the highest number of votes.
It is for this reason clause (c) of section 100(1) of the Act states that if the High Court is of the opinion that any nomination has been improperly rejected it shall declare the election of the returned candidate to be void.
Sub clause (i) of clause (d) of sub section (1) of section 100 of the Act is, however, worded differently.
It says that if the High Court is of opinion that the result of the election insofar as it concerns the returned candidate has been materially affected by the improper acceptance of any nomination it 635 shall declare the election of the returned candidate as void.
Sub clause (i) of clause (d) of section 100( I) of the Act requires a petitioner in an election petition to establish two grounds in order to get the election of the returned candidate set aside, namely, (i) that there has been improper acceptance of any nomination; and (ii) that by reason of the entry of the candidate whose nomination has been improperly accepted into the contest the result of the election insofar as the returned candidate is concerned has been materially affected.
The reason for making a distinction between a case falling under clause (c) of section 100(1) of the Act and a case falling under sub clause (i) of clause (d) of section 100( I) of the Act can be explained with reference to a hypothetical case.
Let us assume that the returned candidate has secured at an election 30,000 votes and 20,000 votes have been secured by a candidate who has secured the next highest number of votes.
We shall assume that a third candidate, whose nomination paper had been improperly accepted has secured just 1000 votes.
In this case even if it is held while deciding an election petition that the nomination of the third candidate has been improperly accepted, there is no justification to set aside the election of the successful candidate because even if all the votes secured by the third candidate are added to the candidate who has secured the next highest number of votes he would be a person who has secured 21000 votes and the successful candidate would still be a person who has secured the highest number of votes at the election.
In this hypothetical case it has to be held that the result of the election has not been materially affected at all.
Such election petition has necessarily to be rejected.
This Court was called upon to decide a case similar to the present one in Vashist Narain Sharma vs Dev Chandra and others.
; In that case the returned candidate Vashist Narain Sharma had secured 12868 votes and Vireshwar Nath Rai secured the next highest number of votes, i.e.,10,996.
The difference in the number of votes secured by these two candidates was 1872.
Another candidate by name Dudh Nath at the election, whose validity was in issue in that case, had secured 1983 votes.
There were also two other candidates in the field.
One of the grounds in the election petition, out of which the above case arose, was that the election of the returned candidate was liable to be set aside since the nomination paper of Dudh Nath had been improperly accepted by the Election Commissioner.
The Court in that case held that the burden of proving that the result of the election had been materially affected on account of the improper acceptance of a nomination was on the petitioner and that even if there was wrongful acceptance of the nomination having regard to the number of votes secured by the several candidates it was not possible to hold that the 636 result of the election had been materially affected.
In Samant N. Balakrishna etc.
vs George Fernandez and Ors etc.
; , section 100( l)(d)(i)) of the Act again arose for consideration.
In that case this Court commented at pages 643 644 on the decision in Vashist Narain Sharma 's case (supra) thus: "Mr. Chari relies upon the rulings of this Court where it has been laid down how the burden of proving the effect on the election must be discharged.
He referred to the case reported in Vashist Narain Sharma vs Dev Chandra and Surendra Nath Khosla vs Dilip Singh and the later rulings of this Court in which Vashist Narain 's case has been fol.
lowed and applied.
In our opinion the matter cannot be considered on possibility.
Vashist Narain 's case insists on proof.
If the margin of votes were small something might be made of the points mentioned by Mr. Jethmalani.
But the margin is large and the number of votes earned by the remaining candidates also sufficiently huge.
There is no room, there fore, for a reasonably judicial guess.
The law requires proof.
How far that proof should go or what it should contain is not provided by the Legislature.
In Vashist 's case and in Inayatullah vs Diwanchand Mahajan, the provision was held to prescribe an impossible burden.
The law has however remained as before.
we are bound by the rulings of this Court and must say that the burden has not been successfully discharged.
We cannot overlook the rulings of this Court and follow the English rulings cited to us.
" The very same question was considered by this Court in Chhedi Ram vs Jhilmit Ram and others, by a bench of which one of us (Venkataramiah, J.) was a member.
The judgment in that case was delivered by Chinnappa Reddy, J.
In that case the returned candidate Jhilmit Ram had secured 17, 822 votes and Chhedi Ram, the runner up had secured 17449 votes.
Thus the difference between the successful candidate and the candidate who secured next highest votes was 373 votes.
There were four other candidates, of whom Moti Ram secured 6710 votes.
Chhedi Ram challenged the election of Jhilmit Ram on the ground that Moti Ram was a Kahar by caste, not entitled to seek election from the reserved constituency, i.e., his nomination had been improperly accepted and the result of election was materially affected.
The High Court found that Moti Ram was a Kahar by caste 637 and not a member of the scheduled Castes.
Having arrived at the conclusion that Moti Ram 's nomination had been accepted improperly, the High Court was not prepared to set aside the election of Jhilmit Ram as it took the view that the result of the election had not been shown to have been affected in view of the improper acceptance of the nomination of Moti Ram.
The election petition in that case was, therefore, dismissed.
Chhedi Ram then preferred an appeal to this Court against the judgment of the High Court.
This Court allowed the appeal.
In the course of the judgment Chinnappa Reddy, J. Observed thus "2.
We are afraid the appeal has to be allowed.
Under section l00(1)(d) of the Representation of the People Act, 195 1, the election of a returned candidate shall be declared to be void if the High Court is of opinion that the result of the election, in so far as it concerns the returned candidate, has been materially affected by the improper acceptance of any nomination.
True, the burden of establishing that the result of the election has been materially affected as a result of the improper acceptance of a nomination is on the person impeaching the election.
The burden is readily discharged if the nomination which has been improperly accepted was that of the successful candidate himself.
On the other hand, the burden is wholly incapable of being discharged if the candidate whose nomination was improperly accepted obtained a less number of votes than the difference between the number of votes secured by the candidate who got the next highest number of votes.
In both these situations, the answers are obvious.
The complication arises only in cases where the candidate, whose nomination was improperly accepted, has secured a large number of votes than the difference between the number of votes secured by the successful candidate and the number of votes got by the candidate securing the next highest number of votes.
The complication is because of the possibility that a sufficient number of votes actually cast for the candidate whose nomination was improperly accepted might have been cast for the candidate who secured the highest number of votes next to the successful candidate, so as to upset the result of the election, but whether a sufficient number of voters would have so done, would ordinarily remain a speculative possibility only.
In this situation, the answer to the question whether the result of the 638 election could be said to have been materially affected must depend on the facts, circumstances and reasonable probabilities of the case, particularly on the difference between the number of votes secured by the successful candidate and the candidate securing the next highest number of votes, as compared with the number of votes secured by the candidate whose nomination was improperly accepted and the proportion which the number of wasted votes (the votes secured by the candidate whose nomination was improperly accepted) bears to the number of votes secured by the successful candidate.
If the number of votes secured by the candidate whose nomination was rejected is not disproportionately large as compared with the difference between the number of votes secured by the successful candidate and the candidate securing the next highest number of votes, it would be next to impossible to conclude that the result of the election has been materially affected.
But, on the other hand, if the number of votes secured by the candidate whose nomination was improperly accepted is disproportinately large as compared with the difference between the votes secured by the successful candidate and the candidate securing the next highest number of votes and if the votes secured by the candidate whose nomination was improperly accepted bears a fairly high proportion to the votes secured by the successful candidate, the reasonable probability is that the result of the election has been materially affected and one may venture to hold the fact as proved.
Under the Indian Evidence Act, a fact is said to he proved when after considering the matters before it, the court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.
If having regard to the facts and circumstances of a case, the reasonable probability is all one way, a court must not lay down an impossible standard of proof and hold a fact is not proved.
In the present case, the candidate whose nomination was improperly accepted had obtained 67 10 votes, that is, almost 20 times the difference between the number of votes secured by the successful candidate and the candidate securing the next highest number of votes.
Not merely that.
Th number of votes secured by the candidate whose nomination was improperly accepted bore a fairly high proportion to the number 639 Of votes secured by the successful candidate it was a little over one third.
Surely, in that situation, the result of the election may safely be said to have been affected.
" In the case before us Respondent No. I had secured 23006 votes and Respondent No. 2 had secured 20735 votes.
The margin thus was of 22371 votes.
Respondent No. 8, the validity of whose nomination was questioned, had secured 3606 votes.
It is no doubt true that if we assume that all the 3606 votes secured by Respondent No. 8 would have gone to Respondent No. 2, Respondent No. 2 would have been the successful candidate.
at the election.
Having regard to the facts of this case we feel that it is not possible to hold that the appellant in this appeal has established that the result of the election of the returned candidate had been materially affected because the difference between the votes secured by Respondent No. 1 and the votes secured by Respondent No. 2 was 2272 votes.
Respondent No. 8 had secured only about 1 7th of the number of votes polled by the Respondent No. l and there were 15 candidates (excluding respondent No. 8) contesting the election.
It is not possible to reach a finding in this case by making a judicial guess that all the 3606 voters who had voted in favour of Respondent No. 8 would have cast their votes in favour of Respondent No. 2 alone.
Even if about 1350 of them had cast their votes in favour of any of the other 14 candidates (including the returned candidate) Respondent No. 2 could not have become the candidate who had secured the highest number of votes at the election.
At this stage it is relevant to refer to the observation of Gulam Hasan, J. In Vashist Narain Sharma 's, case (supra) which run thus: "But we are not prepared to hold that the mere fact that the wasted votes are greater than the margin of votes between the returned candidate and the candidate securing the next highest number of votes must lead to the necessary inference that the result of the election has been materially affected.
That is a matter which has to be proved and the onus of proving it lies upon the petitioner.
It will not do merely to say that all or majority of the wasted votes might have gone to the next highest candidate.
The casting of votes at an election depends upon a variety of factors and it is not possible for any one to predicate how many or which proportion of the votes will go to one or the other of the candidates.
While it must be recognised that the petitioner in such a case of confronted with a difficult situation, it is not possible to relieve him of the duty imposed upon him H 640 by section 100(1)(c) and hold without evidence that the duty has been discharged.
Should the petitioner fail to adduce satisfactory evidence to enable the Court to find in his favour on this point, the inevitable result would be that the Tribunal would not interfere in his favour and would allow the election to stand.
" In the case before us we are of the view that the High Court was right in observing that the appellant or any other party had not placed satisfactory evidence to reach the conclusion that all or a sufficient number of the wasted votes which had been cast in favour of Respondent No. 8 would have gone in favour of Respondent No. 2, had Respondent No. 8 not been one of the candidates at the election.
The High Court has on the evidence before it held that "in the context particularly of the poll being heavy and the contestants being large in number 16 in all it remains unreasonable to guess that if the respondent No. 8 were excluded from the arena of contest the wasted votes would have gone to the respondent No. 2 thereby enabling him to succeed.
The burden Iying upon the petitioner remains clearly undischarged and the speculative possibility does not attain the level of proof.
" We agree with the above observation of the High Court since the appellant has not discharged the burden which clearly lay on him or proving that the result of the election had been materially affected even assuming that the nomination of Respondent No. 8 had been improperly accepted.
This appeal should, therefore, fail.
We accordingly dismiss it.
We, however, make no order as to costs.
N.P.V. Appeal dismissed.
[/INST]% A number of the princely States, situated within the territories of the present State of Orissa, were merged with effect from January 1, 1948, with the Province of orissa as it then existed.
On such merger, the High Schools within the said princely States came under the juries diction of the Province of Orissa.
The Schools belonged to two categories 'A ' type schools which were full fledged High schools sending candidates for the Matriculation examination and `B ' type schools which were incomplete schools, not sending candidates for the Matriculation examination.
On the said schools being taken over by the Province of orissa the teachers of the schools came under the control of the Government of orissa.
The orissa Government issued a letter dated 5.1.1949 to the Director of Public Instruction in connection with the subject of regulation of the services of the teachers.
The appellant was an assistant teacher in one of the 'B ' type schools on June 15, 1q953, after the commencement of the Constitution of India, and continued to work as such in the 'B ' type school till August 1, 1964, when the State Government of Orissa published a rationalisation scheme for integrating the services of the teachers in the different types of High Schools in the State.
Aggrieved by the terms of the Scheme relating to (i) the seniority of the teachers working in the 'B ' type High Schools and (ii).
The contributory Provident Fund, the appellant filed a writ petition in the High Court.
The High Court upheld the validity of the Scheme and dismissed the Petition, while recommending, however, to the Government to modify the terms relating to the Provident Fund Scheme applicable to the teachers of 'B ' type High Schools.
The appellant then moved this Court by special leave against the decision of the High Court.
Disposing of the appeal, the Court, 651 ^ HELD: It is true that till the commencement of the Constitution of India, the position of the 'B ' type High Schools and the teachers working in them was being regulated in accordance with the terms contained in the order dated 5.1.1949.
But on the commencement of the Constitution of India, all the territories which immediately before the commencement of the Constitution were either comprised in the Province of Orissa or were being administrated as if they formed part of that Province, became and constituted the State of Orissa.
The State Government was under obligation to discharge its executive functions with respect to education in respect of all the schools including 'B ' type High Schools.
A High school which once belonged to a princely state became a Government High School with effect from the commencement of the Constitution and it could not be anything else and the teachers working therein became teachers holding posts under the Government.
It is well settled that the doctrine of an "act of State" cannot be pleaded by a State as a defence against its own citizens.
An 'act of State ' is an act done in relation to a foreigner by a Sovereign power of a country.
Such an act cannot be questioned in any court of law, but such a situation would not arise between the State Government and a citizen like the appellant who joined service after the commencement of the Constitution.
The High Court was in error in upholding the plea that the order dated 5.1.1949 could not be questioned by the appellant who had joined service after the commencement of the institution.
[657A E. GH; 658A] There is also no rational basis for refusing to give the benefit of the service rendered by a teacher working in a 'B ' type High school after January 26, 1950, either for purposes of seniority or for purposes of computing the retirement benefits.
It may be open to the State Government, while integrating the services of teachers working in different kinds of institutions, to introduce a scheme of rationalisation which may have the effect of modifying the conditions of service of different groups of government servants.
But the Government cannot by a stroke of pendeny the benefit of the entire past service rendered by one group of such government servants.
The effect of the government scheme was that all the teachers who had been in Government Schools immediately prior to June 1 1964 the date of coversion of the High Schools to government schools became senior to the teachers working in the 'B ' type High Schools, Ex District Board High Schools and Ex Anchal High Schools.
The scheme appears to be an irrational one.
The High Court was in error in upholding the terms of the scheme in so far as the question of the seniority was concerned.
The judgment of the High Court.
in so far as the validity of the terms of the scheme, pertaining to 652 seniority of the teachers in the schools referred to in it, is concerned, is reversed.
the clause in the scheme which reads: "But for the purpose of reckoning their seniority in Government service their services will be counted from the date of conversion of the schools into Government schools" is void.
The State government is directed to treat, on and after January, 26, 1950, the service of the teachers of the 'B ' type High schools, ex District Board High Schools and ex Anchal High Schools as the service under the State Government.
It is open to the State Government to evolve a reasonable formula for integrating the cadres of these teachers with the cadres of the teachers in the High Schools which have been under the Government all along.
Before bringing about such an integration, the government may formulate reasonable principles for equating the posts in the Government High Schools with the posts in the 'B ' type High Schools, ex District Board High Schools and ex Anchal High Schools having regard to the minimum qualification for the posts, pay, responsibilities, etc.
In the light of the said principles, the government shall prepare a seniority list, whereafter it shall proceed to make promotions of the teachers to the higher cadre.
In view of the stand taken by counsel for the appellant and other teachers in 'B ' type High schools, ex District Board High Schools and the ex Anchal High schools, regarding their not insisting upon promotions with retrospective effect, etc., the State government shall promote these teachers to the higher posts as and when the vacancies arise hereafter, on the basis of their rank in the seniority list, if they are found fit for such promotion.
The government is at liberty, if it finds it convenient, to treat, as submitted by the teachers ' counsel, the two groups of teachers as belonging to separate cadres and reserve certain percentage of posts for being filled up only by the teachers of 'B ' type High Schools, ex District Board High Schools and ex Anchal High schools, as was the case in State of Punjab vs Joginder Singh, [1963 (Supp. 2) SCR 169].
The order of the High Court is modified to the above extent and the State Government shall prepare the seniority list and make promotions accordingly within six months in the light of the above observations.
[659C G; 660C H; 661A D] No opinion is expressed on the question of Contributory Provident Fund Scheme, the same having been satisfactorily settled by the state.
[661D E] Johnstone vs Pedlar, ; , referred to.
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<s>[INST] Summarize the judgementAppeal No. 1370 of 1966.
Appeal from the Judgment and decree dated February 16, 1966 of the Rajasthan High Court in D. B. Civil Regular First Appeal No. 86 of 1958.
R. K. Garg, section C. Agarwal, D. P. Singh, V. J. Francis and section Chakravarty, for the appellants D. V. Patel, Janendra Lal, and B. R. Agarwala, for the respondents.
The judgment of the Court was delivered by Bhargava, J.
This appeal arises out of a suit for Partition of properties in the family of one Lalaji Ramchandra who Was the ,common ancestor of the parties to the suit.
He had two sons, Govindraoji 'and Motilal alias Krishnaraoji.
The plaintiffs/ appellants and the non contesting proforma respondents are the descendants of Motilal, while the contesting respondents are the descendants of Govindraoji, the principal one being Chandrakant Rao who was defendant No. 1 in the suit.
The appellants sought Partition of all the family properties, including eight villages known ,as "the sarola Jagir" which were situated in the erstwhile State of 'Kota.
The trial Court dismissed the suit in its entirety, holding 83 9 that none of the properties in suit was ancestral property.
On appeal by the present appellants, the High Court of Rajasthan upheld the dismissal of the suit insofar as the appellants had claimed a share in the eight villages forming the Sarola Jagir, while the suit in respect of the other properties was decreed and a preliminary decree passed in respect of those properties.
The appellants have come up to this Court in this appeal, by certificate granted ,by the High Court, against the order of the High Court refusing to grant partition of the eight villages of the Sarola Jagir.
In order to appreciate the point raised in this appeal the history of this Jagir in this family may be recited briefly.
Lalaji Ramchandra and his eldest son Govindraoji were awarded this Jagir by means of a Parwana dated 8th April, 1838 issued by His Highness Maharao Ramsingh, Ruler of Kotah.
It appears that the Maharao had contracted debts with the family of Lalaji Ramchandra even in the time of his ancestors and, at the relevant time, the amount of debt exceeded Rs. 9 lakhs.
This debt was guaranteed by the British Government.
In lieu of this debt, this Jagir, which was already being enjoyed by Lalaji Ramchandra with certain limitations, was given jointly to him and his son Govindraoji, stating that it was being conferred in perpetuity and was always to remain from sons to grandsons and was to be free from all taxes which were being exacted up to that time, such as Barar and Sewai.
At the same time, Govind Rao executed a deed of release by which he accepted the adjustment of the amount due from the Maharao against this grant of jagir.
These documents thus show that this Jagir was originally granted by Maharao Ramsingh, Ruler of Kotah, jointly in the names of Lalaji Ram Chandra and his son, Govindraoji in lieu of the debt which the Maharao owed to them.
Subsequently, this property was treated as property of the joint family of Lalaji Ramchandra Motilal the second son of Lalaji Ramchandra, was born after this grant and his name was also mutated against the Jagir villages.
On the death of Govindraoji, the name of his adopted son, Ganpat, Raoji, was brought in, while Motilal, the uncle, managed the property on behalf of the family.
Motilal executed a will in respect of his properties, including these villages, specifically stating that half of this property belonged to Ganpatraoji, while half would belong to his adopted son, Purshottam Raoji.
After the death of Motilal, Ganpatraoji became the manager of the property and Purshottam Raoji 's name was also entered against this property.
On the death of Ganpat Raoji, the name of his eldest son Chandrakant Rao was mutated while Purshottam Raoji in the capacity of the eldest member of the family, started managing the property.
The property thus remained in the family, being treated as joint family property and, even during the years between 1852 and 1868 when efforts were made by the Maharao of Kotah to dispossess this 8 40 family, the British Government had intervened to ensure that the property remained with this family, insisting that the Maharao could only resume the Jagir on repayment of the loan in respect of which discharge had been obtained when this Jagir was conferred.
The property was thus continued to be treated as joint family property until the death of Purshottam Raoji when a question arose as to the mutation of names of his descendants in his place.
Chandrakant Rao desired that his name alone should be shown as the holder of this Jagir and, on 22nd October, 1937, gave a statement before the Revenue Commissioner claiming that the eldest son in the eldest branch had the right over the jagir according to the custom and usage in Rajputana and, consequently, mutation in the records should be in his name alone.
A report was sent by the Revenue Commissioner and the matter was dealt with by the Maharao of Kotah himself in Mehakma Khas.
The order of the Maharao on that report was passed on 22nd January, 1938.
By this Order, a direction was made that this Jagir, like all other Jagirs, should be given the status of an impartible estate and it should be given proper shape by being liable to render 'Chakri, and 'Subhchintki to the Ruler.
It was further ordered that the Jagir will be governed by the rule of primogeniture, so that Chandrakant Rao alone would be held to be the Jagirdar.
As a result, all these eight villages of the Sarola Jagir came to be shown as the property of Chandrakant Rao alone.
The claim of the plaintiff in this suit was that the Jagir having been joint Hindu family property, the rights of the plaintiffs, who are the successors in interest of Purshottam Raoji, cannot be defeated by the order of the Maharao dated 22nd January, 1938 ,and, consequently, the appellants together with the proforma respondents who are also descendants of Purshottam Raoji are entitled to 1/2 share, whereas the other 1/2 share only can be claimed by the contesting defendants, including Chandrakant Rao, who are descendants of Ganpatraoji.
Both the trial Court and the High Court have held that, after the order of the Maharao of Kota dated 22nd January, 1938, this Jagir came to be, governed by the rule of primogeniture, with the result that Chandrakant Rao alone was the owner of this property, while all other members of the family could only claim maintenance out of this property.
Consequently, the claim of the appellants for a share in these villages on partition was negatived.
It is the correctness of this decision that has been challenged, before us.
Since, in this case, no effort was made on behalf of the respondents to contest the correctness of the finding given by the High Court that all these villages were joint family property and were treated as such right up to the year 1937 when Purshottam Raoji died, we need not enter into the details of the evidence on the basis 841 of which this finding has been recorded.
The question that falls for decision is whether the Maharao of Kota by his order dated 22nd January, 1938, could validly change the nature of the property.
make it impartible and governed by the rule of primogeniture when the property was already joint family property.
In deciding this question, the crucial point is that the Maharao of Kota was an independent and sovereign Ruler whose orders in his State were law.
He had absolute power to make any orders, and the Order dated 22nd January, 1938 has, therefore to be given the force of law which, when it was passed, could not be challenged as invalid.
Counsel for the appellants, however, urged that all orders passed by an independent and sovereign Ruler do not have the force of law.
It is only those orders which purport to lay down a law for the State which cannot be challenged and which would remain in force even after the merger of the Kota State in India and after, the enforcement of the Constitution under article 372 of the Constitution.
His submission was that, when passing the Order dated 22nd January, 1938, the Ruler was only exercising executive powers of directing mutation of names and was not exercising any legislative powers.
The nature of the Order passed by him, however, shows that this submission cannot be accepted.
No doubt, that Order was made on a report which was put up before the Maharaoji for deciding who should be held to be the owner of the Jagir when Purshottam Raoji died.
The Order shows that the Maharao took notice of the fact that the Sanad had been granted in the name of Lalaji Ramchandra and his eldest son Govind Rao on executing a deed of release in respect of the debt, but it added that, when the unpaid debt was changed in the form of a Jagir and no special condition was laid down regarding it and the name of only the eldest son was written in the 'Sanad ' though another brother was present there, it has to be held that the Jagir was intended to be given on the same rules on which the other Jagirs were granted The Order then proceeds to take notice of the fact that, though the mutation should have been in the name of Chandrakant after the death of Ganpat Rao, a practice had developed of entering more than one person as the holders of this Jagir.
It appears that, in order to give effect to the original intention that this Jagir should be governed by the same rules as all other Jagirs, the Maharao proceeded to lay down that this ' Jagir should also be impartible and should be held by the eldest member of the family in the eldest branch.
The Ruler considered it desirable to make this Order, because it was envisaged that, it the entire Jagir, was distributed amongst all the members of the family, then even the name of Thikana ' would disappear.
It was considered desirable that this Jagir should be governed according to the custom of the States in Rajputana including Kota State under which the eldest son of the senior branch alone was entitled to hold the property.
Thereafter, the Maharao proceeded to lay down that this Jagir should be L 10 Sup C I (NP)70 9 84 2 equated with other Jagirs by making a direction that the holders of this Jagir should also render 'Chakri ' and should continue to do 'Subhchintki '.
Having made this direction, the Ruler then held that.
since this 'Thikana ' was being given proper shape, its custom and status must be similar to that of all other Jagirdars in the State.
These directions given by the Ruler clearly show that, though the proceedings came to him on the basis of a report for directions as to the mutation entry to be made on the death of Purshottam Rao, he proceeded to lay down the principles Which were to govern this Jagir thereafter.
The Ruler decided that this Jagir should be placed on equality with all other Jagirs in the State and should be governed by the same laws.
The Order thus made was clearly an exercise of legislative power by which the Ruler was competent to lay down that, though this Jagir had in the past been joint family property, it was to be thereafter impartible property governed by the rule of primogeniture and Chandra Kant Rao as the eldest member of the senior branch was to be the sole Jagirdar.
This was, therefore, a case where the Maharao exercised his powers of laying down the law with respect to this one single Jagir.
It cannot be said that the Order passed by him was a mere executive order and did not result in exercise of his powers of making the law.
In this connection, counsel for the appellants relied on the principle laid down by this Court in Rajkumar Narsingh Pratap Singh Deo vs State of Orissa and Another(1) to canvass his submission that the Maharao, in this case, was not exercising legislative powers when he passed the Order dated 22nd January, 1938.
In that case, the effect of a Sanad granted by the Ruler of Dhenkanal State had to be considered and 'the question arose whether the Sanad could be treated as existing law within the meaning of article 372 of the Constitution.
The Court, after taking notice of previous decisions, drew a distinction between orders made by a Ruler having the force of law and orders which may be of executive nature, and held "The true legal position is that whenever a dispute arises as to whether an order passed by an absolute monarch represents 'a legislative act and continues to remain operative by virtue of cl.
4(b) of the Order, 'all relevant factors must be considered before the question is answered; the nature of the order, the scope and effect of its provisions, its general setting and context, the method adopted by the Ruler in promulgating legislative as distinguished from executive orders, these and other allied matters will have to be examined before the character of the order is judicially determined." (1) ; 843 On an application of these principles in that case, it was held that the Sanad in question could not be held to be a legislative act.
In our opinion, even if these principles are applied to the case,before us, it has to be held that the Order of the Maharao dated 22nd January, 1938 amounted to exercise of legislative power.
As we have already indicated earlier, the very mature of the Order, which changes the law applicable to the Jagir, indicates that it was a legislative act and not a mere executive order.
The Maharao did not purport to lay down that the Jagir was already governed by the rule of primogeniture; what he did was to apply the rule of primogeniture to this Jagir for future.
Such an order could only be made in exercise of his prerogative of laying down the law for the State.
The mere fact that it was laid down for one single Jagir and was not a general law applicable to others in the State is immaterial, because it does not appear that there were any other similar Jagirs which also required alteration of the law applicable to them.
There is also nothing to show that during the period of his rule, the Maharao had adopted any special procedure for promulgating the laws in his State.
The manner in which the Order was passed indicates that, in this State, the Maharao considered himself competent to lay down the law at any time he liked.
Reliance was also placed on the decision of this Court in State of Gujarat vs Vora Fiddali Badruddin Mithibarwala(1), but that case, in our opinion, has no application at all.
In that case,, the question arose whether an agreement entered into by a Ruler had the force of law.
In the case before us, there is no such question of any agreement.
In dealing with that question, the Court relied on the following extract from a decision of the Court in an earlier case of The Bengal Nagpur Cotton Mills Ltd. vs The Board of Revenue, Madhya Pradesh and Others(2) : "It is plain that an 'agreement of the Ruler expressed in the shape of a contract cannot be regarded as a law.
A law must follow the customary forms of law making and must be expressed as a binding rule of conduct.
There is generally an established method for the enactment of laws, and the laws, when enacted, have also a distinct form.
It is not every indication, of the will of the Ruler, however expressed, which amounts to a law.
: An indication of the will meant to bind as a rule of,,., conduct and enacted with some formality either traditional or specially devised for the occasion, results.
in a law but not an agreement to which there are two parties, one of which is the Ruler.
" Emphasis was laid by counsel on the views expressed in this passage that a law, must follow the customary forms of law making.and ' (1) ; (2) A.T.R. 1964 S.C. 8.88 844 must be expressed as a binding rule of conduct.
In the present case, there is nothing to show that, in the State of Kota, there was any other customary form of law making.
The Order of 22nd January, 1938 clearly expresses the direction of the Ruler that the Jagir must be governed by the same customary law as other Jagirs as a binding direction which was to govern the future conduct of the holders of this Jagir.
The principle relied on, therefore, does not show that this Order of 22nd January, 1938 did not amount to a legislative act on the part of the Maharao.
Reference was also made to the decision of this Court in Major Ranjit Singh Rao Phalke vs Smt.
Raja Bai Sahiba (dead) by her legal representatives & Vice Versa(1) where the Court said : "It is now settled law that every order of the Maharaja cannot be regarded as law, particularly those which were in violation of his own laws." and again repeated: "The position today is that every order of the Ruler cannot be regarded as law but only such orders as contain some general rule of conduct and which follow a recognised procedure of law making." In that case, the particular order of the Ruler which was questioned had been made in contravention of one of the existing laws of the State and it was held that such an order could not be treated as law.
In the case before us, the position is quite different.
There was no law of the Kota State which could be held to be contrary to the Order dated 22nd January, 1938.
In fact, the general law govern ing all Jagirs in the State was the customary law under which the Jagirs were owned by the eldest member of.
the senior branch, and all that this Order did was to apply the same law to this Jagir also.
It is true that no special procedure of law making was adopted by the Maharao when making this Order; but that circumstance cannot change the nature of the Order specially when there is nothing to indicate that there was any recognised procedure of law making in the Kota State at that time.
In these circumstances, we hold that the High Court was quite correct in arriving at the decision that these eight villages ', at the time when the suit for partition was instituted, were impartible property governed by the law of primogeniture and Chandrakant Rao respondent alone had to be treated as the owner of these villages.
It, however, appears that, during the pendency of the suit, Jagirs were resumed in Rajasthan including this Jagir which stood in the name of Chandrakant Rao and cash compensation was paid in respect of it.
It was urged by counsel for the appellants that, (1) Civil Appeals Nos. 982 and 983 of 1964 decided on 18th July, 1967.
845 even if the Jagir was impartible and governed by the rule of primogeniture, the right, which earlier Vested in the members of the family when it was joint family property, would be exercisable when the Jagir was converted into cash and lost its status of impartible estate.
It was, therefore, claimed that, after the Jagirs had been converted into cash under the Rajasthan Land Reforms and Resumption of Jagirs Act No. VI of 1952, the appellants should have been granted a share in the compensation received by Chandrakant Rao on the basis that this property was earlier joint Hindu family property.
In the altemative, it was also urged that, even if this claim of the plaintiffs/appellants is not accepted, they would at least be entitled to claim a part of the compensation in lieu of their right of maintenance.
These two aspects do not seem to have been considered by the trial Court and even the High Court in one sentence disposed of this matter by saying that, since the appellants were only entitled to maintenance, they could not claim any share in the compensation money paid under the Rajasthan Act VI of 1952.
In dealing with this aspect, we are handicapped by the circumstance that the suit was instituted before this Act VI of 1952 was.
passed, so that there was no specific pleading in this behalf by the plaintiffs appellants.
The trial Court, therefore, ignored this aspect altogether, and even the High Court did not take into account the effect of Act VI of 1952 in the, two aspects which have been mentioned by us above.
Since, however, this is an appeal against a preliminary decree in the suits and the suit is still to continue in the trial Court, we think it appropriate to direct that these questions should be properly raised in the trial Court by amendment of the pleadings in the plaint, if necessary, and should be considered and decided by that Court.
It will be for that court to give a fresh decision whether, the appellants are entitled to claim a share in the compensation money received in lieu of these eight villages under Rajasthan Act VI of 1952.
The result is that this appeal is dismissed, subject to the modification that the case will go back to the trial Court for deciding the question whether the plaintiffs/appellants can claim a share in the compensation money or not, as indicated above.
Costs of this appeal shall abide the decision on this claim of the plaintiffs appellants to a share in the compensation money.
R.K.P.s.
Appeal dismissed.
[/INST]L had two sons G and M. L. and his elder son G were granted a Jagir by the then Ruler of Kotah jointly in their names, in lieu of a debt which the Ruler owed to them.
This property was treated as property of the joint family of L.
The name of M, the second son born after the grant, was also mutated against the Jagir villages.
The names of the descendants of G and M were from time to time similarly mutated against the Jagir and this Jagir as well as other property of the joint family was managed for some time by the eldest member belonging to either branch of the family.
The respondent C was a descendant of G and claimed in 1937 before the Revenue Commissioner that as the eldest son in the eldest branch he alone had the right over the Jagir according to the custom and usage in Rajputana and, consequently, mutation in the records should be in his name alone.
On a report by the Revenue Commissioner, the Ruler passed an order on 22nd January, 1938, directing that the Jagir, like all other Jagirs in the State should be given the status of an impartible estate and should be liable to render 'Chakri ' and 'Subchintki ' to the Ruler.
It was further ordered that the Jagir would be governed by the rule of primogeniture, so that C alone would be held to be jagirdar.
The appellants, who were the descendants of M, sought partition of all the family properties including the villages in the Jagir.
Although the Trial Court dismissed the suit, on appeal, the High Court granted a decree in respect of other properties but upheld the dismissal of the suit in so far as the appellants had claimed a share in the Jagir.
The appellants claimed that the jagir having been joint Hindu property, their rights as successors in interest of M could not be defeated by the order of Ruler dated 22nd January, 1938, and consequently, the appellants were entitled to their proper share in the Jagir.
It was contended that all orders passed by an independent and sovereign Ruler do not have the force of law.
It is only those orders which purport to lay down a law for the State which cannot be challenged and which would remain in force even after the merger of the Kotah State in India and, after the enforcement of the Constitution, under article 372 of the Constitution.
It was submitted that, when passing the Order dated 22nd January, 1938, the Ruler was only exercising executive powers of directing mutation of names and was not exercising any legislative powers.
HELD: Dismissing the appeal.
(i) The High Court was right in holding that the villages in the Jagir, at the time when the suit for partition was ' instituted, were impartible 838 property governed by the law of primogeniture and C alone could be treated as the owner of these villages.
(ii)The very nature of the Order, which changed the law applicable to the Jagir, indicated that it was a legislative act and not a mere executive order.
The Ruler did not purport to lay down that the Jagir was already governed by the 'rule of primogeniture; what he did was to apply the rule of primogeniture to this Jagir for future.
Such an order could only be made in exercise of his prerogative of laying down the law for the State.
The mere fact that it was laid down for one single Jagir and was not a general law applicable to others in the State was immaterial, because it does not appear that there were any other similar Jagirs which also required alteration of the law applicable to them.
L843 B D] (iii)Although no special procedure of law making was adopted by the Ruler when making this Order, that circumstance could not change the nature of the Order specially when there was nothing to indicate that there was any recognised procedure of law making in the Kotah State at that ,time.
[844 F G] Rajkumar Narsingh Pratap Singh Deo vs State of Orissa and Another ; ; referred to.
State of Gujarat, vs Vora Fiddali Badruddin Mithibarwala ; and Major Ranjit Singh Rao Phalke vs Smt.
Raja Bai Sahiba (dead) by her legal representatives and Vice Versa Civil Appeal Nos.
982 :and 983 of 1964 decided on 18th July, 1967 ; distinguished.
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<s>[INST] Summarize the judgementivil Appeal No. 4460 of 1986.
From the Judgment and Order dated 16.10.1985 of the Allahabad High Court in Civil Misc.
Writ Petition No. 5440 of 1983.
S.N. Kacker and J.M. Khanna for the Appellant: Anil Dev Singh and Mrs.
Shobha Dikshit for the Respondents.
The appellant is a physically handicapped person.
He has an orthopaedic problem.
He suffers from a permanent impediment of the left leg, the result Of an old compound fracture.
His impediment did not prevent him from good academic performance.
He went further.
He appeared at the combined State Services Examina tion held in February, 1982 by the Uttar Pradesh Public Service Commission.
According to the advertisement issued by Commission, one post in the Provincial Civil Service (Execu tive Branch) was reserved for handicapped persons.
However, the appellant was offered the post of Manager, Marketing and Economic Survey instead of a post in the Provincial Civil Service (Executive Branch).
He was not offered a post in the Provincial Civil Service (Executive Branch) on the ground that the reservation of 2% in the Uttar Pradesh Civil Serv ices for physically handicapped persons had been revoked by the State Government by their letter dated 1.3.
1979 in regard to the Provincial Civil Service (Executive Branch).
Thereupon the appellant filed a Writ Petition under Article 226 of the Constitution in the Allahabad High Court.
The Writ Petition was dismissed by the High Court on the ground that there was no reservation of posts for physically handi capped persons in the Provincial Civil Service (Executive Branch).
The appellant has come before us under Article 136 of the Constitution.
As far back as 1972, the Uttar Pradesh Government by G.O. No. 43/90/66 Apptt. 4 dated July 18, 1972 announced "for the physically handicapped persons, the reservation in all the services under the Government shall be 2%.
" All the Government Departments were directed to follow the policy for reservation in services accordingly.
Latter, by G.O. No. 7/4/1971 Personnel 2 dated May 20, 1978 the Government of Uttar Pradesh while affirming the "reservation of 2% posts for the appointment of disabled persons in all the services under the Government," defined who a physically handicapped person was and added the following instruction: "That in this context, I have to make it clear that the physical disability should not be of the nature which may cause interference in discharge of duties and obligations attached to the concerned service.
Accordingly if the serv ice is as such that it require continuous use of eye, then in such case reservation cannot be given to the blind per sons.
In the same manner if some services specifically involves the hearing faculty then no reservation can be given to the deaf persons in such services and in a service where the use of a particular organ of the body 577 is to be used then the person disabled of that particular organ cannot be given reservation in that service.
On the basis of the principle every department will issue necessary orders regarding reservation for the post under their subor dination.
" It appears that there was some discussion within the department pursuant to a letter from the Public Service Commission and their was a proposal not to reserve any post for disabled persons in the Provincial Civil Service.
This proposal, however, did not result in the issuance of any G.O. by the Government.
But the Public Service Commission was informed by the Government by their letter dated 1.3.
1979 that none of the categories of disabled persons was suitable for appointment to the U.P. Civil Service (Execu tive Branch) and no reservation for disabled persons might be made in the Provincial Civil (Executive Branch) Service.
A perusal of the letter dated 1.3.
1979 indicates that it was confined to "recruitment on the basis of Combined State Services Examination, 1978".
It was not intended to be an amendment of G.O. No. 43/90/66 dated July 18, 1972 or G.O. No. 7/4/1971 dated May 20, 1978.
It was not intended to depart from general rule of reservation of 2% posts in favour of disabled persons in the case of the Provincial Civil Service (Executive Branch).
Again in 1981 the Chief Secretary, Government of Uttar Pradesh addressed all the Secretaries to the Government, Heads of Departments and Commissioners in Uttar Pradesh pointing out that though a provision for reservation of 2% posts was made for physical ly handicapped persons by G.O. No. 43/90/ 66 dated July 18, 1972 in the services under the State Government, appoint ments had not been made of handicapped persons in accordance with the reservation.
The necessity of making appointments of physically handicapped persons to the reserved posts was impressed upon all the Secretaries, Heads of Departments and Commissioners.
and it was particularly brought to their attention that 1981 had been declared as 'the International Year for the Physically Handicapped Persons '.
It was also directed that vacancies should be carried forward and ef forts should be made to ensure that the maximum number of physically handicapped persons were appointed.
In the face of this communication from the Chief Secretary, we think that it is now futile for the Government to contend that the appellant cannot be appointed to the Provincial Civil Serv ice (Executive Branch).
Having announced their determina tion, very rightly too in our opinion, to rehabilitate physically handicapped persons, by reserving posts for them in all the services of the Government, the Government cannot now create needless hurdles.
The State Civil Service (Execu tive Branch) is a large enough service which can easily accommodate physically handicapped 578 persons in suitable posts.
A direction will, therefore, be issued to the Government of Uttar Pradesh to appoint the appellant to the Uttar Pradesh Civil Service (Executive Branch) with effect from the date on which he should have been appointed in the ordinary course.
He will be entitled to all the other service benefits.
He is also entitled to costs.
The appeal is allowed accordingly.
S.R. Appeal allowed.
[/INST]The respondent was appointed as a Workshop Mechanic.
He was promoted to the post of Workshop InstrUctor on 7.8.1959 in the pay scale of Rs.100 120.
The pay scales were revised w.e.f.
1.1.1961.
Diploma holders were given the pay scale of Rs. 150 320, and Certificate holders Rs. 150 250 in the cadre of Workshop Instructor.
The respondent, a Certificate holder, was given the pay scale of Rs. 150 250.
The pay scales were again revised in 1964 and Workshop Instructors with second class Diploma or equivalent qualifications with 10 years experience were given the pay scale of Rs.260 500, but the respondent did not get this scale in spite of re peated representations made to the State Government.
The respondent filed a Writ Petition alleging discrimi nation.
The High Court allowed the petition holding: (1) that for recruitment to the post of Workshop Instructor no distinction is made between the holders of a Certificate and holders of a Diploma, (2) that at the time when the respond ent was recruited there was no difference in the pay scales prescribed for holders of Diploma and holders of Certifi cate, and the basis for recruitment was that Diploma holder and Certificate holder both were entitled to be appointed to the same post in the same pay scale, and (3) that by subse quent revision of pay scale different pay scales could not be enforced for the same post merely on the basis of a holder of a Certificate or a Diploma because as an Instruc tor the person will perform the same duties and will do the same work in spite of the fact that he may be a Certificate holder or a Diploma holder, and directed that the respondent be placed in the pay scale not lower than that of the Diplo ma holders.
580 In appeal to this Court on behalf of the Appellant State it was contended: (1) that the different pay scales on the basis of difference in educational qualifications could he justified and will mount to reasonable classification and will not he hit by Article 14 of the Constitution, (2) that a Diploma is a higher qualification than a Certificate and (3) that the view taken by the High Court is not correct.
Dismissing the Appeal, HELD: 1.
Neither there is any curriculum on record nor any other material to draw the inference that Diploma is a higher qualification than a Certificate.
At the time when respondent was recruited there was only one cadre and a Diploma holder or a Certificate holder both were entitled to he recruited as an Instructor on the same pay scale.
This circumstance indicates that the two were considered to he alike.
[582E F] 2.
There is no material on record to indicate that when the pay scales were revised and subsequently they were further revised it was done on the basis of some material indicating that the Diploma became a better qualification than the Certificate holder.
It was because of this the High Court did not go into the general question as to whether on the basis of educational qualifications different pay scales can or could not be prescribed and in the absence of any material it will not he possible for this Court to go into that question.
[582F H] 3.
On the facts of the present case it could.
not he said that the High Court committed any error.
[583A B]
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<s>[INST] Summarize the judgementivil Appeal Nos.
372 382 of 1969.
Appeals by Special Leave from the Judgment and order dated 10 10 1968 of the Rajasthan High Court in C.S.A. Nos. 18 and 29, 27, 28.
30 35 of 1960 and 54 and 58 of 1961.
section N. Jain and section K. Jain for the Appellants.
B. P. Maheshwari and Suresh Sethi for the Respondent.
The Judgment af the Court was delivered by SHINGHAL, J., These appeals by special leave arise out of a common judgment of the Rajasthan High Court dated October 10, 1968, by which the suits which were filed by the present appellants were dismissed in pursuance of the earlier judgment of the same court dated November 9, 1964, on the ground that they were governed by section 179(2) of the Rajasthan Town Municipalities Act, 1951, hereinafter referred to as the Act, and were barred by limitation.
The facts giving rise to the appeals were different in details, but they were examined in the High Court with reference to the common questions of law which arose in all of them and formed the basis of that Court 's, decision against the plaintiffs.
We have heard these as companion appeals, and will decide them by a common judgment.
It is not necessary to give the detailed facts of all the cases as it will be enough to refer to the suit which was filed by M/s Surajmal Banshidhar and the developments connected with it, in order to appreciate the controversy.
The plaintiff firm referred to above carried on business in "pakka arat" and exported goods of various kinds from Ganganagar.
The Municipal Board of Ganganagar realist "export duty", by way of ter 171 minal tax, on the exported goods.
The plaintiff therefore raised a suit on October 19, 1957, challenging the Board 's right to "impose or to reales" any export duty during the period June 5, 1954 to March 10 1957, amounting to Rs. 10,729/ .
It however confined the suit to the recovery of Rs. 10,000/ alongwith interest and gave up the balance.
The Board denied the claim in the suit and pleaded, inter alia, that the levy of the terminal tax was in accordance with the law and the suit was barred by limitation.
The trial court rejected the defence and decreed the suit, and its decree was upheld by the District Judge on appeal.
Similar decrees were passed in the other suits, for various sums of money.
The Board took the matter to the High Court in second appeals.
The appeals were heard by a Single Judge who, while deciding that the suits were governed by section 179(2) of the Act, referred the question on the legality of the levy to a larger Bench.
A Full Bench of the High Court held that the levy of the terminal tax was illegal, and sent the cases back to the Single Judge who allowed the appeals only for those amounts which were found to be within limitation under section 179(2) of the Act and dismissed the other suits.
The plaintiffs obtained special leave and have come up to this Court in these circumstances.
The question which arises for consideration is whether the suits fall within the purview of section 179(2) of the Act.
The first two subsection of section 179 which bear on the controversy read as follows, "179.
Limitation of suits, etc.
(1) No suit shall be instituted against any municipal board, president, member, officer, servant or any person acting under the direction of such municipal board, chairman, member, officer or servant for anything done or purporting to be done under this Act, until the expiration of two months next after notice in writing, stating the cause of action, the name and place of abode of the intending plaintiff and the relief which he claims, has been, in the case of a municipal board, delivered or left at its office, and, in case of a chairman, member, officer, or servant, or person as aforesaid, delivered to him or left at his office or usual place of abode; and the plaint shall contain a statement that such notice has been so delivered or left.
(2) Every such suit shall, unless it is a suit for the recovery of immovable property or for a declaration of title thereto, be dismissed if it is not instituted within six months after the accrual of the alleged cause of action.
" The question therefore is whether the illegal levy of terminal tax (assuming that it was illegal as held by the High Court) could be said to 172 be a thing "done or purporting to be done" under the Act.
A similar question arose for the consideration of this Court ill Poona City Municipal Corporation vs Dattatraya Nagesh Deodhar(l) with reference to the provision in section 127 (4) of the Bombay Provincial Municipal Corporation Act, 1949, and it was held that if the levy of a tax was prohibited by the Act concerned and was not in pursuance of it, it 'could not be said to be 'purported to be done in pursuance of execution or in tended execution of the Act '.
" It was observed that what was plainly prohibited by the Act could not be "claimed to be purported to be done in pursuance or intended execution of the Act.
" It was therefore held that the suit was outside the purview of the section 127(4) and was not barred by limitation.
We are in respectful agreement with that view, and we have no hesitation in holding, in the circumstances of the pre sent cases, which are governed by a provision similar to section 127(4) or the Poona City Municipal Corporation Act, that the suits did not fall within the purview of section 179 of the Act and were not barred by limitation.
It may be mentioned that it has not been argued before us, and is nobody 's case, that the suits would be barred by limitation even if they did not fall within the purview of section 179(2) of the Act.
The decision of the High Court to the contrary is not correct and will have to be set aside.
It has however been argued on behalf of the respondents that the High Court erred in taking the view that the levy of the terminal tax was illegal, and our attention has been invited to the relevant provisions of the law including the Bikaner State Municipal Act, 1923, article 277 of the Constitution and section 2 of the Act.
It is not in controversy before us that the Bikaner State Municipal Act, 1923, authorised the levy of terminal tax and such a tax was levied by the Ganganagar Municipal Board under the authority of that law upto January 26, 1950, when the Constitution came into force.
On and from that date, the power to levy export duty vested in the Parliament but article 277 saved that and some other taxes as follows, "277.
Any taxes, duties, cesses or fees which, immediately before the commencement of this Constitution, were being law fully levied by the Government of any State or by any municipality or other local authority or body for the purposes of the State, municipality, district or other local area may, not withstanding that those taxes, duties, cesses or fees are mentioned in the Union list, continue to be levied and to be applied to the same purposes until provision to the contrary is made by Parliament by law. ' (1) ; 173 it was therefore permissible for the Municipal Board to continue to levy A the terminal tax until provision to the contrary was made by Parliament by law.
But it so happened that the Bikaner Municipal Act, 1923 was repealed and the Act was brought into force with effect from December 22, 1951.
Section 2(b) of the Act, which dealt with the repeal of the Bikaner Act and the saving of some of its provisions, expressly provided that on the coming into force of the Act, the laws and enactments specified in the First Schedule of the Act shall be repealed in so far as they relate to the Town Municipalities covered by the Act.
So as the Bikaner State Municipal Act, 1923, was included in the first Schedule, it was repealed by the aforesaid section 2.
That section however contained a proviso, clause (b) whereof was to the following effect, "(b) all town municipalities constituted under the said laws or enactments, and members appointed or elected, committees established, limits defined, appointments, rules, orders and bye laws made, notifications and notices issued, taxes imposed, contracts entered into, and suits and other proceedings instituted, under the said laws or enactments or under and laws or enactments thereby repealed shall, so far as may be and so far as they relate to town municipalities be deemed, unless the Government directs otherwise, to have been respectively constituted, appointed, elected, establish ed" defined, made, issued, imposed, entered into and instituted under this Act.
" The repeal did not therefore affect the validity of those taxes which had already been imposed and which could be "deemed" to have been imposed under the Act, unless there was a direction to the contrary by the State Government.
It is quite clear from the provisions af the Act, and is in fact not disputed before us, that the terminal tax in question could not be imposed under any of the provisions of the Act.
Its, levy could not therefore be saved by clause (b) of the proviso to section (2) of the Act.
On the other hand, it could be said with justification that the State Legislature had decided to discontinue the levy by excluding it from the purview of the saving clause.
The further levy of the tax therefore became illegal and it was not permissible to continue it any longer under article 277 which merely gave the authority concerned the option to continue the levy if it so desired.
So as the levy of the tax after December 22, 1951, was illegal, there is nothing wrong with the view taken by the High Court that the amounts 174 paid by the plaintiffs by way of terminal tax were recoverable by the suits which have given rise to these appeals, and there is no force in the argument to the contrary.
The appeals are allowed with costs, the decrees of the High Court are set aside and those of the lower appellate court restored.
P.B.R. Appeals allowed.
[/INST]The respondent Board realised terminal tax on goods experted by the appellants.
In suits filed by the appellants for refund of the amounts which they claimed were collected without authority of law, the respondent Board pleaded that the levy was in accordance with law and that the suits where barred by limitation.
The trial court decreed the suits and on appeal the District Judge affirmed the trial Court 's decrees.
In second appeal the High Court held that the levy was illegal.
The High Court, however, allowed the appeals in respect of those amounts which were found to be within limitation under section 179(2) of the Act and dismissed the others.
On the question whether the levy could be said to be a thing done or purported to be done under the Act.
Allowing the appeal, ^ HELD: The suits did not fall within the purview of section 179 of the Act and were not barred by limitation.
[172 D] 1.
(a) It is well established that if levy of a tax is prohibited by an Act and is not in pursuance of it, it could not be said to be purported to be done in pursuance of the execution or intended execution of the Act.
[172 B] Poona City Municipal Corporation vs Dattatraya Nagesh Deodhar, ; followed.
(b) The terminal tax could not be imposed under any of The provisions of the Act.
The High Court was right in holding that the amounts ` paid by the appellants by way of terminal tax were recoverable by the suits.
[173 F G 174 Al 2.
The Bikaner State Municipal Act, 1923 (which was the predecessor of the present Act) authorised the levy of terminal tax and the Board accordingly levied the tax until January 26, 1950.
With the coming into force 12 SCI/78 170 of the Constitution, by virtue of article 277 it was permissible for the Board to continue to levy the terminal tax until provision to the contrary was made by Parliament by law.
But with effect from December 22, 1951 the Bikaner Act was repealed and the present Act was brought into force.
the repeal, however, did not affect the validity of those taxes which had already been imposed and which could be "deemed` ' to have been imposed under the Act.
But the provisions of the Act the clear that the terminal tax in question could not be imposed thereunder.
The levy could not, therefore, be saved by cl.
(b) of the proviso to section 2.
on the other hand it is clear that the State Legislature had decided to discontinue the levy by excluding it from the purview of the saving clauses.
The further levy of the tax, therefore, became illegal and it was not permissible to continue it any longer under article 277 which merely gave the authority concerned the option to continue to levy if it so desired.
[173A, F G]
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<s>[INST] Summarize the judgementCivil Appeal Nos. 1286, 1287 and 2511 of 1969 From the Judgment and Order dated 20 8 1968 and 3 4 1969 of the Punjab and Haryana High Court in Civil Writ Nos.800/66, 2625/65 and LPA No 141 of 1969.
Harbans Singh and R. N. Sachthey for the Appellant in all the appeals.
E. C. Agarwala and M. L. Srivastava for the Respondent in C.A. 1286/69.
406 H.K. Puri for the Respondent in C. A. 1287/69 N. N. Keswani for the Respondent in C.A. 2511/69 The Judgment of the Court was delivered by SHINGHAL, J.
These three appeals by certificates granted by the High Court of Punjab and Haryana are directed against two judgments of that court dated August 20? 1966, and another judgment of that court dated November 22, 1968.
The High Court first decided the writ petition of constable Dwarka Das, which is the subject matter of appeal No.1286 of 1969, and disposed of the other two writ petitions, which are the subject matter of appeals Nos. 1287 and 2511 of 1969, on the basis of that judgment.
These three appeals therefore Raise common questions of law and have been heard together at the request of learned counsel for the parties and will be disposed of by a common judgment The writ petitioners in all the three cases were recruited as constables in the police force of the Punjab State.
It is not in dispute before us that (i) they were police officers of the State, (ii) they were enrolled as police officers, (iii) they had put in more than three years service after their recruitment and enrolment as police officers, and (iv) they were discharged under the provisions of rule 12.21 of the Punjab Police Rules, 1934, (hereinafter referred to as the Rules and not by way of punishment under the provisions of Chapter XVI of the Rules.
No attempt has been made to distinguish one case from the others on facts.
On the other hand learned counsel for the parties are in agreement that the facts of the three cases are quite similar and they raise the common question of law whether the orders of discharge were valid.
The respondents challenged the validity of those orders by writ petitions which were allowed by the impugned judgments of the High Court and the three appeals are before us for that reason.
It has been argued by Mr Harbans Singh, on behalf of the appellant State, that even though the respondents had put in more than three years service as police officers of the State Government, their appointments were temporary and could be terminated for that reason even if the termination could not strictly be said to fall within the purview of rule 12.21 of the Rules.
that in fact is the only question II for consideration in these appeals and can easily be answered with reference to the provisions of the , hereinafter refer red to as the Act, and the Rules.
407 Section 1 of the Act defines "Police" to include all persons who A shall be enrolled under it.
Section 2 provides that the entire police establishment under the State Government shall be deemed to be one police force, and shall be formally enrolled.
It further provides that the conditions of service of the members of the subordinate ranks of the police force shall be such as may be determined by the State Government.
Section 8 is also relevant, for it expressly provides that every police officer appointed to the police force of the State (other than an officer mentioned in section 4), shall receive on his appointment a certificate in the form annexed to the Act, by virtue of which he shall be vested with the powers, functions and privileges of a police officer.
The certificate states that the police officer concerned has been appointed a member of the police force under the Act, and vested with the powers.
functions and privileges of a police officer.
The certificate is not therefore the order of appointment or enrolment, but is subsequent to the appointment and the enrolment, even though it is a part of the process of appointment and enrolment, in as much as it certifies that the police officer has been vested with the necessary powers, functions and privileges of a police officer.
The certificate does not however have any bearing on the question whether its holder is a permanent or a temporary police officer, for that is a matter which has to be governed by the other conditions of his service.
It is not in dispute before us that such certificates were issued to all the three respondents and that they functioned as police officers for more than three years.
Chapter XII of the Rules deals with the appointment and enrolment of police officers.
Clause (3) of rule 12.2.
provides, inter alia, as follows, "(3) All appointments of enrolled police officers are on probation according to the rules in this chapter applicable to each rank.
" It is therefore obvious that as the respondents were enrolled police officers, they were on probation.
The period of probation has not been specified in the Rules, but rule 12.21 provides for the discharge of an inefficient police officer as follows "12.21.
A constable who is found unlikely to prove an efficient police officer may be discharged by the Superintendent at any time within three years of enrolment.
There shall be no appeal against an order of discharge under this rule.
" 408 So if rules 12.2(3) and 12.21 are read together, it will appear that the maximum period of probation in the case of 3 police officer of the rank of constable is three, years, for the Superintendent OF Police concerned has the power to discharge him within that period.
It follows that the power of discharge cannot be exercised under rule 12.21 after the expiry of the period of three years.
If therefore it is proposed to deal with an inefficient police officer after the expiry of that period, it is necessary to do so in accordance with the rules of Chapter XVI of the Rules which makes provision for the imposition of various punishments including dismissal from the police force.
It is not permissible to ignore those rules and make a simple order of discharge under rule 12.21 after the expiry of the period of three years for that will attract article 311 of the Constitution.
The Superintendent of Police concerned could not have ignored that requirement of the law and terminated the services of the three respondents after the expiry of the period of three years from their enrolment in the police force of the State.
The High Court therefore rightly set aside the orders of termination of the services of the three respondents and to that extent the impugned judgments are correct.
But we are constrained to say that it was not justified in holding that "a constable who has obtained a certificate under rule 12.22 cannot be dealt with under rule 12.21", and that "if he is to be removed from service, procedure prescribed in Chapter XVI has to be followed.
" The reason is that, as has been shown, the certificate prescribed under rule 12.22 is meant to serve the purpose of section 8 of the Act by vesting a police officer with the powers, functions and privileges of a police officer, and has to be issued on his appointment as such.
The certificate is thus a letter of authority, and enables the police officer concerned to enter upon his duties as a police officer.
It has to be granted almost from the inception, when a person is appointed and enrolled as police officer, and it is not correct to say that the mere issue of the certificate puts its holder beyond the reach of rule 12.21 even if it is found that he is unlikely to prove an efficient police officer and has not completed the period of three years after his enrolment.
Except for this slight clarification, we find no merit in these appeals and they are dismissed with costs.
M.R. Appeals dismissed.
[/INST]The respondent writ petitioners were constables of the Punjab State Government, and had put in more than 3 years service, when they were discharged for inefficiency, under Rule 12.21 of the Punjab Police Rules, 1934.
the High Court allowed their writ petitions challenging the validity of their discharge orders.
It was contended by the State that although the respondents had put in more than three years service, their appointments were temporary and could be terminated for that reason, even if the termination could not strictly b said to fall within the purview of rule 12.21.
Dismissing the appeal.
the Court ^ HELD: If rules 12.2(3) and 12.21 are read together, it will appear that the maximum period of probation in the case of a police officer of the rank of constable is three years and the power of discharge cannot be exercised under rule 12.21 after expiry of that period.
If it is proposed to deal with an inefficient police officer after the expiry of three years, it is necessary to do so in accordance with the rules of Chapter XVI of the Rules which makes provision for the imposition of various punishments including dismissal from the police force.
[408A B] The High Court was not justified in holding that a constable who had obtained a certificate under rule 12.32 cannot be dealt with under rule 12.21 "I`hat certificate is meant to serve the purpose of section 8 of the Police Act.
1861, by vesting a public officer with the powers, functions and privileges of a police officer and has to be issued on his appointment as such.
The certificate is a letter of authority and enables the police officer to enter upon his duties as a police officer.
It has to be granted almost From the inception and it is not correct to say what the mere issue of the certificate puts its holder beyond the reach of rule 12.21 even if it is found that he is unlikely to prove an efficient police officer and has not completed the period of three years of his enrolment.
[408D G]
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<s>[INST] Summarize the judgementition (Civil) No. 107 of 1988.
(Under Article 32 of the Constitution of India) Dr. Y.S. Chitale, Dr. N.M. Ghatate and S.V. Deshpande for the Petitioner.
Kuldeep Singh, Additional Solicitor General, Soli J. Sorabjee, Parimal K. Shroff, P.H. Parekh, Sanjay Bhartari and Miss A. Subhashini for the Respondents.
The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J.
This writ petition was disposed of by our Order dated 1st of February, 1988, we indicated therein that we will give our reasons shortly.
This we do by this judgment.
The Writ Petition No. 107 of 1988 is a petition under Article 32 of the Constitution.
The petitioner is a practising advocate of the Bombay High Court.
He approached this Court by means of the petition under Article 32 of the Constitution for issue of a writ in the nature of Prohibition or any other appropriate order restraining the respondents, namely, the Union of India, the Director General of Doordarshan, New Delhi, Blaze Advertising Pvt. Ltd. and Govind Nehalani, being the producer from telecasting or screening the serial titled "Tamas" and to enforce petitioner 's fundamental rights under Articles 21 and 25 of the Constitution and declaring the screening or televising of "Tamas" as violative of section 5B of the .
One Javed Ahmed Siddique filed a writ petition in the High Court of Bombay being Writ Petition No. 201 of 1988.
The same came up before a learned single Judge of the High Court of Bombay who while admitting the same on 21st of January, 1988 had granted stay of further telecasting of the said serial on T.V. till further orders.
The respondents herein challenged the said order before the Division Bench of the Bombay High Court.
The two learned Judges, namely, 1015 Justice Lentin and Justice Mrs. Sujata Manohar saw the complete serial on 22nd of January, 1988 and vacated the stay by an order dated 23rd of January, 1988.
The judgment is impugned in the special leave petition which is taken on board and is also disposed of by this common judgment.
It may also be mentioned that four episodes of the said serial have already been telecast.
The petitioner states that the exhibition of the said serial is against public order and is likely to incite the people to indulge in the commission of offences and it is therefore, violative of section 5B (1) of the (hereinafter called 'the Act ') and destructive of principle embodied under Article 25 of the Constitution.
It is also contended that under section 153A of the Indian Penal Code, this presentation is likely to promote or attempts to promote, on grounds of religion, caste or community, disharmony or feelings of enmity, hatred or ill will among different religious, racial, language or regional groups or castes, or communities and is further prejudicial to the maintenance of harmony between different religious, racial, language or regional groups and incites people to participate or trains them to the use or criminal force or violence or participate in such criminal acts.
So, therefore, it is an offence under section 153A of the Indian Penal Code.
Our attention was drawn to section 153B of the Indian Penal Code and it was submitted that the serial is prejudicial to the national integration.
Serial "Tamas" depicts the Hindu Muslim tension and sikhmuslim tension before the partition of India.
It further shows how the killings and looting took place between these communities before the pre independence at Lahore.
"Tamas" is based on a book written by Sree Bhisham Sahni.
It depicts the period prior to partition and how communal violence was generated by fundamentalists and extremists in both communities and how innocent persons were duped into serving the ulterior purpose of fundamentalists and communities of both sides and how an innocent boy is seduced to violence resulting in his harming both communities.
It further shows how extremist elements in both communities infused tension and hatred for their own ends.
That is how the two learned Judges of the High Court of Bombay mentioned hereinbefore have viewed it.
They have also seen that realisation ultimately dawns as to the futility of it all and finally how inherent goodness in human mind triumphs and both communities learn to live in amity.
They saw that the people learnt this lesson in a hard way.
This is the opinion expressed by two experienced Judges of the High Court after viewing the serial.
1016 The location of the story is Lahore.
The period is just before independence.
The very introductory part of the serial which was tele cast on 9th of January, 1988 displayed that the idea and message behind the serial is to keep people away from getting involved in such violence arising out of communal animosity.
By telecasting it on Doordarshan, Dr. Chitale appearing for the petitioner said, now seen by vast majority of people, the said serial is exposed to person of all ages, who will fail to grasp the message if any behind the serial.
The very first serial, according to the petitioner, depicts one person who is reported to be a member of Scheduled Caste from the Hindu community being asked by one Thekedar to get a pig killed and bring its dead body in order to serve the meal for an English man.
The dead body is shown to be axed and collected by one person named 'Kalu ' who is represented to be a Christian.
Kalu gets a dead pig from the said member of the Scheduled Caste Hindu who killed it.
That dead pig is shown to be found at the door steps of a mosque.
This, according to the petitioner, was provocative and was bound to result in instigation in Hindus against Muslims and consequently to rouse Muslim anger resulting in some reaction on the part of the Muslims, which in its own turn is bound to have reaction by way of some acts of violence on the part of Hindus.
According to the petitioner, the total result would be that there is likelihood that members of both the communities will rise in passion and anger against each other and take to acts which would lead to communal violence and riots.
The petitioner further states that in the first episode shown on 9th January, 1988 one elderly Hindu who is depicted as a 'Guru ', a preceptor, and is shown as giving inspiration/advice and instigation to a young boy to practise violence, to begin with, by asking the boy to cut the throat of the hen, and when the boy gets nervous and shows his unwillingness and unpreparedness, the Guru warns him that unless he showed his courage to kill a hen to begin with, how can he become bold and courageous to kill his enemy.
The petitioner further alleges that in the background of this incident and in context of what precedes and succeeds this incident between the Guru and the boy, it is clear that Guru has instigated the boy to get into the trend of thought and feeling to be ready to commit violence against his enemies, in oreder to kill them, and on viewing the first part of the said serial as a whole this instigation is to Hindu young boys to take to violence against Muslims.
This is nothing but promoting feelings of enmity and hatred between Hindus and Muslims.
The petitioner further states that in the first serial the dialogue 1017 between the Hindu leaders and Muslim leaders is so arranged that Indian National Congress is suggested to be a Hindu Organisation.
In the present background, therefore, the petitioner claims that the exhibition of said serial is likely to create communal disharmony.
"Tamas" had been given 'U ' certificate by the Central Board of Film Censor.
In this connection we may refer to the relevant provisions of the , which is an Act to make provision for the certification of cinematograph films for exhibition and for regulating exhibitions by means of cinematograph.
Section 3 of the Act provides for Board of Film Censors.
Section 4 of the Act provides for examination of films.
A film is examined in the first instance by an Examining Committee under section 4A and, in certain circumstances, it is further examined by a Revising Committee under section 5.
Members of both the Committees are expected to set out not only their recommendations but also the reasons therefore in cases where there is difference of opinion amongst the members of the Committee.
Section 5A of the Act provides that if after examining a film or having it examined in the prescribed manner, the Board considers that the film is suitable for unrestricted public exhibition, such a certificate is given which is called 'U ' certificate.
Section 5B of the Act provides for guidance in certifying films.
The said section 5B provides as follows: "5 B. Principles for guidance in certifying films (1) A film shall not be entitled for public exhibition if, in the opinion of the authority competent to grant the certificate, the film or any part of it is against the interests of (the sovereignty and integrity of India) the security of the State, friendly relations with foreign States, public order, decency or morality, or involves defamation or contempt of Court or is likely to incite the commission of any offence.
(2) Subject to the provisions contained in subsection (1) the Central Government may issue such directions as it may think fit setting out the principles which shall guide the authority competent to grant certificates under this Act in sanctioning films for public exhibition.
" Section 5C of the provides for the constitution of Appellate Tribunals, consisting of persons who are familiar with the social, cultural or political institutions of India, have special knowledge of the various regions of India and also special knowledge of films and their impact on society, to hear appeals from the orders of 1018 the Censor Board.
Under section 5D, as it stands at present, the Tribunal can hear appeals by persons who, having applied for a certificate in respect of a film, are aggrieved by an order of the Board refusing to grant a certificate or granting a restricted certificate or directing the appellant to carry out certain excisions or modifications in the film.
In addition, there is also an overall revisional power in the Central Government to call for the record of any proceeding in relation to any film at any stage, where it is not made the subject matter of appeal to the Appellate Tribunal, to enquire into the matter and make such order in relation thereto as it thinks fit, including a direction that the exhibition of the film should be suspended for a period not exceeding two months.
Under the newly added sub section 5 of section 6, the Central Government has also been given revisional power in respect of a film certificated by the Appellate Tribunal on the ground that it is necessary to pass an order in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States or public order or decency or morality.
Learned Additional Solicitor General, Shri Kuldeep Singh, for the Central Government, strongly urged before us that the film should be allowed to be exhibited.
As a matter of fact in his enthusiasm, he submitted that there should be an order to the Government to exhibit the film again and again.
He urged that all the appropriate authorities have considered the film and Doordarshan authorities have also independently examined this question.
It has to be borne in mind that there is no allegation of any mala fide or bad motive on the part of the authorities concerned.
The only question, therefore, is whether the film has been misjudged or wrongly judged and allowed to be exhibited or serialised in T.V. on a wrong approach.
This film indubitably depicts violence.
That violence between the communities took place before the pre partition days is a fact and it is the truth.
Dr. Chitale, however, submits that truth in its naked form may not always and in all circumstances be desirable to be told or exhibited.
During the course of the arguments before us on the 1st of February, 1988 our attention was drawn to an item in the Hindustan Times of that day which contained an interview with the author Sree Bhisham Sahni.
Strictly speaking such evidence is not admissible but since it is a matter of public interest, we have looked into it.
The author has received the Sahitya Akademi award for this novel.
It was written in 1974.
The book is being taught in various universities.
There has been no adverse reaction to the novel during the past fourteen years.
The author further said "certain nuances which were, however, 1019 clear in the book are not so in the serial".
The author has drawn attention to the incident that the mischief of getting a pig slaughtered and having it placed outside a mosque, was done by a character referred to as "Chaudhuri" in the film.
In the novel his full name is mentioned as Murad Ali, which is obviously not a Hindu name, according to the author.
Vivian Bose, J. as he then was in the Nagpur High Court in the case of Bhagwati Charan Shukla vs Provincial Government, A.I.R. 1947 Nagpur 1 has indicated the yardstick by which this question has to be judged.
There at page 18 of the report the Court observed that the effect of the words must be judged from the standards of reasonable, strong minded, firm and courageous men, and not those of weak and vacillating minds, nor of those who scent danger in every hostile point of view.
This in our opinion, is the correct approach in judging the effect of exhibition of a film or of reading a book.
It is the standard of ordinary reasonable man or as they say in English law "the man on the top of a clapham omnibus".
This question came to be examined by this Court from a different angle in the case of K.A. Abbas vs The Union of India and another; , There K.A. Abbas the petitioner made a documentary film called "A Tale of Four Cities", which attempted to portray the contrast between the life of the rich and the poor in the four principal cities of the country.
The film included certain shots of the red light district in Bombay.
Although the petitioner applied to the Board of Film Censors for a "U" Certificate for unrestricted exhibition of the film, he was granted a certificate only for exhibition restricted to adults.
The petitioner then filed the writ petition in this Court.
At the hearing of the petition the Central Government indicated that it had decided to grant a 'U ' certificate to the petitioner 's film without the cuts previously ordered.
Hidayatullah C.J. has exhaustively dealt with the question and noted the statutory requirements.
In that film there was a scanning shot of a very short duration, much blurred by the movement of the photographer 's camera, in the words of Chief Justice, in which the red light district of Bombay was shown with the inmates of the brothels waiting at the doors or windows.
Some of them wore abbreviated skirts showing bare legs up to the knees and sometimes a short above them.
This was objected to.
The film was shown to the learned Judges in the presence of the lawyers.
The learned Chief Justice at page 468 of the report addressed himself to the question: "How far can these restrictions go and how are these to be imposed".
The Court examined the provisions of Sec 1020 tion 5B(2) of the Act.
After examining the relevant provisions and large number of authorities, the Chief Justice noted that the task of the censor was extremely delicate and its duties cannot be the subject of an exhaustive set of commands established by prior ratiocination.
Chief Justice at page 474 of the report observed as follows: "Sex and obscenity are not always synonymous and it is wrong to classify sex as essentially obscene or even indecent or immoral.
It should be our concern, however, to prevent the use of sex designed to play a commercial role by making its own appeal.
This draws in the censors scissors.
Thus audiences in India can be expected to view with equanimity the story of Oedipus son of Latius who committed patricide and incest with his mother.
When the seer Tiresias exposed him, his sister Jocasta committed suicide by hanging herself and Oedipus put out his own eyes.
No one after viewing these episodes would think that patricide or incest with one 's own mother is permissible or suicide in such circumstances or tearing out one 's own eyes is a natural consequence.
And yet if one goes by the letter of the directions the film cannot be shown.
Similarly, scenes depicting leprosy as a theme in a story or in a documentary are not necessarily outside the protection.
If that were so Varrier Elwyn 's Phulmat of the Hills or the same episode in Henryson 's Testament of Cresseid (from where Verrier Elwyn borrowed the idea) would never see the light of the day.
Again carnage and bloodshed may have historical value and the depiction of such scenes as the sack of Delhi by Nadirshah may be permissible, if handled delicately and as part of an artistic portrayal of the confrontation with Mohammad Shah Rangila.
If Nadir Shah made golgothas of skulls, must we leave them out of the story because people must be made to view a historical theme without true history? Rape in all its nakedness may be objectionable but Voltaire 's Candide would be meaningless without Cunegonde 's episode with the soldier and the story of Lucrece could never be depicted on the screen." (emphasis supplied) Chief Justice observed that our standards must be so framed that we are not reduced to a level where the protection of the least capable and the most depraved amongst us determines what the morally healthy cannot view or read.
The standards that we set for our censors must 1021 make a substantial allowance in favour of freedom thus leaving a vast area for creative art to interpret life and society with some of its foibles along with what is good.
We must not look upon such human relationship as banned in toto and for ever from human thought and must give scope for talent to put them before society.
In our scheme of things, the Chief Justice noted, ideas having redeeming social or artistic value must also have importance and protection for their growth.
Our attention was also drawn by Dr. Chitale to the decision of this Court in Ebrahim Sulaiman Sait vs M.C. Muhammad and another; , , where Gupta, J. speaking for the Court observed that truth was not an answer to a charge of corrupt practice under section 123(3A) of the said Act; what was relevant was whether the speech promoted or sought to promote feelings of enmity or hatred as mentioned in that provision.
But the likelihood must be judged from healthy and reasonable standards.
The question was again considered by this Court in Rajkapoor vs Laxman, ; This Court reiterated that the Penal Code is general and the is special.
The scheme of the is deliberately drawn up to meet the explosively expanding cinema menace if it were not strictly policed.
No doubt, the cinema is a great instrument for public good if geared to social ends and can be a public curse if directed to anti social objectives.
The decision reiterated that a balance has to be struck.
On the evidence available before this Court it appears that a balance has been struck.
Dr. Chitale emphasised that in an interview with the author, the author said that "Tamas" was not a historical novel.
It merely takes into account certain events from history and builds upon them.
He further said that life provided the raw material and a writer moulded it according to his imagination and perception of reality.
We have given full thought to the contentions urged on behalf of the petitioner and come to the conclusion that these contentions cannot be accepted for two reasons.
Firstly, as we have already pointed out, the itself contains several provisions to ensure the fulfilment of the conditions laid down in section 5B and to ensure that any film which is likely to offend the religious suspectibilities of the people are not screened for public exhibition.
In the present case the Film Censor Board has approved the exhibition of the film.
That apart we are informed that the Doordarshan authorities also 1022 scrutinise a film before it is exhibited on the television screen.
Though we do not have the details of the authority or body which scrutinised the film for purposes of exhibition on the television, the procedure does involve further examination of the film from standards of public acceptability before it is shown on the television.
It is true that the remedy of an approach to the Appellate Tribunal is available only to persons aggrieved by the refusal of the Board to grant a certificate or the cuts and modifications proposed by it.
It is for the consideration of the Central Government whether the scope of this section should be expanded to permit appeals to the Tribunals even by persons who are aggrieved by the grant of certificate of exhibition to a film on the ground that the principles laid down for the grant of certificates in section 5B have not been fulfilled.
But, even on the statute as it presently stands, the procedure for grant of certificate of exhibition to a film is quite elaborate and the unanimous approval by the examining Committee must be given full weight.
As pointed out by Krishna Iyer, J. in the Rajkapoor case (supra), a Court would be slow to interfere with the conclusion of a body specially constituted for this purpose.
Secondly, in this case we have the advantage of the views of two experienced Judges of one of the premier High Courts of this country.
The learned Judges found that the message of the film was good.
They have stated that the film shows how realisation ultimately dawns as to futlity of violence and hatred, and how the inherent goodness in human nature triumphs.
Dr. Chitale submitted that the Judges have viewed the film from their point of view but the average persons in the country are not as sober and experienced as Judges of the High Court.
But the Judges of the High Court of Bombay have viewed it, as they said, from the point of view of "how the average person for whom the film is intended will view it" and the learned Judges have come to the conclusion that the average person will learn from the mistakes of the past and realise the machinations of the fundamentalists and will not perhaps commit those mistakes again.
The learned Judges further observed that illiterates are not devoid of common sense, or unable to grasp the calumny of the fundamentalists and extremists when it is brought home to them in action on the screen.
This is how they have viewed it: those who forget history are condemned to repeat it.
It is out of the tragic experience of the past that we can fashion our present in a rational and reasonable manner and view out future with wisdom and care.
Awareness in proper light is a first step towards that realisation.
It is true that in certain circumstances truth has to be avoided.
Tamas takes us to a historical past unpleasant at times, but revealing and instructive.
In those years which Tamas depicts a human tragedy 1023 of great diminsion took place in this sub continent though 40 years ago it has left a lasting damage to the Indian psyche.
It has been said by Lord Morley in "On Compromise" that it makes all the difference in the world whether you put truth in the first place or in the second place.
It is true that a writer or a preacher should cling to truth and right, if the very heavens fall.
This is a universally accepted basis.
Yet in practice, all schools alike are forced to admit the necessity of a measure or accommodation in the very interests of truth itself.
Fanatic is a name of such ill repute, exactly because one who deserves to be so called injuries good causes by refusing timely and harmless concession; by irrigating projudices that a wiser way of urging his own opinion might have turned aside; by making no allowances, respecting no motives, and recognising none of those qualifying principles that are nothing less than necessary to make his own principles true and fitting in a given society.
Judged by all standards of a common man 's point of view of presenting history with a lesson in this film, these boundaries appear to us could have been kept in mind.
This is also the lesson of history that naked truth in all times will not be beneficial but truth in its proper light indicating the evils and the consequences of those evils is instructive and that message is there in "Tamas" according to the views expressed by the two learned Judges of the High Court.
They viewed it from an average, healthy and commonsense point of view.
That is the yardstick.
There cannot be any apprehension that it is likely to affect public order or it is likely to incite into the commission of any offence.
On the other hand, it is more likely that it will prevent incitement to such offences in future by extremists and fundamentalists.
Dr. Chitale, relying strongly on certain observations in Abbas ' case (supra, at p. 459 of the reports) contended that there was real danger of the film in this case inciting people to violence and to commit other offences arising out of communal disharmony.
It is no doubt true that the motion picture is a powerful instrument with a much stronger impact on the visual and aural senses of the spectators than any other medium of communications; likewise, it is also true that the television, the range of which has vastly developed in our country in the past few years, now reaches out to the remotest corners of the country catering to the not so sophisticated, literary or educated masses of people living in distant villages.
But the argument overlooks that the potency of the motion picture is as much for good as for evil.
If some scenes of violence, some nuances of expression or some events in the film can stir up certain feelings in the spectator, an equally deep strong, lasting and beneficial impression can be conveyed by scenes revealing the machinations of selfish interests, scenes depicting mutual 1024 respect and tolerance, scenes showing comradeship, help and kindness which transcend the barriers of religion.
Unfortunately, modern development both in the field of cinema as well as in the field of national and international politics have rendered it inevitable for people to face the realities of internecine conflicts, inter alia, in the name of religion.
Even contemporary news bulletins very often carry scenes of pitched battle or violence.
What is necessary sometimes is to penetrate behind the scenes and analyse the causes of such conflicts.
The attempt of the author in this film is to draw a lesson from our country 's past history, expose the motives of persons who operate behind the scenes to generate and foment conflicts and to emphasise the desire of persons to live in amity and the need for them to rise above religious barriers and treat one another with kindness, sympathy and affection.
It is possible only for a motion picture to convey such a message in depth and if it is able to do this, it will be an achievement of great social value.
In the present case the finding of the learned Judges of Bombay High Court is that the picture viewed in its entirety is capable of creating a lasting impression of this message of peace and co existence and that people are not likely to be obsessed, overwhelmed or carried away by the scenes of violence or fanaticism shown in the film.
We see no reason to differ from this conclusion.
Before we conclude we note that the petition was based on alleged violation of Articles 21 and 25 of the Constitution.
We. are unable to see any alleged violation of those articles.
We, however accept the position that the petitioner has a right to draw attention of this Court to ensure that the communal atmosphere is kept clean and unpolluted.
He has done well to draw attention to this danger.
We have examined and found that there is no such danger and the respondents have not acted improperly or imprudently.
In the aforesaid view of the matter this petition under Article 32 of the Constitution fails and is accordingly dismissed.
Similarly, on similar grounds the special leave petition arising out of the judgment and order of the Bombay High Court dated 23rd January, 1988 in Appeal No. 96/88 is also dismissed.
In the facts and circumstances of the case, there will be no order as to costs.
R.S.S. Petition dismissed.
[/INST]% The first respondent, an employee of the appellant Corporation, who was to retire from his service on 1.6.89 on completion of 58 years of age as per the date of birth recorded in the register maintained by the employer, the appellant Corporation, filed a writ petition in the High Court claiming that his date of birth should be altered to 20th October, 1938, relying on a certificate issued by the Chief Medical Officer.
The petition was contested by the appellant Corporation.
A Single Judge of the High Court held that it was not possible to accept the case of the first respondent that he was born in the year 1938, and that the date of birth as recorded in the register of the appellant Corporation should not be interfered with.
However, taking into consideration the problems of the respondent, domestic or otherwise he made an order to the effect that the first respondent may be given three more years service after his due date of retirement by reappointing him for that period, as a special case.
Allowing the appeal, ^ HELD: The Single Judge of the High Court having found that the date of birth of the first respondent as recorded in the register of the appellant Corporation should not be interfered with, committed a serious error in making an order directing the appellant Corporation, as a special case, to reappoint the first respondent for a period of three more years after his due date of retirement, on 1.6.89, on the ground that he had his problems, domestic or otherwise.
There was hardly any justification for passing such an order under Article 226 of the Constitution.
[864B C] 863
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<s>[INST] Summarize the judgementAppeal No. 350 of 1970.
Appeal by special leave from the judgment and order dated March 21, 1966 of the Madras High Court in O.S. Appeal No. 11 of 1962.
B. R. L. lyengar, M. V. Goswami, section R. Agarwala, A. T. M. Sampat and E. C. Agrawala, for the appellant.
U. P. Singh, Santok Singh, Ugra Shankar Prasad and Shiva Pujan Singh, for respondent No. 1.
section P. Sinha and M. I. Khowaja, for respondents Nos. 2 and 3.
The Judgment of the Court was delivered by Ray, J.
This appeal is by special leave from the judgment dated 21 March, 1966 of the Madras High Court dismissing the appeal preferred by the appellant against the decree holders ' application for execution of the decree.
The appellant is one of the judgment debtors brought on record as legal representative of a deceased judgment debtor Lala Baijnath Prasad.
Respondent No. 1 Lakshman Prasad Gupta was one of the plaintiffs.
Pratap Chand and Basudeb Prasad respondents Nos. 2 and 3 respectively are the sons of a judgment debtor Girdharilal Agarwala.
The plaintiff respondent Lakshman Prasad Gupta was married to the sister of Lala Bansilal.
Bansilal belonged to the joint family which consisted inter alia of the appellant 's father.
There were five 366 branches of the said joint family of the judgment debtors, three whereof were at Banaras, Calcutta and Naini and the other two were the branches of the descendants of Mohanlal and of Lala Baijnath Prasad, father of the appellant, respectively.
The said joint family had valuable properties in and around the town of Arrah in Bihar.
There are alleged to be valuable properties of the joint family also at Allahabad, Banaras, Bombay, Calcutta and Madras.
Some time in the year 1926 Lala Pratap Chand, one of the descendants of Mohanlal who was a grand uncle of Lala Bansilal filed a partition suit in the court of the Subordinate Judge at Allahabad.
A preliminary decree was passed in the said partition suit on 14 February, 1927.
An appeal was preferred and it was dismissed.
An amicable settlement was arrived at in the partition suit on 13 January, 1931 for partition of the properties into five equal lots and allotment of the shares.
Thereafter a Commissioner was appointed in the partition suit to go into accounts and prepare five lots.
The branches inter se raised disputes as to liability for loans alleged against the joint family.
The Commissioner prepared his report on 18 May, 1936.
Final decree was passed on 13 January, 1939.
An appeal was preferred against the said final decree in the partition suit to the High Court at Allahabad.
The appeal was disposed on 6 December, 1949.
The plaintiff Lakshman Prasad Gupta and six others filled suit No. 76 of 1937 in the Court, of the First Subordinate Judge at Arrah in Bihar and obtained a decree on 20 July, 1938 for Rs. 18,540 and for costs Rs. 1,840/4/ aggregating Rs. 20,380/4/ .
This decree was against Banwarilal and other members of the joint family to which the appellant 's father belonged.
The decree was transferred from Arrah to the Court of the Civil Judge at Allahabad where.
on 2 June, 1941 the decree holder commenced execution proceedings marked as Execution Petition No. 38 of 1941.
In that execution petition the decree holder prayed for attachment and sale of Shri Krishna Desi Sugar Works at Jhusi known as the Jhusi Sugar Mills in the District of Allahabad which belonged to the joint family.
The execution proceedings were according to the decree holders stayed under orders of the Allahabad High Court and after the stay order was vacated the execution proceedings were revived on 13 May, 1950.
The jhusi Sugar Mill was attached on 1 1 July, 1952 and it was sold on 19 February, 1955.
The sale was set aside on 31 May, 1955 pursuant to objections of the judgment debtors that the Jhusi Sugar Mill could not be sold because of the provisions of the U.P. Encumbered Estates Act, 1934.
It may be stated here that some time in the month of September, 1935 367 Baijnath Prasad filed an application before the Collector of Allahabad for protection and relief under the U.P.
Encumbered Estates Act of 1934 and it was registered as Encumbered Estates, Suit No. 25 of 1935.
Thereafter the decree holders on 17 March, 1956 made an application in the Arrah Court for transfer of the decree.
On 6, June, 1956, the Subordinate, Judge, at Arrah transferred the decree to the Madras High Court.
On 13 August, 1956 the decree holders, filed in the Madras High Court an application for attaching the properties of the joint family.
This application in the Madras High Court is the subject matter of the present appeal.
The matter was heard first by the Master of the High Court of Madras who held that the application for execution was barred by limitation.
An appeal from the decision of the Master was heard by the learned Single Judge of the Madras High Court who held that the application was not within the mischief of bar of limitation Thereafter Letters Patent Appeal was heard by a Division Bench of the Madras High Court.
The appeal is from the Bench decision upholding the judgment of the learned Single Judge.
Before the Master of the Madras High Court the contention on behalf of the judgment debtors was that the decree was passed on 20 July, 1 9 3 8 and therefore the execution petition filed on 1 3 August, 1956 was barred by limitation.
The decree holders on the other hand contended that the execution of the decree which commenced on 2 June, 1941 before the Civil Judge at Allahabad was stayed till the end of 1949 and was revived on 13 May, 1950 and finally disposed on 31 May, 1955, and, therefore, the execution petition filed on 13 August, 1956 was within time. 'he Master held that the decree holders had failed to prove as to from what point of time the execution of the decree was stayed pursuant to the order of the Allahabad High Court and also the time when the stay was vacated.
The application for execution was therefore found by the Master of the Madras High Court to be barred by limitation.
The learned Single Judge of the Madras High Court referred to the revival of execution proceedings before the Civil Judge at Allahabad on 13 May, 1950 and also the finding of the Civil Judge at Allahabad who in passing the final order on 31 May, 1955 setting aside the sale of the Jhusi Sugar Mill stated that the execution proceedings were stayed by orders of the High Court at Allahabad., The Civil Judge at Allahabad set aside the Sale because of the mandatory provisions of sections 7(2) and 9(5) of the U.P.
Encumbered Estates Act.
The Madras High Court placed reliance on Exhibits P 2, P 3 and P 3A on the question of stay of execu tion proceedings.
It may also be stated here that the judgment 3 68 debtor did not dispute the translation of those Exhibits P 3 and P 3A.
The Exhibits set out the orders of the Civil Judge at Allahabad.
Exhibit P. 2 is the judgment dated 31 May, 1955 passed by the Civil Judge setting aside the sale of the Jhusi Sugar Mill.
Exhibits P 3 and P 3A comprise the orders passed by the Civil Judge.
The three relevant orders in Exhibits P 3 and P 3A are dated 18 August, 1941, 23 August, 1941 and 30 August, 1941 in the said execution proceedings.
The order dated 18 August, 1941 was to the effect that the receivers were to be informed about the execution proceedings and their objections, if any.
The receivers were the receivers in the partition suit No. 4 of 1926.
The said order further recited that the orders of the High Court at Allahabad in the, partition suit were also received in the executing court.
The order dated 23 August, 1941 recited that the execution application of the decree holder was presented in the presence of the lawyers of the decree holder and the receivers.
Further, the order was that the request for permission should be submitted in suit No. 4 of 1926 namely, the partition suit of the defendants judgment debtors.
The order dated 30 August, 1.941 recorded by the Civil Judge at Allahabad was inter alia as follows : "The proceedings remain stopped on account of the injunction of the High Court.
Hence it was ordered that receivers should be informed accordingly.
Further steps will be taken after getting permission .
These orders are relied on by the decree holder to substantiate the case of stay of execution proceedings.
The contention which was advanced before the Madras High Court and repeated in this Court was that there was no absolute stay of the execution of the decree.
It was amplified to mean that the execution proceedings before the Civil Judge at Allahabad related only to one property and therefore the decree holders would not be entitled to claim benefit of exclusion of time by reason of partial stay of execution proceedings at Allahabad.
The Madras High Court rightly found that there was no evidence that the judgment debtors were possessed of other properties in Allahabad where the decree was being executed.
The Madras High Court rightly held that the decree holders were restrained by injunction issued by the Allahabad High Court from executing the decree and were therefore entitled to claim the benefit of section 15 of the Limitation Act in respect of the period of stay of execution of the decree.
It was contended by counsel for the appellant that the decree holder could start execution proceedings in Madras or in other States where the judgment debtors had properties.
Simultaneous 3 6 9 execution proceeding in more places than one is possible but the power is used sparingly in exceptional cases by imposing proper terms so that hardship does not occur to judgment debtors by allowing several attachments to be proceeded with at the same time.
In the present case, however, the important features are that a partition suit was instituted in the year 1926 among the defendants.
and receivers were appointed of the properties.
The judgment of the Allahabad High Court dated 6 December, 1949 disposing the appeals filed by the parties in the partition suit directed inter alia "that the parties will be put in possession of the immoveable properties at once, but the two receivers will be legally discharged only after they have accounted for the period they were in charge of the properties".
Counsel for the decree holder rightly relied on this portion of the judgment of the Allahabad High Court that this would fortify the construction that there was stay of execution of the decree.
In the present case, the effect of the order passed by the Allahabad High Court was recorded by the Civil Judge, Allahabad in his judgment dated 31 May, 1955 to amount to stay of execution proceedings.
The order of the Civil Judge, Allababad dated 30 August, 1941 was that "proceedings remain stopped on account of the injunction order issued by the High Court.
in the Madras High Court the parties proceeded on thee basis of the order as corded by the Civil Judge at Allahabad.
The order indicates that the stay of execution proceedings was in unqualified terms, namely, that the execution proceedings were stopped.
It is not possible to spell out any order of partial stay in the facts and circumstances of the present case as was contended by counsel for the appellant.
The order is on the contrary to the effect that there was an absolute, stay of execution proceedings.
It is, therefore, manifest that the execution proceedings before the Civil Judge at Allahabad were stayed and the decree holder was rightly found by the Madras High Court to the benefit of exclusion of time during which the execution, was stayed, Though the judgment debtors did not question before the Master of the Madras High Court the bona fides of the decree holder in prosecuting the execution proceedings, that contention was advanced before the learned Single Judge of the Madras High Court.
The learned Single Judge of the Madras High Court held that the decree holders commenced execution proceedings for sale of the Jhusi Sugar Mill for realisation of the decretal amount but the attempt of the decree holder failed because of the objections of R the judgment debtors under the provisions of the U.P. Encumbered Estate Act.
The sale was set a side by reason of the mandatory provisions of the statute.
The learned Single Judge of the Madras High Court rightly held that the decree holders prosecuted the exe 370 cution case in good faith and with due diligence and were entitled to protection under section 14 of the Limitation Act.
Before the Division Bench of the Madras High Court no argu ment was advanced touching the bona fides or good faith with which the execution proceedings were carried on.
Counsel for the appellant repeated the contention that the decree holders were guilty of lack of good faith and diligence.
It is not open to the judgment debtors to advance that contention having abandoned the same before the Division Bench of the Madras High Court.
We are furthermore of opinion that the conclusion of the learned Single Judge of the Madras High Court on that point is correct.
The other question which arise before the Madras High Court was whether section 15 of the Limitation Act, 1908 would apply to limitation prescribed in statutes other than the Limitation Act.
Section 48 of the Code of Civil Procedure until its amendment on the passing of the enacted that the decrees of the Civil Courts were to be executed within 12 years and not after that.
The present case is governed by section 48 of the Code of Civil Procedure as it stood prior to the deletion of that section along with the passing of the .
In section 15 of the Limitation Act, 1908 it is enacted that in computing the period of limitation prescribed for any suit or application for a decree execution of which has been stayed by injunction, the time of the continuance of the injunction shall be excluded.
In the Madras High ,Court it was argued that the word 'prescribed ' occurring in section 15 of the Limitation Act could apply only to cases of limitation prescribed by the First Schedule to the Limitation Act, 1908 with the result that the benefit of exclusion of time by reason of operation of stay could not be availed of in cases of limitation prescribed by section 48 of the Code of Civil Procedure.
The Madras High Court relied on the decision in Kandaswami Pillai vs Kannappa Chetty(1) which held that the expression 'prescribed ' in section 15(1) of the Limitation Act would apply not only to limitation prescribed in the First Schedule to the Limitation Act but also to limitation prescribed in general statutes like the Code of Civil Procedure.
That is the correct statement of law and counsel for the appellant did not advance any contention to the contrary.
It may, however, be stated that the effect of section 48 of the Code of Civil Procedure is not to supersede the law of limitation with regard to execution of decrees.
The Limitation Act prescribes a period of limitation for execution of decrees.
Section 48 of the Code of Civil Procedure dealt with the maximum limit of time provided for execution, but it did not prescribe the period within (1) 3 7 1 which each application for execution was to be made.
An application for execution was to be made within three, years from any of the dates mentioned in the third column of Article 182 of the Limitation Act 1908.
An application for execution of a decree would first have to satisfy Article 182 and it would also have to be found out as to whether section 48 of the Code of Civil Procedure operated as a further bar.
In the present case, there was stay of execution proceedings.
On 13 May, 1950 the execution proceedings were revived.
The judgment debtors did not challenge the order dated 13 May, 1950.
The judgment debtors impeached the sale only on a ground covered by the U.P. Encumbered Estates Act, 1934.
The judgment debtor further in impeaching the sale of Jhusi Sugar Mill did not advance before the Civil Judge at Allahabad any contention that any of the orders,of the Civil Judge at Allahabad reviving the execution proceedings, attaching the Jhusi Sugar Mill and directing the sale of the Sugar Mill was barred by limitation.
The principle of res judicata applies to execution procedings.
The judgment debtors in the present case did not raise any objection as to limitation in regard to execution of the decree before the Civil Judge at Allahabad.
On the contrary the judgment debtors asked for setting aside the sale on the basis of revival of execution proceedings.
The revival of execution was not challenged and the judgment debtors are thereby barred by the principle of rem judicate from questioning directly or indirectly the order dated 13 May, 1950 reviving the execution proceedings.
When the appellant made the application for special leave, the appellant referred to an affidavit affirmed by the appellant 's father on 12 February, 1957 in the execution proceedings in the Madras High Court.
The copy of the said affidavit annexed to the petition for special leave in this Court is in seven paragraphs.
In paragraph 6 of the said affidavit it is alleged that the decree is against 5 bran ches and the plaintiff Lakshman Prasad in collusion with the other branches excluded the other four branches and chose to proceed only against the appellant 's branch though the other four branches were possessed of vast properties.
The further allegations in paragraph 6 of the said affidavit are that the object of the plaintiff is to harass only one branch and the application is not bonafide.
The plaintiff respondent in answer to the petition for special leave affirmed an affidavit in this Court that paragraph 6 in the said affidavit was an interpolation and was not at all in existence in the affidavit filed in the Madras High Court.
The plaintiff respondent ti obtained a photostat copy of the said affidavit filled in the Madras High Court.
The photostat copy established that paragraph 6 was not there and further that the affidavit was affirmed at Allahabad bad on 12 February, 1957 and not at Madras.
Furthermore, the 372 affidavit was explained to the deponent Baijnath Prasad as will appear from the photostat copy as annexed to the petition whereas in the copy annexed to the petition for special leave there was no such statement.
It is a serious matter that the appellant asked for relief on the basis of false copies of affidavits.
An explanation was suggested in the affidavit of the appellant that the copy was annexed in accordance with the draft that had been sent by the Madras lawyer.
It is beyond comprehension as to how an incorrect copy would be sent by the Madras lawyer.
Counsel for the appellant realised the gravity of the situation and conceded that the matter should be proceeded, with on the basis as it paragraphs did not exist.
The appellant is guilty of lack of uberrimae fidei.
We have therefore proceeded on the basis that paragraph 6 did not exist in the copy of the said affidavit.
The Madras High Court upheld the order of the learned Single Judge entitling the decree holder to the exclusion of the period spent in prosecuting prior infructuous execution proceedings before the Civil Judge at Allahabad.
The decree holder was allowed to proceed with the execution proceedings and t he Madras High Court remitted the matter to the Master to consider the questions indicated in the judgment and the judgment debtors were allowed to raise objections to the executability of the decree apart from that of limitation as indicated in the judgment of the learned Single Judge.
We are of opinion that the Madras High Court is right in holding that the decree holder is entitled to the benefit of exclusion of time during which the execution proceedings were stayed by the order of the Allahabad High Court and the decree holder proceeded with the said execution proceedings in good faith and with the deligence.
For these reasons we are of opinion that the appeal fails.
The appellant will pay the costs to the respondents.
Y.P. Appeal dismissed.
[/INST]A Hindu undivided family carrying on management of a company disrupted into 3 branches, one being that of the assessee, and the shares of the company were more in the names of his family members.
The consideration for all these subsequent acquisitions was from the Hindu undivided family funds.
All the shares the previous and subsequent acquisition were treated in the books and the balance slice of the assessee family as its property and its dividends were also credited to the account of the family.
As Managing Director of the company the assessee received certain remuneration.
On the question whether the managing director 's remuneration received by the assessee was assessable in his individual hands or in the hands of the assessee 's Hindu undivided family, this Court HELD : The remuneration was assessable as the assessee 's individual income and not as the income of his Hindu undivided family.
The broad principle that has, to be applied in such cases is whether the remuneration received by the coparcener in substance though not in form was but one investment of the family funds in the business or whether it was a compensation made for the services rendered by the individual coparcener.
If it is the former, it is an income of the Hindu undivided family but if it is the latter then it is the income of the individual coparcener.
If the income was essentially earned as a result of the funds in vested the fact that a coparcener has rendered some service would not change the character of the receipt.
But if on the other hand it is essentially a remuneration for the services rendered by a coparcener, the circumstances that his services were availed of because of the reason that he was a member of the family which had invested funds in that business or that he had obtained the qualification shares from out of the family funds would not make the receipt, the income of the Hindu undivided family.
[759 D] Applying the tests enumerated above to the facts found by the tribunal in the present case, there was hardly any room to doubt that the income in question was the individual income of assessee.
He did not become the managing director of the firm for the mere reason that his family had purchased considerable shares in the firm.
He was elected as a managing director by the board of directors.
The tribunal had found that he received his salary for his personal services.
There was no material to hold that be was elected managing director on behalf of the family.
In the past the salary received by him was assessed as hi , individual income.
The same was the case as regards the salary received by the other managing directors.
The tribunal had found that he was not appointed as managing director as a result of any outlay or expenditure of or detriment to the family property.
It had further found that the managing directorship was an employment of personal responsibility and ability.
[759 G] 749 Commissioner of Income, tax, West Bengal vs Kalu Babu Lal Chand, ; Mathura Prasad vs Commissioner of Income tax , Piyeare Lal Adhishwar Lal vs Commissioner of Income tax, ; V. D. Dhanwatey vs Commissioner of income tax M.P. ;M.D.Dhanwatey vs Commissioner of Income tax M.P. ;S.RM.CT.
Palaniappa Chettiar vs Commissioner of Income tax,Madras ; Commissioner of Income tax, Mysore vs Gurunath Dhakappa, P. N. Krishna Iyer vs Commissioner of Incometax Kerala, , and Commissioner of Income tax, Mysore v.
D. C. Shah, 73, I.T.R. 692, explained.
Principle laid down in Gokul Chand vs Hukum Chand Nath Mal, 48,I.A. 162; held no more valid.
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<s>[INST] Summarize the judgementl Appeals Nos.
1567 of 1968, 585 to 1026 and 1027 to 1082 of 1969.
Appeals by special leave from the orders dated March 28, 1968 and July 20, 1968 of the Labour Court (11), U.P., Lucknow in Misc.
Cases Nos. 102 of 1965 etc.
M. C. Chagla, Harish Chandra, H. K. Purl and Bishambar Lal for the appellant (in all the appeals).
J. P. Goyal and V. C. Prashar, for respondent No. 1 (in all the appeals).
section P. Nayar, for the Attorney General (in C.As.
585 to 1026 and 1027 to 1082 of 1969).
The Judgment of the, Court was delivered by Shah, J.
These three groups of appeals arise out of orders made by the Presiding Officer, Labour Court (11), U.P., Lucknow awarding retrenchment compensation to certain employees of the U.P. Electric Supply Company Ltd. (in liquidation).
In the last group of appeals orders of the Labour Court awarding in addition thereto compensation for earned leave not enjoyed by the employees are also challenged.
The U.P. Electric Supply Company Ltd. hereinafter called the Company ' held two licences issued in 1914 by the Government of U.P. for generating and distributing electricity within thetowns of Allahabad and Lucknow.
The periods of the licenses expired in 1964.
Pursuant to the provisions of paragraph 12(1) in each of the said licenses and in exercise of the power under section 6 of the , the State Electricity Board, U.P. hereinafter referred to as "the Board took over the undertaking of the Company at Allahabad and Lucknow from the mid night of September 16, 1964.
The Company accordingly 510 ceased to carry on the business of generation and distribution of electricity in the areas covered by the original licences.
All the workmen of the undertakings at Allahabad and Lucknow were taken over in the employment of the Board with effect from September 17, 1964, without any break in the continuity of employment.
On December 22, 1964, 443 workmen employed in the Allahabad undertaking filed before the Labour Court, applications under section 6 H(2) of the U.P. , for payment of retrenchment compensation and salary in lieu of notice.
The work men submitted that fresh letters of appointment were issued by the Board on September 16, 1964, taking them in the employment of the Board with effect from September 17, 1964 "in the posts and positions which they previously held", but without giving credit for their past services with the Company.
The workmen contended that they were entitled to retrenchment compensation and salary in lieu of notice, and prayed for computation of those benefits in terms of money and for directions to the Company to pay them the amount so computed.
A group of 56 workmen employed at the Company 's undertaking at Lucknow also submitted applications under section 6H(2) of the U.P. , for payment of retrenchment compensation and salary in lieu of notice and also for compensation for accumulated earned leave not enjoyed by them till September 16, 1964.
In the applications filed by the workmen of the Allahabad undertaking, the Labour Court awarded to each workman retrenchment compensation at the rates specified in the order and also one month 's salary and costs.
To each workman of the Lucknow undertaking the Labour Court awarded retrenchment compensation at the rate specified, salary in lieu of one month 's notice, and also, wages for 30 days for earned leave not enjoyed by the workman before the closure of the undertaking, and costs.
The Company has appealed to this Court against the orders with special leave.
The orders for payment of retrenchment compensation are resisted by the Company on two grounds (i) that the Labour Court was incompetent to entertain and decide the applications for awarding retrenchment compensation; and (ii) that the workmen were not in fact retrenched, and in any event since the workmen were admitted to the service of the Board without break in continuity, and on terms not less favourable than the terms enjoyed by them with the Com 511 pany, the Company was under no liability to pay retrenchment compensation.
Some argument was advanced before us that in determining matters relating to the award of retrenchment compensation, the provisions of the , and not the U.P. , apply.
The question is academic, because on the points in controversy between the parties, the statutory provisions of the , and the U.P. , are substantially the same.
We may, however, briefly refer to this argument since, relying upon a judgment of this Court to be presently noticed, counsel for the workmen insisted that section 33 C(2) of the alone may apply.
After the enactment of the , by the Dominion Parliament, the U.P. , was enacted by the Provincial Legislature.
The scheme of them two Acts is substantially the same.
Chapter V A relating to layoff and retrenchment was added in the by Act 43 of 1953 with effect from October 24, 1953.
From time to time amendments were made in the provisions of the Act.
By section 25 J (2) it was provided "For the removal of doubts, it is hereby declared that nothing contained in this Chapter shall be deemed to affect the provisions of any other law for the time being in force in any State in so far as that law provides for the settlement of industrial disputes, but the rights and liabilities of employers and workmen in so far as they relate to lay off and retrenchment shall be deter mined in accordance with the provisions of this Chapter.
" After this sub section was incorporated in the , a group of sections including section 6 R were incorporated in the U.P. by U.P. Act 1 of 1957.
Section 6 R(2) provided : "For the removal of doubts, it is hereby declared that nothing contained in Sections 6 H to 6 R shall 'be deemed to affect the provision of any other law for the time being in force so far as that law provides for the settlement of industrial disputes, but the rights and liabilities of employers and workmen in so far as they relate to lay off and retrenchment shall be determined in accordance with the provisions of Sections 6 H to 6 Q." By virtue of section 6 R(2) the provisions of the U.P. , prima facie, apply in the matters of lay off and retrenchment, because under the Seventh Schedule to the Constitution 512 legislation in respect of "Trade Unions, Industrial and Labour Disputes" falls within Entry 22 of the Concurrent List and both the State and the Union are competent to legislate in respect of that field of legislation.
Whereas by adding section 25 J(2) it was enacted that under the , the rights and liabilities of employers and workmen in so far as they relate to lay off and retrenchment shall be determined in accordance with the provisions of Ch.
V A of that Act, by the U.P. Act as amended by Act 1 of 1957, section 6 R(2) enacts that the rights and liabilities of employers and workmen relating to lay off and retrenchment shall be determined in accordance with the provisions of sections 6 J to 6 Q. Competence of the State Legislature to enact section 6 R(2) is not denied.
Act 1 of 1957 received the assent of the President and by virtue of article 254(2) of the Constitution section 6 R(2) of the U.P. Act prevails, notwithstanding any prior law made by the Parliament.
The provisions of the U.P. Act including section 6 R(2) therefore apply in determining the rights and obligations of the parties in respect of retrenchment compensation.
The observation to the contrary made by this Court in Rohtak & Hissar Districts Electric Supply Company vs State of U.P. (1) which primarily raised a dispute relating to the validity of certain model standing orders proceeded upon a concession made at the Bar, and cannot be regarded as decisive.
Since the relevant provisions of the two Acts on the matter in controversy in these groups of appeals are not materially different, we do not think it necessary in this case to refer the question to a larger Bench.
We, accordingly, propose to refer only to, the provisions of the U.P.
Section 4 A of the U.P. Act authorises the State Government to constitute one or more Labour Courts for the adjudication of industrial disputes relating to any matter specified in the First Schedule and for performing such other functions as may be assigned to them under the Act.
The items specified in the First Schedule are 1.
The propriety or legality of an order passed by an employer under the Standing Orders; 2 .
The application and interpretation of Standing Orders 3 .
Discharge or dismissal of workman including reinstatement of, or grant of relief to, workmen wrongfully dismissed; 4.
Withdrawal of any customary concession or privilege; (1) 513 5.
Illegality or otherwise of a strike or lock out; and 6.
All matters other than those, specified in the Second Schedule.
" Section 4 B authorises the State Government to constitute one or more Industrial Tribunals for the adjudication of industrial disputes relating to any matter whether specified in the First Schedule or the Second Schedule.
Item 10 of the Second Schedule relates to "Retrenchment of workmen and closure of establishment".
Prima facie, disputes relating to retrenchment of workmen and closure of establishment fall within the exclusive competence of the Industrial Tribunal, and not within the competence of the Labour Court constituted under section 4 A.
The Company had expressly raised a contention that they had not retrenched the workmen and that the workmen had voluntarily abandoned the Company 's service by seeking employment with the Board ' even before the Company closed its undertaking.
The workmen contended by their petitions filed before the Labour Courts that they were retrenched, the Company contended that the workmen had voluntarily abandoned the employment under the Company because they found it more profitable to take up employment under the Board without any break in the same post and on the same terms and conditions on which they were employed by the Company.
This clearly raises the question whether there was retrenchment of workmen, which gave rise to liability to pay retrenchment compensation.
A dispute relating to retrenchment is exclusively within the competence of the Industrial Tribunal by virtue of item 10 of the Second Schedule to the U.P. , and is not within the competence of the Labour Court.
Section 6 H of the U.P. Act provides : (1) Where any money is due to a workman from an employer under the provisions of Sections 6 J to 6 R or under a settlement or award, or under an award given by an adjudicator or the State Industrial Tribunal appointed or constituted under this Act, before the com mencement of the Uttar Pradesh Industrial Disputes (Amendment and Miscellaneous Provisions) Act, 1956, the workman may, without prejudice to any other mode of recovery, make an application to the State Government for the recovery of the money due to him, and if the State Government is satisfied that any amount is so due, it shall issue a certificate for that amount to the Collector who shall proceed to recover the same as if it were an arrear of land revenue.
(2) Where any workman is entitled to receive from the employer any benefit which is capable of being computed in terms of money, the amount at which such 514 benefit should be computed may, subject to any rules that may be made under this Act be determined by such Labour Court as may be specified in this behalf by the State Government, and the amount so determined may be recovered as provided for in sub section (1).
(3) Under section 6 H(2) the Labour Court was competent to determine what each workman was entitled to receive from the employer by way of retrenchment compensation payable in terms of money and the denial of liability by the Company did not affect the jurisdiction of the Labour Court.
In several decisions of this Court the inter relation between sub sections
(1) & (2) of section 33 C (which are substantially in the same terms as sub sections
(1) & (2) of section 6 H of the U.P. ) was examined.
It was held by this Court in The Central Bank of India Ltd. vs P. section Rajagopalan etc.(1) that the scope of section 33 C(2) is wider than that of section 33 C(1).
Claims made under section 33 C(1) can only be those which are referrable to settlement, award or the relevant provisions of Ch.
V A, but those limitations are not to be found in section 33 C(2).
The three categories of claims mentioned in section 33 C(1) fall under section 33 C(2) and in that sense section 33 C(2) can itself be deemed to be a kind of execution proceeding, but it is possible that claims not based on settlements, awards or made under the provisions of Ch.
V A may also be competent under section 33 C(2).
Elaborating this thesis Gajendragadkar, J., who delivered the judgment of the Court observed (pp. 155 156) "There is no doubt that the three, categories of claims mentioned in section 33C(1) fall under section 33C(2) and in that sense, section 33C(2) can itself be deemed to be a kind of execution proceeding; but it is possible that claims not based on settlements, awards or made under the provisions of Chapter V A, may also be competent under section 33C(2) and that may illustrate its wider scope.
We would, however, like to indicate some of the claims which would not fall under section 33C(2), because they formed the subject matter of the appeals which have been grouped together for our decision along with the appeals with which we are dealing at present.
If an employee is dismissed or demoted and it is his case that the dismissal or demotion is wrongful, it would not be open to him to make a claim for the recovery of his salary or wages under section 33C(2).
His demotion or dismissal may give rise to an industrial dispute which may (1) 515 be appropriately tried, but once it is shown that the employer has dismissed or demoted him, a claim that the dismissal or demotion is unlawful and, therefore, the employee continues to be the workman of the employer and is entitled to the benefits due to him under a pre existing contract, cannot be made under section 33C(2).
" The same view was reiterated in Bombay Gas Co. Ltd. vs Gopal Bhiva and Others(1).
Mr. Goyal on behalf of the workmen, however, contended that in a recent judgment of this Court a different view has been expressed.
He invited our attention to The Board of Directors of the South Arcot Electricity Distribution Co. Ltd. vs N. K. Mohammad Khan, etc.(2).
In that case the Electricity undertaking was taken over by the Government of Madras in exercise of the powers conferred by the Madras Electricity Supply Undertakings (Acquisition) Act, 1954, and the employees of the undertaking were taken over by the new employer.
The employees claimed retrenchment compensation from the old employer under section 25FF, of the .
It was urged before this Court that the Labour Court was incompetent to decide the claim for retrenchment compensation.
This Court observed that section 25FF(b) applied as the terms of service under the new employer were less favourable than those under the old employer, and under the terms of sections 15 (1 ) & (2) of the Acquisition Act and sections 9A and 10 of the , liability to pay retrenchment compensation rested upon the previous employer and on that account the Labour Court was competent to entertain the petitions under section 33C(2).
The language of section 25FF in the view of the Court made it perfectly clear that if the right to compensation accrued under the Act, the workmen became entitled to receive retrenchment compensation, when under the Madras Act the undertaking stood transferred to the State Government from the Company.
Referring to the contention that the Labour Court was not competent to determine the liability to Day retrenchment compensation, where the liability itself was denied, the Court referred to the judgments of this Court in Chief Mining Engineer, East India Coal Co. Ltd. vs Rameswar and Others(3); State Bank of Bikaner (4) ; and Jaipur vs R. L. Khandelwal Punjab National Bank Ltd. vs K. L. Kharbanda(5); Central Bank of India vs P. section Rajagopalan and Others(6); and Bombay Gas Company Ltd. vs Gopal Bhiva and Others(1), and proceeded to observe that the right (1) [1964] (2) (3) [1968] 1 S.C.R. 140.
(4) (5) [1962] Supp. 2 S.C.R. 977.
(6) ; 516 which has been claimed by the various workmen in their applications under section 33C(2) of the Act was a right which accrued to them under section 25FF of the Act and was an existing right at the time when those applications were made, and the Labour Court had jurisdiction to decide, in dealing with the applications under that provision, whether such a right did or did not exist.
The mere denial of that right by the Company, it was said, could not take away its jurisdiction and that the order of the Labour Court was competently made.
The decision in the Central Bank of India vs P. section Rajago palan and Others(1), to which we have already referred, makes it clear that all disputes relating to claims which may be computed in terms of money are not necessarily within the terms of section 33C(2).
Again in Chief Mining Engineer, East India Coal Co. Ltd. vs Rameswar and Others (2 ) Shelat, J., observed : ". . that the right to the benefit which is sought to be computed under section 33C(2) must be an existing one, that is to say, already adjudicated upon or provided for and must arise in the course of and in relation to the relationship between an industrial workman and his employer.
Since the scope of sub section
(2) is wider than that of sub section
(1) and the sub section is not confined to cases arising under an award, settlement or under the provisions of Ch.
V A, there is no reason to hold that a benefit provided for under a statute or a scheme made thereunder, without there being anything contrary under such statute or section 33C(2), cannot fall within sub section
Consequently, the benefit provided in the bonus scheme made under the Coal Mines Provi dent Fund and Bonus Schemes Act, 1948, which remains to be computed must fall under sub section
(2) and the Labour Court therefore had jurisdiction to entertain and try such a claim, it being a claim in respect of an existing right arising from the relationship of an industrial workman and his employer.
" That judgment clearly indicates that in order that a claim may be adjudicated upon under section 3 3C (2), there must be an existing right and the right must arise under an award, settlement or under the provisions of Ch.
V A, or it must be a benefit provided by a statute or a scheme made thereunder and there must be nothing .contrary under such statute or section 3 3C (2).
But the possibility of a mere claim arising under Ch.
V A is not envisaged by the Court in that case as conferring jurisdiction upon the Labour Court to decide matters which are essentially within the jurisdiction of the Industrial Tribunal.
(1) ; (2) [1968] 1 S.C.R. 140.
517 The legislative intention disclosed by sections 33 C ( 1 ) and 3 3 C (2) is fairly clear.
Under section 33 C(1) where any money is due to a workman from an employer under a settlement or an award or under the provisions of Ch.
V A, the workman himself, or any other person authorised by him in writing in that behalf, may make an application to the appropriate Government to recover of the money due to him.
Where the workman who is entitled to receive from the employer any money or any benefit which is capable of being computed in terms of money, applies in that behalf, the Labour Court may under section 33 C(2) decide the questions arising as to the amount of money due or as to the amount at which such benefit shall be computed.
Section 33 C(2) is wider than section 33C(1).
Matters which do not fall within the terms of section 33C(1) may, if the workman is shown to be entitled to receive the benefits, fall within the terms of section 33C(2).
If the liability arises from an award, settlement or under the provisions of Ch.
V A, or by virtue of a statute or a scheme made thereunder, mere denial by the employer may not be sufficient to negative the claim under section 33 C(2) before the Labour Court.
Where however the right to retrenchment compensation which is the foundation of the claim is itself a matter which is exclusively within the competence of the Industrial Tribunal to be adjudicated upon a reference, it would be straining the language of section 33C(2) to hold that the question whether there has been retrenchment may be decided by the, Labour Court.
The power of the Labour Court is to compute the compensation claimed to be payable to the workmen on the footing that there has been retrenchment of the workmen.
Where retrenchment is conceded, and the only matter in dispute is that by virtue of section 25FF no liability to pay compensation has arisen the Labour Court will be competent to decide the question.
In such a case the question is one of computation and not of determination, of the conditions precedent to the accrual of liability.
Where, however, the dispute is whether workmen have been retrenched and computation of the amount is subsidiary or incidental, in our judgment, the Labour Court will have no authority to trespass upon the powers of the Tribunal with which it is statutorily invested.
In the unreported judgment of this Court in The Board of Directors of the South Arcot Electricity Distribution Co. Ltd. vs N. K. Mohammed Khan, etc.(1) apparently the only argument advanced before this Court was that section 25FF applied to that case having regard to the fact that the terms of employment under the new employer were not less favourable than those immediately applicable to them before the transfer, and the Court proceeded to hold that the Labour Court was competent to determine the compensation.
(1) 518 The finding that the Labour Court was incompetent to decide .the applications of the workmen would be sufficient to dispose of the appeals before us.
But other arguments were advanced before us, and which have an important bearing on the claims made : we propose briefly to deal with these arguments.
Assuming that the Labour Court had jurisdiction to determine the liability of the Company to pay retrenchment compensation no order awarding retrenchment compensation could still be made without recording a finding that there was retrenchment of the workmen and compensation was payable for retrenchment.
Section 6 0 of the U.P. (which in its phraseology is somewhat different from section 25FF of the Industrial Disputes Act) provides : "Notwithstanding anything contained in Section 6 N no workman shall be entitled to compensation under that section by reason merely of the fact that there has been a change of employers in any case where the ownership or management of the undertaking in which he is employed is transferred, whether by agreement or by operation of law, from one employer to another Provided that (a) the service of the workman has not been interrupted by reason of the transfer; (b) the terms and conditions of service applicable to the workman after such transfer are not in any way less favourable than those applicable to him immediately before the transfer; and (c) the employer to whom the ownership or management of the undertaking is so transferred is, under the terms of the transfer or otherwise, legally liable to pay to the workman, in the event of his retrenchment, compensation on the basis that his service has been continuous and has not been interrupted by the transfer." In the present groups of appeals it is common ground that there was no interruption resulting from the undertaking being taken over by the Board.
The agreements between the Board and the workmen to admit the workmen into employment of the Board were reached before the undertakings of the Company were taken over.
The Company contended that the terms and conditions of service applicable to workmen after the transfer were not in any way less favourable to the workmen than those applicable to them immediately before the undertakings were taken ,over, and that the employer to whom the ownership or manage 519 ment of the undertakings were so transferred was, under the terms of the transfer or otherwise, legally liable to pay to the workmen, in the event of their retrenchment, compensation on the basis that their services had been continuous and had not been interrupted by the taking over.
The workmen denied that claim.
The Labour Court could award compensation only if it determined the matter in controversy in favour of the workmen it could not assume that the conditions of the proviso to section 6 0 were fulfilled.
Section 6 0 is in terms negative.
It deprives the workmen of the right to retrenchment compensation in the conditions mentioned therein.
The Company asserted that the conditions precedent to the exercise of jurisdiction did not exist.
The workmen asserted the existence of the conditions.
Without deciding the issue, the Labour Court could not compute the amount of compensation payable to the workmen.
On the assumption that the workmen had been retrenched and their claim fell within the proviso to section 6 0.
It was urged by Mr. Goyal on behalf of the workmen that this plea was not raised or argued before the Labour Court, and it cannot be permitted to be raised in this Court.
But this contention was raised in the reply filed by the Company, and the judgment of the Labour Court does indicate that its authority to decide that question was disputed.
We are unable to hold that the objection though raised was not urged before the Labour Court, and on that account to confirm the decision of the Labour Court which until the matter in controversy was decided could not be rendered.
Even if, therefore, the Labour Court was competent to entertain the dispute relating to award of retrenchment com pensation, the order made by the Labour Court must be set aside.
One more contention raised at the Bar by Mr. Chagla for the Company may be considered.
It was urged that the obligation to pay retrenchment compensation in the event of liability arising must in law be deemed to be taken over by the Board.
In The Board of Directors of the South Arcot Electricity Distribution Company Ltd. vs N. K. Mohammad Khan, etc.(1), to which we have already made a reference, it was contended on behalf of the Electricity Company that the liability to pay retrenchment cornpensation did not fall on the licensee, but on the Madras Government.
This Court held, having regard to the scheme of the Act that if retrenchment compensation is payable, it is the original undertaking which remains liable, and not the undertaking which takes over the business.
Counsel however relied upon sections 6 and 7 of the , in support of his plea that the liability to pay retrenchment compensation rests upon the (1) 14Sup.
Cl/69 4 520 undertaking which takes over the undertaking.
Section 6 of the , provides : "(1) Where a license has been granted to pay person, not being a local authority, the State Electricity Board shall (a) in the case of a license granted before the commencement of the Indian Electricity (Amendment) Act, 1959, on the expiration of each such period as is specified in the license; and (b) have the option of purchasing the undertaking and such option shall be exercised by the State Electricity Board serving upon the licensee a notice in writing of not less than one year requiring the licensee to sell the 'Undertaking to it at the expiry of the relevant period referred to in this sub section.
ln the present case notice was given of termination of the license after the expiry of the period of the original license and the Board took over the undertaking of the Company.
Section 7 of the provides : "Where an undertaking is sold under section . 6 then upon the completion of the sale or on the date on which the undertaking is delivered to the intending purchaser under sub section (6) of section 6 (i) the undertaking shall vest in the purchaser . . free from any debt, mortgage or similar obligation of the licensee or attaching to the undertaking : Provided that any such debt, mortgage or similar obligation shall attach to the purchase money in substitution for the undertaking; (ii) the rights, powers, authorities, duties and obligations of the licensee under his license shall stand transferred to the purchaser and such purchaser shall be deemed to be the licensee : Provided that where the undertaking is sold or delivered to a State Electricity Board or the State Government, the license shall cease to have further operation.
" 521 It is clear that when the undertaking vests in the purchaser, any debt mortgage or similar obligation attaches to the purchase money in substitution of the undertaking.
The liability to pay retrenchment compensation is a debt : if it arises on transfer it will attach to the purchase money payable to the Company in substitution for the undertaking.
Sections 6 and 7 of the do not support the case of the Company that the liability is enforceable against the Board after it takes over the undertakings.
The provisions of sections 57 and 57A of the Indian , also do not assist the case of the, Company.
Sections 57 & 57A of the , deal with the licensee 's charges to consumers and the Rating Committees.
By the Sixth Schedule dealing with financial principles and their application, it is provided by cl.
TV that certain amount shall be appropriated towards Contingencies Reserve from the revenues of each year of account.
By cl.
V of the Sixth Schedule it is provided : "(1) The Contingencies Reserve shall not be drawn upon during the currency of the licence except to meet such charges as the State Government may approve as being (a) expenses or loss of profits arising out of accidents, strikes or circumstances which the management could not have prevented; (b) expenses on replacement or removal of plant or works other than expenses requisite for normal maintenance or renewal; (c) compensation payable under any law for the time being in force and for which no other provision is made.
(2) On the purchase of the undertaking, the Contingencies Reserve, after deduction of the amounts drawn under sub paragraph (1), shall be handed over to the purchaser and maintained as such Contingencies Reserve : Provided that where the undertaking is purchased by the Board or the State Government, the amount of the Reserve computed as above shall, after further deduction of the amount of compensation, if any, payable to the employees of the outgoing licensee under any law for the time being in force, be handed over to the Board or the State Government, as the case may be." 522 Clause V only provides for the appropriation of the Contingencies Reserve : it requires an undertaking to hand over the Contingencies Reserve to the purchaser.
If any amount of compensation is payable to the employees of the outgoing licensee under any law for the time being in force, it is chargeable to the Contingencies Reserve.
If the retrenchment compensation becomes properly due to the employees of the Company, it would, by virtue of cl.
V sub cl.
(2) proviso, be charged upon the Contingencies Reserve and the balance alone would be handed over to the purchaser.
It was urged that the Contingencies Reserve has been paid over to the purchaser.
There is, however, no finding by the Labour Court in that behalf.
If it be found in appropriate proceedings that retrenchment compensation is payable to the workmen and the Contingencies Reserve out of which it is payable has been handed over to the Board, the charge for payment of that amount may attach to that amount.
On that matter we need express no opinion at this stage.
Finally it was contended and that contention relates only to the cases of 56 workmen in the Lucknow undertaking that the workmen who had not availed themselves of earned leave were ,entitled to compensation equal to thirty days wages.
But we do not think that any such compensation is statutorily payable.
So long as the Company was carrying on its business, it was obliged to give facility for enjoying earned leave to its workmen.
But after the Company closed its business, it could not obviously give any earned leave to those workmen, nor could the workmen claim any compensation for not availing themselves of the leave.
In the absence of any provision in the statute governing the right to compensation for earned leave not availed of by the workmen before closure, or transfer of an undertaking, we do not think that any such compensation is payable.
On the view taken by us that the Labour Court was incom petent to determine the question as to liability to pay retrenchment compensation, these appeals must be allowed and the petitions under section 6 H(2) filed by the respondents must be dismissed.
There will be no order as to costs throughout.
G.C. Appeals allowed.
[/INST]Three shoprooms were requisitioned on April 15, 1943, under the Defence of India Rules and the requisition order inter alia stated that is the said requisitioned property shall be continued in requisition during the period of present war and six months thereafter or for such shorter period as may be specified by the Food Controller, Bombay. .
Held, that on a plain and grammatical construction of cls.
2(3) and 3 of Ordinance XIX of 1946, the immoveable property which when the Defence of India Act expired on the 30th September, 1946, was subject to any requisition order effected under the Act and the rules thereunder, continued to be subject to requisition until the expiry of Ordinance, no matter whether the requisition order to which the immoveable property was subject was of a limited duration or an indefinite period.
The ordinary rule is that there should be a close approxima tion between the non obstante clause and the operative portion of the section but the non obstante clause need not necessarily and always be co extensive with the operative part if it has the effect of cutting down the clear terms of an enactment.
</s>
|
<s>[INST] Summarize the judgementCivil Appeal No. 1130 of 1976.
Appeal by Special Leave from the Judgment and Order dated 24 3 1972 of the Allahabad High Court in Misc.
Writ No. 8069/72.
AND CIVIL APPEAL NOS 2248/78, 2191 2198/78 AND 2284/78.
Appeals by Special Leave from the Judgment and Order dated 6 10 1978 of the Allahabad High Court in Special Appeal Nos. 356, 352 355, 357 359/75.
533 AND CIVIL APPEAL NO. 245 of 1979.
Appeal by Special Leave from the Judgment and Order dated 17 10 1978 of the Allahabad High Court in Civil Misc.
Writ No. 11702/77.
AND CIVIL APPEAL NO.
626 of 1979.
Appeal by Special Leave from the Judgment and Order dated 17 10 1978 of the High Court of Judicature of Allahabad in Civil Misc.
Writ (Tax) No. 824/75.
AND WRIT PETITION NOS.
4663 4664 of 1978 & 4501 of 1978.
Under Article 32 of the Constitution.
AND SPECIAL LEAVE PETITION (CIVIL) NOS.
6526 28/78, 125 126, 201 and 2533 of 1979.
From the Judgment and Order dated 6 11 1978 and 17 10 78 and 16 11 1978 and 17 10 78 of the Allahabad High Court in Civil Misc.
Writ Nos.
89/77, 3822/73, 540/75 and 4129 30 of 1976 and C.W. No. 703/76 and C. Misc.
Writ No. 41/76.
Rishi Ram, Advocate General for the State of U.P., G. N. Dikshit, O.P. Verma, section C. Verma and Mrs. Sadhna Ramchandran, for the Appellant in CA No. 1130/76 and respondents in all the matters.
F. section Nariman, Dr. L. M. Singhvi, B. G. Murdeshwar, P. C. Murdeshwar, P. C. Bhartari, section P. Nayar, L. K. Pandeya, N. R. Khairan, Praveen Kumar, Miss Beena Gupta, Anip Satchthey and Mrs. Baby Krishnan for the Appellants and Petitioners in all other matters and respondents in CA 1130/76.
F. section Nariman, Talat Ansari, R. Narain and section P. Nayar for the Interveners (M/s J.
K. Synthetics and Agarwal Spirit Supply Co.) The Judgment of the Court was delivered by KAILASAM, J.
These batches of Civil Appeals, Writ Petitions and Special Leave Petitions raise the same question and can be disposed of by a common judgment.
C.A. No. 1130/76 is by the State.
The other Appeals, Writ Petitions and Special Leave Petitions are by the aggrieved parties.
534 For the sake of convenience appellants in Civil Appeals by Special Leave except the State would be referred as the appellants in this judgment.
Similarly the petitioners in Writ Petitions and Special Leave Petitions will be referred to as petitioners.
The appellants in Civil Appeals by Special Leave filed writ petitions before the High Court of Allahabad praying for quashing the Excise Commissioner 's order dated 18th September, 1974 whereby it was provided that the vend fee be continued to be charged for the wholesale licence dealer of denatured spirit.
They also prayed for a direction to the Excise Commissioner to refund the vend fee actually paid by the appellants for a period of three years prior to the institution of the writ petitions.
The appellants have licenses for the wholesale vend of denatured spirit.
It was contended that the State was providing no service to the trade of the denatured spirit and, therefore, the levy of fee is not justified.
The State, it was submitted, was not competent to authorise a levy of excise duty or tax as it was within the jurisdiction of the Parliament.
On behalf of the State it was contended that in law the State had exclusive privilege to deal with intoxicating liquor which included denatured spirit and the levy of a licence fee and vend fee constituted consideration for permitting the appellants to carry on wholesale trade of the denatured spirit.
The main point that was considered by the High Court was whether the imposition of vend fee on denatured spirit for grant of license for wholesale vend of denatured spirit is within the competence of State Government.
This Court in Nashirwar vs State of Madhya Pradesh and Har Shankar vs The Deputy Excise and Taxation Commissioner, held that the State has exclusive privilege to deal in intoxicating liquor and, therefore, the State can auction the right to vend by retail or wholesale foreign liquor.
It also found that intoxicating liquor included denatured spirit and the validity of the levy of the vend fee by the State cannot be questioned.
Following this view the High Court dismissed the Writ Petitions.
Against the decision, the appeals have been preferred by special leave.
A batch of Writ Petitions have been filed in this Court under article 32 of the Constitution of India challenging the validity of the levy of vend fee.
Apart from the grounds taken in the Civil Appeals, the Constitutional validity of U.P. Excise (Amendment) Act 5 of 1976 has been challenged as unconstitutional and beyond the legislative competence of the State.
It is further pleaded that the provisions of the 535 Industries (Development and Regulation) Act, 1951 has taken control of fermentation industry and as such a right to legislate by the State with regard to denatured spirit and industrial alcohol is beyond the competence of the State Legislature.
U.P. Excise Act was enacted in the year 1910.
It empowers the State to prohibit the import and export, transport manufacture sale and possession of liquor and all intoxicating drugs in the United Provinces.
The vend fee was first imposed by the Government of U.P. on 18 3 1937 on denatured spirit.
In 1972 the State Legislature enacted the U.P. Excise Amendment Act 13 of 1972.
By a notification dt. 3 11 72 the Government was authorised to sell by auction the right of retail or wholesale vend of foreign liquor.
New Rules were framed, the effect of which was that a vend fee of Rs. 1.10 p. per bulk litre was imposed payable in advance on denatured spirit issued for industrial purposes.
The legality of the levy was challenged in the High Court of Allahabad and a Bench of that Court on 24th March, 1973 held the notification was ultra vires.
After the decision of the Allahabad High Court holding that the levy was illegal, this Court in two decisions Nashirwar vs State of Madhya Pradesh (supra) and Har Shankar vs The Deputy Excise and Taxation Commissioner, (supra) held that the State under its regulatory powers can prohibit every form of activity in relation to intoxicants, its manufacture, storage, export, import and sale.
The State 's power to auction the right to vend by retail or wholesale foreign liquor was upheld.
Relying on the two decisions of this Court, the U.P. State Legislature repealed and re enacted the U.P. Excise (Amendment) Act No. 30 of 1972 by the U.P. Excise (Amendment) (Re enactment and Validation) Act, 1976.
The validity of the amendment Act 1976 was again challenged in the Allahabad High Court in V. P. Anand and Sons vs State of U.P. A Full Bench of the Court held that the State has exclusive privilege of auctioning the right of wholesale or retail vend of intoxicating liquor and upheld the validity of the Act.
Mr. Nariman learned counsel raised several contentions.
The first main contention of the learned counsel was that the levy of vend fee (under rule 17 para 680 of the Excise Manual page 200 201) on the denatured spirit is without legislative competence as it does not fall within Entry 8 of List II of the Seventh Schedule.
Even if it is held that the exclusive right of the State to grant privilege for the manufacture and sale of intoxicating liquor, it was submitted that the right did 536 not extend to denatured spirit used for industrial purposes as it is confined only to potable liquor.
The second important contention raised by the learned counsel was that after the enactment of Industries (Development and Regulation) Act, 1951 under Entry 52 of List 1 by Parliament, the Union had taken under its control in public interest the industries including the fermentation of industrial alcohol and as such the Central Government alone is empowered to provide for regulating by licence/permit or otherwise the distribution, transport, disposal, acquisition, possession, use or consumption of any article relatable to a schedule industry as for example denatured spirit or industrial alcohol.
In State of Bombay and Anr.
vs F. N. Balsara & Ors.
the Constitutional validity of the Bombay Prohibition Act (XXV of 1949) in so far as it restricted the possession and sale of foreign liquor was impugned on the ground that it was an encroachment on the field assigned to the Dominion Legislature under Entry 19 of List I. Under Entry 31, List II to the Seventh Schedule of the Government of India Act, 1935, the Provincial Legislature had the power to make laws in respect of intoxicating liquor that is to say the production, manufacture, possession, transport, purchase and sale of intoxicating liquors.
The corresponding entry in the Constitution of India is List II Entry 8 which is in identical terms.
The plea that was taken was that List I, Entry 19 conferred the power on the Dominion Legislature to make laws with respect to import, export across customs frontiers and as such the State Law restricting possession and sale of foreign liquor encroached upon the field of Dominion Legislature.
This Court held that the words 'possession and sale ' occurring in Entry 31 List II must be read without any qualification.
In considering the meaning of the words 'intoxicating liquor ' set out in entry 31 of List II, Gwyer C.J., in Bhola Prasad vs The King Emperor, stated as follows: "A power to legislate with respect to intoxicating liquors could not well be expressed in wider terms." Again the Learned Chief Justice observed: "It is difficult to conceive of legislation with respect to intoxicating liquors and narcotic drugs which did not deal in some way or other with their production, manufacture, possession, transport, purchase or sale; and these words seem apt to cover the whole field of possible legislation on the subject.
" 537 The above observations were affirmed by this Court in Balsara 's case (supra).
Dealing with the meaning of word 'liquor ', the Court referred to the various Abkari cases in several provinces and found that all the Provincial Acts of this country have consistently included liquor containing alcohol in the definition of 'liquor ' and 'intoxicating liquor ' and, therefore, the framers of the Government of India Act, 1935, could not have been entirely ignorant of the accepted sense in which the word 'liquor ' has been used in the various excise Acts of this country and concluded that the word 'liquor ' covers not only those alcoholic liquids which are generally used for beverage purposes and produce intoxication, but also all liquids containing alcohol.
By adopting another method of approach, the Court observed that the object of the Prohibition Act was not merely to levy excise duties but also to prohibit the use, consumption, possession and sale of intoxicating liquor and to enforce the prohibition effectively, the wider definition of the word 'liquor ' would have to be adopted so as to include all alcoholic liquids which may be used as substitution of intoxicating drinks to the detriment of the health.
In Nashirwar vs The State of Madhya Pradesh (supra), Chief Justice Ray held that the State Legislature is authorised to make a provision for public auction by reason of power contained in Entry B of List II of the Constitution.
The decision negatived the concept of inherent right of citizen to do business in liquor.
This Court gave three principal reasons to hold that there is no fundamental right of citizen to carry on trade or to do business in liquor.
First, there is the police power of the State to enforce public morality to prohibit trades in noxious or dangerous goods.
Second, there is power of the State to enforce an absolute prohibition of manufacture or sale of intoxicating liquor.
Article 47 states that the State shall endeavour to bring about prohibition of the consumption except for medicinal purpose of intoxicating drinks and of drugs which are injurious to health.
Third, the history of excise laws shows that the State has the exclusive right or privilege of manufacture or sale of liquor.
After pointing out the three principal reasons, the Court followed the decision in State of Bombay and Anr.
vs F. N. Balsara holding that absolute prohibition of manufacture or sale of liquor is permissible and the only exception can be for medicinal preparations.
In the context it is clear that the decisions proceeded on the basis that the word 'intoxicating liquor ' is not confined to potable liquor alone but would include all liquor which contain alcohol.
Mr. Nariman, the learned counsel, submitted that the two cases Balsara 's case (supra) and the Nashirwar 's case (supra) cannot be 538 read as to include alcohol manufactured for the purpose of industries such as industrial alcohol.
It was submitted that in both the cases the Court was concerned only with legislation relating to prohibition and the decisions should be restricted to liquor which may contain alcohol which is likely to be misused as potable liquor.
In support of his contention, the learned counsel referred to two decisions A. Nageshwara Rao vs State of Madras and Malitlal Chandra vs Emperor and submitted that if the State can exercise any control over intoxicating liquor, it can only be restricted for the purpose of preventing subversion of its use for defeating the prohibition policy.
We are unable to accept this contention for in Balsara 's case after explicitly approving of the definition of word 'liquor ' in various Abkari Acts in the Provinces of India, the Court held that liquor would not only cover alcoholic liquor which is generally used for beverage purposes and produce intoxication but would also include liquids containing alcohol.
We will now briefly refer to the decisions of the Supreme Court which the learned counsel submitted were confined only to potable liquor.
Cooverjee B. Bharucha vs The Excise Commissioner and Chief Commissioner, Ajmer & Anr.
related to an auction sale of liquor shop under the Excise Regulation Act, 1915.
In Bharucha 's case it was held that licence may be restricted, that the restriction must be in regard to the sale of liquor and that there may be absolute prohibition of the sale of liquor.
The Court also took into account the public expediency and public morality and police power of State to regulate business and mitigate evils.
In M/s. Guruswamy & Co. etc.
vs State of Mysore & Ors.
the auction related to exclusive privilege of selling toddy from certain shops.
The Court held that the auction enabled the licensee to sell the toddy and the licensee paid what he considered to be the equivalent value of the right.
State of Orissa & Ors.
vs Harinarayan Jaiswal & Ors.
related to sale by public auction of the exclusive privilege of selling country liquor in retail shops.
Amar Chandra Chakraborty vs Collector of Excise, Government of Tripura and Ors, also related to the cancellation of the licence by the Excise Collector 539 to establish warehouse for the storage in bond and wholesale vend of country spirit by import and for supply to the excise vendors in the territory of Tripura.
The next case that was referred to by the learned counsel was Har Shankar & Ors.
vs The Dy.
Excise & Taxation Commissioner & Ors.
Chandrachud, J. as he then was, speaking for the Court stated: "In our opinion the true position governing dealings in intoxicants is as stated and reflected in the Constitution Bench decision of this Court in the state of Bombay and Anr.
vs F. N. Balsara [1951] SCR. 682, Cooverjee B. Bharucha vs The Excise Commissioner and the Chief Commissioner, Ajmer and Ors. [1954] SCR. 875, State of Assam vs A. M. Kidwai, Commissioner of Hills Division and Appeals, Shillong [1957] SCR. 295, Nagendra Nath Bora and Anr.
vs The Commissioner of Hills Division and Appeals, Assam and Ors. [1958] SCR. 1240, Amar Chandra Chakraborty vs Collector of Excise, Government of Tripura & Ors. [1973] 1 S.C.R. 633 and State of Bombay vs R.M.D. Chamarbaugwala [1957] SCR. 874 as interpreted in State of Orissa and Ors.
vs Harinarayan Jaiswal and Ors [1972] 3 SCR. 784 and Nashirwar Etc.
vs State of Madhya Pradesh and Ors.
Civil Appeals Nos. 1711 1721 and 1723 of 1974 decided on November 27, 1974.
There is no fundamental right to do trade or business in intoxicants.
The State under its regulatory powers, has the right to prohibit absolutely every form of activity in relation to intoxicants its manufacture, storage, export, import, sale and possession".
Though most of the cases dealt with the right of the State Government as regard auction of country liquor, in Balsara 's case, Nashirwar 's case and Har Shankar 's case, the Court was concerned with the right of the State Government over foreign liquor.
After considering all the decisions of five Constitutional Benches, Chandrachud, J. as he then was summed up the position at page 274 as follows: "These unanimous decisions of five Constitutional Benches uniformly emphasised after a careful consideration of the problem involved that the State has the power to prohibit trades which are injurious to the health and welfare of the public is inherent in the nature of liquor business, 540 that no person has an absolute right to deal in liquor and that all forms of dealings in liquor have, from their inherent nature, been treated as a class by themselves by all civilised communities." Har Shankar 's case related to licensing of retail sale of foreign liquor for consumption on the premises of the licensees.
The grant of license for sale of country spirit, foreign liquor, beer were subject to the provisions of the Punjab Act 1 of 1914.
The demand by the Government for payment of large sums of money from hoteliers or barkeepers who supply foreign liquor for consumption were challenged as arbitrary, without authority and illegal.
The provisions in the Act which provided for a levy on retail vend of foreign liquor was held to be valid.
The decisions referred to above make it clear that the power to legislate under List II Entry 8 relating to intoxicating Liquor comprises of liquor which contains alcohol whether it is potable or not.
The plea of the State is that the levy is for parting with the exclusive right of the State with regard to intoxicating liquor and the levy was for the purpose of conferring a right on the licensees.
That the State has the exclusive right of manufacture or sale of intoxicating liquor which includes liquor containing alcohol has been recognised.
The second most important contention raised by Mr. Nariman is that after passing of the Industries (Development and Regulation) Act, 1951, the claim by the State to monopoly with regard to production and manufacture and the sale of the denatured spirit or industrial alcohol is unsustainable.
In order to appreciate this contention it is necessary to refer to the relevant entries in Lists I and II of the Seventh Schedule of the Constitution.
List I Entry 52 runs as follows: "Industries, the control of which by the Union is declared by Parliament by law to be expedient in the public interest".
In List II the entry relating to industries is Entry 24 which is as follows: "Industries subject to the provisions of (entries 7 and 52 of List 1)".
Entry 7 in List I relates to industries to be declared by Parliament by law to be necessary for the purpose of defence or for the prosecution of war.
In this case we are not concerned with Entry 7.
A reading of Entry 52 in List I and Entry 24 in List II makes it clear 541 that the Parliament will have exclusive jurisdiction to legislate regarding industries, the control of which by the Union is declared by Parliament by law to be expedient in the public interest.
Connected with these two entries is entry 33 in List III Concurrent List which provides: "Trade and commerce in, and the production, supply and distribution of (a) the products of any industry where the control or such industry by the Union is declared by Parliament by law to be expedient in the public interest, and imported goods of the same kind as such products: (b) x x x (c) x x x (d) x x x (e) x x x" The subject of trade and commerce in, and the production supply and distribution of the products of any industry which has been declared by Parliament under Item 1 Entry 52 is in the Concurrent List on which both Parliament and State can legislate.
The Industries (Development and Regulation) Act, 1951 was enacted by Parliament to provide for development and regulation of certain industries.
Section 2 declares that it is expedient in the public interest that the Union shall take in its control industries specified in First Schedule.
Item 26 in the First Schedule is fermentation industries (i) Alcohol (ii) other products and fermentation industries.
Chapter II of the Act provides for establishment of Central Advisory Council and Development Council.
Chapter III deals with regulation of scheduled industries.
Section 10 requires registration of existing industrial undertakings.
Section 11 deals with the licensing of new industrial undertakings.
Section 12 deals with revocation and amendment of licenses in certain cases.
Section 14 deals with the procedure for the grant of license or permission.
Section 15 confers power of investigation to be made into scheduled industries and industrial undertakings.
Section 18(b) confers power on the Central Government to control, supply, distribution, price, etc.
of certain articles.
As considerable reliance was placed on Section 18(G) for the contention that the Central Government has the exclusive power with regard to notified industries to control supply distribution, fixation of price etc.
it is necessary to set out the material part of the Section in full.
Section 18 (G) (1) runs as follows: "The Central Government, so far as it appears to it to be necessary or expedient for securing the equitable distri 542 bution and availability at fair prices of any article or class of articles relatable to any scheduled industry, may, notwithstanding anything contained in any other provision of this Act, by notified order, provide for regulating the supply and distribution thereof and trade and commerce therein.
" Sub section 2 of Section 18(G) confers certain powers without prejudice to the generality of the powers conferred by sub section (1) by a notified order to provide for matters enumerated in it (a) to (h) of the sub section.
These powers include amongst others the right to control the price.
The powers conferred under section 18(G)(1) is exercisable by the Central Government in so far as it considers it to be necessary or expedient.
The plea of the learned counsel is that the notification made by the Central Government excludes the power of the State Government to fix the price of denatured spirit and rectified spirit as it has been placed beyond the powers of the State to regulate the distribution of licences, permits etc.
The notification that is relied on is the Ethyl Alcohol (Price Control) Amendment Order, 1975 dated 31st October, 1975.
The order reads as follows: "In exercise of the powers conferred by section 18(G) of the Industries (Development and Regulation) Act, 1951 (65 of 1951), the Central Government hereby makes the following order further to amend the Ethyl Alcohol (Price Control) order, 1971 namely: 1.
(1) This order may be called the Ethyl Alcohol (Price Control) Amendment order, 1975.
(2) It shall come into force on the date of its publication in the official gazette.
In the Ethyl Alcohol (Price Control) order, 1971 (hereinafter referred to as the said order), in clause 2, for the Table the following Table shall be substituted, namely: ____________________________________________________________ (1) (2) ____________________________________________________________ 1 Absolute Alcohol Conforming to ISI Six hundred and Standard No. 321 1952.
, names for sixty eight equivalent volume at 100 per cent rupees and v/v strength; forty one paise per kilo litre.
2 Rectified spirit conforming to ISI Six hundred standard No. 323 1959 named for and twenty equivalent volume at 100 per cent two rupees v/v strength.
and twenty paise for kilo litre.
3 Rectified spirit conforming to ISI Five hundred standard No. 323 1959 named for and eighty nine 94.68 per cent v/v strength.
rupees and ten paise per kilo litre.
____________________________________________________________ 543 The table prescribes the price of various types of alcohol and rectified spirit.
The price of ethyl alcohol is fixed under the powers conferred on the Central Government under section 18(G) (1) for securing the equitable distribution and availability at fair price.
The Ethyl Alcohol (Price Control) order, 1961 which was made by the Central Government in exercise of the powers conferred on it under section 18(G) of the Industries (Development and Regulation) Act, 1951 fixed the maximum ex distillery price for industrial alcohol and rectified spirit under cl. 1 and 2 of the Order.
3 permitted certain additional charges in certain cases of alcohol supplied after denaturation with general or special denaturants, the cost of such denaturation being allowed to be charged.
Ethyl Alcohol (Price Control) order, 1964 while fixing the maximum ex distillery price of ethyl alcohol under cl. 3 permitted additional charges to be levied in certain cases such as for covering costs incurred for transport of molasses to the distillery and any octroi duty paid or payable on molasses and when alcohol is supplied after denaturation, to include actual cost of such denaturants plus some octroi charges as specified in the clauses.
3(a) empowered the Excise Commissioner of the State to determine the additional charges leviable under cl. 3 in case of any doubt or distillery price of ethyl alcohol provided for fixation of the price after taking into account various factors enumerated in cl.
2(2) (a to h).
Reading various Ethyl Alcohol (Price Control) orders passed by the Government from time to time, it is clear that the order permitted the adding of the expenses incurred for transportation, payment of octroi duty etc.
to the price fixed.
We are unable to read the Ethyl Alcohol (Price Control) orders as explicitly or impliedly taking away the power of the State to regulate the distribution of intoxicating liquor by collecting a levy for parting with its exclusive rights.
If the powers of Parliament and the State Legislature were confined to entry 52 in List I and entry 24 in List II, Parliament would have had exclusive power to legislate in respect of industries notified by Parliament.
The power of the State under Entry 24, List II is subject to the provisions of Entry 52 in List I.
But we have to take into account Entry 26 in List II and Entry 33 in List III for determining the scope of legislative power of the Parliament and the State.
Entry 26 in List II is as follows: "Trade and Commerce within the State subject to the provisions of entry 33 of List III.
" Under Entry 33 List III the Parliament and the State have concurrent powers to legislate regarding the production, supply and 544 distribution of the products of industries notified by the Parliament.
Furthermore it has to be noted that the exclusive power of the State to provide for manufacture, distribution, sale and possession etc.
of intoxicating liquor is vested with the State.
The power of the State Government to levy a fee for parting with its exclusive right regarding intoxicating liquor has also been recognised as is seen from the various State Acts regulating manufacture, sale.
of intoxicating liquor.
A fair scrutiny of the relevant entries makes it clear that the power to regulate the notified industries is not exclusively within the jurisdiction of Parliament as List II Entry 33 in the concurrent list enables a law to be made regarding production, supply, distribution of products of a notified industry.
In Ch.
Tika Ramji and ors.
vs The State of Uttar Pradesh and Ors.
a question arose whether Sugarcane regulation, supply and purchase Act passed by the State Legislature and the notification issued therein by the State Government were repugnant to the notifications made under the Industries (Development and Regulation) Act of 1951.
Two notifications were issued by the State Government under the U.P. Sugarcane Regulations, supply and purchase Act 1953 prohibiting the occupier of the factory to which area is assigned from entering into an agreement to purchase cane except through a cane growers Cooperative Society under certain circumstances and assigning different sugarcane factories specified to certain purchase centre for supply to them sugarcane for the crushing season were challenged as ultravires.
The plea was that the subject matter of the legislation fell within the exclusive jurisdiction of Parliament and the impugned notifications were repugnant to the notifications made under the Industries (Development and Regulation) Act, 1951.
On 31st October, 1951, Parliament enacted the Industries (Development and Regulation) Act, 1951 to provide for development and regulation of certain industries.
By section 2 of the Act it was declared that it was expedient in public interest that the Union should take in its control the industries specified in the First Schedule which included in Item 8 thereof, the industries engaged in the manufacture or production of sugarcane.
Industries (Development and Regulation) Act, 1951 was amended by Act 26 of 1953 by adding Chapter IIIA entrusting Central Government with power so far as it appears necessary or expedient for securing the equitable distribution and availability at fair price of any article relatable to scheduled industry to provide by notified order for regulation, supply and distribution and trade and commerce thereof.
The impugned notification which required the factories to purchase 545 their sugarcane from the cooperative societies and assigned certain areas as cane purchasing centre for the factories was stated to be ultra vires as they were beyond the State 's competence and covered by the notification under the Industries (Development and Regulation) Act.
Justice Bhagwati observed at page 411: "When, however, it came to the products of the controlled industries comprised in Entry 52 of List I, trade and commerce in, and production, supply and distribution of, these goods became the subject matter of Entry 33 of List III and both Parliament and the State Legislatures had jurisdiction to legislate in regard thereto.
" The learned Judge proceeded to observe: "That sugarcane being goods which fell directly under entry 27 of List II was within the exclusive jurisdiction of the State Legislature and it was competent to legislate with regard to it and as such the impugned Act was intra vires of the state Legislature.
The power to legislate regarding production, supply and distribution of goods is subject to provisions entry 33 List III which deals with products and industries notified by Parliament.
Entry 33 being in the concurrent List, legislative power of the State regarding production, supply and distribution of goods cannot be denied.
" The Court on the facts of the case found that even assuming that sugarcane was an article or class of articles relating to the notified industries within the meaning of Section 18(G) of Act 65 of 1951, no order was issued by the Central Government in exercise of its powers vested in it and, therefore, no question of repugnancy arose.
In the case before us it cannot be discerned from the Ethyl Alcohol Control order that the power of the State Government to prescribe a levy for parting with its exclusive rights relating to intoxicating liquor had been taken away.
In Baijnath Kedvai vs State of Bihar & Ors.
a question arose as to whether the Bihar Legislature had jurisdiction to enact the second proviso to section 10(2) of the Bihar Land Reforms Act, 1950 by which the terms and conditions of the lease of mines and minerals could be substituted for the terms and conditions laid down in the Bihar Mines and Minerals Concession Rules.
On the strength of the amended section 10(2) of the Reforms Act and amended Rules 20 the Bihar Government demanded from the appellant rent contrary to 546 the terms of his lease.
It was held that Entry 54 in Union List speaks of requirements of mines and minerals development and Entry 23 in List II is subject to entry 54.
Once a declaration was made under entry 54 specifying the extent of vesting the competency was only with Parliament.
The attempt of the learned counsel to trace the power to enact the second proviso to section 10 of the Act to Entry 18 of List II was rejected.
The plea of the learned counsel was that the modification of the existing lease was a separate topic and not covered by section 15 of Act 67 of 1957.
The Court rejected the plea on the ground that the entire legislative field in relation to mines and minerals had been withdrawn from the State Legislature.
The decision does not help the appellants for on the facts it is clear that the entire field relating to mines and minerals had been occupied and taken away from the Legislature and as such it was beyond the competence of the State to legislate on mines and minerals.
In the case before us the position is different because the power of the State Legislature to legislate in respect of the intoxicating liquor and its exclusive right regarding intoxicating liquor cannot be questioned.
The third contention of Mr. Nariman, is that the vend fee levied by the State is not and was never treated by the State as charge or rental as the consideration for granting exclusive privilege.
On the other hand the levy is excise duty or a fee which the State is not entitled to collect.
The submission of the learned counsel was that even though it is found that the State is entitled to make laws regarding intoxicating liquor under List II, Entry 8, it has no power to impose any tax.
The power to tax by the State is confined only to Entry 51, List II which empowers the State to levy duty on alcoholic liquors for human consumption and as denatured spirit is not alcoholic liquor for human consumption, a levy of excise duty is not permissible by the State.
It was contended that the levy of a fee was also not permissible unless it had some relation to the expenses incurred for that purpose.
According to the Solicitor General, Mr. Kakkar, the levy was not a tax or a fee but a levy for parting with the exclusive right of the State in respect of intoxicating liquor.
In view of the stand taken by the State, it is unnecessary for us to go into the question as to whether the levy is a tax or a fee.
For dealing with the contention of Mr. Nariman that the levy was never collected in lieu of the State parting with its rights, it is necessary to refer to the relevant provisions of the Act.
The United Provinces Excise Act, 1910 (Act 4 of 1910) was passed in 1910.
Subsequently, it was adapted and modified by the Government of India (Adaptation 547 of Indian Laws) order, 1927 and Adaptation of Laws order, 1950 Chapter IV of the Act deals with manufacture, possession and sale while Chapter V deals with duties and fees.
The Act refers to Excise Revenue, Duty, fee, tax, fine and payment as condition for the grant of licence for any exclusive privilege.
section 3(1) defines Excise Revenue as meaning revenue derived or derivable from any duty, fee, tax, fine or confiscation imposed or ordered under the Provisions of the Act or of any law in force relating to alcohol or intoxicating drug.
Excise Duty, and Countervailing duty is defined under section 3 and 3(a) as meaning such excise duty or countervailing duty, as the case may be, as mentioned in entry 51 of List II of the Seventh Schedule of the Constitution.
Chapter II relates to establishment and control of the Excise Department.
Chapter III prohibits import of intoxicants.
Intoxicant means any liquor which in turn includes any liquids containing alcohol.
section 12 prohibits import unless permission is obtained and conditions imposed by the State Government are satisfied and any duty imposed under section 28 is paid.
section 28 refers to duties and fee and provides that an excise duty or countervailing duty, as the case may be, directed by the State Government may be imposed on any exciseable article.
Under this section, a duty on import, export, transport, manufacture is levied in accordance with the provisions of section 12(1), 13, 17 and 18.
The stand taken by the State before us is that the levy which is being collected, is not in the nature of an excise duty or counter veiling duty.
Though a duty under section 28, Proviso II on denatured spirit was levied after Proviso II to section 28 was omitted by the Government (Adaptation of Indian Law) order, 1937, no excise duty on denatured spirit was levied.
Apart from the duty that is leviable, the Excise Commissioner is empowered under section 30 instead of or in addition to any duty to accept payment of a sum in consideration of the grant of licence of any exclusive privilege under section 24.
Section 24 provides that subject to the provisions of section 31, the Excise Commissioner may grant any person a licence for exclusive privilege of manufacturing or supplying or selling wholesale or retail, any country liquor or intoxicating drug within any local area.
Reading section 30 and 24 together, it is clear that the Excise Commissioner may accept payment in consideration for the grant of the licence for any exclusive privilege.
The exclusive privilege under section 24 was confined only to country liquor within a local area.
Before examining the impact of amended section 24A by U.P. Act 30 of 1972, it may be mentioned that Chapter VI empowers the collection of fees for licence or permits granted under the Act.
A licence fee was only collected under notification dated 22 5 1930 for licence for wholesale vend of denatured spirit.
The Excise Department on 23 1 1937 548 introduced rule 17(2) under section 40(2)(d) imposing vend fee of Annas 7 per bulk gallon for the issue from the distillery.
This fee was not collected regarding denatured spirit issued to industries engaged in the manufacture of synthetic rubber.
By notification dated 3rd November, 1972 the U.P. Government amended the Excise Rules and substituted rule 17(2).
The rule is purported to have been issued under section 40(2) (d) in exercise of the powers conferred on the Government under section 40(1).
By the notification on the issue of denatured spirit from a distillery a vend fee of Rs. 1.10p.
per litre was made payable in advance except regarding the issue to institutions exempted under the rule.
The Learned Counsel strenuously contended that this levy does not purport to be in consideration of the grant of licence for any exclusive privilege.
On the other hand, the learned Counsel pointed out that section 40(2)(d) refers to the rule making power of the Government for regulating the import, export, transport or possession of the intoxicants.
The power, if any, is conferred on the Excise Commissioner under section 41 enabling him to make rules prescribing the scale of fees in respect of licence, permits or pass or storing any intoxicants.
In 1972 U.P. Act 30/1972 added section 24A which provides that subject to provisions of section 31, the Excise Commissioner may grant to any person a licence or licences for the exclusive privilege of selling by retail at shops (for consumption both on and off the licensed premises, or for consumption off the licensed premises only) any foreign liquor in any locality.
After the introduction of section 24A, the Excise Commissioner is empowered to grant any person a licence for the exclusive privilege of selling foreign liquor.
Before the amendment, section 24 was restricted to country liquor or intoxicating drug.
By the amended Sec.
24A the Excise Commissioner may accept payment of a sum in consideration for the grant of the licence for any exclusive privilege for selling foreign liquor.
section 31 to which section 24A is subject, relates to grant of licences and it does not in any way restrict the power thus conferred by section 24A.
The plea put forward by the learned counsel is that the word 'foreign liquor ' cannot be understood as including denatured spirit as the Section would itself indicate that the licence is for selling for consumption which would indicate that foreign liquor is meant for human consumption.
We are unable to give the words 'foreign liquor ' such a restricted meaning for the word consumption cannot be confined to consumption of beverage alone.
When liquor is put to any use such as manufacture of other articles, the liquor is all the same consumed.
Further, section 4(2) provides that the State may declare what shall be deemed to be country liquor or foreign liquor.
The State had under 549 rule 12 issued notification dated 30th December, 1960 defining foreign liquor as meaning all rectified, perfumed, medicated and denatured spirit, wherever made.
The plea that the Excise Commissioner had no right to accept payment in consideration for the grant of the licence for the exclusive privilege for selling wholesale or retail foreign liquor which includes denatured spirit, cannot, therefore be accepted.
Rule 17(2) no doubt purports to have been issued under the rule making powers conferred on the Government under section 40(2)(d) which enables the Government to make rules for regulating the import, export, transport for possession of any intoxicants.
It may be noted that when the amended rule 17(2) was introduced on 3 11 1972, section 24A had been amended by U.P. Act, 30/1972 and the power of the Excise Commissioner to accept payment for grant of licence for exclusive privilege cannot be denied.
The validity of Act 30/1972 which authorised the Excise Commissioner to collect a vend fee for the retail or wholesale vend of foreign liquor was challenged.
The Allahabad High Court upheld the challenge holding that the State did not have the exclusive privilege to collect the vend fee.
This view was not accepted by the Supreme Court in Nashirwar 's case (supra) and Harishankar 's case (supra) which held that under the regulatory power, the State had power to auction the right to vend by retail or wholesale foreign liquor.
As Act 30 of 1972 was struck down by the Allahabad High Court the State came forward to validate Act 30 of 1972 as it stood when it was passed by introducing the U.P. Excise (Amendment) (Reenactment and Validation) Act, 1976 (U.P. Act 5 of 1976).
The preamble refers to the passing of U.P. Amendment Act, it being struck down by the Allahabad High Court and the subsequent decision of the Supreme Court in Nashirwar 's case, and states that it had become necessary to enact the (Amendment) (Re enactment and Validation) Act.
In the main Act, after section 1, sub section
(2) was introduced providing that it shall be deemed to have been in force ever since the commencement of the United Provinces Excise Act, 1910.
After section 24 of the principal Act, section 24A was introduced.
section 24A(1) re enacts section 24A(1) added by U.P. Act 30 of 1972.
section 24B was introduced for removal of doubts which declared (1) that the State Government has exclusive privilege for manufacture and sale of country and foreign liquor; (2) that the amount described as licence fee in cl.
(c) of section 41 is in its essence rental or consideration for the grant of such right or privilege by the State Government and (3) that the Excise Commissioner as the head of the Excise Department of the State shall be deemed while determining or realising such fee, to act for and on 550 behalf of the State Government.
section 30 was substituted which specifically mentioned that the Excise Commissioner may accept payment of a sum in consideration of the grant of privilege for any exclusive or other privilege under section 24A. section 24A was not specifically mentioned in section 30 as it stood before the re enactment.
After the introduction of section 24A, the Excise Commissioner had a right to grant the privilege of selling of foreign liquor.
The fact that section 30 did not specifically mention section 24A might not have made any difference.
But in order to remove all doubts, the new Section 30 had been introduced.
section 41, cl.
(3) was re enacted to enable the fixation of fee payable for the grant of exclusive or other privilege under section 24 and 24A. section 40 was also amended so as to give retrospective effect.
section 4 of the Act 5 of 1976 also provides that the U.P. Excise (Amendment) Act, 1972 shall be deemed to be and always to have been as valid as if the provisions of this Act were in force at all material times.
In short the purpose of introduction of Act 5 of 1976 was to make it clear that U.P. Excise (Amendment) Act, 1972 shall be deemed to and always to have been valid.
In view of our findings that U.P. Excise (Amendment) Act, 1972 was valid, the effect of U.P. Act 5 of 1976 is to remove all doubts and to give retrospective effect.
It was next contended that foreign liquor which is defined under rule 12, as including denatured spirit, cannot apply to specially denatured spirit.
Foreign liquor was defined as including specially denatured spirit.
By a notification the Excise Commissioner of U.P. on 3 5 1976 framed U.P. Licences for the possession of denatured spirit and specially denatured spirit Rules, 1976.
In the preamble to the rules, it is stated that the Excise Commissioner with the previous sanction of the State Government was making the rules relating to licence for possession of denatured spirit including specially denatured spirit for industrial purposes.
Rule 1 (iii) provides that specially denatured spirit means rendered unfit for human consumption in such manner as may be prescribed by the Excise Commissioner by notification in this behalf and does not include ordinary denatured spirit for general use.
Rule 2 provides that licences for the possession of the denatured spirit including specially denatured spirit for industrial purpose shall be of three kinds.
The learned counsel contended that though foreign liquor is defined as including denatured spirit, it cannot be held to include specially denatured spirit.
Denatured spirit mentioned in the rules is treated as including specially denatured spirit for industrial purpose.
Denatured spirit has ethyl alcohol as one of its constituents.
The specially denatured spirit for industrial purpose is different from denatured spirit only because of the difference in the 551 quantity and quality of the denaturants.
Specially denatured spirit and ordinary denatured spirit are classified according to their use and denaturants used.
We are unable to accept the contention of the learned counsel that specially denatured spirit for industrial purpose is different from the ordinary denatured spirit.
The definition of alcohol under rule 12 includes both ordinary as well as specially denatured spirit.
It was next contended that if the levy of Re. 1.10p per bulk gallon of denatured spirit as vend fee, is upheld it would result in violating the appellants/petitioners fundamental right to carry on their trade and business under article 19(1)(g) of the Constitution.
According to the learned counsel, the price fixed per gallon of ethyl alcohol under the Ethyl Alcohol (Price Control) order is 59 paise, per gallon.
If the levy is not considered as a tax and could not be passed on to the consumer as price fixed under the Ethyl Alcohol Amendment order, is only 59 p., it would be confiscatory in nature.
It is seen that the right of the State Government to accept payment of a sum for the grant of its exclusive privilege cannot be questioned.
The price fixed for ethyl alcohol is ex distillery price and we see no impediment for the addition of Re. 1.10 as vend fee by the State Government Dr. L. N. Singhvi, who appeared as intervener in Civil Appeal Nos.
2191 to 2198 of 1978 for the appellants and for petitioners in Special Leave Petitions Nos. 125 to 126/79 while adopting the contentions of Mr. Nariman submitted that the stand taken by the U.P. Government in earlier proceedings in the High Court was that the levy was in the nature of Excise Duty or a fee while the present stand is that it is neither a duty nor fee but only a levy for the conferment of the exclusive privilege.
It is true that the stand taken by the Government in the earlier proceedings was different but that would not make any difference so long as the Government had a right to impose the levy.
It has been found that after the addition of section 24A by Act 30 of 1972, the Commissioner was entitled to accept payment for conferring the privilege which the State owned exclusively.
The learned counsel submitted that so far as his clients M/s. Rallis Chemicals, Kanpur and M/s. Rallis India, petitioners in Special Leave Petitions Nos. 125 to 126 of 1979 are concerned they are only holders of licences for possession and are not licencees under F.L. 16.
In the same class fall the appellants in Civil Appeal No. 2248 of 1978, M/s. Synthetic and Chemicals who are only purchasers of denatured spirit.
It was submitted that for this class of persons if the vend fee is 552 for the grant of exclusive privilege of the State for sale of liquor, it cannot be recovered from the purchasers.
Rule 17(1) relates to vend of denatured spirit.
It empowers the Collector (1) to grant to a distiller a licence for manufacture of denatured spirit (2) to grant to approved dealers of denatured spirit a licence in form F.L. 16 for the wholesale vend of denatured spirit.
Scale of fee is given in the rule which prescribes that for sales not exceeding 10,000 litres per annum a fee will be of Rs. 100/ and for sales exceeding 10,000 litres, the fee shall be increased by Rs. 500/ for every 5000 litres or fraction thereof.
Subrule (2) provides that in case of issue from a distillery, a vend fee of rupee one and ten paise per bulk gallon will be payable before the spirit is issued.
The fee charged is very different from the one in Rule 17(1) which provides that the distillery or an approved dealer for wholesale vend of denatured spirit may be given a licence in Form F.L. 16.
The distiller and the approved dealer is to pay a licence fee for the sales at the rate prescribed.
But rule (2) speaks of levy of vend fee in case of issued from the distillery which is payable in advance before the spirit is issued.
It is admitted that the petitioners and the appellants who claim as purchasers do not have a licence under F.L. 16.
Therefore, sub section
(1) has no application.
The levy on persons who are purchasers is for the possession of denatured spirit in excess of the prescribed limit.
The permission granted in their favour and the allotment orders of the specially denatured spirit prescribes the terms and conditions under which the allotment is made.
The licences are granted to them under form F.L. 39 and they have to abide by those conditions.
The notification of the Excise Commissioner of U.P. dated 3 5 1976 provides that the licence for the possession of denatured spirit including the specially denatured spirit of industrial purpose shall be of three kinds.
We are concerned with the licences for the possession for use in industries in which alcohol is destroyed or converted chemically in the process into other products and the product does not contain alcohol such as, Ethel, Styrene, Butadiene, Acetone and Polythene etc.
The licence granted for this purpose is in form F.L. 39.
Rule 3(a) provides that the fee for the licence in Form F.L. 39 shall be at a rate prescribed for industry to industry by the Excise Commissioner per litre, payable on the quantity of specially denatured spirit obtained from any distillery in Uttar Pradesh and that fee shall be realised by the Excise Inspector incharge Distillery from the licensee before issue of the specially denatured spirit from the distillery.
The conditions relating to grant of a licence for issue of denatured spirit for industrial purpose are laid down in rule 4.
Special conditions regarding licence in form F.L. 39, 40 and 41 are prescribed in rule 5.
The appellants/petitioners having applied 553 for and obtained licences in form F.L. 39 are bound to comply with the conditions.
Lastly, it was contended that the provisions of Uttar Pradesh Excise (Amendment) (Re enactment and Validation) Act, 1976 is invalid and confiscatory as its retrospective operation imposes an unbearable burden on the appellants/petitioners.
It was stated that the licence under F.L. 39 was issued only in the year 1979 and no levy could be made regarding denatured spirit that was supplied before that date.
The answer of the State is that the levy was imposed for permission granted in their favour and allotment orders of denatured spirit issued to them from the various distilleries.
The parties after having paid the fee had taken possession of the denatured spirit from the distillery.
Act 5 of 1976 has been given retrospective effect as the levy imposed under Act 30 of 1972 was found to be illegal and unsustainable by the Allahabad High Court which was reversed by this Court by giving retrospective effect, the State has only restored the status quo enabling the collection of the levy validly made by Act 30 of 1972.
Reliance was placed on the decision of this Court in A. B. Abdul Kadir & ors etc.
vs State of Kerala for the contention that retrospective operation of an Act when it harshly operates is liable to be held as invalid.
At page 706 this Court observed that the power to make a valid law ' would enable providing for prospective and retrospective operation of the provisions.
It was observed that in judging the reasonableness of the retrospective operation of law, the test of length of time covered by the retrospective operation could not by itself be treated as decisive.
On the facts of the case there could be no complaint because what is sought to be collected is levy which was legally made.
The result is, all the contentions raised by the learned counsel for the appellants/petitioners fail and appeals and the petitions are dismissed with costs one set of hearing fee.
The State Appeal C.A. No. 1130/76 is allowed but there will be no order as to costs.
P.B.R. State appeals allowed.
[/INST]The respondents who were licensees for the whole sale vend of denatured spirit in their writ petitions before the High Court contended that levy of fees on denatured spirit was not justified because (i) the State was not providing any service to the trade and (ii) since it is the Parliament which has the power to levy excise duty or tax on denatured spirit, the State was incompetent to levy the fees.
Rejecting the contentions, the High Court held that the State had exclusive privilege to deal with any intoxicating liquor which included denatured spirit, that it had the right to vend liquor either in retail or wholesale and that therefore its power to levy fees cannot be questioned.
In appeal to this Court it was contended on behalf of the licensees that (1) levy of vend fee on denatured spirit by the State was without legislative competence (2) with the enactment of Industrial (Development and Regulation) Act, 1951 the Union had taken under its control industries including fermentation of industrial alcohol and, therefore, it is only the Union which could levy the fees on denatured spirit or industrial alcohol.
Allowing the State 's appeal, ^ HELD: The levy of vend fee is for parting with the exclusive right of the State with regard to intoxicating liquors and for conferring a right on the licensees to sell such liquors.
A conspectus of the decisions of this Court establishes (i) that there is no fundamental right of a citizen to carry on trade or to do business in liquor because under its police power, the State can enforce public morality, prohibit trade in noxious or dangerous goods (ii) the State has power to enforce an absolute prohibition on manufacture or sale of intoxicating liquors pursuant to Article 47 of the Constitution and (iii) the history of excise laws in the country shows that the State has the exclusive right or privilege to manufacture or sell liquors.
[549 F H] State of Bombay and Anr.
vs F. N. Balsara [1951] S.C.R. 682 referred to.
(iv) The terms "intoxicating liquor" is not confined to potable liquor alone but would include alliquors which contain alcohol.
[537 G] Nashirwar vs State of Madhya Pradesh [1975] 2 S.C.R. 861; Har Shankar vs The Deputy Excise and Taxation Commissioner ; ; State of Bombay and Anr.
vs F. N. Balsara & Ors. ; ; Bhola Prasad vs The King Emperor at p. 25 referred to.
(v) The term "liquor" used in Abkari Acts not only covers alcoholic liquor which is generally used for beverage purposes and which produces intoxication but would also include liquids containing alcohols.
[537 B C] 532 Cooverjee B. Bharucha vs The Excise Commissioner and Chief Commissioner, Ajmer & Anr. ; ; M/s. Guruswamy & Co. etc.
vs State of Mysore & Ors.
; State of Orissa & Ors.
vs Harinarayan Jaiswal & Ors.
; ; Amar Chandra Chakraborty vs Collector of Excise, Government of Tripura and Ors. ; ; Har Shankar & Ors.
vs The Dy.
Excise & Taxation Commissioner & Ors. ; referred to. 2(a) The power to regulate the notified industries is not exclusively within the jurisdiction of Parliament as Entry 33 in the Concurrent List enables a law to be made regarding production, supply and distribution of products of notified industries.
The exclusive power of the State to provide for manufacture, distribution, sale and possession of intoxicating liquors is vested in the State.
The power of the State Government to levy a fee for parting with its exclusive right regarding intoxicating liquors has been recognized as could be seen from the various State Acts regulating the manufacture, sale, etc.
of intoxicating liquors.
[544 C, A B] Ch.
Tika Ramji and Ors.
vs The State of Uttar Pradesh and Ors. ; ; Baijnath Kedai vs State of Bihar & Ors.
; distinguished.
(b) The term "foreign liquor" cannot be given a restricted meaning because the word consumption cannot be confined to consumption of beverages only.
When liquor is put to any use such as manufacture of other articles, the liquor is all the same consumed.
The State is empowered to declare what shall be deemed to be country liquor or foreign liquor.
"Foreign liquor" is defined as meaning all rectified, perfumed, medicated and denatured spirit wherever made.
Therefore, the plea that the Excise Commissioner had no right to accept payment in consideration for the grant of licence for the exclusive privilege for selling in wholesale or retail, foreign liquor which includes denatured spirit cannot be accepted.
[548 H, 549 A B] (c) The definition of "alcohol" includes both ordinary as well as specially denatured spirit.
The specially denatured spirit for industrial purposes is different from denatured spirit only because of the difference in the quantity and quality of the denaturants.
Specially denatured spirit and ordinary denatured spirit are classified according to their use and denaturants used.
Therefore, the contention that specially denatured spirit for industrial purposes is different from the ordinary denatured spirit has no force.
[551 B, 550 H 551 A]
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<s>[INST] Summarize the judgement(CRL.) No. 133 of 1991.
(Under Article 32 of the Constitution of India).
R.K. Jain, Ravi Prakash, Mrs. Swati Kapoor Ms. Abha R. Sharma and Ms. Rajni K. Prasad for the Petitioner.
464 Altaf Ahmed, Additional Solicitor General, Ms. Kusum Choudhary, C. Ramesh and Ms. A. Subhashini for the Respondents.
The Judgment of the Court was delivered by SHARMA, J.
On the basis of a letter received from a prisoner detained in Alipore Central Jail, Calcutta, drawing the attention of this Court to the long wait of Daya Singh, the petitioner convicted for the murder of late Chief Minister of Punjab Pratap Singh Kairon, lodged at present in Rohtak Jail Haryana, pending the execution of his death sentence, this case was registered as a writ petition and was listed before us on 27.3.1991.
All the relevant facts were not available from the letter but from the Office Report it appeared that the case of the condemned prisoner had earlier come to this Court.
We directed the Registry to examine the earlier files and place before us the relevant details.
In the meantime we stayed the execution of the death sentence.
The learned carousel for the State of Haryana was also informed about the case.
As directed, the case was placed before us again on Monday, the 1st April, 1991, when Ms. Kusum Chaudhary appeared on behalf of State of Haryana and orders were passed for notice to the counsel representing the Union of India.
Having heard about the case, the convict Daya Singh engaged his own counsel to represent him and to press this writ petition and accordingly Mr. R.K. Jain appeared for him on 5.4.1991.
We have, in the circumstances, treated this application as one directly by Daya Singh.
The Union of India is represented by Additional Solicitor General of India.
The case was further adjourned at the request of the counsel and was ultimately heard on 16.4.1991.
Mr. Jain has contended that if the relevant circumstances of this case are examined in the light of the decisions of this Court, the conslusion is irresistible that there has been inexcusable delay in executing the death sentence of the petitioner, and the sentence should, therefore, be quashed by this Court under Article 32 of the Constitution.
The petitioner was tried for the murder of Sardar Pratap Singh Karion which took place in 1965 and was convicted and sentenced to death by the trial court on 13.12.1978.
The sentence was confirmed by the High Court on 22.3.1980.
His Special leave petition was dismissed by this Court on 21.8.1980 and a further prayer for review was rejected on 2.9.1981.
He filed mercy petitions before the Governor and the President of India, which were also rejected.
465 Seveal orders of stay were passed from time to time, the details whereof are not very significant in view of the rejection by this Court of an earlier application under Article 32, being Writ Petition No. 191 of 1986, filed through his brother Lal Singh.
The case was dismissed on October 11, 1988 and the stay of the execution of the sentence stood vacated.
The reasoned judgment, however, was pronounced later and is resported in Smt.
Triveniben vs State of Gujarat; , The petitioner filed another mercy petition thereafter before the Governor of Haryana on 18.11.1988 and an order for stay of execution was again passed.
The matter remained pending and the petitioner has been awaiting the final outcome of his last petion since then.
On the basis of a newspaper report dated December 24, 1990 it is alleged that the attention of the Deputy Prime Minister was drawn to the petitioner 's case and the Deputy Prime Minister gave an assurance that he would examine the matter.
The report drew the attention of Alipore Jail prisoner which prompted him to send the letter which led the Registry of this Court to register the present writ petition.
The earlier writ petition of the petitioner Writ petition No. 191 of 1986, filed through his brother Lal Singh, was initially heard by a Division Bench of this Court and the matter, along with a number of other applications on behalf of other convicts was referred for the decision of the Constitution Bench.
The cases were heard at considerable length by the Constitution Bench of which one of us (Sharma,L) was a member and the leading argument at that stage was also made by Mr. R.K. Jain when all aspects of the cases were thoroughly considered.
Finally, this Court substituted the sentence of death of one convict (Harbhajan Singh) in another case by the sentence of imprisonment for life, but the other writ petitions including that of the prisoner were dismissed.
In the circumstances the petitioner cannot succeed on the basis of the earlier delay.
The operative part of the judgment, as stated earlier, was passed in October, 1988 and what is now relevant to consider is the delay subsequent to this date.
Before proceeding further we may refer to the decision in Smt.
Triveniben 's case laying down the principle which governs the present petition.
Although the cases were disposed of by two judgements, according to the opinion of the Bench, which was unanimous, undue delay in execution of the sentence of death entitles the condemned prisoner to approach this Court under Article 32, but this Court will examine only the nature of delay caused and circumstances ensued after the sentence was finally confirmed by the judicial process, and will have no jurisdiction to reopen the conclusions reached by the 466 Court while finally maintaining the sentence of death.
Further, while considering the grievance of inordinate delay this Court may consider all the circumstances of the case for deciding as to whether the sentence of death should be altered into imprisonment for life, and no fixed period of delay could be held to make to sentence of death inexecutable.
In the light of these observations the circumstances of the present case are to be examined.
It is true that while rejecting the earlier prayer of the petitioner on October 11, 1988 all the relevant considerations were taken into account and the petitioner cannot be permitted to raise the same plea once rejected, by repeated petitions.
But this does not deprive the petitioner the right to renew the prayer on fresh circumstances arising later and, therefore, not considered.
This is the position in the present case.
Although the matter was finally closed by this Court in October, 1988, the petitioner continues to remain in a state of suspense since then.
The main question is as to what is the effect of this delay.
The initial reason for the further delay has been a fresh mercy petition filed by the petitioner.
Does this fact justify keeping him under a sence of anticipation for more than two years? If the prayer was not considered fit be rejected at once it was certainly appropriate to have stayed the execution, but the matter should have been disposed of expeditiously and not kept in abeyance as has been done.
The counter affidavit filed on behalf of the Union of India states that on the receipt of the last mercy petition the Governor of Haryana immediately made a reference to the President of India seeking enlightenment on the question as to whether the Governor, while dealing with such applications, is bound by the advice of the Chief Minister of the State and whether it is open to the Governor to exercise his constitutional power in a case where an earlier application to the same effect had been rejected by the President.
Soon after the receipt of this communication, the matter was referred to the Department of Legal Affairs, Ministry of Law and Justice for advice, and the Ministry suggested that the question should be discussed with the Attorney General of India.
Since the matter remained under consideration no reply could be sent to the quarry and ultimately it was only in March this year, that the reply could be sent in the shape of a directive under Article 257(1) of the Constitution to all the Chief Secretaries of the State Governments and Union Territories.
The affidavit, however, does not furnish any fact or circumstance in justification of the delay.
In absence of any reasonable explanation by the respondents we are of 467 the view that if the concerned officers had bestowed the necessary attention to the matter and devoted the time its urgency needed, we have no doubt that the entire process of consideration of the questions referred would have been completed within a reasonable period without leaving any yawning gap rightly described by the learned Additional Solicitor General as "embarrassing gap".
There has, thus, been an avoidable delay, which is considerable in the totality of circumstances in the present case, for which the condemned prisoner in in no way responsible.
As was cautioned by this Court in Smt.
Triveniben 's case we are not laying down any rule of general application that the delay of two years will entitle a convict, sentenced to death, to conversion of his sentence into one for life imprisonment, rather we have taken into account the cumulative effect of all the circumstances of the case for considering the prayer of the petitioner.
Although the fact that the petitioner has been continuously detained in prison since 1972 was taken into account while rejecting his earlier writ petition, the same is not rendered completely irrelevant for the purpose of the present case and we have taken it into consideration merely as a circumstance assuming significance as a result of the relevant circumstances arising subsequent to the judgment rendered in October, 1988.
Having regard to all the circumstances of the case, we deem it fit to and accordingly substitute the sentence of imprisonment for life in place of the petitioner 's death sentence.
The writ petition is accordingly allowed.
In the letter from Alipore Jail a prayer has been made for the release of the petitioner.
As was indicated in Triveniben 's case, the only relief a convict awaiting execution of death sentence can get from this Court on the ground of delay is conversion of the sentence into that of life imprisonment.
However, on conversion of the death sentence to life imprisonment, the petitioner would now be governed and dealt with as a life convict for all purposes.
We are not required to say anything more in this behalf.
This prayer made in the letter is rejected.
R.P. Petition allowed.
[/INST]One R, the wife of S, disappeared from her husband 's house.
She was traced to the house of the appellants, A and his brother B.
When S went there and asked A to let his wife go with him A told him that he had married her and B threatened S and asked him to go away.
The appellants were charged under section 498 Indian Penal Code for detaining R when they knew or had reason to believe that she was the wedded wife of S, with intent to have illict intercourse with her.
The appellants pleaded that R was not validly married to S and that she had not been detained by them inasmuch as she was tired of living with S and had voluntarily and of her free will come to stay with them.
The Magistrate found the appellants guilty, convicted them and sentenced them to undergo simple imprisonment for two months each.
On appeal the Sessions Judge confirmed the conviction but reduced the sentence to a fine of Rs. 50/ each.
The appellants filed a revision before the High Court.
The High Court issued a notice of enhancement and after hearing the appellants dismissed the revision and enhanced the sentence to rigorous imprisonment for six months each.
Held, that detention in section 498 means keeping back a wife from her husband or any other person having the care of her on behalf of her husband.
Such keeping back may be by force; but it need not be by force.
It can be the result of persuasion, allurement or blandishments which may have either caused the willingness of the woman, or may have encouraged, or co operated with, her initial inclination to leave her husband.
The object of the section is to protect the rights of the husband and it cannot be any defence to the charge to say that, though the husband has been deprived of his rights, the wife is willing to injure the said rights and so the person who is responsible for the willingness has not detained her.
A was rightly convicted as the charge of detention was proved against him on the findings of the Courts below that he had offered to marry R and had thereby either persuaded or encouraged her to leave her husband 's house.
But the charge was not made out against B as it was not proved that he had offered any inducement, blandishment or allurement to R for leaving the protection of her husband and for refusing to return to him.
465 Sundara Dass Teva, (1868) IV Mad. H. C. R. 20; Ramaswamy Udayar vs Raju Udayar, A. 1.
R. ; Emperor vs Jan Mohomed, (1902) IV Bom.
L.R. 435; Broomfield, J., in Emperor vs
Mahiji Fula, Bom.
88, Emperor vs Ram Narayan Baburao Kapur, ; Mahadeo Rama vs Emperor, A.I.R. (1943) Bom.
179; Prithi Missir vs Harak Nath Singh, I.L.R. ; Bipad Bhanjan Sarkar vs Emperor, I.L.R. ; Banarsi Raut vs Emperor, A.I.R. (1938) Pat.
432 and Bansi Lal vs The Crown, (19I3) Punj.
L.R. 1066, approved.
Divatia, J., in Emperor vs Mahiji Fula, Bom.
88, Mabarak Sheikh vs Ahmed Newaz, and Harnam Singh vs Emperor, A.I.R. (1939) Lah.
295, disapproved.
Held further, that the High Court was not justified in en hancing the sentence to six months rigorous imprisonment, and it should have only restored the sentence passed by the trial Court.
The question of sentence is normally in the discretion of the trial Court and the High Court can enhance the sentence only if it is satisfied that the sentence imposed by the trial Court is unduly lenient, or, that in passing the order of sentence, the trial Court had manifestly failed to consider the relevant facts.
The sentence of two months simple imprisonment imposed by the trial Court was not so unduly or manifestly lenient as not to meet the ends of justice.
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<s>[INST] Summarize the judgementCriminal Appeal No. 533 of 1989.
From the Judgment and Order dated 31.8.88 of the Bombay High Court in Criminal Appeal No. 24 of 1988.
Govind Mukhoty and V.B. Joshi for the Appellant.
Anil Dev Singh, C.K. Sucharita and Ms. A. Subhashini for the Respondent.
The following order of the Court was delivered Special leave granted.
The appellant who is a French national has preferred this appeal 1029 under Article 136 of the Constitution of India canvassing the correctness of his conviction under Sections 21, 20(b)(ii) and 18 of the (for brevity hereinafter referred to as the 'Act ') and the sentence of 10 years rigorous imprison ment in addition to pay a fine of Rs. 1,00,000 in default to undergo rigorous imprisonment for one year inflicted by the Court of Sessions Judge, South Goa, Margao and confirmed by the High Court of Bombay, Panaji Bench (Goa) with a modifi cation of the default sentence from one year to six months on the indictment that the appellant on 7.12.87 at about 0.40 hours at Colva was found in possession of prohibited drugs/namely 51 gms.
of brown sugar, 45 gins.
of ganja oil and 55 gms.
of opium all worth approximately Rs. 13,465 without valid documents.
Adumberated in brief, the relevant facts of the prosecu tion case giving rise to this appeal are as follows.
On 6th December, 1987 at about 11.00 p.m. the Assistant Sub Inspector of Police, Shri Laxman Mahalsekar (PW 7) while along with his police party was on his patrol duty at the 3rd ward of Colva, saw the appellant speeding up his motor cycle, bearing Registration No. GDK 851 ignoring his signal to stop.
The appellant in such attempt, presumably to escape from being nabbed by the police lost control over the vehi cle and fell down.
No sooner he stood up and removed a paper wrapping from his pant pocket and threw it away.
PW 7 on entertaining suspicion over the conduct of the appellant verified that wrapping to contain small quantity of brown sugar and then he took the appellant along with his motor cycle to the nearby Police Out Post.
A handbag, bluish in colour with red strips had been attached to the motorcycle.
When the said bag was opened with a key handed over by the appellant and examined in the presence of two pancha wit nesses, namely Francis Xavier D 'Silva (PW 1) and one Connie D 'Silva (not examined), it was found to contain some person al belongings such as wearing apparels, a pair of shoes and a canvas bag.
Inside the bag, there was one shaving cream tube, one camera, a torch and four plastic rolls.
There was also one plastic bag containing contraceptives.
The torch was found to contain two bundles of plastic material each one containing a small piece of blackish substance.
Inside the cream tube, four bandies wrapped in a plastic material were found.
Each of the bundle contained small pieces of blackish substance.
There was also one more bundle of plas tic material concealed in the shoes which when opened was found to contain small piece of blackish substance similar to the one found in the torch as well in the shaving cream tube.
The 1030 camera was found in a box in which there were five packets of plastic material with some powder of yellowish colour i.e. brown sugar.
According to PW 7, there were 50 gms.
of brown sugar hidden in the camera case, 45 gms.
of Ganja oil in the steel container and 55 gms.
of opium in the shaving cream tube, torch light and shoes.
All the materials were weighed and seized under a panchnama (exhibit P. 1) attested by PW 1 and Connie D 'Silva.
The appellant was arrested and kept under medical treatment and observation.
Samples of these articles were sent to Chemical Analyst (PW 6) who has de posed that she received three envelopes Ex.1 to 3.
According to her, the envelope marked Ex.1 contained 1.57 gms.
of substance which on analysis was found to contain 16.8% w/w of Morphine (which is an alkaloid extracted from opium i.e. conversion of opium).
The quantity of the substance namely a dark brown soft mass having characteristic colour of opium found in the envelope exhibit 2, weighing 2.45 gms.
was not sufficient to carry out further analysis.
The substance in envelope exhibit 3 weighing 2.97 gms.
on analysis was found to contain a dark brown sticky substance having odour similar to that of extract of cannabis.
PW 6 gave her report (exhibit
P 3) dated 8.2.88.
PW 7, after receiving exhibit P 3 and complet ing the investigation charge sheeted the accused under the provisions of the Act on the ground that the appellant was in possession of prohibited drugs without a valid licence or permit or authorisation in violation of Section 8 punishable under the penal provisions of the Act.
The defence of the appellant is one of total denial.
As pointed out in the earlier part of this judgment both the Trial Court and the Appellate Court have concurrently found the accused guilty.
Mr. Govind Mukhoty, learned senior advocate appearing on behalf of the appellant directed a manifold scathing attack on the prosecution case raising the following conten tions: 1.
The absence of any visible injury on the person of the appellant while apprehended belies the prosecution version that the appel lant had fallen down from the vehicle on accelerating the speed; 2.
The fact that the Investigating Offi cer did not deliberately join with him respec tive inhabitants of the locality i.e. within the vicinity of the Police Out Post to witness the seizure but had taken pain to secure PW 1 and Connie D 'Silva who were residing far away from the place of seizure and who seem to 1031 have been readily willing and obliging to be pancha witnesses devalues the evidence regard ing the seizure of the contrabands and more so it is in violation of the salutary provisions of law prescribing the procedure to be fol lowed before making the search and seizure; 3.
PW 7 sent only three samples from the alleged seized substances that too in small quantity instead of sending sufficient repre sentative quantity from each of the packets seized for assay.
Therefore, in the absence of scientific test of all the substances found in each of the packets, no safe conclusion can be arrived that the entire substances seized under various packets were all prohibited drugs; 4.
The admission of PW 6 in her evidence that she does not know the difference between the narcotic drugs and psychotropic substances militates against the evidentiary value of her opinion under Exh.
P 3. 5.
The non inclusion of PW 5, the owner of the motor cycle as an accused and the non examination of Cavin at whose instance PW 5 lent the vehicle are fatal to the prosecution case; 6.
Even assuming but not conceding that the prosecution version is acceptable in the absence of any evidence that the appellant was carrying on with the nefarious trade of pro hibited drugs either as a 'peddler ' or 'push er ', the appellant would be liable to be punished within the mischief of Section 27(a) of the Act, since the attending circumstances present in this case indicate that the appel lant was in possession of the drugs in small quantity only for his personal consumption.
We shall now examine the contentions seriatim with reference to the evidence available on record.
There is no denying the fact that the appellant had been taken into police custody on the early hours of 7.12.87 by PW 7 along with the motor cycle involved in this case.
The submission of Mr. Mukhoty is that in the absence of any injury on the person of the appellant, the case of the prosecution that the appellant fell down from his vehicle is hardly acceptable.
No doubt if a person is thrown off or falls down from a speeding vehicle he may sustain injuries either serious or simple or escape sometimes unhurt but it depends on the speed of the 1032 vehicle, the manner of fall, the nature of the soil and the surface of the earth etc.
In the present case, evidence of PWs 4 and 7 is that the appellant on seeing the police party accelerated the speed ignoring the signal given by PW 7 to stop and it was only during the course of this attempt, the appellant fell down from the motor cycle at a place where the street lights i.e. the fluorescent tube lights and bulbs were on and thereafter immediately stood up.
The evidence on these two witnesses and the other connected facts lead to the inference that the appellant had fallen down immediately after he attempted to speed up the vehicle and was caught hold of by the police.
It is not the case of the prosecution that the appellant sped away to some distance and then had fallen down from the speeding vehicle.
PW 3, the Medical Officer attached to Hospicio Hospital speaks to the fact that when she examined the appellant on 8.12.87 at about 8.00 p.m., the appellant complained of bodyache, nosia etc.
but PW 3 does not whisper of having seen any visible injury on the person of the appellant.
After carefully scanning the evidence of PWs 4 and 7 coupled with the recovery of the articles Nos 1 to 14, we unhesitatingly hold that the appel lant was caught by the police under the circumstances as put forth by the prosecution and the appellant however escaped unhurt.
Hence in the light of the above evidence, we are constrained to hold that this submission made by the learned defence counsel does not merit consideration.
After the appellant was secured by the police, PW 7 directed PW 4 to bring two pancha witnesses.
Accordingly, PW 4 brought two witnesses from a place which is according to PW 7 is within a distance of 1 KM and according to PW 5 at five minutes walking distance.
Much argument was advanced by the learned defence counsel that these two witnesses were not the respectable inhabitants of that locality; that they were readily willing and obliging witnesses to the police and that there is deliberate violation of the statutory safeguard.
This argument cannot be endured for more than one reason to be presently stated.
The appellant was secured in the midnight near the police out post.
It clearly transpires from the records that these two witnesses are not outsiders but residents of the same area, namely Colva.
Except making some bare suggestions that both the witnesses were regular and professional witnesses, nothing tangible has been brought out in the cross examination to discredit the testi mony of PW 1.
This Court, while considering a similar con tention in Sunder Singh vs State of U.P., [1956] Crl.
Law Journal 801 and Tej Bahadur vs State of U.P., has observed that if pancha witnesses are not respect ables of the same locality but from another locality, it may amount only to an 1033 irregularity, not affecting the legality of the proceedings and that it is a matter for Courts of fact to consider and the Supreme Court would not ordinarily go behind the finding of facts concurrently arrived at by the Courts below.
See also State of Punjab vs Wasson Singh and Five Oth ers; , When such is the view, expressed by this Court on a number of occasions, we are unable to appreciate the submis sion of the learned counsel that the prosecution case is in violent disregard of the procedure relating to search and seizure.
The question that PW 1 and other pancha witnesses are not the inhabitants of the locality does not arise in the present case because it is indisputably shown that they are the residents of the same Colva area where the Police Out Post is situated.
The fact that these two witnesses are not residing in the vicinity of the seizure, in our view, does not disturb the acceptance of the evidence of PW 1 relating to the seizure of the contrabands and other arti cles.
With regard to the drawing up of the panchnama, the defence has come forward with two diametrically contradicto ry suggestions in that, the suggestion made to PW 1 is that he only subscribed his signatures on some papers whilst a new story, suggested to PW 7 is that the panchanama was fabricated around the 5th of January 1988 in order to save one Ramesh, brother of PW 5 from being prosecuted in connec tion with this seizure.
To establish the seizure of all the articles including the contrabands, the prosecution rests its case not only on the testimony of PW 1 but also on the evidence of PWs 5 and 7 whose evidence is amply corroborated by the towering circumstances attending the case.
From the records, it is found that PW 7 divided the contrabands into three categories and sent the samples from each of the categories for analysis.
No doubt, it would have been appreciable, had PW 7 sent sufficient representative quantity from each of the packets but however this omission in the present case does not affect the intrinsic veracity of the prosecution case.
PW 6 has fairly stated that she was able to thoroughly assay only the substances found in two envelopes marked as exhibit P 1 and P 3 and the substances in envelop exhibit P 2 was not sufficient to carry out further analysis though it was a dark brown soft mass having charac teristic of odour of opium.
The testimony of PW 6 and her opinion recorded in the unimpeachable document (exhibit P 3) lend assurance to the case of the prosecution that the contrabands seized from the possession of the appellant were prohibited drugs and substances.
1034 The criticism levelled by the learned defence counsel is that the evidence of PW 6 is not worthy of acceptance since she has admitted that she does not know the difference between the narcotic drugs and psychotropic substances.
This attack, in our view, does not assume any significance be cause as rightly pointed out by Mr. Anil Dev Singh, the learned senior advocate for the respondent, the Medical Officer is not expected to know the differences in the legal parlance as defined in Section 2(xiv) and (xxii) and speci fied under Schedules 1 to III in accordance with the con cerned Narcotic Drugs and Psychotropic Substances Rules, 1985 made under the Act and so this ground by itself, in our view, is no ground for ruling out the evidence of PW 6.
Yet another attack by the defence that the omission on the part of the prosecution to include PW 5 as an accused and to examine Cavin as a witness has to be mentioned simply to be rejected as devoid of any merit, as there is absolute ly no material to hold that PW 5 was in any way connected with the seizure of the contrabands or he has committed any indictable offence though the vehicle belonged to him.
The non examination of Cavin at whose instance PW 5 lent his motorcycle to the appellant does not in any way affect the prosecution case.
For the discussions made above, we see no force in the contentions 1 to 5.
Lastly, we have to consider the legal submission made by Mr. Mukhoty that the appellant was in possession of these drugs or substances in a small quantity for his personal consumption and as such he would be punishable only under Section 27(a) of the Act providing imprisonment for a term which may extend to one year or with fine or with both.
He further pleaded that the appellant is neither an 'uncrowned king of the mafia world ' nor a 'peddler ' nor a 'pusher '; that he being a foreigner by prolonged and continuous use of drugs has become a drug dependent and that he had all symp toms of an addict and exhibited sufferance of withdrawal symptoms on discontinuing the drug which, it seems, he was taking on his own as borne out from the testimony of the Medical Officers (PWs 2 and 3) under whose observation the appellant has been kept for some days.
Incidentally, he has added that though ignorance of law is not an excuse and it cannot be permitted to be pleaded, yet this Court may take note of the fact that the appellant who is a foreigner should have been lacking awareness of the stringent provi sions of the Act.
Firstly, let us examine whether the offence would fail within the 1035 mischief of Section 27(a) of the Act.
This section provides punishment for illegal possession in small quantity for personal consumption of any narcotic drug or psychotropic substance.
The expression 'small ' quantity occuring in that section is explained under Explanation I annexed to that Section which reads thus: "For the purposes of this section 'small quantity ' means such quantity as may be speci fied by the Central Government by notification in the Official Gazette.
" In compliance with this explanation, the Ministry of Finance (Department of Revenue) has issued notification No. S.O. 827(E) dated November 14, 1985 published in the Gazette of India, Extra., Part II Section 3(ii) dated 14th November 1985 which notification reads thus: "In exercise of the powers conferred by Expla nation (1) of Section 27 of the (61 of 1985) and in partial modification of the notification of the Government of India in the Ministry of Finance, Department of Revenue No.S.O. 825(E), dated the 14th November 1985 the Central Government hereby specifies the quantity mentioned in Column 3 of the Table below, in relation to the narcotic drug men tioned in the corresponding entry in column (2) of the said Table, as 'small quantity ' for the purposes of that section.
TABLE Serial No. Name of the Narcotic Drug Quantity 1 2 3 1.
Heroin or drug commonly 250 milligrams known as Brown Sugar or smack 1036 2.
Hashish or Charas 5 grams 3.
Opium 5 grams 4.
Cocaine 125 milligrams 5.
Ganja 500 grams Coming to the case on hand, the appellant was found to be in possession of the narcotic drugs or substances far in excess of the quantity mentioned in column 3 of the table under the notification.
According to the prosecution, he was in possession of 51 grams of brown sugar, 45 grams of Ganja oil and 55 grams of opium.
In view of the above position, it cannot be contended that the prohibited drugs and substances seized from the appellant 's possession were in small quantity so as to bring him only within the mischief of Section 27(a) of the Act.
It may not be out of place to mention that even if a person is shown to have been in possession of a small quan tity of a narcotic drug or psychotropic substance, the burden of proving that it was intended for the personal consumption of such person and not for sale or distribution, lies on such person as per Explanation 2 of Section 27 of the Act.
Thirdly, the very fact that the appellant had kept these drugs and substances in many ingeniously devised places of concealment in the camera, shaving tube, torch and shoes would indicate that the appellant was having Fuji knowledge that the drugs he carried were prohibited drugs and that he was having them in violation of law.
We, for the above reasons, see no merit in this contention also.
The Trial Court while inflicting the punishment has expressed its view about the drug menace spreading in Gao as follows: "The spreading of the drugs in Gao is becoming day by day a terrible menace which is com pletely destroying the very fiber of our society being also instrumental in subverting the tender soul of our young generation which is being badly contaminated by such danger in a very alarming 1037 provisions calling for severe punishment in case of illegal possession and transportation of drugs meant for personal consumption and eventual trade.
" With deep concern, we may point out that the organised activities of the underworld and the clandestine smuggling of narcotic drugs and pyschotropic substances into this country and illegal trafficking in such drugs and substances have led to drug addiction among a sizable section of the public, particularly the adolescents and students of both sexes and the menace has assumed serious and alarming pro portions in the recent years.
Therefore, in order to effec tively control and eradicate this proliferating and booming devastating menace, causing deleterious effects and deadly impact on the society as a whole, the Parliament in its wisdom, has made effective provisions by introducing this Act 81 of 1985 specifying mandatory minimum imprisonment and fine.
As we have now rejected the plea of the defence hold ing that the penal provisions of Section 27(a) has no role to play as the prohibited drugs and substances possessed by the appellant were far in excess of the quantity mentioned in Column 3 of the table under the notification, the sen tence of 10 years rigorous imprisonment and the fine of Rs. 1,00,000 with the default clause as modified by the High Court does not call for interference.
In the result, the appeal is dismissed.
T.N.A. Appeal dismissed.
[/INST]One Sh.
G.V. Ranade took four policies on his own life from the LIC during the period.
1958 to 1960.
In April 1969 G.V. Ranade assigned absolutely all these four policies in favour of his wife Smt.
Kamalabai G. Ranade and the assign ment was duly registered by the LIC.
These policies were paid up and the date of maturity of these were 14.9.72, 28.12.73, 9.11.75 and 21.12.75.
There were some income tax dues against the said G.V. Ranade for recovery of which income tax officer 'commenced recovery proceedings.
The Income Tax Officer on 27.1.71 issued a notice under Section 226(3) of the Income Tax Act, 1961 to the Manager of the LIC at Nagpur directing the LIC to pay to I.T.O. forthwith any amount due from the LIC to or, held by the LIC for or on account of the said Ranade to meet the amount due from Ranade as arrears of income tax.
The Divisional Manager of the LIC at Nagpur intimated this fact of receipt of the notice under section 226(3) of the Income Tax Act 1961 to the assignee of these policies Smt.
Kamalabai G. Ranade, suggesting that she take steps to get the notice vacated in order to safeguard her interest in the policies.
By further correspondence the ITO required the LIC to deposit the amount of Rs.3415.70 payable against the first policy which was to mature on 14.9.72 and the LIC informed the assignee that the moneys due under the policies will be paid to her only after her getting the notice served on LIC by the ITO vacated.
On 5.9.72 Smt.
kamalabai G. Ranade flied a Writ Petition in the High Court of Bombay impleading LIC and the ITO claiming several reliefs including a direction to the LIC for payment of Rs.3415.70 and also to make a statement that no part of the said amount is due to G.V. 98 Ranade nor does the LIC hold any part of the sum for or on account of Ranade.
This Writ Petition was dismissed in limine.
Kamalabai G. Ranade filed an appeal by special leave in this court and this court disposed of the appeal on the counsel for the LIC stating that he would file the necessary statement on oath in accordance with section 226(3)(vi) of the Income Tax Act, 1961 stating that no sum of money is due to the Assessee, insured person, before the ITO except one policy in respect of which the LIC having already paid the money to ITO no statement need be made and consequently no order can be made u/s 226(3)(vi) and the appeal was disposed of accordingly.
It appears that the ITO did not revoke the order of attachment inspite of the LIC making the requisite statement on oath under section 226(3)(vi) of the Income Tax Act on 5.12.75.
This led to the filing of another Writ Petition in the Bombay High Court by Smt.
Kamalabai praying for a direc tion to the ITO to revoke all notices issued under section 226(3) to the LIC and to the LIC to pay her the amount due against the policies which had matured.
On 4.4.1977 counsel for the ITO produced before the High Court a copy of the order dated 1.4.77 passed by the ITO withdrawing the notice u/s 226(3) of the Income Tax Act and the Writ Petition was dismissed as withdrawn.
Kamalabai then sent notice to the LIC demanding payment of the total amount due against the four policies together with interest @ 15% since the delay in payment had been occasioned by the default of the LIC.
LIC made the payment of these amounts to her but disputed its liability to pay interest thereon for the period subsequent to the date of maturity on the ground that the delay was occasioned by the ITOs notice u/s 226(3).
This dispute regarding the LIC 's liability to pay interest led to the filing of Writ Petition No. 1248 of 1977 decided on January 7, 1981 which gives rise to this appeal.
The impugned judgment holds that the last two policies having matured on 9.11.75 and 21.12.75 a few days before or after 5.12.75 when the statement on oath u/s 226(3) of the Income Tax Act was made by the LIC did not qualify for award of such interest which was payable in respect of the first two which had matured earlier on 14.9.72 and 28.12.73.
This view of the High Court on which the award of interest is based is assailed on behalf of the appellant.
The dispute in this appeal is only about the LIC 's liability for payment of interest on the principal amount from the date of maturity of the first two policies to 31.12.75 and the rate of 15% p.a. which is alleged to be excessive.
99 Dismissing the appeal with costs this Court, HELD: In the instant case, admittedly assignment of the policies was made by the insured G.V. Ranade and the same was duly accepted and registered by the LIC in April 1969.
It is, therefore, obvious that the LIC was bound to act on that assignment in favour of Smt.
Kamalabai G. Ranade unless the assignment was held to be invalid by a competent author ity on a proper proceeding taken for this purpose [111B] Mere issuance of notice under section 226(3) of the Income Tax Act, 1961 did not have the effect of invalidating the assignment nor did the casual mention of section 281 of the Income Tax Act, 1961 by the ITO in his letter dated 28.8.72 result in this consequence.
Any further step towards formation of the final opinion by the ITO could be taken only after the LIC had made the requisite statement on oath under section 226(3)(vi) of the Income Tax Act, 1961 on the basis of the registered assignment of policies.
[111C D] The question of revocation of the notice under clause (vii) of subsection (3) of Section 226 of the Income Tax Act, 1961 arose in the present case only after the LIC made the requisite statement on oath under section 226(3)(vi) of the Act in view of its consistent stand throughout that the moneys due under the policies were held by it for and on behalf of the assignee and not the defaulter.
Mere informa tion of the assignment to the ITO and keeping the assignee informed of the ITO 's action did not amount to discharge of the statutory obligation under section 226(3)(vi) of the Act by the LIC.
Sub section (3) of Section 226 of the Income Tax Act, 1961 clearly shows that on a notice thereunder being issued by the ITO to the LIC in the present case, it was incumbent on the LIC to make the requisite statement on oath under clause (vi) thereof raising an objection on the basis of the registered assignment.
It was then for the ITO to proceed further and form his final opinion and revoke the notice under clause (vii).
[112D E; 113G H] The inordinate delay in making the statement on oath by the LIC under section 226(3)(vi) of the Income Tax Act, 1961 was the result of misconstruction of the provisions and misappreciation of its liability thereunder.
[114B] Obviously the assignee of the policies who had become entitled to receive the amount due thereunder on the dates of their maturity must be compensated by the LIC for its failure to perform its statutory 100 obligation under section 226(3)(vi) of the Income Tax Act, 1961 within a reasonable time.
Performance of this statutory obligation by the LIC in the present case being after inor dinate delay award of interest to the assignee of the poli cies to whom the payment thereunder had to be made even according to the stand of the LIC is, therefore, clearly justified.
[114C D]
</s>
|
<s>[INST] Summarize the judgementAppeal No. 146 of 1954.
Appeal by Special Leave from the Judgment and Order dated the 17th day of December, 1952, of the High Court of Judicature at Madras in Referred Case No. 45 of 1952 arising out of the Report dated the 27th day of March, 1951, of the Court of District Judge, Krishna in C.M.P. No. 123 of 1951.
section P. Sinha, (K. R. Chaudhary and Sardar Bahadur, with him), for the appellant.
R. Ganapathy Iyer and P, G. Gokhale, for respondent No. 1.
1056 T. Satyanarayana and P. G. Gokhale, for respondent No. 3. 1954.
December 3.
The Judgment of the Court was delivered by DAS J.
This is an appeal by special leave from an order made by a Special Bench of the High Court of Judicature at Madras under section 12 of the (Act XXXVIII of 1926) debarring the appellant from practising as an advocate for a period of five years.
The material facts are these.
The appellant before us is an advocate ordinarily practising at Masaulipatam.
In Calendar Case No. I of 1949 on the file of the Additional First Class Magistrate 's Court at Masaulipatam nine persons were charged with the offence of conveying rice from the village to other villages without permits.
Accused Nos. 2 and 4 were not represented by any advocate.
Accused Nos. 1, 3, 5, 6 and 8, all cart men, were defended by the appellant.
Accused No. 7, who initiated the proceedings out of which the present appeal arises and who is hereinafter referred to as "the petitioner", was defended by another advocate.
The case was disposed of on the 30th September, 1949.
Accused Nos. 1, 3, 5 and 6 were acquitted.
Accused No. 2 was convicted and sentenced to a fine of Rs. 20 and in default of payment of fine to undergo simple imprisonment for one month.
Accused No. 4 and the petitioner, accused No. 7, were also convicted and sentenced to pay a fine of Rs. 300/ each and in default of payment of fine to undergo simple imprisonment for six months.
Accused No. 8 was sentenced to pay a fine of Rs. 100/ and in default of payment of the fine, to simple imprisonment for three months.
Accused No. 2 paid the fine but the other three convicted persons did not.
The four convicted persons including the petitioner thereafter engaged the appellant to prefer an appeal to the Sessions Court.
The appeal was presented before the Sessions Court on the 8th October, 1949 and on the same day a petition was filed on behalf of accused Nos. 4, 7 (petitioner) and 8 for an order staying the 1057 realisation of the fine.
That application for stay came up before the learned Sessions Judge on the 10th October, 1949 when notice was directed to issue to the Public Prosecutor.
On the 11th October, 1949 the learned Judge passed the following order: "Suspended pending disposal of this petition.
Call on 14. 10".
On the 14th October, 1949 the following further order was passed: "Execution of sentences suspended till disposal of appeal".
The appeal was posted for hearing on the 25th November, 1949 and was adjourned from time to time.
Eventually, it was finally heard on the 13th July, 1950 when the appeal was allowed and the conviction and sentences of all the appellants were set aside.
On the 25th January, 1951 the petitioner caused a registered notice (exhibit A/2) to be sent to the appellant alleging that on the 11th October, 1949 the appellant had represented to him that the Court had refused to suspend the sentences and that unless the amount of fine was deposited the petitioner would be sent to jail.
It was further alleged that on such representation the petitioner had on that day paid to the appellant a sum of Rs. 300 for which the appellant had passed to the petitioner a chit (exhibit A/1) under his own signature acknowledging receipt of the said sum.
The chit (exhibit A/1) which is addressed to the petitioner runs as follows: "This day, you have paid to me a sum of Rs. 300 (three hundred rupees only)".
It is signed by the appellant and below his signature appears the date 11th October 1949 and the time 5 15 P.m. is also mentioned below the signature.
The allegation in the registered notice further was that the appellant had concealed from the petitioner the fact that the order for payment of fine had been suspended until the hearing of the appeal and also that the appeal had eventually been allowed.
The notice ended with a threat that if the appellant failed to return the sum of Rs. 300 together with interest at 12 per cent.
per annum from the 11th October 1949 up to date of 1058 payment the petitioner would be constrained, in addition to such other proceedings as he may be advised to take for recovery of the said amount, to complain against the appellant and his unprofessional conduct to the High Court and the Bar Council.
This notice was received by the appellant on the 12th February 1951 and on the next day, 13th February 1951, the appellant issued three registered notices Exs.
A/3, A/4 and A/5 to the petitioner.
In exhibit A/5 the appellant complained that the petitioner had been evading payment of the agreed fee of Rs. 150 and on firm demand having been made by the appellant on the 21st January 1951 for payment of such fee before the 25th January 1951 the petitioner had issued the registered notice exhibit A/2.
In exhibit A/4 the appellant alleged that the petitioner instructed the appellant to file a stay petition as the petitioner was unable to pay the fine and that the appellant filed the petition accordingly and obtained a stay order about which the petitioner was fully aware.
In those circumstances the allegations contained in the petitioner 's notice exhibit A/2 were false and highly defamatory.
He further alleged that the petitioner was also present in Court on the 13th July 1950 when the appeal was allowed.
In the circumstances, there was no need for the petitioner to pay any money to the appellant for the purpose of paying the fine.
The appellant called upon the petitioner to withdraw the allegations and tender an unqualified apology immediately.
In exhibit A/3 the appellant stated that the petitioner had come to him on the 6th October 1949 to engage him as his advocate for filing an appeal.
Seeing that the appellant was then pressed for money for payment of an installment of a loan No. 616 to the Land Mortgage Bank, Pedana, the petitioner volunteered to arrange for a loan of Rs. 300 for the appellant at Pedana and asked him to give a chit in his favour and to send the appellant 's clerk with the petitioner.
The petitioner did not, however, succeed in arranging for any money but the chit exhibit A/I remained with him.
There was a denial that there was any consideration for the chit exhibit A/I. On the 7th March 1951 the petitioner sent a reply generally 1059 denying the allegations contained in the three several notices sent by the appellant to the petitioner.
That reply was received by the appellant on the 13th March 1951 and on the 14th March 1951 the appellant issued a further rejoinder exhibit A/7 denying the allegations in the petitioner 's reply and stating that the statements in his three notices were true.
It was further alleged that when the petitioner failed to sup ply the amount mentioned in the chit exhibit A/I the appellant asked him to return the chit but the petitioner said that the chit was missing and that he would search for it and return it subsequently and so saving the petitioner gave the appellant on the 16th October 1949.a hand letter (exhibit D/8) admitting that the petitioner was unable to supply the amount of Rs. 300 mentioned in the said chit as promised.
The petitioner did not send any reply to this letter in spite of the fact that the appellant had therein referred to a hand letter (exhibit D/8) dated the 16th October 1949 which totally nullified the value of the chit exhibit A/I. The petitioner then on the 27th March 1951 sent a petition to the High Court making a complaint against the appellant of professional misconduct and praying that the Hon 'ble High Court might be pleased to order an enquiry into the allegations made in his complaint and to take such action against the appellant as was necessary and expedient in the circumstances of the case.
Along with the petition were submitted a photograph of the chit exhibit A/I and copies of the registered correspondence that passed between the petitioner and the appellant.
Even in this petition the petitioner did not refer to the band letter (exhibit D/8) of the 16th October 1949 and did not specifically deny having written the same.
Upon the presentation of the petition the appellant submitted a written explanation before the High Court.
The High Court,, under section 10 of the , referred the matter to the District Judge to enquire into the allegations made in the petition and to submit A report.
The District Judge issued a notice to the appellant setting forth the following charges: 136 1060 "1.
That you have suppressed fraudulently the order of the Additional Sessions Judge, Krishna at Masaulipatam, suspending payment of fine of Rs. 300 and made in Crl.
M. P. No. 180 of 1949 in C. A. No. 82 of 1949 preferred against the conviction and sentence passed by the Additional First Class Magistrate, Bandar, in C.C. No. 1 of 1949, on his file, against the petitioner, who is the seventh accused therein; 2.
That you, having fraudulently suppressed the above stated fact, have represented to the petitioner that the amount of fine of Rs. 300 had to be deposited into Court on pain of the petitioner being sent to jail and received the said sum of Rs. 300 from him and passed a receipt in his favour for the same; 3.
That you, even though the above said C.A. No. 82 of 1949 on the file of the Additional Sessions Judge, Krishna at Masaulipatam was allowed by the judgment dated 13 7 1950, having all knowledge about it did not inform the petitioner that the said C.A. No. 82 of 1949 was disposed of, and later on informed him that it was dismissed, and the conviction and sentence were confirmed; 4.
That you, therefore, wrongfully withheld the amount of Rs. 300 belonging to the petitioner without depositing into Court as represented by you and also without refunding it to the petitioner even after the said appeal was allowed in spite of repeated requests and demands made by him, and 5.
That you have falsely set up a plea of not having received the said sum of Rs.300 from the petitioner, for which you have passed a receipt in his favour, and later on set up that you wanted to borrow the said amount from him during the subsistence of the relationship of advocate and client, which (borrowing from a client) itself is prohibited by law".
The petitioner examined himself (P.W.1) and his brother Potharaju (P.W.2) as his witnesses in support of the allegations in the petition.
The appellant examined himself (R. W. 1) and his clerk D. Venkatarangam (R.W.2), Kameswararao, the secretary of the Vadlamannadu Co operative Land Mortgage Bank at 1061 Pedana (R.W.3) and Venktadri, clerk of an advocate (R.W.4) in support of his defence.
On a consideration of the entire evidence the learned District Judge found that the testimony of the petitioner and his brother was not credible and acceptable and that there was no reason to reject the testimony of the appellant and his clerk and other witnesses and he came to the conclusion that it bad not been satisfactorily proved that the appellant was guilty of any of the charges framed against him.
The District Judge sent a report accordingly.
The matter was placed before a Special Bench of the Madras High Court.
The Special Bench had no hesitation in agreeing with the findings of the learned District Judge on charges 1, 2 and 3.
In their opinion much reliance could not be placed on the veracity of the complainant himself The High Court, in agreement with the learned District Judge, held that the appellant was not guilty of the first three charges.
Coming to the last two charges the learned Judges were struck by several facts, namely, (i) the passing of two receipts for two sums of money each of Rs. 300 which were identical with the amount of fine imposed on each of the accused Nos. 4 and 7 (petitioner) and (ii) the date of payment, namely, the 11th October 1949 on which date the petitioner and the fourth accused had to deposit the fine.
The learned Judges were strongly impressed with the fact that the chit exhibit A/I had been allowed to remain with the petitioner.
The High Court also noted that if the arrange ment was that the appellants clerk would pass a formal stamped receipt after getting the money there was no necessity to issue an informal receipt in favour of the petitioner in advance.
The learned Judges further pointed out that in none of the three notices dated the 13th February 1951 any reference had been made by the appellant to the hand letter (exhibit D/8) 'dated the 16th October 1949.
The High Court concluded that the failure to mention this hand letter in the earliest reply by the appellant cast considerable doubt on the genuineness of the document and consequently the Court could not act on the basis that it 1062 contained a true statement of facts admitted by the petitioner.
The High Court also referred to several other minor points suggesting the improbability of the appellant 's story.
The High Court held that the appellant had received a sum of Rs. 300 from the petitioner on the 11th October 1949 as acknowledged by the appellant in the chit exhibit A/ 1.
The High Court accordingly held that charges Nos. 4 and 5 had been proved against the appellant and passed orders against the appellant debarring him from practicing as an advocate for five years.
The appellant has now preferred this appeal after having obtained special leave from this Court.
We have been taken through the evidence by learned advocates appearing on both sides.
It appears to us that while there are some facts which cast some doubt on the version of the appellant there are other material facts completely overlooked by the High Court which nevertheless have a material bearing on the truthfulness or falsity of the complainant 's story.
It is true that the appellant did not refer to the hand letter (exhibit D/8) in his replies Exs.
A/3, A/4 and A/5 to the petitioner 's letter exhibit A/2, but the appellant did refer to it in his rejoinder exhibit A/7 of the 14th March 1951.
It is significant that the petitioner did not send any reply to this last rejoinder and deny the allegations definitely made by the appellant.
It is further significant that the petitioner did not deny the genuineness of the band letter exhibit D/8 even in his petition.
In his evidence the petitioner admits the signature on the hand letter to be his own but states that it must have been made out by the appellant on a blank paper on which he had induced the petitioner to put his signature on the representation that the same would be used as a Vakalatnama.
It is very difficult to accept this story because the petitioner knew from his experience as an accused in the trial Court that no Vakalatnama was required in a criminal case.
Nor has any of the other appellants been produced as a witness to say that any such signature was taken from any of them on blank paper.
Further, the petitioner was present in Court on the 11th October when 1063 the interim stay order was made.
exhibit A/1 bears the hour 5 15 P.m. below the signature of the appellant which shows that chit came into existence after court hours.
It is utterly impossible to believe that the petitioner would deposit Rs. 300 with his new advocate in spite of the fact that in the earlier part of the day the interim order for stay had been made.
It is also significant that accused No. 4 who is also alleged to have paid Rs. 300 to the appellant for a similar purpose has not been called as a witness to corroborate the evidence of the petitioner and his brother.
The question of the ability of the petitioner to advance Rs. 300 is one of great importance in this case.
The petitioner is not a man of means.
He alleged that he had raised the sum of Rs. 300 by selling some miscellaneous gold.
No goldsmith or shrove was called to produce his books and give evidence in corroboration of the petitioner and his brother.
Indeed, the petitioner could not even mention the name of any shroff to whom he is supposed to have sold his gold.
The High Court completely overlooked this aspect of the matter and in the absence of satisfactory evidence showing that the petitioner was in a position to pay the sum of Rs. 300 it will be extremely risky to hold that the fact of payment of Rs. 300 by the petitioner to the appellant has been proved only because there are some weaknesses in the appellant 's story.
The appellant 's story that he required Rs. 600 to be paid to the Land Mortgage Bank is supported by the secretary of the Land Mortgage Bank (R.W. 3) who stated that the appellant bad informed him that he had raised Rs. 300 only and that a person who had promised to arrange for a loan of Rs. 300 had failed to do so and that the appellant had asked his advice as to what he was to do.
The secretary then told the appellant that as he had made an excess payment in 1948 towards and on account of the principal it would be enough if he paid the amount of Rs. 377/9/ which the appellant bad.
It is significant that the Bank 's records show that the appellant had paid only Rs. 377/9/ into the Bank on the 4th November, 1949.
If the petitioner had paid 1064 Rs. 300 to the appellant there would have been no reason why the appellant should not have paid the entire Rs. 600 towards his liability to the Bank.
The learned District Judge who had the advantage of seeing the witnesses and hearing the evidence disbelieved the evidence of the petitioner and his brother and we see no compelling reason to take a different view of it.
On the facts and circumstances of this case we think that charges 4 and 5 have not been brought home to the appellant or, at any rate, the appellant is entitled to the benefit of the doubt.
In the circumstances, we hold that the order passed by the High Court should be reversed and we direct that the complaint against the appellant do stand dismissed as not proved.
Before parting with this appeal we desire to say that it appears to us that it was wholly wrong and inappropriate for the appellant to have made the Honourable Judges of the Madras High Court respondents to this appeal.
It appears that in some cases involving contempt of Court the Honourable Judges have been made parties.
It is not necessary for us to express any opinion on this occasion as to the propriety of that procedure in contempt cases but we are clearly of the opinion that in an appeal arising out of a proceeding under the Bar Councils Act the appropriate parties should be the advocate concerned, the complainant, if any, the Bar Council or the secretary thereof and the Advocate General of the State concerned to whom notices have to be issued under section 12(3) of the .
Appeal allowed.
[/INST]It is wrong and inappropriate to implead the Judges of the High Court as respondents in an appeal preferred to the Supreme Court by an Advocate against whom an order of suspension was passed by the High Court under section 12 of the .
In such appeal the proper respondents are the complainant if any, the Bar Council or Secretary thereof and the Advocato General of the State concerned
</s>
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<s>[INST] Summarize the judgementCivil Appeal No. 707 of 1988.
From the Judgment and Order dated 13.10.87 of the Bombay High Court in A. No. 969 of 1984.
S.B. Bhasme and A.S. Bhasme for the Appellant.
Dr. Y.S. Chitale and R.S. Nariman for the Respondent No. 16.
Mrs. Karanjawala and Ms. Meenakshi Arora for the Caveator.
The following order of the Court was delivered: O R D E R Special leave granted against Respondent No. 16 in so far as relief claimed against Respondent No. 16.
The Charity Commissioner of State of Maharashtra has approached this Court by way of Special leave in order to seek redress in respect of the observations made by the Division Bench of the High Court casting reflections on the conduct of the officials of the organization and in regard to their competence to decide matters in their quasi judicial capacity.
He has also sought a direction against Respondent No. 16 who is present by caveat.
We are constrained to observe that the High Court might well have avoided casting reflections against the Deputy Charity Commissioner who was merely discharging his quasi judicial functions under the Bombay Public Trusts Act.
He should have been permitted to discharge his functions in regard to the issues arising before him in the light of his own independent perspective.
The 951 observations made by learned Single Judge, by the very nature of things, were of a tentative nature as the learned Single Judge was deciding the matter arising out of an interlocutary proceeding.
In fact, the observations made by the learned Single Judge on merits in regard to the interpretation of the clauses of the Will could not have influenced even the trial court.
Besides, an appeal to the Division Bench was pending.
Under the circumstances, taking a view which was different from the view reflected in the judgment of the learned Single Judge on the part of the Deputy Charity Commissioner could by no stretch of imagination be said to have been made in scant regard of the judgment of the High Court.
Nor could it ever have been construed as exhibiting disrespect for the High Court.
The Division Bench went far too far in observing to the effect that what the Deputy Charity Commissioner had done in discharging his quasi judicial functions would constitute contempt of Court.
Learned Deputy Charity Commissioner was entitled to take his own view subject to his decision being questioned in accordance with law before the High Court.
The observations made against the Deputy Charity Commissioner were therefore altogether uncalled for and unfair.
We, therefore, direct that these observations be treated as non existent.
We wish to make it clear that the Deputy Charity Commissioner has not been amiss or at fault in the smallest respect in taking the view which commended itself to him and which he was at full liberty to take under the law.
We wish to place on record that nothing said in the judgment of the Division Bench in Appeal No. 969 of 1974 should be construed as a reflection on the learned Deputy Charity Commissioner.
We are also of the view that the observations made in regard to the mode of recruitment to the office in question were also uncalled for and should be treated as non existent.
In the facts and circumstances of the case the Division Bench might will have permitted the Charity Commissioner to be substituted for the appellant before the Court for he was merely making sincere endeavour in the discharge of his official duties to protect the interest of the charity as he was duty bound to do, so as to be true to his office.
We have heard the learned counsel for the Respondent No. 16 in regard to the relief claimed against him.
Both counsel are agreeable to the directions which follow.
The status quo in regard to the property in question shall be maintained and Respondent No. 16 shall not get executed or obtain a sale deed in respect of the property in his favour or in favour of his nominees or assignees till the question is finally disposed of by the 952 Assistant Charity Commissioner or by the Appellate Authority, if any appeal is carried.
The Assistant Charity Commissioner before whom the matter is pending will have full liberty to decide the matter in accordance with law in the light of his own perception of the matter without being influenced one way or the other by any observation made in the judgment of the learned Single Judge or in the judgment of the Division Bench of the High Court which have given rise to the present Special Leave Petition.
We express no opinion on merits in regard to the effect of the relevant clauses of the Will as indeed we cannot do.
The Assistant Charity Commissioner will dispose of the matter pending before him with expedition preferably within the outside limit of six months.
The matter shall stand disposed of accordingly.
G.N. Appeal disposed of.
[/INST]% What fell for consideration in all these matters, viz., (i) SLPs.
(civil) Nos. 4826 and 7045 of 1987, (ii) SLP (civil) No. 5240 of 1987, (iii) C.M.Ps.
Nos. 12029 31/87 (in CAs Nos.
577 79 of 1987), (iv) C.M.Ps.
16635 and 16918/87 (in S.L.P. (c) No. 4826/87) and (v) Transferred Cases Nos. 13 and 14 of 1987 (with CMPs.
16887 89 and 17018/87), was a common question of law whether equity shares in two companies, i.e. 10,00,000 shares in Swadeshi Polytex Ltd. and 17,18,344 shares in Swadeshi Mining and Manufacturing Company Ltd., held by the Swadeshi Cotton Mills, vested in the Central Government under section 3 of the Swadeshi Cotton Mills Company Ltd. (Acquisition and Transfer of Undertakings) Act, 1986.
The other subsidiary question was whether the immovable properties, namely, bungalow No. 1 and Administrative Block, Civil Lines, Kanpur, had also vested in the government.
There were six original proceedings initiated by various parties which gave rise to these civil appeals, special leave petitions and transferred cases before this Court.
These were: On 18th February, 1987, a suit was filed before the Delhi High Court by one Naresh Kumar Barti against Dr. Raja Ram Jaipuria, Swadeshi Polytex and others, for an injunction restraining the company from holding the 17th annual general meeting on the ground that 34% shares in the Swadeshi Polytex vested in the National Textile Corporation (N.T.C.) in view of sections 3 and 4 of the Act.
In the suit, an application was also filed praying that in the event of the annual general meeting of the company being allowed to be held, an independent Chairman should be appointed to conduct the meeting.
The High Court 963 refused to pass any order (in view of an order already passed by the Allahabad High Court).
Against this order of the Delhi High Court, two special leave petitions were filed in this Court one by Doypack Systems Pvt.
Ltd. (defendant No. 10 in the Delhi Suit), which came to registered as Civil Appeal No. 577 of 1987 after the grant of special leave, and the other, by Naresh Kumar Barti, the plaintiff in the Delhi Suit, which came to be registered as Civil Appeal No. 578 of 1987 after the grant of special leave.
On 24th February, 1987, one Bari Prasad Aggarwal filed a suit in the court of the Third Additional Civil Judge, Kanpur praying inter alia that Shri Raja Ram Jaipuria should not preside over the 17th annual general meeting of the company.
The application for an interim injunction filed in the suit was dismissed.
In the appeal preferred by the plaintiff before the Allahabad High Court, an order was passed by the High Court on 2nd March, 1987, appointing Shri M.P. Wadhawan as the Chairman of the said annual general meeting.
Against this order dated 2nd March, 1987, passed by the Allahabad High Court M/s. Doypack System Pvt. Ltd., preferred a special leave petition in this Court, which after the grant of leave, was registered as Civil Appeal No. 577 of 1987.
The three special leave petitions were heard together as Civil Appeals Nos. 577, 578 and 579 of 1987 and disposed of by this Court by a common order on 6th March, 1987, appointing Shri Jaswant Singh as the Chairman of the said annual general meeting.
On 26th February, 1987, another suit Suit No. 506 of 1987 was filed in the Delhi High Court by Mukesh Bhasin for a declaration that Swadeshi Cotton and Swadeshi Mining had no right in respect of 34% of the share holdings in Swadeshi Polytex and that the said shares were vested in the N.T.C. by virtue of the said Act.
By order dated 9th March, 1987, the High Court disposed of that application and granted injunction restraining defendants Nos. 3 and 4 in that suit from exercising any right whatsoever attached to the 34% shares of defendant No. 2 held by them and particularly any voting right in the annual general meeting scheduled to be held on the 9th March, 1987, till the decision of the suit.
This order was brought to the notice of this Court by C.M.P. forming part of the Civil Appeals Nos.
577 579 of 1987.
On 9th March, 1987, on that C.M.P. this Court passed an order directing that NTC, Swadeshi Cotton and Swadeshi Mining, all shall be entitled to vote at the annual general meeting and the question as to who were the rightful voters would be decided by the Chairman of the meeting, etc.
This was the Transferred Case No. 14 of 1987.
964 One Mukesh Jasmani, a shareholder in Swadeshi Polytex filed a writ petition in the Allahabad High Court.
The High Court by its order dt.
7th March, 1987, dismissed that writ petition, observing that Swadeshi Cotton and Swadeshi Mining would be entitled to vote at the 17th annual general meeting in respect of their shares which, according to N.T.C., had vested in them.
Against this order, Doypack Systems preferred the Special Leave Petition (civil) No. 3112 of 1987.
This Court passed orders on this petition, directing that the meeting would be held under the chairmanship of Shri Jaswant Singh notwithstanding any order made by any Court.
This Court also vacated the operative portion of the directions contained in the order dated 7th March, 1987 of the Allahabad High Court.
On 6th April, 1987, M/s. Swadeshi Mining and Manufacturing Company filed a civil writ petition Writ Petition No. 2214 of 1987 in the Allahabad High Court (Lucknow Bench) for stay of the operation of the letters dated 24/30 March, 1987, addressed by NTC to Swadeshi Mining and Manufacturing Company and Swadeshi Cotton Mills Company Limited, calling for an Extraordinary General Meeting of the Shareholders for removal of the Directors of Swadeshi Mining and Manufacturing Company Ltd. The High Court passed an order on the 6th April, 1987, staying the operation of the said letters.
Against that order, M/s. Doypack Systems Pvt.
Ltd. filed Special Leave Petition No. 4826 of 1987 and NTC also filed a Special Leave Petition No. 5240 of 1987 in this Court.
By an order dated 5th May, 1987, this Court directed that Suit No. 506 of 1987 in the Delhi High Court and the Writ Petition No. 2214 of 1987 in the Allahabad High Court be transferred to this Court, which were registered in this Court as Transferred cases Nos.
14 and 13 of 1987 respectively.
NTC filed a civil suit in the District Court Kanpur seeking declaration of its title in respect of the shrubbery property in Kanpur.
The court refused any interlocutory injunction in the suit against which an appeal was preferred before the High Court of Allahabad and the same was dismissed.
Consequently, NTC filed a Special Leave Petition No. 7045 of 1987 in this Court.
Disposing of the matters, the Court, ^ HELD: Swadeshi Mining and Manufacturing Co. Ltd. and Others submitted that the shares in question did not vest in the Central Government.
[976B] 965 By the Act Swadeshi Cotton Mills Company Ltd. (Acquisition and Transfer of Undertakings) Act, 1986 on the appointed day "every textile undertaking" and the "right, title and interest of the company in relation to every textile mill of such textile undertakings" were transferred to and vested in the Central Government and such textile undertakings would be deemed to include "all assets".
In the context of this provision, the reliance on the decision of this Court in Balkrishnan Gupta and Others vs Swadeshi Polytex Ltd. and Others, ; , was not appropriate.
[978D E] It appears from the written statement filed by NTC on 8th February, 1987, in the suit filed by one G.G. Bakshi in Ghaziabad Court, it was claimed that NTC was entitled to take over company 's shares and investments.
On 24/30th March, 1987, NTC issued notice to the petitioners 1 and 2 stating that they were entitled to shares.
It was urged by Shri Nariman, counsel for Swadeshi Mining and Manufacturing Co. Ltd. & Ors., that this belated assertion indicated that the shares were not intended to be taken over.
The Court was unable to accept this suggestion or to draw that inference.
It did not logically follow.
[979G H; 980A] Before dealing with the main question, the Court considered an application made by Shri Nariman for the production of certain documents.
The petitioner in Transferred Case No. 13 of 1987 had sought production of the documents.
It was contended inter alia that the production of those documents was necessary to establish that the shares were never intended to be taken over and these were never considered as part of the textile undertaking, and that the documents were definitely relevant as they would throw light on the merits of the case.
The production of the documents was resisted by the Attorney General on behalf of the Union of India on the ground that the documents were not relevant and in any event most of them were privileged being part of the documents leading to the tendering of the advice by the Cabinet to the President, as contemplated by Article 74(2) of the Constitution.
[989B, C; 990A] Having considered the facts and circumstances of the case as well as the decisions of this Court in a number of cases, the Court was of the opinion that the documents in question were not relevant, and also that the Cabinet papers are protected from disclosure not by reason of their contents but because of the class to which they belong; the Cabinet papers also include papers brought into existence for the purpose of preparing submission to the Cabinet, and it is the duty of this Court to 966 prevent disclosure where Article 74(2) is applicable.
The Court was unable to accept the prayer of the petitioner to direct disclosures and production of the documents sought for.
[993F G; 994H] Coming to the main question involved, reading the provisions of section 3(1), section 4(1) and section 2(k) of the Act, each throwing light on the other, it follows that (a) under the first limb of section 3(1) of the Act, every textile undertaking; (b) under the second limb of section 3(2), every right, title and interest of the company in relation to every such undertaking, is transferred and vested, (c) the deeming provision of section 4(1) amplifies and enlarges both the limbs of the vesting section, being section 3(1), (d) the definition of the section is read into these provisions, to give a wider meaning and scope to the vesting provision and to what is transferred or vested.
[997G H; 998A] Sections 7 and 8 of the Act relied upon by the petitioners, being provisions for payment of amounts and for the issue of shares by NTC respectively, will have no bearing on the scope of the vesting provision.
As to what properties have vested cannot proceed on the hypothesis that there is a clear numerical or mathematical link between the quantum of compensation and the items of property vested.
This correlation with regard to such legislation is not available.
[998B] Section 8 refers to the payments of the amounts by Union of India to the company.
It has no bearing either on the vesting section or on section 7 except that the figure of Rs.24 crores 32 lakhs was introduced into section 7.
[998C D] In this case, a nationalisation statute is concerned.
Even with other independent management statutes, in respect of textile undertakings a series of decisions have upheld the view that the shares vest in the Government.
See National Textile Corporation Ltd. vs Sitaram Mills, [1986] Supp.
S.C.C. 117, Minerva Mills vs Union of India, ; , Goverdhan Das Narasingh Das Daga vs Union of India, , Vidharba Mills Berar Ltd. vs Union of India, and Fine Knitting Co. Ltd. vs Union of India, The above provide the informed basis on which the Court makes construction of sections 3 and 4 of the Act.
[998G H; 999A B] The expressions "and all other rights and interest in or arising out of such property, as were immediately before the appointed day, in the ownership, possession, power or control of the company in relation to the said undertakings", appearing in sub section (1) of section 4 of the 967 Act indicates that the shares which have been purchased out of the funds of the textile undertakings and which have been held for the benefit of the said textile undertakings, would come within the scope of section 4 of the Act and thus would also vest in the Central Government under section 3.
The origin of these shares and their connection with the textile undertakings had been fully corroborated.
The textile business was the only business of the Swadeshi Cotton Mills.
There was inter connection and inter relation between all the six undertakings.
Investments in Swadeshi Polytex Limited from the funds of Kanpur undertaking were always made.
Investments in Swadeshi Mining and Manufacturing Company Ltd. were always made from the funds of the Kanpur undertaking.
Assets/investments held and used for the benefit of the textile business of SCM were carried on in its textile undertakings.
[999B E] The words in the statute must Prima facie be given their ordinary meaning.
Where the grammatical construction is clear and manifest and without doubt, that construction ought to prevail unless there are some strong and obvious reasons to the contrary.
Nothing was shown to warrant that literal construction should not be given effect to.
See Chandavarkar S.R. Rao vs Asha Lata, ; at 476, approving 44 Halsbury 's Laws of England, 4th ed.
paragraph 856, p. 552, Nokes vs Doncaster Amalgamated Colliery Ltd., [1940] Appeal Cases 1014 at 1022.
It must be emphasised that interpretation must be in consonance with the Directive Principles of the State Policy in Articles 39(b) and (c) of the Constitution.[999E G] The object of interpretation of a statute is to discover the intention of the Parliament as expressed in the Act.
The dominant purpose in constructing a statute is to ascertain the intention of the legislature as expressed in the statute, considering it as a whole and in its context.
That intention and, therefore the meaning of the statute are particularly to be sought in the words used in the statute itself, which must, if they are plain and unambiguous, be applied as they stand.
In the present case, the words used represented the real intention of the Parliament as the Court found not only from the clear words used but also from the very purpose of the vesting of the shares.
If the fact is borne in mind that these shares were acquired from out of the investments made by these two companies and furthermore that the assets of the company as such minus the shares were negative and further the Act in question was passed to give effect to the principles enunciated in clauses (b) and (c) of Article 39 of the Constitution, no doubt was left that the shares vested in the Central Government by operation of sections 3 and 4 of the 968 Act.
See in this connection, the observations of Halsbury 's Laws of England, 4th Edition, Volume 44, paragraph 856, p. 522 and the cases noted therein.
[999G H; 1000A C] There is no exact correlation between the figure of capital reserve and the figure of investments.
That could not be.
These could never be equal.
The submission of the petitioners failed to take into account the fact the undertakings, other than the Kanpur undertaking, also had capital reserve, even though there was no obligation that these were excluded assets in respect of other undertakings and there were no figures of investments therein.
[1000D E] Contemporanea Expositio is a well settled principle or doctrine which applies only to the construction of ambiguous language in old statutes.
Reliance might be placed in this connection on Maxwell, 13th Ed. page 269.
It is not applicable to modern statutes.
Reference may be made to G.P. Singh, Principles of Statutory Interpretation, 3rd Ed. pages 238,239.
The leading case on Contemporanea expositio is Comppell College Belfast vs Commissioner of Valuation for Northern Ireland, , in which House of Lords made it clear that the doctrine is to be applied only to the construction of ambiguous language in the very old statutes.
Lord Watson said in Clyde Navigation Trustees vs Laird, [1983] 8 A.C. 658 that Contemporanea expositio could have no application to a modern Act.
The Court, therefore, rejected the attempt of the petitioners to lead the Court to this forbidden track by referring to various extraneous matters.
Furthermore, those external aids sought before the Court did not support the petitioners ' approach to this question at all.
[1000F H; 1001A] Sections 3 and 4 of the Act evolve a legislative policy and set out the parameters within which it has to be implemented.
The Court could not find that there was any special intention to exclude the shares in this case, as seen from the existence of at least four other Acquisition Acts which used identical phraseology in sections 3 and 4 and the other sections as well Aluminium Corporation of India Ltd. (Acquisition and Transfer of Aluminium Undertakings) Act, 1984, Amritsar Oil Works (Acquisition and Transfer of Undertakings) Act, 1982, Britannia Engineering Company (Mohmeh Unit) and the Arthur Butler and Company (Muzaffarpore) Ltd. (Acquisition and Transfer of Undertakings) Act, 1978, and the Ganesh Flour Mills Company Limited (Acquisition and Transfer of Undertakings) Act, 1984.
[1001E F] 969 It appeared to the Court that the expression "forming part of" appearing in section 27 could not be so read with section 4(1) as would have the effect of restricting or cutting down the scope and ambit of the vesting provisions in section 3(1).
The expression "pertaining to" did not mean "forming part of".
Even assuming that the expression "pertaining to" appearing in the first limb of section 4(1) means "forming part of", it would mean that only such assets as had a direct nexus with the textile mills, would fall under the first limb of section 4(1).
The shares in question would still vest in the Central Government under the second limb of section 4(1) of the Act since the shares were bought out of the income of the textile mills and were held by the company in relation to such mills.
The shares would also fall in the second limb of section 3(1) being right and title of the company in relation to the textile mills.[1002C E] On the construction of sections 3 and 4, the Court came to the conclusion that the shares vested in the Central Government even if sections 3 and 4 were read in conjunction with sections 7 and 8 of the Act on the well settled principles.
The expression 'in relation to ' has been interpreted to be words of the widest amplitude.
See National Textile Corporation Ltd. and Ors.
vs Sitaram Mills Ltd. (supra).
Section 4 appears to be an expanding section.
It introduces a deeming provision, which is intended to enlarge the meaning of a particular word or include matters which otherwise may or may not fall within the main provisions.
It is well settled that the word 'includes ' is an inclusive definition and expands the meaning.
[1002F G] To leave a company, the net wealth of which was negative at the time of take over of the management, with the shares held by it as investment in the other company, was, in the Court 's opinion, not only to defeat the principles of Articles 39(b) and (c) of the Constitution, but it would permit the company to reap the fruits of its mismanagement.
That would be an absurd situation.
It had to be borne in mind that the net wealth of the company at the time of take over was negative; hence sections 3 and 4 could be meaningfully read if all the assets including the shares were considered to be taken over by the acquisition.
That was the only irresistible conclusion that followed from the construction of the documents and the history of the Act, which expressly recites that it was to ensure the principles enunciated in clauses (b) and (c) of Article 39 of the Constitution.
The Act must be so read that it further ensures such meaning and secures the ownership and control of the material resources to the community to subserve the common good to see that the operation of the economic system does not result in injustice.
[1003F H; 1004A] 970 The shares vested in the Central Government.
Accordingly, the shares in question were vested in the N.T.C. and it had right over the said 34 per cent of the share holdings.
[1004B] The 10,00,000 shares in the Swadeshi Polytex Ltd. and 17,18,344 in the Swadeshi Mining and Manufacturing Company Ltd. held by the Swadeshi Cotton Mills vested in the Central Government under sections 3 and 4 of the Act.
[1004B C] In view of the amplitude of the language used, the immovable properties, namely, the Bungalow No. 1 and the Administrative Block, Civil Lines, Kanpur, also vested in the NTC.
[1004C D] In that view of the matter, in Transferred Case No. 13 of 1987, the Writ Petition No. 2214 of 1987 was dismissed.
All interim orders were vacated.
This would dispose of the various other SLPs and CMPs connected with the Lucknow writ petition, being SLP (Civil) No. 4826 of 1987 filed by Doypack Systems Pvt. Ltd., SLP (Civil) No. 5240 of 1987 filed by NTC.
CMPs 16918 and 16919 of 1987 in SLP No. 4826 of 1987 would stand disposed of in the above light.
[1004D F] In the Transferred Case No. 14 of 1987 (in Suit No. 506 of 1987), the Court held that 10 lakhs and 17 lakhs equity shares and the Swadeshi House at Kanpur and all the rights, title and interest attached therewith, related to the textile undertaking of defendant No. 3 and they vested in NTC with effect from 1st April, 1985, and defendants Nos. 3 and 4 were restrained by a decree of permanent injunction from dealing with them in any manner whatsoever.
Defendant No. 2 was restrained by permanent injunction from recognising defendants Nos. 3 and 4 as owners of the aforesaid shares and the Swadeshi House.
[1004F G] Defendant No. 2 was directed to enter the name of defendant No. 1, namely, NTC in its register of members and to treat the said defendant No. 1 as its share holder instead of defendants Nos. 3 and 4 in respect of the shares of defendant No. 2 held by them.
In view of the provisions of law under section 108 of the Companies Act, as there was transmission of shares by operation of law, rectification was not necessary.[1004H; 1005A B] Civil Appeals Nos.
577 to 579 of 1987 were disposed of in the above terms and it was directed that the 17th annual general meeting be held in accordance with law after giving proper notice under the 971 Chairmanship of Shri Jaswant Singh.
[1005C] CMPs Nos.
12760 of 1987 in Civil Appeal No. 577 of 1987 would stand disposed of in terms of the orders in the Transferred Case No. 14 of 1987 and it was directed that the Chairman should act in accordance with the aforesaid decision and NTC should be considered to be entitled to vote.
CMP 16887 of 1987 was rejected.
[1005D] CMP 16888 of 1987 was an application by Doypack Systems Ltd. to be impleaded as a party respondent in the Transferred Case No. 13 of 1987.
Doypack Systems was permitted to argue and was heard as a party.
No further order was necessary.
[1005E] CMPs Nos. 16889 and 17018 of 1987 were allowed.
CMP No. 18268 of 1987 was disposed of with the direction that no further documents needed to be inspected.
In view of the orders, the other CMPs were no longer necessary to be disposed of.
[1005F] Irrespective of any order passed by any court, the 17th annual general meeting should be held in accordance with law, to be presided over by Shri Jaswant Singh, recognising NTC as the rightful owner of the disputed shares.
[1005G] Balkrishan Gupta & Ors.
vs Swadeshi Polytex Ltd. and Ors., ; ; Swadeshi Cotton Mills vs Union of India, ; ; National Textile Corporation vs Sita Ram Mills; , ; Minerva Mills.
vs Union of India; , ; Goverdhan Das Narasingh Das Daga vs Union of India, ; ; Vidharba Mills Berar Ltd. vs Union of India, ; Kumari Sunita Ramachandra vs State of Maharashtra and another; , at 704, c to e; Doctor (Mrs.) Sushma Sharma vs State of Rajasthan, ; at 263; Fine Knitting Co. Ltd. vs Union of India, ; State of West Bengal vs Union of India, [1964] 1 SCR 371 at 379, 380, 381 and 382; The Central Bank of India vs Their Workmen, ; at 217; Babaji Kondaji Garad vs Nasik Merchants Co_operative Bank Ltd., Nasik and Others, ; , Paragraphs 14 and 15; Sanjeev Coke Manufacturing Company vs Bharat Coking Coal Ltd. & another; , at 1029; K.P. Verghese vs The Income tax Officer, Ernakulam and another; , ; Chern Taong Shang & Another, etc. etc.
vs Commander S.D. Baijal & Ors., J.T. ; Auckland Jute Co. Ltd. vs Tulsi Chandra Goswami, at 244; RM AR.AR.R.M.AR.
Umayhal Achi vs Lakshmi Achi and Others, ; Black_Clawson International Ltd. vs Papierwerke Waldhof Achaffenburg A.G.; , at 613; S.P. Gupta vs Union of India and others, [1982] 2 S.C.R. 365 at 594; State of U.P. vs Raj Narain, ; ; The Elphinstone Spinning and Weaving Mills Company Ltd. vs Union of India and others, writ petition No. 2401 of 1983; State of Bihar vs Kripalu Shankar, ; at 1559; Bachittar Singh vs State of Punjab, [1962] Suppl.
3 SCR 713; Air Canada and others vs Secretary of State and another, at 180; State Wakf Board vs Abdul Aziz, A.I.R. 1968 Madras 79, 81; Nitai Charan Bagchi vs Suresh Chandra Paul, ; Shyam Lal vs M. Shyamlal A.I.R. 1933 All. 649, 76 Corpus Juris Secundum 621; R.C. Cooper vs Union of India, ; at 567, 568, 635; Khajamian Wakf Estates, etc.
vs State of Madras & another; , , at 796 B E; Harakchand Ratanchand Banthia and others, etc.
vs Union of India and others; , at 496 P & G; Chandavarkar S.R. Rao vs Asha Lata, ; , 476; 44 Halsbury 's Laws of England 4th Ed.
paragraph 856 at page 552; Nokes vs Doncaster Amalgamated Colliery Limited, [1940] Appeal Cases 1014, 1022; Campbell College Belfast vs Commissioner of Valuation for Northern Ireland, ; Clyde Navigation Trustees vs Laird, ; The Corporation of the City of Nagpur vs Its Employees, ; ; Vasudev Ramchandra Shelat vs Pranlal Javanand Thakar and others, [1975] 1 SCR 534, Palmer 's Company Law 24th Ed. ; Mahadeo Lal Agarwala and another vs The New Darjeeling Union Tea Co. Ltd. and others, A.I.R. 1952 Cal.
58 and Unity Company Pvt. Ltd. vs Diamond Sugar Mills and others
A.I.R.
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<s>[INST] Summarize the judgementCivil Misc.
Petitions Nos.
20021 22 of 1986.
in Civil Appeal No. 2924 of 1984.
From the Judgment and order dated 22.7.1983 of the Delhi High Court in W.P. No. 963 of 1982.
S.N. Kacker, P.M. Amin, Atul, B. Munim and Ashok Grover for the Applicant.
A.K. Ganguli, Miss Sushma Relan and Miss A. Subhashini for the Respondents.
The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J.
These two Civil Misc.
Petitions are by Star Diamond Company India.
The applicant has referred to the judgments of this Court in Raj Prakash 's case dated 5th March, 1986 and Indo Afghan Chamber of Commerce 's case ; dated 15th May, 1986.
The applicant states that the applicant was neither a party nor was served with any notice of the said proceedings resulting in the.
said two decisions.
According to the applicant, it was not bound by the directions therein.
We are unable to accept the said contentions.
Such decisions of Court laying down the position in law are laws binding on all.
In the order of this Court dated 18th April, 1985, the question of 783 entitlement under certain circumstances came up for consideration.
The Government had wrongfully refused to allow Export House Certificates to those who had not diversified their exports.
It was held by this Court following the decisions of several High Courts that this was wrong.
This Court in the order dated 18th April, 1985 in Civil Appeal No. 1423 of 1984, (a) confirmed the orders of the High Court, quashed the impugned orders of the Government and directed the Government to issue necessary Export House Certificates for the year 1978 79; (b) It was further directed that Export House Certificates should be granted within three months from this date.
(c) Save and except items which are 'specifically banned under the prevalent import policy at the time of import ', the parties the merchants would be entitled to import all other items whether canalised or uncanalised, and in accordance with the relevant rules.
Both canalised and uncanalised items could be imported in accordance with the relevant rules except those which were specifically banned under the prevalent import policy at the time of import.
The effect of this direction came to be considered in Raj Prakash Chemicals Ltd. vs Union of India (supra).
We have this date explained the effect of the same in Union of India vs M/s Godrej Soaps Pvt. Ltd & Anr., (Civil Appeal No. 3418/86 arising out of SLP (Civil) No. 8144 of 1986).
This question further came up for examination in the case of M/s Indo Afghan Chamber of Commerce & Ors.
vs Union of India, (Writ Petition No. 199 of 1986) (supra).
This day we have also in the judgment in M/s Godrej Soap 's case explained the true purport of the said decision.
The respondents have not permitted, according to the applicant clearance of the goods in view of the said two decisions referred to hereinbefore.
The case of the applicant is that it is not bound as the applicant was neither a party to any of the aforesaid proceedings nor any notice was given.
We are unable to accept this position.
For what we held in the said two decisions, we crave leave to refer to the said two decisions.
We reiterate as we have mentioned in M/s Godrej Soaps ' case whether importation of canalised items would be covered by the order was not adverted to in the first order dated 18th April, 1985.
Use of the expression "whether canalised or not" was intended to convey that both canalised and non canalised items would be covered within the ambit of the order.
The position has been clarified by the letter dated 18th June, 1986 written by the respondent which appears at page 132 of the Paper 784 Book.
It has been mentioned that the holders of additional licence issued for 1978 79 would be entitled to import only those goods which are included in Appendix 6 Part 11 of AM 85 88.
The fact that the Additional Secretary to the Government of India, Ministry of Finance (Department of Revenue) on 23rd April, 1986 wrote a letter which is not in consonance with the subsequent direction would not in any way affect the position or create any estoppel.
Nor can such a letter be used as an argument that that was the government 's understanding of the matter.
That is irrelevant.
In the premises the interim order prayed for in these applications is refused.
The applications are thus disposed of.
There will be no order as to costs.
[/INST]Section 384 of the Punjab Municipal Corporation Act 1976 states that the procedure provided in the Code of Civil Procedure in regard to suits shall be followed, as far as it can be made applicable, in the disposal of applications, appeals or references that may be made to the District Judge under the Act or any bye law made thereunder.
A dispute between the Railways and the Municipal Corporation resulted in revocation of the sanction for construction of certain shops situated on the road along side the railway line in the city of Amritsar.
Subsequently, the Municipal Commissioner passed an order directing demolition of these shops.
The appellant, who is an allottee of one of these shops on licence from the Railways, being aggrieved by that order preferred an appeal before the District Judge under section 269(2) of the Act.
In that appeal, the District Judge rejected an application submitted by the appellant for recording of evidence.
The appellant filed a writ petition against that order before the High Court which took the view that if the District Judge so feels the application for recording of evidence could be considered under Order 41, Rule.27 of the Code of Civil Procedure.
In the appeal by Special Leave to this Court on the question: 618 Whether in an appeal filed under section 269(2) of the Punjab Municipal Corporation Act 1976, the procedure of a civil suit as provided in the Code of Civil Procedure will have to be followed in view of the language of section 384 of the 1976 Act.
Dismissing the Appeal, the Court, ^ HELD: The language used in section 384 of the Punjab Municipal Corporation Act 1976 only indicates that the procedure as provided in the Code of Civil Procedure in regard to a suit will have to be followed in proceedings under that Act when the matter goes to the District Judge either by way of an application, reference or appeal.
The use of the phrase "as far as it can be made applicable" in that section goes to show that it is not expected in any one of the proceedings contemplated therein that is, applications, appeals and references to follow the procedure of a suit technically and strictly in accordance with the provisions contained in the Code of Civil Procedure.
It is only for the purposes of guidance that the procedure of a suit as Provided in the Code of Civil Procedure can be considered.
[621A B; C D] In an appropriate case whenever the District Judge feels satisfied he may give an opportunity to the parties to lead evidence under Order 41, Rule 27 of the Code of Civil Procedure, as it will be open to him to apply the procedure as far as it can be made applicable in the facts and circumstances of each case.
[621E F] It, therefore, could not be said that in an appeal under section 269 sub cl.(2) before a District Judge the procedure of a suit as provided in the Code of Civil Procedure will be necessary.
[621B C]
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<s>[INST] Summarize the judgementvil Appeal Nos. 9 15 of 1986 etc.
From the Judgment and Order dated 4.9.1985 of the Andhra Pradesh High Court in W.P. Nos.
8120, 8121, 7932, 8095, 8032, 8107 and 8 109 of 1984.
B. Datta, Additional Solicitor General, P.P. Rao, C.V. Subba Rao, R.P. Srivastava, B. Parthasarthi, K.V. Sreekumar, D. Vidyanandam, M.K.D. Namboodary, T.V.S.N. Chaff, Ms. V. Grover, Ms. Anita, W.A. Qadri, A. Subba Rao, A.T.M. Sampath, R. Venkataramani, R.A, Perumal, S.M. Garg and section Markandeya for the appearing parties.
The Judgment of the Court was delivered by CHINNAPPA REDDY, J.
The question raised in these appeals is whether an 'establishment in the public sector ' or an 'establishment in the private sector ' as defined in the may make appointments to posts to which the Act applies, of persons not sponsored by the Employment Ex changes? A further question is whether the Act covers Gov ernment establishments also? A Division Bench of the High Court of Andhra Pradesh has held that the Act has no appli cation to Government establishments, that the Act casts no obligation either on the public sector establishment or on the private sector establishment to make the appointments from among candidates sponsored by the 913 Employment Exchanges only and that any insistence that candidates sponsored by the Employment Exchanges alone should be appointed would be contrary to the right guaran teed by articles 14 and 16 of the Constitution.
The learned Additional Solicitor General appearing for the Union of India argued that the object and the scheme of the Employ ment Exchanges (Compulsory Notification of Vacancies) Act and the instructions issued by the Government of India from time to time left no option to the employers but to confine their field of choice to candidates sponsored by the Employ ment Exchanges.
It was argued that such insistence that appointments should be made from candidates sponsored by the Employment Exchanges only did not offend articles 14 and 16 of the Constitution.
He also argued that the Act was applicable to Government Establishments also.
We may refer to the provisions of the Employment Ex changes (Compulsory Notification of Vacancies) Act, 1959 without further ado.
The title of the Act itself suggests that the compulsion is in regard to notifying of vacancies only and nothing more.
The preamble to the Act, like the title of the Act, also does not 'suggest any compulsion in the making of appointments, but only in the notifying of vacancies.
The preamble says "An Act to provide for the compulsory notification of vacancies to employment ex changes." Section 2(e), (f) and (g) defines "establishment", "establishment in public sector" and "establishment in private sector" as follows: "(e) "establishment" means (a) any office, or (b) any place where any industry, trade, business or occupation is carried on; (f) "establishment in public sector" means an establishment owned, controlled or managed by (1) the government or a department of the Government; (2) A Government company as defined in section 617 of the ; (3) A corporation (including a cooperative society) established by or under a Central, Provincial or State 914 Act, which is owned, controlled or managed by the Government; (4) A local authority; (g) "establishment in private sector" means an establishment which is not an estab lishment in public sector and where ordinarily twenty five or more persons are employed to work for remuneration;" The High Court thought that the definition of "establishment in public sector" as meaning an establishment owned, con trolled or managed by the Government or a Department of the Government indicated that an establishment in public sector was something different from the Government or a Department of Government and did not include the Government or Depart ment of the Government.
It had to be something which could be owned, controlled or managed by the Government or a department of the Government.
The High Court also thought that the expression 'public sector ' was used in contradic tion to 'private sector ' and that it could not include offices of the Government.
The expression would only take in an agency or instrumentality of the State, but not the State itself.
We are unable to agree with the conclusion of the High Court on this part of the case.
If the definition of 'establishment ' which includes an 'office ' is read alongside the definition of 'establishment in public sector ', it will be clear that Government offices are also included in the expression 'establishment in public sector '.
That is the interpretation which the Government itself is advancing before us and that is how the Government has always under stood the provision during these three decades as will be evident from the instructions issued by the Government from time to time to which we shall be referring later in the course of our judgment.
We are unable to agree with the view of the High Court that the Act is not applicable to Govern ment establishments.
Section 3 of the Act specifies posts, vacancies to which the Act does not apply.
Section 4 provides for the notifica tion of vacancies to employment exchanges.
It is desirable to extract the whole of sec.
4 which is as follows: "4.
(1) After the commencement of this Act in any State or area thereof, the employer in every establishment in public sector in that State or area shall, before filling up any vacancy in any employment in that establish ment, 915 notify that vacancy to such employment ex changes as may be prescribed.
(2) The appropriate Government, may, by notification in the Official Gazette, require that from such date as may be speci fied in the notification, the employer in every establishment in private sector or every establishment pertaining to any class or category of establishments in private sector shall, before filling up any vacancy in any employment in that establishment notify that vacancy to such employment exchanges as may be prescribed, and the employer shall thereupon comply with such requisition.
(3) The manner in which the vacancies referred to in subsection (1) or sub section (2) shall be notified to the employment exchanges and the particulars of employments in which such vacancies have occurred or are about to occur shall be such as may be prescribed.
(4) Nothing in sub sections (1) and (2) shall be deemed to impose any obligation upon any employer to recruit any person through the employment exchanges to fill any vacancy merely because that vacancy has been notified under any of the sub sections.
" Section 5 deals with the duty of the employers to furnish information and returns in prescribed forms.
Section 6 provides for official access to records and documents.
Section 7 provides for penalties.
Section 8 deals with cognizance of offences.
Section 9 provides for protection of action taken is good faith.
Section 10 vests the rule making power in the Central Government.
It is evident that there is no provision in the Act which obliges an employer to make appointments through the agency of the Employment Exchanges.
Far from it, sec.
4(4) of the Act, on the other hand, makes it explicitly clear that the employer is under no obligation to recruit any person through the Employment Exchanges to fill in a vacancy merely because that vacancy has been notified under sec.
4(1) or sec.
In the face of sec.
4(4), we consider it utterly futile for the learned Additional Solicitor General to argue that the Act imposes any obligation on the employ ers apart from notifying the vacancies to the Employment Exchanges.
The learned Additional Solicitor General invited our attention to the speech of the Minister of Labour and 916 Employment and Planning (Shri Nanda) made at the time of the introduction of the Employment Exchanges (Compulsory Notifi cation of Vacancies) Bill.
Far from being of any assistance to the learned Addititional Solicitor General, the speech appears to be against his submission.
In his speech, the Minister quoted from the report of the Training and Employ ment Services Organisation Committee and observed that the recommendation of the Committee offered a full explanation of the provisions of the Bill.
The recommendation of the Committee which he quoted was, "Though we have not, for the present, recommended compulsion on private employers to recruit through the employment exchanges, we recommend that they be required on a compulsory basis to notify to the Exchanges all vacancies, other than vacancies for unskilled categories, vacancies of very temporary duration and vacan cies proposed to be filled through promotion.
" The Minister further said, "The main thing is that an obligation is being placed that after this legislation becomes operative, from that date, the employer in every establishment in the public sector shall, before filling up any vacancy in any employ ment in that establishment, notify that vacancy to such Employment Exchanges as may be prescribed.
And so far as the private sector is concerned, there is this further qualifi cation that the Government concern may specify by notifica tion that the employer in every establishment in private sector or every establishment pertaining to any class or category of establishments in private sectors shall, before filling up any vacancy in any employment in that establish ment, notify that vacancy to such Employment Exchanges as may be prescribed.
This is the kernel of this provision.
This is the main object, that is, an obligation placed on the employer to notify the vacancies that may occur in their establishment before filling these vacancies.
" The Minister was conscious that there was a likelihood of the Bill being misunderstood as compelling the employers to make appoint ments through the Employment Exchanges only.
He clarified the position saying, "The misunderstanding is as if this Bill gives power to the Government to compel the employers to recruit only such persons as are submitted by the employ ment exchanges.
That is not so.
This compulsion extends only to notification of vacancies.
Naturally the employer has to consider the names which are submitted by the employment exchanges but there is no compulsion that they must restrict to the choice only to the least that is submitted to them.
Of course, there is also the objection from the other side that it may not go far enough.
We believe that even this will make things very much better.
In any case, when the Committee reported, they also suggested this much advance.
At present, they said, we should have only compulsory noti fication, but, not compel the emp 917 loyers to recruit only out of the least that is sent by the employment exchanges.
" As we said the speech of the Minister, at the time of the introduction of the Bill, is totally destructive of the contention of the learned Additional Solicitor General that the employers arc under an obligation to recruit persons for appointment through the Employment Exchanges only.
The learned Additional Solicitor General requested us to give a purposive interpretation to the provisions of the Act and insist that employers, in making appointments, should re strict their field of choice to candidates sponsored by the employment exchanges.
We are unable to appreciate the argu ment since there is no provision of the Act which requires interpretation by us and which we may reasonably interpret as compelling the employer to appoint persons sponsored by the employment exchanges.
On the other hand, we have already referred to sec.
4(4) which is explicit that there is no such obligation on the part of the employer.
We also notice that the object of the Act is not to restrict the field of choice in any particular manner, but to enlarge the field of choice.
That is why in his introductory speech, the Minister said," . . a large number of employers, particularly in similar industrial establishments and in construction works, do not employ any scientific method, but depend for their supply of labour on agents or recruit in a haphazard manner from amongst these assembled at factory gates or at works sites.
The methods adopted are not always dictated by a consideration of efficient service, but as more a matter of bestowing patronage and favour.
This applies in varying degrees to a large number of employers.
" The Minister dis cussed the existing position and anticipated position in the following words: "The Act of notification of vacancies has important consequences.
In the first place, so far as the employer is concerned, he will be placed in a position to have a much wider choice for the purpose of selection.
Now, what is the present position? Any person knocks at the gate of the factory or the mill or other establishment and from those few who are there they choose.
Now it would be possible for them to have a wider area of selection.
The names of so many others who may not be able to go and knock at every gate, can be submitted and out of them, the best can be selected.
So far as the quoting of selection is concerned, it should improve because of the wider range of choice.
On the side of the worker certainly it means a more equitable distribu 918 tion of employment opportunities.
It should not be necessary for a person to be all the day moving from place to place.
It should be sufficient for him to register at a place, give all the particulars about his qualifica tions and then he should be sure that at any rate, his name will be considered along with other names and there will be some regard for fitness in the choice of people who enter these new places for employment.
" It is, therefore, clear that the object of the Act is not to restrict, but to enlarge the field of choice so that the employer may choose the best and the most efficient and to provide an opportunity to the worker to have his claim for appointment considered without the worker having to knock at every door for employment.
We are, therefore, firmly of the view that the Act does not oblige any employer to employ those persons only who have been sponsored by the employment exchanges.
The next question for consideration is whether the instructions issued by the Government from time to time have the effect of compelling the employers to restrict their field of choice to candidates sponsored by the employment exchanges.
We may straightaway rarer to some of the instruc tions on which reliance was placed by the learned Additional Solicitor General.
In O.M. No. 14/11/64 Estt.
(D) dated March 21, 1964, the Ministry of Home Affairs addressed all the Ministries regarding recruitment of staff through the agency of the National Employment Service and the utilisa tion of Employment Exchanges by quasi government institu tions and statutory organisations.
It is enough if we ex tract paragraphs 1, 4 and 5 of this communication which are as follows: "1.
The undersigned is directed to say that in paragraph 6 of this Ministry 's office Memoran dum No. 71/40 DGS (Apptts) dated the 11th December, 1949 (copy enclosed) it was laid down that all vacancies in Central Government Establishments, other than those filled through the Union Public Service Commission should be notified to the nearest Employment Exchange and that no Department or office should fill any vacancy by direct recruitment unless the Employment Exchanges certified that they were unable to supply suitable, candi dates.
Subsequently in this Ministry 's Office Memorandum Nos.
71/49 DGS (Apptts) dated 30th January, 1951 and 71/222/56 CS(C) dated the 919 14th December, 1956 (copy enclosed).
The Ministry of Finance etc. were requested to issue immediate instructions to all quasi Government institutions and statutory Organi sations with which they were concerned asking them to fall in line, as far as possible, with the Central Government establishments in the matter of recruitments, by suitably amending their recruitment rules or adopting Resolu tions to achieve this object if necessary.
The Ministries were also requested to impress upon these institutions that it was in their own interest as well as in the interest of the country as a whole that recruitment should be made through the Employment Exchanges, as a large number of experienced and trained hands were available on their registers and the need for tapping other sources of recruitment should arise only if the Employment Exchange has certified that they were unable to nomi nate suitable recruits from their registers.
. . . . . . . . . . . . . . . . . 4.
Under the EE (CNV) Act, recruitment of staff through the Employment Service is volun tary so far as the private sector is con cerned.
Even so, efforts are made by the Employment Service to persuade the private sector to accept candidates sponsored by the Employment Exchanges.
The Directorate General of Employment and Training are placed in a very embarrassing situation when they have to approach the State Governments and establish ments in the private sector to utilise the Employment Service in filling up the vacan cies, when some establishments in the public sector do not recognise the Employment Service as the normal channel of recruitment.
It is accordingly requested that the Minis try of Finance etc., may issue instructions to all quasi Government institutions and Statuto ry Organisations with which they are concerned requiring them to notify vacancies in the manner and form prescribed in Rule 4 of the EE(CNV) Rules 1960 to the prescribed Employ ment Exchange and to fall in line with the Central Government Departments in the recruit ment of staff through the agency of the Em ployment 920 service.
The need for issuing advertisements for inviting applications or tapping other sources of recruitment should be considered only if the Employment Exchanges issue non availability certificates.
A copy of the instructions issued by the Ministry of Finance etc., may kindly be endorsed to the Ministry of Home Affairs and the Directorate General of Employment and Training.
" It will be noticed that in order to give effect to such instructions in the case of quasi Government institutions and statutory organisations, it would be necessary to suit ably amend the recruitment rules or adopt resolutions to achieve that object.
This is so mentioned in para 1.
In Office Memorandum No. 14/22/65 Estt.
(H) dated June 12, 1968, the Ministry of Home Affairs informed all the other Ministries: "The undersigned is directed to say that in paragraph 6 of this Ministry 's O.M. No. 71/49/DGS (Apptt) dated the 11th December, 1949, it was laid down that all vacancies in Central Government Establishments, other than those filled through the Union Public Service Commission, should be notified to the nearest Employment Exchange and that no Department or Office should fill any vacancy by direct recruitment unless the Employment Exchange certified that they were unable to supply candidates." In office Memorandum No. 14024/2/77 Estt(D) dated April 12, 1977, the Department of Personnel addressed all the Minis tries/Departments and said, "As the Ministry of Agriculture and Irrigation, etc. are aware, in accordance with the instructions issued by the Central Govern ment (vide marginally noted communications), all vacancies arising under Central Government Offices/establishments (including quasi Gov ernment institutions and statutory organisa tions), irrespective of the nature and dura tion (other than those filled through the Union Public Service Commission), are not only to be notified to, but also to be filled through, the Employment Exchange alone and other permissible sources of recruitment can be tapped only if the Employment Exchange concerned issued a non availability ' certifi cate.
There can be no departure from this recruitment procedure unless a different arrangement in this regard has been previously 921 agreed to in consultation with this Department and the Ministry of Labour (Directorate Gener al of Employment and Training).
Similar in structions are also in force requiring vacan cies against posts carrying a basic salary of less than Rs.500 p.m. in Central Public Employment Exchanges.
" It is clear that it is the desire of the Government of India that all Government Departments, Government Organisa tion and statutory bodies should adhere to 'the rule that not merely vacancies should be notified to the Employment Exchanges, but the vacancies should also be filled by candi dates sponsored by the Employment Exchanges.
It was only when no suitable candidates were available, then other sources of recruitment were to be considered.
While the Government is at perfect liberty to issue instructions to its own departments and organisations provided the instruc tions do not contravene any constitutional provision or any statute, these instructions cannot bind other bodies which are created by statute and which function under the authori ty of statute.
In the observation of any statutory prescrip tion the statutory authority may however adopt and follow such instructions if it thinks fit.
Otherwise, the Govern ment may not compel statutory bodies to make appointments of person from among candidates sponsored by employment ex changes only.
The question, of course, does not arise in the case of private employers which cannot be so compelled by any instructions issued by the Government.
The further question is whether the instruction issued by the Government that in the case of Government Departments the field of choice should, in the first instance, be re stricted to candidates sponsored by the employment exchanges offend articles 14 and 16 of the Constitution.
Shri P. Parmesh wara Rao, learned counsel appearing for some of the respond ents strenuously urged that such a restriction would offend the equality clauses of the Constitution, namely, articles 14 and 16.
He urged that when Parliament had gone into the question and decided that there should be no compulsion in the matter of appointment by way of restriction of the field of choice, it was not open to the Government to impose such compulsion.
He argued that it would be unreasonable to restrict the field of choice to these sponsored by the employment exchanges.
In a country so vast as India, in a country where there was so much poverty, illiteracy and ignorance, it was not fight that employment opportunities should necessarily be channelled through the employment exchanges when it is not shown that the network of employ ment exchanges is so wide, that it reaches all the 922 corners of this vast country.
He argued that it is futile to expect that persons living in distant places could get themselves registered with employment exchanges situated far away.
The submission of Shri Parmeshwara Rao is indeed appealing and attractive.
Nonetheless, we are afraid we cannot uphold it.
The object of recruitment to any service or post is to secure the most suitable person who answers the demands of the requirements of the job.
In the case of public employment, it is necessary to eliminate arbitrari ness and favouritism and introduce uniformity of standards and orderliness in the matter of employment.
There has to be an element of procedural fairness in recruitment.
If a public employer chooses to receive applications for employ ment where and when he pleases, and chooses to make appoint ments as he likes, a grave element of arbitrariness is certainly introduced.
This must necessarily be avoided if articles 14 and 16 have to be given any meaning.
We, therefore, consider that insistence of recruitment through employment exchanges advances rather than restricts the rights guaran teed by articles 14 and 16 of the Constitution.
The submission that employment exchanges do not reach every where applies equally to whatever method of advertising vacancies is adopted.
Advertisement in the daily Press, for example, is also equally ineffective as it does not reach everyone desiring employment.
In the absence of a better method of recruitment, we think that any restriction that employment in Government Departments should be through the medium of employment exchanges does not offend articles 14 and 16 of the Constitution.
With this modification of the judgment of the High Court, the appeals and the special leave petitions are disposed of.
No orders are necessary in the writ petition.
P.S. S Appeals dis posed of.
[/INST]The predecessor in interest of the appellants, namely, Babulal, purchased a house in the year 1947 from the sons of one Mannulal.
The appellants and the respondents No. 6 to 8 are the sons of the other three brothers of Mannulal.
In the year 1976 the respondents Nos. 2 to 5 started reconstructing or renovating their house and in the course of digging the plinth a treasure consisting of gold and silver ornaments and currency notes was found.
They intimated the discovery of the treasure to the Collector, who issued a notification under section 5 of the Indian Treasure Trove Act, 1878.
Respond ents Nos. 2 to 5, the appellants and the respondents Nos.
6 to 8 flied claims before the Collector.
The Collector held that the respondents Nos. 2 to 5, the finders of the treas ure, are the owners of the house from where the treasure was found and permitted them under section 8 to institute a suit to establish their right before February 22, 1979.
The respondents Nos. 2 to 5 instituted a suit for decla ration of their title to the treasure without making the other claimants before the Collector parties to the suit.
On an application filed under Order I, Rule 10 of the Code of Civil Procedure by the appellants and respondents Nos.
6 to 8, the District Judge made them defendants in the suit.
Thereafter, they filed their written statement, denying the claim 01 ' the respondents Nos. 2 to 5 to the treasure and claimed the title thereof to them.
After the filing of the written statement, the appel lants flied a counter claim claiming title to the treasure.
The respondents Nos. 2 to 5 156 filed an application praying that the counter claim should be dismissed contending that it was barred by limitation as prescribed in section 14 of the Act and that it was also not maintainable under Order VIII, Rule 6A(1) of the Code 01 ' Civil Procedure.
The District Judge dismissed the counter claim holding that it was barred by section 14 of the Act.
In the Revision, the High Court upheld the order of the District Judge and further held that the counter claim having been filed after the filing of the written statement, was not maintainable under Order VIII, Rule 6A(1) of the Code of Civil Procedure.
Allowing the Appeal to this Court, HELD: 1.
The order of the District Judge and the Judg ment of the High Court are set aside.
The District Judge is directed to proceed with the hearing of the suit and the counter claim in accordance with law.
[164F G] 2.
Under the scheme of the Indian Treasure Trove Act, 1878 two kinds of suits can be filed at two stages, namely, one under section 8 and the other under section 14.
Section 8 provides that if the Collector has reason to believe that the treas ure was hidden by any person appearing before the Collector within one hundred years or by some other person under whom such person claims, the Collector shall adjourn the hearing for such period as he deems sufficient to allow the claimant to institute a suit to establish his right to the treasure.
[161G H; 162A] 3.
On the other hand, the question of filing a suit under section 14 will not arise unless the Collector makes a declaration under section 9 that the treasure is ownerless.
Such a declaration under section 9 will be made by the Collector if he sees no reason to believe that the treasure was not hidden within one hundred years or if no suit is instituted under section 8 within the period for which the hearing is adjourned by the Collector or if the plaintiff 's claim is rejected.
[162B] 4.
If no such contingencies as mentioned in section 9 take place, the Collector will have no jurisdiction to make a declaration that the treasure is ownerless.
If, however, any of such contingencies happens and the Collector makes a declaration under section 9 and two or more persons have appeared before the Collector each claiming the ownership of the place where such treasure was found or the finder of the treasure disputes the right of any person who has so ap peared and claimed, the Collector shall make an order under section 13 staying the proceedings with a view to the matter being enquired into by a Civil Court.
157 5.
The object of an enquiry as to the ownership of the place by the Civil Court is necessary inasmuch as section 10 of the Act provides that when a declaration has been made in respect of any treasure under section 9, such treasure shall either be delivered to the finder or be divided between him and the owner of the place in which it has been round.
[162F] 6.
A suit under section 14 relates to the establishment of the ownership of the place where the treasure was found for the purpose of division of the treasure between the finder and the owner of the place and that such a suit has to be filed within one month from the date of such order to obtain a decree declaring his right after the Collector had de clared the treasure to be ownerless under section 9 after making a claim before the Collector under section 13.
The words "such order" in section 14, refer to the order passed by the Collector under section 13.
[163B] 7.
Section 8 and section 13 and section 14 contemplate two differ ent situations.
While under section 8 the suit has to be filed within the period during which the hearing stands adjourned, the suit under section 14 has to be filed within one month of the order of the Collector under section 13 of the Act.
[163C D] 8.
To hold that suits under section 8 and section 13 are both governed by the limitation prescribed by section 14, will be to do violence to the provisions of the Act and the clear intention of the Legislature as indicated in the provisions.
[163E] 9.
In the instant case, as the respondents Nos. 2 to 5 have instituted the suit within the period during which the hearing before the Collector stood adjourned under section 8, the question of making a declaration by the Collector under section 9 of the Act does not arise and, consequently, there is no scope for filing any suit under section 14 of the Act.
Thus section 14 has no manner of application to a suit filed under section 8 of the Act.
[163G H; 164A] 10.
Rule 6A(1) of Order VIII of Code of Civil Procedure does not bar the filing of a counter claim by the defendant after he had filed the written statement.
What is laid down under Rule 6A(1) is that a counter claim can be filed, provided the cause of action had accrued to the defendant before the defendant had delivered his defence or before the time limited for delivering his defence has expired, whether such counter claim is in the nature of the claim for damages or not.
[164B C] 11.
The High Court has misread and misunderstood the provision of Rule 6A(1) in holding that as the appellants had filed the counter 158 claim after the filing of the written statement, the coun ter claim was not maintainable.
Under Article 113 of the , the period limitation of three years from the date the right to sue accrues, has been provided for any suit for which no period of limitation is provided elsewhere in the Schedule.
in the instant case, the counter claim has been filed by the appellants within three years and as the cause of action for the counter claim had arisen before the filing of the written statement, the counter claim was, therefore quite maintainable.
[164C E]
</s>
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<s>[INST] Summarize the judgementns Nos. 285 and 314 of 1970.
Under Article 32 of the Constitution of India for enforcement of the Fundamental Rights.
K.K. Venugopal, and R. Gopalakrishnan, for the petitioner (in W.P. No. 285 of 1970).
433 M.Natesan, R. Gopalakrishnan, for the petitioner (in W.P. No. 314 of 1970).
S.Govind Swaminathan, Advocate General for the State of Tamil Nadu, A. V. Rangam and section Mohan, for respondents Nos. 1 to 5 (in W.P. No. 285 of 1970) and the respondents (in W.P. No. 314 of 1970).
M. K. Ramamurthi and Vineet Kumar, for the interveners.
The Judgment of the Court was delivered by Hegde, J.
In these two petitions under article 32 of the Con stitution the petitioners who unsuccessfully sought admission to certain Medical Colleges in the State of Tamil Nadu have asked for a writ of mandamus to direct the State of Tamil Nadu to allot to each, one of them a seat in one of the Government Medical Colleges in that State and for consequential orders.
In the State of Tamil Nadu, there are eight Medical Colleges out of which three are situate in the city of Madras, one in Madurai, one in Chingleput, one in Coimbatore, one in Thanjavur and one in Tirunelveli.
The total seats available in Madras Colleges are 500.
The sanctioned strength of seats in Madurai, Chingleput, Coimbatore, Thanjavur and Tirunelveli are 200, 50, 100, 200 and 75 respectively.
Thus the total number of medical seats available in the Government Colleges for 1st year of M.B.B.S., course in the State of Tamil Nadu are 1125.
We understand that for these seats nearly 7,000 students applied for admission.
In the previous years except in the year 1967 68, selection of candidates for admission to the 1st year M.B.B.S. course was done on State wise basis.
In the year 1967 68, the seats were distributed on district wise basis but that scheme was held to be invalid by this Court in Minor P. Rajendran vs State of Madras and Ors.(1) Thereafter the selection was again made on State wise basis in the years 1968 69 and 1969 70 but in the current year that system was given up and selection was directed to be made on the basis of what is known as unitwise basis.
Under the present scheme the Medical Colleges in the city of Madras were constituted as one unit and each one of the other Medical Colleges in the mofussil was constituted as a unit.
Thus six units were created in the State.
In respect of each one of the units a separate selection committee was constituted.
The intending applicants were asked to apply to any one of the committees but they were advised to apply to the committee nearest to their place of residence as far as possible.
They were told that if they applied to more than one committee their applications will be forwarded by the Government to only one of the committees.
(1)[1968] 2 section C. R. 786.
434 A few seats out of the 1125 seats were reserved for certain special categories of students.
As there is no dispute about those seats we shall not refer to them hereafter.
Out of the remaining seats 41 per cent seats were reserved for students coming from socially and educationally backward classes Scheduled Castes & Scheduled Tribes.
The rest of them were placed in the general pool.
In the State of Tamil Nadu actual marks are not being given in the Pre University examination.
The papers were valued on the basis of grades.
There are all together four grades i.e. Grades A to D. For the purpose of selection to first year M.B.B.S., course only marks obtained in the optional subjects were taken into consideration.
Selection to the seats with which we are concerned in these petitions is confined to students who have taken in their Pre University examination Physics, Chemistry and Biology as their optional subjects though each of these subjects carried a maximum of 100 marks thus a total of 300 marks, for the purpose of selection to the first year M.B.B.S. course the procedure prescribed was to take the minimum marks provided for the grade secured by the applicant in Chemistry and.
Physics and add them together and thereafter divide the 'total by two and to that add the minimum marks provided for the grade secured by the applicant in Biology.
Thus the total marks in the optional subjects was reduced from 300 to 200.
All the applicants in the general pool who secured 1 10 or more marks calculated on the basis of the formulae referred to earlier were called for interview by the selection committees.
Selection committees were authorised to give a maximum of 75 marks at the interview.
The selection committees were asked to award these marks on the basis of following tests.
(1) Sports or National Cadet Corps activities; (2) Extra Curricular special services; (3) General physical condition and endurance , (4) General ability, and (5) Aptitude.
The selection committees were directed to prepare a gradation list on the basis of the total marks obtained by each applicant and submit the same to the Government.
The petitioners before us appear to have had brilliant academic career.
The facts mentioned by the petitioners in this regard were not controverted by the respondents.
The petitioner in Petition No. 285 of 1970 came out within first three ranks in the 10th and 11 th standards and in the final examination he secured 451 marks out of the total, of 700.
He Stood third in his school.
43 5 Du ring his school career he had taken keen interest in extracurricular activities.
He was a N.C.C. Cadet and passed creditably the 'A ' certificate examination.
He had also obtained certificate in boxing.
He had joined the correspondence course conducted by the Voice Prophecy Institute, New Delhi and obtained a certificate in Health and Hygiene.
After having passed his Anglo Indian High School examination creditably he joined Madurai college, in the Pre University course taking Physics, Chemistry and Biology as his science subjects.
In that course he secured first class with Grade D plus in Physics and Chemistry and A plus in Biology.
He stood fourth in his college.
The grade D plus represents 85 to 99 per cent marks and A plus 65 to 75 per cent marks.
The petitioner in Petition No. 314 of 1970 passed her Pre University examination in March, 1970 from the Scott Christian College, Nagercoil which college stands affiliated to Madurai University.
She secured first class with grade 'D ' (75 to 85 per cent marks) in Physics; grade D plus (85 to 99 per cent) in Chemistry and D (75 to 85) per cent in Biology.
The petitioner also had a brilliant career throughout in, the High School classes as well as in the college class.
She secured a merit card for the highest distinction consecutively for the years 1965 66, 1966 67 and 1967 68 in Standards 8 to 10 of St. Joseph 's Convent, Nager coil.
In the S.S.L.C. examination held in March, 1969 she secured 456 marks out of 600.
She obtained distinction in extracurricular activities both in school and college.
She had been a girl guide.
She took keen interest in games and sports particularly in net ball, throw ball and tenniquoit.
She was a member of the Representative team.
She also passed with merit the pianoforte playing Grade 1 examination conducted by the Trinity College of Music, London.
The petitioners before this Court challenged the validity of the selections made on various grounds.
They contended that the unitwise selection contravenes articles 14 and 15 of the Constitution inasmuch as the same places the applicants of some of the units in a better position than those who applied to other units.
It was alleged that the ratio between applicants and number of seats in the Coimbatore unit was 1 : 13; in Tirunelveli 1 : 10; in Chingleput 1 : 6; in the Madras 1 : 5 1/2 ; in Thanjavur 1 : 6 and in Madurai 1 : 71.
It was further alleged that several applicants who secured lesser marks than the petitioners before this Court were selected merely because their applications came to be considered in other units.
It was also alleged that this unitwise scheme was merely intended as a device to get over the decision of this Court in Rajendran 's case().
It was next contended on behalf of the petitioners that the interview held was a farce.
(1)[1968] 2 section C. R. 786.
436 Each applicant was interviewed hardly for three minutes.
During that interview irrelevant questions were put to them.
The interview marks were manipulated so as to pull up under serving applicants and downgrade those who had secured excellent marks in their Pre University examination.
It was said that a perusal of the marks list would show that the whole selection was a manipulation.
The applicants who had failed more than once and ultimately secured bare second class were selected while the first rate applicants who had secured first class with high marks were rejected.
It was urged on their behalf that even the students who get the minimum marks could be pulled up by the selection committee by plumping 70 or more out of 75 interview marks whereas the students who have secured 170 marks the highest marks that could have been secured under the admission rules in Pre University examination could be pulled down by giving less than 10 marks out of 75 marks.
The petitioners ' complaint is that after the interview the selection committee carried the marks given by them to Madras and there the Government has manipulated the marks in such a way as to 'select their favourites and reject such of them in whom the Government was not interested.
It was also urged that no guidelines.were provided for awarding marks at the interview and therefore the power conferred on the selection committee is an arbitrary power which is capable of being misused and in fact has been misused.
It was contended that the list of backward classes provided to the committee was solely made on the basis of caste and as such that list did not conform to the requirements of article 15(4) of the Constitution.
The petitioners also urged that the reservation made for backward classes is disproportionately high and further the division of backward classes into backward classes and more backward classes was impermissible under law.
We shall first take up the plea regarding the division of medical seats on unitwise basis.
It is admitted that the minimum marks required for being selected in some unit is less than in the other units.
Hence prima facie the scheme in question results in discrimination against some of the applicants.
In Rajendran 's case(1) this Court ruled that the district wise distribution of available seats is violative of article 15 of the Constitution '.
But it was Contended on behalf of the State that the unitwise distribution of seats was adopted for administrative convenience.
It was said that it was not possible for one selection committee to interview all the applicants.
Therefore several committees had to be constituted.
In the past when applicants were interviewed by several committees there were complaints that the standard adopted by one committee differed from that adopted by others and therefore the applicants ' ability was not tested by a uniform standard.
Further (1) ; 43 7 it was said that when selections were made by several committees there was delay in preparing a consolidated list.
We are unable to accept these grounds as being real grounds for classification.
The grievance when selections were made by several committees in a State wise selection the standard adopted by various committees differed, would continue even when selections are made by several committees in a unitwise selection.
Whether the selection is made by selection committees on State wise basis or unitwise basis, the standard adopted by various committees is bound to vary.
Hence in principle it makes no difference.
Now coming to the question of delay, we see no reason why there should be any delay in preparing a consolidated list.
At any rate the delay caused is not likely to be such as to justify departure from the principle of selection on the basis of merit on a Statewise basis.
Before a clasification can be justified, it must be based on an objective criteria and further it must have reasonable nexus with the object intended to be achieved.
The object intended to be achieved in the present case is to select the best candidates for being admitted to Medical Colleges.
That object cannot be satisfactorily achieved by the method adopted.
The complaint of the petitioners is that unitwise distribution of seats is but a different manifestation of the districtwise distribution sought in 1967 68 has some force though on the material on record we will not be justified in saying that the unitwise distribution was done for collateral purposes.
Suffice it to say that the unitwise distribution of seats is violative of articles 14 and 15 of the Constitution.
The fact that an applicant is free to apply to any one unit does not take the scheme outside the mischief of articles 14 and 15.
It may be remembered that the students were advised as far as possible to apply to the unit nearest to their place of residence.
Earmarking 75 marks out of 275 marks for interview as inter view marks prima facie appears to be excessive.
It is not denied that the interview lasted hardly, for three minutes for each candidate.
In the course of three minutes interview it is hardly possible to assess the capability of a candidate.
In most cases the first impression need not necessarily be the best impression.
But under the existing conditions in this country we are unable to accede to the contention of the petitioners that the system of interview, as in vogue in this country is so defective as to make it useless.
It is true that various researches conducted in other countries particularly in U.S.A. show that there is possibility of serious errors creeping in interviews made on haphazard basis.
C. W. Valentine on "Psychology and its Bearing on Education" ' refers to the marks given to the same set of persons interviewed 438 by two different competent Boards and this is what is stated in his book : "The members of each board awarded a mark to each candidate and then he was discussed and an average mark agreed on.
When the orders of merit for the two boards were compared it was found that the man placed first by Board A was put 13th by Board B when the main placed 1st by Board B was 11th with Board A." Even when the, interviews are conducted by impartial and competent persons on scientific lines very many uncertain factors like the initial nervousness on the part of some candidates, the mood in which the interviewer happens to be and the odd questions that may be put to the persons interviewed may all go to ,affect the result of the interview.
But as observed by this Court in R. Chitralekha and Anr.
vs State of Mysore and Ors(1).
"In the field of education there are divergent views as regards the mode of testing the capacity and calibre of students in the matter of admissions to colleges.
Orthodox educationists stand by the marks obtained by a student in the annual examination.
The modem trend of opinion insists upon other additional tests, such as interview, performance in extracurricular activities, personality test, psychiatric tests etc.
Obviously we are not in a position to judge which method is pre ferable or which test is the correct one.
If there can be manipulation or dishonesty in allotting marks at interviews, there can equally be manipulation in the matter of awarding marks in the written examination.
In the ultimate analysis, whatever method is adopted its success depends on th e moral standards of the members constituting the selection committee and their sense of objectivity and devotion to duty.
This criti cism is more a reflection on the examiners than on the system itself.
The scheme, of selection, however, perfect it may be, on paper, may be abused in practice. 'Mat it is capable of abused is not a ground for quashing it.
So long as the order lays down relevant objective criteria and entrusts the business of selection to qualified persons, this Court cannot obviously have any say in the matter.
" While we do feel that the marks allotted for interview ' are on the high side and it may be appropriate for the Government to (1) ; 439 re examine the question, we are unable to uphold the contention that it was not within the power of the Government to provide such high marks for interview or that there was any arbitrary exercise of power.
It was urged on behalf of the petitioners that the interview marks were, allotted on collateral considerations.
We are told that the selection committees were tools in the hands of the Government and the Government manipulated the marks in such a way as to facilitate the selection of those students in whom the members of the party in power were interested.
These allegations were denied by the respondents.
While, elaborating their arguments on their plea of mala fides the learned Counsel for the petitioners invited our attention to the marks lists which according to them clearly showed that the marks given at the interview are by and large in inverse proportion to the marks obtained by the candidates at the University examination.
We were also told that the marks lists on their face show that the interview marks were manipulated.
It was said that marks were so given as to see that certain candidates got at least the minimum required for selection.
While there is some basis for these criticisms there is not sufficient material before us from which we could conclude that there was any manipulation in preparing the gradation list.
It is true that numerous students whose performance in the University examination was none too satisfactory nor their past records creditable had secured very high marks at the interview.
It is also true that a large number of students who had secured very high marks in the University examination and whose performance in the earlier classes was very good had secured very low marks at the interview.
This circumstance is undoubtedly disturbing but the courts cannot uphold the plea of mala fides on the basis of mere probabilities.
We cannot believe that any responsible Government would stoop to manipulating marks.
The selection committees consisted of eminent persons.
Most of them are medical practitioners occupying responsible positions ' in life.
It would be a bad day for this country if such persons take to manipulation of marks.
Hence we cannot accept the contention that the interview marks were manipulated either by the Government or by the selection committees.
It was next urged that no objective criterion was fixed for interview.
We are unable to accept this contention as well.
I The selectors were asked to interview candidates on the basis of the five criteria prescribed to which we have made reference earlier.
Those tests are sufficiently objective in character.
Similar tests were held to be objective by this Court in Chitralekha 's case(1).
It cannot be denied that extra curricular activities like sports, N.C.C., special services, general physical condition and endurance and general ability are objective tests.
The aptitude (1) (1964)6 S.C.R 368.
440 referred to in the rule, in our opinion, is aptitude for medical profession.
It was next contended that separate marks had not been allotted for each one of the tests enumerated in the rule.
A total of 75 interview marks were placed at the disposal of the selection committee and from out of those the committee could award marks according to its sweet will and pleasure.
Such a power it was said is an arbitrary power.
We were told that the entire 75 marks could have been given to a candidate even if he satisfied only one out of the five criterion prescribed.
It is true that the rule did not prescribe separate marks for separate heads.
But that in our opinion did not permit the selection committee to allot marks as it pleased.
Each one of the tests prescribed had its own importance.
As observed at footnote 20 at p. 485 of American Jurisprudence Vol.
15 that the interviewers need not record precise questions and answers when oral tests are used to appraise personality traits; it is sufficient if the examiner 's findings are recorded on the appraisal sheet according to the personal qualifications itemised for measure.
A contention similar to those advanced by the petitioners came up for consideration before the Mysore High Court in D. G. Viswanath vs Chief Secretary of Mysore and Ors.
Therein the court observed thus : "It is true that Annexure IV does not specifically mention the marks allotted for each head.
But from that circumstance it cannot be held that the Government had conferred an unguided power on the Committees.
In the absence of specific allocation of marks for each head, it must be presumed that the Government considered that each of the heads mentioned in Annexure IV as being equal in importance to any other.
In other words, we have to infer that the intention of the Government was that each one of those heads should carry 1/5th of the "Interview" marks.
" We may note that the committee had not divided the interview marks under various heads nor were the marks given on itemised basis.
The marks list produced before us shows that the marks were given in a lump.
This is clearly illegal.
The interview held was also vitiated for the reason that the selection committee took into consideration irrelevant matters and at the same time failed to take into consideration matters required to 'be taken into consideration.
In the counter affidavit filed by the Chairman of the selection committee it was averred that in allotting interview marks the committee took into consideration A.I.R. 1964 Mys.132.
441 qualities such as pleasant personality, quick thinking etc.
One of the extra curricular activities that the committee was required to take into% consideration was N.C.C. training.
That was clearly an objective test but from the counter affidavit filed, it appears that the committee did not think that it was sufficient if an applicant had good record as a cadet, but according to it, he must also know why he joined the N.C.C. and what role N.C.C. plays in the National life.
These, in our opinion, are irrelevant considerations.
Again the test like the physical condition and endurance can be best judged by a competent medical practitioner after a careful medical examination.
It was in the very nature of things not possible for the selection committee though composed of eminent doctors to find out the physical condition and endurance by a mere look at the candidate.
It is clear from the affidavit filed on behalf of the selection committees that at the time of interview much attention had not been given to the general ability which test include past performance of the applicants and the varied interest taken by them.
From the facts placed before us it is clear that the candidates were not interviewed in accordance with the rules governing the interview.
It was next urged that the classification of backward classes by the Government into backward classes and more backward classes was illegal and in support of that contention our attention was invited to the decision of this Court in M. R. Balaji and Ors.
vs State of Mysore().
It is unnecessary to go into that question because for the purpose of the present selection the backward classes were not sub divided into backward classes and more backward classes.
What had happened is that the list of backward classes supplied to the selection committee showed that some of the communities are more backward than others but that list was prepared for the purpose of fee concession.
For the purpose of the present selection all the classes shown therein were treated as backward classes.
There is no basis for the contention that the reservation made for backward classes is excessive.
We were dot told why it is, excessive.
Undoubtedly we should not forget that it is against the immediate interest of the Nation to exclude from the portals of our medical colleges qualified and competent students but then the immediate advantages of the Nation have to be harmonised with, its long range interests.
It cannot be denied that unaided many sections of the people in this country cannot compete with the advanced sections of the Nation.
Advantages secured due to, historical reasons should not be considered as fundamental rights.
Nation 's interest will be best served taking a long range view if the backward classes are helped to march forward and take their (1)(1963) Supp.
1 section C. R. 438.
442 place in line with the advanced sections of the people.
That is ,why in Balaji 's case (1) this Court held that the total of reservations for backward classes, scheduled castes and scheduled tribes should not ordinarily exceed 50% of the avail able seats.
In the present case it is 41 %.
On the material before us we are unable to hold that the said reservation is excessive.
Considerable arguments were advanced assailing the enumera tion of backward classes.
It was said that the concerned list included only castes and not classes.
The petitioners ' case is that every one of the classes mentioned therein is in reality a. caste.
Hence that list cannot be sustained.
In Balaji 's case(1) this Court held that though caste is a relevant factor in ascertaining a ,class for the purpose of article 15(4), a class cannot be constituted solely on the basis of caste.
Gajendragadkar J. (as he then was) speaking for the Court observed : "That though castes in relation to Hindus may be a relevant factor to consider in determining the social ,backwardness of groups or classes of citizens it cannot be made the sole or the dominant test in that behalf. 'Social backwardness is on the ultimate analysis the result of poverty, to a very large extent.
The classes of citizens who are deplorably poor automatically become socially backward.
They do not enjoy a status in society I and have, therefore to be content to take a backward seat.
It is true that social backwardness which results from poverty is likely to be aggravated by considerations of caste to which the poor citizens may belong, but that only shows the relevance of both caste and poverty in determining the backwardness of citizens.
" In Chiterlekha 's case(2), this Court reiterated that the caste is a relevant circumstance in ascertaining the backwardness of a class.
Further it was observed therein : "While this Court has not excluded caste from ascertaining the backwardness of 'a class of citizens, it has not made it one of the compelling circumstances affording a basis for the ascertainment of backwardness of a class.
To put it differently the authority concerned may take caste into consideration in ascertaining the backwardness of a group of persons; but, if it does not, its order will not be had on that account, if it can ascer tain the backwardness of a group of persons on the basis of other relevant criteria.
" The same view was, expressed by this court in State of Andhra Pradesh and anr.
vs P. Sagar(3).
There in it was observed (1) (1963) Supp. 1 section C. R. 438.
(2) ; (3) 443 "In the context in which it occurs the expression 'class ' means a homogeneous section of the people grouped together because of certain likenesses or common traits and who are identifiable by some common attributes such as status, rank, occupation, residence in a locality, race, religion and the like.
In determining whether a particular section forms a class, caste cannot be excluded altogether.
But in the determination of a class a test solely based upon the caste or community cannot also be accepted.
" A caste has always been recognised as a class.
In construing the expression "classes of His Majesty 's subjects" found in section 153 A of the Indian Penal Code) Wassoodew J. observed in Narayan Vasudev vs Emperor(1).
"In my opinion, the expression 'classes of His Majesty 's subjects ' in Section 153 A of the Code is used in restrictive sense as denoting a collection of individuals or groups bearing a common and exclusive designation and also possessing common and exclusive characteristics which may be associated with their original race or religion, and that the term 'class ' within that section carries with it the idea of numerical strength so large as could be grouped in a single homogeneous community.,, In Paragraph 10, Chapter V of the Backward Classes Commission 's Report, it is observed : "We tried to avoid caste but we find it difficult to ignore caste in the present prevailing conditions.
We wish it were easy to dissociate caste from social backwardness at the present juncture.
In modem times any body can take to any profession.
The Brahman taking to tailoring, does not become a tailor by caste, (nor is his social status lowered as a Brahman.
A Brahman may be a seller of boots and shoes, and yet his social status is not lowered thereby.
Social backwardness, therefore, is not today due to the 'particular profession of a person, but we cannot escape caste in considering the social backwardness in India.
" In Paragraph II of that Report it is stated: "It is not wrong to assume that social backwardness has largely contributed to the educational backwardness of a large number of social groups." Finally in Paragraph 13, the committee concludes with following observations : "All this goes to Prove that social backwardness is mainly based on racial, tribal, caste and denominational differences." (1) A. I. R.1940 Bom.
444 The validity of the impugned list of backward classes came up for consideration before this Court in Rajendran 's case(1) and this is what this Court observed therein "The contention is that the list of socially and educationally backward classes for whom reservation is made under r. 5 is nothing but a list of certain castes.
There.fore, reservation in favour of certain castes based only on caste considerations violates article 1 5 ( 1 ), which prohibits discrimination on the ground of caste only.
Now if the reservation in question had been based only on caste and had not taken into account the social and educational backwardness of the caste in question, it would be violative of article 15(1).
But it must not be forgotten that a caste is also a class of citizens and if the caste as a whole is socially and educationally backward, reservation can be made in favour of such a caste on the ground that it is, a socially and educationally backward class of citizens within the meaning of article 15 (4) " Rajendran 's case(1) is an authority for the proposition that the classification of backward classes on the basis of castes is within the purview of article 15(4) if those castes are shown to be socially and educationally backward.
No further material has been placed before us to show that the reservation for backward classes with which we are herein concerned is not in accordance with article 15(4).
There is no gain saying the fact the there are numerous castes in this country which are socially and educationally backward. ' To ignore their existence is to ignore the facts of life.
Hence we are unable to uphold the contention that impugned reservation is not in accordance with article 15 (4).
But all the same the Government should not proceed on the basis that once a class is considered as a backward class it should continue to be back ward class for all times.
Such an approach would defeat the very purpose of the reservation because once a class reaches a stage of progress which some modem writers call as take off stage then ,competition is necessary for their future progress.
The Government should always keep under review the question of reservation ,of seats and only the classes which are really socially and educationally backward should be allowed to have the benefit of reservation.
Reservation of seats should not be allowed to become a vested interest.
The fact that candidate,, of backward classes have secured about 50% of the seats in the general pool does show that the time has come for a de novo comprehensive examination of the question.
It must be remembered that the Government 's decision in this regard is open to judicial review.
(1) ; 445 For the reasons mentioned above we are of opinion that the selections impugned in these petitions cannot be held to have been made validly inasmuch as the seats were distributed on unitwise basis and further that the interviews were not held in accordance with the rules.
But despite coming to that conclusion we are unable to set 'aside the selections already made.
The selected candidates have not been made parties to these petitions.
They have already joined the course and are undergoing training.
Their selection cannot be set aside without giving them an opportunity to put forward their case.
It is true that the petitioners had filed applications to premit them to have recourse to O. 1, r. 8.
C.P.C. for the representation of the persons interested in opposing these applications but no order has been passed on those applications and it is now too late to have recourse to that procedure even if that procedure is, permissible under law.
We are told by the learned Advocate General of Tamil Nadu that 24 seats still remain to be filled up.
He has assured us on behalf of the State that those seats will be filled up in accordance with the orders of this Court.
There are about 80 persons, who we are told are in the waiting list.
Some of the unsuccessful applicants had moved the High Court of Madras for relief similar to that sought by the petitioners herein.
But it appears their writ petitions have been dismissed.
Some out of them have intervened in these petitions.
Other non selected candidates have evinced no interest in chal lenging the selections made.
Under the circumstances, it is reasonable to assume that they have abandoned their claim and it is too late for them to press their claim.
Under these circumstances, after discussion with the Counsel for the parties we have come to the conclusion that these petitions should be allowed subject to the following conditions : The State of Tamil Nadu shall immediately constitute a sepa rate expert committee consisting of eminent medical practitioners (excluding all those who were members of the previous committees) for selection to the 24 unfilled seats.
The selection shall be made on Statewise basis.
The committee shall interview only the candidates who are show in the waiting list, the persons who unsuccessfully moved the High Court of Madras and the two petitioners before this Court.
They shall allot separate marks under the five heads mentioned in the rule.
The committee shall take into consideration only matters laid down in the rule, exclude from consideration all irrelevant matters and thereafter prepare a gradation list to fill up the 24 seats mentioned earlier.
It is ordered accordingly.
We think this is a fit case where the petitioners should get their costs from the State of Tamil Nadu.
[/INST]In 1970 71, selection of candidates to various medical colleges in the State of Tamil Nadu was done on the 'unit wise ' basis.
Under that scheme the medical colleges in the city of Madras were constituted as ,one unit and each of the other medical colleges in the mofussil was constituted as a unit.
In respect of each one of the units, a separate selection committee was constituted.
The intending applicants were asked to apply to any one of the committees but were advised to apply to the committee nearest to their place of residence and, if they applied to more than one committee, their applications were to be forwarded by the Government to only one of the committees.
A few seats were reserved to certain special categories of students and out of the remaining seats, 41 per cent were reserved for students coming from socially and educationally backward classes, scheduled castes and scheduled tribes, and the rest were placed in the general pool.
All the applicants in the general pool who secured 110 or more marks ,out of 200, calculated according to a certain formula, were called for interview and selection committees were authorised to give in addition, a maximum of 75 marks at the interview.
The award of these marks was on the basis of the following five criteria, namely, (a) Sports or NCC activities ' (b) extra curricular special services, (c) general physical condition and endurance; (d) general ability, and (e) aptitude.
The gradation list prepared by the selection committee was to be submitted to the Government.
The petitioners, who unsuccessfully sought admission to the medical colleges in the State, challenged the validity of the selections made.
They contended that : (1) The unitwise selection contravened articles 14 and 15 of the Constitution because, (a) the applicants of 'some of the units were in a better position than those who applied to other units, since the ratio between the applicants and the number of seats in each unit varied, and several applicants who secured lesser marks than the petitioners were selected merely because their applications came to be considered in ,other units, and (b) the scheme was merely intended as a device to get over the decision of this Court in Rajendran vs State of Madras, ; ; (2) the interview was a farce because it Was held for only three minutes and no guidelines we 're provided for the award of marks at the interview and earmarking for interview marks 75 out of the total of 275 was excessive; (3) the interview marks were manipulated both by the selection committee and the Government in order to pull up undeserving :applicants; (4) the list of backward classes was solely made on the basis 431 of caste and therefore did not conform to article 15(4) of the Constitution; (5) the reservation made for backward classes was disproportionately high; and (6) the division of backward classes into backward classes and more backward classes was impermissible under law.
HELD : (1) (a) The object intended to be achieved in the present case, is to select the best candidates for being admitted to medical colleges.
This object cannot be satisfactorily achieved by the method adopted.
It is admitted that the minimum marks required for being selected in some units is less than in other units.
Hence prima facie the scheme in question results in discrimination.
The plea of delay in selection on State wise basis is neither real nor substantial.
[436 F G; 437 C D] (b)The unitwise distribution of seats appears to be a different manifestation of the district wise distribution which was struck down by this Court in Rajendran 's case,.
[437 D E] (2)In the course of three minutes interview, it is hardly possible to the capability of a candidate since,the first impression need not necessarily be the best impression.
But it cannot be held that the system of interview is so defective as to make it useless, or that the Government has no power to provide such high marks for interview or that there was an arbitrary exercise of the power.
[437 G H; 438 H; 439 A] It is true that the rule did not prescribe separate marks for the separate heads, but it must be presumed that the Government considered that each of the heads mentioned as being of equal importance and that the intention was that each of those heads 'should carry 115 of the interview marks.
[440 B G] Since the marks list, as prepared in the present case, shows that the marks were given in a lump it was clearly illegal.
[440 F G] Chitralekha vs State of Mysore ; , followed.
Viswasnath vs Chief Secretary, Mysore, A.I.R., 1964 Mys.
132, approved.
The tests relating to the various matters for allotting interview marks.
are objective tests.
The aptitude referred to in the rule is aptitude for the medical profession; but in this case certain irrelevant matters were taken into consideration and relevant matters were omitted.
[439 H; 440 A, 441 A B, C D] (3)There is no material for concluding that there was any manipulation of marks.
Numerous students whose performance in the university examination was none too satisfactory nor their past records creditable have secured very high marks at the interview, and a large number of students whose performance in the University examination was very good, secured very low marks at the interview.
This circumstance is undoubtedly disturbing but the courts cannot uphold the plea of mala fides on the basis of mere probabilities [439 C F] (4)The list of backward classes appears to include castes and not classes.
But caste is a relevant circumstance in ascertaining backwardness of a class and a classification of backward classes on the basis of caste is within the purview of article 15(4) of the Constitution, if those castes are shown to be socially and educationally backward.
But the Government could not proceed on the basis once a class is considered as a backward class it should continue to be a backward class for all time, because, once a class reaches a certain stage of progress competi 432 tion is necessary for its future progress.
The Government should, therefore, always keep under review the question of 'reservation of seats and only those classes which are really socially and educationally backward should be allowed to have the benefit of reservation.
Reservation of seats should not be allowed to become a vested interest, and the fact that, in the present case, the candidate of backward classes had secured 50 per cent of the seats in the general pool does show that the time has come for a de novo comprehensive examination of the question.
The Government 's decision in this regard is open to judicial review.
[442 B C, 444 E H] Balaji vs State of Mysore, [1963] Supp. 1 S.C.R. 438, Chitralekha vs State of Mysore ; , State of Andhra Pradesh vs Sagar, , Minor P. Rajendran vs State of Madras, ; , Narayan Vasudev vs Emperor, A.I.R. 1940 Bom.
379 and Backward Classes Commission 's Report, referred to.
(5)There is no basis for, the contention that reservation made for backward classes is excessive.
While it is against the immediate interest of the Nation to exclude from the portals of our medical colleges qualified and competent students, immediate advantages of the Nation have to be harmonised with the Nation 's long range interest.
The best way of serving the Nation 's interest would to help the backward classes to march forward and take their place in line with the advanced sections of the people.
In Balaji 's case it was held that the total, reservation for backward classes, scheduled castes and scheduled tribes should not ordinarily exceed 50 per cent of the available seats.
Since in the present case it was only 41 per cent, it could not be held that the reservation was excessive.
[441 E H; 442 A B] (6)For the purpose of selection there is no classification of backward classes as backward and more backward.
The list sent to the selection committee was that prepared for the purpose of fee concession.
[441 F] In the present case, however, the impugned selections already made could not be set aside because the selected candidates had already joined the course and are undergoing training and they had not been made parties to the petitions.
Since there are 24 seats yet to be filled up, the State shall immediately constitute a separate expert committee consisting of eminent medical practitioners (excluding all those who were members of previous committees) for selection to these unfilled seats.
The selection should be made on State wise basis.
The committee should interview only those candidates who are shown in the waiting list and persons who unsuccessfully moved the High Court and the petitioners before this Court.
in preparing the gradation list, the committee should allot separate marks under the five heads mentioned in the rule and the committee should take into consideration only matters laid down in the rule excluding from consideration all irrelevant matters.
[445 B H]
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<s>[INST] Summarize the judgementNo. 61 of 1950.
Appeal from an order of the High Court of Patna dated 9th September, 1948, (Agarwala C.J. and Meredith J.) in M.J.C. No. 5 of 1948.
The appeal was originally filed as Federal Court Appeal No. 71 of 1948 on a certificate granted by the Patna High Court under cl. 31 of the Letters Patent of that High Court that the case was a fit one for appeal to the Federal Court.
H.P. Sinha (S.C. Sinha, with him) for the appellant.
S.K. Mitra (section L. Chibber, with him) for the respondent.
November 30.
The judgment of the Court was deliv ered by FAzL ALl J.
800 FAZL ALI J.
This is an appeal from an order of the High Court of Judicature at Patna dated the 9th September, 1948, declining to call upon the board of Revenue to state a case under section 21 (3) of the Bihar Sales Tax Act, 1944 (Act VI of 1944), with reference to an assessment made under that Act.
The Bihar Sales Tax Act was passed in 1944, and section 4 of the Act provides that "every dealer whose gross turn over during the year immediately preceding the commencement of the Act exceeded Rs. 5,000 shall be liable to pay tax under the Act on sales effected after the date so notified.
" It is not disputed that, having regard to the definitions of dealer, goods and sale under the Act, the appellant, who has been doing contract work on a fairly extensive scale for the Central Public Works Department and the East Indian Railway, comes within the category of a dealer mentioned in section 4.
Section 7 of the Act provides that "no dealer shall, while being liable under section 4 to pay tax under the Act, carry on business as a dealer unless he has been registered under the Act and possesses a registration certificate".
In pursuance of this provision, the appellant filed an applica tion for registration on the 19th December, 1944, and a certificate of registration was issued to him on the 21st December, 1944.
On the 8th October, 1945, the Sales Tax Officer issued a notice to the appellant asking him to produce his accounts on 10th November, 1945, and to show cause why in addition to the tax to be finally assessed on him a penalty not exceeding one and a half times the amount should not be imposed on him under section 10 (5) of the Act.
Section 10 (5), under which the notice purported to have been issued, runs thus: "If upon information which has come into his posses sion, the Commissioner is satisfied that any dealer has been liable to pay tax under this Act in respect of any period and has nevertheless wilfully failed to apply for registra tion, the Commissioner shall, alter giving the dealer a reasonable opportunity of being heard, assess, to the best of his judgment, the amount of tax, if any, due from the dealer in respect of such 801 period and all subsequent periods and the Commissioner may direct that the dealer shall pay, 'by way of, penalty, in addition to the amount so assessed, a sum not exceeding one and a half times that amount.
" The appellant appeared before the Sales Tax Officer in response to this notice, but obtained several adjournments till 16th March, 1046, and ultimately failed to appear.
Thereupon, he was assessed by the Sales Tax Officer, accord ing to the best of his judgment, and was ordered to pay Rs. 4,526 13 0 as tax and a penalty amounting to one and a half times the amount assessed, under section 10 (5) of the Act.
The appellant appealed to the Commissioner against the assessment and the penalty levied upon him, but his appeal was dismissed on the 6th June, 1946.
He then filed a peti tion for revision to the Board of Revenue, against the order of the Commissioner, but it was dismissed on the 28th May, 1947.
He thereupon moved the Board of Revenue to refer to the High Court certain questions of law arising out of is order of the 28th May, but Mr. N. Baksi, a Member of the Board, by his order of the 4th December, 1947, rejected the petition with the following observations : "No case for review of my predecessor 's order made out.
No reference necessary.
" Section 21 of the Act provides that if the Board of Revenue refuses to make a reference to the High Court, the applicant may apply to the High Court against such refusal, and the High Court, if it is not satisfied that such refusal was justified, may require the Board of Revenue to state a case and refer it to the High Court.
The section also provides that "the High Court upon the hearing of any such case shall decide the question of law raised thereby, and shall deliver its judgment thereon containing the grounds on which such decision is founded, and shall send to the Board of Revenue a copy of such judg ment under the seal of the Court . . and the Board shall dispose of the case accordingly.
" In accordance with this section, the appellant made an application to the High Court praying that the Board of Revenue may be called upon to state a case and refer 802 it to the High Court.
Dealing with this application, the High Court pointed out that the Member of the Board had not been asked to review his predecessor 's order but only to state a case, and gave the following directions : "The ease must, therefore, go back to the Board of Revenue for a case to be stated or for a proper ,order rejecting the application to be passed." The Board then reheard the matter and rejected the application of the appellant and refused to state a case and refer it to the High Court.
The appellant thereafter made an application to the High Court for requiring the Board of Revenue to state a case, but this application was summarily rejected.
He then applied to the High Court for leave to appeal to the Federal Court, which the High Court granted, following the decision of a Full Bench of the Lahore High Court in Feroze Shah Kaka Khd vs Income tax Commissioner, punjab and N.W.F.P., Lahore The High Court pointed out in the order granting leave that in the appeal that was taken to the Privy Council in the Lahore case, an objection had been raised as to the competency of the appeal, but the Privy Council, while dismissing the appeal on the merits, had made the following observation: " The objection is a serious one.
Admittedly such an appeal as the present is not authorized by the Income tax Act itself.
If open at all, it must be justified under clause "9, Letters Patent of the Lahore High Court, as being an appeal from a final judgment, decree or order made in the exercise of original jurisdiction by a Division Bench of the High Court.
And this present appeal was held by the Full Court to be so justified.
Before the Board the question was not fully argued, and their Lordships accordingly refrain from expressing any opinion whatever upon it" (2).
The High Court in granting leave to the appellant seems to have been influenced mainly by the fact that the view of the Lahore High Court had not been held by the Privy Council to be wrong.
(1) A.I.R. 1981 Lah.
(2) A.I.R. 1933 P. C. 198.
803 At the commencement of the hearing of the appeal in this Court, a preliminary objection was raised by the learned counsel for the respondent that this appeals was not compe tent, and, on hearing both the parties, we are of the opin ion that the objection is wellfounded.
In Sri Mahanth Harihar Gir vs Commissioner of Income tax, Bihar and Orissa (1) it was held by a special Bench of the Patna High Court that no appeal lay to His Majesty in Council under clause 31 of the Letters Patent of the Patna High Court, from an order of the High Court dismissing an application under section 66 (3) of the Income tax Act, (a provision similar to section 21 of the Act before us) to direct the Commissioner of Income tax to state a case.
In that case, the whole law on the subject has been clearly and exhaustively dealt with, and it has been pointed out that the view taken by the Full Bench of the Lahore High Court in the case cited by the appellant was not supported by sever al other High Courts and that the Privy Council also, when the matter came before it, refrained from expressing any opinion as to its correctness.
In our opinion, the view expressed in the Patna case is correct.
Clause 31 of the Letters Patent of the Patna High Court, on the strength of which the appellant resists the prelimi nary objection raised by the respondent, runs thus : "And We do further ordain that any person or persons may appeal to Us, Our heirs and successors, in Our or Their Privy Council, in any matter not being of criminal juris diction, from any final judgment, decree, or order of the said High Court of Judicature at Patna, made on appeal and from any final judgment, decree on order made in the exercise of original jurisdiction by Judges of the said High Court or of any Division Court, from which an appeal does not lie to the said High Court under the provisions contained in the 10th clause of these (1) A.I.R. 1941 Prat.
804 presents: provided, in either case, that the sum or matter at issue is of the amount or value of not less than ten thousand rupees, or that such judgment,decree or order involves, directly or indirectly, some claim, demand or question to or respecting property amounting to or of the value of not less than ten thousand rupees; or from any other final judgment, aecree or order made either on appeal or otherwise as aforesaid, when the said High Court declares that the case is a fit one for appeal to Us . " In order to attract the provisions of this clause, it is necessary to show, firstly, that the order under appeal is a final order; and secondly, that it was passed in the exer cise of the original or appellate jurisdiction of the High Court.
The second requirement clearly follows from the concluding part of the clause.
It seems to us that the order appealed against in this case, cannot be regarded as a final order, because it does not of its own force bind or affect the rights of the parties.
All that the High Court is required to do under section 21 of the Bihar Sales Tax Act is to decide the question of law raised and send a copy of its judgment to the Board of Revenue.
The Board of Revenue then has to dispose of the case in the light of the judgment of the High Court.
It is true that the Board 's order is based on what is stated by the High Court to be the correct legal position, but the fact remains that the order of the High Court standing by itself does not affect the rights of the parties, and the final order in the matter is the order which is passed ultimately by the Board of Revenue.
This question has been fully dealt with in Tata Iron and Steel Company vs Chief Revenue Authority, Bombay(1), where Lord Atkinson pointed out that the order made by the High Court was merely advisory and quoted the following observations of Lord Esher in In re Knight and the Tabernacle Permanent Building Society(2): "In the case of Ex parte County Council of Kent, where a statute provided that a case might be stated (1) at 617. 805 for the decision of the Court it was held that though the language might prima facie import that there has to be the equivalent of a judgment or order, yet when the context was looked at it appeared that the jurisdiction of the Court appealed to was only consultative, and that there was noth ing which amounted to a judgment or order.
" It cannot also be held that the order was passed by the High Court in this case in the exercise of either original or appellate jurisdiction.
It is not contended that the matter arose in the exercise of the appellate jurisdiction of the High Court, because there was no appeal before it.
Nor can the matter, properly speaking, be said to have arisen in the exercise of the original jurisdiction of the High Court, as was held by the Judges of the Lahore High Court in the case to which reference was made, because the proceeding did not commence in the High Court as all origi nal suits and proceedings should commence.
But the High Court acquired jurisdiction to deal with the case by virtue of an express provision of the Bihar Sales Tax Act.
The crux of the matter therefore is that the jurisdiction of the High Court was only consultative and was neither original nor appellate.
In this view, the appeal must be dismissed, though on hearing the parties, it appeared to us that the salestax authorities including the Commissioner and the Board of Revenue were in error in imposing a penalty upon the appel lant under section 10 15) of the Act which had no applica tion to his case, inasmuch as he had been registered as required by section 7 of the Act.
In the circumstances, while dismissing the appeal, we make no order as to costs.
Appeal dismissed.
Agent for the respondent:
K. Chatterjee.
[/INST]No appeal lay to the Federal Court from an order of the Patna High Court dismissing an application under section 21(3)of the Bihar Sales Tax Act, 1944, to direct the Board of Reve nue, Bihar, to state a case and refer it to the High Court.
Such an order is not a` "final order" within the meaning of cl. 31 of the Letters Patent of the Patna High Court, inas much as an order of the High Court under section '21 (3) is advisory and standing by itself does not bind or affect the rights of the parties though the ultimate order passed by the Board of Revenue may be based on the opinion expressed by the High Court.
Nor is such an order passed by the High Court in the exercise either of its appellate or original jurisdiction within the meaning of the said clause.
Sri Mahant Harihar Gir vs Commissioner of Income tax, Bihar and Orissa (A.I.R. 1941 Pat. 225) and Tata Iron and Steel Company vs Chief Revenue Authority, Bombay (50 I.A. 212 applied.
Feroze Shah Kaka Khel vs Income tax Commissioner, Punjab (A.I.R. 1931 Lab.
138)disapproved.
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<s>[INST] Summarize the judgementCivil Appeal No. 323 of 196.
Appeal from the judgment and order dated September 25, 1958, of the Bombay High Court in I.T.R. No. 3 of 1958.
K. N. Rajagopal Sastri and D. Gupta, for the appellant.
R. J. Kolah, J. B. Dadachanji, O. C. Mathur and Ravinder Narain, for the respondent.
January 31.
The Judgment of the Court was delivered by 904 section K. DAS, J.
The Commissioner of Income tax, Bombay City I, has preferred this appeal to this Court on a certificate of fitness granted by the High Court of Bombay under section 66A (2) of the Indian Income tax Act, 1922.
The assessee, who is the respondent before us, was assessed to income tax as an individual in respect of his income for the assessment year 1954 55.
The taxing authorities included in the assessee 's total income for the year to sums, namely, a sum of Rs. 410/ and a sum of Rs. 14,170/ .
It was stated that these two sums accrued in the relevant account year in the following circumstances.
On January 12, 1953 the assessee created a trust in respect of a sum of Rs, 25,000/ , the trustees whereof were the Central Bank Executor & Trustee Co., the assessee himself his wife and brother.
The scheme of the trust deed was that the said sum of Rs. 25,000/ was set apart by the assessee and it was provided that the interest on that amount should be accumulated and added to the corpus and a minor daughter of the assessee, named Chandrika, was to receive the income from the corpus increased by the addition of interest, when she attained the age of 18 on February 1, 1959.
She was to receive the income during her life time and after her death the corpus was to go to persons with whom we are not concerned.
The income derived from the said trust fund amounted to Rs. 410/ in the relevant account year and the taxing authorities included this amount in the total income of the assessee, purporting to act under section 16(3)(b) and/or section 16(3)(a)(iv) of the Income tax Act.
As regards the second sum of Rs. 14,170/ it appears that on December 1, 1941, the assessee 's father had created a trust in respect of some shares and a cash sum of Rs. 30,000/ for the benefit of his four sons including the assessee.
The trustees were the Central Bank Executor and Trustee Co. Ltd., the assessee himself and one other person.
The said trustees were to hold the trust funds upon trust to 905 pay the net interest and income thereof to the assessee "for the maintenance of himself and his wife and for the maintenance, education and benefit of all his children till his death".
The sum of Rs. 14,170/ .
it was stated, accrued as income in the hands of the assessee in the relevant account year from the said trust funds.
The view of the taxing authorities and the Income tax Appellate Tribunal was that under the aforesaid provision of the trust deed the assessee was the sole beneficiary and that the amount was received by him for his own benefit and he was not accountable to any one in respect of the amount and, therefore, this amount was liable to be included in his total income.
On behalf of the assessee the contention was that the sum of Rs. 410/ aforesaid was not liable to be included in the total income of the assessee inasmuch as Chandrika, the minor daughter of the assessee, had no right to the income nor any beneficial interest therein in the relevant year of account under the provisions of the trust deed and, therefore, neither section 16(2)(a)(iv) nor section 16(3)(b) applied to the case.
As to the sum of Rs. 14,170/ the case of the assessee was that it should not be included in his total income as the sole beneficiary, because the beneficiaries under the trust settlement were not only the assessee but his wife and children as well.
It was contended that the assessee received the amount in trust for himself and his wife and children and it was open to the Department to proceed under the first proviso to section 41 (1) of the Income tax Act and recover tax on a separate assessment made on the assessee as a trustee in respect of the said sum at the maximum rate, because the individual shares of the beneficiaries on whose behalf the money was receivable were indeterminate and not known.
The Income tax Appellate Tribunal, on an appeal by the assessee, did not accept these contentions.
The Tribunal was then moved to state a 906 case to the High Court on two questions of law those questions were: "1.
Whether the sum of Rs. 410/ is properly includible in the assessee 's total income either in accordance with the provisions of section 16(3)(b) and/or section 16(3)(a)(iv) of the Indian Income tax Act, 1922? 2.
Whether the sum of Rs. 14,170/ is properly includible in the total income of the assessee as the sole beneficiary thereof under the trust settlement made on 1 12 1941 by Dhanji Devsi?" On being satisfied that these questions of law arose out of the order of the Tribunal dated April 24, 1957, the Tribunal stated a case under section 66(1) of the Income tax Act.
The High Court answered both the questions in favour of the assessee by its judgment and order dated September 25, 1958.
There after the High Court granted a certificate of fitness under section 66A(2) of the Income tax Act and, as we have already stated, the present appeal has been brought to this Court on the strength of that certificate.
We proceed now to deal with the first question which relates to the sum of Rs. 410/ .
The question is whether this sum was properly includible in the assessee 's total income under the provisions of section 16(3)(b) of the Income tax Act, because Mr. Rajagopal Sastri appearing for the appellant has not pressed the claim which was made before the Tribunal on behalf of the Department under the provisions of section 16(3)(a)(iv).
Before we go to the provisions of section 16(3)(b) it is advisable to set out the material portions of cls.
3 and 4 of the trust deed of January 12, 1953.
Those clauses were in these terms: "3.
The Trustees shall hold and stand possessed of the trust fund and the investments for the time being representing the 907 same and receive the income, divided, interest and rents thereof and invest the same and the resulting income, dividend, interest and rents thereof so as to accumulate at compound interest to the intent that such accumulations shall be added to the principal trust fund until the settler 's daughter Chandrika shall attain the age of eighteen years which age she will attain on the 1st February 1959 and after the expiration of the above named period the Trustees shall deal with and dispose of the trust fund as hereinafter stated.
The Trustees shall hold and stand possessed of the trust fund and the accumulations thereof upon trust to pay the net interest and income thereof after deducting all out goings and charges for collection to the said Chandrika for her life for her maintenance. " It is clear from these clauses that during the minority of Chandrika, the income from the trust funds was to be accumulated and added to the trust funds and after the attained majority on February 1, 1959, she was to get only the income from the enlarged trust funds.
Now, in the relevant year of account Chandrika was still a minor and under the terms of the trust deed she had no right to the trust income nor any beneficial interest therein; she could neither receive nor enjoy the income.
She did not derive any benefit whatsoever from the trust funds during her minority and even after she attained majority, she did not have any right to the trust income which arose during her minority and her only right was to enjoy the income arising from the enlarged trust funds, i. e., the original trust funds and the accumulations of trust income during her minority.
Therefore, the sum of Rs. 410/ was not the income of Chandrika, but was the income of the trustees and the income was impressed with a trust, namely, that it should be added to 908 the trust corpus.
The question is, does section 16(3)(b) apply to such a case ? We shall presently read section 16(3), but before we do so it is necessary to refer to the scheme of section 16 of the Income tax Act.
The section deals with the computation of total income as defined in section 2(15) of the Act, and provides that what sums are to be included or excluded in determining the total income.
The definition of total income in section 2(15) involves two elements (a) the income must comprise the total amount of income, profits and gains referred to in section 4(1), and (b) it must be computed in the manner laid down in the Act.
The exemption granted under the Act is of two kinds; certain classes of income are exempted from tax and also excluded from the computation of total income, while certain other classes of income exempted from tax are to be included in the assessee 's total income.
Now cl.
(a) of sub section
(i) of section 16 provides the sums exempted from tax under certain provisions of the Act should be included in the assessee 's total income.
Clause (b) lays down the mode of computing a partner 's share in the profit or loss of the firm.
Under cl.
(c) income which arises to any person by virtue of any settlement or disposition from assets remaining the property of the settler or disponer etc.
is taxed as his income.
The object of the legislation is clearly designed to overtake and circumvent a tendency on the part of the tax payers to endeavour to avoid or reduce tax liability by means of settlements.
Sub section (2) deals with grossing up of dividend etc.
Then we come to sub section (3).
This sub section aims at foiling an individual 's attempt to avoid or reduce the incidence of tax by transferring his assets to his wife or minor child or admitting his wife as a partner or admitting his minor child to the benefits of a partnership in a firm in which such individual is a partner.
The sub section creates an artificial 909 liability to tax and must be strictly construed.
Now, let us read the sub section.
(3) In computing the total income of any individual for the purpose of assessment there shall be included: (a) so much of the income of a wife or minor child of such individual as arises directly or indirectly: (i) from the membership of the wife in a firm of which her husband is a partner; (ii) from the admission of the minor to the benefits of partnership in a firm of which such individual is a partner; (iii)from assets transferred directly or indirectly to the wife by the husband otherwise than for adequate consideration or in connection with an agreement to live apart; or (iv) from assets transferred directly or indirectly to the minor child, not being a married daughter by such individual otherwise than for adequate consideration; and (b) so much of the income of any person or association of persons as arises from assets transferred otherwise than for adequate consideration to the person or association by such individual for the benefit of his wife or a minor child or both.
" The argument on behalf of the appellant is that the conditions laid down in cl.
(b) of sub section
(3) of section 16 are fulfilled in the present case and therefore the Department was intitled to include in the 910 total income of the assessee so much of the income in the hands of the trustees as arose from the assets transferred by the assessee for the benefit of his minor child.
It is pointed out that the conditions laid down in cl.(b)are (1) that there must be income in the hands of any person or association of persons (trustees in the present cases;) (2) the income must arise from assets transferred otherwise than for adequate consideration to the trustees; and (3) the transfer must be for the benefit of the minor child.
It is argued that when the conditions are fulfilled and the only exceptional case, namely, where the transfer is for adequate consideration is out of the way, cl.
(b) must apply and the Department is entitled to include the income in the hands of the trustees in computing the total income of the individual assessee who made the transfer.
At first sight the argument appears to be attractive and supported by the words used in the clause.
On a closer scrutiny, however; it seems to us that cl.
(b) must be read in the context of the scheme of 16 and the two clauses (a) and (b) of sub section
(3) thereof must be read together.
So read the only reasonable interpretation appears to be the one which the High Court accepted, namely, that the scheme of the section requires that an assessee can only be taxed on the income from a trust fund for the benefit of his minor child, provided that in the year of account the minor child derives some benefit under the trust deed either he receives the income, or the income accrues to him, or he has a beneficial interest in the income in the relevant year of account.
But if no income accrues, or no benefit derived and there is no income at all (so far as the minor child is concerned), then it is not consistent with the scheme of section 16 that the income or benefit which is non existent so far as the minor child is concerned, will be included in the income of his father.
Take, for example, a case where the assets 911 were transferred otherwise than for adequate consideration for the benefit of a minor child, but the child has attained majority before the relevant year of account.
After the child attains majority the sub section would cease to apply and the income from assets transferred for the benefit of the child would no longer be taxable in the parent 's hands.
The reason must be that in the relevant year of account there is no benefit to the minor child by the transfer, even though the transfer was originally made for the benefit of the child.
The same principle may be illustrated by another example which has been dealt with by the High Court.
Take a case where there are intermediate beneficiaries before the minor gets the benefit under the trust deed.
In such a case the learned Advocate for the Department conceded in the High Court that cl.
(b) of sub section
(3) of section 16 would not be attracted till the minor derived benefit under the trust deed.
Mr. Rajagopal Sastri did not make any such concession before us; but seems to us that principle underlying the illustration is incontestable.
If the minor derives no benefit in the relevant year of account, it can hardly be said that for that year the transfer was for the benefit of the minor child.
Section 4, the charging section, of the Income taxs Act makes it clear that what is taxed is the total income of the relevant account year, and total income, according to section 2 (15), is the income, profits and gains referred to in sub section
(1) of section 4 and computed in the manner laid down in the Act.
In other words, the tax is levied on a yearly basis.
It is true that in the present case there was income in the hands of the trustees and the trustees were liable to pay tax thereon.
That, however, is not the question before us.
The question before us is whether such income in the hands of the trustees could be included in the total income of the assessee under cl.
(b) of sub s.(3) of section 16.
In our opinion, when 912 cl.
(b) of sub section
(3) of section 16 talks of benefit of the minor child it refers to benefit which arises or accrues to the minor in the year of account.
If there be no such benefit, the income cannot be included in the total income of the individual who made the transfer.
There is a third type of case which also illustrate the same principle.
If only a portion of the income of the trust is reserved for the minor child, cl, (b) would apply and that portion of the income which is set apart for the benefit for the child would be taxable in the hands of the settler.
All these illustrations only establish the principle that the minor child must derive some benefit in the relevant year of account before cl.
(b) would apply.
Furthermore, we are also of the view that cls.
(a) and (b) of the sub section must be read together, Clause (a) begins with the expression "so much of the income of a wife or minor child of such individual as arises directly or indirectly", and this is followed by the four circumstances numbered (i), (ii), (iii) and (iv).
There is no doubt that so far as cl.
(a) is concerned, there must be income of the wife or minor child.
Mr. Rajagopal Sastri has not disputed this.
The obvious intention of the Legislature in enacting cl.
(b) was to see that the provisions of cl.
(a) were not defeated by the assessee creating a trust and in order to deal with that mischief it enacted cl.
Instead of the expression "so much of the income of a wife or minor child" the expression used in cl.
(b) is "so much of the income of any person or association of persons etc.".
Obviously, when a trust is created the income is income in the hands of the trustees.
But the underlying principle in the two cls.
(a) and (b) appears to be the same, namely, there must be income of the wife or minor child under cl.(a) and there must be some benefit derived by the wife or minor child in the year of account under cl.(b).
This is consistent with the scheme of section 16 913 and particularly sub section
(3) thereof.
which is intended to foil an individual 's attempt to avoid or reduce the incidence of tax by transferring his assets to his wife or minor child etc.
When, however, the minor child derives no benefit under the trust deed in the year of account, it is not consistent with the scheme of section 16 to say that even though there is no accrual of and income or benefit in the year of account in favour of the minor child, yet the income must be included in the total income of the individual concerned.
Our attention has been drawn to section 64 of the Income tax Act, 1961 (43 of 1961).
That section corresponds to section 16 of the Income tax Act, 1922 and cl.
(v) of section 64 has made the position clear by using the expression 'immediate or deferred benefit" so that even a benefit which is postponed and does not arise in the year of account will not entitle the Department to include the income in the hands of the trustees in the total income of the settler.
We do not, however, think that the Act of 1961 can be taken as declaratory of the law which excited previously; nor can s 64 (v) be taken as determinative of the true scope and effect of cl.
(b) of sub section
(3) of section 16.
The Legislature may have thought fit in its wisdom to widen the scope of the law that existed previous to it so as to take in deferred benefits as well.
We think that we must interpret cl.
(b) of sub section
(3) of the context of the section as it occurs in the Income tax Act of 1922.
We have been referred to two English decisions Dale vs Mitcalfe (1) and Mauray vs Commissioners of Inland Revenue (2).
One of the decision Dale vs Mitcalfe (1) related to section 25 of the English Income Tax Act, 1918 (8 & 9 Geo.
V. C. 40) and the other related to section 20(1)(c) of the English Finance Act 1922 (12 and 13 Geo V. C. 17).
Those provisions were differently worded and appear in a different 914 context and decisions of the English Courts given on provisions differently worded and appearing in a different context are not, in our opinion, helpful in determining the true scope and effect of cl.
(b) sub section
(3) of section 16 of the Income tax Act, 1922.
We have therefore, come to the conclusion that on a true construction of cl.
(b) of sub section
(3) of section (3), the view expressed by the High Court was correct and the sum of Rs. 410/ did not form part of the total income of the assessee.
The High Court correctly answered the first question referred to it.
We now turn to the second question.
The relevant clause of the trust deed of December 1, 1941 is cl. 7 which reads as follows: "The trustees shall hold and stand possessed of the Trust Fund mentioned in the second Schedule hereto and the accumulations thereof referred to in clause 3 thereof upon Trust to pay the net interest and income thereof to the Settler 's son MANILAL for the maintenance of himself, his wife and for the maintenance, education and benefit of all his children till his death.
" The question before us is whether under this clause the income received by the assessee is impressed with a trust in favour of himself, his wife and children to whom he is accountable as a trustee for the amount received.
In other words, the question is whether the trust deed of December 1, 1941, created two trusts, the one requiring the trustees to pay the income from the trusts funds to the assessee and the second requiring the assessee to spend the income for the maintenance of himself and his wife and for the maintenance, education and benefit of his children.
In cases where property is given to a parent or other person standing or regarded as in loco parentis, with a direction 915 touching the maintenance of the children, the question often arises whether the settler intended to impose a trust by the direction or whether the direction was only the motive of the gift.
The line between the two classes of cases has not been drawn always very firmly.
It is, however, clear that in construing provisions of this kind the Court will not enforce or treat as obligatory a mere wish or desire or hope on the part of the settler that the donee of the fund should or would ought to or is expected to apply it for the benefit of other persons; on the other hand, the Court does regard as binding and obligatory and does enforce a direction or trust in favour of third parties if such a binding obligation can be clearly ascertained from the document.
Instances of cases where no trust is created and of cases where trust is created and detailed at pages 85 and 86 of Lewin on Trusts (15th Edition).
We are unable to hold that in the case before us cl.
7 of the trust deed merely expressed a wish or desire or hope on the part of the settler.
We are in agreement with the High Court that the direction contained in cl. 7 created a trust in favour of the assessee, his wife and children.
The expression "for the maintenance of himself and his wife and for the maintenance, education and benefit of all his children" is not indicative of a mere desire or hope.
It imposes a binding and obligatory trust.
In re.
Booth, Booth vs Booth (1) a testator gave the residue of his estate to his executors, on trust, to pay to his wife or permit her to receive the annual income thereof during her life, "for her use and benefit and for the maintenance and education of my children".
It was held that the wife took the income subject to a trust for the maintenance and education of the 916 children.
A similar view was expressed in Raikes vs Ward (1) and Woods vs Woods (2) On behalf of the appellant our attention was drawn to section 8 of the (II of 1882) which states that the subject matter of a trust must be property transferable to the beneficiary and it must not be merely beneficial interest under a subsisting trust.
It is contended that the assessee held a beneficial interest in the income from the trust funds under the trust deed of December 1, 1941, and in respect of beneficial interest another trust could not be created in favour of himself, his wife and children.
We think that this argument proceeds on a misconception.
The assessee did not create a second trust in respect of the beneficial interest which he held under the trust deed of December 1, 1914.
The assessee father created two trusts by that trust deed, one requiring the trustees to pay the trust income to the assessee and the other requiring the assessee, who was himself a trustee, to spend the income for the maintenance, education and benefit of his children.
It is not disputed that by a single document more than one trust may be created.
It is not, therefore, true to say that the subject matter of the trust in the present case was merely a beneficial interest under a subsisting trust.
Under section 41 of the Income tax Act it was open to the Department either to tax; the trustees of the trust deed or to tax those on whose behalf the trustees had received the amount.
The true position of the assessee in this case was that he was a trustee and not the sole beneficiary under the trust deed.
He held the income on trust for himself, his wife and his children.
The shares of the beneficiaries were indeterminate and therefore under the first proviso to section 41(1) of the 917 Income tax Act, it was open to the Department to levy and recover the tax at the maximum rate from the assessee; but that did not entitle the Department to include the sum of Rs. 14,170/ in the total income of the assessee as though he was the sole beneficiary under the trust deed, Mr. Rajagopal Sastri made it clear that the intention of the Department was to include the sum in the total income of the assessee in order to levy and charge super tax on him.
This, we do not think, the Department was entitled to do.
In respect of the sum of Rs. 14,170/ the assessee was a trustee, within the meaning of section 41 of the Income tax Act, appointed under a trust declared by a duly executed instrument in writing and as such trustee he had the right to contend that his assessment in respect of the money received by him not as a beneficiary but as a trustee could only be made under the first proviso to section 41 (1).
We have, therefore, come to the conclusion that on the second question also the answer given by the High Court was correct.
The result, therefore, is that the appeal fails and is dismissed with costs.
Appeal dismissed.
[/INST]In 1953 the assessee created a trust in respect of a sum of money and provided that the interest on that amount was to be accumulated and added to the corpus and that his minor daughter C was to receive the income from the corpus increased by the addition of interest when she attained the age of 18 years.
In the relevant account year, when C was still a minor, the income derived from the trust fund was Rs. 410 Earlier in 1941, the assessee 's father had created a trust in respect of certain shares and money directing the trustees to pay the net interest and income thereof to the assessee "for the maintenance of himself and his wife and for the maintenance, education and benefit of all his children till his death".
In the relevant account year a sum of Rs. 14,170 accrued as income in the hands of the assessee from the said trust funds, 903 The taxing authorities included both these incomes in the total income of the assessee. ^ Held, that neither of these two incomes could be included in the total income of the assessee.
Under section 16(3)(b) of the Indian Income tax Act, upon which the authorities relied, the assessee could only be taxed on the income from the trust funds for the benefit of his minor child if in the year of account the minor child either received the income or it accrued to her or she had a beneficial interest in the income in the relevant year of account.
In the present case though there was income in the hands of the trustees and they were liable to pay tax thereon, there was no benefit to the minor child in that year.
As such the sum of Rs. 410 did not form part of the total income of the assessee.
The trust deed of 1941 created two trusts, the one requiring the trustees to pay the income from the trust funds to the assessee and the second requiring the assessee to spend the income for the maintenance of himself and his wife and for the maintenance, education and benefit of his children.
It was not a case where the settler merely expressed a wish or desire or hope but he gave as direction which created a trust in respect of the income in the hands of the assessee in favour of himself, his wife and children.
The assessee did not create the second trust in respect of the beneficial interest which he held under the trust of 1941 and section 8 of the Indian Trusts Act which forbade the creating of such a trust was inapplicable.
The assessee was a trustee and not the sole beneficiary; and since the shares of the beneficiaries were Indeterminate it was open to the Department to levy and recover tax at the maximum rate from the assessee as trustee under the first proviso to s.41(1) but the Department was not entitled to include the sum of Rs. 14,170 in the total income of the assesse as though he was the sole beneficiary under the trust deed.
</s>
|
<s>[INST] Summarize the judgementminal Appeal No. 192 of 1959.
Appeal by special leave from the judgment and order dated October 27, 1958, of the Andhra Pradesh High Court at Hyderabad in Criminal Revision Case No. 395 of 1958.
M. C. Setalvad, Attorney General of India, T. V. R. Tatachari and T. M. Sen, for the appellant.
R. Thiagarajan for N. section Mani, for respondent.
April 4.
The Judgment of the Court was delivered by SARKAR, J.
The respondent was convicted by the Judicial Magistrate of Adoni in the State of Andhra Pradesh, under section 14 of the .
His appeal to the Sessions Judge of Kurnool was dismissed.
He then moved the High Court of Andhra Pradesh in revision and the revision petition was allowed.
Hence the present appeal by the State of Andhra Pradesh.
The facts found were these: On January 20, 1955, the respondent had come to Adoni on a passport granted by the Government of Pakistan which bore the date January 10, 1955.
The passport had endorsed on it a visa granted by the Indian authorities which permitted the respondent to stay in India up to April 14, 1955.
The respondent continued to stay on in India after that date.
On some date, not precisely ascertainable from the record, he appears to have made a representation to the Government of India for extension of his visa till September 2, 1957, on grounds of health.
The records do not however show what order, if any, was made on this representation.
On September 3, 1957, an order dated August 9, 1957, made by the Government of Andhra, Pradesh requiring him to leave India, was served on the respondent As the respondent did not leave India as directed by this order, he was prosecuted with the result earlier stated.
The passport showed that the respondent was born at Adoni in 1924 The respondent appears to have 740 produced an extract from the municipal birth register, which is not on the record, but presumably showed that he was so born.
The only evidence on the record of the date when he left India, shows that must have been at the end of 1954 or early in 1955.
There is evidence to show that he had been paying rent for his ,hop at Adoni for about ten years prior to 1958 and his parent section brothers, wife, and children were.
and bad always been in India.
The respondent was charged with the breach of the order to leave India which had been made under section 3 (2)(c) of the .
Now the order could not be made on him, neither could he be convicted for breach of it, if lie was not a foreigner.
That was the defence of the respondent, namely that he was not a foreigner.
The question is, was a foreigner? The learned Judicial Magistrate found that by obtaining the passport from the Pakistan authorities, "he has disowned Indian nationality and has ceased to be an Indian National." He also held that section 9 of the did not apply to the case but section 8 of that Act did and that under that section a decision made by the Government that a person is a foreigner is final and such a decision had been made in this case regarding the respondent as the Government had decided not to grant him an extension of his visa.
On these grounds he found that the respondent was a foreigner.
It seems to us that both these grounds are untenable.
Section 8 applies to a case where "a foreigner is recognised as a national by the law of more than one foreign country or where for any reason, it is uncertain what nationality if any is to be ascribed to a foreigner.
" The section provides that in such cases the prescribed authority has power to decide of which country the foreigner is to be treated as the national and such decision shall be final.
The section, therefore, applies to a person who is a foreigner and the question is of which foreign country he is a national.
In the case of the respondent no such question arose and no decision could be or was made by any prescribed authority of such question.
The learned Magistrate therefore clearly went wrong in relying on section 8. 741 As regards the passport, the learned Magistrate did not come to the finding that it proved the respondent to have been a Pakistani national all along.
What he Al did was to think that the respondent who had earlier been an Indian national, had by obtaining it, disowned Indian nationality and ceased to be an Indian national.
Now, section 9(2) of the , provides that if any question arises as to whether an Indian citizen has acquired the citizenship of another country, it shall be determined by such authority and in such manner as may be prescribed.
Under r. 30 of the rules framed under that Act,, the authority to decide that question is the Central Government.
So the question whether the respondent, an Indian citizen, had acquired Pakistani citizenship cannot be decided by courts.
The learned Magistrate had no jurisdiction therefore to come to the finding on the strength of the passport that the respondent, an Indian citizen, had acquired Pakistani citizenship.
Nor was there anything before the learned Magistrate to show that the Central Government had decided that the respondent had renounced Indian citizenship and acquired that of Pakistan.
The learned Magistrate thought that the fact that the Central Government had refused to extend the respondent 's visa proved that it had decided that he had acquired Pakistani nationality.
This view again was not warranted.
There is nothing to show that the Central Government had refused to extend the respondent 's visa.
Even if it had, that would not amount to a decision by it, that the respon dent, an Indian citizen, had acquired subsequently Pakistani nationality for there may be such refusal when an applicant for the extension had all along been a Pakistani national.
Furthermore, in order that there may be a decision by the Central Government that an Indian citizen has acquired foreign nationality, an enquiry as laid down in r. 30 of the rules framed under the has to be made and no such enquiry had at all been made.
That being so, it cannot be said that the Central Government had decided that the respondent, an Indian citizen, had acquired the citizenship of Pakistan.
742 The question whether a person is an Indian citizen or a foreigner, as distinct from the question whether a person having once been an Indian citizen has renounced that citizenship and acquired a foreign nationality, is not one which is within the exclusive jurisdiction of the Central Government to decide.
The courts can decide it and, therefore, the learned Magistrate could have done so.
He, however, did not decide that question, that is, find that the respondent had been a Pakistani national all along.
On the evidence on the record such a finding would not have been warranted.
For all these reasons we think that the conviction of the respondent by the learned Magistrate was not well founded.
Coming now to the decision of the learned Sessions Judge, he seems to have based himself on the reasoning that the "conduct of the appellant" that is, the respondent before us, "in applying for extension of time shows that he is not a citizen of India and that he has acquired citizenship of Pakistan.
If he were a citizen of India, he could have raised this plea and this question could have been decided by the Central Government as envisaged by Rule 30, sub Rule I of the Rules made under the and there was no necessity to apply for extension.
" Quite plainly, the learned Sessions Judge was proceeding on the basis that the respondent had renounced his Indian citizenship and acquired Pakistani citizenship.
As we have said earlier, that is not a question which is open to a court to decide and there is no evidence to show that it has been decided by the Central Government who alone has the power to decide it.
The learned Sessions Judge did not direct himself to the question which lie could decide, namely whether the respondent had from the beginning been a Pakistani citizen.
His decision, therefore, cannot also be sustained.
We have examined the evidence on the record our.,elves and are unable to say that a conviction can be based on it.
There can be no conviction unless it can be held on the evidence that the respondent is a foreigner, that is to say, a person who is not an Indian 743 citizen: see section 2(a) of the as amended by Act 11 of 1957.
The evidence shows that the respondent did go to Pakistan, but the only evidence with regard to that is that he went there about the end of 1954 or the beginning of 1955.
This evidence also indicates that he stayed there for a short time.
He was all along paying the rent for his shop in Adoni.
His family bad always been there.
Therefore it can be said that he had never migrated to Pakistan.
Clearly, a short visit to Pakistan would not amount to migrating to that country.
The passport obtained by him from Pakistan would no doubt be evidence that he was a Pakistani national.
As on the facts of this case he must be held to have been an Indian citizen on the promulgation of the Constitution, the passport can show no more than that he renounced Indian citizenship and acquired Pakistani nationality.
Such evidence would be of no use in the present case for, in view of section 9(2) of the , a Court cannot decide whether an Indian citizen has acquired the citizenship of another country.
The position then is this.
The respondent has clearly discharged the onus that lay on him under section 9 of the to prove that he was not a foreigner, by proving that he was born and domiciled in India prior to January 26, 1950, when the Constitution came into force and thereby had become an Indian citizen under article 5(a) of the Constitution.
He has further proved that he had never migrated to Pakistan.
It has not been shown that the Central Government had made any decision with regard to him under section 9 of the that he has acquired a foreign nationality.
Therefore, it cannot be held by any court that the respondent who was an Indian citizen has ceased to be such and become a foreigner.
That being so, it must be held for the purpose of this case that the respondent was not a foreigner and no order could be made against him under section 3(l)(c) of the .
Conviction for breach of such an order by the respondent would be wholly illegal.
744 Though we are upholding the decision of the High Court, we wish to observe that we do not do so for the reasons mentioned by it.
It is unnecessary to discuss those reasons but we would like to point, out one thing, namely.
that the High Court seems to have been of the opinion that article 7 of the Constitution contemplates migration from India to Pakistan even after January 26, 1950.
We desire to make it clear that we should not be taken to have accepted or en dorsed the correctness of this interpretation of article 7.
The reference in the opening words of article 7 to articles 5 and 6 taken in conjunction with the fact that both articles 5 and 6 are concerned with citizenship (at the commencement of the Constitution) apart from various other considerations would appear to point to the conclusion that the migration referred to in article 7 is one before January 26, 1950, and that the contrary construction which the learned Judge has put upon article 7 is not justified, but in the view that we have taken of the facts of this case, namely, that the respondent had never migrated to Pakistan, we do not consider it necessary to go into this question more fully or finally pronounce upon it.
In the result we dismiss the appeal.
Appeal dismissed.
[/INST]The respondent was born in India in 1924 and had lived there all along till about the end of 1954.
He had been paying rent for his shop in India for ten years upto about 1958 and his family was and had always been in India.
At the end of 1954 or the beginning of 1955 lie went to Pakistan from where he returned on January 20, 1955, on a passport granted by the Pakistan Government which had a visa endorsed on it by the Indian authorities permitting him to stay in India up to April, 1955.
The respondent applied to the Central Government for extension of the time allowed by the visa but the records did not Show What order, if any, had been made on it.
As the respondent had stayed beyond the time specified in the visa, he was on September 3, 1957, served with an order made by the Government of Andhra Pradesh under section 3(2)(C) Of the , i946 requiring him to leave India.
The order described him as a Pakisthan National.
on his failure to comply with this order 93 738 he was prosecuted under section 14 of the .
His defence was that he was an Indian national.
The trying magistrate rejected this defence and convicted him holding (a) that the fact that the respondent obtained a Pakistan passport proved that he had disowned Indian nationality and ceased to be an Indian national and (b) that by refusing to extend the time fixed by the visa the Central Government had decided that the respondent was a foreigner and under section 8 of the , such a decision was final.
An appeal by the respondent was dismissed by the Sessions judge on the ground that the respondent 's application for extension of the time fixed by the visa proved that he had renounced his Indian nationality and had acquired the citizenship of Pakistan.
The High Court of Andhra Pradesh set aside the conviction in revision.
On appeal by the State of Andhra Pradesh, Held, that neither the Magistrate nor the Sessions Judge was competent to come to a finding of his own that the respon dent, an Indian national, had disowned his nationality and acquired Pakistan nationality for under section 9(2) of the , that decision could only be made by the prescribed authority which under the Rules framed under the Act was the Central Government.
The fact that the Central Government had refused to extend the visa did not show that it had decided under the section that the respondent had renounced his Indian nationality and acquired Pakistan citizenship.
In any event, in order that the Central Government might come to a decision under section 9(2) of the an enquiry as laid down in r. 30 Of the Rules framed under the Act had to be made and no such inquiry had been made.
On the facts established, the respondent became an Indian citizen under article 5(a) of the Constitution when it came into force.
He thereby discharged the onus laid on him by section 9 of the to prove that he was an Indian citizen when that was in dispute.
The passport obtained by the respondent from the Pakistan Government would, therefore, only be evidence that the respondent had renounced Indian nationality and acquired Pakistan citizenship.
Such evidence was however of no use in a court for no court could in view of section 9(2) of the decide whether an Indian citizen had renounced his citizenship and acquired the citizenship of a foreign country.
Section 8 of the had no application to the case as it only applied where a foreigner is recognised as a national by the law of more than one foreign country or where it is uncertain what nationality is to be ascribed to a foreigner and in the present case that was not the question but the question was whether the respondent was an Indian or a foreigner.
The respondent 's short visit to Pakistan had not amounted to a migration to that country.
Query, whether article 7 of the Constitution contemplates migration from India to Pakistan after January 26, 1950.
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<s>[INST] Summarize the judgementivil Appeal No. 258 of 1974 From the Judgment and Order dated 22.9.1972 of the Andhra Pradesh High Court in Appeal No. 549 of 1969.
T.S. Krishnamurthy.
G. Prabhakar and G. Narsimhulu for the Appellant.
P.P. Rao, T.C. Gupta and G.N. Rao for the Respondents.
The Judgment of the Court was delivered by DUTT, J.
The only point that is involved in this appeal by special leave is whether a gift by a coparcener of his undivided coparcenary interest to another coparcener is void or not.
In order to consider the point it is necessary to state a few relevant facts.
Two brothers, Rami Reddy and Veera Reddy and the sons and daughters of the latter being re spondents Nos. 2 to 7 herein, constituted a joint Hindu family governed by the Mitakshara School of Hindu Law.
On May 4, 1959, Rami Reddy executed a deed of settlement (exhibit A 1) in favour of his brother, Veera Reddy, conveying his entire undivided interest in the coparcenary reserving a fife interest to himself and also providing that after his death, his brother should maintain his wife.
Rami Reddy died in January, 1965 and shortly 239 thereafter his brother Veera Reddy also died in March, 1965.
It appears that after the death of Rami Reddy, differences arose between his widow and the respondent No. 1, as a result of which the widow of Rami Reddy (since deceased) demanded a partition of her husband 's share which was gifted by her husband to his brother Veera Reddy.
Thereafter, she file.1 a suit out of which this appeal arises for partition and recovery of her husband 's share after cancelling the deed of settlement (exhibit A 1), inter alia on the ground that it was a void document under the Hindu Law.
The suit was contested by the respondents Nos. 1 to 7.
The respondent No. 3 filed a written statement denying the plaint allegations.
The other respondents adopted the written statement of the Respondent No. 3.
The Trial Court, on a consideration of the evidence adduced on behalf of the parties held, inter alia, that the deed of settlement was void and inoperative under the Hindu Law in the absence of consent of the other coparceners.
Further, it was held by the Trial Court that even assuming that the deed of settlement was valid and binding on the plaintiff, the plaintiff was entitled to the alternative relief of maintenance and separate residence under section 39 of the Transfer of Property Act, as the plaintiff 's husband was legally bound to maintain his wife and the plaintiff was entitled to enforce her maintenance claim with a charge on the properties in suit.
In that view of the matter, the Trial Court held that the plaintiff was entitled to a sum of Rs. 1,200 per annum towards her maintenance and separate residence with a charge on the A and B Schedule properties of the plaint.
The suit was, accordingly, decreed by the Trial Court.
The defendant respondents filed an appeal before the Andhra Pradesh High Court.
The High Court, however, did not agree with the finding of the Trial Court that the deed of settlement was void.
It was held by the High Court that the deed of settlement was valid.
The judgment and decree of the Trial Court was set aside and the suit was dismissed in so far as it related to the cancellation of the deed of settle ment and recovery of possession of the suit properties by way of partition.
But the decree passed by the Trial Court awarding maintenance to the plaintiff at the rate of Rs. 1,200 per annum, that is to say, at the rate of Rs. 100 p.m. from the date of filing of the suit and creating a charge for the amount of maintenance on the suit properties was upheld by the High Court.
The appeal was allowed in part.
Hence this appeal by special leave.
During the pendency of this appeal in this Court the plain tiff, the 240 widow of Rami Reddy, died and the present appellant, who is her heir and legal representative, has been substituted in her place.
It is not disputed that the deed of settlement (exhibit A 1) is really a deed of gift.
It has been strenuously urged by Mr. Krishnamurthy Iyer, learned Counsel appearing on behalf of the appellant, that in holding that the gift in question was legal and valid, the High Court committed an error of law in the face of the legal position particularly prevail ing in the erstwhile State of Madras of which the present State of Andhra Pradesh was a part, as recognised in several judicial decisions that a gift of coparcenary property by a coparcener without the consent of the other coparceners is void.
The parties are admittedly governed by the Mitakshara School of Hindu Law.
The essence of a coparcenary under the Mitakshara School of Hindu Law is community of interest and unity of possession.
A member of joint Hindu family has no definite share in the coparcenary property, but he has an undivided interest in the property which is liable to be enlarged by deaths and diminished by births in the family.
An interest in the coparcenary property accrues to a son from the date of his birth.
His interest will be equal to that of his father.
So far as alienations of coparcenary property are con cerned, it appears that such alienations were permissible in eighteenth century.
Indeed, in Suraj Bunsi Koer vs Sheo Proshad Singh and Ors., ILR 6 IA 88 the Privy Council ob served as follows: " . . it has been settled law in the presidency of Madras that one coparcener may dispose of ancestral undivided estate, even by contract and conveyance, to the extent of his own share; and a fortiori that such share may be seized and sold in execution for his sepa rate debt.
. . . . But it appears . . . that, in order to support the alienation by one coparcener of his share in undivided property, the alienation must be for value.
The Madras Courts, on the other hand, seem to have gone so far as to recognise an alienation by gift.
There can be little doubt that all such alienations, whether voluntary or compul sory, are inconsistent with the strict theory of a joint and undivided Hindu family; and the law as established in Madras and Bombay has been one of gradual growth, rounded upon the equity which a purchaser for 241 value has to be allowed to stand in his ven dor 's shoes, and to work out his rights by means of a partition.
" Thus, the Privy Council also noticed that in Madras alienations by gift were recognised.
Such alienations were held by their Lordships to be inconsistent with the strict theory of joint and undivided Hindu family.
It is, however, a settled law that a coparcener may alienate his undivided interest in the coparcenary property for a valuable consid eration even without the consent of other coparceners.
As has been observed by the Privy Council in Suraj Bunsi Koer 's case (supra), such recognition of alienations of coparcenary property for valuable considerations has been one of gradual growth rounded upon the equity which the purchaser for value has to be allowed to stand in his vendor 's shoes and to work out his rights by means of a partition.
After the above Privy Council decision, there has been a gradual growth in Madras of a particular legal position in regard to alienations by way of gift.
Although at the time of the judgment of the Privy Council in Suraj Bunsi Koer 's case, the Madras Courts recognised alienations by gift, as time passed the courts of law declared alienations by gift of undivided interest in coparcenary properties as void.
The leading decision on the point is the case of Baba vs Timma and Ors., ILR FB, where it has been held that a Hindu father, if unseparated, has no power, except for purposes warranted by special text, to make a gift to a stranger of ancestral estate, movable or immovable.
In that case, the gift was made by the father to a stranger to the detriment of the sons ' right in the property gifted.
In Ponnusami vs Thatha and Ors., ILR , the gift was made by a brother to the children of his daughter.
It was held that under the Hindu Law a voluntary alienation by gift of joint family property could not be made by an undivided coparcener, unless permitted by an express text.
Thus, the cumulative effect ,of Ponnusami 's case and Baba 's case (supra) is that a coparcener cannot make a gift of his undivided interest in the coparcenary property either in favour of a stranger or in favour of his relations.
In Ramanna vs Venkata, ILR a Hindu made a gift of certain land which he had purchased with the income of ancestral property, and a suit was brought to recover the land on behalf of his minor son, who was born even seven months after the date of the gift.
It was held that the gift was invalid as against the plaintiff, and that he was enti tled to recover the land from the donee.
Thus, a son, who was born to the family after the gift was made, was held entitled to recover 242 the property from the donee.
In other words, he would not be bound by such an alienation.
Again, in Rottala Runganathan Cheuy v Pulicat Ramasami Chetti, ILR it has been held that it is not competent to an individual member of a Hindu family to alienate by way of gift his undivided share or any portion thereof; ' and such ,an alienation, if made, is void in toto.
There is a long catena of decisions holding that a gift by a coparcener of his undivided interest in the coparcenary property is void.
It is not necessary to refer to all these decisions.
Instead, we may refer to the following statement of law in Mayne 's Hindu Law, Eleventh Edition, Article 382: "It is now equally well settled in all the Provinces that a gift or devise by a coparcen er in a Mitakshara family of his undivided interest is wholly invalid . . . . . . . . . . .
A coparcener cannot make a gift of his undi vided interest in the family property, movable or immovable, either to a stranger or to a relative except for purposes warranted by special texts.
" We may also refer to a passage from Mulla 's Hindu Law, Fifteenth Edition, Article 258, which is as follows: "Gift of undivided interest. (1) According to the Mitakshara law as applied in all the States, no coparcerer can dispose of his undivided interest in coparcenary pro perty by gift.
Such transaction being void altogether there is no estoppel or other kind of personal bar which preclude the donor from asserting his right to recover the transferred property.
He may, however, make a gift of his interest with the consent of the other coparceners.
" It is submitted by Mr. P.P. Rao, learned Counsel appear ing on behalf of the respondents, that no reason has been given in any of the above decisions why a coparcener is not entitled to alienate his undivided interest in the coparce nary property by way of gift.
The reason is, however, obvi ous.
It has been already stated that an individual member of the joint Hindu family has no definite share in the coparce nary property.
By an alienation of his undivided interest 19 the coparcenary property, a coparcener cannot deprive the other coparceners of their right to the property.
The object of this strict rule against 243 alienation by way of gift is to maintain the jointness of ownership and possession of the coparcenary property.
It is true that there is no specific textual authority prohibiting an alienation by gift and the law in this regard has de veloped gradually, but that is for the purpose of preventing a joint Hindu family from being disintegrated.
The rigor of this rule against alienation by gift has been to some extent relaxed by the .
Section 30 of the Act permits the disposition by way of will of a male Hindu in a Mitakshara coparcenary proper ty.
The most significant fact which may be noticed in this connection is that while the Legislature was aware of the strict rule against alienation by way of gift, it only relaxed the rule in favour of disposition by a will the interest of a mate Hindu in a Mitakshara coparcenary proper ty.
The Legislature did not, therefore, deliberately provide for any gift by a coparcenary of his undivided interest in the coparcenary property either to a stranger or to another coparcener.
Therefore, the personal law of the Hindus, governed by Mitakshara School 0f Hindu Law, is that a copar cener can dispose of his undivided interest in the coparce nary property by a will, but he cannot make a gift of such interest.
Again, it may be noticed in this connection that under the proviso to section 6 of the , if the deceased had left him surviving a female relative specified in class I of the Schedule or a male relative specified in that class who claims through such female relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succes sion, as the case may be, under the Act and not by survivor ship.
The devolution of interest in coparcenary property by survivorship has been altered to testamentary or intestate succession, as enjoined by the proviso to section 6 relating to a female relative or a male relative claiming through such female relative.
The substantive provision of section 6, however, enjoins that the interest of a male Hindu in a coparcenary property will devolve by survivorship upon the surviving members of the coparcenary and in accordance with the provisions of the Act.
It is, however, a settled law that a coparcener can make a gift of his undivided interest in the coparcenary property to another coparcener or to a stranger with the prior con sent of all other coparceners.
Such a gift would be quite legal and valid.
The High Court has noticed most of the above decisions and also legal position that a gift by a coparcener of his undivided interest in 244 the coparcenary property without the consent of the other coparceners is void.
The High Court has also noticed the provisions of sections 6 and 30 of the .
The learned Judges of the High Court have, however, placed much reliance upon its previous Bench decision in G. Suryak antara vs G. Suryanarayanamurthy and Ors., AIR 1957 Andhra Pradesh 1012.
In that case, it has been held that the law is not that a gift of an undivided share is void in the sense that it is a nullity, but only in the sense that it is not binding on the other coparceners.
No authority has, however, been cited in support of that proposition of law.
On the contrary, there is a long series of decisions since the decision in Baba vs Thimma and Ors., ILR some of which have been referred to above, laying down uniformly that a gift by a coparcener of his undivided interest in the coparcenary property either to a stranger or to his relation without the consent of the other coparceners is void.
In the circumstances, it is very difficult to accept the proposi tion of law laid down in G. Suryakantara vs G. Suryanara yanamurthy (supra) that a gift by a coparcener of his undi vided interest in the joint family property is not void, but is only not binding on the other coparceners.
When a partic ular state of law has been prevailing for decades in a particular area and the people of that area having adjusted themselves with that law in their daily life, it is not desirable that the court should upset such law except under compelling circumstances.
It is for the Legislature to consider whether it should change such law or not.
It may be legitimately presumed that before the passing of the Hindu succession Act, 1956, the Legislature must have taken into consideration the prohibition against making of gifts by a coparcener of his undivided interest in the coparcenary property, but the Legislature has not, except permitting the coparcener to make a will in respect of his undivided inter est by section 30 of the , altered the law against making of gift by a coparcener of his undivided interest.
While considering whether the strict rule against alienation by gift should be interfered with or not, the court should also take into consideration the legislative inaction in not interfering with the rule against alienation by gift, while enacting the .
In the circumstances, we are unable to accept the proposition of law that has been laid down in G. Suryakantarn 's case (supra).
In the instant case, the High Court has also noticed a decision of this court in A. Berumalakkal vs Kumaresan Balakrishnan and Ors., AIR , that a gift of a coparcenary property is not valid under the Hindu Law except for specified purposes.
That case has been distinguished by the High Court on the ground that the question 245 of validity of such a gift on the ground of consent of other coparceners did not arise for consideration.
We do not think that it was a reasonable distinction that could be made of the law laid down by this Court merely because the question of consent of other coparceners did not arise.
This Court, therefore, also has laid down against the validity of a gift of an undivided share in the coparcenary property.
Coming back to the facts of the case, we find that Rami Reddy made the gift for the common benefit of the donee as well as his sons as held by the High Court.
It is submitted on behalf of the respondents that really it is a ,case of renunciation or relinquishment by Rami Reddy of his interest in favour of his brother and his sons.
It was the intention of the donor that the property might be enjoyed by his brother and his sons and, excepting that the donor had reserved to himself a life interest, presumably for his maintenance, he gifted his entire interest in the coparce nary property to his brother.
There is some force in the contention of the learned Counsel for the respondents that the gift should be construed as relinquishment or renuncia tion of his undivided interest by the donor in favour of the other coparceners.
Although the gift is ostensibly in favour of Veera Reddy, but really the donor meant to relinquish his interest in the coparcenany in favour of Veera Reddy and his sons.
In this connection, we may refer to the following passage from Mulla 's Hindu Law, Fifteenth Edition, Article 264 at page 357: "article 264.
(1)Renunciation ,or relinquishment of his share.
A coparcener may renounce his interest in the coparcenary property in favour of the other coparceners as a body but not in favour of one or more of them.
If he renounces in favour of one or more of them the renuncia tion enures for the benefit of all other coparceners and not for the sole benefit of the coparcener or coparceners in whose favour the renunciation is made.
Such renunciation is not invalid even if the renouncing coparcener makes it a condition that he would be paid something towards maintenance.
The renuncia tion or relinquishment must, of course, be genuine.
If fictitious and not acted upon it would not be operative as between the parties and partition can be claimed.
" Assuming that it is a renunciation in favour of one of the coparceners, namely, Veera Reddy, such renunciation enures for the benefit of all other coparceners and. not for the sole benefit of the 246 coparcener in whose favour the renunciation was made.
In our view, the gift made by Rami Reddy to Veera Reddy should be construed as renunciation of his undivided interest in the coparcenary in favour of Veera Reddy and his sons who were the remaining coparceners.
The gift was, therefore, valid construing the same as renunciation or relinquishment by Rani Reddy of his interest in the coparcenary and, accord ingly, the consent of other coparceners was immaterial.
In the result, the conclusion arrived at by the High Court is affirmed though on a different ground.
The appeal is dismissed.
There will, however, be no order as to costs.
H.S.K. Appeal dis missed.
[/INST]The first Respondent who was discharging the functions of a Public Relations Officer in the Bihar Irrigation De partment when that post fell vacant in 1979, filed a writ petition claiming the post for himself when another person was appointed to that post for six months.
At the time of hearing, it was represented on behalf of the State that the other person had been appointed only on ad hoc basis for a period of six months and that after the expiry of that period, the matter would be referred to the Public Service Commission and that, at that stage, the case of the first Respondent would also be considered.
On this assurance, the petition was allowed to be withdrawn on 19th December, 1979.
However, the assurance was not respected and no reference was made to the Public Service Commission for making a regular appointment to the post, and, in April, 1983, yet another person was appointed to the post, again on ad hoc basis, and the same was challenged by 'another writ peti tion.
When that petition was heard, the Advocate General informed the High Court that the appointment was only ad hoc and gave the impression that a regular appointment would be made after the expiry of six months and, on that representa tion, the High Court disposed of the petition on May 4, 1983, directing inter alia, that the post should be filled up in a regular way, and that, in case the appointment was not made within a period of six months, the ad hoc appoint ment shall stand terminated.
The six months ' period was to expire on October 17, 1983, and according to the State Government, the Irrigation Department had written to the Public Service Commission on April 4, 1983 to give concur rence to the appointment of the ad hoc incumbent since it was an ex cadre post and he had been selected by a Selection Committee but that the concurrence was given only on.
April 2, 1985 and thereafter the matter was further examined with reference to the provisions of the Rules governing reserva tions and a decision was taken to send a requisition to the Public Service Commission for advertising the post.
Accord ingly, the post was advertised on May 12, 1985, setting out the eligibility criteria for selection to the post.
The 2 advertisement was challenged by yet another petition on the ground that the eligibility criteria had been so drafted as to suit only the ad hoc incumbent of the post.
The High Court, which summoned the relevant records from the Govern ment, felt, on their examination, that the direction given by it while disposing of the earlier writ petition on May 4, 1983 had been disregarded, and, issued notices to the appel lants calling upon them to show cause why they should not be punished for contempt for ignoring the order dated May 4, 1983.
The appellants expressed regret but contended that no contempt had been committed by them for the reason that expression of views in the notings made on the files, wheth er they were right or wrong, did not amount to contempt of Court, as no order had been passed appointing the ad hoc incumbent after October 17, 1983.
The officials of the Public Service Commission pleaded that the appointment of the ad hoc incumbent from October 18, 1983 should be treated as a fresh appointment, that they did not know about the order passed by the High Court, and that though concurrence was given, it had been withdrawn when the correct facts were made known to them.
The High Court, after going through the relevant files of the State Government and the Public Service Commission came to the conclusion that, although the State of Bihar as a juristic person was not liable for contempt for the reason that the Chief Minister had minuted that its order must be obeyed and the Chief Secretary had noted that the ad hoc incumbent should not be granted further ad hoc appointment, the appellants, inspire of the advice of the Advocate Gener al that taking any step to appoint the ad hoc incumbent would amount to contempt of Court, were busy trying to find out how to ignore its earlier order.
The High Court further observed that when its earlier direction was that regular appointment should be made through the Public Service Com mission, there was no occasion for seeking the concurrence of the latter for the appointment of the ad hoc incumbent.
According to the High Court, the whole file gave the impres sion that the appellant Officers were not reconciled to the orders passed by it earlier.
In these premises, the High Court convicted the appellants for contempt and the ad hoc incumbent of the post for abetting contempt sentencing each of them to a fine of Rs.50 in default to suffer simple imprisonment for two weeks.
Allowing the appeals and discharging the contempt orders passed by the High Court, HELD: Notings made by officers in the files cannot be made the basis of contempt action against each such officer who makes the notings.
[10D] 3 (i) A government functions by taking decisions on the strength of views and suggestions expressed by the various officers at different levels, ultimately getting finality at the hands of the Minister concerned.
Till then, conflicting opinions, views and suggestions would have emanated from various officers at the lower level.
There should not be any fetter on the fearless and independent expression of opin ions by officers on matters coming before them through the files.
The expression of opinion in internal files are for the use of the department and not for outside exposure or for publicity.
To find officers guilty for expressing their independent opinion, even against orders of courts in de serving cases, would cause impediments in the smooth func tioning of the Government.
[9H; 10A C] (ii) Officers of the Government are often confronted with orders of courts which are impossible of immediate compliance for various reasons.
They may find it difficult to meekly submit to such orders.
On such occasions, they will necessarily have to note in the files, the reasons why the orders cannot be complied with and also indicate that the Court would not have passed those orders if full facts were placed before them.
The notings differ from officer to officer.
It may well be that the notes made by a particular officer, technically speaking, is in disobedience of an order of the Court or may be in violation of such order, but a more experienced officer sitting above him can always correct him.
We must guard against being over sensitive, when we come across objectionable notings made by officers, some times out of inexperience, some times out of over zealousness and some times out of ignorance of the nuances of the question of law involved.
[11A B] (iii) The functioning of the Government in a State is governed by article 166 of the Constitution.
A study of this Article makes it clear that the notings in a file get culmi nated into an order affecting rights of parties only when it reaches the head of the department and is expressed in the name of the Governor and authenticated in the manner provid ed in article 166(2).
Viewed in this light, it cannot be said that what is contained in a notes file can ever be made the basis of an action either in contempt or in defamation.
The notings in a notes file do not have behind them the sanction of law as an effective order.
It is only an expression of a feeling by the concerned officer on the subject under re view.
To examine whether contempt is committed or not, what has to be looked into is the ultimate order.
The expression of opinion in notes file at different levels by concerned officers will not constitute Criminal Contempt; it would not constitute Civil Contempt either, for the reason that mere expression of a view or suggestion will not bring it within the vice of sub section
(c) ors.
2 of the , [12A E] 4 Bachhittar Singh vs State of Punjab, [1961] Supp.
3 S.C.R. 713, relied on.
(iv) The internal notes file of the Government, main tained according to the Rule of Business, enjoys quasi privilege and a disclosure in such communications cannot be made the basis of an action in contempt.
The general princi ple on which confidentiality of State documents should be protected is that if a person is involved in litigation, the Courts can order him to produce all the documents he has which relate to the issues in the case.
Even if they are confidential, the Court can direct them to be produced when the party in possession does not produce them, for the other side to see, or, at any rate, for the Court to see.
When the Court directs production of these documents there is an implied understanding that they will not be used for any other purpose.
The production of these documents in ordinary cases is imposed with a limitation that the side for whose purpose documents are summoned by the Court cannot use them for any purpose other than the one relating to the case involved.
[10E F] Home Office vs Harman, ; Harman vs Secretary of State for the Home Department, and S.P. Gupta ' vs Union of India, [1982] 2 S.C.R. 365, referred to.
(v) In this case, the Court, after looking into the notes file could have passed appropriate orders giving relief to the affected party and expressing its displeasure at the manner in which its order was implemented instead of initiating action on the notings made in the file.
That way the Court would have enhanced its prestige.
[18B C]
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<s>[INST] Summarize the judgementivil Appeals Nos.
3510 3511 of 19822.
PG NO 981 From the Judgment and Order dated 23.9.1982 and I8/ 19.10.1982 of the Madhya Pradesh High Court in Misce.
W.P. NO.
888/81 and Review M.C.C.No. 352 of 1982.
D. Gupta, M.C. Bhandare, O.P. Khaitan, Anil Bhatnagar, Krishan Kumar, Dhruv Agarwal and Mrs. Kiran Choudhary for the Appellants.
S.N. Kacker, M.L. Jaiswal, Vivek Gambhir and S.K. Gambhir for the Respondents.
The Judgment of the Court was delivered by SHARMA, J.
The dispute in these appeals is in regard to the additional demand of electric charges made by the respondent No. 1 on the appellant No. 1 for energy consumed.
By a writ application filed before the Madhya Pradesh High Court the appellant challenged the demand of Rs. 1,86,97,880.97 for the period 12.11.1979 to 30.6.1981.
Except for granting a minor relief as indicate in paragraph 45 of its judgment, the High Court dismissed the writ application.
The writ petitioner appellants have impugned the judgment before this Court by special leave.
The appellant No. 1 Jiyajeerao Cotton Mills Ltd. hereinafter referred to as the Company which runs a textile mill in Gwalior, entered into an agreement dated 27.10.1971 with the respondent No. 1 Madhya Pradesh Electricity Board in short the Board a licensee under the hereinafter referred to as the 1918 Act for supply of electricity in accordance with the terms and conditions mentioned therein.
The quantity of electricity to be supplied varied from time to time under supplementary agreements and the Board had to supply 2,500 K.W. on A.T. basis with effect from 1.11.1973.
Since 1975 the Board is not able to generate sufficient electricity to meet the full demand of the consumers and with a view to ease the situation two orders were issued by the States of Madhya Pradesh under section 22B of the called as the Madhya Pradesh Electricity Supply and Consumption Regulation Order, 1975 and the Madhya Pradesh Electricity Generation, Control and Consumption Order.
The learned counsel for the parties have in their arguments referred to these orders as Regulation Order and Generation Order respectively.
By the Regulation Order , the consumers were asked to reduce their consumption in accordance with the provisions therein.
It was further provided that without prejudice to the Board 's power to disconnect the supply in PG NO 982 the event of any violation thereof, the consumer will have to pay the charges at penal rates for the excess energy consumed.
The Generation Order said that if a consumer had an alternative source of generating power from his own generating set (described as captive power by the parties) it may be required to generate electricity to the maximum extent technically feasible and the supply by the Board would be reduced to that extent.
The Order in Clause 3 provided for assessment of the generating capacity of the captive power of the consumer.
The contract demand under the agreement was directed to remain reduced accordingly.
Sub clause (iii) of Proviso to Clause 3 said, that if in certain contingencies, there was reduction in the generation of electricity by the consumer, the Board would try to make good the deficit against an appropriate charge for it.
An arbitration clause with respect to any dispute was included in the 6th paragraph of the Order as its last term.
Both the Orders came into force with effect from the 7th of April, 1975.
The Divisional Engineer, Gwalior informed the appellant Company by the letter dated 17.5.1975 (marked as Annexure `B ', page 121, Vol.
II of the paper book) that its additional generation capacity technically feasible by its own generating sets had been assessed at 2,700 K.W.
In view of the contract under which the Board was to supply 2,500 K.W. with effect from 1.11.11973,, the Company was directed to generate additional electricity to that extent, thus reducing the demand on the Board to nil.
After several letters passed between the parties, which will be dealt with at some length later, another letter dated 10.10.1975 (marked as Annexure `O ', page 136, Vol.
II of the paper book) was sent to the Company issuing a fresh direction for generating additional electricity to the extent of 2,500 K.W. with effect from 31.10.1975.
It appears that the Board did not bill the appellant Company for any additional energy supplied at the penal rate for the next several years.
According to its case the Company invoked the provisions of Proviso (iii) to Clause 3 of the Generation Order pleading emergency.
arising from time to time, covered by the Proviso, and was supplied additional energy accordingly.
The Company was under a duty to place its difficulties before the Board and obtain permission before drawing additional energy under this provision of emergency supply.
It appears that after 11.11.1979 additional power was drawn by the appellant without the Board 's prior approval and a letter Annexure `T ' dated 5.8.1980 was ultimately sent to the Company explaining the situation and telling it that the supply availed by it with effect from 12.11.1979 would be billed at the penal PG NO 983 rate.
In the meantime two additional contracts were executed by the parties; the first one on 11.7.1979 (Annexure `C ') for supplying additional 800 K.W., and the second one dated 26.2.1980 (Annexure `D ' for additional 190 K.W.
Thus the total demand under the agreements added to 3,490 K.W.
The Board by its letter Annexure `U ' dated 13.10.1980 reiterated its stand taken under Annexure `T ' intimating the appellant the maximum amount of electricity it was entitled to consume at the normal rate.
The letter further added that no additional power would be allowed as emergency supply to the Company even during the period of overhauling of the generating sets as was done earlier under Proviso (iii) to Clause 3 of the Generation Order.
The matter was debated for some time and ultimately the additional demand for the period 12.11.1979 to 30.9.1980 amounting to Rs.94,41,745.60 was served on the appellant Company by the letter Annexure `X ' dated 15.1.1981.
The further bills were also sent on the same basis.
On 5.8.1981 the application under Article 226 of the Constitution was filed before the Madhya Pradesh High Court challenging Annexure `H ', `O ', `T ' and `U '.
The main case of the petitioner appellant was rejected by the High Court, but marginal reliefs with respect to the Board 's demands for the period 12.11.1979 to 25.2.1980 and from 26.2.1980 to 31.7.1980 were allowed on the basis of errors in calculation.
The High Court also pointed out that under the terms of the Generation Order the Board was under a duty to consider and allow the additional emergency supply when conditions arose making the Proviso (iii) to Clause 3 applicable and the Board could not refuse to do so as was observed in some of its letters.
Subject to these minor modifications the writ application was dismissed by the judgment dated 23.9.1982.
The Company thereafter filed an application for review, which was dismissed by a speaking order of 19.10.1982.
The present appeals have been filed by special leave against these two judgments.
The appeals have been argued at considerable length by Mr Dipankar Gupta on behalf of the appellant and Mr. S.N. Kacker representing the respondents with great ingenuity and resourcefulness.
Mr. Gupta appearing in support of the appeals, however did not press some of the points urged on behalf of the appellant in the High Court and relied upon some new grounds.
therefore do not consider it necessary to deal with all the points disposed of in the High Court judgments except making reference to some of them while dealing with the points urged before us.
PG NO 984 7.
It will be necessary to examine the relevant portions of the Regulation and Generation Orders (Annexures `E ' and G ') before considering the arguments of the learned counsel.
They were both issued on 4.4.1975 by the State Government of Madhya Pradesh under section 22B of the 1910 Act, which reads as follows: "22.
B(1) If the State Government is of opinion that it is necessary or expedient so to do, for maintaining the supply and securing the equitable distribution of energy, it may by order provide for regulating the supply, distribution, consumption or use thereof.
(2) Without prejudice to the generality of the powers conferred by sub section (1) an order made thereunder may direct the licensee not to comply, except with the permission of the State Government with (i) The provisions of any contract, agreement or requisition whether made before or after the commencement of the Indian Electricity (Amendment) Act, 1959,for or the supply (other than the resumption of supply) or an increase in the supply of energy to any person, or (ii) any requisition for the resumption of supply of energy to a consumer after a period of six months, from the date of its discontinuance, or (iii) any requisition for the resumption of supply of energy made within six months of its continuance , where the requisitioning consumer was not himself the consumer of the supply the time of its discontinuance.
" Clauses 3 and 4(i) of the Regulation Order (Annexure`E ') have been refer,red to by the learned counsel for the parties repeatedly and they are quoted below: "3.(1).
No consumer receiving supply electrical energy from the Board and consuming or using electrical energy for any of the categories specified in column (2) of PART (of Schedule VII shall consume or use during any month or day electrical energy in excess of that specified in PG NO 985 respective entry in column (3) of the said Schedule; (2) (a).
If at any time during the month, on inspection of the meter reader or any other person authorised by the Divisional Engineer/Assistant Engineer of the Board having jurisdiction, the consumer is found to have already reached or exceeded the quantity of electricity indicated in column (3) of Part A of Schedule VII the Divisional Engineer/Assistant Engineer of the Board, having jurisdiction over the area where the consumer 's premises is situated, may by an order in writing require the consumer not to utilise electrical energy for the rest of the month and such order shall be complied with by the consumer forth with.
Appeal shall, however, lie with the Deputy Chief Engineer of the Board having jurisdiction whose decisions thereon shall be final.
(b) Any H.T. consumer who makes default in complying with the directions contained in sub clause (1) and item (a) of this sub clause shall be warned in the first instance in writing by the Divisional Engineer/Assistant Engineer of the Board having jurisdiction over the area where the consumer 's premises is situated and if the default continues, the said Divisional Engineer/Assistant Engineer shall after reasonably satisfying himself disconnect power supply altogether to such consumer and supply shall not be resumed without orders of the Deputy Chief Engineer of the Board having jurisdiction." "4.
Without prejudice to the Board 's powers to disconnect supply in the event of violation of Clause 3 above the Board shall bill the electricity consumed or used in excess of the monthly limit specified in column (3) of the Schedule VII at the penal rates as mentioned below: (i) All H.T. consumers as specified in Schedules I, II, III and IV Four times of normal tariff (both in respect of demand charges and energy charges) includ ing fuel cost adjustment charges.
" The expressions "average monthly consumption", average demand" and "average daily consumption" have been defined in Clause 2 of Annexure `E ' by taking January, February and March 1975 as the base period.
The VIIth Schedule mentioned PG NO 986 in Clause 3 above has not been included in the paper books with reference to which arguments have been addressed but a copy thereof was filed during the hearing and accepted as a correct copy by the both sides.
This Regulation Order was substituted by another Order and later by still a third Order, amending the penal rate and the Schedules to the Order.
However, the learned counsel for the parties stated that except for change in the penal rate and the figures in the Schedules, the Order has remained the same all through, and it is not necessary, therefore, to refer to the other Orders.
So far as the Generation Order is concerned, it requires such consumers, who have their private generating sets, to generate electrIcity to the maximum extent technically feasible in the following terms: "3.
Any consumer who is receiving electrical energy from the Board and also has an alternative source of generation of power by his own generation set may be required by the respective Divisional Engineer of the Board having jurisdiction to generate electricity from his set (or sets) to the maximum extent technically feasible in the opinion of the Divisional Engineer and the Board 's supply of electrical energy to such consumer shall be reduced to the extent of additional generation assessed as feasible by the Divisional Engineer; Provided that (i) Before assessing the additional generation feasible and directing the consumer accordingly, the Divisional Engineer shall consult the local Manager or Engineer in charge of the set; (ii) The Board shall, during the period such a direction is in force, reduce the contract demand of the consumer to a corresponding extent and (iii) if due to an emergency outage, which in the opinion of the Divisional Engineer of the Board having jurisdiction is not due to any negligence or failure of those responsible for maintaining and running the set.
there is reduction is additional generation, or if in the opinion PG NO 987 of the Divisional Engineer, the set has to be taken out for maintenance during the period of such emergency or maintenance outage the Board shall try its best to make good the reduction to the consumer, levying an appropriate charge for it.
" Its 6th Clause directed any dispute between the consumer and the Officer acting under Clauses 3 and 4 to be referred to the Electrical Adviser and Chief Electrical Inspector to the State Government, for his decision.
While Regulation Order was meant for general application to all consumers, the Generation Order was confined only to such consumers who were having captive power source.
It is also manifest that such a consumer was under a duty to generate additional electricity only when the maximum technically feasible capacity of the generating set or sets of the consumer was assessed under Proviso (i) to Clause 3 and was followed by a direction to that effect.
The main argument of the learned counsel for the appellant has been that none of the two assessments and directions contained in Annexures `H ' and `O ' was sustainable in law on the grounds that (a) in making the assessment of the technically feasible maximum capacity, relevant factors were not considered.
and irrelevant and extraneous matters were taken into account; (b) the requisite opinion was not arrived at and the assessment was not made by the authority empowered to do so; and (c) the participation of the appellate authority in process of ' assessment, completely vitiated it in law.
Mr. Gupta argued that instead of examining the point on its merit.
the High Court erroneously brushed it aside on the plea of waiver and acquiescence.
Relying on a number of letters sent by the appellant to the respondent Board it was urged that the appellant Company was protesting against the impugned directions issued by the Board and it is not right to shut it out on the technical ground of estoppel.
Mr. Kacker, on the other hand interpreted the High Court 's judgment differently.
According to him none of the points raised by the Company was rejected without examining the merits.
He strongly relied on some of the letters referred to in the argument of the Company itself as also a few other letters in support of his submission that they furnished PG NO 988 unimpeachable evidence including admissions on the part of the appellant Company proving that the assessment of the maximum feasible capacity of the appellant 's captive power sets was duly made in accordance with the Generation Order and in pursuance thereof the required direction was issued which was acted upon by the parties for a number of years.
The Company not only took steps to generate the additional energy as was required of it, it also took advantage of the provisions of Proviso (iii) to Clause 3 of the Generation Order and benefitted by it from time to time.
For appreciating the argument of the learned counsel for the appellant it is necessary to examine some of the Orders and letters issued in March and April 1975.
As has been mentioned earlier.
the two Government Orders were issued on 4.4.
It appears that the matter was being discussed by the different authorities of the State Government and the Electricity Board since before this date and advisability to require the consumers having captive power to generate as much energy as was technically feasible was under consideration for some time.
The question as to their capacity in this regard, naturally assumed importance and some steps for assessing the same were taken a few days before the Orders actually came into effect.
On 28.3.1975 a letter sent from the Board to Sri H.K. Aggarwal the Electrical Adviser and Chief Electrical Inspector to the State Government (Annexure `R 1 ') referred to a telephonic talk in connection with the assessment of the generating capacity of the captive power set.
It was mentioned "that it would be necessary to make a realistic assessment in respect of each of the consumers" by keeping in mind the suggested factors.
The letter further said that with that object the Board had constituted a Committee consisting of Sri Aggarwal himself.
the Superintending Engineer of the concerned Circle of the Board and the Divisional Engineer (Generation), Jabalpur of the Board as Members.
The appellant Company is mentioned as one of the 17 consumers in this category.
Along with his letter dated the 3rd of May 1975 Sri Aggarwal sent the report as desired.
It has been contended on behalf of the appellant that the Generation Order authorised the Divisional Engineer of the Board to assess the additional feasible capacity of the captive power source and any other person or authority or Committee could not usurp this jurisdiction.
The impugned letter Annexure `H ' issued by the Divisional Engineer has been characterised as illegal on the ground that it was based upon the assessment by the Committee headed by Sri H.K. Aggarwal and not by the Divisional Engineer.
the learned counsel proceeded to say that immediately after receipt of the intimation by the Board, the Company protested on 21.5.1975.
The Board 's reply dated 2.6.1975 has been relied PG NO 989 upon as showing that the direction was issued on the basis of the assessment of the Committee and not of the Divisional Engineer.
It was also pointed out that Electrical Adviser and Chief Electrical Inspector to the State Government (the then incumbent being Sri H.K. Aggarwal) was the appellate authority under Clause 6 of the Generation Order and could not, therefore, take part in the original assessment proceeding.
The reply of the Board is that the Committee no doubt inspected the generating sets and discussed the matter with the consumers, and thus collected relevant data for the purpose of assessment of the capacity, but the Divisional Engineer while relying on the material collected, did not mechanically accept the conclusion of the Committee.
He (the Divisional Engineer) applied his mind before issuing the Order Annexure `H '.
Mr. Kacker further said that the matter did not rest there.
After taking into account the objection raised by the Company the Divisional Engineer took up the matter afresh and applied his mind independently.
Ultimately he came to a similar conclusion as is evident by the second direction as contained in Annexure `O ' dated 10.10.1975.
The argument of Mr. Kacker appears to be well founded.
On receipt of the letter Annexure `H ' dated 17.5.1975 whereby the Divisional Engineer directed the Company to generate 2,500 K.W. of electricity by its own generating sets, the appellant Company protested by its letter dated 21.5.1975 (at page 195 of the Paper Book Vol.
Mr. Gupta strenuously relied on this letter which stated that the Company failed to understand as to how its additional generating capacity had been assessed at 2,700 K.W.
It will be necessary to discuss this letter in some detail later in the judgment while dealing with another point as Mr. Kacker also has relied on certain statements made therein.
At this stage, however, we should like to point out that the appellant did not challenge the assessment on the ground that it was not made by the authority mentioned in the Generation Order; and in the last paragraph the request made was for "review".
The next document referred to by the learned counsel for the appellant is the letter dated 30.5.1975 (page 305 of the Paper Book Vol.
II), wherein the Company stated that: "as desired by the Board, we have started generating about 2,000 K.W. additional power at our generating station tonnes daily for this additional generation." PG NO 990 Finally a request was made in the letter to the Superintending Engineer of the Board to recommend the appellant 's case for allotment of additional wagons for transport of coal.
Instead of advancing the appellant 's case, the letter shows that the assessment and the direction mentioned in Annexure `H ' were accepted by the Company and steps were taken to implement the same.
Chronologically proceeding, the letter dated 2.6.1975 (Annexure `I ' at page 122 of the Paper Book Vol.
II) was relied on by Mr. Gupta as proving the fact that the assessment of additional generating capacity had been done by the Committee mentioned in the letter dated 28.3.1975 (supra) and not by the Divisional Engineer as required by the Generation Order.
The learned counsel far the parties next placed before us the letters dated 3.6.1975 (document No. 3 at page 302 of the Paper Book Vol.
II) and dated 4.6.1975 (document No. 1, at page 300 of the Paper Book Vol.
II), another letter of the same date (Annexure `J ' at page 123 of the Paper Book Vol.
II) and then dated 8.8.1975 (Annexure `K ' at page 132 of the Paper Book Vol. II) and 1().10.1975 (Annexure `O ' at page 136 of the Paper Book Vol.
The argument of Mr. Kacker has been that the Divisional Engineer applied his mind independently to the question of assessment of the capacity of the appellant 's generating sets, and while so doing took in consideration the factual data collected by the Committee mentioned in the letter of 28.3.1975.
It was pointed out that all the three persons constituting the Committee were very highly placed officers and there could not be any legitimate objection if the Divisional Engineer referred to the data collected by them in presence of the Company 's Officers after personally verifying them.
Even a judicial tribunal or a regular court is allowed to rely upon evidence collected by an enquiry officer or commissioner.
The learned counsel heavily relied on the letter dated 3.6.1975 from the Divisional Engineer to the Superintending Engineer (document No. 3).
On behalf of the appellant it was said that the Company had no knowledge of this letter in 1975.
We do not think that this is a correct stand.
The letter mentions an inspection of ' the Company 's power House by the Divisional Engineer and the materials supplied by the Company to him.
The details with respect to the boilers of the Company and the other figures mentioned therein correctness whereof is not challenged by the appellant, fully establish that the inspection was made in presence of and the figures were collected with the assistance of the officers of the appellant Company and the conclusion regarding the assessment was reached after taking into account the case of the Company.
It has been argued on behalf of the Board before us that the method adopted by the Divisional Engineer as disclosed by this letter (document No. 3) was different PG NO 991 from that followed by the Committee, as a result of which there was some difference in their final result.
On the basis of his independent assessment the Divisional Engineer issued another instruction as contained in Annexure 'O ' dated 10.10.1975 (at page 136 of the Paper Book Vol.
II), mentioned earlier.
This second direction which was effective from 31.10.1975 naturally superseded the earlier one under Annexure `H '.
The Board 's impugned demand does not relate to any period before 31.10.1975 and, therefore, it is immaterial if the direction in Annexure 'H ' is completely ignored on account of its supersession by Annexure 'O ' or on any other ground and it be assumed that in absence of a feasible assessment of the capacity, the Generation Order was not applicable to the appellant Company before 31.
10. 1975.
Mr. Gupta relied on the letter dated 4.6.1975 (document No. 1), referred to above, for showing that the Company emphatically protested against the assumption that it could generate additional 2500 K.W.
It was said that its capability in this regard was limited to 1200 K.W.
The learned counsel referred to the other letters also for a similar purpose.
We think that in view of the revised order of the Divisional Engineer passed on 10.10.1975, vide Annexure 'O ', earlier correspondence is not material for the purpose for which the appellant is trying to use them.
The learned counsel for the respondent has relied on some of them for his argument on the other points and we will have to deal with them again when we take up those points.
So far as the question as to whether an assessment of the feasible capacity of the generating sets of the appellant Company was made by the Divisional Engineer as required by the Generation Order is concerned, we have no hesitation in deciding the issue in favour of the respondent.
On behalf of the appellant it was urged that since the Electrical Adviser cum Chief Electrical Inspector of the State Government who has been mentioned as the appellate authority under Clause 6 of the Generation Order was associated with the assessment by acting as a member of the Committee (vide Annexure 'R 1 ' at page 256 of the Paper Book Vol.
II), the entire process in this regard should be held to be completely vitiated.
In view of our finding in the preceding paragraph, the argument has to be rejected.
Besides, it is not correct to assume that an appeal against the assessment was provided by Clause 6 of the Generation Order which reads as follows: "6.
In case of any dispute between the consumer and the Divisional Engineer acting under Clauses 3, and 4, it shall PG NO 992 be referred to the Electrical Adviser and Chief Electrical Inspector to the Government of Madhya Pradesh whose decision shall be final.
" The above is obviously an arbitration clause in case of a dispute and since the maintainability of the appellant 's writ application before the High Court was decided in its favour, it cannot make a grievance on this score.
Besides, if the appellant Company had a grievance against the assessments which were made in 1975, it ought to have challenged the same then and not to have waited for a number of years before approaching the High Court.
Mr. Gupta challenged the assessment still on another ground.
He contended that while making the assessment, the relevant factors were ignored, and irrelevant and extraneous considerations were taken into account.
The argument which is based on certain scientific technical hypothesis proceeded thus: The Company had 3 Generator Sets described as M.V. Turbo Generator Set, B.B. Turbo Generator Set and AEG Turbo Generator Set; and five Boilers.
Another Boiler was added in 1977.
Every generator set has a rated capacity which has been described by the learned counsel as the level at which operation can continue satisfactorily for indefinite period.
This rated capacity is declared by the manufacturer and can be accurately ascertained without difficulty.
The terms 'overload ' and 'overload capacity ' have been explained by the learned counsel as "one exceeding the level at which operation can continue satisfactorily for an indefinite period" and "excess capacity of a generator over that of its rating", respectively.
It was urgued that overloading may lead to distortion or to overheating with risk of damage, depending on the type of circuit or device, and so in many cases only temporary overloads are permissible.
The overload capacity, it has been said, is referrable generally for a specified time.
The criticism against the report of the Committee is that the Committee took into account the overload capacity of the sets and not the rated capacity.
Mr. Gupta stressed on the point that the AEG Turbo Generator Set was maintained as a standby to be operated only when other sets were not available for any reasons.
He also said that the feasible generation capacity of a set is also dependent on other factors and conditions, namely, age and condition of the set, availability of coal of requisite quality and specification, adequate and continuous supply of water etcetera.
Referring to the report of the Divisional Engineer dated 3.6.1975 (document No. 3 at page 302 of the Paper Book Vol.
Il) it was argued that the Divisional Engineer picked out a moment of time when the plants reached the generation PG NO 993 of 7500 K.W. and concluded therefrom that the appellant was capable of generating 1800 extra K.W. from its captive plant.
It was further suggested that in any view of the matter on the basis of the aforesaid opinion of the Divisional Engineer the appellant Company ought to have been asked to generate only 1800 K.W. more and not 2500 K.W.
Finally it was argued that the Board has to be confined to the reasons in support of the assessment orders which are mentioned therein and cannot be allowed to travel beyond the same.
Mr. Kacker took great pains in going into the reports and specially through the aforementioned report of the Divisional Engineer dated 3.6.1975, with a view to meet the criticism of the appellant and support the report as a correct one on merits.
He also relied on a number of letters sent by the appellant showing that the assessment was accepted as binding on it and claiming from time to time benefits under Proviso (iii) to Clause 3 of the Generation Order which was allowed for a number of years.
The learned counsel relied on this aspect as furnishing strong circumstantial evidence in support of the correctness and binding nature of the assessment impugned belatedly when the appellant approached the High Court.
It is significant to note that at no point of time either in 1975 or later the appellant chose to get a scientific assessment of its generating sets made by an expert, nor even after filing the present writ petition in the High Court did it file any opinion of a person having scientific expert knowledge showing the impugned assessments to be erroneous or undependable.
It is also important to appreciate that the appellant has not either earlier or now made any complaint of mala fides or bias against any of the members of the Committee or the Divisional Engineer or for that matter against any officer of the respondent Board or the State.
On the other hand, the Officers of the Board appear to have taken a very sympathetic attitude towards the appellant for more than four years and allowed it the benefit of additional energy under Proviso (iii) to Clause 3 of the Generation Order very generously.
It was only when the Board discovered in 1980 that the appellant had stopped even informing the Board and obtaining its prior approval as envisaged by the Generation Order before consuming extra energy that the matter was closely examined by the Board 's Officers.
Mr. Kacker is also right in relying upon the conduct of the parties for about four or five years after the assessment was made as furnishing important circumstance relevant to the issue.
We may, therefore, examine a number of letters in this regard some of which have already been mentioned earlier.
PG NO 994 19.
The very first letter of the appellant Company after receiving the impugned direction in Annexure 'H ' dated 17.5.1975 was sent within 4 days on 21.5.1975 and is included at page 195 of Vol.
II of the paper book.
It will be seen that the protest against the assessment referred to by the learned counsel for the appellant was not founded on any of the grounds pressed know.
The basis was "only due to steam limitation", assuring that "once our boiler under erection starts steaming, we can enhance our generation to the full installed capacity.
" The prayer in the end of the letter was to "review the whole matter".
The Divisional Engineer, as mentioned earlier, personally examined the entire matter be novo.
Although in its letter dated the 21st May 1975 the Company had stated that it was not advisable to generate more than 12 K.W. from its own sets, by the next letter dated 30.5.1975 (page 305, Vol.
II) the appellant informed the Board that they were generating about 2000 additional K.W., but were in the need of additional coal, for which the Board was requested to make a recommendation.
In Annexure 'J ' dated 4.6.1975 (page 123 Vol.
II) the protest against the assessment was once more reiterated on account of some trouble with the boilers.
The first paragraph of this letter indicates that the question was under discussion of the Divisional Engineer with the Company 's representatives who was armed during the conference "with all relevant records".
In this background the fresh independent assessment was made by the Divisional Engineer as per the document No. 3 dated 3.6.1975 (page 302, Vol.
Before the fresh independent direction by the Divisional Engineer as contained in the impugned Annexure 'O ' dated 10.
l0.1975 was issued, a suggestion was made on behalf of the Board to the appellant Company for its satisfaction as to the correctness of the assessment by "actually taking the load on the set, after running it in parellel with the Board 's supply system".
The learned counsel for the parties before us explained the scientific implications of the test by "parellel running", but we do not consider it necessary to go in its technical details.
The Board requested the Company 's consent for such a test, to be communicated positively within a week.
By its reply dated 25.8.1975 Annexure 'L ' (page 133, Vol.
II) the Company rejected the suggestion on two grounds, namely, that it was "not having protection system like power relay etc.
"and" in case of tripping of Board 's supply we would be doing the parellelling of the sets"; which was not safe.
In reply thereto the Board satisfactorily met the objections by its next letter Annexure 'M ' dated 25.10.1975 (page 134, Vol.
It was pointed out that the parellel running test will be undertaken only for a short period after which the captive sets would be separated from the Board 's system; and a disturbance free period could be chosen for the same.
Besides, the objections to the suggested test have to be PG NO 995 rejected as frivolous in view of the stand of the Company itself as indicated in the letter Annexure 'N ' (page 135, Vol.
II) dated 6.11.1975, stating that it had no objection into the suggested trial, which the appellant claims to have sent to the Board which fact is however denied.
In the meantime the second assessment order under Annexure 'O ' had already been communicated.
It was, therefore, open to the appellant either to accept and act upon this fresh assess of the boilers in steam generation as the ground for not being able to generate additional electricity as required by the impugned directions.
It was also mentioned that after a sixth boiler became available, the difficulty would stand resolved.
In this background Mr. Kacker placed before us several letters starting with the letter of the Company dated 14.2.1977 (at pages 4 to 8 of additional paper book PG NO 996 prepared and filed by the respondent Board, which was referred to by the learned counsel as Vol.
IV of the Paper Book).
The Company, by this letter requested the Board to charge at the normal tariff for the additional electricity consumed by the Company as emergency supply as per Proviso (iii) to Clause 3 of the Generation Order.
The statements made in the letter appear to be extremely important for the purpose of the Board 's case and it may be useful to consider them in some detail.
In the first paragraph the Company stated that it was again placing for the Board 's consideration, the reasons why it could not generate the additional power according to the direction issued.
In the second paragraph the main difficulty has been mentioned as steam limitation and reason therefor has been stated in the third paragraph as the inferior quality of coal.
Later it was stated thus; "These problems would not have arisen in case our Sixth Boiler recently erected was commissioned and running without any trouble.
" It was said that although the sixth boiler was taken in August, it did not work properly for some time.
Proceeding further the letter stated: "It is only since the beginning of January the Sixth Boiler has been in continuous service, as a result of which we were in a position to repair our other Boilers also.
Since the last week of January, we are generating our full requirement and not even availing the 6U0 K.W. allowed by the Board.
In the penultimate paragraph of the letter, the case for normal tariff on the additional electricity already supplied by the Board was argued in the following manners: "Considering all the above facts, we sincerely hope, that as due to no fault of our own we had to take power from M.P. E.B., more than allotted to us, it is requested that the charges made to us may be on the usual terms as previously granted by the Board for which we will be ever grateful. " (emphasis added) The letter is not only conspicuous by the absence of the objections which were taken later in 1980 before filing of PG NO 997 this writ case, but it positively indicates that the Company accepted the assessment as correct, and as expected, it was actually able to generate the required additional electricity after the addition of the sixth boiler and was pleading for normal tariff for the additional electricity already consumed earlier.
This position is re inforced by several further letters of the Company, but before we go to them we would like to point out another very important fact emerging out of this very letter.
At page 7 of Vol.
II of the paper book the letter dealt with another aspect highly relevant to the present dispute.
Another Limited Company known by the name of "Gwalior Rayons" is having a factory near the appellant Company 's factory and the appellant was supplying electric energy to the other factory illegally and without the permission of the Board.
On an objection by the Board this matter was dealt with in the following words: "It is not out of place to mention in this appeal that we had given now and then some power in the past to the Gwalior Rayons, in emergency for their Beam Dyeing Plant whenever M.P.E.B. power failed.
This was due to the fact as the Beam dyeing plant is a pressure dyeing plant, with a continuous process, there used to be heavy damage to very costly Beams.
Since this issue was raised by your Divisional Engineer, we have completely stopped this type of supply to them, though the same was given to them after reducing our humidity or waste plant load.
It is again our request here that the same may be allowed in emergency under whatever arragement the Board may so decide to avoid costly damage to the cloth.
A fervent appeal in the interest of the other factory belonging to a different Limited Company altogether was made in the above terms.
It has to be remembered that in view of the provisions of section 28(1) of the 1910 Act, the Company was prohibited from supplying any energy to the other factory.
This aspect was stressed in term 2(b) of the agreement between the appellant and the Board as per Annexure 'A (page 62 of Vol.
It was not the appellant 's case then or before us now that it had obtained the previous sanction of the State Government for so doing.
Under Cluase 4 of the Generation Order which reads as follows, jurisdiction was vested in the Divisional Engineer ot the Board to direct a consumer having captive source of power to supply electricity to the Board or to any other consumer only if the consumer was having surplus generation: PG NO 998 "4.
If the consumer having own generating set(s) can have, a result of additional generation reasonable in the opinion of the Divisional Engineer of the Board having jurisdiction, energy, surplus to his requirement, the Divisional Engineer may direct him to supply the surplus to the Board or to another consumer nearby who has been taking supply from the Board and who is willing to take the supply from the consumer having generating sets: Provided that (i) the contract demand of and the supply to the other consumer from the Board shall be reduced correspondingly, whether or not the other consumer avails of the supply from the consumer having the set, (ii) the other consumer shall pay to the consumer having generating set(s) for such supply as if it is supplied from the Board, (iii) if the payment receivable by the consumer having the set under the last preceding clause is less than his incremental cost of additional generation, the Board shall make good the difference to the consumer having the set(s) and (iv) the consumer having the set(s) will not be required to incur any additional expenditure for laying lines for transmitting energy to the other consumer; such lines if required being laid by and at the cost of the Board.
" How could, in these circumstances, the appellant pass on to a third party some of the electricity meant for it, there is no explanation on the records.
Mr. Gupta the learned counsel for the appellant argued that since the other factory was in the neighbourhood it was in the interest of the appellant Company for the sake of security to see that other factory was not plunged in darkness when the supply was inter rupted on account of tripping.
Mr. Kacker rightly pointed out that no such suggestion was ever made on behalf of the appellant in any of its letters.
On the other hand, the reason pleaded in the letter quoted above was to save the other Company from incurring loss due to costly damage to the cloth.
In his final reply Mr. Gupta said that the appellant was passing on some electricity to the Gwalior Rayons only after reducing its humidity or waste plant load as stated in the letter.
The explanation is too vague and it cannot be PG NO 999 assumed that the appellant was making the contribution to its sister concern by creating artificial shortage of supply to its mills.
The appellant 's conduct cannot be explained except on the premise that it was able to generate adequate additional electricity for its purpose and was taking for granted the sympathetic attitude of the Officers of the Board in liberally allowing it additional emergency supply at normal tariff.
Another letter which calls for a detailed consideration was sent by the apellant on 30.5.1979 and is included at pages 16 to 20 of Vol.
A fresh request for emergency supply under Proviso (iii) to Clause 3 of the Generation Order was made in this letter on the ground that the sixth boiler was out for annual overhaul.
It was stated in the opening sentence that this boiler was giving some trouble earlier but later 'stabilised '.
The Company was, therefore, self sufficient "without drawing any power from the Board so far".
The letter proceeded to state that the sixth boiler would be going for annual overhaul and after that the annual overhauling of the other boilers would be carried out; and therefore, 1875 K.W. should be allowed to be drawn for the period mentioned therein.
Assurance about the future was held in the following terms: Now when our Sixth Boiler has been stabilised we would normally not draw any power from the Board after 15.9.1977 when overhauling of all the boilers is complete except in case of emergency due to outage of any of the boilers.
It was further requested that during the period of breakdown emergency power as detailed should be supplied and.
"we would request you that for the power availed by us from the Board for above purpose, say up to a total of 7 days in a month.
we may be charged at the same tariff .
Insisting again that it should be allowed to supply electricity to Gwalior Rayons, described as its sister concern.
the letter read as follows: "Here we may also mention that we have been supplying power to our sister concern M/s Gwalior Rayons.
in accordance with the provisions of sanction granted to us under Section '8 of the I.E. Act vide Govt.
Order No. PG NO 1000 1313/6U61/XIII/74 dated 8.4.1975.
However.
it had not been possible for us to obtain prior Permission from S.E. Gwalior before switching over power to Gwalior Rayons.
It may be mentioned here that power has to be supplied to M/s Gwalior Rayons during the period the Board 's supply remained off.
and it is not practically possible to obtain prior permission for supply in such cases.
We would, there fore, request you that prior permission should be given once for all for supplying power to the Gwalior Rayons during the period supply from the Board to M/s Gwalior Rayons remained off ' This letter dated 30.5.1977 confirms the conclusions derived from the earlier letter dated 14.2.1977 and clarifies that the first letter was not sent by some mistake on the part of the appellant Company.
Request for emergency supply was, however, made from time to time in 1978 and for some time in 1979, which was allowed by the Board.
The other letters including those dated 30.5.1978, 29.6.1978, 7.7.1978 and D 9.9.1978 are all consistent with a correctly made binding assessment of the feasible additional capacity from the generating sets belonging to the Company.
Mr. Gupta contended that throughout the period 1975 to 1979 there was never a demand made by the Board for any energy consumed by the appellant at the penal rate and it was only in 1980 that the Board suddenly decided to press for the additional demand on the basis of the Generation Order.
The learned counsel emphasised that before the provisions of the Generation Order can be relied upon by the Board it is essential for it to make an assessment of the consumer 's capacity to generate electricity from its captive power plant.
The fact that no demand was made for many years leads to the conclusion that such an assessment as required by the provisions of the Generation Order to be made, had not in fact been made, and alternatively assuming that factually the capacity had been assessed, the same must be ignored on account of the conduct of the parties for several years.
The stand of Mr. Kacker, as has been stated earlier, is that the parties acted on the basis that an assessment had been made in accordance with the Generation Order and on that basis the appellant demanded the benefit under Proviso (iii) to Clause (3) of the Order.
The documents relied on by him and discussed in the preceding paragraphs support the respondents ' stand.
They also explain as to why demand on the penal rate wa.
not made earlier.
but it would be helpful to consider a few more facts relevant to this aspect.
PG NO 1001 24.
The system of supply of power to the consumers is such that they can go on drawing electricity beyond their entitlement without any further positive step by the officers of the Board.
The Board is, however, in a position to, by keeping a certain switch known as Air Break Switch open, put a restriction on the consumer from drawing excess energy.
A letter dated 4.6.1975 (document No. l, at page 300 of Vol.
II) sent by the appellant has been strongly relied on by Mr. Kacker for showing that Air Break Switch was permitted to remain closed with a view to assure uninterrupted supply of the appellant at its request.
The result was that the appellant was in a position to draw excess electricity without reference to the officers of the Board.
That letter indicates that the Board was contemplating to keep the switch open and the Company by this letter made a request not to do so.
The appellant Company was fully conscious of the fact that it was consuming electricity beyond its entitlement under the two Orders, by claiming the benefit of the provisions dealing with emergency supply.
and was also alive to the fact that this had to be done only with the prior approval of the Board.
The relevant portion of the letter is in the following terms: "Further at no time it may kindly be noted that power has been availed from MPEB without prior intimation by phone either to Divisional Engineer or Supdt.
Engineer.
By keeping the A.B. Switch open at your end, the delay in supply to J.C. Mills will be considerable which will cause very heavy losses to the J .C. Mills for no fault of their own.
This may kindly be reviewed and . " The learned counsel for the Board was right in saying that on account of this request by the appellant the line was kept open for it unhindered.
This did not mean that the Company was entitled to misuse the privilege, draw extra energy without prior permission and thereafter refuse to pay higher charges when demanded.
It has been conclusively established by a large number of letters on the records of the case that for several years the Company was particular in obtaining the permission of the Board for drawing electricity in excess of what it was entitled to, by the agreement as modified by the Regulation Order and Generation Order, but later, it not only stopped seeking the advance sanction in this regard, it did not even care to inform the Board ot the excess drawal.
The Branch of the respondent Board at Gwalior sent the bills on the basis of the normal tariff, as the question of grant of additional emergency supply was being dealt with by the Head Office at Jabalpur.
The Gwalior Office was not at all dealing with the matter PG NO 1002 relating to the excess emergency supply which aspect was being exclusively dealt with at Jabalpur, and as soon as the relevant facts came to the knowledge of the Head Office of the Board it took up the matter with the appellant Company.
The entire conduct of the parties furnishes strong circumstantial evidence in support of the Board 's case.
Another argument addressed by Mr. Gupta is based on the letters Annex.
`P ' series sent by the Board to the appellant Company from time to time.
They have been included at pages 137 to 156 of Vol.
Il of the paper book, and according to Mr. Gupta they are inconsistent with the Board 's case regarding the appellant 's entitlement to receive the amount of energy from the Board.
He has pointed out that these letters do not suggest that the contract demand had been reduced to nil in accordance with Annexures `H ' and `O '.
By way of illustration he relied on the letter dated 31.10.1975 (at page 138 of Vol.
II) stating that the Company 's maximum demand should not exceed 1875 KW".
We do not find any merit in the submission.
The letters marked as `P ' series did not deal with the entitlement of the appellant Company as a result of both the Orders Regulation and Generation.
The Regulation Order was ot universal application to all the consumers while the Generation Order applied to only such of them who had their own generating sets.
Under the Regulation Order the contract demand was reduced by a certain percentage and provided for payment of charges at penal rate in case of excess consumption.
The rate of cut and the penal rate for additional consumption did not remain constant, and were revised from time to time.
It appears that as and when the revision in the rates took place the consumers were informed as to the effect of the Regulation Order as it stood after modification.
Mr. hacker was right in saying that since the Regulation Order was applicable to all the consumers and letters similar to those marked as Annexure P ' series were being addressed to all of them, there could not be any objection in the Board sending similar letters to the appellant and others having their private generating sets dealing with the effect of the Regulation Order alone, without taking into account the Generation Order.
A perusal of these letters fully supports the respondents ' stand that they were being issued with reference to the Regulation Order alone.
Further, a close examination of the Generation Order would show that the maximum permissible limit available under the Regulation Order had not ceased to be relevant even after the application of the Generation Order.
The entitlement of the appellant due to emergency outage under Proviso (iii) to Clause 3 ot the Generation Order was limited to the original contract demand as reduced by the Regulation Order.
It was, therefore, important for the PG NO 1003 appellant to keep in mind that at no point of time it could be entitled to ask for beyond this limit as emergency supply on any ground what soever.
As this limit fluctuated from time to time on the change in the percentage of reduction in the Regulation Order, the appellant was rightly reminded of the latest position in this regard.
The learned counsel for the respondents was also right in saying that these letters could not have misled the appellant in any manner.
The numerous letters discussed earlier clearly indicate that the appellant correctly appreciated its position and repeatedly made requests for emergency supply under the Generation Order on the assumption that its entitlement had been rendered to zero.
The appellant 's letter dated 30.5.1977 (at page 16 of Vol.
IV) referred to earlier, fully demonstrates that the plea raised by the appellant is devoid of any merit.
A portion of the said letter (not dealt with earlier) is in the following terms: "During the period of break down we would request you to agree to the following arrangement: i.
Before availing Board 's power during the emergency we will intimate the B.E., MPEB, Gwalior as well as S.E.MPEB, Gwalior and send a copy of our letter to the Director (Com), MPEB, Jabalpur.
ii(a) In case 6th boiler is out and other boilers arc working satisfactorily we may be allowed to draw power upto 1200 KW.
(b) In case 6th boiler is on range and one of our M V boilers is out we may be allowed to draw power upto l200 KW.
(c) In case 6th boiler is not and one of our M.V. boilers is also out we may be allowed to draw power upto 1875 KW.
If present stand of the appellant be assumed to be correct, there was no occasion for it to claim varying quantities of power in changing circumstances as mentioned above.
It was also urged on behalf of the appellant that the Board 's letter dated 13.10.1980, Annexure `U ', (at page 182.
II) impugned by the appellant is also inconsistent with the Board 's stand in the present case.
By this letter the appellant was informed that the contract demand of 3490 PG NO 1004 KW as per the agreements between the parties was going to be reduced to 1250 KW under the provisions of the Generation Order, and on further reduction under the Regulation Order it would come down to 875 KW only.
The appellant was accordingly directed to draw power upto 875 KW with effect from 1.8.1980.
The Board further informed the appellant that no additional power will be supplied during the period of overhauling of the private generating sets.
This part of Annexure 'U ' has been set aside by the High Court on the ground that under Proviso (iii) to Clause 3 ot the Generation Order the Board was under a duty to permit the appellant to draw additional electricity on satisfaction ot the relevant conditions for emergency supply, which it could not deny.
The Board has not challenged this part of the High Court 's decision, and the same is not relevant for purposes of the present appeal.
Reliance on behalf of the appellant has been placed on the earlier part of the letter directing it to limit its drawal to 875 KW.
Mr. Gupta explained the situation thus: The contract demand as per the original agreement and the subsequent agreements by the date on which the letter was issued admittedly was 3490 KW.
If the Board 's case that the appellant 's capacity to generate electricity from its own sets was assessed at 2500 KW be accepted as correct, then the appellant would have been held entitled to draw KW only and not 1250 KW as mentioned in the letter.
Mr. Gupta invited us to consider this aspect along with the Board s earlier letter Annexure `R ' dated 28.12.1979 (page 158 of Vol.
II), informing the appellant that additional power to the extent of l90 KW had been sanctioned.
The admitted position in regard to different agreements between the parties is that initially the parties entered into a contract with respect to 1500 KW only which was later raised to 2500 KW.
The Regulation and Generation Orders came into existence at that stage.
In July 1979, a supplementary agreement was executed between the parties for supply of additional 800 KW.
and in December 1979 the Board further sanctioned l90 KW.
The relevant part of the letter relied on by Mr. Gupta is quoted below: "The Board has sanctioned l90 KW additional power (over and above 3300 KW) at 33 KV subject to the following conditions: (1) The Contract Demand shall be reduced in terms of Govt.
Control Order No. 1254/2048/XIII/75 dated 4.4.75 after the decision of the Committee headed by the Electrical Adviser & Chief Electrical Inspector to Govt.
of M.P. regarding re assessment of the capacity of the consumer 's generating set is known.
" PG NO 1005 The argument is that the Board could mention about a Committee proceeding to assess the capacity of the consumer 's captive plant only if there had not been earlier any assessment.
The reduction in the contract demand under the Generation Order should have been made after the assessment work was completed, but as a matter of fact, no such assessment was made and ultimately the letter Annexure `U ' dated 13.10.1980 was issued arbitrarily without any basis.
In absence of an assessment of the capacity under the Generation Order, no reduction was permissible.
Mr. Kacker 's reply is that since the appellant for the period of more than 4 years was pleading for emergency supply from time to time on one ground or the other, an internal Committee of Superintending Engineers which had visited the Company 's plant on 25.9.1980 suggested that the appellant Company be granted additional power to the extent of 260 KW on regular basis instead of examining the grounds relied upon by the appellant every now and then.
The latter part of the letter informing the appellant that it would not in the future be supplied additional power on the ground of emergency has been referred to in support of this argument.
Mr. Kacker further said that unfortunately the Board was held liable for the emergency supply if the necessary conditions were satisfied and thus the appellant has got double advantage and this cannot be the basis for accepting the appellant 's case.
The learned counsel proceeded to say that the letter Annexure `R ' was issued in connection with the sanction of 190 KW additional power, subject to the Government Orders, and the reduction thereunder was only a matter of arithmetical calculation which should have been done without reference to a Committee.
The letter was not sent in connection with any controversy about the assessment of the generating capacity under the Generation Order, and it cannot be interpreted in the manner as suggested on behalf of the appellant.
It was further pointed out that admittedly there was no question of a committee headed by the Electrical Adviser and Chief Electrical Inspector to the Government of Madhya Pradesh to make a fresh assessment under the Generation Order or to undertake the realistic assessment of the additional capacity over again.
The assessment had to be made by the divisional Engineer of the Board.
It was lastly said that this argument addressed by Mr. Gupta before this Court was not advanced before the High Court nor was the point taken in the writ petition or any affidavit there.
On a consideration of the documents and the re,levant circumstances we agree with Mr. Kacker.
The use of the word "re assessment" in the letter quoted above instead of "assessment" also supports the respondents ' case.
The term "re assessment" implies that there had already been an PG NO 1006 assessment earlier.
Even interpreting the letter as suggested by Mr. Gupta, the existence of the earlier assessment by the Divisional Engineer cannot be ignored.
If the appellant was not satisfied with it, it should have taken appropriate step for getting the same quashed in 1975 itself and should not have waited for four or five years before approaching the High Court, and in the meantime taking the benefit of the provisions regarding emergency supply on its basis.
Now in this background let us come back to the argument of Mr. Gupta as mentioned earlier in paragraph 16 above.
In reply Mr. Kacker asserted that it is not correct to assume that a machine can function on a regular basis only according to the rated capacity as declared by the manufacturer.
By way of illustration he relied upon the specifications relating to a machine issued by the Bharat Heavy Electricals Ltd. indicating that the "Peaking capacity ' of the machine with "No time limit" was higher than the "rated output" mentioned.
The learned counsel also analysed the report of the Divisional Engineer along with the data mentioned by the Committee which in his opinion indicated that the maximum capacity of the appellant 's sets technically feasible was much more than that actually assessed and could not be less by any calculation even before the 6th boiler was erected.
After the sixth boiler became available the capacity rose to at least 9700 KW but the Board taking a generous view did not call upon the appellant to generate further additional electricity than that directed earlier.
We have heard the learned counsel at considerable length on this aspect and we think that the question as to what should be considered the correct feasible capacity of the appellant 's sets is one involving complex technical knowledge and the High Court (or for that matter this Court) was well advised not to have attempted to determine it.
We must reiterate the circumstances which appear to be highly relevant, namely, (i) that the Divisional Engineer who has been rightly considered by the Generation Order to have sufficient expert knowledge in this regard reached the conclusion which is under challenge in the present case after personally considering the matter thoroughly along with the Officers of the Company as is apparent by many of the letters; (ii) the figures collected by the members of the Committee are not challenged as incorrect or inaccurate; (iii) it is not suggested that any of the members of the Committee or the Divisional Engineer or for that matter any Officer of the respondent Board or of the Stale Government had any prejudice or bias against the appellant Company; PG NO 1007 (iv) the appellant did not get an independent assessment of its generating sets made by any person having expert knowledge; (v) the appellant avoided to get the correctness of the assessment verified by the parellel running test as suggested by the Board; and (vi) the conduct of both the appellant and the respondent Board as emerging from the documents placed by the parties on the records of the case furnish valuable circumstantial evidence in support of the respondents ' case.
The argument of the appellant challenging the assessment as illegal must, therefore, be rejected.
Mr. Gupta by way of an alternative plea pressed an argument for granting a limited relief.
He urged that even assuming that the assessment of maximum feasible capacity of the appellant 's sets was correctly made in 1975 so as to be binding on the appellant, it is fully established even by the letters of the Board that the position stood materially altered by November 1979 which called for a re assessment.
The Board s letters dated 27.11.1979 (page 157 Vol. II) and 28.12.1979 (page 158, Vol. 11), according to the learned counsel.
indicate that irrespective of whether the initial assessment was good or not, the Board accepted the position that steps for re assessment had to be taken and after taking into account the circumstances, decided to grant an ad hoc benefit of 260 KW by its letter Annexure `U ' dated 13.10.1980 (page 182, Vol.
Il), discussed earlier.
Although the appellant does not agree that the grievance of the appellant was properly met by the grant of the additional 260 KW but since this was allowed by the Board itself, the relief should have been granted with effect from November ~979 and not from 1.8.1980 as mentioned in Annexure `U '.
The plea of the respondent that this additional power was allowed on account of the recurring demand by the Company for emergency supply under Proviso (iii) to Clause 3 of the Generation Order has been challenged as incorrect.
It is urged that the letter Annexure `U ' granting additional 260 KW over and above 875 KW the appellant was held entitled to draw, must be read in the background of Annexure Q dated 27.11.1979 (page 157, Vol.
II) and Annexure 'R ' dated 28.12.1979 (page 158, Vol.
These letters have been discussed earlier while dealing with another argument.
The argument of the appellant is that the Board had recognised the need of re assessment of the capacity and had decided to entrust the work to a committee and it must be presumed that the team must have submitted some report.
However, no such report has been placed by the Board on the records of this case and the suggestion is that it is a case of suppression by the respondent and the Board cannot be heard to say that the team did not go i~ e question of re assessment.
Since the matter was raised by the appellant in November 1979 PG NO 1008 which ultimately resulted in the partial relief up to 260 KW about 11 months later, the benefit ought to have been allowed with effect from November 1979 if not earlier.
The stand of the Board with respect to this additional 260 KW has already been mentioned earlier.
It is argued by the Board that the Generation Order contemplates only a single assessment leading to a single direction and the appellant was not entitled to re assessment.
The word "re assessment" in Annexure 'R ' was, according to the respondents, mentioned due to inadvertence or under a misconception of the exact legal position.
In any event the additional energy was allowed as the result of the repeated demand by the appellant for emergency grant.
With a view to meet the situation which was arising every now and then a generous attitude was taken to allow additional 260 KW.
It is contended that no further claim can be legitimately founded on this act of generosity.
As a result of the High Court 's decision the appellant 's claim for emergency supply was being considered on merits.
The appellant is thus having the advantage of the double benefit with effect from 1.8.1980.
because the Board has neither appealed against that part of the High Court judgment, nor has it withdrawn the special benefit of 260KW, but a further claim cannot be allowed on account of this sympathetic attitude.
In view of our finding that a proper and binding assessment of the capacity of the appellant 's generating sets was made in 1975 by the Divisional Engineer in pursuance of which the direction in Annexure O was issued and in view of the further fact that on that basis the appellant from time to time asked for and was allowed emergency relief under proviso (iii) to Clause 3 of the Generation Order, the argument of Mr. Kacker appears to be correct.
The appellant has, in our view.
failed to establish any right ot additional relief from an earlier date.
The next point taken on behalf of the appellant is that there is no sanction in law for charging at the penal rate for the electricity consumed beyond what is permissible on application of the Generation Order.
Section 22B of the 191() Act confers powers of framing subordinate legislation on the State Government for the purposes and to the extent mentioned therein and consequence of contravention of any such Order is provided in s.42 (e) mentioned below: "42.
Whoever . . . . . . . (e) makes default in complying with any order issued JIYAJEERAO COTTON MILLS vs ELECTRICITY BOARD [SHARMA.
J ] 1009 to him under section 22B or sub section (2) of section 34; shall be punishable with fine which may extend to one thousand rupees, and, in the case of a continuing offence or default, with a daily fine which may extend to one hundred rupees.
" The argument is that section 22B cannot be so construed as to include a delegated power to impose penalty of the delegate 's choice for the contravention of an order issued under the Section.
Since the legislature itself exercised its legislative power in that field by including section 42 in the statute, the State had or has no authority to take any further step for the enforcement of its Order, except by resorting to section 42.
Dealing with section 78 A of the 1948 Act which says that in the discharge of its functions, the Board shall be guided by such directions on questions of policy as may be given to it by the State Government.
Mr. Gupta contended that it cannot be interpreted to effectively clothe the State to direct the Board to do a thing which it is itself nOt empowered to do.
The Board, therefore. should have either prosecuted the appellant under section 42(e) or disconnected the electric supply altogether, but it was not entitled to demand penal charges.
Mr. Kacker countered by saying that section 42 of the 1910 Act belongs to the group of sections 39 to 50 dealing with Criminal Offences and Procedure as is apparent by the heading just above section 39, and deals with the criminal liability only.
The same set of events may give rise at the same time to civil rights as well as to a criminal offence and it is not correct to suggest that merely because provisions arc specifically included in the Act dealing With criminal liability, the civil liability is deemed to have disappeared.
By way of illustration, a simple case of theft ot movable article may be considered: the owner ot the property can set the criminal law in motion and at the same time may claim the property or compensation for it under the civil law.
Mr. Kacker appears to be right in his stand that merely because the appellant became liable to the penalty as mentioned in section 42(e) it cannot on that ground defend an additional demand on account of supply of the extra energy , if otherwise maintainable under the law.
Besides, section 48 puts the matter beyond controversy by expressly stating that the penalty imposed by the aforesaid section shall be in addition to, and not in derogation of, any liability in respect of the payment of compensation which the offender may have incurred.
While commencing his argument, Mr. Gupta had indicated that one of the points on which the appellant relied upon, related to the validity of Clause 3 of the PG NO 1010 Generation Order mandatorily requiring a consumer to generate maximum feasible electricity from its own generating set.
It was suggested that the provisions in the said Clause being in excess of the power under section 22B, were ultra vires.
After completing his argument on the other points he said that he was not pressing this point.
Mr. Kacker, therefore, did not address us on this aspect.
We may not in these circumstances detain ourselves on this question except mentioning the decisions in Adoni Cotton Mills vs A.P. State Electricity Board; , ; State of U.P. vs Hindustan Aluminium Corporation; , ; and New Central Jute Mills vs U. P. State Electricity Board, [1986] Supp.
SCC 581, showing in unambiguous terms that the power is there.
section 22B permits the State Government to issue an appropriate order for regulating the supply, distribution and consumption of electricity The expression "regulate ' occurs in other statutes also, as for example, the , and it has been found difficult to give the word a precise definition.
It has different shades of meaning and must take its colour from the context in which it is used having regard to the purpose and object of the relevant provisions, and as has been repeatedly observed, the Court while interpreting the expression must necessarily keep in view the object to be achieved and the mischief sought to be remedied.
The necessity for issuing the two Orders arose out of the scarcity of electricity available to the Board for supplying to its customers.
The situation did not leave any option to the Board but to make limited supply of electricity to its consumers, and it must be held to have, in the circumstances the right to stagger or curtail the supply.
The Orders were issued in this background and to make the direction mentioned therein effective it was considered essential to impose sanctions which could take any reasonable form; either disconnection in case of gross violation or the lesser sanction of enhanced tariff.
By the Order issued under section 22B and quoted in paragraph 7 of the judgment in Adoni Cotton Mills case (supra) the State Government directed a reduction in supply of electricity to the extent of 75% of the previous average monthly demand and provided for payment of the charges for excess consumption at double the tariff rates.
The Electricity Board thereafter proceeded to impose further restrictions.
Aggrieved by these measures the Adoni Cotton Mills, an aggrieved consumer approached the Court, but its challenge was repelled.
On behalf of the appellant Mr. Gupta attempted to distinguish the decision on the ground that the fixing of a higher tariff for the excess consumption was against public policy and that this aspect was not considered by this Court in Adoni Cotton Mills case.
We do not find any merit in this argument.
The demand of higher charges/tariff PG NO 1011 for electricity consumed beyond legally fixed limit is a reasonable deterrent measure providing an appropriate sanction not as harsh as disconnection of supply of energy altogether and cannot be opposed on the ground of public policy.
We, therefore, hold that none of the two Orders is illegal or unreasonable.
Mr. Gupta alternatively contended that the provisions fixing the electric charges at 4 times the normal tariff for the excess consumption are to be found only in the Regulation Order and since there is no corresponding provision in the Generation Order, there is no sanction for demanding the penal rate for the electricity consumed incontravention of the Generation Order.
He proceeded to say that there is no language in either of the two Orders to link them with each other.
The different measure taken under the two Orders operate under different conditions and circumstances, and they cannot, therefore, be lumped together.
In reply to the argument of Mr. Kacker that since the Schedule to the Regulation Order refers to the 'contract demand ' which expression denotes the original contract demand as reduced by the provisions of both the Regulation Order and the Generation Order, leading to the conclusion that the provisions regarding the payment of penal charges take into account both the Orders together, Mr. Gupta contended that although it is true that by reason of the Generation Order the contract demand is reduced but it cannot be said that a new contract comes into existence for the reduced amount to justify the argument of Mr. Kacker, because the reduction is as a result of operation of law.
In other words, the reduced amount cannot be termed as 'contract ' demand as it is in supersession of the contract demand.
The contract demand, therefore, remains the same as before although there is introduced a statutory bar from drawing it in full measure.
Applying this logic, it was argued by the learned gcounsel that the Generation Order has to be kept apart while working out the effect of the Regulation Order.
He also referred to the subsequent Regulation Order of 1978 in which the relevant Schedule prescribes 50 KW as the minimum entitlement which is inconsistent with the Board 's case.
It is urged that the argument on behalf of the Board that the two Orders have to be read together must, therefore, be rejected.
The reply of Mr. Kacker is three fold: he point was not taken in the writ application before the High Court nor in the grounds before this Court and since it is not a pure question of law it should not be allowed to be raised in the argument; (ii) the two Orders were issued on the same date with the common object to remedy the same problem as is evident from their preambles and so they cannot be read in PG NO 1012 isolation; and (iii) in any event the Electricity Board in levying and making the impugned demand must be deemed to have exercised its power under s.49 of the 1948 Act which it is certainly entitled to.
Gupta said that it was not right to suggest that the point was not raised in the High Court.
He placed before us the review petition filed in the High Court after the disposal of the writ case and relied on the statement in paragraph 3 of the judgment disposing of the review petition.
He stated that the written arguments of the Company consisted of three parts under the heads 'list of dates, notes of argument ' and a 'reply '.
Mr. Gupta fairly conceded that the point was not taken in the writ petition before the High Court and he was not in a position to assert that it was actually argued on behalf of the Company in the first argument addressed before the High Court.
but he claimed that the Company did press the point during the final reply.
He could not deny that the point was not taken when the present appeals were filed in this Court.
The judgment of the High Court does not deal with the point.
In the circumstances, the question arises as to whether the question should be allowed to be urged now and if so how should it be answered .
35 Mr. Gupta contended that merely because the two Orders are issued under the same provision of law on a particular date, they cannot be dovetailed.
The similarity in the preamble of the two Orders is described as not great consequence as it merely borrows the language from s.22B.
Many Orders are issued under section 3 of the Essentila Commodities Act,the argument proceeds, and it cannot, there fore, be suggested that the penalty imposed in one has to be applied to the other without express language to that effect in either of two Orders.
We do not think in view of the fact that the point was not taken on behalf of the Company while instituting the writ application in the High Court and filing the present appeals in this Court, it should be allowed to be urged at the hearing.
Let us assume that the argument of Mr. Gupta is correct.
Immediately the next question would arise as to whether the Board is otherwise authorised in law to levy and demand charges for the excess electricity at the higher rate and if so whether the Board can be said to have exercised its power in this regard.
Mr. Kacker contended that apart from the power of the state Government to limit the supply of electricity to the consumers by an order under section 22B and direct payment of penal charges for excess consumption, the Board is also empowered to impose sanctions by charging enhanced tariff and the authority to do so is derived both under section 49(3) PG NO 1013 of the 1948 Act and section 49(1) read with the original argeement.
The relevant provisions are quoted below: "49.
Provision for the sale of electricity by the Board to persons other than licensees.
(1) Subject to the provisions of this act and of 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.
(2) . . . . . . . . . (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 terms and conditions for the supply of electricity, the Board shall not show undue preference to any person.
Reliance was placed on several decisions of this Court of the High Courts.
It was further contended that it is not essential for the Board to frame regulations tot the exercise of such power.
The leaned counsel appears to be right.
In Adoni Cotton Mills ' case (supra) the State Government had made an order under section 22B of the 1910 Act limiting the supply to 75% of the previous consumption as was done in the present case and directed the payment of punitive rates for excess consumption.
The Board made supplementary orders for placing further onerous conditions on certain groups of consumers.
This was challenged before the High Court inter alia on the ground that since the State Government had already acted under section 22B, the Board could not further pass supplementary orders and that in any event since the Board had not made regulations laying down the principles under section 79(j) of the 1948 Act, the orders were bad.
Both the points (along with several others) raised by PG NO 1014 the appellant in that case were rejected by this Court.
Referring to section 49(1) of the 1948 Act, the Court observed that the power to enhance the tariff is included in the Section and the expression that "the Board may supply electricity . upon such terms and conditions as the Board thinks fit" in section 49(1) iS related to the terms and conditions of the agreement between the parties.
Sub section ( 1) confers power on the Board to supply electricity upon such terms and conditions as it thinks fit and the terms and conditions include the power of the Board to enhance the rates.
section 49(3) permits the Board to fix different rates for the supply of electricity having regard to certain conditions mentioned therin and ' 'any other relevant factors".
It was held that the expression "any other relevant factors" could not be considered ejusdem generis because there is no genus of the relevant factors.
In New Central Jute Mills Co. Ltd. vs U.P. State Electricity Board, (supra) the situation again was similar to the present case.
The argument pressed before the Supreme Court inter alia was that the Board had no authority to make the demand in excess of the agreed rate under the agreement.
Repelling the contention, the Court observed in paragraph 4 of the judgment that the agreement itself did not envision the supply of electricity in violation of the ban imposed by the State Government in exercise of its power under section 22B of the 1910 Act; nor did the agreement stipulate the rate at which such supply should be charged if notwithstanding the ban against the supply a consumer drew electricity in excess of the permissible quantity.
In the circumstances, the Board was justified in invoking the power under section 49(3) of the 1948 Act which authorised it to supply electricity by charging different tariff having regard to certain conditions and ' any other relevant factors".
section 49(3) was interpreted to be wide enough to cover a situation where electricity in excess of the quantum is drawn in disregard of the ban imposed under section 22B of the l9 10 Act.
We do not consider it necessary to multiply the decisions as there does not appear to be any doubt that either under section 49(1) of the 1948 Act read with the agreement or under section 49(3) or under both the provisions the respondent Board is fully authorised to levy and to make a demand at a higher rate than the usual tariff.
It is also clear that it is not essential for the Board to make regulations indicating the basis for such levy before making the demand.
The appellant has not been able to successfully show before us that the power by the Board has to be exercised in a particular manner and by adopting a particular mode.
If it is assumed that a particular formality has to be completed before a demand can be legitimately raised, the appellant cannot be allowed to claim now that the same is lacking in the present case in the absence of a proper pleading in the original writ petition before the High Court.
If the point had been raised in time, the respondent Board could have placed relevant materials on the issue.
If at the end of the hearing of the case in the High Court the point was mentioned in the appellant 's final reply and included in the PG NO 1015 last instalment of its written argument, it cannot cure the defect in the pleading specially when the judgment of the High Court dismissing the writ application does not deal with the point.
In that view it is not necessary to test the correctness of the argument of Mr. Kacker that the appellant 's entitlement to receive the quantum of electricity from the Board at the normal tariff can be determined only by a combined reading of the two Orders.
We do not, therefore, consider it necessary to decide as to what would have been the precisely correct answer if the point had been properly raised before the High Court at the appropriate stage.
We do not find any merit in any of the points urged on behalf of the appellant.
We were informed by the learned counsel for the parties that the appellant does not accept the correctness of the calculations in the letter 'P ' series and the question is being examined by the High Court in a pending case.
The appellant also asserts that even during the period commencing from November 1979 the Company had pleaded for emergency supply.
The High Court has in the present case directed the prayer for emergency supply to be considered on merits.
Since these questions are not involved in the present appeals, arguments relating to these points have not been addressed before us.
We, in the circumstances, make it clear that any observation made in the present case shall not be treated to have decided those points which are the subject matter of a pending case in the High Court.
It was also pointed out at the Bar that several interim orders were issued by this Court during the pendency of the present appeals and final direction should be given in regard to them.
While granting special leave this Court by its order dated 5.11.1982 directed the appellant Company as condition for interim relief of restoration of electric connection to pay a sum of Rs.50,00,000 within a fortnight and another sum of Rs. 1,50,00,000 within six months with interest from l. 1.1983 at the rate of 12% per annum until payment.
The future payment of the electricity bills was ordered to be made within four weeks from the service of the bills.
The Court also said that the applications made by the appellants for consideration of emergency supply of the electricity should be expeditiously disposed of by the Board on merit, and all payments by the appellants will be subject to adjustment in the light of the decision on the emergency applications.
By the order dated 24.11.1982 the time for payment of Rs.50,00,000 was extended to 6.12.1982.
With respect to the payment of Rs. 1,50,00,000 the Court by its order dated 6.5.1983 permitted the amount to be deposited in PG NO 1016 two equal instalments.
The Court also said that if it was ultimately found that the appellant had paid any amount in excess of the total liability, the Board shall repay such excess amount with interest at the rate of 12% per annum.
By a subsequent order dated 23.4.1984 the appellant was required to pay a sum of Rs. 1,28,00,000 to the Board by the 10th of May, 1984 and to keep the bank guarantee alive till the final disposal of these appeals as condition for continuance of the interim order.
During the hearing of the appeal a grievance was made on behalf of the respondent Board that the bank guarantee had not been effectively renewed and the learned counsel for the appellant undertook on behalf of the Company to correct the defect.
Subsequently it was stated at the Bar that proper bank guarantee had been furnished in accordance with the Court 's direction.
In view of our present decision the respondent Board, besides being entitled to retain the amount already paid to it in pursuance of this Court 's direction, is further entitled to enforce the bank guarantee.
The appellant Company, therefore, must arrange to make the payment withount delay, failing which the Board shall be entitled to take steps for enforcement of the bank guarantee.
The dispute regarding the appellant s claim to receive emergency supply is pending before the High Court.
The appellant shall be entitled to adjustment in the light of the final decision on this point.
[/INST]On February 21, 1986 the State Government of Maharashtra appointed Shri Justice B. Lentin as a one man Commission of Inquiry to probe into the death of 14 patients in the government run J.J.B. Hospital between 22.1.1986 and 7.2.1986 after they were administered contaminated glycerol, and to fix responsibility.
The inquiry revealed the existence of a corrupt and venal nexus between the drug firms, the delinquent Food & Drugs Administration and hospital staff on the one hand, and the appellant, some other persons and certain Government officials on the other.
The Commission 's report was an indictment of the State 's public health system.
The Commission having found the evidence given by the appellant self contradictory, issued a show cause notice to him as to why he should not be prosecuted for the offence of giving false evidence on oath under section 193 of the Indian Penal Code, 1860 read with section 340 of the Code of Criminal Procedure, 1973.
After considering the appellant 's objections, the Commission directed filing of a complaint under sections 193 and 228 of I.P.C.
The appellant filed a petition in the High Court assailing the legality and propriety of the order of the Commission directing filing of the complaint, and the same was dismissed by the High Court.
Before this Court, it was contended on behalf of the appellant that (1) the Commission could not be deemed to be a Court for the purposes of section 195(1)(b) of the Code of Criminal Procedure unless declared by the Commission of Inquiries Act itself, as stipulated in sub section
(3) of section 195, PG NO 942 PG NO 943 which provides that in cl.
(b) of sub section
(1), the term 'Court ' means a Civil, Revenue or Criminal Court, and includes a tribunal constituted by or under a Central, Provincial or State Act if declared by that Act to be a Court for the purposes of this Section; (2) the Commission of Inquiry appointed by the State Government was merely a fact finding body appointed by the Government for the 'information of its mind ', and the mere fact that the procedure adopted was of a legal character and it had the power to administer an oath would not impart to it the status of the Court and therefore was not a 'Court ' for the purposes of section 195(1)(b) of the Code; (3) the question was not whether the appellant could be prosecuted for perjury for giving false evidence which was an offence punishable under section 195(1)(b), but whether the Commission was a 'Court ' for the purposes of section 195(1)(b); (4) that sub section to put an end to the controversy, and this was nothing but 'legislative declaration of the law ' contrary to the law declared by this Court in Lalj Haridas case, and a number of statutes contain such a provision in accordance with the existing legislative practice.
The Advocate General appearing on behalf of the State contended that (1) the inclusive part of the definition of 'Court ' in section 195(3) of the Code was ex abundanti cautela and was merely declaratory of the law, and (2) the first part of sub section
(4) of section 5 of the Act satisfied the requirements of the inclusive part of the definition of 'Court ' as contained in sub section
(3) of section 195 of the Code.
Allowing the appeal, it was, HELD: (1) It could not be doubted that sub section
(3) of section 195 of the Code had been enacted by Parliament to implement the recommendations of the 41st Report of the Law Commission to remedy the uncertain state of law due to conflict of opinion between different High Courts as to the meaning of the word 'Court ' in section 195(1)(b) and to that extent the introduction of the inclusive clause in the definition of 'Court ' in sub section
(3) of section 195 had brought about a change in the law.
[966D] (2) Law must be definite, and certain.
If any of the features of the law could usefully be regarded as normative, it was such basic postulates as to the requirement of consistency in judicial decision making.
It was this requirement of consistency that gave to the law much of its rigour.
At the same time, there was need for flexibility.[968F G] (3) A Commission of Inquiry was fictionally a Civil PG NO 944 Court for the limited purpose of proceeding under section 482 of the old Code or section 345 of the present Code.
A fortiori the legal fiction contained in sub section
(5) of section of the Act which related to the proceedings before the Commission was necessarily confined to offences that were punishable under sections 193 and 228 of the Indian Penal Code and did not extend beyond that.
[970F G] (4) A Commission of Inquiry was not a Court properly so called.
A Commission is obviously appointed by the appropriate Government 'for the information of its mind ' in order for it to decide as to the course of action to be followed.
It was therefore a fact finding body and was not required to adjudicate upon the rights of the parties and has no adjudicatory function.
The Government was not bound to accept its recommendation or act upon its findings.
The mere fact that the procedure adopted by it was of a legal character and it had the power to administer an oath would not impart to it the status of a Court.
[972D E] (5) Parliament in its wisdom whenever thought it fit had inserted a special provision for deeming a tribunal to be a Court for the purposes of section 195(1)(b) but had left the other enactments like the Commission of Inquiry Act untouched although sub section
(3) of section 195 had been on the Statute Book for the last over 14 years.
[965D E] (6) The judgment will not however prevent the State Government from launching a prosecution against the appellant for commission of the alleged offences under sections 193 and 228 I.P.C. if otherwise permissible in law.
[977E F] Lalji Haridas vs The State of Maharashtra ; ; M.V. Rajwade vs Dr. S.M. Hasan, ILR (1954) Nagpur 1; Brajnanandan Sinha vs Jyoti Narain, ; ; Puhupram & Ors.
vs State of Madhya Pradesh, ; Balakrishnan vs Income Tax Officer, Ernakulam, ; Jagannath Prasad vs State of Uttar Pradesh, ; Virinder Kumar Satyawadi vs The State of Punjab, ; Balwant Singh & Anr.
vs L.C. Bharupal, I.T.O., New Delhi, ; Chandrapal Singh vs Maharaj Singh, ; Bengal Immunity Co. Ltd. vs Union State of Bihar, ; R. M.D. Chamarbaugwalla vs Union of India, ; ; Commissioner of Income tax Madhya Pradesh & Bhopal vs Sodra Devi, [1958] SCR l; St. Aubyn vs Attorney General, ; ; Shell Co. of Australia vs Federal Commissioner of Taxation, ; Smt.
Ujjam Bai vs State of Uttar Pradesh, ; M.M. khan vs Emperor, ILR and In re.
Maharaja Madhava Singh LR (1905) 31 IA 239.
PG NO 945
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<s>[INST] Summarize the judgement125 135, and 233 of 1963.
Petition under article 32 of the Constitution of India for enforcement of Fundamental Rights.
A. V. Vishwanatha Sastri, T. A. Ramachandran, B. Par thasarathy, 0.
C. Mathur, J. B. Dadachanji and Ravinder Narain, for the petitioner (in W. P. Nos.
125 135 1963).
H. N. Sanyal, Solicitor General, N. section Bindra and R. N. Sachthey, for the respondents (in W. P. Nos.
125 135 / 63).
O. C. Mathur, J. B. Dadachanji and Ravinder Narain for the petitioner (in W. P. No. 233 / 1963).
R. N. Sachthey, for the respondents (in W.P. No. 233/ 63).
187 March 12, 1964.
The Judgment of the Court was delivered by GAJENDRAGADKAR, C. J.
This group of 12 writ petitions raises a common question about the validity of the( Orissa Sales Tax Validation Act, 1961 (Act No. 7 of 1961) (hereinafter referred to as the Act).
The facts on which the petitioners rely are similar, and so, we shall mention the facts in the first group consisting of writ petitions Nos.
125 135 of 1963.
The petitioner in this group is Shri Epari Chinna Krishna Moorthy, Proprietor, Epari Chinna Krishna Moorthy & Sons, Berhampur, Orissa.
He is a merchant who carries on business in "bullion and specie" and gold and silver ornaments at Berhampur and as such merchant, he has been registered as 'dealer ' under the Orissa Sales Tax Act, 1947 (Act No. 14 of 1947).
After the said Act came into force, the Government of Orissa purporting to exercise its authority under section 6 of the said Sales Tax Act issued a notification exempting certain articles from the operation of the charging section of that Act.
Under this notification, gold ornaments were ordered to be exempted from sales tax 'when the manufacturer selling them charges separately for the value of gold and the cost of manufacture. ' This notification was issued on July 1, 1949 Durinh the course of his business, the petitioner manufactures gold ornaments by supplying the gold to the artisans and getting ornaments prepared by them under his supervision and when the ornaments are so prepared, he sells them in his shop and has been showing the value of gold and the cost of manufacture separately.
That is why the petitioner alleges that he is entitled to claim the benefit of the exemption notification.
Consistently with this plea, the petitioner filed his returns before the Sales tax Officer at Berhampur and had been claiming exemption of Sales tax on the sales as being entitled to exemption under the said notification.
Upto June, 1952, the claim for exemption made by him was upheld and the amount represented by sales of the said gold ornaments was deducted from the taxable turnover shown by the petitioner in his returns.
Subsequently, however, these assessments were re opened under section 12(7) of the Act and it was claimed that the deductions made on certain sales transactions of gold ornaments were not justified and to that extent, the petitioner had escaped assessment.
The petitioner resisted this attempt to re open the assessment and he pleaded that he was entitled to claim exemption under the notification, because he belonged to the class of manufacturers to which the notification referred.
The Sales tax Officer, however, disallowed the petitioner 's contention and proceeded to levy tax on the sales transac tions in question.
The petitioner then challenged the said 188 decision by preferring appeals, but the said appeals were also dismissed.
While the appeals were pending similar assessments made in respect of other dealers including the petitioner were challenged by them by writ petitions before the High Court of Orissa.
(Nos. 151, 161, 162, 204 209 and 110 of 1957 respectively).
The Division Bench of the Orissa High Court which heard the writ petitions upheld the petitioner 's case and issued appropriate writs directing the Sales tax Officer to allow the petitioner 's claim for exemption 'under the notification in question.
The main controversy before the High Court was about the precise denotation of the word 'manufacturer ' used in the notification.
The High Court hold that the expression manufacturer ' meant the first owner of the finished products for whom it was mad(.
either by his paid employee or even by independent artisans on receipt of raw materials and labour charges from him.
According to this view, the petitioners before the High Court were found to be manufacturers and as such entitled to claim exemption in respect of sale of old ornaments made by them.
This judgement was pronounced on March 13, 1959.
Against this judgement the State of Orissa has filed appeals to this Court and they are numbered as Civil Appeals Nos. 92 to 94 of 1963.
These appeals are till pending disposal.
After the Orissa High Court pronounced its judgement in the writ petitions to which reference has been made, the impugned Act was passed by the Orissa Legislature on August 1, 1961.
This Act received the assent of the Governor on September 10, 1961, and was published on September 18, 1961.
It contains one operative provision in section 2.
Section 2 provides that notwithstanding anything contained in any judgment, decree or order of any court, the word 'manufactu rer ' occurring against item 33 in the schedule to the notification of the Government of Orissa dated July 28, 1947 as amended by another notification of the 1st July, 1949 shall mean and shall always be deemed to have meant a, person who by his own labour works up materials into suitable forms and a person who owns or runs a manufactory for the purpose of business with respect to the articles manufactured therein.
It is the validity of this section which is challenged before us by the petitioners in the present writ petitions.
It is clear that the object of section 2 of the impugned Act is to make it clear that the legislature 's intention was not, as the High Court had held, to, include within the notification all persons who are first owners of the finished product of gold.
Section 2 shows that the legislative intention was to give benefit of the said exemption only to persons who themselves work and produce gold ornaments or who run or own a manufactory for the purpose of business with respect to the articles manufactured therein.
In other words, the intention of the Government in issuing the notification was not to give the benefit of the exemption to traders or shop keepers who were no more than commission agents and who did not personally, work for making gold ornaments or who did not own a manu factory employing artisans for that purpose.
If this section is valid, it is common ground that the petitioners are not entitled ,to claim the exemption.
On the other hand, if this section is invalid, the petitioners would be the first owners of gold ornaments and may be entitled to claim exemption.
The first argument which has been urged before us by Mr. Sastri is that since the exemption was granted by the State Government by virtue of the powers conferred on it by section 6, it was not open to the legislature to take away that exemp tion retrospectively.
Section 4 of the parent Sales tax Act is the charging section and section 6 is the section which confers on the State Government power to issue a notification exempting from the tax the sale of any goods or class of goods and likewise withdraw any such exemption subject to such conditions and exceptions as it may deem fit.
The argument is, the power to grant exemption having been conferred on the State Government, it was validly exercised by the State Government and though the legislature may withdraw such exemption, it cannot do so retrospectively.
It is obvious that if the State ,Government which is the delegate of the legislature can withdraw the exemption granted by it, the legislature cannot be denied such right.
But it is urged that once exemption was validly granted, the legislature cannot withdraw it retrospectively, because that would be invalidating the notification itself.
We are not impressed by this argument.
What the legislature has purported to do by section 2 of the impugned Act is to make the intention of the notification clear.
Section 2 in substance declares that the intention of the delegate in issuing the notification granting exemption was to confine the benefit of the said exemption only to persons who, actually produce old ornaments or employ artisans for that purpose.
We do not see how any question of legislative incompetence can come in the present discussion.
And, if the State Government was given the power either to grant or withdraw the exemption that cannot possibly affect the legislature 's competency to make any provision in that behalf either prospectively or retrospectively.
Therefore, there is no substance in the argument that the retrospective operation of section 2 of the impugned Act 'is invalid.
Then Mr. Sastri contends that this provision is discrimina tory and as such, contravenes the equality before the law, guaranteed by article 14.
This argument is also misconceived, is not seriously disputed that the petitioners belong to the 190 class of traders or shopkeepers who are like commission agents.
They give gold to the artisans, paying the artisans their labour charges and when the ornaments are thus produced, they charge commission before they are sold to the customers.
In such a case, it is not easy to understand how this class of traders can be said belong to same class of persons who produce gold ornaments themselves or run manufactories where artisans are engaged for producing them.
The counter affidavit filed on behalf of the respondent State has also averred that the petitioners sometimes sell goods manufactured by firms outside the State of Orissa and in no case had they manufactured ornaments themselves.
Whether the gold which they give to the artisans is their own or is supplied to them by customers is not a matter of any significance, because what is important in this connection is that they are not directly concerned with the production of ornaments, and admittedly, they do not produce the said ornaments themselves.
Therefore, the persons who get the benefit of the exemption notification as a result of the provisions of section 2 of the impugned Act cannot be said to belong to the same class as that of the petitioners, and if that is so, the main argument on the basis of article 14 does not subsist.
Besides, one of the objects of the impugned Act appears to be to make it clear that the legislature intends to benefit the goldsmiths who actually make gold ornaments and that object can be carried out only if exemption is granted to persons who keep in their continuous employment artisans who produce gold ornaments.
If a person produces gold ornaments himself and if a person employs artisans to produce gold ornaments for him, they fall within the protection of the exemption.
In the case of the petitioners, however, they do not keep any artisans in their continuous employment, and so, if the legislature thought it was not necessary to give them the benefit of the exemption, it cannot be said that the classification made by the legislature has no rational connection with the object intended to be achieved by it.
This argument assume,,, that the petitioners belong to the same class as the persons to whom the benefit of the exemption is available.
But as we have already stated, these two categories are distinct and there is no sameness or similarity between them.
It was also suggested by Mr. Sastri that the result of the impugned provision is to deny the benefit of the exemption to the poorer classes of persons who are engaged in the business of manufacturing gold ornaments, and in that con nection, he has commented on the fact that the notification gives the benefit of the exemption to persons who run manu factories but it denies that benefit to persons who carry on the work of producing gold ornaments on a smaller scale, and 191 so, are unable to run a manufactory.
This argument is fal lacious.
The notification as interpreted by section 2 of the impugned Act benefits the artisans who produce ornaments themselves and that obviously covers a very large section of independent artisans engaged in the trade.
The notification also benefits persons who run manufactories and that ensures the continuous employment of artisans.
That is why it seems to us that the main object of ranting exemption can be said to be achieved by holding that 'manufacturer, means either a, manufacturer properly so called or one who engages artisans lo manufacture gold ornaments.
Mr. Sastri also argued that the retrospective operation ,of the impugned section should be struck down as unconsti tutional,, because it imposes an unreasonable restriction on the petitioners ' fundamental right under article 19(1)(g).
It is true that in considering the question as to whether legislative power to pass an Act retrospectively has been reasonably ,exercised or not, it is relevant to enquire how the retrospective operation operates.
But it would be difficult to accept the argument that because the retrospective operation may operate harshly in some cases, therefore, the legislation itself is invalid.
Besides, in the present case, the retrospective operation does not spread over a very long period either.
Incidentally, it is not clear from the record that the petitioners did not recover sales, tax from their customers when they sold the gold ornaments to them.
The counter affidavit filed by the, respondent State alleges that even where sales tax has not been charged separately, the price charged included sales tax because it was the usual practice of every registered dealer ,doing similar business to collect sales tax either by showing it as such separately and thereby claiming deduction of the, ,sales tax from the gross turnover to arrive at the taxable turn , ,over shown separately or by including it in the price and thereby collecting it as a part of the price charged.
In any event, we do not think that in the circumstances of this case it would be possible to hold that by making the provision of section 2 of ' the impugned Act retrospective the legislature has imposed a restriction on the petitioners ' fundamental right under article 19(1)(g) which is not reasonable and is not in the interest of the general public.
The result is, the petitions fail and are dismissed with costs.
One set of hearing fees.
Petitions dismissed.
[/INST]The petitioner, a merchant, carrying on business in "bullion and specie" and gold and silver ornaments was a registered 'dealer ' under the Orissa Sales Tax Act, 1947.
The Government purporting to exercise its authority under section 6 of the said Act issued a notification on July 1, 1949 exempting certain articles from the operation of the charging section of that Act.
Under the notification gold ornaments were ordered to be exempted from sales tax when the manufacturer selling them charges separately for the value of gold and the cost of manufacture.
The petitioner filed his returns before the Sales tax Officer and claimed exemption of sales tax under the said notification.
Up to June 1952, the claim for exemption was upheld.
Subsequently, however, these assessments were reopened under section 12(7) of the Act and it was claimed that the deductions made on certain sale transactions of gold ornaments were not justified and the petitioner had escaped assessment.
The petitioner pleaded that lie was entitled to exemption, because he belonged to the class of manufacturers to which the notification referred.
The Sales tax Officer disallowed the petitioner 's contention.
The petitioner then challenged the said decision by preferring appeals, but the said appeals were also dismissed.
Pending these appeals, similar assessments made in respect of other dealers including the petitioner were challenged by writ petitions before the High Court.
The High Court upheld the petitioner 's case and issued writs directing the Sales tax Officer to allow the petitioners ' claim for exemption.
After this judgement was pronounced, the impugned Act was passed by the legislature on August 1, 1961 and was published on September 18, 1961, containing one operative provision in section 2.
It provided that notwithstanding anything contained in any judgement, decree or order of any court, the word 'manufacturer ' occuring against item 33 in the schedule to the notification of the Government dated July 28, 1947 as amended by another notification of the 1st July, 1949 shall mean and shall always be deemed to have meant a person who by his own labour works up materials into suitable forms and a person who owns or runs a manufactory for the purpose of business with respect to the articles manufactured therein.
The validity of this section was challenged in the present writ petition.
186 It was urged (i) that since the exemption was granted by the State Government by virtue of the Powers conferred on it by section 6, it was not open to the legislature to take away that exemption retrospectively; (ii) that the provision in section 2 of the impugned Act was discriminatory and as such contravened the equality before the law guaranteed by article 14 and (iii) that the retrospective operation of the impugned section should be struck down as unconstitutional, because it imposes an unreasonable restriction on the petitioner 's fundamental right under article 19 (1) (g) Held: (i) What the legislature had purported to do by section 2 of the impugned Act, was to make the intention of the notification clear.
And, if the State Government was given the power either to grant or withdraw the exemption, that could not possibly affect the legislature 's competence to make any provision in that behalf either prospectively or retrospectively.
(ii) The notification as interpreted by section 2 of the impugned Act benefits the artisans who produce ornaments themselves and who run manufactories.
That is why the main object of granting exemption can be said to be achieved by holding that ,manufacturer ' means either a manufacturer properly so called or one who engages artisans to manufacture gold ornaments.
In the present case the petitioners were not directly concerned with the production of ornaments, and admittedly, they did not produce the said ornaments themselves.
Therefore, the persons who get the benefit of the exemption notification as a result of the provisions of section 2 of the impugned Act cannot be said to belong to the same class as that of the petitioners.
The two categories are distinct and there is no sameness or similarity between them, and if that is so, the main argument on the basis of article 14 does not subsist.
(ii) It would be difficult to accept the argument that because the retrospective operation may operate harshly in some cases, therefore, the legislation itself is invalid.
In the circumstances of the present case it would not be possible to hold that by making the provision of section 2 of the impugned Act retrospective the legislature has imposed a restriction on the petitioner 's fundamental rights under article 19(1) (g) which is not reasonable and is not in the interest of the general public.
</s>
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<s>[INST] Summarize the judgementCivil Appeal No. 779 of 1971 Appeal by special leave.
from the judgment and order dated the 2nd December, 1969 of the Rajasthan High Court in I.T.R. No. 5 of 1966.
section T. Desai, Rameshwar Nath, for the appellant.
B. B. Ahuja and section P. Nayar, for the respondent.
The Judgment of the Court was delivered by JASWANT SINGH, J.
This appeal by special leave is directed against the judgment dated December 2,1 1969 of the High Court of Rajasthan.
Briefly stated the facts giving rise to this appeal are: Maharaja Shri Udebhan Singhji of Dholpur died issueless on October 22, 1954.
On the day following his demise all the movable valuables possessed by him were taken over and sealed by the Government of Rajasthan because of the dispute regarding succession to the gaddi.
On December 13, 1956 Maharaja Shri Hemant Singhji, the appellant herein, who was then a minor, was recognised by the Government of India as successor of the former Maharaja and t he aforesaid assets which inter alia consisted of 4,825 gold sovereign, 7,90,440 old silver rupee coins and silver bars weighing 2,54,174 totals were released by the Rajasthan Government and handed over to Rajmata in her capacity 424 as the adoptive mother and guardian of the appellant on March 24 1957.
During the financial year 1957 58, the aforesaid sovereigns, silver coins and silver bars were sold at the suggestion of the Government of India for a net consideration of Rs. 20,78"257.
Overruling the contentions raised on behalf of the appellant to the effect that as there was no voluntary sale chargeable to capital gains tax under section 12B of the Indian Income Tax Act, 1922, hereinafter referred to as 'the Act '" and the aforesaid items did not constitute 'capital assets ' as contemplated by section 2(4A) of the Act but fell within the purview of the exception carved out by clause (ii) thereof and as such were to be excluded in computing the gains because they were held for personal use by the assessee and the members of his family as was evident from the fact that they were used for the purpose of Maha Lakshmi Puja and other religious festivals and rituals in the family, and taking into account the market value of the assets as on January 1, 1954, the Income Tax officer, Bharatpur, worked out capital gains at Rs. 3,44"303.
Dissatisfied with this order, the appellant took the matter in appeal to the Appellate Assistant Commissioner but remained unsuccessful.
A further appeal to the Income Tax Appellate Tribunal was taken by the appellant but the same also proved abortive as the Tribunal was of the view that the expression "personal effects" meant such items of movable property as were necessary adjuncts to an individual 's own personality and the nature of sale being voluntary or otherwise was irrelevant for the purpose of section 12B in view of the decision of this Court in James Anderson vs Commissioner of Income Tax, Bombay City(1).
The Tribunal, however, referred the following question of law at the instance of the appellant to the High Court of Rajasthan at Jodhpur under section 66(1) of the Act.
"Whether on the facts and in the circumstances of the case the assets sold were capital assets within the meaning of section 2(4A) chargeable to capital gains tax under section 12B of the Income tax Act, 1922.
" By its order dated December 2, 1969" the High Court answered the question in the affirmative holding that in order that an article should constitute a part of personal effects, it is necessary that the article must be associated with the person of the possessor and that the aforesaid items consisting of gold sovereigns, silver rupees and silver bars could not be deemed to fall within the exception carved out by clause (ii) of section 2(4A) of the Act merely because they were placed before Goddess Lakshmi while performing Puja.
The appellant thereupon made an application to the High Court of Rajasthan for a certificate of fitness which was refused.
Thereafter, the appellant applied to this Court far special leave under Article 136 of the Constitution which was granted on May 6, 1971.
Appearing in support of the appeal, Mr. Desai has vehemently contended that the question as whether an item of movable property held for personal use is a part of personal effects of an assessee should be determined not in a commercial sense but according to the (1) , 131 425 Ordinary ideas,, habits, customs and notions of the class of society to which the assessee belongs or according to the well established habits, customs and traditions of his family.
He has in support of his contention referred us to a decision in Commissioner of Wealth tax.
Gujarat vs Arundhati Balkrishna(l).
He has further urged that in construing section 2`(4A) of the Act it must be borne in mind that the Legislature intended to lay emphasis on the nature of the use of the article rather than on the person of the assessee.
Mr. B. B. Ahuja appearing for the Revenue has, on the other hand, urged that the interpretation sought to be placed on behalf of the assessee on the expression "personal effects" is not correct and while determining whether the effects are personal it is essential to see whether they are meant for the personal use of the assessee.
We have given our earnest consideration to the submissions, of learned counsel for the parties.
For a proper decision of the point in question, it is necessary to refer to section 2(4A) of the Act, the relevant portion whereof runs thus: "2(4A). 'Capital asset ' means property of any kind held by an assessee" whether or not connected with his business, profession or vocation, but does not include (i) . . . (ii) personal effects, that is to say, movable property (including wearing apparel, jewellery, and furniture) held for personal use by the assessee or any member of his family dependent on him;" The expression "personal use" occurring in clause (ii) of the above quoted provision is very significant.
A close scrutiny of the context an; which the expression occurs shows that only those effects can legitimately be said to be personal which pertain to the assessse 's person.
In other words,, an intimate connection between the effects and the person of the assessee must be shown to exist to render them "personal effects".
The enumeration of articles like wearing apparel, Jewellery, and furniture mentioned by way of illustrations in the above quoted definition of "personal effects" also shows that the Legislature intended only those articles to be included in the definition which were intimately and commonly used by the assessee.
The meaning assigned to the expression "personal effects" 'm various dictionaries also lends support to this view.
In the Unabridged Edition of the Random House Dictionary of the English Language at page 1075, the expression is given the following meaning: "Personal effects, privately owned articles consisting chiefly of clothing, toilet items etc.
for intimate use by an individual".
(1) 426 In Black 's Law Dictionary, Fourth Edition at Page 1301, the expression is assigned the following meaning: "Personal effects.
Articles associated with person, as property having more or less intimate relation to person of possessor;" In Cyclopedic Law Dictionary, Third Edition, at page 832, the expression "personal effects ' without qualifying words is interpreted to include generally such tangible property as is worn or carried about the person.
In 'Words and Phrases ' (Permanent Edition), Volume 32 at page 277 it is stated that the words "personal effects" when used without qualification, generally include such tangible property as is worn or carried about the person, or to designate articles associated with the person.
At another place at the same page, it is stated that the words "personal effects" are used to designate articles associated with person, as property having more or less intimate relation to person of possessor or such tangible property as attends the person.
Bearing in mind the aforesaid meaning assigned to the expression in various dictionaries and cases the silver bars or bullion can by no stretch of imagination be deemed to be "effects" meant for personal use.
Even the sovereigns and the silver coins which are alleged to have been customarily brought out of the iron safes and boxes on two special occasions namely, the Ashtmi Day of 'Sharadh Pakh ' for Maha Lakshmi Puja and for worship on the occasion of Diwali festival can not also be designated as effects meant for personal use.
They may have been used for puja of the deities as a matter of pride or ornamentation but it is difficult to understand how such user can be characterised as personal use.
As rightly observed by the Income Tax authorities if sanctity of puja were considered so essential by the asses see, the aforesaid articles would not have been delivered by this guardian to the Banks for sale.
The language of section 5(1)(viii) of the Wealth Tax Act, 1957 which is pari materia with the definition of the expression "personal effects" as given in section 2(4A) (ii) of the Act is also helpful in cons truing the latter provision.
That provision runs as follows: "5.
(1) Subject to the provisions of sub section (1 A), wealth tax shall not be payable by an assessee in respect of the following assets, and such assets shall not be included in the net wealth of the assessee.
. . . . . (viii) furniture, household utensils, wearing apparel, provisions and other articles intended for the personal or household use of the assessee but not including jewellery;" In section Poddar vs The Commissioner of Wealth Tax, Bombay City II(1) where the assessee at the time of his appointment in the year (I) I.L.R. [1965] Bom.1062.
427 1945 as a Justice of the Peace was presented with two gold caskets, a gold tray,, two gold glasses, a gold cup, saucer and spoons, and photo frames as souvenirs by the dealers and brokers in cloth with whose business he was connected and he kept these articles in a glass show case for display in his drawing room and in assessment year 1959 60 claimed exemption in respect of these articles under the above quoted provision i.e. under section 5(1)(viii) of the Wealth Tax Act, 1957, it was held that merely because the gold caskets were kept in the show case did not make them part of the furniture and the rest of the articles could not be considered to be household utensils as that expression did not embrace within its sweep gold articles meant for ornamental use for special occasions but meant household articles which were normally, ordinarily, and commonly so used.
It was further held in this case that the use as a decoration in the drawing room which is only calculated to give a pride of possession is not contemplated by the exemption and that the personal use which is contemplated by the exemption is the use of like nature as the use of other items mentioned in the clause, namely, furniture, household utensils, wearing apparel and provisions.
It was further held in that case that the expression "intended for personal or household use" did not mean capable of being intended for personal or household use.
It meant normally, commonly, or ordinarily intended for personal or household use.
This in our opinion is the true concept of the expression "personal use".
It is also significant that no exemption on behalf of the assessee was claimed in respect of the aforesaid effects under the aforesaid provision of the Wealth Tax Act.
The decision of this Court in Commissioner of Wealth Tax, Gujarat vs Arundhati Balkrishna (supra) on which strong reliance has been placed by Mr. Desai is of no assistance to the appellant as the point now sought to be agitated before us was never canvassed or considered in that case.
We are, therefore" of the considered view that the aforesaid articles were capital assets and not personal effects as contended on behalf of the assessee appellant and as such could not be excluded while computing the gains.
For the foregoing reasons, we do not find any merit in this appeal which is hereby dismissed with costs.
V.P.S. Appeal dismissed.
[/INST]Section 2(4A) (ii), Income Tax 'Act, 1922, provides that 'personal effects, that is to say, movable property (including wearing apparel, jewellery, and Furniture) held for personal use by the assessee or any member of his family dependent on him, ' shall not be included in the 'capital assets ' of the assessee.
The context in which the expression 'personal effects ' occurs and the enumeration of articles like wearing apparel, jewellery and furniture, show that only those articles are to be included as personal effects which are intimately and commonly used by the assessee.
The dictionary meaning of the expression is also the same.
Therefore, 'personal effects ' mean those items which are normally, commonly or ordinarily intended for personal use and not items which are capable of being intended for personal use.
[425E 426F 427C D] Where the assessee was in possession of a large number of gold sovereigns, silver rupee coins and silver bars, which were used at the time of the puja of deities on special religious festivals or rituals, they could not be deemed to be 'effects ' meant for Personal use.
They are capital assets and not personal effects and so, when sold, could not be excluded while computing the capital gains liable to capital gains tax under section 12B, Income Tax Act, 1922.
[427F] G. section Poddar vs The Commissioner of Wealth Tax, Bombay City, II, I.L.R. , approved. ^
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<s>[INST] Summarize the judgementAppeal No. 731 of 1966.
779 Appeal by special leave from the judgment and order dated October 22, 1964 of the Madras High Court in Tax Case No. 197 of 1963 (Revision No. 126).
A.K. Sen and A.V. Rangam, for the appellant.
S.T. Desai and T.A. Ramachandran, for the respondent.
The Judgment of the Court was delivered by Grover, J.
This is an appeal by special leave in which the sole question for decision is whether the respondent company was liable to pay sales tax on an amount of Rs. 4,20,000 being the sale price of two arc furnaces which 'had been purchased in 1952 and sold in 1958.
The respondent company carried on business at 38, Mount ROad, Madras.
its main business 'being the.
manufacture and sale of machinery and parts of machinery. ,and accessories.
For manufacturing parts of the machinery, the company maintained a foundry and in 1952 it purchased two arc furnaces for a sum of Rs. 2,13,512.81 for the purpose of using the same in its foundry.
In the account books and the balance sheet of the company these furnaces were shown under the heading "workshop equipment".
According to the company.the furnaces were found to be unsuitable for the purpose for which they had been purchased and therefore they were disposed of in 1958 to a purchaser in Calcutta for a sum of Rs. 4,20,000.
For the assessment year 1958 59 the assessing authorities sought to include the amount of Rs. 4,20,000 in the turnover of the company although it was maintained by the company that the sale represented an isolated sale of its fixed capital assets.
The appeal before the Sales Tax Appellate Tribunal, Madras, also failed.
The view of the tribunal may be stated in its own words : ' "It is not denied that the appellant comes within the scope of the definition of "dealer".
It has to be seen whether the sale of the two arc ' furnaces had a reasonable connection with the normal course of business of the assessee.
The fact that the appellant could, not use them or that they are surplus machinery cannot take it out of the ambit of the appellant 's business of sales of machinery or part of machinery.
The necessity to dispose of unwanted machinery is ingrained in the very nature of business of sale of machinery which the assessee was carrying on and it had to effect sales of such surplus materials".
A revision petition was presented to the High Court of Madras under section 38 of the Madras General Sales Tax Act (Act 1 of 1959) read with section 9(3) of the Central Sale Tax Act, 1956 (Act LXXIV of 1956), hereinafter called the Madras Act and the Central Act 780 respectively. 'Before the High Court it was argued on behalf of the assessee that the furnaces were purchased for the purpose of being installed in the factory.
It was therefore to be used as capital asset and not as a part of the stock in trade.
At the time of purchase the assessee had no idea of selling the furnaces and there was no intention of making any profit.
The business which was carried on by the assessee was entirely different, namely, production of machinery and parts and the sale of the furnaces, when they were found to be unserviceable, was not made in the course of the normal business activity of the assessee.
The position taken up on behalf of the State was that when the assessee carried on the business of selling machinery of various kinds the sale of arc furnaces must be regarded as sale of machinery in the normal course of its business activity.
The learned Judges of the High Court referred to a large number of decided cases including the decision of this Court in State of Andhra Pradesh vs Abdul Bakshi & Bros.(1) Reliance was finally placed on the observations in Ambica Mills Ltd. vs State of Gujarat(2) in which it was observed inter alia that the machinery which had been disposed of had been obviously purchased and installed for use for production of textile goods.
The view taken in that decision was that a person could not be said to be carrying on business of selling assets of that business when sale of such assets had been made only because they had become useless and unserviceable by usual wear and tear or because of the necessity for substituting modern machinery.
In the present case the learned Madras Judges were of the opinion that it was impossible to hold that the sale of the arc furnaces was either ingrained in the business activity of the assessee or 'would constitute its normal business activity.
According to them the mere fact that the sale price exceeded the cost price of the arc furnace was not sufficient to establish that their sale was a business activity or that it was actuated by the profit motive.
It was consequently held that the turnover of the assessee was not liable to sales tax.
Mr. A.K. Sen for the appellant contends that the assessee being a dealer in heavy machinery and accessories thereof the sale of arc furnaces could not be said to be wholly different and unconnected with its usual business activity.
He has emphasised the fact that the assessee had admittedly made a profit of Rs. 2,07,000 from the aforesaid transaction and in addition collected sales tax from the Calcutta dealer.
He has called attention to the finding of the Appellate Assistant Commissioner of Commercial Taxes that the sale in the present ' case was not one of used asset and that whatever the intention at the time of the purchase might be, once the machinery was found not usable, the (1) 15 S.T.C. 644.
(2) 15 S.T.C. 367.
781 assessee "has got necessarily to get into a business venture of selling it and in point of fact sold it at good profit".
It is further urged that the arc furnaces became a part of stock or machinery for sale because the assessee was dealing in manufacture and sale of heavy machinery and it must be deemed to have put the furnaces into its stock in due course of business activity.
Mr. Sen has next pointed out that the respondent fell squarely within the definition of the word "dealer" as defined by section 2(b) of the Central Act.
In support of his submission Mr. Sen sought to rely on a decision of this Court in The State of Andhra Pradesh vs Abdul Bakshi & Bros.(1) In that case the respondents had purchased undressed hides and skins and tanning bark together with other material required in their tannery as they carried on the business of tanning hides and skins and of selling tanned skins in the town of Hyderabad.
For the assessment year 1954 55 the Sales Tax Officer sought to include in the total turnover a certain, amount representing the price paid for buying tanning bark required in their tannery.
The respondents submitted that the tanning bark had been bought for consumption in tannery and not for sate and they were accordingly not dealers in tanning bark.
Therefore the price paid for buying tanning bark was not liable to duty under the Hyderabad General Sales Tax Act.
The departmental authorifles as also the Sales Tax Appellate Tribunal rejected this contention but it was accepted by the High Court of Andhra Pradesh.
The High Court rejected the claim of the taxing authorities to tax the tanning bark on the ground that the purchaser was liable to pay tax only when he was carrying on business of buying and selling the commodity and not when he brought it for consumption in the process for manufacturing an article to be sold by him.
This view was reversed and it was observed as a follows: "A person to be a dealer must be engaged in the business of selling or buying or supplying goods.
The expression "business" though extensively used is a word of indefinite import.
In taxing statutes it is used in the sense of an occupation, or profession which occupies the time, attention and labour of a person, normally with the object of making profit.
To regard an activity as business there must be a course of dealings, either actually continued or contemplated to be continued with a profit motive, and not for sport or pleasure".
Mr. Sen has laid stress on what has been said further at pages 647 and 648 : "The Legislature has not made sale of the very article bought by a person a condition for treating him as a (1) 15 S.T.C. 644.
782 dealer: the definition merely requires that the buying of the commodity mentioned in rule 5(2) must be in the course of business, i.e. must be for sale or use with a view to make profit out of the integrated activity of buying and disposal.
The commodity may itself be converted into another saleable commodity, or it may be used as an ingredient or in aid of a manufacturing process leading to the production of such saleable commodity".
The facts in the decision of this Court under discussion were different and distinguishable from the present case.
The tanning bark: was actually consumed in the process of manufacturing another commodity and it was either used as an ingredient or for aiding the process of manufacture which cannot be said about the arc furnaces which were indisputably bought for being installed in the foundry as a part of the manufacturing plant.
The words "in aid of a manufacturing process" have to be read in the context in which they appear in the passage extracted above and cannot be taken to mean that even a part of manufacturing plant will become a salable commodity if it is found to be unusable or no longer required.
Such a view is untenable and cannot be regarded as sustainable in the light of the decision of this Court.
In State of Gujarat vs Raipur Manufacturing Co. Ltd.(1), the tribunal had held that where a cotton textile mill had managed to collect unserviceable article in the course of manufacture of cloth which were sold, sales of these articles must be regarded as a part of the business of the textile mill if the transactions of sale were large and frequent.
After referring to the definition and the expression "dealer" in section 2 (6) of the Bombay Sales Tax Act, 1953 and the other relevant provision of that Act as also the law laid down in the State of Andhra Pradesh vs Abdul Bakshi & Bros.(2) it was observed that by the use of the expression "profit motive" it was not intended that profit must, in fact, be earned nor did the expression cover a mere desire to make some monetary gain out of the transaction or even a series of transactions.
It predicates a motive which pervades the whole series of transactions effected by the person in the course of his activity.
Where a person came to own, in the course of his business of manufacturing or selling a commodity some other commodity which is not a byproduct or a subsidiary product of that business and he sold that commodity, cogent evidence that he had the intention to carry on the business of selling that commodity would be required.
It was further observed that where a person in the course of carrying on the business was required to dispose of what might be called his fixed assets or his discarded goods acquired in the course of business, an inference that he desired to carry on the (1) 19 S.T.C. 1.
(2) 15 S.T.C. 644.
783 business of selling his fixed assets or discarded goods would not ordinarily arise.
In the State of Gujarat vs Vivekananda Mills(1), the assessee was carrying on the business of manufacturing cotton fabrics.
It had agreed to purchase under user 's import licence 500 bales of Californian cotton in January 1953.
Believing that the shipment would arrive after six months the assessee made arrangement to purchase 300 bales of similar cotton to meet its immediate requirements.
The consignment of Californian cotton arrived unexpectedly in April 1953.
A large sum of money belonging to the assessee was blocked up and with the sanction of the authorities the assessee sold 411 bales of this cotton to other mills.
It was held that in selling the cotton with a view to avoid locking up of funds, it could not be inferred that.
the assessee had sold the goods with the intention to carry on the business of selling cotton and the sales were not liable to tax.
It was clear from the supplemental statement of the case which had been submitted that though the assessee had been selling cotton from the year 1946 onwards except for three intervening years the sales were in respect of goods purchased for the business of manufacturing cotton cloth and the sales had been effected either because the cotton was surplus or the assessee had to accommodate its sister concern or with the view that the finances were not blocked up by detaining cotton which the assessee did not need for its business.
The facts and circumstances which have been established in the present case are stronger than those in the previous decisions of this Court.
The furnaces were admittedly imported for the purpose of being installed as a part of the plant in the foundry of the assessee.
There is no material whatsoever to show that there was any intention at the time when the furnaces were purchased of selling them at a profit.
According to Mr. Sen himself the assessee decided to sell the furnaces because it was discovered that they were too big to be installed in the manufacturing plant.
The case of the assessee throughout was and no evidence or material to the contrary existed that the furnaces had been shown in the books of the assessee under the classification "workshop equipment".
The same entries existed in the balance sheet.
Although the assessee was dealing in the sale of heavy machinery and machinery part it was nowhere proved that furnaces were ever manufactured or sold by it or were part of its business or ingrained therein.
The arc furnaces were either fixed assets or discarded goods which had been found to be unserviceable or unsuitable.
The assessee could therefore hardly be said to be a dealer within the definition given in section 2(b) of the Central Act which is (1) 19 S.T.C. 103.
784 "dealer" means any.
person who carries on the business of selling goods, and includes a Government which carries on such business.
" This definition has to be read in the light of the principles which have been laid down by this Court in the cases referred to above.
It must therefore be held that the High Court rightly came to the 'conclusion that the sale proceeds of the furnaces could not be included in the turnover of the assessee for the purpose of determining the liability of the assessee to sales tax.
The appeal fails and is dismissed with costs.
Appeal dismissed.
[/INST]The appellant Bank, agreed to finance the contracts undertaken by M. and to advance monies against his bills for supplies under the contracts.
For the purpose of carrying out this arrangement M executed an irrevocable power of attorney in favour of the appellant authorising the latter to receive all monies due or to become due to M in respect of pending or future contracts.
M made a bill, endorsed it in favour of the appellant for collection, and handed it over to the appellant for collection.
Before the appellant received the payment, the amount under the bill was attached by the first respondent in execution of a money decree obtained by him against M.
The appellant filed a suit for a declaration that he was the assignee of the bill and the first respondent had no right to attach it.
The suit was decreed, but in appeal, the High Court dismissed the suit.
In appeal, on certificate, this Court: HELD: The appeal must be allowed.
The power of attorney coupled with the endorsement on the bill was a clear engagement by M to pay the appellant Bank out of the monies receivable under the bill and amounted to an equitable assignment of the fund by way of security.
The obvious intention of the parties was to provide protection for the lender and to secure repayment of the loans.
With that object in view the lender was authorised to receive payment of the loans.
As the lender had an interest in the funds the power of attorney was expressed to be irrevocable.
[597 D, H] There can be a valid equitable assignment of future.
debts.
A pay order is revocable mandate.
It gives the payee no interest in the fund.
An assignment creates an interest in the fund and is not revocable.
Read in the light of the power of attorney the endorsement on the bill created an interest in a specific fund and was irrevocable.
There was thus a sufficient equitable assignment of a specific fund in favour of the appellant Bank.
[598 H; 599 B] Loonkaran Sethiya vs State Bank of Jaipur, ; followed.
Palmer vs Carey ; at 706; Tailby vs Official Receiver, , applied, Jagabhai Lallubhai vs Rustamji Nauserwanji, Bom.
311, referred to.
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<s>[INST] Summarize the judgementN: Criminal Appeal No. 234 of 1976.
Appeal by special leave from the judgment and order dated the 5th December, 1975 of the Andhra Pradesh High Court in Criminal Revision Case No. 816 of 1974 (Criminal Revision Petition No. 732 of 1974).
AND Criminal Appeal Nos. 315 and 316 of 1976.
Appeals by special leave from the judgment and order dated the 12th April, 1976 of the Andhra Pradesh High Court in Criminal Appeal Nos.
31 O & 311 of 1975.
P. Govindan Nair and A. Subba Rao for the Appellant in Crl.
A. No. 234/76.
M. N. Phadke, and B. Kanta Rao for the Appellant in Crl.
A. Nos.315 & 316 of 1976.
G. N. Rao for the Respondent in all the appeals.
The Judgment of the Court was delivered by CHINNAPPA REDDY, J.
What is the effect of the declaration by the Supreme Court that the appointment of an Additional Sessions Judge was invalid on judgments pronounced by the Judge prior to such declaration is the question for consideration in these criminal appeals.
The question may seem to be short and simple but it cannot be answered without enquiry and research.
An answer, on first impression, may be 'a judgment by a judge who is not a judge is no judgment ' ' a simple, sophisticated answer.
But it appears 477 second thoughts are necessary.
What is to happen to titles settled, declarations made, rules issued, injunctions and decrees granted and even executed ? What is to happen to sentences imposed ? Are convicted offenders to be set at liberty and to be tried again '! Are acquitted accused to be arrested and tried again ? Public Policy is clearly involved.
And, in the tangled web of human affairs, law must recognise some consequences as relevant, not on grounds of pure logic but for reasons of practical necessity.
To clear the confusion and settle the chaos, judges have invented the de facto doctrine, which we shall presently examine.
de facto doctrine is thus a doctrine of necessity and public policy.
A. No. 234 of 1976 arises out of a proceeding under S.6A of the Essential Commodities Act, by which the District Revenue officer West Godavari, Andhra Pradesh, ordered the confiscation of Rs. 203.74 kgs.
Of paddy and Rs. 302.25 kgs. of rice.
The appellant, Gokaraju Rangaraju, preferred an appeal under section 6C of the Essential Commodities Act to the Court of Session, West Godavari.
The appeal was heard by Shri G. Anjappa, Additional Sessions Judge and was rejected.
The appellant preferred a Criminal Revision Petition before the High Court of Andhra Pradesh.
Criminal Appeal Nos. 315 and 316 of 1976 arise out of Sessions Case No. 12 of 1975 in the Court of Session, Guntur Division ' The case was heard and the judgment was pronounced by Shri Raman Raj Saxena, II Additional Sessions Judge, Guntur.
The convicted accused preferred appeals to the High Court of Andhra Pradesh.
By the time the Criminal Revision case filed by Gokaraju Rangaraju and the Criminal Appeals filed by the appellants in Crl.
Appeals Nos. 315 and 316 of 1976 came up for hearing before the High Court of Andhra Pradesh, this Court by its judgment dated 2nd September 1975 quashed the appointment of Shri G. Anjappa, Shri Raman Raj Saxena and two others as District Judges Grade II, on the ground that their appointment was in violation of the provisions of article 233 of the Constitution.
Thereupon a point was raised in the Criminal Revision case as well as in the Criminal Appeals that the judgments rendered by Shri Anjappa and Shri Raman Raj Saxena were void and required to be set aside.
The High Court overruled the point raised by the present appellants and held that though the appointment of Shri Anjappa and Shri Raman Raj Saxena as District Judges Gr.
II was invalid, yet they were not mere usurpers but had held office under lawful H authority and therefore, the judgments rendered by them were valid and could not be questioned in collateral proceedings.
The present 478 appeals have been preferred by special leave granted by this Court.
In Criminal Appeals Nos. 315 and 316 of 1976, however, the special leave granted by this Court was limited by the order granting leave to the question whether the judgments rendered by Sessions Judges were void where their appointment as Sessions Judges was subsequently declared illegal.
Shri Govindan Nayar learned counsel for the appellants in Crl.
A. No. 234 of 1976 and Shri Phadke, learned counsel for the appellants in Crl.
Appeals Nos. 315 & 316 of 1976, argued before us that the judgments rendered by Shri Anjappa and Shri Raman Raj Saxena were void as they were never duly appointed as District Judges.
It was urged that there was no need for them to question the appointment of Shri Anjappa or Shri Kaman Raj Saxena as their appointment had already been quashed by the Supreme Court.
It was said that the de facto doctrine was based on public policy and necessity and that in the present case neither public policy or necessity required that the judgments should not be set aside.
No inconvenience would be caused by ordering a rehearing of the appeals or a retrial of the accused.
It was also urged that the attack, if any, on the appointment of Shri Anjappa and Shri Raman Raj was not collateral attack.
It was submitted that a question of jurisdiction could be raised at any stage in a criminal case and a trial by a Sessions Judge who was appointed in violation of article 233 was not a trial by a Sessions Judge duly appointed to exercise jurisdiction in a Court of Session under section 9 of the Code of Criminal Procedure.
It was argued that the de facto doctrine was not an absolute doctrine.
It was subject to certain limitations.
One such limitation was that imposed by article 233 of the Constitution.
A person appointed as a District Judge contrary to the provisions of article 233 was no judge and his judgments were no judgments.
It was submitted that the 20th Amendment of the Constitution would be a surplusage if the de facto doctrine was to be applied to judgments rendered by persons appointed as District Judges contrary to the provisions of article 233 of the Constitution.
It was also suggested that the Fundamental Right of the appellants under article 21 of the Constitution was violated as their liberty was being taken away otherwise than in accordance with the procedure established by law.
We are unable to agree with the submissions of the learned counsel for the appellants.
The doctrine is now well established that "the acts of the officers de facto performed by them within the scope of their assumed official authority, in the interest of the public 479 or third persons and not for their own benefit, are generally as valid and binding, as if they were the acts of officers de jure" (Pulin Behari vs King Emperor).
As one of us had occasion to point out earlier "the doctrine is founded on good sense, sound policy and practical expedience.
It is aimed at the prevention of public and private mischief and the protection of public and private interest.
It avoids endless confusion and needless chaos.
An illegal appointment may be set aside and a proper appointment may be made, but the acts of those who hold office de facto are not so easily undone and may have lasting repercussions and confusing sequels if attempted to be undone.
Hence the de facto doctrine" (vide Immedisetti Ramkriashnaiah Sons vs State of Andhra Pradesh and Anr.
In Pulin Behari vs King Emperor, (Supra) Sir Ashutosh Mukerjee J. noticed that in England the de facto doctrine was recognised from the earliest times.
The first of the reported cases where the doctrine received judicial recognition was the case of Abbe of Fountaine decided in 1431.
Sir Ashutosh Mookerjee noticed that even by 1431 the de facto doctrine appeared to be quite well known and, after 1431, the doctrine was again and again reiterated by English Judges.
In Milward vs Thatcher, Buller J. said: "The question whether the judges below be properly judges or not.
can never be determined, it is sufficient if they be judges de facto.
Suppose a person were even criminally convicted in a Court of Record, and the Recorder of such Court were not duly elected, the conviction would still be good in law, he being the judge de facto".
In Seaddling vs Lorant, the question arose whether a rate for the relief of the poor was rendered invalid by the circumstance that some of the vestry men who made it were vestry men de facto and not de jure.
The Lord Chancellor observed as follows: With regard to the competency of the vestry men, who were vestry men de facto, but not vestry men de jure, to make the rate, your Lordships will see at once the impor 480 tance of that objection, when you consider how many public officers and persons there are who were charged with very important duties, and whose title to the office on the part of the public cannot be ascertained at the time.
You will at once see to what it would lead if the validity of their acts, when in such office, depended upon the propriety of their election.
It might tend, if doubts were cast upon them, to consequences of the most destructive kind.
It would create uncertainty with respect to the obedience to public officers and it might also lead to persons, instead of resorting to ordinary legal remedies to set right anything done by the officers, taking the law into their own hands".
Some interesting observations were made by the Court of Appeal in England in re James (An Insolvent).
Though the learned Judges constituting the Court of Appeal differed on the principal question that arose before them namely whether "the High Court of Rhodesia" was a British Court, there did not appear to be any difference of opinion on the question of the effect of the invalidity of the appointment of a judge on the judgments pronounced by him.
Lord Denning M. R., characteristically, said: "He sits in the seat of a judge.
He wears the robes of a judge.
He holds the office of a judge.
May be he was not validly appointed.
But, still, he holds the office.
It is the office that matters, not the incumbent . . so long as the man holds the office and exercises it duly and in accordance with law, his orders are not a nullity.
If they are erroneous they may be upset on appeal.
But if not erroneous they should be upheld".
Lord Denning then proceeded to refer to the State of Connecticut vs Carroll decided by the Supreme Court of Connecticut, Re Aldridge decided by the Court of Appeal in New Zealand and Norton vs Shelby County decided by the United States Supreme Court.
Observations made in the last case were extracted and they were: "Where an office exists under the law, it matters not how the appointment of the incumbent is made, so far as the validity of his acts are concerned.
It is enough that he is clothed with the insignia of the office, and exercises its powers and functions.
The official acts of such persons are recognised as valid on grounds of public policy, and for the protection of those having official business to transact." 481 Scarman LJ who differed from Lord Denning on the question whether the High Court of Rhodesia was a British Court appeared to approve the view of Lord Denning M. R. in regard to the de facto doctrine.
He said: "He (Lord Denning) invokes the doctrine of recognition of the de facto judge, and the doctrine of implied mandate or necessity.
I agree with much of the thinking that lies behind his judgment.
I do think that in an appropriate case our courts will recognise the validity of judicial acts, even though they be the acts of a judge not lawfully appointed or derive their authority from an unlawful government.
But it is a fallacy to conclude that, because in certain circumstances our Courts would recognise as valid the judicial acts of an unlawful court or a de facto judge, therefore, the Court thus recognised is a British Court".
The de facto doctrine has received judicial recognition in the United States of America also.
In State vs Gardner (Cases on Constitutional Law by Mc.
Gonvey and Howard Third Edition 102) the question arose whether the offer of a bribe to a City Commissioner whose appointment was unconstitutional was an offence.
Broadbury, J. said.
"We think that principle of public policy, declared by the English Courts three centuries ago, which gave validity to the official acts of persons who intruded themselves into an office to which they had not been legally appointed, is as applicable to the conditions now presented as they were to the conditions that then confronted the English Judiciary.
We are not required to find a name by which officers are to be known, who have acted under a statute that has subsequently been declared unconstitutional, though we think such officers might aptly be called de facto officers.
" In Norton vs Shelby Country, Field, J., observed as follows: "The doctrine which gives validity to acts of officers de facto whatever defects there may be in the legality of their appointment or election is founded upon considerations of policy and necessity, for the protection of the pub 482 lic and individuals whose interests may be affected thereby.
Offices are created for the benefit of the public, and private parties are not permitted to inquire into the title of persons clothed with the evidence of such offices and in apparent possession of their powers and functions.
For the good order and peace of society their authority is to be respected and obeyed until in some regular mode prescribed by law their title is investigated and determined.
It is manifest that endless confusion would result, if in every proceeding before such officers their title could be called in question.
" In Cooley 's 'Constitutional Limitations ', Eighth Edition, Volume II p. 1 355, it is said, "An officer de facto is one who by some colour or right is in possession of an office and for the time being performs its duties with public acquiescence, though having no right in fact.
His colour of right may come from an election or appointment made by some officer or body having colourable but no actual right to make it; or made in such disregard of legal requirements as to be ineffectual in law; or made to fill the place of an officer illegally re moved or made in favour of a party not having the legal qualifications; or it may come from public acquiescence in the qualifications; or it may come from public acquiescence in the officer holding without performing the precedent conditions, or holding over under claim of right after his legal right has been terminated; or possibly from public acquiescence alone when accompanied by such circumstances of official reputation as are calculated to induce people, without inquiry, to submit to or invoke official action on the supposition that the person claiming the office is what he assumes to be.
An intruder is one who attempts to perform the duties of an office without authority of law, and without the support of public acquiescence.
No one is under obligation to recognise or respect the acts of an intruder, and for all legal purposes they are absolutely void.
But for the sake of order and regularity, and to prevent confusion in the conduct of public business and in security of private rights, the acts of officers de facto are not suffered to be questioned because of the want of legal authority except by some direct proceeding instituted for 483 the purpose by the State or by some one claiming the office de jure, or except when the person himself attempts to build up some right, or claim some privilege or emolument, by reason of being the officer which he claims to be.
In all other cases the acts of an officer de facto are as valid and effectual, while he is suffered to retain the office, as though he were an officer by right, and the same legal consequences will flow from them for the protection of the public and of third parties.
There is an important principle, which finds concise expression in the legal maxim that the acts of officers de facto cannot be questioned collaterally.
" In Black on judgments it is said: "A person may be entitled to his designation although he is not a true and rightful incumbent of the office, yet he is no mere usurper but holds it under colour of lawful authority.
And there can be no question that judgments rendered and other acts performed by such a person who is ineligible to a judgeship but who has nevertheless been duly appointed, and who exercises the power and duties of the office is a de facto judge, and his acts are valid until he is properly removed.
" The de facto doctrine has been recognised by Indian Courts also.
In Pulin Behari vs King Emperor, Sir Ashutosh Mookerjee, J after tracing the history of the doctrine in England observed as follows: "The substance of the matter is that the de facto doctrine was introduced into the law as a matter of policy and necessity, to protect the interest of the public and the individual where these interests were involved in the official acts of persons exercising the duties of an office without being lawful officers.
The doctrine in fact is necessary to maintain the supremacy of the law and to preserve peace and order in the community at large.
Indeed, if any individual or body of individuals were permitted, at his or their pleasure, to collaterally challenge the authority of and to refuse obedience to the Government of the State and the numerous functionaries through whom it exercised its various 484 powers on the ground of irregular existence or defective title, insubordination and disorder of the worst kind would be encouraged.
For the good order and peace of society, their authority must be upheld until in some regular mode their title is directly investigated and determined.
" In P. section Menon vs State of Kerala and Ors. a Full Bench of the Kerala High Court consisting of P. Govindan Nair, K.K. Mathew and T.S. Krishnamoorthy Iyer, JJ said about the de facto doctrine: "This doctrine was engrafted as a matter of policy and necessity to protect the interest of the public and individual involved in the official acts of persons exercising the duty of an officer without actually being one in strict point of law.
But although these officers are not officers de jure they are by virtue of the particular circumstances, officers, in fact, whose acts, public policy requires should be considered valid".
In the judgment under appeal Kuppuswami and Muktadar, JJ observed: "Logically speaking if a person who has no authority to do so functions as a judge and disposes of a case the judgment rendered by him ought to be considered as void and illegal, but in view of the considerable inconvenience which would be caused to the public in holding as void judgments rendered by judges and other public officers whose title to the office may be found to be defective at a later date.
Courts in a number of countries have, from ancient times evolved a principle of law that under certain conditions, the acts of a judge or officer not legally competent may acquire validity".
A judge, de facto, therefore, is one who is not a mere intruder or usurper but one who holds office, under colour of lawful authority, though his appointment is defective and may later be found to be defective.
Whatever be the defect of his title to the office, judgments pronounced by him and acts done by him when he was clothed with the powers and functions of the office, albeit unlawfully, have the same efficacy as judgments pronounced and acts done by a Judge de 485 jure.
Such is the de facto doctrine, born of necessity and public policy to prevent needless confusion and endless mischief.
There is yet another rule also based on public policy.
The defective appointment of a de facto judge may be questioned directly in a proceeding to which he be a party but it cannot be permitted to be questioned in a litigation between two private litigants, a litigation which is of no concern or consequence to the judge except as a judge.
Two litigants litigating their private titles cannot be permitted to bring in issue and litigate upon the title of a judge to his office.
Otherwise so soon as a judge pronounces a judgment a litigation may be commenced for a declaration that the judgment is void because the judge is no judge.
A judge 's title to his office cannot be brought into jeopardy in that fashion.
Hence the rule against collateral attack on validity of judicial appointments.
To question a judge 's appointment in an appeal against the judgment is, of course, such a collateral attack.
We do not agree with the submission of the learned counsel that the de facto doctrine is subject to the limitation that the defect in the title of the judge to the office should not be one traceable to the violation of a constitutional provision.
The contravention of a constitutional provision may invalidate an appointment but we are not concerned with that.
We are concerned with the effect of the invalidation upon the acts done by the judge whose appointment has been invalidated.
The de facto doctrine saves such Acts.
The de facto doctrine is not a stranger to the Constitution or to the Parliament and the Legislatures of the States.
article 71(2) of the Constitution provides that acts done by the President or Vice President of India in the exercise and performance of the powers and duties of his office shall not be invalidated by reason of the election of a person as President or Vice President being declared void.
So also Sec.
107(2) of the Representation of the People Act 1951 (Act 43 of 1951) provides that acts and proceedings in which a person has participated as a Member of Parliament or a Member of the Legislature of a State shall not be invalidated by reason of the election of such person being declared to be void.
There are innumerable other Parliamentary and State Legislative enactments which are replete with such provisions.
The Twentieth Amendment of the Constitution is an instance where the de facto doctrine was applied by the Constituent body to remove any suspicion or taint of illegality, or invalidity that may be argued to have attached itself to judgment, decrees sentences or orders passed or made by certain District Judges appointed before 1966, otherwise than in accordance with the provision of article 233 and Art 235 of 486 the Constitution.
The Twentieth Amendment was the consequence of the decision of the Supreme Court in Chandra Mohan vs State of Uttar Pradesh and Ors., that appointments of District Judges made otherwise than in accordance with the provisions of articles 233 and 235 were invalid.
As such appointments had been made in many States, in order to preempt mushroom litigation springing up all over the country, it was apparently thought desirable that the precise position should be stated by the Constituent body by amending the Constitution.
Shri Phadke, learned counsel for the appellants, argued that the constituent body could not be imputed with the intention of making superfluous amendments to the Constitution.
Shri Phadke invited us to say that it was a necessary inference from the Twentieth Amendment of the Constitution that, but for the amendment, the judgments, decrees etc.
of the District Judges appointed otherwise than in accordance with the provisions of article 233 would be void.
We do not think that the inference suggested by Shri Phadke is a necessary inference.
It is true that as a general rule the Parliament may be presumed not to make superfluous legislation.
The presumption is not a strong presumption and statutes are full of provisions introduced because abundans cautela non nocet (there is no harm in being cautious).
When judicial pronouncements have already declared the law on the subject, the statutory reiteration of the law with reference to the particular cases does not lead to the necessary inference that the law declared by the judicial pronouncements was not thought to apply to the particular cases but may also lead to the inference that the statute making body was mindful of the real state of the law but was acting under the influence of excessive caution and so to silence the voices of doubting Thomases by declaring the law declared by judicial pronouncements to be applicable also to the particular cases.
In Chandra Mohan ' case (Supra) this Court held that appointments of District Judges made otherwise than in accordance with article 233 of the Constitution were invalid.
Such appointments had been made in Uttar Pradesh and a few other States.
Doubts had been cast upon the validity of the judgments, decrees etc.
pronounced by those District Judges and large litigation had cropped up.
It was to clear those doubts and not to alter the law that the Twentieth Amendment of the Constitution was made.
This is clear from the statement of objects and reasons appended to the Bill which was passed as Constitution (20th Amendment) Act.
The statement said: 487 "Appointments of District Judges in Uttar Pradesh and a few other States have been rendered invalid and illegal by a recent judgment of the Supreme Court on the ground that such appointments were not made in accordance with the provisions of article 233 of the Constitution.
As a result of these judgments, a serious situation has arisen because doubt has been thrown on the validity of the judgments, decrees, orders and sentences passed or made by these District Judges and a number of Writ Petitions and other cases have already been filed challenging their validity.
The functioning of the District Courts in Uttar Pradesh has practically come to a stand still.
It is, therefore, urgently necessary to validate the judgments, decrees, orders and sentences passed or made heretofore by all such District Judges in those States. " In our view, the de facto doctrine furnishes an answer to the submissions of Shri Phadke based on Sec.
9 Criminal Procedure Code and article 21 of the Constitution.
The judges who rejected the appeal in one case and convicted the accused in the other case were not mere usurpers or intruders but were persons who discharged the functions and duties of judges under colour of lawful authority.
We are concerned with the office that the judges purported to hold.
We are not concerned with the particular incumbents of the office.
So long as the office was validly created, it matters not that the incumbent was not validly appointed.
A person appointed as a Sessions Judge, Additional Sessions Judge or Assistant Sessions Judge, would be exercising jurisdiction in the Court of Session, and his judgments and orders would be those of the Court of Session.
They would continue to be valid as the judgments and orders, of the Court of Session, notwithstanding that his appointment to such Court might be declared invalid.
On that account alone, it can never be said that the procedure prescribed by law has not been followed.
It would be a different matter if the constitution of the Court itself is under challenge.
We are not concerned with such situation in the instant cases.
We, therefore, find no force in any of the submissions of the learned counsel.
Shri Govindan Nair attempted to argue that the confiscation was not justified on the merits.
We find no reason to interfere with 488 the concurrent findings of fact arrived at by the lower Courts.
Shri Phadke requested us to widen the scope of the appeals and to permit him to canvas the correctness of the convictions and sentences also.
We declined to do so.
All the appeals are dismissed.
P.B.R Appeals dismissed.
[/INST]The selection for the posts of Tehsildars in the State of U.P. was to be made by promotion from amongst various sources such as Naib Tehsildars, Peshkars of the Kumaon Division, Kanungos, Kanungo Inspectors or Instructors and Sadar Kanungos as per the procedure laid down in rules known as Uttar Pradesh Adheenasth Rajaswa Karyakari (Tehsildar) Sewa Niyamavali, 1966.
The procedure for selection is regulated by Rule 9 and under sub section (6) of this Rule a select list will be drawn in order of merit separately for substantive vacancies and temporary vacancies and officials will be offered officiating or temporary vacancies in the order in which their names have been arranged in the "select list" as and when the vacancies occur during the course of the year.
This "select list" will hold good only for one year or until such time a review is made at the following selections.
Subsequently, the State Government made the Uttar Pradesh Promotion by Selection in Consultation with Public Service Commission (Procedure) Rules, 1970, which governed various services, to be more specific 29 Uttar Pradesh services including the services of Tehsildars.
The purpose of these rules was to standardise the procedure for promotion and make it uniform in respect of such services.
The procedure laid down in the 1970 Rules for promotion as Tehsildars was not substantially different from that laid down in the Tehsildars Rules, 1966.
By a Notification No. 4214/196.
Appointment, 3 dated 4th July, 1972 two new rules were introduced, namely, Rules 7A and 7B, in the 1970 Rules.
As per these newly added rules candidates in the Select List made under the 1966 Rules were to be appointed against substantive vacancies in preference to any candidates selected in accordance with the provisions of the 1970 Rules and unless the candidates in the list were exhausted, other eligible candidates were not to be considered for promotion so that their chances of promotion would be deferred to an undated future.
461 The respondent who started his service as Kanungo in 1949, was promoted as Naib Tehsildar and in 1962 he was confirmed as such.
In 1963, he was appointed as Tehsildar in an officiating capacity.
In accordance with the ]966 Rules the Uttar Pradesh, Public Service Commission selected 148 persons for substantive appointment as Tehsildars and their names were shown in a list known as List A.
The Commission also selected 300 other persons for temporary or officiating appointment as Tehsildars during the coming years and their names figured in what was called List B.
The respondent was, however, not selected and his name could not be included in either of the aforesaid two lists because he had an adverse entry forming part of the remarks recorded on his work and conduct and had also been shown down below at serial 557 in the seniority list of Naib Tehsildars in the year 1966.
Though the adverse entry was expunged in the year 1969 and his seniority was also re fixed at serial number 216 on 6th October, 1970, since there was no selection after 1966, his name could not be included in either of the two lists even thereafter.
The respondent challenged the vires of Rules 7A and 7B by filing a petition under Article 226 of the Constitution in the High Court of Allahabad.
That petition was allowed in part and Rules 7A and 7B were declared ultra vires Articles 14 and 1 6 of the Constitution, in the impugned judgment.
Hence the appeal by special leave by the State.
Dismissing the appeal, the Court, ^ HELD: 1:1.
Rules 7A and 7B of the Uttar Pradesh Promotion by Selection in Consultation with Public Service Commission (Procedure) Rules, 1970, are ultra vires Articles 14 and 16 of the Constitution.
[466 E, 473 A B] 1:2.
The grievance of the respondent, namely, that he had a fundamental right of being considered for promotion when others similarly situated were so and that if he was not considered in a situation like that, he was discriminated against and was denied equality of opportunity is not only factually correct but well founded.
[467 B C] 2:1.
It is true that the rules regulating the conditions of service are within the executive power of the State or its legislative power under the proviso to Articles 309 of the Constitution, but even so, such rules have to be reasonable, fair and not grossly unjust if they are to survive the test of Articles 14 and 16 of the Constitution.
A rule, which contemplates that unless the list of 300 persons is exhausted no other person can be selected obviously, is unjust and it deprives other persons in the same situation of the opportunity of being considered for promotion.
[470 F H] 2:2.
The classification in this case cannot be said to be a reasonable classification based on the intelligible differentia having a nexus to the object sought to be achieved.
The only basis of grouping the 300 persons in one category is that they were included in the select list of 1966 and that they were officiating.
The respondent, in the instant case, could not be selected in the selection of 1966 on account of an adverse entry which was subsequently expunged.
His position in the seniority list was also corrected but because no selection took place after 1966.
The respondent could not be included in the list for no fault of his.
If there held 462 been a section and the list had been revised every year, as is the requirement of the rules, the respondent, and like him many others, would have been included in the list.
For example, some candidates who had not completed seven years could not be eligible for promotion and could not be included in the Select List of 1966 but after a lapse of time they became eligible and they might have been selected if selection had taken place.
But, the door for promotion had been foreclosed for the respondent and many others like him by Rules 7A and 7B for no fault of theirs.
The objection taken by the Public Service Commission and the letter of the Secretary or the Board of Revenue addressed to the Government indicating that it would take about 24 years to absorb 300 persons included in List B and, therefore, recommending that the list may not be enforced would point out unmistakably that the selection was unnecessarily postponed only to accommodate the 300 persons included in the Select List of 1966.
There is no rational basis for such a departure from the ordinary operation of the 1970 Rules which envisaged the preparation of a new list every year and for singing out one particular list for according preferential treatment to others in the similar situations [469 B F, 470 A C] State of Jammu and Kashmir vs Triloki Nath Khosa and others ; ; Ramesh Prasad Singh vs State of Bihar and others; , and Ganga Ram and others vs Union of India and others, , applied.
Reserve Bank of India vs C.S. Rajappan Nair and others, I.L.R. 1977 Kerala 398, approved.
In a case where the vires of certain rules were challenged as being violative of the Articles 14 and 16 of the Constitution, only State is a necessary party.
The other persons likely to be affected by the declaration of the rules as ultra vires are only proper parties.
[471 E F] 4.
A party cannot be permitted to take up a new plea in the appeal for the first time before this Court which was not taken before the High Court in writ petition.
[472 E F] General Manager, South Central Railway, Secundrabad an Anr.
vs A.V.R. Siddhanti and Ors., ; , followed.
B. Gopalaiah vs Government of Andhra Pradesh, A.I.R. and J.S. Sachdev and Ors.
vs Reserve Bank of India and Anr., I.L.R. (1973) II Delhi 392, approved.
</s>
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<s>[INST] Summarize the judgementAppeal No. 498 of 1966.
Appeal by special leave from the order dated July 10, 1964 of the Industrial Tribunal Delhi in O.P. No. 79 of 1962.
Bishan Narain, P.C. Bhartari, J.B. Dadachanji and C.L. Chopra, for the appellant.
H.R. Gokhale, Janardan Sharma and T.R. Bhasin, for the respondent.
The Judgment of the Court was delivered by Bhargava, J.
The Central Bank of India Ltd., New Delhi has flied this appeal, by special leave, challenging an order of the Industrial Tribunal, Delhi, refusing to accord approval to an order of dismissal of the respondent, Prakash Chand Jain, under section 33(2)(b) of the (hereinafter referred to as "the Act").
A charge sheet, containing two charges was served on the respondent on 21st July, 1961 in order to initiate formally an enquiry for the purpose of taking disciplinary ,action against him.
The two charges flamed were as follows : "1.
On 14 1 1960, a sum of Rs. 30,400/ was paid to Mr. P.C. Jain by the Assistant Cashier Mr. Nand Kishore out of the cheque No. 43004 dated 14 1 60 drawn by Messrs Mool Chand Hari Kishan for Rs. 63,000/ .
Taking this money Mr. P.C. Jain on the same day i.e. 14 1 1960 left for Muzaffarnagar in company of some persons to retire the following bills drawn by M/s. Gupta Iron Industries :Naya Bazar LBC 3 drawn on Puran Chand .
Rs. 5,100/ Naya Bazar LBC 5 drawn on Hiralal Shyam.
Rs. 4,950/ Thus it was within the knowledge of Shri P.C. Jain that the bills of Messrs Gupta Iron Industries were drawn on bogus firms and that those were retired by drawer 's representative who accompanies Mr. P.C. Jain to Muzaffarnagar.
Instead of reporting, such serious matters to higher authorities, Mr. P.C. Jain claims that he had never visited Muzaffarnagar.
Mr. P.C. Jain encashed on 25 2:60 cheque No. 400506 for Rs. 46,000/ from the United Bank of India Ltd., Chandni Chowk and brought cash to Naya Bazar after 11.30 a.m.i.e.
after the time for presenting of the clearing cheques at the State Bank of India.
To cover the misdeeds of Mr. Shiv Kumar Sharma the then 737 Sub Agent of Naya Bazar Office, Mr. P.C. Jain Treasurer 's representative stated in his explanation dated 16 2 1961 that cash was received at the office at about 11 a.m.i.e.
before the clearing time.
The above acts of Mr. Jain were prejudicial to the interests of the Bank as defined in ' paragraph 521 4(J) of the Sastry Award and amount to gross misconduct.
The inquiry will be held on 12 8 1961 at Chandni Chowk Branch at 10.30 a.m. by Mr. P.B. Tipnis, Chief Agent, Agra." Subsequently, an enquiry was held by Mr. Tipnis, one of the senior Officers of the Bank.
The Enquiry Officer, after recording evidence tendered on behalf of the Bank as well as the evidence given by the respondent, recorded his findings holding that both the charges were proved against the respondent and, basis, came to the view that the actions of the respondent were prejudicial to the interests of the Bank and amounted to gross misconduct, so that he proposed to award the punishment of dismissal from the Bank 's service.
The respondent was given a week 's time to show cause against this proposed punishment and, thereafter, an order was made dismissing the respondent with effect from 18th July, 1962 and a month 's wages were paid to him in accordance with the provision contained in section 33(2)(b) of the Act.
Since an industrial dispute was pending before the Industrial Tribunal, Delhi, an application under section 33(2)(b) of the Act was made requesting the Tribunal to accord approval to this order of dismissal.
The Tribunal, when dealing with this application, held that the enquiry, which had been held by the Enquiry Officer, was fair and was not vitiated by any irregularity or unfairness, but refused to accord approval on the ground that the findings accorded by the Enquiry Officer were perverse and were not based on evidence inasmuch as most of the findings were the result of mere conjecture on behalf of the Enquiry Officer.
It is this order of the Tribunal that has been challenged in this appeal.
Learned counsel appearing for the appellant Bank urged that the Tribunal, in refusing to accord approval and in disregarding the findings recorded by 'the Enquiry Officer, exceeded its jurisdiction conferred by section 3 '3(2) (b) of the Act.
It was further ' urged that, when the Tribunal found that.
the enquiry was fair, the Tribunal had no jurisdiction to go into the question whether the findings of fact recorded by the Enquiry Officer were correct and could not sit in judgment over those findings like a Court of Appeal.
The Tribunal should have accepted those findings and only examined whether a prima facie case was made out for ' according an approval.
If the Tribunal had proceeded in accord 738 ance with this principle, there.
would have been no justification for the Tribunal to refuse to approve the order of dismissal.
The jurisdiction and functions of a Tribunal under section 33(2) (b) of the Act were 'explained by I this Court in Bangalore Woolien, Cotton and Silk Mills Company Ltd. vs Dasappa (B) (Binny Mills Labour Union) and Others(1), where it was held : "The settled position in law therefore is that permission should be refused if the tribunal is satisfied that the management 's action is not bona fide or that the principles of natural justice have been violated or that the materials on the basis of which the management came to a certain conclusion could not justify any reasonable person in coming to such a conclusion.
In most cases it will happen where the materials are such that no reasonable person could have come to the conclusion as regards the workman 's misconduct that the management has not acted bona fide.
A finding that the management has acted bona fide will ordinarily not be reached if the materials are such that a reasonable man could not have come to the conclusion which the management has reached.
In every case, therefore, it.
would be proper for the tribunal to address itself to the question, after ascertaining that the principles of natural justice have not been violated, whether the materials on which the management has reached a conclusion adverse to the workman, a reasonable person could reach such a conclusion.
" The point was again considered by this Court in the case of Lord Krishna Textile Mills vs Its Workmen(2) and it was held : "In view of the limited nature and extent of the enquiry permissible under section 33 (2)(b) all that the authority can do in dealing with an employer 's application is to consider whether a prima facie case for according approval is made out by him or not.
If before dismissing an employee the employer has held a proper domestic enquiry and has proceeded to pass the impugned order as a result of the said enquiry, all that the authority can do is to enquire whether the conditions prescribed by section 33(2)(b) and the proviso are satisfied or not.
Do the standing orders justify the order of dismissal ? Has an enquiry been held as required by the standing order ? Have the wages for the month been paid as required by the proviso '?; and, has an application been made as prescribed by the proviso ?" (1) [1960] II L.L.J. 39.
(2) ; 739 The Court then proceeded to consider whether the Tribunal in that case had acted rightly, and noted that one had merely to read the order to be satisfied that the Tribunal had exceeded its jurisdiction in attempting to enquire if the conclusions of fact recorded in the enquiry were justified on the merits.
The Tribunal did not hold that the enquiry was defective or the requirements of natural justice had not been satisfied in any manner.
The Court then indicated that the Tribunal had proceeded to examine the evidence, referred to some discrepancies in the statements made by witnesses and had come to the conclusion that the domestic enquiry should not have recorded the conclusion that the charges had been proved against the workmen in question.
It was then held that, in making these comments against the findings of the enquiry, the Tribunal clearly lost sight of the limitations statutorily placed upon its power and authority in holding the enquiry under section 33(2)(b).
The Court then indicated the principle applicable by saying: "It is well known that the question about the adequacy of evidence or its sufficiency or satisfactory character can be raised in a court of facts and may fall to be considered by an appellate court which 'is.
entitled to consider facts; but these considerations are irrelevant where the jurisdiction of the court is limited as under section 33(2)(b).
It is conceivable that even in holding an enquiry under section 33(2)(b) if the authority is satisfied that the finding recorded at the domestic enquiry is perverse in the sense that it is not justified by any legal evidence whatever, only in such a case it may be entitled to consider whether approval should be accorded to the employer or not; but it is essential to bear in mind the difference between a finding which is not supported by any legal evidence and a finding which may appear to be not supported by sufficient or adequate or satisfactory evidence.
" These decisions make it clear that, when an Industrial Tribunal is asked to give its approval to an order of dismissal under section 33(2) (b) of the Act, it can disregard the findings given by the Enquiry Officer only if the findings are perverse.
The test of perversity that is indicated in these cases is that the findings may not be supported by any legal evidence at all.
This principle was further affirmed in a different context in State of Andhra Pradesh V.S. Sree Rama Rao, (1), where this Court had to consider whether a High Court, in a proceeding for a writ under article 226 of the Constitution, could interfere with the findings recorded by departmental authority ill disciplinary proceedings taken against a Government servant, The Court held : (1) ; 740 "But the departmental authorities are, if the enquuiry is otherwise properly held, the sole judges of facts and if there be some legal evidence on which their findings can be based, the adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed before the High Court in a proceeding for a writ under Art, 226 of the Constitution." In this connection, reference was also made to some cases where this Court has held that a finding by a domestic tribunal like an Enquiry Officer can be held to be perverse in those cases also where the finding arrived at by the domestic tribunal is one at which no reasonable person could have arrived on the material before the tribunal.
Thus, there are two cases where the findings of a domestic tribunal like the Enquiry Officer dealing with disciplinary proceedings against a workman can be interfered with,and these two are cases in.
which the findings are not based on legal evidence! or are such as no reasonable person could have arrived at on the basis of the material before the Tribunal.
In each of these cases, the findings are treated as perverse.
It is in the light of these principles that we have to see whether the Industrial Tribunal, Delhi, in the present case, was justified in refusing to accord approval to the order of dismissal which was passed on the basis of the evidence recorded 'by the Enquiry Officer, Mr. Tipnis.
We have already reproduced above the charges that were framed against the respondent and we proceed to examine how far the Tribunal was correct in holding that the Enquiry Officer 's findings on these charges were without legal evidence and were based merely on conjecture.
The first charge consisted of the following elements : (i) that on 14 1 1960, a sum of 30,400 was paid to the respondent by the Assistant Cashier Nand Kishore out of the amount payable on a cheque drawn by M/s. Mool Chand Hari Kishan for Rs. 63.000; ' (ii) that the respondent left the same day for Muzaffarnagar; (iii) that he left for Muzaffarnagar in company of some persons to retire the bills drawn by M/s. Gupta Iron Industries; (iv) that these bills of M/s. Gupta Iron Industries had been drawn on bogus firms; (v) that these bills were retired by the drawer 's representative who accompanied the respondent to Muzaffarnagar; 741 (vi) that the respondent failed to report these serious matters to higher authorities; and (vii) that the respondent, instead, wrongly claimed that he had never visited Muzaffarnagar.
The Tribunal in its Order has held that on all these elements the findings recorded by the Enquiry Officer were perverse, because they were based on hearsay evidence and on conjecture.
Learned counsel appearing for the Bank took us through the entire evidence recorded by the Enquiry Officer in order to canvass his argument that these findings recorded by the Enquiry Officer were based on the material before him.
We have found that, on two of these points, there was material before the Enquiry Officer which could be held to be legal evidence and, consequently, we have to hold that, on those two points, the Tribunal was incorrect in recording its view that the findings of the Enquiry Officer were defective and could be disregarded by the Tribunal.
These two are elements Nos.
(ii) and (vii).
The finding that the respondent left for Muzaffarnagar on 14 1 1960 was based on the inferences drawn by the Enquiry Officer from the records of the Branch of the Bank in which the respondent was working on that day.
The facts found by the Enquiry Officer were that, in the cash receipt book of that date, there were only four entries in the handwriting of the respondent that he made no payments on that day; that, though he was in charge of the entire cash department, he had no knowledge that cash of Rs. 1 sac was brought from the Chandni Chowk Office of the Bank three times during that day; that the Godown Keeper had also verified several vernacular signatures when it was the respondent 's duty only to verify them; and that the cash account of that day was closed by the Godown Keeper instead of the respondent who should have done so if he was in the Bank until the closure of the work on that day.
These circumstances were brought to the notice of the Enquiry Officer from the records of the Bank by Management 's witness, J.J. Daver.
In our opinion, the Tribunal was incorrect in holding that the Enquiry Officer was acting on mere conjecture when, on the basis of these circumstances, he drew the inference that the respondent had left his work in the Naya Bazar Branch of the Bank on 14 1 1960 after working there for a short time only.
Further, the Enquiry Officer in his report mentioned that three witnesses, S: C.L. Chawla, Officer Incharge of the Muzaffarnagar Office of the Bank, Inder 'Sain Jain, Cashier in the Muzaffarnagar Office, and Nihalchand Jain, who was a Clerk in the Muzaffarnagar Office, had stated that they had seen the respondent at Muzaffarnagar Office on 14 1 1960, and relied on their evidence to hold that the respondent did go to Muzaffarnagar on that day leaving his work in the Naya Bazar Office of the Bank at Delhi.
The Tribunal criticised the evidence of these three witnesses and 742 came to the view that the Enquiry Officer was not justified in believing these witnesses and in holding on the basis of their evidence that the respondent was in Muzaffarnagar on that day.
It is clear that, in adopting this course, the Tribunal exceeded its powers.
It was not for the Tribunal to sit in judgment over the view taken by the Enquiry Officer about the value to be attached to the evidence of these witnesses, even though the Tribunal thought that these witnesses were unreliable because of circumstances found by the Tribunal in their evidence.
What the Tribunal at this stage did was to interfere with the finding of fact recorded by the Enquiry Officer by making a fresh assessment on the value to be attached to the evidence of these witnesses which was not the function of the Tribunal when dealing with an application under section 33 (2 )(b) of the Act.
In these two respects.
we find that the Tribunal fell into an error.
However, we find that, on the other ingredients of the first charge, the Tribunal was justified in arriving at the conclusion that the findings recorded by the Enquiry Officer Were perverse.
The Tribunal gave the reason that these findings were based on hearsay evidence.
This view taken by the Tribunal appears to be fully justified.
The first and the third elements of the charge relating to payment of the sum of Rs. 30.400 to the respondent by Nand Kishore, and of the respondent leaving for Muzaffarnagar in the company of some persons in order to retire the bills drawn by M/s. Gupta Iron Industries, were sought to be proved before the Enquiry Officer by the evidence of the Internal Auditor, N. N. Vazifdar, but the latter could not give any direct evidence.
as he was not present at the time when money was paid to the resplendent or when the respondent left for Muzaffarnagar.
He purported to prove these elements of the charge by deposing that a statement was made to him by Nand Kishore to the effect that Nand Kishore had paid Rs. 30,400 to the respondent and that, thereafter, the respondent left for Muzaffarnagar in the company of two persons.
The Enquiry Officer accepted this evidence of Vazifdar, but, ignored the.
fact that Vazifdar 's evidence was not direct evidence in respect of the elements of the charge sought to be proved, and that Vazifdar was only trying to prove a previous statement of Nand Kishore which, as rightly held by the Tribunal, would amount to hearsay evidence.
Nand Kishore himself was also examined as a witness, but, in his evidence, which was admissible as substantive evidence, he made no statement that this sum of Rs. 30,400 was paid by him to the respondent or that the respondent left for Muzaffarnagar in the ' company of some persons to retire the bills drawn by M/s. Gupta Iron Industries.
In fact.
Nand Kishore even went further and denied that he had made any statement to Vazifdar as stated by Vazifdar.
The Enquiry Officer was, of course, entitled to form his own opinion and 743 to believe Vazifdar in preference to Nand Kishore; but, on this basis, the only finding that the domestic tribunal could record was that Nand Kishore 's statement given before him was incorrect and that Nand Kishore had made statements to Vazifdar as deposed by Vazifdar.
Those statements made by Nand Kishore to Vazifdar could not, however, become substantive evidence to prove the correctness of these elements forming part of the charge.
It is in this connection that importance attaches to the views expressed by this Court in the cases cited above, where it was pointed out that a finding of a domestic tribunal may be perverse if it is not supported by any legal evidence.
It is true that, in numerous cases, it has been held that domestic tribunals, like an Enquiry Officer, are not bound by the technical rules about evidence contained in the Indian Evidence Act; but it has nowhere been laid down that even substantive rules, which would form part of principles of natural justice, also can be ignored by the domestic tribunals.
The principle that a fact sought to be proved must be supported by statements made in the presence of the person against whom the enquiry is held and that statements made behind the back of the person charged are not to be treated as substantive evidence, is one of the basic principles which cannot be ignored on the mere ground that domestic tribunals are not bound by the technical rules of procedure contained in the Evidence Act.
In fact, learned counsel for the appellant Bank was unable to point out any case at all where it may have been held by this Court or by any other Court that a domestic tribunal will be justified in recording its findings on the basis of hearsay evidence without having any direct or circumstantial evidence in support of those findings.
In the case of Khardah Co. Ltd. vs Their Workmen(1), this aspect was noted by this Court as follows : "Normally, evidence on which the charges are sought to be proved must be led at such an enquiry in the presence of the workman himself.
It is true that in the case of departmental enquiries held against public servants, this Court has observed in the State of Mysore vs
S.S. Makapur(2) that if the deposition of a witness has been recorded by the ' enquiry officer in the absence of the public servant and a copy thereof is given to him, and an opportunity is given to him to cross examine the witness after he affirms in a general way the truth of his statement already recorded, that would conforms the requirements of natural justice; but as has been emphasised by this Court in M/s. Kesoram Cotton Mills Ltd. vs Gangadhar(3) these observations must be applied (1) ; at pp.
512 13.
(2) ; (3) ; 744 with caution to enquiries held by domestic tribunals against the industrial employees.
In such enquiries, it is desirable that all witnesses on whose testimony the management relies in support of its charge against the workman should be examined in his presence.
Recording evidence in the presence of the workman concerned serves a very important purpose.
The witness knows that he giving evidence against a particular individual who is present before him, and therefore, he is cautious in making his statement.
Besides, when evidence is recorded in the presence of the accused person, there is no room for persuading the witness to make convenient statements, and it is always easier for an accused person to cross examine the witness if his evidence is recorded in his presence.
Therefore, we would discourage the idea of recording statements of witnesses ex parte and then producing the witnesses before the employee concerned for cross examination after serving him with such previously recorded statements, even though the witnesses concerned make a general statement on the latter occasion that their statements already recorded correctly represent what they stated.
" In the case of M/s. Kesoram Cotton Mills Ltd. vs Gangadhar and Others(1) referred to in the quotation above, it was held : "Even so, the purpose of rules of natural justice is to safeguard the position of the person ' against whom an inquiry is being conducted so that he is able to meet the charge laid against him properly.
Therefore, the nature of the inquiry and the status of the person against whom the inquiry is being held will have some bearing on what should be the minimum requirements of the rules of natural justice.
Where, for example, lawyers are permitted before a tribunal holding an inquiry and the party against whom the inquiry is being held is represented by a lawyer, it may be possible to say that a mere reading of the material to be used in the inquiry may sometimes be sufficient see New Prakash Transport Co. vs New Suwarna Transport Co. (2)] but where in a domestic inquiry in an industrial matter lawyers are not permitted, something more than a mere reading of statements to be used will have to be required in order to safeguard the interest of the industrial worker.
Further, we can take judicial notice of the fact that many of our industrial workers are illiterate and sometimes even the representatives of labour union may not (1) ; (2) 745 be present to defend them.
In such a case, to read over a prepared statement in a few minutes and then ask the workmen to cross examine would make a mockery of the opportunity that the rules of natural justice require that the workmen should have to defend themselves.
It seems to us, therefore, that when one is dealing with domestic inquiries in industrial matters, the proper course for the management is to examine the.
witnesses from the beginning to the end in the presence of the workman at the enquiry itself.
Oral examination always takes much longer than a mere reading of a prepared statement of the same length and bring home the evidence more clearly to the person against whom the inquiry is being held.
Generally speaking, therefore, we should expect a domestic inquiry by the management to be of tiffs kind.
" Proceeding further, the Court held : "The minimum that we shall expect where witnesses are not examined from the very beginning at the inquiry in the presence of the person charged, is that the person charged should be given a copy of the statements made by the witnesses which are to be used at the inquiry well in advance before the inquiry begins and when we say that the.
copy of the statements should be given well in advance, we mean that it should be given at least two days before the inquiry is to begin.
If this is not done and yet the witnesses are not examined in chief fully at the inquiry, we do not think that it can be said that principles of natural justice which provide that the person charged should have an adequate opportunity of defending himself are complied with in the case of a domestic inquiry in an industrial matter." These views expressed by this Court, in our opinion, bring out what was meant when this Court held that findings recorded by an Enquiry Officer must be supported by legal evidence.
The evidence, as indicated in these cases, should consist of statements made in the presence of the workman charged.
An exception was envisaged where the previous statement could be used after giving copies of that statement well in advance to the workman charged, but with the further qualification that previous statement must be affirmed as truthful in a general way when.
the witness is actually examined in the.presence of the workman.
Applying this principle to the present case, it is clear that the previous statement made by Nand Kishore to Vazifdar could not be taken as substantive evidence against the respondent, because 746 Nand Kishore did not affirm the truth of that statement when he appeared as a witness and, on the other hand, denied having made that statement altogether.
Even though his denial may be false, that fact would not convert his previous statement/into substantive evidence to prove the charge against the respondent when that statement was given to Vazifdar in the absence of the respondent and its truth is not affirmed 'by him at the time of his examination by the Enquiry Officer.
This statement of Nand Kishore made to Vazifdar being ignored, it is clear that no other material was available to the Enquiry Officer on the basis of which he could have held that the sum of Rs. 30,400 was paid to the respondent by Nand Kishore and that Nand Kishore, there.after left for Muzaffarnagar in the company of some persons with that money.
The fourth element of the charge was that the bills of M/s. Gupta Iron Industries were drawn on bogus firms.
We think that the Tribunal is quite correct in its comment that the Enquiry Officer, in holding that the bills were drawn on bogus firms, proceeded to do so without any evidence altogether.
In fact, the Enquiry Officer has not referred to any material which was available to him before accepting the allegation against the respondent that the bills had been drawn.
on bogus firms.
Even in the course of his submissions before us, learned counsel for the Bank was unable to point out any evidence which would support this part of the charge.
The only evidence to which learned counsel could refer was the statement of Nihal Chand Jain who said that intimations of the bills were sent to the parties: mentioned in the bills by post, but were received back unserved.
Those intimations were not produced before the Enquiry Officer and there is no mention of the reason why the postal authorities returned those intimations.
The mere return of the intimations could not possibly lead to the inference that the parties, to whom they were addressed, were bogus.
It is quite likely that their addresses there incomplete, so that the postal authorities were unable to trace them.
Clearly, in these circumstances, the finding on this point recorded by the Enquiry Officer was without any evidence or material.
The same remarks apply with regard to the element of the charge to the effect that the bills were retired by the drawer 's representative who accompanied the respondent to Muzaffarnagar.
: 'The Enquiry Officer again does not mention any witness who may have stated that the bills were retired by the drawer 's representative or that representative had accompanied the respondent.
The only evidence on this point, to which our attention was ,drawn, was that of T.C. Jain who purported to prove a previous :statement of Inder Sain Jain made to him.
According to T.C. 747 Jain, Inder Sain Jain had come to him and told him that Prakash Chand Jain had come with the representative of the drawer to retire the bills, This evidence of T.C. Jain was rightly not relied upon or referred to by the Enquiry Officer, because Inder Sain Jain, when he appeared as a witness before him, did not state, that he had made any such statements to T.C. Jain and, in his examination, he excluded the possibility of his having made that statement.
According to Inder Sain Jain 's statement before the.
Enquiry Officer, the respondent only accosted him once and bid him "Jai Ram Ji Ki".
He had no other talk with him.
He also.
stated that this happened about two hours after the bills had been retired.
Consequently, according to Inder Sain Jain 's statement before the Enquiry Officer, the respondent was not present when the bills were retired and there was no question of the respondent.
accompanying the drawer 's representative for retiring the bills.
Inder Sain Jain also did not state that the bills were retired by the representative of the drawer.
Thus, on this point also, there is no legal evidence on which a. finding could have been recorded against the resrpondent.
So far as the sixth element of the charge is concerned, that becomes totally immaterial when it is found that the Enquiry Officer 's findings that the bills were drawn on bogus firms and that they were retired by the drawer 's representative accompanying the respondent are held to have been given without any legal evidence.
If the bills are not proved to have been drawn on bogus firms and to have been retired by the drawer 's representative with the aid of the respondent, there was nothing that the respondent was required to convey to higher authorities.
So far as the second charge is concerned, we find that, similarly, the principal findings given by the Enquiry Officer are not supported by any legal evidence.
The substance of the charge was that the respondent encashed the cheque for Rs. 46,000 ' from the United Bank of India Ltd. and brought the cash after 11.30 a.m., but wrongly stated that he had brought the cash to the Naya Bazar Office of the Central Bank before 11 a.m.
The significance of the time we emphasised by the Enquiry Officer because, according to him, 11 a.m. was the clearing time of another cheque of Rs. 15,000 which had been marked as "good for payment" by the then Sub Agent, Shiv.
Kumar Sharma and the respondent had to show that cash in respect of the other cheque of Rs. 46,000 had been brought to the Bank at Naya Bazar for deposit in the account of the Drawer of that cheque of Rs. 15,000 so as to justify the endorsement made by the Sub Agent that it was 'good for payment '.
We examined the whole record and we are unable to find any evidence at all in support of the fact accepted by the Enquiry Officer that the clearing time was 11 a.m.
On the contrary, the only evi 748 dence on this point, which was that of Management 's witness J.J. Daver, was to the effect that the clearing time was 11.30 a '.m.
Ignoring tiffs evidence altogether, the Enquiry Officer proceeded to record his findings against the respondent on the basis that the clearing time was 11 a.m. without at all referring to any evidence in support of this fact.
The second significant point was as to the time by which the respondent brought the cash in respect of the cheque of Rs. 46,000/ from the United Bank of India Ltd., Chandni Chowk, to his own Central Bank Branch in Naya Bazar.
No one gave any ' direct evidence as to the time when the respondent brought the money.
The Enquiry Officer has proceeded to hold that the money could not have been brought before 11 a.m. because there is an endorsement on that cheque of Rs. 46 '000/which, according to the Enquiry Officer, shows that cheque was presented for encashment at the United Bank of India Ltd., Chandni Chowk, at 11.15 a.m.
This endorsement was also examined by us as it appeared on the photo stat copy of the cheque.
The endorsement consists of a number 37 beneath which as noted the time 11.15 a.m. with a line drawn between them.
From this endorsement alone, the Enquiry Officer proceeded to infer that this cheque was presented for encashment at 11.15 a.m., even though no evidence at all was given by anyone working in the United Bank of India Ltd., Chandni Chowk, to prove that this endorsement of time of 11.15 a.m. represented the time of presentation of the cheque at that Bank.
In fact the Enquiry Officer has not made reference to any evidence at all when holding that this cheque was presented for payment at 11 a.m. at the counter of the United Bank of India.
Learned counsel for the Bank, however, referred us to the evidence of J.J. Daver on this point.
Darer in this case was discharging a dual function as a witness and as the prosecutor of the case against the respondent for the Bank.
In his evidence, Darer stated that this endorsement represented the time when the token was issued to the person encasing the cheque.
Later, while prosecuting the case against the respondent on behalf of the Bank, Darer urged before the Enquiry Officer that this endorsement of 11.15 a.m. represented the time of presentation of the cheque and this was noted by the Enquiry Officer in his proceedings.
Obviously, the time of presentation of the cheque and the time of issue of 'the token in respect of it would not be identical.
In fact, there can be a lapse of an appreciable interval between the two.
In spite of this fact, the Enquiry Officer seems to have proceeded on the basis 'of what was urged before him by J.J. Darer while acting as prosecutor, and what was stated in that capacity was not evidence at all.
The evidence given by Darer was different and that was not relied upon by the Enquiry Officer.
On the face of it, the proper evidence, by which it could have been proved that the cheque was either presented at 11.15 a.m. or that the token in respect of it 749 was issued at 11.15 a.m., could have been obtained if the Bank had cared to examine the person in charge of encashing the cheque at the United Bank of India, Chandni Chowk.
Daver was not present when the cheque was presented and he has not explained on what basis he stated in his evidence that this endorsement represented the time when the token was issued.
It is clear that, era this charge also on the two crucial points of the time, viz., the clearing time of the cheque of Rs. 15,000/ as well as the time when the second cheque of Rs. 46,000/ was presented for encashment at the United Bank of India Ltd., Chandni Chowk, the Enquiry Officer has recorded findings without those findings being supported by any legal evidence.
In these circumstances, it is clear that the Tribunal was fully justified in holding that the findings recorded by the Enquiry Officer on both the charges were perverse in the sense of not being supported by any legal evidence, of course, with the exception of the finding recorded to the effect that on 14 1 1960 the respondent, after doing some work in the Naya Bazar Branch of the Bank, left for Muzaffarrnagar and was seen in Muzaffarnagar on that day.
It was to this liraired extent that the first charge only could have been held to have been proved before the Enquiry Officer against the respondent.
On this limited proof and on holding that the Enquiry Officer 's findings were correct in respect of this part of the charge only, the Tribunal would be fully justified in withholding its approval of the order of dismissal which was passed by the Bank on the basis that all the elements of both the charges had been proved.
The order of the Tribunal refusing to grant approval was, therefore, not vitiated by any error and must be upheld.
The appeal fails and is dismissed with costs.
G.C. Appeal dismissed.
[/INST]The respondent was an employee of the appellant.
After a domestic inquiry in respect of alleged misconduct he was dismissed.
As an industrial dispute was pending an application was made to the Industrial Tribunal under section 33(2)(b) of the .
The tribunal held that though the enquiry was fair, the findings of the enquiry Officer were perverse and therefore it did not give its approval the order of dismissal.
By special leave the appellant came to this Court, contending that since the enquiry was held to be fair the Tribunal no jurisdiction to interfere with the findings of fact arrived at by the Enquiry Officer.
HELD: (i) Earlier decisions of 'this Court make it clear that when in Industrial Tribunal is asked to give its approval to an order of dismissal under section 33(2)(b) of the Act, it can disregard the findings given y the Enquiry Officer only if the findings are perverse.
The findings are reverse when either they are not based on legal evidence or they are such as no reasonable person could have arrived at on the basis of material before the domestic tribunal.
[739 G 740 C] Bangalore Woolien, Cotton and Silk Mills Company Ltd. vs Dasappa B) (Binny Mills Labour Union) & Ors.
[1960] II L.L.J. 39, Lard Krishna Textile Mills vs Its Workmen, ; , State lndhra Pradesh vs
section Sree Rama Rao; , , applied.
(ii) A domestic tribunal though not bound by the technical rules rout evidence contained in the Indian Evidence Act cannot ignore subsintive rules which would form part of principles of natural justice.
The principle that a fact sought to be proved must be supported by statements lade in the presence of the person against whom the enquiry is held nd that statements made behind the back of the person charged are not be treated as substantive evidence, is one of such basic principles which.
domestic tribunal cannot disregard.
The previous statement of a witness not substantive evidence unless affirmed as truthful by the witness when actually examined in the presence of the workman charged.
A finding by the domestic tribunal based not on substantive evidence but on hearsay, is perverse, because hearsay is not legal evidence.
[743 C E; 745 Khardah Co. Ltd. vs Their Workmen, ; , State of ysore V.S.S. Makapur; , and M/s. Kesoram Cotton ills Ltd. vs Gangadhar, ; , relied on.
(iii) In the present case the findings of the Enquiry Officer were held by the Industrial Tribunal to be perverse as they were not sed on legal evidence and were not justified by the material before m. [749 C E] 736
</s>
|
<s>[INST] Summarize the judgementNo. 42 of 1960.
Under Article 32 of the Constitution of India for the enforcement of fundamental rights.
G.S. Pathak, A.P. Chatterji, E. Udayarathnam, Durgabhai Deshmukh, B. Dutta and S.S. Shukla, for the petitioners and the intervener.
47 Ranadeb Chaudhuri, S.P. Varma and P.K. Bose, for respondents Nos. 1 and 2.
C.K. Daphtary, Solicitor General, S.N. Ghorai, S.N. Andley and Rameshwar Nath, For respondent No. 3.
N.C. Chattejee, S.N. Ghorai, S.N. Andley and Rameshwar Nath, for respondent No. 4.
October 7, 1963.
The Judgment of the Court was delivered by SINHA C.J.
This petition under article 32 of the Constitution arises out of the unfortunate difference which has a long history behind it, between two sections of the Calcutta High Court Bar.
The four petitioners in the petition, as originally presented, are advocates duly enrolled in the Calcutta High Court (to be hereinafter referred to as the Court) between the years 1948 and 1952, and claim to be entitled to appear and plead in the said High Court in the exercise of its Original as well as Appellate jurisdictions.
The respondents are; (1) the State of West Bengal, represented by the Chief Secretary, and (2) the Chief Justice of the Court.
It appears that the petitioners generally practice the Court in the exercise of its Original jurisdiction.
In the year 1956 they were called to the English Bar by the Hon 'ble Society of the Middle Temple in the Michaelmas Term.
The petitioners duly notified to the Registrar, Original Side of the Court, to correct the register of advocates practising on the Original side, by adding "Barrister at Law" after their names.
Thus, the petitioners who started as advocates of the Court claim to have become entitled to the additional qualification of a "Barrister" though they had not read for a period of 12 months in the chambers of a practising Barrister in England or a practising Barrister in Calcutta, as required by the rules of the Original side of the Court.
In other words, according to the rules of the Court, there were three classes of advocates practising in the Court; namely, (1) a Barrister who had read for not less than 48 12 months in the chambers of a practising Barrister in England or in Calcutta; (2) a Barrister who had not so read in the chambers of a Barrister; and (3) any person who had obtained a Bachelor 's degree in Law of a recognised university and had obtained the qualification to practise on the Original side of the Court after passing the necessary tests.
The High Court is said to maintain two lists of advocates entitled to appear and plead in the said Court on the Original side, namely, list 1 containing the names of persons enrolled as advocates on the basis of their being Barristers at Law, and list 11 containing the names of other advocates than Barristers at Law.
The petitioners claim that inasmuch as they were persons duly qualified to appear and plead in the said Court in the exercise of its Original jurisdiction and were so enrolled as advocates, it was not necessary for them to further read in the chambers to become advocates of list 1, of the Court, according to the classification set out above.
A portion of the building of the said Court has been allotted for the use of advocates of the Court.
That portion has again been sub divided into two portions; (1) one occupied by the Bar Library Club consisting of advocates.
of list 1 aforesaid, and (2) the other in the occupation of the Bar Association which consists of advocates other than advocates of list 1.
The petitioners, though they have been able to add the word "Barrister" to their names, have not been admitted to the Bar Library Club, which is rather of an exclusive character.
The petitioners thus suffer from a disability, because it is said that litigants and/or solicitors generally prefer to engage an advocate who is a barrister and is a member of the Club.
The petitioners ' application for becoming members of the Club was not entertained by it, and, thus, they are being excluded from that portion of the Court building which is in the exclusive occupation of advocates of list 1 aforesaid.
The petitioners and another advocate made representations to the Hon 'ble the Chief Justice of the Court for having equal advantage and facilities of accommodation meant for the advocates of the Court, that 49 is to say, for that portion of the building which is in the occupation of the Bar Library Club.
In reply to the aforesaid representation, the petitioners were informed by tILe Secretary to the Hon 'ble the Chief Justice that free accommodation had been provided by the Court, in different parts of the Court building, to the different sections of the legal profession, namely, for Barristers, advocates other than Barristers, and attorneys who are entitled to practise in the Court as such, and not for the use of any Club.
But it was further pointed out in that communication from the Secretary to the Chief Justice that as the petitioners had not read in the chambers of a Barrister for one year, they were not entitled to the use of the rooms allotted to Barristers of that class.
The petitioners made further representations to the Hon 'ble the Chief Justice but without any tangible results.
It further appears that a suit had been instituted in the City Civil Court, which was pending in 1960, but was withdrawn Later, with reference to the rights of accommodation similar to that claimed by the petitioners, though they were not parties to that st;it.
The petitioners were informed in February, 1960, by the Secretary to Hon 'ble the Chief Justice that the Chief Justice could not do anything in the matter in view of the pending suit.
The petitioners ' grievance seems to be contained in paragraphs 36 and 37 of their petition, which is to the following effect: "The exclusive use of a large portion of the said space and the reference to or of the Advocates who are members of the said Club as members of the English Bar and/or reference to them as counsel and to the other Advocates as Advocates has generally given an impression that Advocates who are members of the said Club are superior class of Advocates than the Advocates who are members of the Indian Bar.
Since your petitioners are not members of the said Club you, ' petitioners are generally included in the latter category.
1 SCI/64 4 50 Your petitioners state that due to the discrimination exercised and the non availability of equal opportunities to your petitioners as hereinbefore stated your petitioners have been and are being greatly prejudiced in their profession.
The provisions made in the rules for original side of the said Court and for Barristers are ultra vires the Indian Bar Council 's Act and/Or amounts to discrimination.
" Thus, the gist of the petitioners ' complaint is that they have been denied by the State equality before the law.
The petitioners further state that they made demands for justice from the respondents, which they have not yet granted to them; hence the petitioners pray for a writ in the nature of mandamus directing them to allow the petitioners to have the use and benefit of the space in the Court, now occupied by the Bar Library Club, and not to discriminate and/ or differentiate between different sections of the Advocates enrolled in the Court and entitled to practise on the Original side of that Court.
This Court, in due course, directed the rule to issue and also granted liberty to the petitioners to apply for impleading the Bar Library Club as a party respondent.
In response to the notice, the Registrar of the Court put in an affidavit on behalf and under the direction of the second respondent the Chief Justice of the Court.
The affidavit states the relevant facts as follows.
Separate accommodation is provided in the High Court building for (1) Barristers who practise as advocates of the Court on being enrolled under the Original side rules of the Court; (2) for Advocates enrolled as such by the High Court and (3) for the Attorneys of the Court for their legal work in the Court.
Setting out the history of the privilege of occupation of certain rooms in the Court by the different branches of the legal profession, it is stated that free accommodation in the then Supreme Court building was first provided in the year 1825 51 to the Barristers then practising before the Supreme Court, and that privilege has been continued in the High Court building as well.
The Barristers have their association known as the Bar Library Club.
The association of the other advocates is known as the Bar Association, and the association of the attorneys is called the Incorporated Law Society.
Each of the three branches of the profession looks after the accommodation provided by the Court.
The accommodation thus provided by the Court is only for bona fide professional business.
The Barristers, Advocates and Attorneys are all licensees in respect of the accommodation provided for them, which is rent free; the cost structural additions or alterations are borne by the Government; only electrical installations are to be set up and maintained by the licensees at their own cost.
It was further stated that the legal position in regard to the High Court building is and has always been that it has been placed at the disposal of the Hon 'ble the Chief Justice and the Hon 'ble Judges of the Court for the administration of justice, and that the allocation of accommodation inside the Court building is a matter entirely for the Court, subject of course to the condition that no part of the premises should be allowed to be utilised except for bona fide purposes of the Court 's work.
As regards the representation made by the petitioner to the Chief Justice, it is stated that the matter was examined by His Lordship and a minute was recorded, the relevant portion of which is as follows: "But the persons recently called to the English Bar under consolidated regulation No. 43, arc not entitled to practise in this Court as Barristers.
Under the Rules of the Court, a Barrister of England or Northern Ireland becomes qualified to practise in this Court as a Barrister Advocate only after reading for twelve months in the Chambers of a Barrister in London or in Calcutta and upon his enrollment as an Advocate thereafter.
The Advocates who have recently been called to the English Bar under regulation 43 but who have not read in Chambers for a year 52 and have not been enrolled as Advocates on the completion of such reading, are only entitled to practise in the Court, including the Original Side, on the strength of their being Advocates of the Appellate Side, but they are not entitled to practise in Court as Barristers.
Consequently, at the present moment, they are not entitled to use the rooms allotted to Barristers, entitled to practise as such.
" It was also stated in the affidavit that further representations were made to the Hon 'ble the Chief Justice, but it was not considered proper by him that any administrative order should be passed on those representations in view of the pendency of a suit, which in the meantime bad been filed in the City Civil Court at Calcutta, being Title Suit No. 339 of 1958 with leave under Order 1 rule 8 of the Code of.
Civil Procedure for a declaration that all Advocates are entitled to the use of the rooms in the High Court building now used by the Barristers.
It appears that in pursuance of the leave granted by this Court, Shri Dipak Kumar Sen and Shri Mathura Nath Banerjee, joint secretaries of the Bar Library Club of the Court, who were added as respondents 3 and 4, put in an affidavit in answer to the petitioners ' claim, by way of an objection to the maintainability of the Writ Petition.
They state that they were not public servants, and, therefore, no writ lay against them or against any other member of the Bar Library Club, or the Bar Library Club itself, for anything done by them.
They denied the petitioners ' right to be members of the Club or to use the rooms in the possession.
of the Club.
It is further stated that the Bar Library Club is "a private proprietary Association of members governed by its own Rules", and that the action of the said members or of the said Club is not amenable to any writ.
They add that the Hon 'ble the Chief Justice of the Court was also not amenable to any writ for actions complained of; the Hon 'ble the Chief justice had discharged his administrative duties and his actions were not justici 53 able.
Likewise, it was further contended that the 'first respondent, the State of West Bengal, also was similarly not amenable to any writ inasmuch as the said respondent had discharged executive and not judicial functions in allowing certain accommodation in the High Court building to be used by the members of the Bar Library Club.
The history of the establishment of the Club is then set out.
Dealing with the claim of the petitioners, it is stated that by a resolution of the Bar Library Club, passed on June 14, 1957, and confirmed on February 14, 1958, it was decided by the members of the said Club that Advocates of the Calcutta High Court, called to the, Bar under regulation 43, should not be admitted as members of the Bar Library Club.
The statement in the affidavit filed under the directions of the Hon 'ble the Chief Justice, as aforesaid, to the effect that the accommodation was given to Barristers practising in the Calcutta High Court as such was not correct and that the true position was that it was "given to the members of the Bar Library Club".
It was claimed that the accommodation given respectively to the three Associations, namely, the Bar Library Club, the Bar Association and the Incorporated Law Society was used and controlled by the said Associations for the benefit of their respective members and persons who were not members of the respective associations could not claim any legal right to use the accommodation provided for that particular association.
In answer to the contention that the petitioners had been denied equality before the law, it was asserted that the High Court orders regulating the manner in which the different associations shall be provided accommodation was based on reasonable classification of legal practitioners, and that there was no discrimination.
It was also claimed that the Club had complete discretion in he matter of admission of members to it; that no ne had a legal right to claim membership of th Club and that as the petitioners were not members of the Club, they had no legal right to use the accommodation allotted to it And, lastly, it was contended that the petition 54 was bad for non joinder, first, of the Hon 'ble Judges of the High Court, and secondly, of the members of the Bar Library Club, other than those already impleaded, namely, the respondents 3 and 4 aforesaid.
On these pleadings and further affidavits filed on behalf of some of the petitioners and some of the respondents, the matter was placed before a Constitution Bench of this Court, presided over by Gajendragadkar J., on April 16, 1962, and the Court made the following order: "Mr. A V. Viswanatha Sastri for the Petitioners wants to raise the larger question about the constitutionality of the allotment of rooms to different sections of the Bar in the Calcutta High Court.
We think that it is desirable that the petitioners should move the learned Chief Justice of the Calcutta High Court and place before him their case that the allotment of the rooms offends against article 14 of the Constitution and that the Barristers, who constitute the Bar Library Club, cannot be treated as constituting a branch of the profession by themselves.
Since this aspect of the matter was not placed before the learned Chief Justice it is necessary that the petitioners should pray for redress before the learned Chief Justice of the Calcutta High Court in the first instance before moving this Court.
The petition, is, therefore, adjourned for three months to enable the petitioners to move the Chief Justice in that behalf.
" In pursuance of the order of this Court, set out above, the petitioners made a further representation to the Hon 'ble the Chief Justice of the Court on May 11, 1962, stating that all advocates enrolled in the Court and entitled to appear and plead on the Original side stand on the same footing, without any distinction and/or discrimination, and as such are entitled to the use of the accommodation allotted to and occupied by the Bar Library Club in a portion of the Court building.
They also recited the previous 55 history of their representations to the successive Chief Justices of the Court and pointed out that the allotment of separate accommodation for Barristers as such, who cannot practise as such, offended against article 14 of the Constitution.
They, therefore, represented to the Hon 'ble the Chief Justice that as advocates of the Court they may be allowed to use the said space occupied by the Bar Library Club and/or its members, and equal rights and privileges for the purpose of carrying on their ' profession may be accorded to them.
The Bar Association of the Court separately wrote a letter dated May 22, 1962, representing to the Hon 'ble Chief Justice their grievances in similar terms.
To that representation, the Secretary to the Hon 'ble the Chief Justice sent an answer dated June 21, 1962.
In that letter it is stated "that his Lordship thinks that it is eminently desirable that the Bar Library Club and the Bar Association should amalgamate, and that the rooms in the High Court buildings allotted to the Bar Library Club and the Bar Association should no longer remain in their exclusive occupation but should be thrown open to all who are members of the two Associations, on terms and conditions to be mutually agreed upon between the two Associations. . and that nothing will give His Lordship greater pleasure than to see the two Associations merge into one and occupying the rooms allotted to them jointly from July 1, when the Centenary celebration of the Calcutta High Court will begin.
" A copy of the said letter was also forwarded to the petitioners in answer to their representation to the Chief Justice.
Apparently the two wings of the profession, represented by the two organisations aforesaid, could not agree to such terms as were contemplated in the letter aforesaid.
The attempt at amalgamation of the two organisations or to come to any agreed terms between them having failed, the Bar Association moved this Court by making an application for intervention by the members of the Bar Association.
That application for inter 56 vention, filed in July 1962, was allowed by the Court on September 27, 1962.
With the application for intervention the correspondence between the previous Chief Justices and the Association was enclosed.
It is noteworthy that the scope of the representation made by the Association is much wider than the grievance sought to be ventilated by the petitioners in their petition to this Court, as will appear from the Following extract from their representation to the Chief Justice: "Accordingly we on behalf oF the Bar Association humbly represent 'that no separate space may be allotted to the said group of Advocates who call themselves Barristers but who practise in this Court as Advocates and are therefore in no way to be separately treated from the Advocates in general, and this allotment of separate rooms to the Bar Library Club offends against article 14 of the Constitution.
We demand justice and pray for redress of our aforesaid grievance so that there should be one Bar Association for all Advocates practising in this High Court and the rooms now occupied by Bar Library Club may be allotted to such Bar Association.
" In answer to the petitioners ' further affidavits and the application for intervention filed and allowed, as aforesaid, an affidavit was filed in this Court on behalf of respondents 3 and 4 to the effect that accommodation in the Court building had been provided for the use of the three groups of lawyers, namely.
(1) Banister Advocates who are not entitled to act and do not act either on the Original side or the Appellate side, and plead only; (2) Attorneys who only act on the Original side, and (3) Non Barrister Advocates who both act and plead and who belong to the Bar Association.
It is also stated that the space occupied by the Bar Library Club is used exclusively as library and reading room to enable the members of the Club to prepare for the hearing of the cases in which they are engaged; the inner study room of the Club, where silence has to be maintained, is exclusively reserved 57 for members oF the Club for the purposes of study only: in other rooms of the Bar Library Club every member of the legal profession is allowed free access.
A very important statement was also made in the affidavit to the effect that in view of the controversy raised recently about admission of non Barrister Advocates as members of the Bar Library Club, the Club by its resolution adopted on 'March 2, 1962, has altered its rules so as to admit non Barrister Advocates also as members.
We shall have to say something more later with respect to this.
It is further stated that as a result of the amendment aforesaid, of the rules of the Club, there is now no restriction whatever against any member of the legal profession, not being an Attorney, becoming a member of the Club, irrespective of whether or not he is a Barrister, provided that he confines his practice to pleading only.
In pursuance of this amendment, it was further stated that three Advocates who were not Barristers had been recently admitted as members of the Club and that more such applications have been received for admission as members.
And, finally, it is said that the Attorneys who only act on the Original side have been given two rooms in the Court building for their occupation, the Bar Library Club whose membership is confined only to those advocates who only plead but do not act has been allotted four rooms, and the Bar Association whose members are entitled both to act and to plead have been allotted six rooms in the premises of the Court.
Besides those statements in their affidavit, in answer, the respondents 3 and 4 have also raised several points in answer to the petition, as originally made, as also in the intervention petition.
It is contended that the original petitioners or the members of the Bar Association have no fundamental rights which they can enforce by a writ under article 32 of the Constitution, and that, therefore, they have no cause of action.
It is also pointed out that the case tried to be made out by the original petitioners and that 58 made out in the petition for intervention are inconsistent inasmuch as the former claim to be admitted to the use and occupation of the accommodation allotted to the Bar Library Club in preference to the space occupied by the Bar Association whereas the interveners represented to Hon 'ble the Chief Justice that there should be no preferential accommodation given to the Club and that both the wings should become one.
It is also contended that all the wings of the profession being mere licensees of the Court in respect of the accommodation allotted respectively to them, none of the Associations can claim any legal or fundamental rights.
It is also suggested that the allotment of three separate portions of the Court premises, as aforesaid, can be justified on the ground of reasonable classification, having regard to the nature of business transacted by them in the discharge of their respective duties.
It would thus appear that the condition now prevailing at the Bar of the Calcutta High Court vis a vis the different sections is the result of a historical process which began about two hundred years ago, soon after the grant of the Diwani to the East India Company in 1765.
When the Supreme Court was established in Calcutta, most of the work was in the hands of English Barristers so far as pleading was concerned, and so far as acting was concerned it was in the hands of attorneys or firms of Attorneys, again mostly British.
Even before the establishment of the Calcutta High Court in 1862, the Bar Library Club had come into existence in 1825 and the Court had granted the members of the English Bar accommodation within the Court precincts.
After the establishment of the High Court, this arrangement continued and the three sections of the Bar which came to function in the High Court were allotted separate accommodation.
The Bar Library Club continued to have its separate accommodation from that allotted to the Vakils, as they were called until the passing of the Indian Bar Councils Act (XXXVIII of 1926).
It was again the result of British rule in India, which 59 introduced their own legal system in this country, that the member of the English Bar who practised in the High Court on the original side, or even on the appellate side, continued to enjoy higher status in the matter of seniority, so much so that a Vakil on the appellate side of the High Court of even 50 years ' standing would be junior to a Barrister with even one year 's standing.
This naturally led to the agitation for a unified bar with equal rights of audience, according to seniority in standing, irrespective of whether he was a Barrister from England or was a Vakil with a law degree from one of the recognised universities in India.
The result was the Indian Bar Councils Act, (XXXVIII of 1926).
So far as practice on the original side of the Court was concerned, much depended on the goodwill of the Attorneys or firms of Attorneys, who in course of time ceased to be entirely British in character.
Thus, we have now most of the members of the English Bar who are Indians, and so are the Attorneys.
Much of the differences, between an Advocate who was not a Barrister and an Advocate who was a Barrister, and much of the disabilities of the former class in the way of appearance on the original side, have disappeared as a result of the Indian Bar Council Act, 1926, and the Advocates Act (XXV of 1961) which have the benefit of unifying the Bar of India.
In spite of that, vested interests die hard, and this litigation is a result of the conflict between vested interests viz. those who wish to join that group of vested interests, and those who wish to abolish those interests.
The petition, as filed in this Court originally, was based on the grievance that in spite of the fact that those advocates had been called to the English Bar they were not being admitted to the Bar Library Club, and represented an attempt to be admitted to those exclusive rights which were enjoyed by the members of the Club.
On the other hand, the members of the Bar Association, who have intervened later in this controversy in this Court, have attempted to abolish the exclusiveness and to claim those rights for every one who is entitled to be called an Advocate.
60 Successive Chief Justices of the Court, beginning from late Sir Trevor Harris have sympathized with the attempt of the Advocates of all classes to get unified into one organisation on an equal footing, but they rightly pointed out that the desired result could be achieved only by mutual agreement amongst the two sections of Advocates.
The present Chief Justice reiterated in his letter of June 21, 1962, that the Court would be very pleased to see that the two Associations merge into one and occupy the rooms allotted to them jointly with effect from July 1, 1962, which was the date originally fixed for ' the Centenary celebrations of the Court.
The occassion was quite an appropriate one for the consummation of the desired unification of the entire Bar of the Court.
But circumstances did not prove propitious to such a desirable result.
It only shows that we cannot completely wipe out the past and that much of ' the legal system introduced during the British regime must continue for the better or for the worse.
The situation has not been rendered less complex by the continued existence of the third wing of the profession, the Attorneys.
Though opinion has been sharply divided as to the desirability of the continuance of this old institution imported from England, the fact remains that a large section of litigants on the Original side of the Court continues to employ the services of that class, and those who have been cultivating the good will of that class naturally have the advantage on their side.
We have, therefore, to take full notice of the fact that there are two sections of Advocates practising at the Bar of the Court, besides the Attorneys, namely, the members of the Bar Library Club who only plead but do not act, and, secondly the members of the Bar Association who not only plead but act also, though there may be many who only plead but do not act.
And then there are the Attorneys who only act.
It is entirely the lookout of the litigants, through their attorneys, to engage as their advocates, only for pleading, such members of the Bar as they 61 choose.
It is not entirely correct to assert that membership of the Club is a determining factor in being chosen to plead a case.
Litigants are naturally interested in the best results in their litigation and must be presumed to act in the best interests of their cause.
And, therefore, what has happened in the Bombay High Court during the last 50 years and more, may also happen in the Court, if the Bar Association is able to throw up advocates of the right caliber.
Viewing the whole case from the point of view of the litigant public and the practising lawyers themselves, we think that the best interests of the Court will be served, and we are only interested in the best interest of the Court itself, by recognising the necessity for the three categories of legal practitioners in the Court, namely, (1) those who only plead, (2) those who both plead and act, and (3) those who only act.
With that end in view, and at the instance of the Court, the members of the Bar Library Club recognised the need for amending their rules so as to admit such advocates as would only plead irrespective of the question whether or not they were Barristers.
Accordingly, they intimated to the Court that they had made necessary amendments in their rules. 'the principal amendment is in rule 1, which is to this effect: "1. Rule (1) shall be deleted and the following shall be substituted in its place: 1.
The Bar Library Club shall consist of: (a) Barristers of England or Ireland, or members of the Faculty of Advocates in Scotland after passing the examination or examinations prescribed by the authorities in England or Ireland or Scotland, as the case may be, who arc enrolled Advocates of the Calcutta High Court: (b) Other Advocates of the Calcutta High Court, who are entitled to practise on the Original side of the Calcutta High 62 Court under the rules lot the time being as the Committee of the Club may from time to time determine as hereinafter referred to." In Rule 25, the following consequential changes had been made: "In rule 25 after the words 'purposes of the Club ' add the words: " 'and determine from time to time having regard the accommodation in the club the number of the Advocates mentioned in Rule 1 (b) herein to be admitted as members of the Club '.
" It was pointed out on behalf of the petitioners and the interveners that the Club has, even by amending rule 1 read with additions to rule 25, quoted above, reserved to itself the right to limit the membership.
The learned Solicitor General, on behalf of the Bar Library Club, very appropriately intimated to us that the additions to rule 25, objected to on behalf of the petitioners, shall be withdrawn so that the petitioners may be assured that there will be no discrimination exercised in the matter of admission and that any application for admission shall be dealt with on its merits.
Of course, only those Advocates who undertake not to act shall be eligible for admission as members of the Club.
This arrangement, agreed to by the respondents 3 and 4 representing their Club, is a great improvement upon the position as it was when this Court was moved, and we are satisfied that nothing better could have been achieved as a result of these proceedings.
It will be noticed that we have not dealt with this case in the legalistic way in which it was sought to be presented on either side.
We have been chiefly guided by considerations of 'public good ', that is to say, that the Court should be assured of efficient and willing assistance from the Bar.
It is only to be hoped that this forward step is a precursor of further improvements in the relations between the 63 different sections of the Bar so that they may grow into a unified bar with all the best traditions which it has inherited from the past and which it is its duty to uphold in the years to come to the lasting credit of the legal profession and to the lasting benefit of all concerned with law and litigation.
In view of what we have said, the final position which emerges is this.
There are three sections of the Bar in the Court, viz., (1) those who only plead, (2) those who both plead and act and (3) those who only act.
This classification in our opinion is reasonable taking into account the past history to which we have already referred.
Grant of separate accommodation therefore to these three sections of the Bar cannot amount to denial of equality before the law.
The Bar Library Club has already agreed before us to change its rules so that the Club conforms exactly to the first section;and admission to it will be governed by rules which are common to all lawyers who want only to plead;there is therefore no reason to interfere with accommodation provided by the Court to the three sections of the Bar.
We have also no doubt that the Chief Justice will see that the undertaking given by the Bar Library Club will be carried out.
We may add that in case the undertaking is not carried out, the Chief Justice will see that necessary and appropriate rules are framed which will carry out the purpose for which the accommodation is placed at the disposal of the three sections of the Bar and the same are implemented so that there is no denial of equality before the law and accommodation is used for the three sections we have indicated above.
In this view of the matter, the petition fails and is hereby dismissed.
We leave the parties to bear their own costs.
Petition dismissed.
[/INST]Proceedings under section 491 of the Code of Criminal Procedure and article 226 of the Constitution of India were started by one Mahesh for a writ, order or direction in the nature of a writ of habeas corpus to release his alleged wife Kaniz Fatima alias Sheela from unlawful detention by the appellant, her father and for delivery of the said Kaniz Fatima to him.
On August 26, 1960, the High Court passed an order by which the objections of the appellant were overruled and he was directed to bring before the Court Kaniz Fatima alleged to be held in unlawful confinement.
The appellant was given ten days time to obey the direction.
As the direction was not complied with and Kaniz Fatima was not produced in Court 87 the High Court passed another order on September 16, 1960 by which the appellant was committed for contempt and sentenced to simple imprisonment for three months and to pay the costs.
The appellant came to this Court by special leave against the orders of the High Court.
Held: The order of the High Court committing the appellant for contempt was justified because the High Court rightly reached the conclusion that the appellant having knowledge of the whereabouts of Kaniz Fatima and having the custody of her through another, was wailfully and deliberately disobeying the direction of the Court.
In so far as the offence of contempt was concerned, there was manifest disobedience of the order and the High Court could punish by ordering the appellant to be detained in prison.
(ii) A writ of habeas corpus issues not only for release from detention by the State but also for release from private detention.
At common law, a writ of habeas corpus is available to the husband for regaining the custody of his wife if she is wrongfully detained by anyone without her consent.
Hence the order of the High Court was not without jurisdiction.
However, issuing of a writ of habeas corpus at the instance of a husband is very rare in English law.
In India, such a writ is probably never used by a husband to regain his wife and the alternative remedy under section 100 of the Code of Criminal Procedure is always used.
There is also the remedy of a civil suit for restitution of conjugal rights.
In both these cases, all the issues of fact can be tried and the writ of habeas corpus is probably not demanded in similar cases if issues of fact have first to be established.
This is because the writ of habeas corpus is festinum remedium and the power can only be exercised in a a clear case.
That is particularly so in cases where the petitioner is himself charged with a criminal offence in respect of the very person for whose custody he demands the writ.
A writ of habeas corpus at the instance of a man to obtain possession of a woman alleged to be his wife does not issue as a matter of course.
Though a writ of right, it is not a writ of course, especially when a man seeks the assistance of the court to regain the custody of a woman.
Before a court accedes to his request, it must satisfy itself at least primafacie that the person claiming the writ is in fact the husband and whether a valid marriage between him and the woman could at all have taken place.
(iii) The writ nisi for the production of Kaniz Fatima should have been preceded by some more inquiry.
It is wrong to think that in habeas corpus proceedings the Court is prohibited from ordering an inquiry into a fact.
All procedure is always open to a Court which is not expressly prohibited and no rule of the Court has laid down that evidence shall not be received if the court requires it.
The Queen vs Barnardo, ; The Queen vs Barnardo, and Thomas, John Barnardo v, Mary Ford, , referred to. 88
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<s>[INST] Summarize the judgement: Special Leave Petition (Crl.) No. 405 of 1980.
Appeal by special leave from the judgment and Order dated 31 10 1979 of the Punjab & Haryana High Court in Crl.
Appeal No. 986/77.
N. C. Talukdar, Shrinath Singh and M. section Dhillon for the Petitioner.
The Judgment of the Court was delivered by DESAI, J.
While we decline to grant special leave in this case, an unsavoury feature of the judgment which rather stares into our 1154 face, and surfaces at regular intervals, makes it obligatory to make a few observations.
Petitioner was convicted for having committed offences under Section 161 of the I.P.C. and Section 5(2) of the Prevention of Corruption Act and was sentenced to suffer R.I. for one year on each count and on the second count, also to pay a fine of Rs. 400/ or in default to suffer further R.I. for three months by the learned Special Judge.
Both the Substantive sentences of imprisonment were directed to run concurrently.
Petitioner preferred Criminal Appeal No. 989 of 1977 against his conviction and sentence to the High Court of Punjab and Haryana at Chandigarh.
This appeal came up for final hearing before a learned single judge of the High Court on 31st October, 1979.
When the appeal was taken up for hearing, learned counsel for the petitioner appearing in the High Court did not question either the correctness or the legality of the conviction.
This is unquestionable as the High Court has observed while disposing of the appeal that "no arguments on merits are advanced".
The High Court then proceeded to consider adequacy or otherwise of sentence imposed on the appellant before it.
The High Court then proceeded to reduce the substantive sentence of the appellant of rigorous imprisonment for one year to the sentence undergone till the date of the judgment of the High Court.
While so reducing the substantive sentence the High Court noticed the following circumstances which in the opinion of the High Court were sufficient to enable it to interfere with the sentences imposed upon the present petitioner.
It would be advantageous to extract the relevant observations: "The learned counsel for the appellant has only submitted that the appellant has already been dismissed from service; that he is a family man, and that his sentence may be reduced to that already undergone.
In my view no useful purpose will be served by sending him again to jail to serve his unexpired period of sentence.
He has already lost his job.
The ends of justice will be amply met if his sentence of imprisonment is reduced to that already undergone and instead sentence of fine is enhanced from Rs. 400 to Rs. 4000 (four thousand) or in default to suffer further R.I. for one year.
I order accordingly.
" The judgment of the High Court throws no light on the question as to how much sentence the appellant had undergone by the time the 1155 High Court released him on bail while admitting his appeal.
But it cannot be more than a few days only.
Petitioner as pointed out earlier is convicted for committing offences under Section 161 IPC and 5(2) of the Prevention of Corruption Act.
Section 5(2) of the Prevention of Corruption Act reads as under: "Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to seven years and shall also be liable to fine: Provided that the court may, for any special reasons recorded in writing, impose a sentence of imprisonment of less than one year." (underlining ours) The language of the proviso makes it abundantly clear that court is under an obligation to impose a minimum punishment once the conviction is recorded under Section 5(2) and the minimum punishment of imprisonment is for a term not less than one year.
Undoubtedly the proviso confers power on the Court to award less than the minimum punishment, if the Court convicting and sentencing the accused, is of the opinion that for any special reasons which the court is under an obligation to record in writing, sentence of imprisonment for a term less than the minimum is called for.
Conceding that the quantum of sentence is in the discretion of the trial court, where the Legislature stepped in and circumscribed and fettered the discretion by directing imposition of a minimum sentence, the court can exercise its discretion within the limited sphere left open by legislature.
The Legislature circumscribed the discretion by requiring the court to impose minimum sentence but left it open to award less than the minimum statutorily prescribed for special reasons.
The reasons have to be special reasons.
The words 'special reasons ' in the context in which they are used could only mean special to the accused on whom sentence is being imposed.
The court has to weigh reasons advanced in respect of each individual accused whose case is taken up for awarding sentence.
The word 'special ' has to be understood in contradistinction to word 'general ' or 'ordinary '.
Now what does term 'special ' connote ? "Special" means distinguished by some unusual quality; out of the ordinary.
(See Words and Phrases, Permanent Edition, Volume 39A p. 82.) Webster defines "special" as particular; peculiar; different from others; designed for a particular purpose, occasion, or person; limited in range; confined to a definite field of action.
Thus anything which is common to a large class 1156 governed by the same statute cannot be said to be special to each of them.
It would thus unquestionably appear that "special reasons" in the context of sentencing process must be special to the accused in the case or special to the facts and the circumstances of the case in which the sentence is being awarded.
The High Court then was under an obligation to award minimum sentence unless the accused advanced special reasons, i.e. special to him in the facts and circumstances of the case and successfully invoked the discretion vested in the Court to award less than the minimum sentence prescribed by law.
The Court observes that this appellant corrupt officer whose corruption was proved to its satisfaction because the High Court declined to interfere with the conviction of the appellant for corruption and who must consequently or of necessity be dismissed from service, considered his dismissal from service as a special reason.
Frankly speaking the High Court honestly did not expect any corrupt officer to be retained in service.
Ordinarily a corrupt official whose corruption is proved to the hilt is liable to be dismissed, and therefore, this aspect is not special to the appellant.
Accordingly if an officer proved to be corrupt to the satisfaction of the court is liable to be dismissed it cannot influence the question of sentence.
Also because it would be true of all public servants dealt with under Section 5(2) of the Prevention of Corruption Act.
Another special reason that appealed to the High Court is that appellant is a 'family man '.
Possibly the High Court considered marriage and children of the appellant as special to him.
An unusually large number of the Government officers from amongst those charged with corruption and convicted for the same would be married men with family, unless they joined service before marriage and became corrupt very soon at the inception of the career.
And ordinarily speaking a family of corrupt officer in some cases if not all benefits by the corrupt activity unless shown to the contrary which is not the case.
If large number of public servants from those convicted under section 5(2) of the Prevention of Corruption Act are married men with children it passes comprehension how this fact can be styled as special to the appellant influencing his sentence.
It may be mentioned without fear of contradiction that the only two reasons, special according to the High Court for awarding less than the minimum sentence are (i) appellant has lost his job and (ii) he is a married man with children.
These two reasons would be common to ninety nine per cent of cases tried under Prevention of Corruption Act and if they can be styled as special reasons for awarding less than the 1157 minimum sentence the proviso would be rendered wholly nugatory.
The Court should not be oblivious to the fact that while conferring discretion in the matter of awarding adequate sentence within limits prescribed by the statute, the Legislature finding cases of misplaced sympathy in sentencing process fettered the Court 's discretion by prescribing a minimum sentence and making it obligatory to record special reasons for awarding less than the minimum.
If still the notice of encroachments on court 's discretion is not taken, time may not be far when the Legislature out of exasperation may resort to what it has done in Section 16 of Prevention of Food Adulteration Act where minimum sentence is prescribed and Courts ' discretion to award less in any case is wholly taken away.
In this context it would be timely to recall the warning uttered by this Court in Jagdish Prasad vs West Bengal This Court said: "Offences under the Act being anti social crimes affecting the health and well being of our people, the Legislature having regard to the trend of courts to impose in most cases only fines or where a sentence of imprisonment was passed a light sentence was awarded even in cases where a severe sentence was called for, a more drastic step was taken by it in prescribing a minimum sentence and a minimum fine to be imposed even for a first offence.
" In this case, there was no justification, much less special reasons statutorily required, for awarding less than the minimum sentence.
stricto sensu Court exceeded its jurisdiction while interfering with the quantum of sentence.
And with this observation we dismiss the special leave petition.
S.R. Petition dismissed.
[/INST]The respondent was appointed on a purely temporary basis to the post of a medical Officer in the Oil and Natural Gas Commission.
Under the terms and conditions of service, he was to remain on probation for a period of one year which could be extended that the discretion of the appointing authority He was appointed on October 15, 1965.
During the period of his probation, on a report against him for negligence and dereliction of duty, a departmental enquiry was held against him but that was not proceeded with, nor was any punishment imposed on him.
His period of probation was extended for six months from 15 10 1966 and before his services were terminated, there was no express order either confirming him or extending the period of probation.
His services were terminated with effect from 28th July 1967.
The respondent filed a writ petition in the High court on the ground that the order terminating his services was malafide and was in fact passed by way of penalty entailing evil consequences The plea taken by the respondent found favour with the High Court which allowed the petition and quashed the order of the appellant terminating the services of the respondent.
Hence the appeal by special leave by the State.
Allowing the appeal the Court ^ HELD: l.
A temporary employee is appointed on probation for a particular period only in order to test whether his conduct is good and satisfactory so that he may be retained.
The remarks, the assessment roll merely indicate the nature of the performance put in by the officer for the limited purpose of determining whether or not his probation should be extended.
These remarks were not intended to cast any stigma.
[607G H. 608A] R. L. Butail vs Union of India followed 2.
The contention that the real motive behind the termination of the service of the respondent was to inflict a punishment on him and as the appellants did not comply with the requirements of Article 311 of the Constitution, the order impugned was illegal is not correct.
In the first place, it was clearly pleaded by the Government in its counter affidavit that although an enquiry was held it was not continued and no punishment was imposed on the respondent.
As the respondent was merely a probationer the appointing, authority did not consider it necessary to continue the enquiry but decided to terminate the services of the respondent as he was not found suitable for the job.
In the case of n probationer or a temporary employee.
who has no right to the post, such a termina 604 tion of his service is valid and does not attract the provisions of Article 311 of the Constitution [608C E, G H, 609A] Even if misconduct, negligence, inefficiency may be the motive or the inducing factor which influences the employer to terminate the services of the employee, a power which the appellants undoubtedly possessed, even so as under the terms of appointment of the respondent such power flowed from the R contract of service it could not be termed as penalty or Punishment.
[611C D] Shamsher Singh and Anr.
vs State of Punjab ; ; Purshottam Lal Dhingra vs Union of India ; ; State of U.P. vs Ram Chand Trivedi ; ; State of Maharashtra vs Veerappa R. Saboji and Anr. ; , followed.
The order impugned is prima facie an order of termination simpliciter without involving any stigma.
The order does not in any way involve any evil consequences and is an order of discharge simpliciter of the respondent who was a probationer and had no right to the service.
The respondent has not been able to make out any strong case for this Court to delve into the documents, materials in order to determine a case of victimisation or one of punishment The short history of the service of the respondent clearly showed that his work had never been satisfactory and he was not found suitable for being retained in service and that is why even though some sort of an enquiry was started, it was not proceeded with and no punishment was inflicted on him.
In these circumstances therefore, if the appointing authority considered it expedient to terminate the services of the respondent a probationer it cannot be said that the order of termination attracted the provisions of article 311 of the Constitution.
Thus, if the appellant found that the respondent was not suitable for being retained in service that will not vitiate the order impugned.
[611G H, 612B D] State of Bihar vs Gopi Kishore Parsad A.I.R. 1960, 689; distinguished.
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<s>[INST] Summarize the judgementAppeals Nos.
90 andand 91 of 1965.
Appeals by special leave from the judgment and order dated September 4, 1963 of the Madras High Court in Tax Cases Nos. 120 and 121 of 1963.
80 A. Ranganandhan Chetty and A. V. Rangam, for the appel lant.
T. A. Ramachandran and O. C. Mathur for the respondent.
The Judgment of the Court was delivered by Subba Rao, J.
These appeals, by special leave, raise the question of the true construction of the provisions of r. 5(1) (i) of the Madras General Sales Tax (Turnover and Assessment) Rules, 1939, hereinafter referred to as the Rules.
The facts are not in dispute and they may be briefly stated.
The respondent, Messrs Swastik Tobacco Factory, is a dealer in tobacco.
It purchased raw tobacco; by processing it in a prescribed manner, converted it into chewing tobacco and sold it as such in small paper packets.
The said process has been described by a Division Bench of the Madras High Court in Bell Mark Tobacco Co. vs Government of Madras(1) thus : "Taking, however, the cumulative effect of the various processes to which the assessee subjected the tobacco before he sold it is clear that what was eventually sold by the assessee was a manufactured product, manufactured from the tobacco that the assesses had purchased.
Soaking in jaggery water is not the only process to be considered.
The addition of flavouring essences and shredding of the tobacco should establish that what the assesses sold was a product substantially different from what he had purchased." for the purpose of these appeals, it was not disputed that the respondent purchased raw tobacco, converted it by a manufacturing process into chewing tobacco and sold it in small paper packets.
The respondent paid excise duty in respect of the raw tobacco purchased by it.
For the assessment years 1955 56 and 1956 57, the Assistant cum Deputy Commercial Tax Officer assessed the respondent to sales tax on the turnover of Rs. 10,67,923 10 9 and Rs. 7,71,661 11 0 respectively.
The respondent, claimed that the excise duty paid by it to the Central ' Government in respect of the raw tobacco should be deducted from the turnover ascertained by the said Officer.
But his conten tion was rejected.
On appeal, the order of the said Officer was confirmed by the Appellate Assistant Commissioner of Commercial Taxes.
On a further appeal to the Sales Tax Appellate Tribunal, the assessee, in addition to the question of deduction, raised (1) (1961) 12 S.T.C. 126,132.
81 an additional ground that the entire turnover of the sales on chewing tobacco was not liable to be assessed.
The Tribunal set aside the order of the Appellate Assistant Commissioner.
The State carried the matter in two revisions to the High Court of Madras.
A Division Bench of the said High Court agreed with the view expressed by the Tribunal and dismissed the revisions.
Hence the present appeals.
Mr. A. V. Rangam, learned counsel for the State, argued that the raw tobacco was converted by a manufacturing process into, chewing tobacco, a different commodity and that, therefore, under r. 5(1) of the Rules, as excise duty was paid only in respect of the raw tobacco and not chewing tobacco, the said duty was not deductible from the turnover of the assessee.
He did not contest the correctness of the decision of the High Court on the question of the taxability of the chewing tobacco under section 5(vii) of the Act.
Mr. T. A. Ramachandran, learned counsel for the respondent, contended that the said rule was couched in a comprehensive language so as to take in excise duty paid on raw tobacco converted by a manufacturing process into chewing tobacco.
The relevant rule reads thus : "Rule 5.
(1) The tax or taxes under section 3 or 5 or 5A or the notification or notifications under section 6(1) shall be levied on the net turnover of the dealers.
In determining the net turnover the amounts specified in the following clauses shall, subject to the condition specified therein, be deducted from the gross turnover of a dealer : (i) the excise duty, if any, paid by the dealer to the Central Government in respect of the goods sold by him; Both the advocates argued, on the basis of the factual position,.
that packets of chewing tobacco were goods different from tobacco from which the said goods were manufactured.
While the learned counsel for the State laid emphasis on the words "goods sold by him", the learned counsel for the respondent relied upon the expression "in respect of" preceding the said words.
If, instead of the expression "in respect of ', the word "on" were there, the intention of the rule would be manifest and the answer to the question raised would be obvious.
The excise duty paid by the respondent was only on the raw tobacco and not on the goods ' sold by it and, therefore, the said duty was not deductible thereunder.
So far there is no dispute.
But it was said that the 82 expression "in respect of" made all the difference.
The words "in respect of", it was said, meant "attributable" and, therefore, the argument proceeded, the excise duty paid on the tobacco, though it was not paid on the goods sold by the respondent, was attributable to the said goods sold.
The object of the concession is presumably to avoid payment of tax on tax in respect of the same goods.
If excise duty was paid by a dealer on certain goods, it would be deducted from the gross turnover of the dealer in regard to the said goods, as otherwise, in effect, sales tax would have to be paid on the amount paid towards excise duty.
This concession could have no relevance if the goods subjected to excise duty were different from the goods sold.
Raw tobacco, when converted by a process of manufacture into chewing tobacco, be comes a different marketable product.
There will be no comparison between the raw tobacco and the chewing tobacco in the matter of demand or even price.
Duty on raw tobacco may have some effect on the cost of the manu factured product, but it cannot possibly be said that the said duty is paid in respect of the manufactured product.
Rule 5(1)(i) of the Rules, therefore, permits deduction from the gross turnover of the dealer only the excise duty paid by him in respect of the same goods sold by him.
Learned counsel for the :respondent cited some English deci sions in support of his contention that the expression "in respect of the goods" was very wide and that it took in the raw material out of which the goods were made.
The House of Lords in Inland Revenue Commissioners vs Courts & Co.(1), in the context of payment of estate duty, con strued the words "in respect of" in section 5(2) of the Finance Act, 1894 (57 & 58 Vict.
c. 30) and observed that the phrase denoted some imprecise kind of nexus between the property and the estate duty.
The House of Lords in Asher vs Seaford Court Estates Ltd. (2) in construing the provisions of section 2, sub section
(3) of Increase of Rent and Mortgage Interest (Restrictions) Act, 1920 (10 & 11 Geo. 5, c. 17), held that the expression "in respect of ' must be read as equivalent to "attributable".
The Privy Council in Bicber, Ltd. vs Commissioners of Income tax(1) observed that the said words could mean more than "consisting of" or "namely".
It is not necessary to refer to other decisions.
It may be accepted that the said expression received a wide interpretation, (1) , 732.
(3) (2) 83 having regard to the object of the provisions and the setting in which the said words appeared.
On the other hand, Indian tax laws use the expression "in respect of" as synonymous with the expression "on" : see article 288 of the Constitution of India; section 3 of the Indian Income tax Act, 1922; sections 3(2) and 3(5), Second Proviso, of the Madras General Sales Tax Act, 1939; section 3(1A) of the Central Excise and Salt Act, 1944; and sections 9 of the Kerala Sales Tax Act.
We should not be understood to have construed the said provisions, but only have referred to their to state the legislative practice.
Consistent with the said practice, r. 5(1)(i) of the Rules uses the same expression.
When the said rule says "excise duty paid in respect of the goods", the excise duty referred to is the excise duty paid under section 3(1), read with the Schedule, of the (1 of 1944).
Under the, said section, read with the Schedule, excise duty is levied on the goods described in the Schedule.
Therefore, when r. 5(1)(i) of the Rules refers to the duty paid in respect of the goods to the Central Government, it necessarily refers to the duty paid on the goods mentioned in the Schedule.
As the duty exempted from the gross turnover is the duty so paid under the Central Act, read with the Schedule, the expression "in respect of" in the context can only mean excise duty paid on goods.
In our view, the expression "in respect of the goods" in r. 5(1)(i) of the Rules means only "on the goods".
Even if the word "attributable" is substituted for the words "in respect of", the result win not be different, for the duty paid shall be attributable to the goods.
If it was paid on the raw material it can be attributable only to the raw material and not to the goods.
We, therefore, hold that only excise duty paid on the goods sold by the assessee is deductible from the gross turnover under r. 5(1)(i) of the Rules.
We cannot, therefore, agree with the construction of r. 5(1)(i) of the Rules accepted by the High Court.
No other question was raised before us.
In the result, we modify the order of the High Court accordingly.
In the circumstances, we direct the parties to bear their respective costs.
Order modified.
[/INST]The respondent was employed in the Southern Railway as Train Examiner in the scale of Rs. 100 5 125 6 185.
He was promoted to officiate in the next higher scale of Rs. 150 225.
Subsequently he was reverted to the lower scale, and his departmental representations and appeals having failed, he filed a writ petition under article 226 of the Constitution.
The High Court held that the reversion of the respondent amounted to a reduction in rank because he was reverted from the higher post to the lower post notwithstanding the fact that his juniors were still retained in the higher posts.
As this reduction of rank was in violation of article 311(2) the High Court granted the writ prayed for.
The Divisional Personnel Officer, Southern Railway appealed to this Court by special leave.
It was contended on behalf of the appellant that the High Court had misunderstood the ratio of the judgment of this Court in Vaikunthe 's case and that the respondent had not suffered any reduction in rank within the meaning of article 311(2).
HELD : (i) The reversion of a Government servant from an officiating post to his substantive post, while his junior is officiating in higher post, does not, by itself, constitute a reduction in rank within the meaning of article 311(2) of the Constitution.
[110 D] (ii) An important aspect of the decision in Vaikunthe 's case was lost sight of by the High Court.
The real ground on which Vaikunthe 's reversion to his original post of mamlatdar was held to be a violation of his constitutional guarantee was that his chances of promotion were irrevocably barred for a period of three years.
There was no such bar on promotion in the present case.
[114 E] Madhav Laxman Vaikunthe vs State of Mysore, [1962] 1 S.C.R. 886, distinguished.
(iii) The respondent 's complaint was that he had lost his seniority by reason of the retention of his juniors in the officiating higher post.
But his rank in the substantive post i.e. in the lower grade, was in no way affected by this.
In the substantive grade the respondent retained his rank and was not visited with any penal consequences.
The respondent had no right to the post to which he was provisionally promoted.
His reversion in these circumstances did not amount to reduction in rank.
[118 G 119 A] 107 Parshotam Lal Dhingra vs Union of India, ; , State of Bombay vs F. A. Abraham, [1962] Supp. 2 S.C.R. 92 and The High Court, Calcutta vs Amal Kumar Roy, ; , 'relied on.
P. C. Wadhwa vs Union of India, , distinguished.
M. A. Waheed vs State of Madhya Pradesh, [1954] Nag.
L. J. 305, referred to.
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<s>[INST] Summarize the judgementivil Appeal Nos.
782 783 of 1973.
Appeals by Special Leave from the Judgment and Order dated 18 11 1972 of the Andhra Pradesh High Court in Cases Referred Nos. 50 and 52 of 1970.
P. A. Francis, K. C. Dua and Miss A. Subhashini for the Appellant.
L. A. Subba Rao for the Respondent.
The Judgment of the Court was delivered by VENKATARAMIAH, J.
These two appeals by Special Leave are filed against a common judgment dated November 18, 1971 delivered by the High Court of Andhra Pradesh in Case Referred Nos. 50 and 52 of 1970.
Sri Bommidala Kotiratnam (hereinafter referred to as 'the statutory agent ') is a dealer in tobacco at Guntur in the State of Andhra Pradesh.
During the previous year relevant to the assessment year 1962 63, the statutory agent purchased tobacco in India and exported it to Japan, where it was sold through M/s. Toshoku Ltd. (the assessee involved in Civil Appeal No. 782 of 1973 a Japanese Company and admittedly non resident.
Under the terms of the agreement between the statutory agent and the assessee referred to above, the latter was appointed the exclusive sales agent in Japan for selling tobacco exported by the former.
The assessee was entitled to a commission of 3% of the invoice amount.
The sale price received on the sale of tobacco in Japan was remitted wholly to the statutory agent who debited his commission account with the amount of commission payable to the Japanese company and credited the same in the account of the Japanese company in his books on December 31, 1961.
The amount was remitted to the Japanese company on 589 February 1, 1962 on which date an appropriate debit entry was made in the account of the Japanese company with the statutory agent.
The statutory agent had similarly sold some tobacco during the same accounting period through another non resident business house by name 'M/s Societe Pour Le Commerce International Des Tobacs ' (the assessee involved in Civil Appeal No. 783 of 1973) carrying on business in France.
The terms of agreement were the same as in the case of the Japanese Company referred to above, the only difference being the geographical area in which each of them had to render service as a selling agent.
In this case also the statutory agent made similar entries in his books regarding the commission payable to the assessee and ultimately made a debit entry in the account of the assessee in his books when the amount was transmitted to the assessee.
During the assessment year the question whether the commission amounts sent to the Japanese company and the French business house (hereinafter referred to collectively as 'the assessees ') were assessable in terms of section 161 of the Income tax Act, 1961 (hereinafter referred to as 'the Act ') arose for consideration before the Income tax Officer.
The statutory agent contended that the amounts in question were not taxable in view of the clarification of the legal position by the Board Circular (XXVII I) of 53 No. 26 (II/53) dated July 17, 1953 which stated: "A foreign agent of an Indian exporter operates in his own country and no part of his income arises in India.
Usually his commission is remitted directly to him and is therefore not received by or on his behalf in India.
Such an agent is not liable to Indian Income tax.
" The Income tax Officer, however, came to the conclusion that the sums in question were taxable in view of the decision of this Court in P. V. Raghava Reddi & Anr.
vs Commissioner of Income tax(1) and assessed them under section 143(3) read with section 163 of the Act.
The appeals preferred by the statutory agent against the orders of assessment before the Appellate Assistant Commissioner of Income tax and the Income tax Appellate Tribunal were unsuccessful.
Thereafter the following common question of law was referred to the High Court of Andhra Pradesh under section 256(1) of the Act: "Whether on the facts and in the circumstances of the case the assessment on the appellant under section 161 of the Income tax, Act, 1961 is justified?" 590 The High Court held that the assessments were not justified and answered the question against the Department.
Hence these appeals under Article 136 of the Constitution.
The relevant provisions of the Act on which reliance is placed before us are sections 5(2), 9(1)(i), 160, 161 and 163.
Section 5(2) of the Act which deals with the chargeability of the income of a person who is a non resident under the Act provides that subject to the provisions of the Act, the total income of any previous year of a person who is a non resident includes all income from whatever source derived (a) which is received or is deemed to be received in India in such year by or on behalf of such person, or (b) accrues or arises or is deemed to accrue or arise in India during such year.
Explanation 1 to section 5(2) of the Act declares that an income arising abroad can not be deemed to be received in India for the purpose of that section by reason only of the fact that it is included in a balance sheet prepared in India.
Section 9(1)(i) of the Act provides that all income accruing or arising whether directly or indirectly, through or from any business connection in India, or through or from any property in India, or through or from any asset or source of income in India, or through the transfer of a capital asset situate in India shall be deemed to accrue or arise in India.
The explanation to this clause provides that in the case of a business of which all the operations are not carried out in India, the income of the business deemed under this clause to accrue or arise in India shall be only such part of the income as is reasonably attributable to the operations carried out in India and in the case of a non resident no income shall be deemed to accrue or arise in India to him through or from operations which are confined to the purchase of goods in India for the purpose of export.
An agent of a non resident including a person who is treated as an agent under section 163 of the Act becomes, according to section 160(1) of the Act, the representative assessee in respect of the income of a non resident specified in sub section (1) of section 9 of the Act.
Section 161 of the Act makes a representative assessee, who is an agent of a non resident personally liable to assessment in respect of the income of the non resident.
Section 163 of the Act defines persons who may be regarded as agents of non residents for the purposes of the Act.
Sections 160, 161 and 163 of the Act are merely enabling provisions which empower the authorities at their option to make assessment on and to recover tax due under the Act from the representative assessee.
It is not disputed in these cases that if the incomes in question of the assessees are taxable, the statutory agent is liable to pay the tax.
The real question which falls for determination is whether the said incomes are taxable.
The facts found in these appeals are that the statutory agent exported his goods to Japan and 591 France where they were sold through the assessees.
The entire sale price was received in India by the statutory agent who made credit entries in his account books regarding the commission amounts payable to the assessees and remitted the commission amounts to them subsequently.
One extra feature in the case of the Japanese company is that it had been appointed as an exclusive agent for Japan.
It is not disputed that the assessees rendered service as selling agents to the statutory agent outside the taxable territories.
In order to establish its case, the Revenue has strongly relied on the decision of this Court in the case of P. V. Raghava Reddy (supra).
A perusal of that decision shows that the said case is distinguishable on facts.
In that case the assessee had exported in the years 1948 49 and 1949 50 certain quantity of mica to Japan.
Mica was not exportable directly to Japanese buyers during those years as Japan was under military occupation but to a State organisation called Boeki Cho (Board of Trade).
To negotiate for order and to handle its other affairs in Japan in connection therewith the assessee engaged San Ei Trading Co. Ltd., Tokyo as its agent.
The Japanese Company was admittedly a 'non resident ' company.
Under the agreements the assessee under took to pay certain percentage of gross sale proceeds as commission to the Japanese Company.
With regard to the mode of payment of commission, the agreements provided a term which read thus: "In view of the difficulties in this country it is requested that the first party credits all these amounts to the account of the second party with them without remitting the same until definate instructions are received by the first party.
" The first party to the agreement was the assessee and the second party was the Japanese Company.
During the two accounting years a total amount of Rs. 13,319 12 4 was paid to the Japanese Company either directly or through others to whom the assessee was instructed by the Japanese Company to pay the amount.
The Court rejected the contention of the assessee that the Japanese Company was not in receipt of the amount in the taxable territories and the amount was not income within the meaning of section 4(1)(a) of the Indian income tax Act, 1922 with the following observations: "This leaves over the question which was earnestly argued, namely, whether the amounts in the two accounting years can be said to be received by the Japanese Company in the taxable territories.
The argument is that the money was not actually received, but the assessee firm was a debtor in respect of that amount and unless the entry can be deemed to be a payment or receipt cl.
(a) cannot apply.
We need not consider the fiction, 592 for it is not necessary to go into the fiction at all.
The agreement, from which we have quoted the relevant term, provided that the Japanese Company desired that the assessee firm should open an account in the name of the Japanese Company in their books of account, credit the amounts in that account, and deal with those amounts according to the instructions of the Japanese Company.
Till the money was so credited, there might be a relation of debtor and creditor; but after the amounts were credited, the money was held by the assessee firm as a depositee.
The money then belonged to the Japanese Company and was held for and on behalf of the Company and was at its disposal.
The character of the money changed from a debt to a deposit in such the same way as if it was credited in a Bank to the account of the Company.
Thus, the amount must be held, on the terms of the agreement, to have been received by the Japanese Company, and this attracts the application of section 4(1)(a).
Indeed, the Japanese Company did dispose of a part of those amounts by instructing the assessee firm that they be applied in a particular way.
In our opinion, the High Court was right in answering the question against the assessee." The Court, as it is obvious from the portion extracted above, proceeded to hold that the amount in question was received by the Japanese Company in India and hence was taxable on that basis.
In the cases before us there were no terms corresponding to the term extracted above which was found in the agreements between the assessee and the Japanese Company in P. V. Raghava Reddi 's case (supra).
It cannot be said that the making of the book entries in the books of the statutory agent amounted to receipt by the assessees who were non residents as the amounts so credited in their favour were not at their disposal or control.
It is not possible to hold that the non resident assessees in this case either received or can be deemed to have received the sums in question when their accounts with the statutory agent were credited, since a credit balance without more only represents a debt and a mere book entry in the debtor 's own books does not constitute payment which will secure discharge from the debt.
They cannot, therefore, be charged to tax on the basis of receipt of income actual or constructive in the taxable territories during the relevant accounting period.
The second aspect of the same question is whether the commission amounts credited in the books of the statutory agent can be treated as incomes accrued, arisen, or deemed to have accrued or arisen in India to the non resident assessees during the relevant year.
This takes us to section 9 of the Act.
It is urged that the commission amounts 593 should be treated as incomes deemed to have accrued or arisen in India as they, according to the Department, had either accrued or arisen through and from the business connection in India that existed between the non resident assessees and the statutory agent.
This contention overlooks the effect of clause (a) of the Explanation to clause (i) of sub section (1) of section 9 of the Act which provides that in the case of a business of which all the operations are not carried out in India, the income of the business deemed under that clause to accrue or arise in India shall be only such part of the income as is reasonably attributable to the operations carried out in India.
If all such operations are carried out in India, the entire income accruing therefrom shall be deemed to have accrued in India.
If, however, all the operations are not carried out in the taxable territories, the profits and gains of business deemed to accrue in India through and from business connection in India shall be only such profits and gains as are reasonably attributable to that part of the operations carried out in the taxable territories.
If no operations of business are carried out in the taxable territories, it follows that the income accruing or arising abroad through or from any business connection in India cannot be deemed to accrue or arise in India.
(See Commissioner of Income tax, Punjab vs R. D. Aggarwal & Co. & Anr.(1) and M/s. Carborandum Co. vs C.I.T., Madras(2) which are decided on the basis of section 42 of the Indian Income tax Act, 1922, which corresponds to section 9(1)(i) of the Act.) In the instant case the non resident assessees did not carry on any business operations in the taxable territories.
They acted as selling agents outside India.
The receipt in India of the sale proceeds of tobacco remitted or caused to be remitted by the purchasers from abroad does not amount to an operation carried out by the assessees in India as contemplated by clause (a) of the Explanation to section 9(1)(i) of the Act.
The commission amounts which were earned by the non resident assessees for services rendered outside India cannot, therefore, be deemed to be incomes which have either accrued or arisen in India.
The High Court was, therefore, right in answering the question against the Department.
For the foregoing reasons, the appeals fail and are hereby dismissed with costs.
(Hearing fee one set).
V.D.K. Appeals dismissed.
[/INST]Dismissing the Revenue appeal by special leave, the Court ^ HELD: (1) The credit entries made in the books of a statutory agent do not by themselves amount to receipt by assessees who are non residents as long as the amounts so credited in their favour are not at their disposal or control.
[592 F] The non resident assessees in this case neither received nor could be deemed to have received the sums in question when their accounts with the statutory agent were credited, since a credit balance without more only represents a debt and a mere book entry in the debtor 's own books does not constitute payment which will secure discharge from the debt.
They cannot, therefore, be charged to tax on the basis of receipt of income actual or constructive in the taxable territories during the relevant accounting period.
[592 F G] P. V. Raghava Reddi & Anr.
vs Commissioner of Income tax [1962] Supp. 2 S.C.R. 596, distinguished.
(2) Under clause (a) of the Explanation to clause (i) of sub section (1) of section 9 of the Income Tax Act.
in the case of the business of which all the operations are not carried out in India, the income of the business deemed under that clause to accrue or arise in India shall be only such part of the income as is reasonably attributable to the operations carried out in India.
If all such operations are carried out in India, the entire income accruing therefrom shall be deemed to have accrued in India.
If, however, all the operations are not carried out in the taxable territories, the profits and gains of business deemed to accrue in India through and from business connection in India shall be only such profits and gains as are reasonably attributable to that part of the operations carried out in the taxable territories.
If no operations of business are carried out in the taxable territories, it follows that the income accruing or arising abroad through or from any business connection in India cannot be deemed to accrue or arise in India.
[593 B D] 588 In the instant case the non resident assessees did not carry on any business operations in the taxable territories.
They acted as selling agents outside India.
The receipt in India of the sale proceeds of tobacco remitted or caused to be remitted by the purchasers from abroad does not amount to an operation carried out by the assessees in India as contemplated by clause (a) of the Explanation to section 9(1)(i) of the Act.
The commission amounts which were earned by the non resident assessees for services rendered outside India cannot, therefore, be deemed to be incomes which have either accrued or arisen in India.
[593 E G] Commissioner of Income tax, Punjab vs R. D. Aggarwal & Co. & Anr. and M/s. Carborandum Co. vs C.I.T. Madras ; , referred to.
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<s>[INST] Summarize the judgementAppeal No. 1560 of 1966.
Appeal by special leave from the judgment and decree dated September 11, 1961 of the Mysore High Court in Second Appeal No. (B) 43 o,f 1956.
R.B. Datar and S.N. Prasad, for the appellants.
R. Gopalakrishnan and D.P. Mohanty, for the respondent.
343 The Judgment of the Court was delivered by Vaidialingam, J.
This appeal, by special leave, by defendants 1 to 4, is directed against the judgment and decree, dated September 11, 1961 of the Mysore High Court, in S.A. (B) No. 43 of 1956, confirming the decrees of the two Subordinate Courts granting a decree for possession in favour of the plaintiff respondent.
The respondent instituted suit No. 1 of 1945, before the Second Class Sub Judge at Chinchali, for recovery of possession of the suit lands.
According to the plaintiff, the lands are Patilkiwatan Inam lands and he has been registered as 'Nawa Wala ' by order No. 68 dated March 30, 1927 of the Revenue Authorities of the then Kolhapur State.
The suit properties had gone in partition to one Maya Gouda, a member of the Patil family.
Maya Gouda died about 35 or 40 years ago.
and his widow Jakkawwa was in possession of the lands till the date of her death on August 16, 1943.
The plaintiff 's further case was that though Maya Gouda and Jakkawwa had a daughter Bayabai, the 7th defendant in the suit, the latter could not inherit the inam properties under the law obtaining in Kolhapur State.
Therefore the line of Maya Gouda has become extinct and the plaintiff, as Nawa Wala is entitled to.
get possession of the properties as per the Wat Hukum No. 26 of Fasli 1323.
Defendants 1 to 4, the appellants herein, contested the claim of the plaintiff on various grounds.
They pleaded that the plaintiff was not the senior most member of the senior branch of the family to which Maya Gouda belonged and that they were the nearest reversioners, under Hindu Law, to the properties of Maya Gouda.
They further pleaded that there was no extinction of the line of Maya Gouda as he had left a daughter, the 7th defendant, behind him.
They also.
claimed title by adverse possession.
The trial Court, by its Judgment and decree dated February 10, 1949 negatived the plea of adverse possession raised by the appellants.
It further held that the expression 'Nashtamsha ' in ' the relevant Wat Hukum means that there is no direct male descendant to inherit the properties of the deceased.
For this proposition, the trial Court relied upon a judgment of the Kolhapur High Court in S.A. No. 210 of 1947.
On this interpretation it held that the line of Maya Gouda had become extinct with regard to the Inam lands according to law, as the 7th defendant, the daughter, could not inherit the properties.
The trial Court further held that the plaintiff, defendants 1 to 4 and the deceased Maya Gouda, were members of one and the same family and that this fact had been admitted by both the parties.
In the end the trial Court decreed the claim of the plaintiff to get possession of 344 the suit properties and passed a decree to that effect against the defendants.
Defendants 1 to 4 filed an appeal before the District Judge, Kolhapur, which appeal was later transferred to.
the District Judge, Belgaum, in view of the merger of Kolhapur State with Bombay.
The said appeal, No. 403 of 1949, was disposed of by the Second Extra Assistant Judge, Belgaum, by his decree and judgment dated March 24, 1952.
The Assistant Judge was of the view that the suit will have to be remanded for fresh consideration and for this purpose certain issues were framed 'and parties given opportunity to adduce further evidence.
The plaintiff challenged this order of remand, passed by the Assistant Judge, before the High Court of Bombay.
The Bombay High Court, by its judgment dated July 21, 1953 set aside the remand order passed by the Assistant Judge of Belgaum 'and directed the District Court to dispose of the appeal according to law.
The Assistant Judge of Belgaum, by his judgment dated January 29.
1954 disposed of C.A. 403 of l 949, confirming the decree and judgment of the trial Court.
The .learned Judge held that the plaintiff had been registered 'as the Nawa Wala of the branch of the family consisting of himself, the defendants a.nd the deceased Maya Gouda and Jakkawwa with respect to the 8 annas ' share of the Maratha Patils.
He further held that the Civil Courts had no jurisdiction to go behind the order of the Revenue Authorities recognizing the plaintiff as Nawa Wala, in view of section 3 of the Kolhapur Revenue Jurisdiction Act.
On the question,n whether Maya Gouda 's branch has become Nashtamsha, as mentioned in the Wat Hukum, the learned Judge held that the Kolhapur Courts had consistently interpreted the said expression to mean that a branch became Nashtamsha with respect to Watan Properties when the deceased person left behind him no sons.
As authority for this proposition.
the Court relied upon the decision of the Kolhapur Supreme Court in Dada Babaji Patil vs Kalgonda Babgonda Patil(1).
The Court also referred to the later decision in S.A. 210 of 1947.
relied on by the trial Court.
On this interpretation, the Court held that in spite of Maya Gouda having left behind him his daughter, the 7th defendant, his line should be considered as Nashtamsha, so far as the Watan properties were concerned and in consequence, the plaintiff, as Nawa Wala was entitled to get possession of the properties.
The finding that the defendants had not completed title by adverse possession was accepted by the Court.
In this view, the appeal filed by defendants 1 to 4 was dismissed.
Defendants 1 to 4 filed a second appeal before the Bombay High Court, which appeal, on reorganisation of the States, was (1) (1945) Kol.
L.R. 541.
345 transferred to the Mysore High Court and registered as Second Appeal No. 43 (B) of 1956.
The Mysore High Court, by its judgment dated September 11, 1961, has confirmed the decisions of the Subordinate Courts accepting the claim of the plaintiff and dismissed the second appeal.
Mr. R.B. Datar, learned counsel for the appellants, urged two contentions: (1 ) The view of the High Court that the right to Watan properties goes along with the service to be performed by the person registered as Nawa Wala, is erroneous and is contrary to the Wat Hukum No. 26 of Fasli 1323.
(2) The view of the High Court and the two S.subordinate Courts that there is Nashtamsha in the line of Maya Gouda, is errcneous, as apart from there being the daughter, the 7th defendant, the appellants are also heirs, being the nearest reversioners and, as such, entitled to succeed.
We may deal with both the contentions together.
It is no doubt seen that the High Court has proceeded on the basis that the right to.
Watan properties goes along with the duty to perform the services and therefore prima facie, the person who is required to do the services, must be entitled to the property.
But a reference to the Wat Hukum No. 26 indicates that all the properties need not necessarily be with the person doing the service, and that the service is to be taken from persons in the eldest branch regarding Patils and that it is not to.
be taken by other sharers.
It further provides that as service is not to be taken from bhauband, local fund and judi of their share should be recovered by the village Officers along with Government land revenues to be credited to the Government for payment to the person registered as Nawa Wain.
In this case, though the plaintiff as the registered Nawa Wain was doing service, it is seen that the suit properties were in possession of Jakkawwa, the widow of Maya Gouda who died about 30 or 40 years ago.
That the property must go with the service, is only one of the reasons given by the High Court for holding against the appellants.
But this reasoning does not vitiate the conclusions arrived at by the learned Judges that the plaintiff was entitled to get possession of the properties as Nawa Wala under the Wat Hukum, as Maya Gouda 's branch had become Nashtamsha.
Mr. Datar further contended that the expression 'Nashtam sha ' occurring in the Wat Hukum means a total absence of heirs in the sense that there is nobody to succeed, under Hindu Law, to the estate of Maya Gouda.
As Maya Gouda had left a daughter.
the 7th defendant and as, in any event the appellants are the nearest reversioners entitled to succeed to the estate of Maya Gouda under Hindu Law, it cannot be stated that the line of Maya Gouda has become extinct so as to enable the plaintiff to 346 recover possession of the properties.
It is common ground that the Wat Hukum provides for the Nawa Wala taking possession of the properties if the family of a particular holder of Watan lands becomes Nashtamsha.
The expression 'Nashtamsha ' has come up for consideration 'before the Courts in Kolhapur.
The Supreme Court o,f Kolhapur, in Dada Patil 's Case (1) had to consider the question whether the expression 'Nashtamsha ' means complete and total absence.
of direct lineal heirs.
In that decision, after the death of the holder, his widow inherited the lands and remained in possession till her death.
On the death of the widow, the reversionary heirs of the deceased holder under Hindu Law entered into possession of the properties.
The plaintiff in that case, who had been registered as the Nawa Wala by the Revenue Authorities, sued to obtain possession of the lands and the claim of the plaintiff was allowed by the Court, holding that the existence of the reversionary heirs did not take the case out of 'Nashtamsha ' as provided in the Wat Hukum.
The above decision was also followed in the same Court, by Lokur, J., in S.A. 210 of 1947 who held that if there is no direct male descendant then that case should be considered as 'Nashtamsha '.
We have already referred to the fact that these two decisions have been followed by the trial Court as well as by the Assistant Judge on appeal.
From these decisions it follows that in the Kolhapur State, the succession to Watan properties was not governed by the ordinary Hindu Law, but by Wat Hukum No. 26 and on the interpretation placed by the Courts in that State, there will be 'Nashtamsha ' when a person dies without leaving behind him any sons.
That is the position in the case before us.
As pointed out earlier, Maya Gouda died leaving his daughter, the 7th defendant, but no sons.
The 7th defendant possibly could not inherit the Watan properties, according to the decision of the Courts in Kolhapur State.
The plaintiff 's specific claim was that under the law obtaining in Kolhapur State, the 7th defendant was only the daughter of Maya Gouda and could not inherit the properties and that he, as the Nawa Wala was entitled to recover possession of the properties.
On the other hand, defendants 1 to 4 specifically pleaded that the 7th defendant, the daughter of Maya Gouda, was entitled to inherit the properties.
All the Courts have accepted the plaintiff 's plea, and decreed his claim.
Mr. Datar, learned counseL, referred us to the decision of the Division Bench of the Bombay High Court in Shivgonda @ Appasaheb Virgonda Patil vs Champabai Bharatar Sidgonda @ Racsaheb Shidgonda Patil (2).
That judgment was delivered on (1) (1945) Kol.
L.R. 541.
(2) Appeal N9.
297 of 1957 from original decree, decided on 7 12 1962.
347 December 7, 1962 and a certified copy of the same has been placed before us.
The learned Judges have observed: "Whatever may have been the interpretation of the Vathukums in Kolhapur State, so far as this Court is concerned it is well settled that 'Nashtamsha ' does not mean a man dying without male issue 'but it means a man dying without leaving any heir.
Accordingly, therefore, unlike the authorities in Kolhapur State, this Court held that as long as there was a single heir, whether male or female, to the deceased, it does not result in 'Nashtamsha ' of the line." According to.
this decision, Maya Gouda 's branch cannot be considered to be 'Nashtamsha ' as he has left his daughter, the 7th defendant, as his heir, and she will be entitled to inherit the Watan properties.
We may also refer to a Division Bench decision of the Mysore High Court in Sambaii Ramachandra Kulkarni vs Gopal Govind Dattaward(1) wherein the Mysore High Court has not agreed with the view of the Bombay High Court, expressed in an earlier decision, similar to the view taken by the Bombay High Court in Shivgonda 's case(2), that the expression 'Nashtamsha ' has to be interpreted as meaning that a holder has left no heirs at all who can inherit his estate under the Hindu Law.
It is not necessary for us in this case to.
resolve the conflicting views noted above.
Whatever may be the interpretation, the appellants will not be entitled to inherit the properties of Maya Gouda.
Because, if the view of the Kolhapur Courts is accepted, the plaintiff, as the Nawa Wala, is entitled to get possession; and if the Bombay view is accepted, it is the 7th defendant, who will be entitled to inherit the watan properties of her father Maya Gouda.
In either case, the appellants cannot inherit the watan properties of Maya Gouda and thus they are out of the picture.
The 7th defendant, against whom also a decree for possession has been passed, did not contest the claim of the plaintiff.
Nor did she file any appeal against the decree of the trial Court.
It has to be further noted that even the appellants have not made her a party, either be,fore the first Appellate Court, or in the High Court, or even before this Court.
In the result, the appeal fails and is dismissed with costs.
V.P.S. Appeal dismissed.
(1) (2) Appeal No. 297 of 1957 from original decree, decided an 7 12 1962.
[/INST]The appellants gave kanta blows resulting in a number of injuries to a person.
Some of injuries were incised wounds, some contusions, and some abrasions.
All the incised4 injuries except one showed that the bones had been cut.
On the question whether the conviction of the appellants under section 326, I.P.C. for grievous hurt was justified or not; HELD: The conviction under section 326 was fully justified.
In order to.
justify conviction under section 326, the injuries must satisfy the requirements of cl. 7 Dr cl. 8 of section 320 of the Indian Penal Code, otherwise they will be treated as simple injuries.
Clauses 7 'and 8 of section 320 I.P.C., provide that an injury could only be designated as grievous if it is (1) a fracture or dislocation of a bone or tooth, or (2) any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits.
Fracture has not been defined in the Penal Code.
It is not necessary that a bone should be cut through and through or that the crack must extend from the outer to the inner surface or that there should be displacement of any fragment of the bone.
If there is a break by cutting or splintering of the bone or there is a rupture or fissure in it, would amount to a fracture within the.
meaning of cl. 7 of section 320.
What has to be seen is whether the cuts in the bones noticed in the injury report are only superficial or do they effect a break in them.
[242 H; 243 D F] In the present case, some of the incised injuries show that they were bone deep and were described as cutting the underlying bone, which would show that they were fractures.
Apart from this the doctor said that the injuries were grievous.
These injuries were inflicted by Kantas which are dangerous weapons.
Observations contra in Po Yi Maung vs Ma E Tin, A.I.R. (1937) Rang.
253 and Mutukdhar Singh vs Emperor, A.I.R. (1942) Pat. 376, disapproved.
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<s>[INST] Summarize the judgementAppeal No. 427 of 1959.
Appeal by special leave from the Award dated February 18, 1958, of the Industrial Tribunal (Textiles) U.P., Allahabad, in Petitions (under section 6 E) Nos.
(Tex.) 3 and 4 of 1957 and 1 of 1958.
M. C. Setalvad, Attorney General for India and G. C. Mathur, for the appellant.
B. P. Maheshwari, for the respondents.
December 12.
The Judgment of the Court was delivered by GAJENDRAGADKAR, J.
Three applications made by the appellant the Lord Krishna Textile Mills under section 6 E(2)(b) of the United Provinces (Act XXVIII of 1947) for obtaining the approval of the Industrial Tribunal to the dismissal of 8 of its workmen have been rejected; and the Tribunal has refused to accord its approval to the action taken by the appellant.
This appeal by special leave challenges the legality, validity as well as the propriety of the said order, and the principal question which it seeks to raise is in regard to the scope of the enquiry permissible under section 6 E(2)(b) as well as the extent of the jurisdiction of the Tribunal in holding such an enquiry.
Section 6 E(2) of the U. P. Act is identical in terms with section 33 of the (XIV of 1947) (hereafter called the Act), and for convenience we would refer to the latter section because what we decide in the present appeal will 206 apply as much to cases falling under section 6 E(2)(b) of the U. P. Act as those falling under section 33(2)(b) of the Act.
It appears that on October 12, 1957 when the appellant 's Controller of Production and the General Superintendent were discussing certain matters in the office of the appellant mills, Har Prasad, one of the 8 workmen dismissed by the appellant, came to see the Controller along with some other workmen.
These workmen placed before the Controller some of their grievances; and when the Controller told their leader Har Prasad that the grievances set forth by them were not justified Har Prasad replied that the Controller was in charge of the management of the appellant mills and could do what he liked, but he added that the ways adopted by the management were not proper and "it may bring very unsatisfactory results".
With these words Har Prasad and his companions left the office of the Controller.
Two days thereafter Har Prasad and Mool Chand saw the Controller again in his office and complained that one of the Back Sizers Yamin had reported to them that the Controller had beaten him; the Controller denied the allegation whereupon the two workmen left his office.
At about 6 p.m. the same evening a number of workmen of the appellant mills surrounded Mr. Contractor, the General Superintendent, and Mr. Surti when they were returning to their bungalows from the mills and assaulted and beat them.
The two officers then lodged a First Information Report at Thana Sadar Bazar, Saharanpur about 9 p.m.; thereupon the Inspector of Police went to the scene of the offence, and on making local enquiries arrested two workmen Ramesh Chander Kaushik and Tika Ram.
This offence naturally led to grave disorder in the mills, and the officers of the mills felt great resentment in consequence of which the mills remained closed for three days.
The appellant 's management then started its own investigations and on October 17 it suspended five workmen Har Prasad, Majid, Zinda, Yamin and Manak Chand.
Notice was served on each of these suspended workmen calling upon them to explain their conduct and 207 to show cause why they should not be dismissed from the service of the mills.
As a result of further investigation the management suspended two more workmen Om Parkash and Satnam on October 24 and served similar notices on them.
Ramesh Chander Kaushik and Tika Ram were then in police custody.
After they were released from police custody notices were served on them on November 24 asking them to show cause why their services should not be terminated.
All the workmen to whom notices were thus served gave their explanations and denied the charges levelled against them.
An enquiry was then held according to the Standing Orders.
At 'the said enquiry all the.
workmen concerned as well as the representatives of the union were allowed to be present and the offending workmen were given full opportunity to produce their witnesses as also to cross examine the witnesses produced by the management against them.
As a result of the enquiry thus held the management found the charges proved against the workmen concerned, and on November 19 Om Parkash, Satnam, Majid, Yamin, Zinda and Har Prasad were dismissed.
These dismissed workmen were asked to take their final dues together with one month 's pay in lieu of notice as required by the Standing Orders, On Decem ber 20, the enquiry held against Tika Ram and Ramesh Chander concluded and as a result of the findings that the charges were proved against them the said two workmen were also dismissed from service and required to take their final dues with one month 's wages in lieu of notice.
At this time an industrial dispute in respect of bonus for the relevant year was pending before the Industrial Tribunal (Textile) U.P., Allahabad.
The appellant, therefore, made three applications before the Tribunal under section 6 E(2) of the U. P. Act on November 21 and 27 and December 21, 1957 respectively.
By these applications the appellant prayed that the Industrial Tribunal should accord its approval to the dismissal of the workmen concerned.
On February 18, 1958 the Tribunal found that the appellant had failed to make out a case for dismissing the 208 workmen in question, and so it refused to accord its approval to their dismissal.
Accordingly it directed the appellant to reinstate the said workmen to their original jobs with effect from the dates on which they were suspended with continuity of service, and it ordered that the appellant should pay them full wages for the period of unemployment.
It is on these facts that the question about the construction of section 6 E(2)(b) of the U.P. Act falls to be considered.
As we have already observed the material provisions of section 6 E of the U. P. Act are the same as section 33 of the Act after its amendment made by Act 36 of 1956; and since the fatter section is of general application we propose to read the relevant provisions of section 33 of the Act and deal with them.
All that we say about this section will automatically apply to the corresponding provisions of section 6 E of the U. P. Act.
Section 33 occurs in Chapter VII of the Act which contains miscellaneous provisions.
The object of section 33 clearly is to allow continuance of industrial proceedings pending before any authority prescribed by the Act in a calm and peaceful atmosphere undisturbed by any other industrial dispute; that is why the plain object of the section is to maintain status quo as far as is reasonably possible during the pendency of the said proceedings.
Prior to its amendment by Act 36 of 1956 section 33 applied generally to all cases where alteration in the conditions of service was intended to be made by the employer, or an order of discharge or dismissal was proposed to be passed against an employee without making a distinction as to whether the said alteration or the said order of discharge or dismissal was in any manner connected with the dispute pending before an industrial authority.
In other words, the effect of the unamended section was that pending an industrial dispute the employer could make no alteration in the conditions of service to the prejudice of workmen and could pass no order of discharge or dismissal against any of his employees even though the proposed alteration or the intended action had no connection whatever with the dispute pending.
between him and his employees.
This led to a general 209 complaint by the employers that several applications had to be made for obtaining the permission of the specified authorities in regard to matters which were not connected with the industrial dispute pending adjudication; and in many cases where alterations in conditions of service were urgently required to be made or immediate action against an offending workman was essential in the interest of discipline, the employers were powerless to do the needful and had to submit to the delay involved in the process of making an application for permission in that behalf and obtaining the consent of the Tribunal.
That is why, by the amendment made in section 33 in 1956 the Legislature has made a broad division between action proposed to be taken by the employer in regard to any matter connected with the dispute on the one hand, and action proposed to be taken in regard to a matter not connected with the dispute pending before the authority on the other.
Section 33(1) provides that during the pendency of such industrial proceedings no employer shall (a) in regard to any matter connected with the dispute alter to the prejudice of the workmen concerned in such dispute the conditions of service applicable to them immediately before the commencement of such proceedings, or (b) for any misconduct connected with the dispute discharge or punish whether by dismissal or otherwise any workman connected with such dis pute, save with the express permission in writing of the authority before which the proceeding is pending.
Thus the original unamended section has now been confined to cases where the proposed action on the part of the employer is in regard to a matter connected with a dispute pending before an industrial authority.
Under section 33(1) if an employer wants to change the conditions of service in regard to a matter connected with a pending dispute he can do so only with the express permission in writing of the appropriate authority.
Similarly, if he wants to take any action against an employee on the ground of an alleged misconduct connected with the pending dispute he 27 210 cannot do so unless he obtains previous permission in writing of the appropriate authority.
The object of placing this ban on the employer 's right to take action pending adjudication of an industrial dispute has been considered by this Court on several occasions.
In the case of the Punjab National Bank Ltd. V. Its Workmen (1) this Court examined its earlier decisions on the point and considered the nature of the enquiry which the appropriate authority can hold when an application is made before it by the employer under section 33(1) and the extent of the jurisdiction which it can exercise in such an enquiry.
"The purpose the Legislature had in view in enacting section 33", it was held, "was to maintain the status quo by placing a ban on any action by the employer pending adjudication"; and it was added "but the jurisdiction conferred on the Industrial Tribunal by section 33 was a limited one.
Where a proper enquiry had been held and no victimisation or unfair labour practice had been resorted to, the Tribunal in granting permission had only to satisfy itself that there was a prima facie case against the employee and not to consider the propriety or adequacy of the proposed action".
It is significant that the Tribunal can impose no conditions and must either grant permission or refuse it.
It is also significant that the effect of the permission when granted was only to remove the ban imposed by section 33; it does not necessarily validate the dismissal or prevent the said dismissal from being challenged in an industrial dispute.
This position is not disputed before us.
What is in dispute before us is the nature of the enquiry and the extent of the authority 's jurisdiction in holding such an enquiry under section 33(2).
Section 33(2) deals with the alterations in the conditions of service as well as discharge or dismissal of workmen concerned in any pending dispute where such alteration or such discharge or dismissal is in regard to a matter not connected with the said pending dispute.
This class of cases where the matter giving rise to the proposed action is unconnected with the pending industrial dispute has now been taken (1) ; 211 out of the scope of section 33(1) and dealt with separately by section 33(2) and the following sub sections of section 33.
Section 33(2) reads thus: "During the pendency of any such proceeding in respect of an industrial dispute, the employer may, in accordance with the standing orders applicable to a workman concerned in such dispute, (a) alter, in regard to any matter not connected with the dispute, the conditions of service applicable to that workman immediately before the commencement of such proceeding; or (b) for any misconduct not connected with the dispute, discharge or punish, whether by dismissal or otherwise, that workman: Provided that no such workman shall be discharged or dismissed, unless he has been paid wages for one month and an application has been made by the employer to the authority before which the proceeding is pending for approval of the action taken by the employer.
" It would be noticed that even during the pendency of an industrial dispute the employer 's right is now recognised to make an alteration in the conditions of service so long as it does not relate to a matter connected with the pending dispute, and this right can be exercised by him in accordance with the relevant standing orders.
In regard to such alteration no application is required to be made and no approval required to be obtained.
When an employer, however, wants to dismiss or discharge a workman for alleged misconduct not connected with the dispute he can do so in accordance with the standing orders but a ban is imposed on the exercise of this power by the proviso.
The proviso requires that no such workmen shall be discharged or dismissed unless two conditions are satisfied; the first is that the employee concerned should have been paid wages for one month, and the second is that an application should have been made by the employer to the appropriate authority for approval of the action taken by the employer.
It is plain that whereas in cases falling under section 33(1) no action can be taken by the employer unless he has 212 obtained previously the express permission of the appropriate authority in writing, in cases falling under sub section
(2) the employer is required to satisfy the specified conditions but he need not necessarily obtain the previous consent in writing before he takes any action.
The requirement that he must obtain approval as distinguished from the requirement that he must obtain previous permission indicates that the ban imposed by section 33(2) is not as rigid or rigorous as that imposed by section 33(1).
The jurisdiction to give or withhold permission is prima facie wider than the jurisdiction to give or withhold approval.
In dealing with cases falling under section 33(2) the industrial authority will be entitled to enquire whether the proposed action is in accordance with the standing orders, whether the employee concerned has been paid wages for one month, and whether an application has been made for approval as prescribed by the said sub section.
It is obvious that in cases of alteration of conditions of service falling under section 33(2)(a) no such approval is required and the right of the employer remains unaffected by any ban.
Therefore, putting it negatively the jurisdiction of the appropriate industrial authority in holding an enquiry under section 33(2)(b) cannot be wider and is, if at all, more limited, than that permitted under section 33(1), and in exercising its powers under section 33(2) the appropriate authority must bear in mind the departure deliberately made by the Legislature in separating the two classes of cases falling under the two sub sections, and in providing for express permission in one case and only approval in the other.
It is true that it would be competent to the authority in a proper case to refuse to give approval, for section 33(5) expressly empowers the authority to pass such order in relation to the application made before it under the proviso to section 33(2)(b) as it may deem fit; it may either approve or refuse to approve; it can, however, impose no conditions and pass no conditional order.
Section 33(3) deals with cases of protected workmen and it assimilates cases of alterations of conditions of service or orders of discharge or dismissal proposed to 213 be made or passed in respect of them to cases falling under section 33(1); in other words, where an employer wants to alter conditions of service in regard to a protected workman, or to pass an order of discharge or dismissal against him, a ban is imposed on his rights to take such action in the same manner in which it has been imposed under section 33(1).
Sub section (4) provides for the recognition of protected workmen, and limits their number as therein indicated; and sub section
(5) requires that where an employer has made an application under the proviso to sub section
(2), the authority concerned shall without delay hear such application and pass as expeditiously as possible such orders in relation thereto as it deems fit.
This provision brings out the legislative intention that, though an express permission in writing is not required in cases falling under the proviso to section 33(2)(b), it is desirable that there should not be any time lag between the action taken by the employer and the order passed by the appropriate authority in an enquiry under the said.
proviso.
Before we proceed to deal with the merits of the dispute, however, we may incidentally refer to another problem of construction which may arise for decision under section 33(2)(b) and which has been argued before us at some length.
When is the employer required to make an application under the proviso to section 33(2)(b)? Two views are possible on this point.
It may be that the proviso imposes two conditions precedent for the exercise of the right recognised in the employer to dismiss or discharge his workman pending a dispute.
The use of the word "unless" can be pressed into service in support of the argument that the two conditions are conditions precedent; he has to pay wages for one month to the employee, and he has to make an application for approval; and both these conditions must be satisfied before the employee is discharged or dismissed.
On this view it would be open to the employer to discharge or dismiss his employee after satisfying the said two conditions without waiting for the final order which the authority may pass on the application made before it in that 214 behalf.
The Legislature has indicated that there should be no time lag between the making of the application and its final disposal, and so by sub section
(5) it has specifically and expressly provided that such application should be disposed of as expeditiously as possible.
This view proceeds on the assumption that the word "unless" really means "until" and introduces a condition precedent.
On the other hand, it is possible to contend that the application need not be made before any action has been taken, and that is clear from the fact that the application is required to be made for approval of the action taken by the employer.
"Approval" according to its dictionary meaning suggests that what has to be approved has already taken place; it is in the nature of ratification of what has already happened or taken place.
The word "approval" in contrast with the word "previous permission" shows that the action is taken first and approval obtained afterwards.
Besides, the words "action taken" which are underlined by us, it may be argued, show that the order of discharge or dismissal has been passed, and approval for action thus taken is sought for by the application made by the employer.
On the first construction the words "action taken" have to be construed as meaning action proposed to be taken, whereas on the latter construction the said words are given their literal meaning, and it is said that the discharge or dismissal has taken place and it is the action thus taken for which approval is prayed.
In support of the first view it may be urged that the words "action taken" can well be interpreted to mean "action proposed to be taken" because it is plain that the condition as to payment of wages cannot be literally construed and must include cases where wages may have been tendered to the workman but may not have been accepted by him.
In other words, the argument in support of the first interpretation is that in the construction of both the conditions the words "paid" and "action taken" cannot be literally construed, and in the context should receive a more liberal interpretation.
"Paid wages" would on that view mean "wages 215 tendered" and "action taken" would mean "action proposed to be taken".
If these two words are literally construed there may be some inconsistency between the notion introduced by the use of the word "unless" and these words thus literally construed.
It may also be urged in support of the first contention that if the ban imposed by the proviso does not mean that an application has to be made before any action is taken by the employer it would be left to the sweet will of the employer to make the requisite application at any time he likes.
The section does not provide for any reasonable period within which the application should be made and prescribes no penalty for default on the part of the employer in making such an application within any time.
On the other hand, this argument can be met by reference to section 33A of the Act.
If an employer does not make an application within a reasonable time the employee may treat that as contravention of section 33(2)(b) and make a complaint under section 33A, and such a complaint would be tried as if it is an industrial dispute; but, on the other hand an employer can attempt to make such a complaint ineffective by immediately proceeding to comply with section 33(2)(b) by making an application in that behalf and the authority may then have to consider whether the delay made by the employer in making the required application under section 33(2)(b) amounts to a contravention of the said provision, and such an enquiry could not have been intended by the Legislature; that is why the making of the applica tion should be treated as a condition precedent under the proviso.
If that be the true position then the employer has to make an application before he actually takes the action just as he has to tender money to the employee before dismissing or discharging him.
But, if it is not a condition precedent, then he may pass an order of discharge or dismissal and make an application in that behalf within reasonable time.
We have set forth the rival contentions in regard to the construction of the proviso, but we do not propose to express our decision on the point, because, having regard to their pleadings, we cannot allow the respondents to raise this question for our decision in the 216 present appeal.
It is clear from the contentions raised before the Tribunal and the pleas specifically raised by the respondents in their statement of case before this Court that both parties agreed that the application in question had been properly made under the proviso; and the only point at issue between them is about the validity and propriety of the order under appeal having regard to the limited jurisdiction of the enquiry under section 33(2)(b), and it, is to that question that we must now return.
Before we do so, however, we ought to add that our attention had been drawn to three decisions of this Court in which, without any discussion of the point, the validity of the employers ' applications made under section 33(2)(b) appears to have been assumed though the said applications were presumably made after the employers had dismissed their employees.
They are: Delhi Cloth and General Mills Ltd vs Kushal Bhan (1); The Management of Swatantra Bharat Mills, New Delhi vs Ratan Lal (2 ); and The Central India Coal fields Ltd., Calcutta vs Ram Bilas Shobnath (3).
We wish to make it clear that these decisions should not be taken to have decided the point one way or the other since it was obviously not argued before the Court and had not been considered at all.
In view of the limited nature and extent of the enquiry permissible under section 33(2)(b) all that the authority can do in dealing with an employer 's application is to consider whether a prima facie case for according approval is made out by him or not.
If before dismissing an employee the employer has held a proper domestic enquiry and has proceeded to pass the impugned order as a result of the said enquiry, all that the authority can do is to enquire whether the conditions prescribed by section 33(2)(b) and the proviso are satisfied or not.
Do the standing orders justify the order of dismissal? Has an enquiry been held an provided by the standing order? Have the wages for the month been paid as required by the proviso?; and, has an application been made as prescribed by the proviso? This last (1) ; (2) Civil Appeal No. 392 of 1959 decided on 28.3.1960 (3) Civil Appeal No. 162 of 1959 decided on 31.3.1960 217 question does not fall to be decided in the present appeal because it is common ground that the application has been properly made.
Standing Order 21 specifies ' acts of omission which would be treated as misconduct, and it is clear that under 21(s) threatening or intimidating any operative or employee within the factory premises is misconduct for which dismissal is prescribed as punishment.
This position also is not in dispute.
There is also no dispute that proper charge sheets were given to the employees in question, an enquiry was properly held, and opportunity wag given to the employees to lead their evidence and to cross examine the evidence adduced against them; in other words, the enquiry is found by the Tribunal to have been regular and proper.
As a result of the enquiry the officer who held the enquiry came to the conclusion that the charges as framed had been proved against the workmen concerned, and so orders of dismissal were passed against them.
In such a case it is difficult to understand how the Tribunal felt justified in refusing to accord approval to the action taken by the appellant.
It has been urged before us by the appellant that in holding the present enquiry the Tribunal has assumed powers of an appellate court which is entitled to go into all questions of fact; this criticism seems to us to be fully justified.
One has merely to read the order to be satisfied that the Tribunal has exceeded its jurisdiction in attempting to enquire if the conclusions ,of fact recorded in the enquiry were justified on the merits.
It did not hold that the enquiry was defective or the requirements of natural justice had not been satisfied in any manner.
On the other hand it has expressly proceeded to consider questions of fact and has given reasons some of which would be inappropriate and irrelevant if not fantastic even if the Tribunal was dealing with the relevant questions as an appellate court.
"The script in which the statements have been recorded", observes the Tribunal, "is not clear and fully decipherable".
How this can be any reason in upsetting.the finding of the enquiry it is impossible to 28 218 understand.
The Tribunal has also observed that the evidence adduced was not adequate and that it had not been properly discussed.
According to the Tribunal the charge sheets should have been more specific and clear and the evidence,should have been more satisfactory.
Then the Tribunal has proceeded to examine the evidence, referred to some discrepancies in the statements made by witnesses and has come to the conclusion that the domestic enquiry should not have recorded the conclusion that the charges have been proved against the workmen in question.
In our opinion, in making these comments against the findings of the enquiry the Tribunal clearly lost sight of the limitations statutorily placed upon its power and authority in holding the enquiry under section 33(2)(b).
It is well known that the question about the adequacy of evidence or its sufficiency or satisfactory character can be raised in a court of facts and may fall to be considered by an appellate court which is entitled to consider facts; but these considerations are irrelevant where the jurisdiction of the court is limited as under section 33(2)(b).
It is conceivable that even in holding an enquiry under section 33(2)(b) if the authority is satisfied that the finding recorded at the domestic enquiry is perverse in the sense that it is not justified by any legal evidence whatever, only in such a case it may be entitled to consider whether approval should be accorded to the employer or not; but it is essential to bear in mind the difference between a finding which is not supported by any legal evidence and a finding which may appear to be not supported by sufficient or adequate or satisfactory evidence.
Having carefully considered the reasons given by the Tribunal in its award under appeal, we have no hesitation in holding that the appellant is fully justified in contending that the Tribunal has assumed jurisdiction not vested in it by law, and consequently its refusal to accord approval to the action taken by the appellant is patently erroneous in law.
Mr. Maheshwari, however, wanted us to examine the case of Har Prasad, because, according to him, Har Prasad has been victimised by the employer for 219 his trade union activities.
Har Prasad is the President of the Kapra Mill Mazdoor Union, Saharanpur, and it is because of his activities as such President that the appellant does not like him.
It is common ground that at the relevant time Har Prasad was not recognised as a protected workman, and so his case does not fall under section 33(3).
The Tribunal has observed that this workman has not been named by any witness as having taken part in any assault, and it was therefore inclined to take the view that his dismissal amounted to victimisation.
We have carefully considered this workman 's case, and we are satisfied that the Tribunal was not justified in refusing to accord approval even to his dismissal.
It is common ground that Har Prasad led the deputation to the Controller of Production both on October 12 and October 14; and the threat held out by him on the earlier occasion is not denied by him.
In terms he told the Controller that his conduct would bring trouble.
It is significant that some of the workmen who assaulted the officers on October 14 had accompanied Har Prasad and were present when he gave the threat to the Controller.
Sushil Kumar, who is the appellant 's Controller of Production, has deposed to this threat.
The sequence of events that took place on October 14 unambiguously indicates that it was the threat held out by Har Prasad and the incitement given by him that led to the assault on the evening of October 14.
Mr. Sushil Kumar 's evidence appears to be straightforward and honest.
He has frankly admitted that in the past Har Prasad had been co operating with him and that he had.
never instigated any attack on the officers on any previous occasion.
Har Prasad no doubt denied that there was any exchange of hot words during the course of his interview with the officers but he has not disputed Mr. Sushil Kumar 's evidence that he uttered a warning at the time of the said interview.
In fact his contention appears to have been that action should have been taken against him soon after he uttered the threat.
On the evidence led at the enquiry, the enquiry officer came to the conclusion that the charge framed against this workman had 220 been clearly proved.
The charge was that he had plotted and hatched a conspiracy for assaulting the General Superintendent, Weaving Master, Chief Engineer, Factory Manager and the Controller of Production.
The details of the charge were specified, and at the enquiry it was held that these charges had been proved.
There is no doubt that these charges, if proved, deserve the punishment of dismissal under the relevant standing orders.
The Tribunal, however, purported to examine the propriety of the finding recorded against Har Prasad and came to the conclusion that the said finding was not justified on the merits.
As we have already pointed out the Tribunal had no jurisdiction to sit in appeal over the findings of the enquiry as it has purported to do.
The result is that the conclusion of the Tribunal in regard to all the workmen is unjustified and without jurisdiction.
The appeal is accordingly allowed, the order passed by the Tribunal is set aside, and approval is accorded to the action taken by the appellant under section 6E.
There will be no order as to costs.
Appeal allowed.
[/INST]Village P in the State of Andhra Pradesh was originally comprised of a village of the same name and a fairly large hamlet called PP, but in view of the difficulties in the two being treated as one unit for purposes of village administration the Board of Revenue sanctioned the bifurcation of P into two villages, P and PP.
On the division of the village all the hereditary village offices of the original village ceased to exist under section 6(1) of the Madras Hereditary Village Offices Act, 1895, and new offices were created for the two villages.
The section provided, inter alia, that "in choosing persons to fill such new offices the Collector shall select the persons whom he may consider the best qualified from among the families of the last holders of the offices which have been abolished." Though applications for the post of Village Munsif of PP had been invited by the Revenue authorities and the petitioner among others had made the application, respondent 4 who was the son of the Village Munsif of the old village, P, was selected on the ground that in view of section 6(1) of the Act, as the last holder of the office was appointed to the new village, P, after bifurcation, respondent 4 as the son of the last holder and nearest heir had a preferential claim for the post of Village Munsif for PP.
The petitioner challenged the validity of the order of the Revenue authorities on the grounds (1) that the office of Village Munsif was an office under the State, and that the order in favour of 932 respondent 4 which expressly stated that they proceeded on the basis of the hereditary principle laid down in section 6(1) of the Act, discriminated against him as a citizen on the ground of descent only and violated the guarantee of equal opportunity enshrined in article 16 of the Constitution of India, and (2) that section 6(1) of the Act, to the extent that it permitted such discrimination was void under article 13(1) of the Constitution.
The plea of the respondents was (1) that the expression "office under the State" in article 16 had no, reference to an office like that of the Village Munsif which in its origin was a customary village office later recognised and regulated by law, and (2) that article 16 did not apply to a hereditary office because a person entitled to it under the Act had a pre existing right to the office and its emoluments which could be enforced by a suit.
Held: (1) that a village office like that of the Village Munsif was an office under the State within the meaning of article 16 of the Constitution of India; M. Ramappa vs Sangappa and otheys; , 167, referred to.
(2) that a person entitled to an office under section 6(1) of the Madras Hereditary Village Offices Act, 1895, did not have any pre existing right to property in the shape of emoluments of the office, independent or irrespective of the office, and consequently to such an office article 16 applied; and, (3) that section 6(1) of the Act embodied a principle of discrimination on the ground of descent only and was in contravention of article 16(2) of the Constitution.
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<s>[INST] Summarize the judgementivil Appeal Nos. 123124 of 1985.
From the Judgment and Order dated 21.9.1984 of the Punjab and Haryana High Court in R.S.A. No. 1716 of 1978 and R.S.A. No. 1898 of 1978.
Shanti Bhushan, Vishnu Mathur, Mrs. Roxna Swamy and Rajinder Singh for the Appellants.
T.A. Ramachandran and Ramesh K. Keshwani for the Re spondents.
The Judgment of the Court was delivered by OZA, J.
These appeals arise out of the judgment of Punjab & Haryana High Court dated 21.9.1984 in Regular Second Appeal Nos.
1716/78 and 1698/78 wherein the learned Judge dismissed the two second appeals and maintained the judgment of the appellate court i.e. Additional District Judge granting a decree for half share of the property each in favour of Smt.
Pan Bai and Smt.
Sohan Bai, the two daugh ters of deceased Smt.
Mam Kaur.
In order to clearly understand the facts the pedigree of the family would be relevant: 1015 Hari Singh Sanehi Singh Hazari Singh Smt.
Mam Kaur Jawana Singh Lakhi Singh Smt.
Pan Bai Smt.
Sohan Bai Munshi ' (Plaintiff in (Plaintiff in Singh & Ranjit Singh suit out of suit out of five others and6 other sons which RSA No. which RSA No.(defendants (Defendants 7 1698 of 1978 17 16 of 1978 Nos.1to 6) to 13) has arisen) has arisen) Hazari Singh owned agricultural lands the dimensions and its identity is not in dispute before us and he died in November 1918 leaving behind his widow Smt.
Mam Kaur who inherited the property.
Hazari Singh had left behind two daughters i.e. Smt.
Pan Bai, Plaintiff in the suit out of which second appeal before the High Court was No. 1698/78 and Smt.
Sohan Bai who was also a plaintiff in suit out of which second appeal before the High Court was No. 17 16/78.
In 1944 it is alleged that Smt.
Mam Kaur adopted Ranjit Singh grandson of Sanehi Singh and son of Lakhi Singh.
This Ranjit Singh had six other brothers and it is alleged that in 1945 Smt.
Mam Kaur gifted all the lands which she had inherited from her husband by an oral gift to Ranjit Singh.
As regards the two events i.e. adoption and gift there is some controversy in respect of the respective dates.
It appears and it was contended by the counsel for the appel lants that adoption was first and gift was only a consequen tial act to accelerate the succession whereas learned coun sel for the respondents contended that gift was first where as adoption was subsequent.
But it is not disputed that the gift also is nothing more than an oral gift and the same is about adoption.
Munshi Singh and his five brothers filed a suit for declaration challenging this gift and adoption made by Smt.
Mam Kaur in favour of Ranjit Singh.
By judgment and decree dated 24. 7.1947 the suit was decreed and it was held that the adoption of Ranjit Singh was invalid and the gift also was held ,to be invalid and a declaration was granted in respect of the gift so far as it affected the reversionary rights.
Against this judgment Ranjit Singh preferred an appeal but this was also dismissed.
On 4th June, 1963 Smt.
Mam Kaur sold away the entire lands to Ranjit Singh and his brothers for an amount of Rs.50,000.
Thereafter 1016 to claim pre emption a suit was filed by Smt.
Pan Bai and the other suit was filed by Munshi Singh and his five broth ers on the ground that as reversioners they have a superior right to pre emption.
In these preemption matters ultimately the Court held that Smt.
Pan Bai had a superior right as compared to Munshi Singh and his brothers and therefore and earlier date was given to Smt.
Pan Bai to deposit the sale amount and seek pre emption failing which her suit was to be dismissed and a later date was given to Munshi Singh and his brothers to deposit the sale amount and opt for pre emption.
Similar condition of dismissal of the suit for failure of depositing the amount was imposed.
So far as Smt.
Pan Bai is concerned she did not deposit the amount and therefore her suit for pre emption was dismissed where as Munshi Singh and others deposited the amount and obtained a decree of preemp tion which was executed and they obtained possession and in this manner they stood substituted in the sale.
In January 1965 Smt.
Mam Kaur died and Smt.
Sohan Bai filed a suit bearing No. 403/65 seeking a decree for posses sion of half of the share on the plea that in view of the declaratory decree dated 24.7.
1947 which was confirmed on appeal that on the death of Smt.
Mam Kaur succession had to be traced to Hazari Singh i.e. Sohan Bai 's father and she being the direct heir of Hazari Singh was entitled to half share in the land.
It was also pleaded that Smt.
Mam Kaur had already parted with her widow 's estate by gift deed made by her in 1945 in favour of Ranjit Singh and therefore she had no subsisting title which she could transfer by way of sale by the sale deed dated 4.9.63 and thus by this sale deed as she herself had no title she could not convey any title in favour of Ranjit Singh and his brothers.
Sohan Bai 's suit was decreed but on appeal it was remanded.
In the mean time Smt.
Pan Bai also filed a similar suit which was numbered 203/68 to claim possession of the remaining half share on the same ground, as was filed by Smt.
Sohan Bai.
The two suits were consolidated and the trial court by its judgment dated 2nd January, 1973 decreed Smt.
Sohan Bai 's suit but dismissed the suit filed by Smt.
Pan Bai on the ground that as Smt.
Pan Bai had filed a suit claiming on the basis of pre emption earlier she was estopped from disputing the validity of sale made by Smt.
Mam Kaur.
Against this judgment of the trial court losing parties filed their appeals before the Additional District Judge who by his judgment and decree dated 25.9.78 maintained the decree in the suit of Sohan Bai and reversed the trial court judgment in the suit of Smt.
Pan Bai and held that both the daughters were entitled to succeed to half share each in the property.
Against this judgment the defendants in Smt.
Sohan Bai 's case filed a regular second appeal which was No. 1716/78 1017 and defendants in Smt.
Pan Bai 's case filed regular second appeal which was No. 1698/78 in the Punjab & Haryana High Court.
Both these second appeals Were disposed of by the impugned judgment of the High Court.
Most of the facts are not in dispute.
The main contro versy raised in these appeals is that in the earlier suit the adoption and gift both were declared as invalid in a suit for declaration filed by the reversioners, what will be its effect? On the one hand counsel for the appellants contended that in fact adoption was followed by gift more or less in the nature of a step to accelerate the succession and when the court declared both to be invalid it clearly meant that the donee who was the adopted son Ranjit Singh was not left with any rights in the properties whereas on behalf of the respondents it was contended that adoption no doubt was declared invalid but so far as gift was concerned it was declared invalid in a suit for declaration by rever sioners to the limited extent that this gift will not affect the rights of the reversioners thereby meaning that so far as the life estate of Smt.
Mam Kaur was concerned it was transferred by this gift deed but the right of the rever sioners to succeed on the death of Smt.
Mam Kaur was pro tected as it was declared that this gift will not affect the rights of the reversioners.
A controversy was also raised as to which adoption or gift was first in time and what is its effect? Learned counsel for the appellants contended that as the adoption and gift both were declared invalid although a declaration was granted in a suit by reversioners but it clearly meant that nothing remained with the so called donee and therefore when Hindu Succession Act come into force because of Section 14 clause (1) Smt.
Mam Kaur became the absolute owner and therefore she had a valid right to trans fer the property by sale.
It was also contended that Ranjit Singh in whose favour the gift was alleged to have been made himself agreed to purchase this property alongwith his brothers; this indicates that he accepted the position that Smt.
Mam Kaur after coming into force of the Hindu Succes sion Act had acquired the absolute rights and she could convey the property by sale.
In any event his accepting to purchase the property from Smt.
Mam Kaur, amounts to an admission that there was no right created in his favour by gift which was declared invalid and on this basis learned counsel for the appellants contended that the appellants are entitled to succeed and the High Court was not right in granting the decree on the basis of the claim of the two daughters who claimed to be the heirs of Hazari Singh.
Alternatively it was 1018 also contended by learned counsel for the appellants that even if the gift in favour of Ranjit Singh is accepted it is clear that Smt.
Mam Kaur had succeeded to the property as an heir of her husband and because of Hindu women 's right to property Act, 1937 Smt.
Mam Kaur had a limited estate.
As it is well settled that this limited estate in favour of Smt.
Mam Kaur had all the rights which an heir could have in immovable property but in the case of female heirs the only limitation was in respect of alienation and alienation could only be of the rights that she could alienate and that amounts to only life interest.
It is also well settled that the alienaee in this case Ranjit Singh will get the property till the life time of Smt.
Mam Kaur and it is also well settled that if during the life time of Smt.
Mam Kaur Hindu Succession Act came into force, as the property in suit was in the hands of alienee i.e. Ranjit Singh he will not get the benefit of Section 14(1) and will not become the abso lute owner but on the death of Smt.
Mam Kaur the property will revert back to the heirs of Smt.
Mam Kaur 's husband.
It was also contended that in spite of the fact that a gift creating a life interest in favour of Ranjit Singh was in existence but Smt.
Mam Kaur still had the residuary rights of disposing of the property after her death if during her lifetime the Hindu Succession Act came into force.
As in the present case it did come into force, the limited rights which remained with Smt.
Mam Kaur became full rights on coming into force of the Hindu Succession Act and therefore if Smt.
Mam Kaur transferred by sale the property the sale would convey at least the residuary rights vested in her i.e. the right of absolute ownership at most subject to possession of the alienee during her lifetime and on this basis it was contended that the sale made by Smt.
Mam Kaur is valid and therefore the view taken by the High Court is not correct.
On the other hand learned counsel for the respondents contended that as the gift was valid the property was trans ferred in favour of the alienee i.e. Ranjit Singh although it was the life estate but with the Hindu Succession Act coming into force she could not be said to be possessed of the property as there were no rights in the property vested in Smt.
Mam Kaur and even if the widest meaning is given to 'possessed of ' still it could not be contended that she had any rights left with her.
Therefore during her lifetime the alienee alone had the rights in property.
The effect if any of the earlier decree was that on her death the property will revert back and in that event it will revert back to the heirs of her husband not to her heirs and in this view it was contended that the judgment passed by the High Court is correct.
As regards the effect of Smt.
Pan Bai 's suit for pre emption 1019 leading to estoppel also contentions were advanced.
Learned counsel for the appellants on the basis of decisions of this Court in Jagannathan Pillai vs Kunjithapa dam Pillai and Ors., ; and Gopal Singh and Another vs Dile Ram (dead) by LRs and others, contended that as the gift at best could be said to be effective during the lifetime of Smt.
Mam Kaur she had a residuary right left in her which she could dispose of.
Alternatively it was contended that gift in favour of Ranjit Singh was declared invalid and therefore she could be said to be possessed of the property in view of language of Section 14(1) of the Hindu Succession Act.
It was also contended that in the sale deed, Ranjit Singh himself was one of the purchasers and the sale deed indicates that at the time of sale Smt.
Mam Kaur delivered possession to the purchasers.
On these basis it was contended that it appears that Ranjit Singh had given the possession of the property back to Smt.
Mam Kaur before this sale deed was executed.
Learned counsel for the respondents on the other hand contended that the decree declaring the gift bad was only a declaratory decree in favour of the reversioners that clear ly meant that so far as reversioners rights on the death of Smt.
Mam Kaur are concerned they could not be affected by gift but it did not mean that Smt.
Mam Kaur did not transfer her rights by gift in favour of Ranjit Singh.
It was there fore contended that in view of decision in Kuldip Singh and others vs Surain Singh and Others, which is a judgment of a Bench .of three Judges of this Court, Smt.
Mam Kaur could not be said to be a person possessed of anything and therefore no benefit could be obtained by Section 14(1) so far as Smt.
Mam Kaur is concerned and it was therefore contended that the judgment passed by the High Court could not be assailed.
It was also contended that so far as the question of re conveyance by Ranjit Singh in favour of Smt.
Mam Kaur is concerned, the question has been examined on the basis of evidence by the two courts below and a positive finding has been arrived at by the courts that the evidence is not sufficient to come to the conclu sion that there was transfer of possession from Ranjit Singh to Smt.
Mam Kaur before the sale deed was executed.
It was also contended that the two decisions on which reliance is placed by the learned counsel are clearly distinguishable on facts as in these two judgments on the date the Hindu Suc cession Act came into force, the widow was possessed of the property and therefore it was held that she acquired the rights as full owner.
1020 So far as the contention of the learned counsel for the appellant about the transfer of possession from Ranjit Singh back to Smt.
Mam Kaur is concerned the learned courts below have come to a positive finding of fact that there was no transfer of possession in favour of Smt.
Mam Kaur before the sale deed by her was executed and while coming to the con clusion the courts below have considered the effect of the recital in the sale deed executed by Smt.
Mam Kaur and the fact that Ranjit Singh is one of the purchasers and having gone through the judgments, in our opinion, the conclusions could not be said to be erroneous and therefore the conten tions of the learned counsel for the appellants on that ground could not be accepted.
As regards the question about the declaration of the gift to be invalid, the judgment which granted the decree in favour of the reversioners clearly indicated that it was a decree of declaration saying that the gift had no effect on the rights of the reversioners.
The words in the operative part of the judgment stated: "For the reasons aforesaid the plaintiffs succeed and are granted a decree for declara tion that Mst.
Mam Kaur did not validly adopt Ranjit defdt.
and that gift in favour of Ranjit defdt.
shall not affect the right of the reversioners after the death or termina tion of the interest in the suit land of Mst.
Mam Kaur.
" In this view of the matter it is therefore clear that what was held was that the gift will not affect the rights of the reversioners on the death of Smt.
Mam Kaur but it could not be disputed that so far as Smt.
Mam Kaur during her lifetime is concerned as she had gifted away the property to Ranjit Singh and delivered possession she had no rights left with her.
The contentions advanced by learned counsel in respect of residuary rights also is of no consequence as it is apparent that Smt.
Mam Kaur who was enjoying the limited estate before the Hindu Succession Act came into force, transferred her rights by gift and if a valid gift is ef fected it could not be contended that there were any residu ary rights left with her.
In fact what residuary rights could be thought of were not the rights of the widow but the right of the reversioners to get as heirs of her husband on her death and on that basis it could not be said that she could be said to be possessed of any right in the property which she held as a limited owner on the date the Hindu Succession Act came into force.
In Jagannathan Pillai 's case the 1021 property was re conveyed in favour of the widow and this Court therefore observed: "The case of the widow who had temporarily lost the right in the property by virtue of the transfer in favour of the alienee or the donee cannot be equated with that of a strang er by forgetting the realities of the situa tion.
Surely, the Act was intended to benefit her.
And when the widow becomes possessed of the property, having regained precisely that interest which she had temporarily lost during the duration of the eclipse, Section 14(1) would come to her rescue which would not be the matter in the case of a stranger who cannot invoke Section 14( 1).
" In Gopal Singh 's case, this Court while examining the facts, clearly stated as under: "It is pertinent to note that the compromise decree reads as follows: I allow the appeal of the appellants and modify the judgment of the trial court to the extent that gift deed in respect of the land measuring 21 15 17 bighas comprising Khata Khatauni No. 3/16 to 27 bighas situated in village Barsu Ballah is hereby rejected and declared ineffective.
The aforesaid land along with the other land shall be divided in equal shares after the death of Sheru alias Bhushe hari and Dhari shall himself give due share to Hari Ram in accordance with the aforementioned order.
" The operative portion of the compromise decree which was quoted by this Court in the judgment clearly indicated that as the gift deed was ineffective in respect of the lands mentioned therein the widow continued to enjoy the rights and benefits till the Hindu Succession Act came in force as it is observed: "The effect of the aforesaid was that the gift was ineffective and Smt.
Bhushehari continued to enjoy the right and benefit she had during her limited ownership until 1956".
Under these circumstances therefore these cases do not help the appellant.
It is clear that in view of gift made in favour of Ranjit Singh,Mam Kaur on the date on which Hindu Succession Act came into 1022 force, was not possessed of any fight in the property and therefore she could not get any advantage from the coming into force of the Hindu Succession Act.
This Court in Kuldip Singh 's case clearly held: "It is clear from the questions reproduced above that, on the principles laid down by this Court in the case of Mangal Singh and others (supra) it has to be held in the present case that the property in dispute cannot be held to be possessed by Smt.
Mehtab Kaur, because, after gifting the property to Hamam Singh, and parting with the possession of the property, she was not left with any fights at all under which she could regain possession in her own life time.
The gift executed by her was binding on her, even though it may not 'have been binding on the reversioners.
She could not, therefore, avoid the deed of gift and could not claim back possession from Hamam Singh or his successors in interest.
Having thus completely parted with her fights, she could not be held to be possessed of the property when the Act came into force and consequently she could not become full owner of it.
" It is clear that on the date on which Smt.
Main Kaur executed the sale deed, in fact she had no title to the property nor she was in possession thereof.
As regards the contention about Smt.
Pan Bai on the basis of estoppel is concerned it is clear from the language of Section 115 of the Evidence Act that doctrine of estoppel can not be invoked merely because Smt.
Pan Bai filed a suit for pre emption.
Section 115 of the Evidence Act reads thus: "When one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing.
" In view of this learned counsel did not seriously press the contention.
Consequently we see no reason to entertain the appeal.
The appeals are therefore dismissed and the decree passed by the learned courts below is maintained.
In view of the circumstances of the case we pass no orders as to costs.
[/INST]One Hazari Singh died in November 1918 leaving behind his widow Smt.
Mam Kaur and two daughters viz., Smt.
Pan Bai and Smt.
Sohan Bai.
The widow inherited the agriculture properties of her husband.
The present appeals have arisen out of the two suits filed by the two daughters aforesaid claiming their half share in the property.
The circumstances that led to the filing of the suits may be stated thus: Smt.
Mam Kaur, the widow, adopted Ranjit Singh grand son of Sanehi Singh and son of Lakhi Singh (one of the collater als) in 1944 and gifted all the lands to him inherited by her from her husband.
Both the adoption as also the gift were made orally.
Munshi Singh and his brothers (reversions) filed a suit challenging the validity both of the adoption of Ranjit Singh and the gift of the properties to him.
By a decree of the Court both the adoption as also the gift in favour of Ranjit Singh were declared invalid and a declaration was granted in respect of the gift so far as it affected the reversionary rights.
Thereupon on 4th June, 1963, Smt.
Mam Kaur sold away the entire property to Ranjit Singh & his brothers for Rs.50,000.
Pan Bai, daughter of deceased Hazari Singh and Munshi Singh and others (revisioners) filed suits claiming pre emption rights to purchase the properties in question.
By a decree of the Court it was held that Pan Bai has a superior right to purchase the property.
Accordingly first preference was granted in favour of Smt.
Pan Bai to deposit the sale amount and seek pre emption failing which her suit was to be dismissed and a later date was given to Munshi Singh and others.
Pan Bai did not deposit the amount with the result Munshi Singh & others deposited the amount and took possession of the properties and came to be substi tuted in the sale.
1013 On the death of Mam Kaur in January, 1965, Smt.
Sohan Bai (her 2nd daughter) filed a suit for a decree for posses sion of half of the share on the plea that in view of the declaratory decree of 24.7.47, on the death of Smt.
Mam Kaur, succession had to be traced to Hazari Singh i.e. her father.
Pan Bai, also filed a suit for the same relief.
The Trial Court decreed the suit filed by Smt.
Sohan Bai but dismissed the suit filed by Smt.
Pan Bai on the ground that as Smt.
Pan Bai had flied a suit claiming on the basis of pre emption earlier, she was estopped from disputing the validity of the sale made by Smt.
Mam Kaur.
On appeal the Additional District Judge maintained the decree passed in the suit of Smt.
Sohan Bai and reversed the trial Court 's Judgment in the suit filed by Smt.
Pan Bai and held that both the daughters were entitled to succeed to half share each in the property.
Against the order of the Additional District Judge, defendants in both the suits filed Regular Second Appeals in the High Court which were dismissed by the impugned judgment.
Hence these appeals.
Before this Court it was inter alia contended by the appellants that ; in an earlier suit the adoption and the gift having been declared invalid, the donee who was the adopted son of Ranjit Singh was not left with any rights in the properties; on the other hand it was contended by the Respondents that no doubt adoption was declared invalid but so far as gift was concerned, it was declared invalid in a suit for declaration by reversioners to the limited extent that this gift will not affect the rights of the reversion ers thereby meaning that so far as the life estate of Smt.
Mam Kaur was concerned, it was transferred by the gift deed but the right of the reversioners to succeed on the death of Smt.
Mam Kaur was protected as it was declared that this gift will not affect the rights of the reversioners.
Dismissing the appeals, this Court, HELD: The gift will not affect the rights of the rever sioners on the death of Smt.
Mam Kaur but it could not be disputed that so far as Smt.
Mam Kaur during her life time is concerned, as she had gifted away the property to Ranjit Singh and delivered possession, she had no rights left with her.
[1020E F] What residuary rights could be thought of were not the rights of the widow but the right of the reversioners to get as heirs of her husband on her death and on that basis it could not be said that she could be said to be possessed of any right in the property which she held 1014 as a limited owner on the date the Hindu Succession Act came into force.
[1020G H] On the date on which Smt.
Mam Kaur executed the sale deed, in fact, she had no title to the property nor she was in possession thereof.
[1022D E] Jagannathan Pillai vs Kunjithapadam Pillai & Ors., ; Gopal Singh & Ors.
vs Dile Ram (dead) by Lrs. & Ors., Kuldip Singh & Ors.
vs Surain Singh and others, referred to.
</s>
|
<s>[INST] Summarize the judgementCivil Appeals Nos. 1270, 1315 1316 of 1975.
Appeals by Special Leave from the Judgment and Order dated the 26 8 75 of the Joint Judge at Thana in Election Petitions Nos. 3 and 4 of 1974.
R. P. Bhat (In CAs.
1315 1316/75, K. R. Chaudhury, K. Rajendra Chaudhury and Mrs. Veena Khanna for the Appellants in CAs.
1315 1316/75 and in C.A. 1270/75.
D.V. Patel (In CAs.
1315 16/75, V. N. Ganpule for respondent No. 1 in all the appeals.
D. V. Patel, P. H. Parekh and (Miss) Manju Jetley for respondent No. 2 in CAs.
1315 1316/75.
M. N. Shroff for respondents 4 and 5 in CAs.
1315 1316/75.
The Judgment of the Court was delivered by KRISHNA IYER, J.
The first two civil appeals based on admitted, abbreviated facts, revolving round the election of the President of the Basscin Council (and the third raises virtually the same point but refers to the bhibendi Municipal Council) under the Maharashtra Municipalities Act, 1965 (the Municipal Act, for short) has led to long and intricate argument, thanks partly to the haziness and incongruity of the statutory provisions, and the hard job of harmonizing and harmonizing and illumining which, by interpretative effort, has drained us of our faith in the blessings of simplicity, certainty and consistency in Indian codified law.
We may pardonably, but hopefully, permit ourselves by way of constructive criticism of perfunctory codification a proliferating source of litigation that it was once thought, "With a Code, all our troubles and cares would magically vanish.
The law, codified, would become stable, predictable and certain.
The rules of law, purified, would be accessible to, and understood by, not only the legal establishment of bench and bar but the people as well.
" 835 Professor Grent E. Gilmore comments: "The law, codified, has proved to be quite as unstable, unpredictable, and uncertain quite as mulishly unruly as the common law, uncodified, had ever been.
The rules of law, purified, have remained the exclusive preserve of the lawyers; the people are still very much in our toils and clutches as they ever were if not more so." (Quoted by H. R. Hahlo in Codifying the Common Law: Protracted Gestation Mod. Law.
Rev. January 1975, p. 23, 29 30).
Election law has necessarily to be Statutory, but a code can be clear in its scheme and must be such that litigation proof elections should become the rule.
Legislative nemesis, in the shape of ambiguity induced litigation is a serious political misfortune in the area of elections where lay men go to the polls and people 's verdicts get bogged down in court disputes, attended with desperate delays.
Some intelligent care at the drafting stage, some vision of the whole scheme in the framers, will reduce resort to legal quarrels and appellate spirals so that the time consumed in this Court in resolving conflicts of construction in comparatively less important legislations can be spared for more substantial issues of general public importance.
Civil Appeals Nos.
1315 and 1316 of 1975 One Shri Rajani, a candidate for Presidentship of the Bassein Municipal Council and Shri Samant, a voter in that municipal area, made common cause and filed two election petitions challenging the declaration in favour of the appellant, Dr. Parulekar, who was the successful candidate, winning by a large plurality of votes.
The resume of relevant facts sufficient to appreciate the contentions may straightway be set out.
We are confining, as suggested by counsel, to the twin appeals relating to Bassein since the fate of Bhibandi must follow suit.
Three candidates, including the two already mentioned, had filed nomination papers on October 21, 1974 for the presidential election of the Municipal Council.
At the time of the scrutiny which took place two days later, no objection was raised to the nomination of Dr. Parulekar by anyone and, on the withdrawal of the third candidate within time, there was a straight fight between the appellant and the first respondent.
The poll battle which took place on 17 11 74 found the appellant victor and he was so declared.
The frustrated first respondent and his supporter, 2nd respondent, challenged the return of the appellant by separate election petitions under section 21 of the Municipal Act.
The sole ground on which the petitioners were founded was that Dr. Parulekar, the returned candidate, was disqualified under section 16(1) (g) of the Municipal Act, the lethal vice alleged against him being that on the date of nomination he was holding an office of profit under the Government, as he was then, admittedly, working as a panel doctor appointed under the Employees ' State Insurance Scheme (acronomically, the ESI scheme), a beneficial project contemplated by 836 the ESI Act, 1948.
Of course, the appellant doctor submitted his resignation on November 5, 1974 and this was accepted on November 11, 1974.
Thus, before the actual polling took place, but after the nomination, he had ceased to be on the ESI panel.
Another circumstance which may have some significance in the overall assessment of the justice of the case, although of marginal consequence on the law bearing upon the issues debated at the bar, is that the appellant has been a councillor of the aforesaid municipality since 1962 and he has also been a doctor on the ESI panel throughout the same span of years and no one has chosen to raise the question of disqualification on this score up till the 1st respondent fell to his rival and had no other tenable ground of attack.
Necessity is the mother of invention and the respondents, aided by the cute legal ingenuity, may be, dug up the disqualification of 'office of profit ' and, indeed, wholly succeeded before the Election Tribunal, the Joint Judge of Thana.
The Trial Judge not merely voided the appellant 's election but declared the 1st respondent President since he was the sole surviving candidate.
This order of the Joint Judge has been assailed before us in the two appeals, after securing leave under article 136.
Three main contentions have been urged before us by Shri Bhatt, counsel for the appellant, which we will formulate and deal with one by one, although on the merits the most formidable issue is as to whether figuring in the medical list under the ESI scheme amounts to holding an office of profit under Government.
With a view to get a hang of the major plea, it is necessary to study the scheme of the ESI Act, even as to get a satisfactory solution of the other two points we have to gather the ensemble of provisions dealing with disqualification of candidates and the triple remedies provided in that behalf by the Municipal Act.
The discussion, to be put in proper focus, requires formulation of the submissions of counsel, the foremost in importance and intricacy being whether a doctor on the Medical List made by the Surgeon General of the State holds an 'office of profit ' within the meaning of section 16(1) (g) of the Municipal Act.
Next in the order of priority is the question whether a petition for setting aside an election of President on the ground of disqualification for being a councillor is permissible under section 21 of the Municipal Act in view of the special provision in section 44 of the said Act and the rules regarding objections to nominations and appeal therefrom framed under that Act.
The last question which, in a sense, is interlinked with the earlier one is as to whether, assuming the appellant to be disqualified, the first respondent can be declared the returned candidate or President, by passing the necessity for a fresh poll getting elected, as it were, through the judicial constituency of discretionary power.
It is plain democratic sense that the electoral process should ordinarily receive no judicial jolt except where pollution of purity or contravention of legal mandates invite the court 's jurisdiction to review the result and restore legality, legitimacy and respect for norms.
The frequency of forensic overturing of poll verdicts injects instability into the electoral system, kindles hopes in worsted candidates and induces postmortem discoveries of 'disqualifications ' as a desperate gamble in 837 the system of fluctuating litigative fortunes.
This is a caveat against overuse of the court as an antidote for a poll defeat.
Of course, where a clear breach is made out, the guns of law shall go into action, and not retreat from the Rule of Law.
We will proceed to take a close up of the three lines of attack outlined above, and if interference with the election must follow, it will; otherwise not.
The appellant is a doctor in Maharashtra where the municipalities are organised, based on popular franchise, in terms of the Municipal Act.
It is a heartening omen that this local body, Bessein, has electorally attracted professional men, not mere politicians, into its administrative circle; for the appellant is a 'medic ' while respondent 1 is an 'advocate '.
By a margin of over a thousand votes the former won but the lawyer rival has invoked the law to undo the election on the ground of disqualification based on section 16(1)(g) of the Municipal Act.
The ban is on one who holds an office of profit under government and the public policy behind the provision is obvious and wholesome.
We may read the relevant part of the section: "16(1)(g): No person shall be qualified to become a Councillor whether by election, co option or nomination, who is a subordinate officer or servant of Government or any local authority or holds an office of profit under Government or any local authority;" The short question then is whether the appellant is qualified to be a Councillor (which expression is rightly deemed to include President, vide section 2(7).
The disqualifying stain is stated to be that he held an office of profit under the State Government.
He did resign before the date of poll but after the date of filing nomination.
The nomination was vitiated and subsequent resignation did not confer moksha and the election thus became void.
Assuming that if a candidature is stigmatised by a fatal blot at the time of nomination the election also suffers invalidity, despite intervening removal of the disqualification, did the doctor incur the penalty by being on the medical panel of the ESI scheme ? The critical question, apparently simple and limpid, has, when saturated with precedential erudition and lexicographic inundation, become so learnedly obscure and conflictively turbid that were we governed by a radically streamlined methodology of legislation and liberality of interpretation, as obtains in other systems of jurisprudence, much of the forensic work could have been obviated.
This is a problem of disturbing social import outside the orbit of these appeals with which alone we are currently engaged.
The magnificent concept of judicial review is at its best when kept within the beautiful trellis of broad principles of public policy and tested by the intentionability of the statute.
With this predisposition calculated to make judge power functionally meaningful, we proceed to fix the contextual semantics of 'office of profit ' as a disqualificationary factor for running for municipal president.
To begin with the 838 very beginning; what is an office ? too simplistic to answer with case that it is derived from 'officium ' and bears the same sense.
Indeed, in Latin and English, this word has protean connotations and judicial choice reaches the high point of frustration when the highest courts here and abroad have differed, dependent on varying situations, or statutory schemes, the mischief sought to be suppressed and the surrounding social realities.
Then we come to the second question: what is an 'office of profit '? And, thirdly, to the question: when is an 'office of profit ' under Government ? The context purpose signification of expressions of varying imports leaves room for judicial selection.
Illustratively, we may refer to two decisions which throw some light but turn on the statutory setting of those cases.
For instance, in Ramachandran (AIR 1961 Madras 450, 458) it has been observed: ".
We find, in Bacon 's Abridgment at Vol.
6, p. 2, the article headed 'of the nature of an officer, and the several kinds of officers ', commencing thus: 'It is said that the word 'officium ' principally implies a duty, and, in the next place, the charge of such duty; and that it is a rule that where one man hath to do with another 's affairs against his will, and without his leave, that this is an office, and he who is in it is an officer '.
And the next paragraph goes on to say: 'There is a difference between an office and an employment, every office being an employment; but there are employments which do not come under the denomination of offices; such as an agreement to make hay, herd a flock, etc; which differ widely from that of steward of a manor, etc.
The first of these paragraphs implies that an officer is one to whom is delegated, by the supreme authority, some portion of its regulating and coercive powers, or who is appointed to represent the State in its relations to individual subjects.
This is the central idea; and applying it to the clause which we have to construe, we think that the word 'officer ' there means some person employed to exercise, to some extent, and in certain circumstances, a delegated function of Government.
He is either himself armed with some authority or representative character, or his duties are immediately auxiliary to those of someone who is so armed." In Statesman vs Deb it is said: "An office means no more than a position to which certain duties are attached.
According to Earl Jowitt 's Dictionary a public office is one which entitles a man to act in the affairs of others without their appointment or permission.
" Both these decisions may perhaps be generally relevant but not precisely to the point.
We were taken through the panorama of case law and statute law relating to corporations, companies, autonomous bodies and other creatures of statute, to bring out the content of 'office of profit under 839 government ' as distinguished from offices under the control of government.
Indeed, even the Constitution of India disqualifies a person for being chosen as Member, if he holds any office of profit under the Government.
The question may well arise whether the ESI Corporation is under the control of government and can be equated with State so that holding any office thereunder may attract the proscription of section 16(1)(g).
We are relieved from this industrious adventure by the stand taken by counsel for the respondents, Shri Patel, that he stakes this part of his case on the sole ground that the appellant doctor is holding an office of profit under the Maharashtra government, as such.
He has no case therefore that the doctor is under the control of the ESI Corporation, an institution controlled by the Union government and hence is disqualified.
The short issue, therefore, is whether, under the scheme of the ESI Act and the rules framed thereunder, the appellant squarely falls within the description of holder of office of profit under the State Government.
This branch of enquiry takes us to an analysis of the provisions bearing on the scheme of the medical project under the ESI Act and the role of the State government therein.
We have some assistance from rulings of this Court in resolving the dispute and we may mention even in advance that a seeming disharmony between two decisions of this Court also has to be dissolved.
Apparent judicial dissonance may give place to real consonance, if a dissection of the facts and discernment of the reasoning, in the light of which the decisions of this Court are rendered, is undertaken.
The ESI Act provides medical facilities for the working class, the primary responsibility for executing the project being shouldered by a statutory corporation created by section 3 of the Act and the infra struture for implementation is organised by the other provisions of Chapter II.
A Standing Committee administers the affairs of the Corporation.
A Medical Benefit Council is constituted by the Central Government to help in the discharge of the duties of the Corporation which involve expertise.
The financial resources come from contributions and other moneys specified in the Act itself and an Employees ' State Insurance Fund has been brought into existence in this behalf.
The Corporation, although has a separate legal personality, is under the control of the Central Government.
But that is not the pertinent issue before us.
The fatal sin is not that the appellant is a doctor under the ESI Corporation but that he is holding an 'office of profit ' under the State Government.
We may ignore provisions relating to the powers of the Corporation and turn to the role of Government vis a vis private medical practitioners like the appellant.
He is not a full time employee of Government.
On the other hand, he runs his own clinic.
Even so, it is argued with force that section 58 and a fasciculus of rules framed by the State Government under section 96, viewed as a mini scheme, creates offices of profit which are filled by private doctors like the appellant.
The legal spring board is section 58 of the ESI Act and it is best to start off with reading that section: "58.
Provision of medical treatment by State Government. (1) The State Government shall provide for in sured persons and (where such benefit is extended to their 840 families) their families in the State, reasonable medical, surgical and obstetric treatment: Provided that the State Government may, with the approval of the Corporation, arrange for medical treatment at clinics of medical practitioners on such scale and subject to such terms and conditions as may be agreed upon.
(2) Where the incidence. " Two things are self evident.
An obligation to provide medical treatment for insured persons has been saddled on the State Government.
Secondly, that Government may discharge this responsibility through arrangement with medical practitioners who run clinics.
The bare bones of section 58 have to be clothed with flesh before a viable project comes to life.
This is achieved by rules framed unders.
96 especially section 96(1) (d) & (e).
We may make it clear that the Corporation 's entry into the field is not inhibited by section 58 as section 59A underscores.
But what is posed before us is the appellant 's status as a holder of an office of profit under the Government since he is admittedly a medical insurance officer within the mechanism set up by the rules.
Here we seek light from the several rules governing medical insurance officers, their empanelment, control, removal and allied matters.
Some empathy with the plan of benefit by the State Government is a pre requisite to an insight into the true nature of a medical insur ance officer in the context of an office of profit.
A broad idea can be gained from the key rules and so we sketch the outlines by reference to them, skipping the rest.
The Chief officer entrusted with the working of the scheme is the Director Rule 2(3A) defines 'Director ' as the Director, ESI scheme, Government of Maharashtra.
This officer, the kingpin of the whole programme, is an appointee of the State Government.
The content of medical benefits is covered by r. 4 which extends the medical services to insured persons and runs thus: "4.
Provision of general medical services to insured persons by Insurance Medical Practitioners. (1) The State Government shall arrange to provide general medical services to insured persons at clinics of Insurance Medical Practitioners, who have undertaken to provide general medical services under these rules and in accordance with their terms of service.
(2) An Insurance Medical Practitioner shall be deemed to be appointed as an Insurance Medical officer for the purposes of the Regulations.
" The agency for rendering medical treatment is called Insurance Medical Practitioner.
Rule 2(6) defines the Insurance Medical Practitioner as one appointed as such to provide medical benefits under the Act and to perform such other functions as may be assigned to him.
Rule 2(2) authorizes the appointment of one or more officers by the State Government to control the administration of medical benefits and they are called 'administrative medical 841 officers '.
These officers shall, under r. 5, prepare a list of the practitioners whose applications have been approved by the Allocation Committee (defined in r. 2(13).
This list is called the Medical List of Insurance Medical Practitioners.
Before a doctor can be included in the medical list, he has to apply to the administrative medical officer in the form specified by the State Government for the purpose.
The Insurance Medical Practitioners have to be responsible for rendering medical treatment and must conform to the conditions specified.
A Medical Service Committee shall be set up for such areas as may be considered appropriate by the State Government.
This Committee investigates into questions between an Insurance Medical Practitioner and a person who is entitled to obtain treatment from that practitioner, etc.
On the report of the Medical Services Committee relating to the conduct of an Insurance Medical Practitioner, the Director may take action in one or more of the ways specified in r. 22(2).
He may even remove the Insurance Medical Practitioner 's name from the medical list.
There is an appeal by the aggrieved doctor to the State Government.
Rule 24 relates to investigation into cases of disputed prescriptions, record keeping and certification relating to Insurance Medical Practitioners.
The total impact of a detailed study of the various rules framed by the State Government bearing on Insurance Medical Practitioners is that a doctor applies for getting into the Medical List, agrees to abide by the duties and conditions prescribed, is under the control of the Medical Services Committee and may even be removed or resign from the panel.
It is clear that he cannot extricate himself from government control by the plea that he is a private doctor because his entry into the Medical List is preceded by an application for inclusion where he undertakes certain responsibilities.
Such application is considered by an Application Committee which recommends his name to the Director, Employees State Insurance Scheme.
The Surgeon General ultimately grants the prayer for inclusion in the Medical List on the recommendations of the Allocation Committee.
It is true that an insurance medical practitioner has the right to resign and also to have the name of any insured person removed from his list.
He has duties which are prescribed by the rules vis a vis the patients.
He is required to furnish various pieces of clinical information and to do other medical duties as are set out in r. 10.
The State Government has the power to remove the name of any individual Insurance Medical Practitioner from the Medical List even as the latter is entitled to give notice to the Director, ESI Scheme that he desires to cease to be an Insurance Medical Practitioner and that his name may be removed from the Medical List.
It follows that although he is a private doctor, running a private clinic, he is also an Insurance Medical Practitioner subject to the discipline, directions, obligations and control of the relevant officers appointed by the State Government in implementing the medical benefit scheme.
An insurance medical practitioner the appellant is one being a medical practitioner 'appointed as such to provide medical benefit under the Act and to perform such other functions as may be assigned to him, ' the question arises whether this is tantamount to holding an office.
842 The legal provisions under the Act and the rules certainly make of an insurance medical practitioner a category different from one who runs a private clinic and enters into contractual terms for treatment of patients sent by Government, nor is he a full fledged government servant.
He is a tertium quid, as it were, but the finer question is whether this category falls squarely within the description of 'office of profit under government '.
This very question fell for decision before the Bombay and Calcutta High Courts but the learned Judges, on a study of the identical provisions, arrived at antipodean conclusions.
After all, minds differ as rivers differ and, assisted by the flow of logic in these and other rulings cited before us, we will hopefully reach the shore of correct interpretation.
The process of mentation, the office of words like office of profit ' which convey many meanings and the inputs into the complex matrix of statutory construction make what looks simple to the lay, sophisticated for the legal, as the case on hand amply illustrates.
Back to the issue of 'office of profit '.
If the position of an Insurance Medical Officer is an 'office ', it actually yields profit or at least probably may.
In this very case the appellant was making sizeable income by way of capitation fee from the medical senice, rendered to insured employees.
The crucial question then is whether this species of medical officers are holding 'office ' and that 'under Government '.
There is a haphazard heap of case law about these expressions but they strike different notes and our job is to orchestrate them in the setting of the statute.
After all, all law is a means to an end.
What is the legislative end here in disqualifying holders of 'offices of profit under government '? Obviously, to avoid a confict between duty and interest, to cut out, the misuse of official position to advance private benefit and to avert the likelihood of influencing government to promote personal advantage.
So this is the mischief to be suppressed.
At the same time we have to bear in mind that our Constitution mandates the State to undertake multiform public welfare and socio economic activities involving technical persons, welfare workers, and lay people on a massive scale so that participatory government may prove a progressive reality.
In such an expanding situation, can we keep out from elective posts at various levels many doctors, lawyers, engineers and scientists, not to speak of an army of other non officials who are wanted in various fields, not as fulltime government senants but as part time participants in people 's projects sponsored by government? For instance, if a National Legal Services Authority funded largely by the State comes into being, a large segment of the legal profession may be employed part time in the ennobling occupation of legal aid to the poor.
Doctors, lawyers, engineers, scientists and other experts may have to be invited into local bodies, legislatures and like political and administrative organs based on election if these vital limbs of representative government are not to be the monopoly of populist politicians or lay members but sprinkled with technicians in an age which belongs to technology.
So, an interpretation of 'office of profit ' to cast the net so wide that 843 all our citizens with specialities and know how are inhibited from entering elected organs of public administration and offering semivoluntary services in para official, statutory or like projects run or directed by Government or Corporation controlled by the State may be detrimental to democracy itself.
Even athletes may hesitate to come into Sports Councils if some fee for services is paid and that proves their funeral if elected to a panchayat ! A balanced view, even if it involves 'judicious irreverence ' to vintage precedents, is the wiser desideratum.
The general interpretative approach hallowed by Heydon 's case is expressed by the Bench in the Bombay ruling AIR 1958 Bom 314 Deorao vs Keshav thus: "The object of this provision is to secure independence of the members of the Legislature and to ensure that the Legislature does not contain persons, who have received favours or benefits from the executive and who, conse quently, being under an obligation to the executive, might be amenable to its influence.
Putting it differently, the provision appears to have been made in order to eliminate or reduce the risk of conflict between duty and self interest amongst the members of the Legislature.
This object must always be borne in mind in interpreting article 191.
" While we agree that this consideration is important for purity of elective offices, the need for caution against exaggerating its importance to scare away men of skill in various fields coming into socially beneficial projects on part time posting or small fee cannot be ignored.
Informed by these dual warnings, we proceed to assess the worth of the rival contentions.
Section 58 charges the State Government with the duty to provide medical facilities to insured employees.
This obligation may be discharged by arrangements with private clinics.
An Insurance Medical Officer is not a government servant, but he is more than a mere private doctor with a contractual obligation, for he undertakes certain functions which are regulated by law viz., rules framed under section 96.
The question is not what he is but whether he is 'holding an office of profit '.
We have already referred to the principal sections and rules, the broad scheme and infra structure and the rights, duties and degree of control over Insurance Medical Practitioners exercised by the State directly or through its officers.
A further elaboration is possible, but is supererogatory.
A full study of the Bench decisions of Bombay and Calcutta led to diametrically opposite conclusions thus proving the wide judicial choice available depending on the perspective, the import and the objections one accepts from the two enactments viz. the Municipal Act and the Insurance Act.
It is a context purpose quandary.
844 Chainani J., speaking for the Court set out the true approach thus: P. 318, para 12.
"In our opinion, the principal tests for deciding whether an office is under the Government, are (1) what authority has the power to make an appointment to the office concerned, (2) what authority can take disciplinary action and remove or dismiss the holder of the office and (3) by whom and from what source is his remuneration paid ? Of these, the first two are, in our opinion, more important than the third one.
" Shri A. N. Ray, J. (as he then was) stated his touchstone to be fourfold: "The four tests which have been applied to these cases were stated by Lord Thankerton in the case of Short vs J. and W. Henderson, Limited, reported in These four tests are : (a) the master 's power of selection of his servant, (b) the payment of wages or other remuneration, (c) the master 's right to control the method of doing the work, and (d) the master 's right of suspension or dismissal.
Lord Thankerton referred to the observation of Lord Justice Clerk in the judgment under appeal in that case that a contract of service may still exist if some of these elements are absent altogether, or present only in an unusual form, and that the principal requirement of contract of service is the right of the master in some reasonable sense to control the method of doing the work, and that this factor of superintendence and control has frequently been treated as critical and decisive of the legal quality of the relationship.
"(1) A few searching questions and implied answers may help a solution.
Is the appellant (or those of his ilk under the Scheme) an employee of government? Not more than any other expert consulted by Government for fee paid? But he has obligations of a statutory savour He is 'appointed ' on his application which is processed by the appropriate body, removed if found wanting, obliged to discharge duties, make some reports and subject himself to certain discipline while on the panel.
In the words of the Bombay decision : Para 30, p. 323. "In the form of application, a medical practitioner, who desires his name to be included in the medical list, has also to state that he agrees to abide by the terms of service.
In other words, he agrees to join a service, see also Rule 22(d), which uses the words 'prejudicial to the efficiency of the Service '.
He is also subject to disciplinary action and control.
He cannot also resign or give up his post except by giving three months ' notice under Service Rule 845 14.
He is also required to maintain records and to submit returns.
His employment has, therefore, all the attributes of a service.
He must, therefore, be held to be a holder of an office.
The fact that he is allowed private practice will not alter the character of his appointment.
" The other features pointing in a different direction are not to be overlooked either.
Ray J. (as he then was) drew the lines, boldly, when he observed: Para 29, p. 7.
"These medical practitioners apply themselves for inclusion in the medical list.
Their payment is not out of the government revenue but out of a special fund consisting of contribution made by the employers.
Therefore such a fund over which the government has no legal title and which is vested in the corporation under the combined effect of sections 3 and 26 of the Act to which I have already referred indicates beyond any doubt that the remuneration of medical practitioners is paid not out of the public exchequer.
The contention of Mr. Advocate General is correct that medical practitioner in the present case gave nothing more than a voluntary undertaking to offer services in lieu of fees for professional service rendered and the inclusion of names in the list and the preparation of the list did not have the effect of making the medical practitioner an employee of the State.
" x x x x Para 23, p. 6. "Mr. Advocate General, in my opinion, rightly contended that the medical practitioners were really undertaking and offering services and if the undertaking was treated as a contract between the medical practitioner and the persons in charge of preparation of medical list, namely, the State or the Corporation it was a mere contract for services and not a contract of services.
This proposition was extracted from the decision in Gould vs Minister of National Insurance, reported in and also in (1951) I All.
E.R. 368.
That case was on the construction of the provisions of the National Insurance Act, 1946 and the question was whether the appellant in that case who was a music hall artist and who had entered into a written contract with the second respondent acting on behalf of several companies, under which he undertook to appear in a variety 'act ' at a theatre for one week from September 6, 1948 was an employed person within the meaning of the Act.
The first respondent, the Minister of National Insurance, had decided that during that week the appellant was not an 'employed person ' within the meaning of the Act.
It was held that the question would turn on the particular facts of each case and the authority of cases based on different statutes would not always be of assistance.
It was said 846 that it would be easy in some cases to say that the contract was a contract of service and in others that it was a contract for services, but between these two extremes there was a large number of cases where the line was much more difficult to draw.
" Does the destiny of this case depend on murky semantics as to what is an 'office ' filling columns of Law Lexicons and English Dictionaries or the nub of the dispute turn on contract of service versus contract for services? Alas ! Could not the law be made plainer in this area of mass participatory process called elections ? Dickens is still valid about our modern Legislations unresponsive to the common man 's need of comprehensible law and unmindful of the court 's consequential wrestling with etherie differences ! 'The law is a ass a idiot ' (Mr. Bumble in Oliver Twist).
The commensense way, rather than the lexicographic street, is the better route to the destination.
And that means we have to crystallise our notion of 'office of profit ' and then test the fate of Insurance Medical Practitioners.
Profit he does derive, but does he hold an office under Government ? Mere incumbancy in office is no disqualification even if some sitting fee or piffling honorarium is paid (vide: If a lawyer (or doctor in a system of National Health Insurance) is on a panel of Government for looking after cases or other legal work and paid for services rendered but, otherwise, a freelance, does he hold an office under Government ? Shivamurthy Swami(1) clears the ground for the discussion by going to the basics which determine what is an office of profit under Government.
These tests are: "(1) Whether the Government makes the appointment; (2) Whether the Government has the right to remove or dismiss the holder; (3) Whether the Government pays the remuneration; (4) What are the functions of the holder ? Does he perform them for the Government; and (5) Does the Government exercise any control over the performance of those functions ?" We are not faced with the plea of office under the Corporation and thus under the Central Government but only with the disqualification of holding an office directly under the State Government via section 58 read with the rules framed under section 96 of the Insurance Act.
In this connection, a closer link with the present situation is established by Kanta(2) where an Advocate, acting for Government under the directions of the Government pleader could be said to hold an office of profit.
Sikri J., (as he then was) adopted the classic definition 847 of 'office ' given by Justice Rowlatt in Great Eastern Rly Co.(1) as appropriate even in an electoral context and proceeded to apply the ratio to the facts of the case.
Observed the learned Judge: "We cannot visualise an office coming into existence, every time a pleader is asked by the Government to appear in a case on its behalf.
The notification of his name under rule 8B, does not amount to the creation of an 'office '.
Some reliance was also placed on rule 4 of Order 27 C.P.C. which provides that: "The Government pleader in any Court shall be the agent of the Government for the purpose of receiving processes against the Government issued by such Court.
" This rule would not apply to the facts of this case because the appellant was appointed only to assist the Government Advocate in a particular case.
Assuming it applies, it only means that the processes could be served on the appellant, but processes can be served on an Advocate under Rule 2 of Order XLV of the Supreme Court Rules, 1966.
This does not mean that an Advocate on Record would hold an office under the client.
The learned Counsel for the respondent, Mr. Chagla, urges that we should keep in view the fact that the object underlying article 191 of the Constitution is to preserve purity of public life and to prevent conflict of duty with interest and give an interpretation which will carry out this object.
It is not necessary to give a wide meaning to the word 'office ' because if Parliament thinks that a legal practitioner who is being paid fees in a case by the Government should not be qualified to stand for an election as a Member of Legislative Assembly, it can make that provision under article 191(1)(e) of the Constitution.
The case of Sakhawat Ali.
vs The State of Orissa(2) provides an instance where the Legislature provided that a paid legal practitioner should not stand in the municipal elections.
" This takes us to Sakhawat Ali(2) and to Mahadeo(3) which too afford some luciferous parallels.
In Sakhawat Ali (supra) the question arose about a legal practitioner employed on behalf of a Municipality standing as candidate for election to the Municipal Council.
Stress was laid on the purity of public life, an object which would be thwarted if there arose a situation of conflict between interest and duty.
A lawyer paid by the municipality becoming a councillor is a situation fraught with perils to purity in public life.
This factor was emphasized by an express provision in the Municipal Act in that case disqualifying such paid legal practitioners from becoming candidates.
Had such a step been taken in our case, the law would have been at least clear, whether it was wise or No. 848 In Mahadeo 's Case(1) a fine distinction from Kanta (supra) arose.
There also the disqualification of a lawyer on account of holding an office of profit under the government arose.
After quoting Lord Wright in Mcmillan vs Guest(2), trying to define 'office ', the Court proceeded to consider whether a lawyer who accepted a position on the panel of Railway pleaders for conducting suits filed against the Union of India on the terms and conditions therein mentioned, was holding an office of profit.
Holding that such an appointment on the panel of lawyers for the Union of India was an office of profit, the Court observed: "If by 'office ' is meant the right and duty to exercise an employment or a position to which certain duties are attached as obsered by this Court, it is difficult to see why the engagement of the appellant in this case under the letter of February 6, 1962 would not amount to the appellant 's holding an office.
By the said letter he accepted certain obligations and was required to discharge certain duties.
He was not free to take a brief against the Railway Administration.
Whether or not the Railway Administration thought it proper to entrust any particular case or litigation pending in the court to him, it was his duty to watch all cases coming up for hearing against the Railway Administration and to give timely intimation of the same to the office of the Chief Commercial Superintendent.
Even if no instructions regarding any particular case were given to him, he was expected to appear in court and obtain an adjournment.
In effect this cast a duty on him to appear in court and obtain an adjournment so as to protect the interests of the Railway.
The duty or obligation was a continuing one so long as the railway did not think it proper to remove his name from the panel of Railway lawyers or so long as he did not intimate to the Railway Administration that he desired to be free from his obligation to render service to the Railway.
In the absence of the above he was bound by the terms of the engagement to watch the interests of the Railway Administration, give them timely intimation of cases in which they were involved and on his own initiative apply for an adjournment in proceedings in which the Railway had made no arrangement for representation.
It is true that he would get a sum of money only if he appeared but the possibility that the Railway might not engage him is a matter of no moment.
An office of profit really means an office in respect of which a profit may accrue.
It is not necessary that it should be possible to predicate of a holder of an office of profit that he was bound to get a certain amount of profit irrespective of the duties discharged by him." The next case of considerable importance is Gurugobinda(3) which related to a chartered accountant, a partner of a firm of auditors of two companies which were owned by the Union Government 849 and the State Government.
Disqualification for holding an office of profit, again, in this circumstance, was pressed before the Court and section K. Das, Acg.
C. J., speaking for the Court observed: "We think that this contention is correct.
We agree with the High Court that for holding an office of profit under the Government, one need not be in the service of Government and there need be no relationship of master and servant between them." (P. 319) "In Maulana Abdul Shakur vs Rikhab Chand and another (1958 SCR 387) the appellant was the manager of a school run by a committee of management formed under the provisions of the Durgah Khwaja Saheb Act, 1955.
He was appointed by the administrator of the Durgah and was paid Rs. 100 per month.
The question arose whether he was disqualified to be chosen as a member of Parliament in view of article 102(1) (a) of the Constitution.
It was contended for the respondent in that case that under sections 5 and 9 of the Durgah Khwaja Saheb Act, 1955 the Government of India had the power of appointment and removal of members of the committee of management as also the power to appoint the administrator in consultation with the committee; therefore the appellant was under the control and supervision of the Government and that therefore he was holding an office of profit under the Government of India.
This contention was repelled and this court pointed out the distinction between the holder of an office of profit under some other authority subject to the control of Government." (p. 319 320) "It has to be noted that in Maulana Abdul Shakur 's case the appointment of the appellant in that case was not made by the Government nor was he liable to be dismissed by the Government.
The appointment was made by the administrator of a committee and he was liable to be dismissed by the same body." (p. 320) "It is clear from the aforesaid observations that in Maulana Abdul Shakur 's case the factors which were held to be decisive were (a) the power of the Government to appoint a person to an office of profit or to continue him in that office or revoke his appointment at their discretion, and (b) payment from out of Government revenues, though it was pointed out that payment from a source other than Government revenues was not always decisive factor.
In the case before us the appointment of the appellant as also his continuance in office rests solely with the Government of India in respect of the two companies.
His remuneration is also fixed by Government.
We assume for the purpose of this appeal that they are Government companies within the meaning of 850 the Indian and 100% of the shares are held by the Government.
We must also remember that in the performance of his functions the appellant is controlled by the Comptroller and Auditor General who is himself undoubtedly holder of an office of profit under the Government, though there are safeguards in the Constitution as to his tenure of office and removability therefrom." (p. 321) "Therefore if we look at the matter from the point of view of substance rather than of form, it appears to us that the appellant as the holder of an office of profit in the two Government Companies, the Durgapur Projects Ltd., and the Hindustan Steel Ltd., is really under the Government of India; he is appointed by the Government of India, he is removable from office by the Government of India, he perfoms functions for two Government companies under the control of the Comptroller and Auditor General who himself is appointed by the President and whose administrative powers may be controlled by rules made by the President." (p. 322) "In Ramappa vs Sangappa the question arose as to whether the holder of a village office who has a hereditary right to it is disqualified under article 191 of the Constitution, which is the counterpart of article 102, in the matter of membership of the State Legislature.
It was observed therein.
"The Government makes the appointment to the office though it may be that it has under the statute no option but to appoint the heir to the office if he has fulfilled the statutory requirements.
The office is, therefore, held by reason of the appointment by the Government and not simply because of a hereditary right to it.
The fact that the Government cannot refuse to make the appointment does not alter the situation.
" There again, the decisive test was held to be the test of appointment.
In view of these decisions we cannot accede to the submission of Mr. Chaudhury that the several factors which enter into the determination of this question the appointing authority, the authority vested with power to terminate the appointment, the authority which determines the remuneration, the source from which the remuneration is paid, and the authority vested with power to control the manner in which the duties of the office are discharged and to give directions in that behalf must all co exist and each must show subordination to Government and that it must necessarily follow that if one of the elements is absent, the test of a person holding an office under the Government.
Centre or State, is not satisfied.
The cases we have referred to specifically point out that the circumstance that the source 851 from which the remuneration is paid is not from public revenue is a neutral factor not decisive of the question.
As we have said earlier whether the stress will be laid on one factor or the other will depend on the facts of each case.
However, we have no hesitation in saying that where the several elements, the power to appoint, the power to dismiss, the power to control and give directions as to the manner in which the duties of the office are to be performed, and the power to determine the question of remuneration are all present in a given case, then the officer in question holds the office under the authority so empowered." (p. 322 323) The core question that comes to the fore from the survey of the panorama of case law is as to when we can designate a person gainfully engaged in some work having a nexus with Government as the holder of an 'office of profit ' under Government in the setting of disqualification for candidature for municipal or like elections.
The holding of an office denotes an office and connotes its holder and this duality implies the existence of the office as an independent continuity and an incumbent thereof for the nonce.
Certain aspects appear to be elementary.
For holding an office of profit under Government one need not be in the service of Government and there need be no relationship of master and servant (Gurugobinda supra).
Similarly, we have to look at the substance, not the form.
Thirdly, all the several factors stressed by this Court, as determinative of the holding of an 'office ' under Government, need not be conjointly present.
The critical circumstances, not the total factors, prove decisive.
A practical view not pedantic basket of tests, should guide in arriving at a sensible conclusion.
In the present case, can we say that the post (forgetting the finer issue of office, as distinguished from post) is under the State Government ? The capitation fee is the remuneration the doctor is paid and this comes not from Government direct but from a complex of sources.
But Gurugobinda and Gurushantappa(1) took the view that payment of remuneration not from public revenue is a neutral factor.
Is the degree of control by Government decisive ? The power to appoint, direct and remove, to regulate and discipline, may be good indicia but not decisive, as pointed out in Gurushantappa.
In our case, Government does have, partly direct and partly indirect, control but the conclusion is not inevitable because the doctor is put in the List not by Government directly but through a prescribed process where the Surgeon General has a presiding place.
How proximate or remote is the subjection of the doctor to the control of Government to bring him under Government is the true issue.
Gurushantappa has highlighted this facet of the question.
Indirect control, though real, is insufficient, flows from the ratio of Abdul Shakur(2).
The appellant, as elaborated by Ray J (as he then was) in the Calcutta case, was not a servant of government but a private practitioner, was not appointed directly by Government, but by an officer of government on the recommendation of a Committee, was paid not necessarily 852 out of Government revenue and the control over him in the scheme was vested not in Government but in an Administrative Medical Officer and Director whose position is not qua Government servant but creatures of statutory rules.
The ultimate power to remove him did lie in Government even as he enjoyed the power to withdraw from the panel.
The mode of medical treatment was beyond Government 's control and the clinic was a private one.
In sum, it is fair to hold that the Insurance Medical Practitioner is not a free lancer but subject to duties, obligations, control and rates of remuneration under the overall supervision and powers of Government.
While the verdict on being under the Government is a perilous exercise in Judicial brinkmanship, especially where the pros and cons are evenly balanced, the ruling in Kanta Kathuria which binds us and the recondite possibility of conflict of duty and interest for a Municipal President who is an Insurance Medical Practitioner under an arrangement with Government induce us to hold that though the line is fine, the appellant is not functioning under the Government in the plenary sense implied in electoral disqualification.
After all, the means, i.e., the ban on candidature, must have a substantial link with the end viz., the possible misuse of position as Insurance Medical Practitioner in doing his duties as Municipal President.
This question is interlaced, in the present context, with the concept of 'office of profit '.
And the twin problems baffle easy solution since an apparent not real conflict of reasoning exists between Mahadeo (decided by a Bench of two Judges) and Kanta (by a Bench of five Judges).
Of course Sikri, J. (as he then was) thought that Mahadeo 'in no way militates against the view ' which appealed to the majority in Kanta.
Judicial technology sometimes distinguishes, sometimes demolishes earlier decisions; the art is fine and its use skilful.
Both the cases dealt with advocates and we have referred to them in the earlier resume of precedents.
Even so, a closer look will disclose why we follow the larger Bench (as we are bound to, even if there is a plain conflict between the two cases).
Justice Rowlatt 's locus classicus in Great Western Ry.
Co. (followed by this Court in many cases) helps us steer clear of logomachy about 'officio ' especially since the New English Dictionary fills four columns ! Rowlatt J. riveted attention on 'a subsisting, permanent, substantive position, which had an existence independent from the person who filled it ' which went on and was filled in succession by successive holders '.
So, the first step is to enquire whether 'a permanent, substantive position, which had an existence independent from the person who filled it ' can be postulated in the case of an Insurance Medical Practitioner.
By contrast is the post an ephemeral, ad hoc, provisional incumbency created, not independently but as a List or Panel clastic and expiring or expanding, distinguished from a thing that survives even when no person had been appointed for the time being. 'Thin partitions do their bounds divide ' we agree, but the distinction, though delicate, is real.
An office of Insurance Medical Practitioner can be conjured up if it exists even where no doctor sits in the saddle and has duties attached to it qua office.
We cannot equate it with the post of a peon or security gunmen who too has duties 853 to perform or a workshop where Government vehicles are repaired, or a milk vendor from an approved list who supplies milk to government hospitals.
A panel of lawyers for Legal Aid to the Poor or a body of doctors enlisted for emergency service in an epidemic outbreak charged with responsibilities and paid by Government cannot be a pile of offices of profit.
If this perspective be correct, Kanta and Mahadeo fit into a legal scheme.
In the former, an ad hoc Assistant Government Pleader with duties and remuneration was held to fall outside 'office of profit '.
It was a casual engagement, not exalted to a permanent position, occupied pro tempore by A or B.
In Mahadeo, a permanent panel of lawyers 'maintained by the Railway Administration ' with special duties of a lasting nature constituted the offices of profit more like standing counsel.
If, in our case, had there been a fixed panel of doctors with special duties and discipline, regardless of doctors being there to fill the positions or no, a different complexion could be discerned as in the case of specified number of Government pleaders, public prosecutors and the like, the offices surviving even if they remain unfilled.
On the other hand, no rigid number of Insurance Medical Practitioners is required by the rules or otherwise.
If an Insurance Medical Practitioner withdraws, there is no office sticking out even thereafter called office of Insurance Medical Practitioner.
The critical test of independent existence of the position irrespective of the occupant is just not satisfied.
Likewise, it is not possible to conclude that these doctors, though subject to responsibilities, eligible to remuneration and liable to removal all with a governmental savour cannot squarely fall under the expression 'Holding under Government '.
Enveloped, though the Insurance Medical Officer is, by governmental influence, and working, though he is, within an official orbit, we are unable to hold that there is an 'office of profit ' held by him and that he is 'under government '.
This conclusion avoids the evil of public duty conflicting with private interest and accommodation of more technical persons in semi voluntary social projects in an era of expanding cosmos of State activity.
We hold, not without hesitation, that the appellant suffered no disqualification on the score of holding office of profit under government.
Is it not a sad reflection on legislative heedlessness that, notwithstanding forensic controversy for a long period not a little legislative finger had been moved to clarify the law and preempt litigation.
Judicial pessimism persuades us not to be hopeful even after this judgment.
The Court and the Legislature have no medium of inter communication under our system.
Its desirability was emphasised by Justice Cardozo, way back in 1921 (when he addressed the Association of the Bar of the City of New York and proposed an agency to mediate between the courts and the legislature).
In characteristically beautiful prose he said: "The Courts are not helped as they could and ought to be in the adaptation of law to justice.
The reason they are not helped in because there is no one whose business it is to give warning that help is needed.
We must have a courier who will carry the tidings of distress.
Today 854 courts and legislature work in separation and aloofness.
The penalty is paid both in the wasted effort of production and in the lowered quality of the product.
On the one side, the judges, left to fight against anachronism and injustice by the methods of judge made law, are distracted by the conflicting promptings of justice and logic, of consistency and mercy, and the output of their labors bears the tokens of the strain.
On the other side, the legislature, informed only casually and intermittently of the needs and problems of the courts, without expert or responsible or disinterested or systematic advice as to the working of one rule or another, patches the fabric here and there, and mars often when it would mend.
Legislature and courts move on in proud and silent isolation.
Some agency must be found to mediate between them." In the light of the conclusion we have reached, the other two grounds raised may not strictly arise for consideration.
However, since arguments have been addressed, we had better briefly express our view.
It was argued by Shri Bhatt that when the ground for invalidation of the election is a disqualification for membership, the proper procedure is to invoke section 44 and not to resort to an election petition under section 21.
On a close study of the two provisions in the light of the ruling of this Court in , we are satisfied that an election petition under section 21 is all inclusive and not under inclusive.
What we mean is that even if the invalidation of the election is on the score of the disqualification under section 16 it is appropriate to raise that point under section 21 which is comprehensive.
All grounds on the strength of which an election can be demolished can be raised in a proceeding under section 21.
The language of the provision is wide enough.
Maybe that supervening disqualifications after a person is elected may attract section 44, but we are unable to agree that the latter provision cuts back on the width of the specific section devoted to calling in question an election of a councillor (including the President).
We agree in this regard with the Full Bench decision in Dattatraya(1).
Likewise is the fate of the feeble argument that because there is a provision for challenging the nomination of a candidate and for appealing against the decision of the returning officer regarding that objection, it is not permissible to urge a ground then available later before the Election Tribunal.
In the present case there was no decision by the Returning Officer about the nomination paper, and so we are not confronted by the appellate adjudication by the District Judge about the validity or otherwise of the nomination and its resuscitation before the Election Tribunal.
In this view we do not accede to the contention of the appellant based on section 44 or rule 15.
The third plea, not aimed at salvaging the poll success of the appellant but in unseating the respondent who has been declared elected by the Tribunal also has no merit from a legal angle although it is unfortunate that in a situation where there are only two candidates 855 and the election of one is set aside by the Tribunal, the other automatically gets returned, without resort to polls.
Anyway, in the present case, if the appellant 's election were invalid, there is only a single survivor left in the field, i.e., the first respondent.
Naturally, in any constituency where there is only one valid nomination, that nominee gets elected for want of contest.
To conclude, since the appellant is not disqualified, the appeals are bound to be allowed and we do so, but in the circumstances, without costs.
In the connected appeal C.A. No. 1270 of 1975 the consequence is to conform to what we have held above.
Therefore, that appeal is also allowed.
The parties will bear their respective costs through out.
P.B.R. Appeals allowed.
[/INST]Previous enmity between the appellant Ramaswami Ayyangar and the deceased Kaliaperumal resulted in an occurrence, in which Kaliaperumal got seriously injured and died in the hospital.
Various charges were framed against the six accused, including those of murder and rioting.
The Trial Judge acquitted three of the accused persons, convicted two under section 302 I.P.C. and one under section 324.
Cross appeals were preferred in the High Court; one by the three accused against their convictions, and another by the State, against the acquittals.
The High Court convicted all the six accused of the offence of rioting.
A 2 to A 6 under section 302 read with section 34, A 1 under Ss. 302/149 and 302/109, and A 2 under section 324.
It was contended before this Court that on the facts of the case, the High Court was not justified in interfering with the acquittal of A 1.
A 5 and A 6, and that A 2 who did not physically participate in the fatal beating of the deceased, could not be held vicariously liable for the acts of others, and that section 34 was not applicable to him.
Partly allowing the appeals, the Court ^ HELD: (1) In the case of an offence involving physical violence, it is essential for the application of section 34 that the person who instigates or aids the commission of the crime must be physically present at the actual commission of the crime for the purpose of facilitating or promoting the offence, the commission of which is the aim of the joint criminal venture.
[881 C D] (2) The "act" spoken of in section 34 includes a series of acts as a single act.
It follows that the words "when a criminal act is done by several persons" in section 34, may be construed to mean "when criminal acts are done by several persons".
The acts committed by different confederates in the criminal action may be different but all must in one way or the other participate and engage in the criminal enterprise.
Such presence of those who in one way or the other facilitate the execution of the common design, is itself tantamount to actual participation in the 'criminal act '.
[881 A B & D] (3) The essence of section 34 is simultaneous consensus of the minds of persons participating in the 'criminal action ' to bring about a particular result.
Such consensus can be developed at the spot and thereby intended by all of them.
[881 D E]
</s>
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<s>[INST] Summarize the judgementAppeal No. 230 of 1964.
Appeal by special leave from the judgment and order dated January 11, 1961 of the Madras High Court in section C. Petition No. 165 of 1960.
R. Ganapathy Iyer and R. Thiagarajan, for the appellant.
A. V. Rangam, for the respondent.
The Judgment of the Court was delivered by Shelat, J.
This appeal by special leave is against the order,, of the High Court of Madras dated January 11, 1961 refusing the certificate under article 133(1)(a) and (b) of the Constitution.
155 The authorities appointed under the Hindu Religious and Charitable Endowments Act, Madras Act 11 of 1927 having held that the premises No. 29 South Masi Street, Madurai, wherein the idol of Sri Srinivasaparumal and certain other idols were located constituted a temple within the meaning of the said Act, the appellant filed an application in the District Court for a declaration that the said premises were private property and for an order setting aside the said decision.
The said application was by an order of the High Court converted into a suit.
The main question in the suit was whether the said premises could be said to be a temple as defined by Madras Act 19 of 1951.
The District Judge, Madurai, decreed the suit in favour of the appellant holding that the aforesaid premises did not constitute a temple and set aside the decision of the said authorities.
On appeal, the High Court reversed the said judgment and decree and found that the premises in question constituted a temple.
The appellant thereupon filed a petition for leave to appeal to this Court and submitted that the value of the subject matter of dispute in the District Court as also in appeal in the High Court was more than Rs. 20,000/ and that the judgment of the High Court having reversed the judgment and decree of the Trial Court he was entitled to leave under article 133(1)(a) and (b).
The High Court dismissed that application on the following grounds: (a) that the subject matter of the dispute, whether it was a private or a public temple could have no market value and therefore was incapable of valuation; (b) that cl.
(b) of article 133(1) could not apply as the judgment and decree passed by it did not involve directly or indirectly a claim or question res pecting property of the value of Rs. 20,000/ or more and (c) that the appeal did not involve any substantial question of law.
For the time being we are concerned with grounds (a) and (b) and not with ground (c) is the contention raised by Mr. Ganapathy Iyer for the appellant was that the refusal to grant leave by the High Court under either of the clauses (a) and (b) of article 133(1) was not correct.
The point for consideration is whether the High Court was right in holding that the property in question whether as a private or a public temple was incapable of valuation as it could have in either case no market value.
It may be observed that the appellant claimed that the property belonged to the Thoguluva family and he was in management thereof for and on behalf of the family.
The suit in the first instance was filed by him in the form of an application, being O.P. No. 37 of 1950 under section 84(2) of Madras Act 11 of 1927.
Under that Act only a fixed court fee was payable.
That being so, the appellant did not have to pay court fees as it would in the case of an ordinary suit on a valuation made by him therefor.
The application was subsequently converted into a suit by an order of the High Court.
He was therefore entitled 156 to contend at the time of the leave application that the property in dispute was of the value of not less than Rs. 20,000/ .
It does not appear to be in dispute that the site of the Mandapam and the structure standing thereon was originally the property of one Kuppaiyan and his undivided sons.
The appellant 's case was that in execution of the decree in Suit No. 650 of 1882 passed against the said Kuppaiyan the property was sold by public auction and purchased by Thoguluva Thirumalayyan, the appellant 's ancestor, for a sum of Rs. 1,060/ .
The original mandapam was thereafter improved upon and some additional structures e.g., shops and other constructions were added, the expenses for such repairs and additions having been met by the descendants of the said Thoguluva Thirumalayyan, and therefore the property belonged to and was an alienable private property of the family.
On the other hand, the case of the respondents in their written statement was that the property was a public temple for public religious worship and that the allegation of the plaintiff that it was a private property capable of alienation was "false and misleading." The case of the appellant was accepted by the Trial Court but was rejected by the High Court and the High Court held that the property was a public temple within the meaning of Madras Act 19 of 195 1.
The dispute between the parties was thus centred round the question whether the property was the private alienable property of the said family or was a public temple as held by the High Court.
There was evidence that the shops subsequently constructed as aforesaid were let out to tenants for a number of years and property taxes were levied thereon by the Madhurai Municipality, presumably on their rateable value.
We may also mention here that in his application to this Court for directing an inquiry into the value of the property under 0. 45, r. 1 of the Code of Civil Procedure the appellant has stated that he has in his possession municipal receipts showing the property tax paid to the Madurai Municipality.
According to the appellant, property tax for the half year ending September 30, 1950 was Rs. 94 0 6 and for the half year ending March 31, 1961 it was Rs. 130.36nP.
According to him the half yearly tax would be equivalent to one month 's rent and on that basis the annual rental value would come to Rs. 1,126 6 0 in 1950 and to Rs. 1,672.32nP in 1961.
If that be so, capitalising that value at twenty times the annual rental value, the value of the property would come to more than Rs. 20,000/ .
The refusal of the High Court to grant leave was based on the observation that whether the property is a private or a public temple, it was incapable of valuation.
But as observed earlier the appellant 's case was that the subject matter of dispute in the suit was the private property of the said family and that it was alienable property and therefore capable of a valid transfer.
That being 157 the dispute between the parties, the High Court was not right in assuming that whether the property was a private or a public temple, it was incapable of valuation.
The subject matter of the dispute has to be ascertained with reference to the claim made by the plaintiff in his plaint and since according to the plaint, the property is the private property of the said family capable of alienation, the High Court ought to have valued the property accordingly though according to the respondents the property was inalienable and was a public temple.
The High Court was thus wrong in proceeding on the aforesaid assumption.
We would therefore allow the appeal, set aside the order passed by the High Court and remand the case to the High Court to decide the application for leave in accordance with the observations made in this judgment.
The High Court may either hold the inquiry itself or remit the case to the Trial Court to hold such inquiry and report to it.
Accordingly, the appeal is allowed and the High Court 's order is set aside.
The respondents will pay to the appellant the costs of this appeal.
Appeal allowed.
[/INST]The respondent was a trader in hider.
and skins and the appellant was an exporter.
During the period January to August 1949, there were several contracts between them.
The contracts mentioned that the appellant was buying the goods for resale in U.K.
The price quoted was C.I.F. less 2 1/2 %.
The contracts also provided that time should be the essence of the contract, that the sales tax was on respondent 's ac count, that the respondent was answerable for weight as well as quality, that there should be a lien on the goods for moneys advanced by the appellant, and that any dispute regarding quality should be settled by arbitration according to the custom of the trade in the U.K.
The course of dealing between them showed that before the goods were shipped they were subjected to a process of trimming and reassortment in the godowns of the appellant with a view to make them conform to London standards, that the goods were marked with the respondent 's mark and that premiums were paid to the respondent in case the goods supplied were of special quality.
The respondent filed a suit on the original side of the High Court praying that an account should be taken of the dealings between himself and the appellant on the ground that the appellant was his agent.
The appellant 's case was, that there was an outright purchase of the respondent 's goods and that the appellant was not an agent of the respon dent.
The trial Judge dismissed the suit.
On appeal the High Court held that the appellant acted as a del credere agent of the respondent and directed the taking of accounts.
In appeal to this Court, it was contended by the appellant that: (i) the terms of the contracts and the course, of dealing between the parties showed that the appellant was not the agent of the respondent but was an outright purchaser of the goods, and (ii) that there was a settled account between the parties which the respondent could not reopen.
HELD:(i) The appellant was the purchaser of the respondent 's goods under the several contracts and not his agent for sale, and therefore, the view taken by the High Court was not correct.
The essence of sale is the transfer of title to the goods for price paid, or to be paid, whereas the essence of the agency to sell is the delivery of the goods to a person who is to sell them, not as his own property but as the property of the principal who continues to be the owner of the goods, and the agent is liable to account for the proceeds.
On the terms of the contract and the course of dealing between the parties, the contract was not one of agency for sale but was an agreement of sale.
The appellant purchased the goods from the respondent 2 1/2% less and sold them to the London purchasers at the full price so that the 2 1/2 % was its margin of profit and not its agency commission.
The fact that the goods were sent with the respondents 2 mark, that the premium was paid outside the terms of the contract, that the appellant considered it fair and just to pay the whole of the premium to the respondent or to share it with him, and that additional burden with respect to weight and quality was thrown on the respondent, have no significance, in deciding the nature of the contract.
The clause with regard to lien is consistent with the transac tion being an outright sale, because the appellant was acting as creditor of the respondent and charged interest on advances only till the date of shipment of the goods when it became the purchaser of the goods from the respondent.
An agent can become a purchaser when the agent pays the price to the principal on his own responsibility.
The clause regarding arbitration in the U.K., though unusual, is not also inconsistent with there being a sale of goods between the parties in India.
[3H 4B; 5G H.] (ii) The accounts were settled between the parties and the respondent could not be allowed to reopen the settled account as there was no proof of fraud, mistake or any other sufficient ground.
Accounts are "settled or started" if they are submitted and accepted as correct by the other side to whom they have been rendered.
For almost every shipment the appellant prepared a full and detailed statement of account and sent it to the respondent.
The account contained items both of credit and debit and the figures on both sides were adjusted between the parties and a balance struck and the respondent accepted their accuracy and never raised any objection to them.
[11H; 14 E F].
Bishnu Chand vs Girdhari Lal, (1934) L. R. 61 I.A. 273 and Laycock vs Pickles, 4 B and S 497, applied.
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<s>[INST] Summarize the judgementCivil Appeal No. 396 of 1980.
Appeal by Special Leave from the Judgment and Order dated 3.10.
1979 of the Bombay High Court (Nagpur Bench) in Special Civil Application No. 1501 of 1977.
G.S. Sanghi, Mrs. Jayashri Wad and Mrs. Urmila Sirur for the Appellants.
P.V. Holay, T.G. Narayana Nair, M.S. Gupta and G.S. Sathe for Respondent No. 1 & 2.
The Judgment of the Court was delivered by FAZAL ALI, J.
This appeal by special leave is directed against an order of the High Court of Bombay of 2/3rd October, 1979 by which an order passed suspending the two respondents was quashed on the ground that the order of suspension pending a departmental inquiry was passed by the Municipal Commissioner who was not competent to suspend the respondents pending a departmental inquiry.
The High Court was of the view that under the Rules and Bye laws of the City of Nagpur Corporation Act, 1948(hereinafter referred to as the 'Act ') as amended uptodate, the competent authority to pass orders of suspension against the respondents was the Corporation itself and not the Chief Executive Officer.
It appears that originally the order of suspension was passed by the Municipal Com 24 missioner on the 23rd September, 1974 which was confirmed by the Corporation by its order dated 23rd September, 1974.
It is alleged by the respondents that latter order was not communicated to them.
The suspension was ordered in connection with a departmental inquiry relating to two accidents which occurred during the construction of a stadium called the Yeshwant Stadium, which was being looked after by the respondents and which resulted in the death of seven persons and injuries to eight others.
A complaint was also filed before the police as a result of which a charge sheet under section 304 A I.P.C. was filed against the respondents, on the 25th September, 1976.
In view of the charge sheet submitted by the police another order of suspension was passed by the Municipal Commissioner on 13.1.77 with effect from 8.10.76.
The respondents filed an appeal to departmental appellate authority which was dismissed on the 20th July, 1977.
Thereafter, the respondents filed a writ petition in the High Court which allowed the petition and quashed the order of suspension and directed the respondent to be paid their full salary and further directed the reinstatement of the respondents.
Hence this appeal.
The short point taken by Mr. Sanghi was that under section 59 (3) of the Act, the Municipal Commissioner is the competent authority to suspend the respondents pending a departmental inquiry.
On a perusal of section 59 (3) we are of the opinion that the contention is well founded and must prevail.
Section 59 (3) may be extracted thus: "Section 59 (3) : Subject, whenever it is in this Act expressly so directed to the approval or sanction of the Corporation or of the Standing Committee, and subject also to all other restrictions, limitations and conditions imposed by this Act, the entire executive power for the purpose of carrying out the provisions of this Act vests in the Commissioner who shall also (a). . (b) exercise supervision and control over the acts and proceedings of all municipal officers and servants and subject to the rules or bye laws for the time being in force, dispose of all questions relating to the services of the said officers and servants and their pay, privileges and allowances. "(Emphasis ours)" Thus clause (b) of section 59(3) in express terms authorises and clothes the Municipal Commissioner with the power to exercise supervision 25 and control over the acts of Municipal officers and servants.
It may be noticed that the said clause (b) is preceded by the words 'vest in the Commissioner '.
When the words 'control ' and 'vests ' are read together they are strong terms which convey an absolute control in the authority in order to effectuate the policy underlying the rules and makes the authority concerned the sole custodian of the control of the servants and officers of the Municipal Corporation.
In the case of State of West Bengal vs Nripendra Nath Bagchi(1) while interpreting a similar language employed in article 235 of the Constitution of India which confers control by the High Court over District courts, this Court held that the word 'control ' would include the power to take disciplinary action and all other incidental or consequential steps to effectuate this end and made the following observations: "The word "control", as we have seen, was used for the first time in the Constitution and it is accompanied by the word "vest" which is a strong word.
It shows that the High Court is made the sole custodian of the control over the judiciary.
Control, therefore, is not merely the power to arrange the day to day working of the court but contemplates disciplinary jurisdiction over the presiding Judge," . . "In our Judgment, the control which is vested in the High Court is a complete control subject only to the power of the Governor in the matter of appointment (including dismissal and removal) and posting and promotion of District Judges.
Within the exercise of the control vested in the High Court, the High Court can hold enquiries, impose punishments other than dismissal or removal.
" This view was reiterated in High Court of Andhra Pradesh & Ors.
vs V.V.S. Krishnamurhty & Ors.(2) where this Court clearly held that 'control ' included the passing of an order of suspension and that the power of control was comprehensive and effective in operation.
In this connection, Sarkaria, J. speaking for the Court, observed as follows: "The interpretation and scope of Article 235 has been the subject of several decisions of this Court.
The position 26 crystalized by these decisions is that the control over the subordinate judiciary vested in the High Court under Article 235 is exclusive in nature, comprehensive in extent and effective in operation.
It comprehends a wide variety of matters.
Among others, it includes: (a) (i) Disciplinary jurisdiction and a complete control subject only to the power of the Governor in the matter of appointment, dismissal, removal, reduction in rank of District Judges, and initial posting and promotion to the cadre of District Judges.
In the exercise of this control, the High Court can hold inquiries against a member of the subordinate judiciary, impose punishment other than dismissal or removal. . (ii) In Article 235, the word 'control ' is accompanied by the word "vest" which shows that the High Court alone is made the sole custodian of the control over the judiciary.
The control vested in the High Court, being exclusive, and not dual, an inquiry into the conduct of a member of judiciary can be held by the High Court alone and no other authority. . (iii) Suspension from service of a member of the judiciary, with a view to hold a disciplinary inquiry.
" It is thus now settled by this Court that the term 'control ' is of a very wide connotation and amplitude and includes a large variety of powers which are incidental or consequential to achieve the powers vested in the authority concerned.
In the aforesaid case, suspension from service pending a disciplinary inquiry has clearly been held to fall within the ambit of the word 'control '.
On a parity of reasoning, therefore, the plain language of clause (b) of section 59 (3), as extracted above, irresistibly leads to the conclusion that the Municipal Commissioner was fully competent to suspend the respondents pending a departmental inquiry and hence the order of suspension passed against the respondents by the Municipal Commissioner did not suffer from any legal infirmity.
The High Court was, therefore, in error in holding that the order of suspension passed by the Municipal Commissioner was without jurisdiction.
In this view of the matter the order of the High Court cannot be maintained and has to be quashed.
We might, however, mention that although in the criminal case charge sheet was submitted as far back as September, 1976 we 27 understand that no charges have been framed so far.
Criminal cases should be disposed of as quickly as possible so as to protect the accused from unnecessary harassment.
We therefore direct the Judicial Magistrate First Class of Nagpur to dispose of the Criminal Case No. 1902 of 1976 pending in his file with the utmost expedition and if possible within six months from today.
Mr. Sanghi on behalf of the Municipality, states that he will fully cooperate with the prosecution in producing all the available evidence before the court and bringing the case to a final conclusion within the period mentioned above.
The other question that remains is if the respondents are acquitted in the criminal case whether or not the departmental inquiry pending against the respondents would have to continue.
This is a matter which is to be decided by the department after considering the nature of the findings given by the criminal court.
Normally where the accused is acquitted honourably and completely exonerated of the charges it would not be expedient to continue a departmental inquiry on the very same charges or grounds or evidence, but the fact remains, however, that merely because the accused is acquitted, the power of the authority concerned to continue the departmental inquiry is not taken away nor is its direction in any way fettered.
However, as quite some time has elapsed since the departmental inquiry had started the authority concerned will taken into consideration this factor in coming to the conclusion if it is really worth while to continue the departmental inquiry in the event of the acquittal of the respondents.
If, however, the authority feels that there is sufficient evidence and good grounds to proceed with the inquiry, it can certainly do so.
In case the respondents are acquitted we direct that the order of suspension shall be revoked and the respondents will be reinstated and allowed full salary thereafter even though the authority chooses to proceed with the inquiry.
Mr. Sanghi states that if it is decided to continue the inquiry, as only arguments have to be heard and orders to be passed, he will see that the inquiry is concluded within two months from the date of the decision of the criminal court.
If the respondents are convicted, then the legal consequenses under the rules will automatically follow.
We might mention that at the time when special leave was granted by this Court, it was ordered that the respondents should be paid a lump sum of Rs. 10,000/ each apart from the 75% allowance.
We think that in the interest of justice the department may not insist on the refund of the amount of Rs. 10,000/ until the 28 result of the departmental inquiry and if the departmental inquiry concludes in their favour, the amount will be either refunded or adjusted against their dues.
With these observations, the appeal is accepted and the judgment of the High Court is quashed.
Parties will bear their own costs throughout.
S.R. Appeal allowed.
[/INST]Upto November 30, 1973, there were two competing entries in the First Schedule to the U. P. Sales Tax Act, 1948, so far as the item "hypodermic clinical syringes" is concerned, namely, Entry 39 which ran: "Glass wares other than hurricane lantern chimneys, optical lenses and bottles" and Entry 44 which ran: "Hospital equipment and apparatus" and for an item falling under the former the rate of tax was 10% while under the latter the rate of tax was 4% and for an unclassified item the rate was 3 1/2% From December 1, 1973 onwards Entry 44 was deleted and, therefore, if the clinical syringes did not fall within entry 39 it became an unclassified item under section 3A(2A) of the U.P. Sales Tax Act, 1948 and the rate of tax was 7%.
In view of this position that obtained for the relevant periods during the assessment year 1973 74 the appellant assessee had claimed before the assessing authorities that its turnover in respect of syringes for the period up to November 30, 1973 was liable to tax at 3 1/2%, as an unclassified item or in the alternative at 4% as "hospital equipment" under Entry 44 and its turnover for the period from December 1, 1973 to March 31, 1974 was liable to be taxed at 7% as an unclassified item.
But, negativing its contentions the entire turnover was held to be taxable at the rate of 10% on the basis that clinical syringes fell within the expression "glass ware" occurring in Entry 39 and hence the appeal by special leave on the question whether hypodermic clinical syringes could be regarded as glass ware.
Allowing the appeal, the Court ^ HELD: 1.
The assessee 's turnover up to November 30, 1973 will fall under Entry 44 dealing with "hospital equipment" and the same would be taxable at the rate of 4% and its turnover from December 1, 1974 will be taxable at the rate of 7% as an unclassified item.
[298 H] 2: 1.
It is well settled that in interpreting items in statutes like the Excise Tax Acts or Sales Tax Acts, whose primary object is to raise revenue and for which purpose they classify diverse products, articles and substances resort should be had not to the scientific and technical meaning of the terms or expressions used but to their popular meaning, that is to say, the meaning attached to them by those dealing in them.
If any term or expression has been defined in the enactment then it must be understood in the sense in which it is defined 295 but in the absence of any definition being given in the enactment the meaning of the term in common parlance or commercial parlance has to be adopted.
[297 C D] Ramavatar Budhiaprasad etc.
vs Assistant Sales Tax Officer, Akola, and Commissioner of Sales Tax, Madhya Pradesh vs Jaswant Singh Charan Singh, ; , followed.
2 : 2.
The clinical syringes which the assessee manufactures and sells cannot be considered as "glass ware" falling within Entry 39 of the First Schedule of the Act.
(a) In commercial sense, glass ware would never comprise articles like clinical syringes, thermometers, lactometers, and the like which have specialised significance and utility: (b) in popular or commercial parlance a general merchant dealing in "glass ware" does not ordinarily deal in articles like clinical syringes, thermometers etc.
which articles though made of glass, are normally available in medical stores or with the manufacturers thereof like the assessee; (c) it is equally unlikely that consumer would ask for such articles from a glass ware shop.
Further in popular sense when one talks of glass ware such specialised articles like clinical syringes do not come up to one 's mind.
[298 E F] State of Orissa vs Janta Medical Stores, 37 STC 33, approved.
Commissioner of Sales Tax vs S.S.R. Syringes and Thermometers, 1973 Law Diary 178, overruled.
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<s>[INST] Summarize the judgementr Petition No. 36 of 1980.
Petition under section 25 of the Code of Civil Procedure for transfer of case No. 28 of 1980 Misc.
(36) pending in the Court of the Distt.
Judge, Udaipur (Rajasthan) to the Court of Subordinate Judge, Eluru (Andhra Pradesh) to be tried alongwith O. P. No. 72 of 1979 pending in that court.
G.S. Rama Rao for the Petitioner.
B.D. Sharma for the Respondent.
The following Judgments were delivered: TULZAPURKAR, J. On September 26, 1979, the petitioner (wife) filed a suit in forma pauperis seeking maintenance from the respondent (her husband) in the Court of Subordinate Judge, Eluru (Andhra Pradesh) being O. P. No. 72 of 1979.
On the receipt of the notice of the suit, the respondent filed a divorce suit (Petition Case No. 28 of 1980) against the wife under section 13 of the in the Court of the District Judge, Udaipur (Rajasthan).
By the instant transfer petition filed under section 25 C.P.C. 226 1908 the wife is seeking to get the husband 's suit transferred to Eluru.
On merits we are satisfied that it is expedient for the ends of justice to transfer the husband 's suit to the District Court at Eluru (A.P.) where both the proceedings could be tried together and for that purpose the wife is agreeable to have her maintenance suit transferred to the District High Court at Eluru (A.P.) However, counsel for the respondent (husband) has raised before us a preliminary objection that section 25 of the C.P.C. under which the transfer petition has been made is not applicable to proceedings under the and as such this Court has no power to transfer the husband 's suit from Udaipur District Court to the District Court at Eluru.
He urged that section 25 of C.P.C. gets excluded by reason of the provisions of section 21 and 21A of the .
According to him section 25 C.P.C. deals with the substantive law and not procedural law and since section 21 of the makes applicable to all the proceedings under the Act only such provisions of C.P.C. as relate to the regulation of proceedings i.e. such provisions which deal with procedural matters only, section 25 C.P.C. is not applicable.
He also urged that section 21 A (3) of the also makes the above position clear beyond doubt by specifically excluding sections 24 and 25 C.P.C. from being applied to the proceedings under the .
A large number of authorities were referred to by counsel to substantiate his contention and general principles but in particular one decision of the Nagpur Bench of the Bombay High Court in the case of Priyavari Mehta vs Priyanath Mehta was pressed into service as having a direct bearing on the point.
In our view, on proper construction of the relevant provisions it is not possible to uphold the preliminary objection.
In the first place it is difficult to accept the contention that the substantive provision contained in section 25 C.P.C. is excluded by reason of section 21 of the .
Section 21 of the merely provides: "Subject to other provisions contained in this Act and to such rules as the High Court may make in that behalf, all proceedings under this Act shall be regulated, as far as may be, by the Code of Civil Procedure, 1908".
In terms section 21 does not make any distinction between procedural and substantive provisions of C.P.C. and all that it provides is that the Code as far as may be shall apply to all proceedings under the Act and the phrase 227 "as far as may be" means and is intended to exclude only such provisions of the Code as are or may be inconsistent with any of the provisions of the Act.
It is impossible to say that such provisions of the Code as partake of the character of substantive law are excluded by implication as no such implication can be read into section 21 and a particular provision of the Code irrespective of whether it is procedural or substantive will not apply only if it is inconsistent with any provision of the Act.
For instance, it is difficult to countenance the suggestion that the doctrine of res judicata contained in section 11 of the Code which partakes of the character of substantive law is not applicable to proceedings under the Act.
Res judicata, after all, is a branch or specie of the Rule of Estoppel called Estoppel by Record and though Estoppel is often described as a rule of evidence, the whole concept is more correctly viewed as a substantive rule of law (See: Canada and Dominion Sugar Co. Ltd. vs Canadian National (West Indies) Steamships Ltd. So far as section 21A of the is concerned the marginal note of that section itself makes it clear that it deals with power to transfer petitions and direct their joint or consolidated trial "in certain cases" and is not exhaustive.
Further sub section
(3) of section 21A on which strong reliance was placed runs thus: "21A (3).
In a case where clause (b) of sub section (2) applies, the Court or the Government, as the case may be, competent under the Code of Civil Procedure, 1908 (5 of 1908) to transfer any suit for proceeding from the district court in which the later petition has been presented to the district court in which the earlier petition is pending, shall exercise its powers to transfer such later petition as if it had been empowered so to do under the said Code.
" This provision in terms deals with the power of the Government or the Court on whom powers of transfer have been conferred by the C.P.C. as it then stood, that is to say, old section 24 and 25 of C.P.C.
It does not deal with the present section 25 C.P.C. which has been substituted by an amendment which has come into force with effect from February 1, 1977 (section 11 of the Amending Act 104 of 1976).
By the amendment very wide and plenary power has been conferred on this Court for the first time to transfer any suit, appeal or other proceedings from one High Court to another High Court or from one Civil 228 Court in one State to another Civil Court in any other State throughout the country.
Conferral of such wide and plenary power on this Court could not have been in the contemplation of Parliament at the time of enactment of section 21A of the .
It is, therefore, difficult to accept the contention that s, 21A of excludes the power of transfer conferred upon this Court by the present section 25 of C.P.C. in relation to proceedings under that Act.
Coming to the decision rendered by the Nagpur Bench of the Bombay High Court in Priyavari Mehta 's case (supra) it needs to be pointed out that the aforesaid aspects of section 21A of the and the present section 25 of the C.P.C. were not considered by the Nagpur Bench at all.
Moreover, the Nagpur Bench, following the decision of the Punjab and Haryana High Court in Smt.
Rama Kanta vs Ashok Kumar has also taken the view that section 21A of the permits transfer and consolidation of only two types of petition under the Act, namely, cross petitions filed by the two spouses against each other under section 10 or section 13 of the Act and that consolidation or joint hearing of other types of petitions is excluded by necessary intendment.
The Bench has observed: "The effect of section 21A, therefore, in my opinion, is that joint or consolidated hearing or trials of petitions other than those mentioned in that section not being permissible, the powers under section 23 to 25 of the Code cannot be exercised for transfer of petitions for a consolidated hearing of the petitions not contemplated by that section.
" Such a view, in our opinion, is not correct.
As stated earlier, in the matter of transfer of petitions for a consolidated hearing thereof section 21A cannot be regarded as exhaustive for the marginal note clearly suggests that the section deals with power to transfer petitions and direct their joint and consolidated trial "in certain cases.
" Moreover, it will invariably be expedient to have a joint or consolidated hearing or trial by one and the same Court of a husband 's petition for restitution of conjugal rights on ground that the wife has withdrawn from his society without reasonable excuse under section 9 of the Act and the wife 's petition for judicial separation against her husband on ground of cruelty under section 10 of the Act in order to avoid conflicting decisions being rendered by two different 229 Courts.
In such a situation resort will have to be had to the powers under sections 23 to 25 of the Civil Procedure Code for directing transfer of the petitions for a consolidated hearing.
Reading section 21A in the manner done by the Nagpur Bench which leads to anomalous results has to be avoided.
In this view of the matter, the preliminary objection is overruled.
Divorce case No. 28 of 1980 pending in the District Court Udaipur (Rajasthan) is transferred to the District Court Eluru (A.P.), to which Court the wife 's petition for maintenance shall also stand transferred.
No order as to costs.
AMRENDRA NATH SEN, J.
I agree with the order proposed by my learned brother.
I, however, propose to make certain observations with regard to the preliminary objection raised as to the jurisdiction of this Court to entertain this application.
The preliminary objection raised is that the jurisdiction and power conferred on this Court under section 25 of the Code of Civil Procedure are excluded by the provisions contained in section 21 and section 21A of the ; and as section 25 of the Civil Procedure Code is not attracted, this Court does not have jurisdiction to entertain this application for transfer.
section 25 of the Code of Civil Procedure reads as follows: "(1) On the application of a party, and after notice to the parties, and after hearing such of them as desire to be heard, the Supreme Court may, at any stage, if satisfied that an order under this section is expedient for the ends of justice, direct that any suit, appeal or other proceeding be transferred from a High Court or other Civil Court in one State to a High Court or other Civil Court in any other State.
(2) Every application under this section shall be made by a motion which shall be supported by an affidavit.
(3) The Court to which such suit, appeal or other proceeding is transferred shall, subject to any special directions in the order of transfer, either re try it or proceed from the stage at which it was transferred to it.
(4) In dismissing any application under this section, the Supreme Court may, if it is of opinion that the application was frivolous or vexatious, order the applicant to pay by way of compensation to any person who has opposed the 230 application such sum, not exceeding two thousand rupees, as it considers appropriate in the circumstances of the case.
(5) The law applicable to any suit, appeal or other proceeding transferred under the section shall be the law which the court in which the suit, appeal or other proceeding was originally instituted ought to have applied to such suit, appeal or proceeding.
" It may be noticed that the present section 25 was substituted for the former section 25 by the Code of Civil Procedure (Amendment) Act, 1976.
In this connection it may be relevant to set out section 25 of the Code of Civil Procedure, as it stood before its amendment by the substitution of the present section.
The earlier section 25 was in the following terms: "(1) Where any part to a suit, appeal or other proceeding pending in a High Court presided over by a single Judge objects to its being heard by him and the Judge is satisfied that there are reasonable grounds for the objection, he shall make a report to the State Government, which may, by notification in the Official Gazette, transfer such suit, appeal or proceeding in any other High Court: Provided that no suit, appeal or proceeding shall be transferred to a High Court without the consent of the State Government of the State that High Court has its principal seat.
(2) The law applicable to any suit, appeal or proceeding so transferred shall be the law which the Court in which the suit, appeal or proceeding was originally instituted ought to have applied to such case.
" A plain reading of section 25 of the Code clearly indicates that very wide jurisdiction and powers have been conferred on this Court to transfer any suit, appeal or any other proceeding from a High Court or other Civil Court in any State to a High Court or other Civil Court in any other State for the ends of justice.
I shall now set out the relevant provisions of the . section 21 of the is in the following terms: "Subject to the other provisions contained in this Act and to such rules as the High Court may make in this behalf, all 231 proceedings under this Act shall be regulated, as far as may be by the Code of Civil Procedure, 1908." Section 21A which was introduced in the Act by the Amending Act, (68 of 1976) provided as follows: "(1) where (a) a petition under this Act has been presented to a district court having jurisdiction by a party to a marriage praying for a decree for judicial separation under section 10 or for a decree of divorce under section 13, and (b) another petition under this Act has been presented thereafter by the other party to the marriage praying for a decree for judicial separation under section 10 or for a decree of divorce under section 13 on any ground, whether in the same district court or in a different district court, in the same State or in a different State; the petition shall be dealt with as specified in sub section(2) (2) in a case where sub section (1) applies; (a) if the petitions are presented to the same district court, both the petitions shall be tried and heard together by that Court: (b) if the petitions are presented to different district courts, the petition presented later shall be transferred to the district court in which the earlier petition was presented and both the petitions shall be heard and disposed of together by the district court in which the earlier petition was presented.
(3) In a case where clause (b) of sub section (2) applies, the court or the Government as the case may be, competent under the Code of Civil Procedure, 1908 to transfer any suit or proceeding from the district court in which the later petition has been presented to the district court in which the earlier petition is pending, shall exercise its powers to transfer such later petition as if it had been empowered so to do under the said Code.
" 232 The learned counsel for the respondent argues that in view of the provisions contained in section 21, only the provisions contained in the Code of Civil Procedure relating to procedure which will regulate the proceedings instituted under the will apply; and as section 25 of the Code of Civil Procedure does not appertain to the domain of procedure and confers substantive right, the said section is not applicable and cannot be attracted.
It is argued that this position is further made clear by the provisions contained in section 21A.
In my opinion, this argument of the learned counsel for the respondent husband is without any substance.
I have earlier set out section 25 of the Code of Civil Procedure and I have pointed out that an analysis of the section makes it abundantly clear that for the ends of justice, wide power and jurisdiction have been conferred on this Court in the matter of transfer of any suit, appeal or proceeding from any High Court or other Civil Court in one State to a High Court or other Civil Court in any other State.
A suit or a proceeding for divorce under the in a Civil Court is necessarily a suit or proceeding and must on a plain reading of section 25(1) of the Code of Civil Procedure be held to come under section 25(1) of the Code, as the said section speaks of any suit, appeal or other proceeding.
This Court must necessarily enjoy the power and jurisdiction under the said provisions of transferring such a suit or proceeding for the ends of justice, unless the power and jurisdiction of this Court are specifically taken away by any statute.
If the jurisdiction clearly conferred on any Court has to be ousted, the exclusion of such jurisdiction must be made in clear and unequivocal terms.
S.21 of the does not deal with the question of jurisdiction of any Court.
As no procedure with regard to the proceedings under the has been laid down in the said Act, section 21 of the Act only provides that 'all proceedings under this Act shall be regulated as far as may be by the Code of Civil Procedure. ' section 21 of the cannot be construed to exclude the jurisdiction conferred on this Court under section 25 of the Code of Civil Procedure.
It does not become necessary in the instant case to decide whether the provision in relation to jurisdiction of this Court contained in section 25 of the Code of Civil Procedure is one of substantive law or it belongs to the domain of Procedure.
Even I accept the argument of the learned counsel for the respondent that section 25 does not form any part of the procedural law and is a part of the substantive law, I am of the opinion that jurisdiction conferred on this Courts by section 25 of 233 the Code of Civil Procedure, is not in any way, affected by section 21 of the which, as I have already noted, only provides that 'all proceedings under the shall be regulated as far as may be by the Code of Civil Procedure, 1908. ' section 21A of the , in my opinion, has indeed no bearing on the question of jurisdiction conferred on this Court under section 25 of the Code of Civil Procedure.
section 21A of the makes provisions for transfer of petitions specified in the said section and for hearing and disposal of such petitions together by the District Court in which the earlier petition has been presented.
Such power has been conferred on the Court or the Government.
section 21A has no application to the case of transfer of any suit or proceeding from one State to another.
As I have earlier noted, very wide power and jurisdiction have been conferred on this Court in the interest of justice for transferring any appeal, suit or proceeding from one State to another under section 25 of the Code of Civil Procedure.
In the instant case, the petitioner has applied for transfer of the suit pending in the District at Udaipur in the State of Rajasthan to the appropriate Court at Eluru in the State of Andhra Pradesh.
I am, therefore, of the opinion that this Court enjoys the power and jurisdiction to entertain this application under section 25 of the Code of Civil Procedure and section 21 and section 21A of the do not, in any way, exclude, affect or curtail the power conferred on this Court under section 25 of the Code of Civil Procedure.
I may incidentally add that the present section 25 in the Code of Civil Procedure came into force after section 21 and 21A have been incorporated in the .
V.D.K. Preliminary objection rejected.
[/INST]The management of a cooperative society registered under the U.P. Cooperative Societies Act vests in a committee constituted in accordance with the provisions of the Act and the Rules made thereunder.
The term of elected members of a committee, according to section 29(2) read with r. 445(1) is three 'Cooperative years ' including the cooperative year in which they are elected. 'Cooperative year ' means the year commencing on the 1st day of July and ending on the 30th day of June next following.
Fresh members are to be elected before the expiry of the term of existing elected members failing which an administrator can be appointed by the Deputy Registrar, Cooperative Societies to manage the affairs of the cooperative society till the reconstitution of the committee.
In this case the term of the cooperative society in question was drawing to a close and the poll to elect fresh members was held on September 11, 1978.
The result of the poll could not be declared immediately owing to an injunction issued by a court in a suit filed by a voter whose name had not appeared in the electoral roll.
The result was, however, declared ultimately on January 28, 1980, and appellant No. 1 was elected Chairman of the committee on January 29, 1980.
By an order dated July 1, 1981, made under section 29(4) (b), the Deputy Registrar, Cooperative Societies appointed an administrator to manage the affairs of the society on the ground that the term of members of the Committee had expired on June 30, 1981.
The appellants challenged the validity of the order under article 226.
The High Court upheld the impugned order and dismissed the petition on the ground that once the poll was held and even though the result of the election was not announced, the term would commence from the date of the poll.
The appellants submitted that even though the poll was held on September 11, 1978, the result having been declared for the first time on January 28, 1980, the term of three cooperative years of the elected members would expire on June 30, 1982.
Allowing the appeal, ^ HELD: 1.
(a) Election means the process of being elected and the term of office is of elected members.
The term of office as member cannot begin to run unless the status of being a member is acquired on being declared elected.
208 The result of the election having been declared on January 28, 1980, the term of members commenced from the cooperative year beginning on July 1, 1979 and ending with June 30, 1980 and since their term was three cooperative years including the year of election, it would expire on June 30, 1982.
The order appointing the administrator was, therefore illegal.
[213 H, 214 H, 215 A, 216 F G] (b) The provision of section 29(4) (b) was not attracted as the process of election had begun with the holding of the poll before the expiry of the term and, once the poll was held as a part of the programme of election, it had to progress to the statutory end of declaration of result.
[216 B E] 2.
The various stages of election were clearly demarcated in the Rules.
Mere holding of poll, which means recording of votes, without anything more would be inconsequential.
It is the counting of votes and the consequent declaration of result which would determine who has become eligible for office by the democratic process.
No election process can be said to be complete unless the votes are recorded and counted and the result of the election declared and publicised.
[212 G H, 213 E G] 3.
The election process is sacrosanct and members elected must be permitted to discharge their functions as chosen representatives of the electorate for the statutorily prescribed term and therefore the plea that the administrator should not be disturbed as only four months would remain for the expiry of the term cannot be countenanced.
The drastic power of removing elected representatives before the expiry of their term must receive strict and narrow interpretation.
[217 A C]
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